Analysis Group Testimony Supports DaVita’s Successful Defense in First-of-its-Kind Criminal Antitrust Case Involving No-Poach Agreements

April 21, 2022

Analysis Group was retained on behalf of kidney dialysis provider DaVita and its former CEO, Kent Thiry, the defendants in a labor market antitrust case brought by the US Department of Justice (DOJ). The DOJ alleged that DaVita had entered into agreements with three other companies in the health care industry not to solicit one another’s employees, which the DOJ claimed constituted a per se violation of the Sherman Act. The case was the first criminal case brought by the DOJ in which a “no-poach” agreement was treated as a per se violation of federal antitrust laws.

An Analysis Group team led by Managing Principal Aaron Yeater and Vice Presidents Jee-Yeon Lehmann and Rebecca Scott supported President Pierre Cremieux, who was the sole witness called by the defense at trial. Dr. Cremieux opined that, based on an analysis of DaVita and the three companies’ hiring practices, there was no statistical evidence of a decline in hiring from the alleged agreements. He also testified – based on the team’s analysis of benchmark data from the US Bureau of Labor Statistics – that during the time of the alleged agreements, neither DaVita’s turnover rate nor its compensation had decreased relative to an industry benchmark, suggesting that there had been no allocation of the labor market or meaningful decrease in competition.

A jury in the US District Court for the District of Colorado found DaVita and Thiry not guilty of all charges.