[Federal Register Volume 86, Number 215 (Wednesday, November 10, 2021)]
[Notices]
[Pages 62533-62537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24554]


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FEDERAL TRADE COMMISSION

[File No. 211 0013]


In the Matter of DaVita, Inc. and Total Renal Care, Inc.; 
Analysis of Agreement Containing Consent Orders To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement; request for comment.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair methods of competition. 
The attached Analysis of Proposed Consent Orders to Aid Public Comment 
describes both the allegations in the complaint and the terms of the 
consent orders--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before December 10, 2021.

[[Page 62534]]


ADDRESSES: Interested parties may file comments online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Please write: ``In the Matter 
of DaVita, Inc. and Total Renal Care, Inc.; File No. 211 0013'' on your 
comment, and file your comment online at www.regulations.gov by 
following the instructions on the web-based form. If you prefer to file 
your comment on paper, please mail your comment to the following 
address: Federal Trade Commission, Office of the Secretary, 600 
Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580; 
or deliver your comment to the following address: Federal Trade 
Commission, Office of the Secretary, Constitution Center, 400 7th 
Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Stuart Hirschfeld (206-220-4484) and 
Danica Noble (206-220-5006), Northwest Regional Office, Federal Trade 
Commission, 915 2nd Avenue, Seattle, WA 98104.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing a consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis of Agreement Containing Consent Orders to Aid Public 
Comment describes the terms of the consent agreement and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC website at 
this web address: https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before December 10, 
2021. Write ``In the Matter of DaVita, Inc. and Total Renal Care, Inc.; 
File No. 211 0013'' on your comment. Your comment--including your name 
and your state--will be placed on the public record of this proceeding, 
including, to the extent practicable, on the www.regulations.gov 
website.
    Due to protective actions in response to the COVID-19 pandemic and 
the agency's heightened security screening, postal mail addressed to 
the Commission will be subject to delay. We strongly encourage you to 
submit your comments online through the www.regulations.gov website.
    If you prefer to file your comment on paper, write ``In the Matter 
of DaVita, Inc. and Total Renal Care, Inc.; File No. 211 0013'' on your 
comment and on the envelope, and mail your comment to the following 
address: Federal Trade Commission, Office of the Secretary, 600 
Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580; 
or deliver your comment to the following address: Federal Trade 
Commission, Office of the Secretary, Constitution Center, 400 7th 
Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If 
possible, submit your paper comment to the Commission by courier or 
overnight service.
    Because your comment will be placed on the publicly accessible 
website at www.regulations.gov, you are solely responsible for making 
sure your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure your comment does not include any 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on www.regulations.gov--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from that website, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC website at https://www.ftc.gov to read this Notice 
and the news release describing this matter. The FTC Act and other laws 
the Commission administers permit the collection of public comments to 
consider and use in this proceeding, as appropriate. The Commission 
will consider all timely and responsive public comments it receives on 
or before December 10, 2021. For information on the Commission's 
privacy policy, including routine uses permitted by the Privacy Act, 
see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Agreement Containing Consent Orders To Aid Public Comment

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an Agreement Containing Consent Order (``Consent 
Agreement'') with DaVita, Inc., through its wholly-owned subsidiary, 
Total Renal Care, Inc. (``DaVita''). The proposed Consent Agreement is 
intended to remedy the anticompetitive effects that would likely result 
from DaVita's proposed acquisition (``Proposed Acquisition'') of all 
dialysis clinics owed by the University of Utah (``University'').
    Pursuant to an Asset Purchase Agreement dated September 22, 2021, 
DaVita proposes to acquire all 18 dialysis clinics from the University 
in a non-HSR-reportable transaction. DaVita is the largest provider of 
dialysis services in the United States and the University is an 
academic and public research institution in the State of Utah. The 18 
dialysis clinics extend from the southeast corner of Nevada to the 
southern part of Idaho. The Commission alleges in its Complaint that 
the Proposed Acquisition if consummated, would violate Section 7 of the 
Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the FTC Act, as 
amended, 15 U.S.C. 45, by reducing competition and increasing 
concentration in outpatient dialysis services provided in the Provo, 
Utah market.
    The proposed Consent Agreement will remedy the alleged violations 
by preserving competition that would otherwise be eliminated by the 
Proposed Acquisition. Under the terms of the Consent Agreement, DaVita 
is

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required to divest three dialysis clinics to Sanderling Renal Services, 
Inc., (``SRS'') and must provide SRS with transition services for one 
year. In addition, DaVita cannot: (1) Enter into, or enforce, any non-
compete agreements with physicians employed by the University that 
would restrict their ability to work at a clinic operated by a 
competitor of DaVita (except to prevent a medical director under a 
contract with DaVita from simultaneously serving as a medical director 
at a clinic operated by a competitor); (2) enter into any agreement 
that restricts SRS from soliciting DaVita's employees for hire; or (3) 
directly solicit patients who receive services from the divested 
clinics for two years. Finally, DaVita is required to receive prior 
approval from the Commission before acquiring any new ownership 
interest in a dialysis clinic in Utah.

