McDermott Team Wins Landmark Acquittal in First-Ever Criminal Antitrust “No Poach” Trial

Overview


International law firm McDermott Will & Emery represented DaVita’s ex-CEO, Kent Thiry, in achieving a resounding victory in the first-ever criminal “no poach” market allocation case brought by the Department of Justice (DOJ) Antitrust Division.

In 2016, the DOJ announced its intention to prosecute any “no poach” or non-solicitation agreements that originated or continued past October 2016 as felonies under Section 1 of the Sherman Act. This criminal prosecution in the labor markets reflects a novel and aggressive stance on expanding Sherman Act criminal liability. Under this new approach, DaVita and Thiry were indicted in 2021 on three counts of criminal conspiracy to allocate the market for employees by allegedly entering into non-solicitation agreements with Surgical Care Affiliates, Hazel Health and Radiology Partners to not to recruit each other’s senior executives and other employees between 2012 and 2019.

After an eight-day jury trial and two full days of deliberations in April 2022, the jury returned a complete acquittal for both Thiry and DaVita.

“It was an honor and a privilege to represent Kent Thiry from the outset of the investigation through the jury verdict, where he was acquitted of all charges in this unprecedented criminal antitrust prosecution,” said McDermott litigation partner and co-lead trial counsel Jeffrey E. Stone. “The government pushed an aggressive new interpretation of the law which we fought at every turn. But the American jury system prevailed – and it was 12 jurors, not the government, that had the last word. Kudos to Kent Thiry and to DaVita for having the courage to fight this battle without ever wavering. It was a privilege to represent Kent Thiry in this case.”

The team was led by Jeffrey E. Stone, Daniel Campbell and Justin P. Murphy, with invaluable support from Sean Koller, Alexandra Lewis and Reese Poncia. The team also received substantial assistance from McDermott Discovery, including Timothy Kennedy, Edward Kwon, Gregory Kimmel and Dean Butkovich.

This decision resolves U.S. v. DaVita Inc. et al. (Case No. 1:21-cr-00229).

About McDermott


McDermott Will & Emery partners with leaders around the world to fuel missions, knock down barriers and shape markets. Our team works seamlessly across practices, industries and more than 20 locations to deliver highly effective solutions that propel success. More than 1,200 lawyers strong, we bring our personal passion and legal prowess to bear in every matter for our clients and the people they serve.

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