Kent Thiry is a guinea pig. A very rich, very bombastic, big, blond guinea pig.
Last week began the criminal trial of Thiry and DaVita, the company where he served as CEO and chairman of the board. The U.S. Department of Justice has charged Thiry and DaVita with violation of the Sherman Anti-trust Act by conspiring with other companies to avoid hiring senior-level executives away from each other.
There is a lot to unpack in this trial.
First, the Sherman Anti-Trust Act, the bill codified in 15 U.S. Code § 1, has been around awhile. Congress passed the bill in 1890 as a response to the hoarding of corporate power wrought by America’s Gilded Age. It makes it a felony to contract or conspire in restraint of trade or commerce.
For example, John Rockefeller’s Standard Oil effectively monopolized the oil industry by the late 19th century. His oil company held far too much sway over the lives of everyday Americans. Now we have multiple competing oil companies holding far too much sway over the lives of everyday Americans.
In the interim, the DOJ has never brought a criminal case against any person or company like the one it has brought against Thiry and DaVita.
This is the kind of thing the DOJ can do with its limitless resources. When it decides it wants to test a new theory of law — in this case that collusion between companies to prevent poaching of senior-level executives is illegal — it can pick and choose the right case to bring. And when it does, it can lean into it.
A case like this does not proceed simply because some random prosecutor decides to go right wrongs. It is something mulled for years across multiple levels and jurisdictions. Eventually a handful of potential cases are culled and eventually one proceeds. That case will be followed across the country and into the highest offices of the DOJ.
What the DOJ really wants is a precedent. Specifically, they want a rule making market-allocation of employees through non-solicitation agreements as illegal as the market-allocation of customers or geographic areas.
Thiry and DaVita are effectively collateral damage. Of course that is not the company line out of the DOJ.
The DOJ will cast Thiry as a modern-day robber baron attempting to corrupt the American system of business. They will say his business practices are a threat to every Average Joe and Average Jane working for big companies across the country (even if senior-level health care executives are hardly representative of the American workforce).
They will use his significant wealth and public persona to his detriment. The current political and socio-economic climate has given rise to significant populist movements on the right and the left. Both love to vilify men like Thiry.
Yet Thiry is not too rich. He is not too powerful or too well known. He is not a billionaire tech mogul. He is not even the head of a major hospital system or a pharmaceutical company. He is not so strong that the DOJ cannot push him around.
In the grand scheme of things, DaVita is a big fish in a small pond. It is one of the two dominant kidney dialysis providers in the U.S. But that is just one small segment of the much larger health care industry.
That brings up a major obstacle for the DOJ — their allegations are not that DaVita and Fresenius Medical Care, the other major dialysis provider — colluded among themselves. Rather they claim that the illegal conduct took place between DaVita and companies in other segments of the health care industry. That could be a fatal flaw in their argument.
For a few more weeks Colorado will remain at the forefront of federal prosecutions across the country. As the presiding judge, the Honorable R. Brooke Jackson pointed out, it really is a “big deal.”
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq
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