II. The Relevant Market and Competitive Effects

    The Commission's Complaint alleges the relevant line of commerce is 
the provision of outpatient dialysis services. Patients receiving 
dialysis services have end stage renal disease (``ESRD''), a chronic 
disease characterized by a near total loss of function of the kidneys 
and fatal if not treated. Many ESRD patients have no alternative to 
outpatient dialysis treatment because they are not viable home dialysis 
or transplant candidates (or they are waiting for a transplant for 
multiple years, during which time they must still receive dialysis 
treatment). Treatments are usually performed three times per week for 
sessions lasting between three and four hours. According to the United 
States Renal Data System, there were over 555,000 ESRD dialysis 
patients in the United States in 2018.
    The Commission's Complaint also alleges the relevant geographic 
market in which to assess the competitive effects of the Proposed 
Acquisition is the greater Provo, Utah area. Specifically, the market 
is centered on Provo, Utah and extends north to Orem, Utah and south to 
Payson, Utah. The market is defined by the distance ESRD patients will 
travel to receive reoccurring treatments. Because ESRD patients are 
often suffering from multiple health problems and may require 
assistance traveling to and from the dialysis clinic, patients cannot 
travel long distances to receive treatment. Accordingly, most patients 
are unwilling or unable to travel more than 30 minutes or 30 miles for 
treatment, although travel times and distances may vary by location.
    Dialysis providers seek to attract patients by competing on quality 
of services. To some extent, the providers also compete on price. 
Although Medicare eventually will cover all ESRD patients' dialysis 
costs, there is a 30-month transition period where commercially insured 
patients' costs are covered by their insurers, which compensate the 
providers at competitively negotiated rates.
    In the greater Provo market, there are only three providers: The 
University (which has three clinics), DaVita (four clinics) and 
Fresenius Medical Care (one clinic). Therefore, the University and 
DaVita directly and substantially compete in the relevant market as the 
two largest providers, and DaVita would own seven of the eight clinics 
in the region. The Proposed Acquisition would eliminate competition 
between DaVita and The University in the relevant market for outpatient 
dialysis services, increasing the ability to unilaterally raise prices 
to third-party payers and decreasing the incentive to improve the 
quality of services provided to patients.

III. Entry

    Entry into the outpatient dialysis services market in the greater 
Provo, Utah area would not be likely, timely, or sufficient in 
magnitude, character, and scope to deter or counteract the 
anticompetitive effects of the Proposed Acquisition. The most 
significant barrier to entry is contracting a nephrologist with an 
established referral base to serve as the clinic's medical director. 
The Department of Health and Human Services requires each dialysis 
clinic have a nephrologist as a medical director. Locating a 
nephrologist is difficult because clinics typically enter into 
exclusive contractual arrangements with a nephrologist who is paid a 
medical director fee. Finding patients may also be difficult if the 
nephrologist does not have local ties, as most nephrologists typically 
refer their patients to the clinic where they serve as medical 
director. Moreover, the area itself must have a low penetration of 
dialysis clinics and a high ratio of commercial to Medicare patients to 
attract entry.

