DaVita: Who Gets the Recruiting Call?

The DaVita no poach case ended in a jury acquittal for the company and its former CEO after prosecutors accused them of agreements restricting employee recruitment. Separate civil claims by outpatient medical-center employees concerned their own alleged injuries. For someone inside recruiting or human resources, the useful question is concrete: what did competing employers agree about approaching each other’s employees, and how did that agreement reach the people making hiring decisions?

DaVita operates outpatient medical-care centers across the country, focusing on dialysis and kidney care. The alleged recruiting restrictions put employees’ opportunities at stake: whether another employer would approach them about a job.

What the DaVita No-Poach Charges Alleged

The criminal indictment announced in July 2021 alleged separate recruiting agreements with competing health care employers.

The first allegation concerned Surgical Care Affiliates, commonly called SCA. Prosecutors alleged that DaVita and SCA agreed not to solicit each other’s senior-level employees, from as early as February 2012 until as late as July 2017.

The second concerned another healthcare company. Prosecutors alleged that this company agreed not to solicit DaVita employees, from as early as April 2017 until as late as June 2019. The announcement described that commitment as running toward DaVita’s workforce and did not limit it to senior-level employees.

The indictment charged that the agreements kept rival employers from competing for the same workers. The alleged bargain protected employers from competition for the very people whose careers were at stake.

A Recruiting Restriction Starts Before the Job Offer

A no-solicitation agreement concerns the approach to a prospective employee. Its reach depends on which employers, people and recruiting activity it covers. The alleged DaVita agreements focused on solicitation.

The older civil recruiting case involving Adobe, Apple, Google, Intel, Intuit and Pixar shows why that stage matters. In its civil complaint and accompanying explanation, the Justice Department alleged that agreements against cold calling suppressed direct recruitment of skilled employees, competing offers and information about wages.

That is the worker’s stake in a recruiting call. An approach from another employer can carry both an opportunity and information about what that employer will pay. In the government’s account of the technology-company arrangements, the restriction reached the conversation before it could become a competing offer.

The Company and Its Former CEO Were Both Acquitted

The jury acquitted DaVita and its former CEO on April 15, 2022, on all three counts. The criminal indictment had accused the former CEO personally of participating in the recruiting agreements alongside the company.

DaVita Employees Brought Their Own Case

DaVita’s company disclosure separately identifies the outpatient medical-center employee antitrust litigation. Those private claims are distinct from the government’s prosecution and its outcome.

The technology-company cases provide a concrete parallel. The government’s civil recruiting case addressed restraints on competition. In a separate employee case, a federal court approved a private settlement involving Adobe, Apple, Google and Intel in September 2015. That settlement addressed employees’ claims for harm from recruiting restrictions.

How Recruiting Instructions Reach the Hiring Desk

The Knorr-Bremse and Wabtec complaint alleged that executives stopped an outside recruiter and barred hiring discussions without a rival’s approval, illustrating instructions distinct from DaVita’s acquitted charges.

Actual Hiring Can Change the Story

What happened to employees matters alongside what someone said about recruiting. A separate aerospace staffing prosecution illustrates the point.

In an April 2023 ruling, a federal court acquitted the defendants after the prosecution presented its evidence. The government had alleged an agreement allocating aerospace engineers among staffing suppliers. The court found the evidence insufficient, taking account of actual worker movement, changing restrictions, exceptions and inconsistent hiring instructions.

VDA OC admitted a wage-and-hiring agreement in its plea, a different criminal result from DaVita’s acquittal.

A recruiting instruction, an exception to it and an employee’s actual move can each explain a different part of an alleged arrangement. We fit those pieces together with you.

What Evidence Shows a No-Poach Agreement?

Evidence that connects the participants, their communications and the recruiting decisions helps explain an alleged agreement. Our whistleblower experts work through the recruiting instruction and actual candidate outcome with the employee who understands both.

In a recruiting case, that can mean understanding who set a restriction, which employees it covered, how it reached the recruiter and what happened to a particular candidate. The hiring discussion, the instruction that interrupted it and the response to an exception can give the account its substance.

Different positions offer different views. An employee may know about the opportunity that disappeared. A recruiter may know why contact stopped. A manager may know who gave the instruction. Our work is to connect those views with the communications and hiring history, then build the case around what they actually show.

Employee Claims and Whistleblower Rewards

An employee’s claim for lost compensation and a whistleblower reward serve different purposes. For someone with information about a recruiting agreement, we assess the evidence and the appropriate whistleblower route together.

Anonymity or questions about your own role are reasons to speak with our experts about your circumstances.

A whistleblower case under the False Claims Act can pay 15% to 30% of what the government recovers.

You Know Why the Recruiting Stopped

If a DaVita recruiting instruction stopped an approach or allowed an exception, explain what actually happened to our whistleblower experts.