Analysis Group Supports DaVita’s Successful Defense in No-Poach Antitrust Criminal Matter

Date:April 21, 2022
Location:Boston, MA
Contact:Eric Seymour
978 273 6049

A team from Analysis Group, one of the largest international economics consulting firms, supported key testimony for DaVita, a kidney dialysis provider, and its former CEO, Kent Thiry, in the first criminal no-poach antitrust case to be brought by the federal government (US v. DaVita Inc. and Kent Thiry). DaVita was represented by WilmerHale LLP and Morgan, Lewis & Bockius LLP, and Mr. Thiry was represented by Fish & Richardson PC, Winston & Strawn LLP, and McDermott Will & Emery.

The US Department of Justice (DOJ) alleged that DaVita and Thiry entered into agreements with Surgical Care Affiliates, Radiology Partners, and Hazel Health to allocate the labor market through non-solicitation agreements over various periods spanning 2012 through 2019. The DOJ charged, for the first time, that these alleged “no-poach” agreements constituted per se violations of the Sherman Act because they suppressed labor market competition.

An Analysis Group team led by Managing Principal Aaron Yeater and Vice Presidents Jee-Yeon Lehmann and Rebecca Scott supported firm President Pierre Cremieux in his testimony as the sole witness for the defense. Dr. Cremieux compared the number of DaVita employees hired by each of the three alleged co-conspiring companies prior to and during the alleged agreements to that of others that hired DaVita employees, showing that 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 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.

Following a 10-day trial in the US District Court for the District of Colorado, the jury acquitted DaVita and Thiry on all counts.

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