The Division of Justice (DOJ) misplaced its third jury trial in its mission to safe prison convictions in opposition to firms and executives accused of labor-side antitrust violations on March 22, 2023, when a jury in Maine acquitted 4 residence healthcare staffing executives of violating Part 1 of the Sherman Act. In United States v. Manahe, the DOJ charged Faysal Kalayaf Manahe, Yaser Aali, Ammar Alkinani, and Quasim Saesah with coming into into an roughly two-month conspiracy between April and Might 2020 to not rent one another’s caretakers and to repair caretaker wages.[1] After the district courtroom declined to dismiss the indictment, holding the DOJ had efficiently alleged a per se conspiracy to repair wages and allocate workers, the case proceeded to a two-week trial. At trial, defendants—all immigrants from Iraq, a lot of whom served as translators for U.S. forces there—admitted that they mentioned setting wage ranges and refraining from hiring one another’s workers, and even drafted an settlement with signature strains that outlined the phrases of defendants’ discussions.[2] Defendants argued that they by no means reached an settlement in violation of Part 1 as a result of the draft settlement was by no means signed. Protection counsel emphasised in opening statements that in defendants’ tradition, “when coping with enterprise issues . . . the one approach to verify a dedication is to place it into a proper written contract.” Given the decision, it seems the jury agreed.
There are a number of takeaways from Manahe—together with the significance of sensitizing juries to cultural variations that will inform how they view the proof—a problem of explicit significance within the context of antitrust trials, which frequently contain multinational and overseas defendants. However the important thing takeaway is that the DOJ has now didn’t safe jury convictions on antitrust counts in all three instances it has dropped at trial primarily based on theories of collusion in labor markets. Along with Manahe, the DOJ suffered two losses in 2022 in United States v. Jindal and United States v. DaVita. In Jindal, a jury acquitted defendants of fees that they conspired to repair the wages of bodily remedy assistants within the Dallas space in 2017.[3] Shortly after the Jindal loss, a separate jury in Colorado acquitted DaVita and a former government of fees that they entered into an settlement with their competitor to not solicit one another’s senior-level workers.[4]
The DOJ had success, nonetheless, in securing a plea settlement in United States v. Hee, the place defendants—a staffing firm and its former regional supervisor—pled responsible to violating Part 1 by coming into right into a no-hire settlement and settlement to not elevate wages for varsity nurses in Clark County, Nevada.[5] Staffing firm defendant, VDA OC LLC, agreed to pay $134,000 in prison fines and restitution on account of the plea. Mr. Hee agreed to 180 hours of group service and pretrial diversion, that means that if Mr. Hee abides by the phrases of his settlement and doesn’t violate any legal guidelines for six months, DOJ will drop its fees in opposition to him.
Extra labor collusion instances are in retailer. Following the acquittals in Jindal and DaVita, Assistant Lawyer Common Jonathan Kanter declared on April 21, 2022 that the Division is “not a part of the chickenshit membership” and can “maintain criminals accountable” for antitrust violations that have an effect on employees.[6] In step with that warning, on March 15, 2023, the DOJ secured one other indictment from a federal grand jury in Nevada in opposition to healthcare staffing government, Eduardo Lopez, alleging that Mr. Lopez conspired to repair the wages of Las Vegas nurses. A number of of the identical prosecutors in Hee are concerned in Lopez. And the DOJ will quickly have one other alternative to check its theories earlier than a jury in two upcoming instances: United States v. Patel et al., the place trial is scheduled to start subsequent week on March 27, 2023, and United States v. Surgical Care Associates LLC, the place the trial set for January 9, 2023 has been continued.[7] One factor is for sure: as Mr. Kanter promised in April 2022, the DOJ is “not backing down” anytime quickly in its pursuit to determine that harms that have an effect on employees are “actionable antitrust harms.”
FOOTNOTES
[1] Indictment, United States v. Manahe et al., No. 2:22-cr-00013 (D. Me. Jan. 27, 2022), ECF No. 1, obtainable at https://www.justice.gov/atr/case-document/file/1466736/obtain (final visited Mar. 23, 2023).
[2] Cara Salvatore, BREAKING: Dwelling Well being Execs Acquitted In Newest DOJ Antitrust Loss, Law360 (Mar. 22, 2023 4:14 PM EDT), https://www.law360.com/competitors/articles/1586974?nl_pk=c8f12781-da40-417a-8433-e7d693ba2f9d&utm_source=e-newsletter&utm_medium=electronic mail&utm_campaign=competitors&utm_content=1586974&nlsidx=0&nlaidx=0.
[3] Verdict of the Jury, United States v. Jindal, No. 20-cv-0358 (E.D. Tex. Apr. 14, 2022), ECF No 112.
[4] Judgment of Acquittal, United States v. DaVita, Inc., No. 21-cr-0229 (D. Colo. Apr. 20, 2022), ECF No. 266.
[5] Unopposed Mot. to Waive Presentence Investigation, United States v. Hee, No. 2:21-cr-00098 (D. Nev. Oct. 17, 2022).
[6] Assistant Lawyer Common Jonathan Kanter, Query & Reply to Keynote on the College of Chicago Stigler Heart—Antitrust Enforcement: The Highway to Restoration, Unofficial Transcript of Occasion (Apr. 21, 2022).
[7] Order Resetting Trial, United States v. Surgical Care Associates LLC, No. 3:21-cr-00011 (N.D. Tex. Nov. 11, 2022), ECF No. 173.
