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United States District Court for the District of Colorado
January 28, 2022, Decided; January 28, 2022, Filed
Criminal Case No. 1:21-cr-00229-RBJ
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
This case is before the Court on defendants' motion to dismiss, ECF No. 49, renewed at ECF No. 83. For the reasons stated below, the motions are DENIED.
I. FACTUAL BACKGROUND
This case arises from an alleged conspiracy between various companies and individuals who owned and operated outpatient medical facilities across the country. ECF No. 1 at ¶¶1-7. Count 1 alleges a conspiracy to allocate the market through an agreement not to solicit the senior employees of co-conspirators. Id. at ¶¶9-12. The agreement allegedly began as early as February 2012 and continued through July 2017. Id. at [*3] ¶9. The indictment explains how the agreement was reached (ECF No. 1 at ¶11(a)-(b)), enforced (¶11(c)-(f)), and followed (¶11(g)). Count 1 of the indictment alleges that "[t]he charged conspiracy consisted of a continuing agreement, understanding, and concert of action among DaVita, Thiry, and their co-conspirators, the substantial terms of which were that DaVita and [co-conspirator] SCA would allocate senior-level employees by not soliciting each other's senior level employees across the United States." ECF No. 1 at ¶10. Count 1 alleges that DaVita and its co-conspirators allegedly carried out the conspiracy by meeting to discuss the terms of the agreement (id. at ¶11(a)); instructing certain executives and employees to refrain from soliciting senior employees from co-conspirator companies (id. at ¶11(c)); monitoring compliance with the agreement by requiring senior employees to notify their current employer before seeking employment with a co-conspirator company (id. at ¶11(d)—(e)); taking steps to remedy any violations of the agreement (id. at ¶11(f)); and generally refraining from soliciting the senior employees of parties to the agreement (id. at ¶11(g)).
Count 2 makes substantially [*4] similar allegations, but as to all employees instead of just senior employees. Count 2 alleges a conspiracy to allocate the market through an agreement not to solicit any employees of the competitor companies. Id. at ¶¶17-18. This agreement allegedly began in April 2017 and continued until at least July 2019. Id. at ¶17. For Count 2, the government alleges that the co-conspirators carried out the conspiracy by meeting to discuss the terms of the agreement (id. at ¶19(a)); agreeing not to solicit the employees of co-conspirator companies and reassuring co-conspirator companies of the parties' commitment to the agreement (id. at ¶19(b), (c)); monitoring compliance with the agreement by requiring employees to notify their current employer before seeking employment with a co-conspirator company (id. at ¶19(d), (e)); and generally refraining from soliciting the employees of co-conspirator companies (id. at ¶19(f)).
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2022 U.S. Dist. LEXIS 16188 *; 2022 WL 266759
UNITED STATES OF AMERICA, Plaintiff, v. 1. DAVITA INC. 2. KENT THIRY, Defendants.
non-solicitation, allocate, horizontal, co-conspirator, employees, indictment, naked, no-hire, allegations, defendants', soliciting, conspiracy, procompetitive, new category, courts, senior employee, price fixing, competitors, terms of the agreement, motion to dismiss, anticompetitive, ancillary, customers, falls, per se violation, legal argument, rule of reason, inappropriate, Violations, compliance