IV. The Agreement Containing Consent Order

    Section II of the Proposed Order requires that DaVita divest the 
three University clinics in the greater Provo market to SRS, including 
all of the assets necessary for SRS to independently and successfully 
operate the clinics, which include, among other things, all leases for 
real property, all medical director contracts, and a license for each 
clinics' policies and procedures.
    Section IV of the Proposed Order requires that DaVita provide 
transition services to SRS for up to one year, and Section V requires 
DaVita to provide assistance to SRS in hiring the employees at the 
divested clinics and to refrain from soliciting those employees for 180 
days. In addition, Section V prohibits DaVita from entering into or 
enforcing non-compete agreements with any University nephrologist, 
except to prevent a medical director under a contract with DaVita from 
simultaneously serving as a medical director at a clinic operated by a 
competitor. Section V also prohibits DaVita from entering into any non-
solicitation agreement with SRS that would prevent SRS from soliciting 
DaVita's employees for hire.
    Section VI of the Proposed Order, along with the Order to Maintain 
Assets, requires that DaVita take such actions as are necessary to 
maintain the full economic viability, marketability, and 
competitiveness of the divested clinics and their assets. Section VIII 
provides for the appointment of a Monitor to oversee the divestiture.
    Section X of the Proposed Order requires DaVita to obtain prior 
approval from the Commission for any future acquisition of any 
ownership interests in any dialysis clinic in Utah. With regard to 
transactions involving clinics in multiple states, such prior approval 
only applies to the clinics in Utah.
    The Commission does not intend this analysis to constitute an 
official interpretation of the proposed Order or to modify its terms in 
any way.

    By direction of the Commission.
April J. Tabor,
Secretary.

Concurring Statement of Commissioner Christine S. Wilson

    Today, the Commission announces a consent order to settle 
allegations that the proposed acquisition of the dialysis business of 
the University of Utah Health (``University'') by Total Renal Care, 
Inc., a wholly-owned subsidiary of DaVita Inc. (``DaVita''), may 
substantially lessen competition in the market for outpatient dialysis 
services in the greater Provo, Utah area. I support the outcome but 
believe two aspects of the consent order warrant discussion so that my 
support is not misconstrued. Those two sets of provisions relate to 
prior approval and non-compete agreements. I then highlight a third 
provision--a ban on no-poach agreements--in light of the ongoing 
dialogue regarding whether antitrust

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enforcement adequately protects competition for labor inputs.

Prior Approval and Non-Compete Agreement Provisions

    First, DaVita is required to receive prior approval from the 
Commission before acquiring any new ownership interest in a dialysis 
clinic in Utah. The Commission rescinded the 1995 Policy Statement 
Concerning Prior Approval and Prior Notice (``1995 Policy'') on July 
21, 2021. I dissented from this rescission for three reasons: The 1995 
Policy was put in place to prevent resource-intensive and vindictive 
litigation; it preserved the use of prior approval provisions in 
appropriate circumstances; and the majority did not provide new 
guidance explaining how these provisions would be used following 
rescission of the 1995 Policy.\1\
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    \1\ Oral Remarks of Commissioner Christine S. Wilson, Open 
Commission Meeting on July 21, 2021 at 8-11 (July 21, 2021), https://www.ftc.gov/system/files/documents/public_statements/1592366/commissioner_christine_s_wilson_oral_remarks_at_open_comm_mtg_final.pdf. See also Dissenting Statement of Commissioner Noah Joshua 
Phillips Regarding the Commission's Withdrawal of the 1995 Policy 
Statement Concerning Prior Approval and Prior Notice Provisions in 
Merger Cases (July 21, 2021), https://www.ftc.gov/system/files/documents/public_statements/1592398/dissenting_statement_of_commissioner_phillips_regarding_the_commissions_withdrawal_of_the_1995.pdf.
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    Because I believe the 1995 Policy provided sound guidance on the 
appropriate use of prior approval provisions, I will assess the 
propriety of the prior approval provision in this matter against that 
touchstone. The 1995 Policy noted prior approval is most likely 
appropriate where there is a credible risk a company engaged in an 
anticompetitive merger would attempt the same or approximately the same 
merger in the future.\2\ DaVita has engaged in a pattern of acquiring 
independent dialysis facilities; \3\ many of these acquisitions fall 
below HSR thresholds and consequently escape premerger review,\4\ 
including this proposed acquisition. There is some evidence this 
pattern of sub-HSR acquisitions has led to higher prices and lower 
service levels in the dialysis field.\5\ For this reason, I have 
encouraged the Commission on previous occasions to study this 
industry.\6\
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    \2\ Notice and Request for Comment Regarding Statement of Policy 
Concerning Prior Approval and Prior Notice Provisions in Merger 
Cases, 60 FR 39745, 39746 (August 3, 1995), https://www.ftc.gov/system/files/documents/public_statements/410471/frnpriorapproval.pdf.
    \3\ Paul J. Eliason et al., How Acquisitions Affect Firm 
Behavior and Performance: Evidence from the Dialysis Industry, 135 
Quarterly J. Econ. 221, 235 (2020) (showing how the acquisitions of 
independent facilities have contributed to DaVita's overall growth).
    \4\ Thomas Wollmann, How to Get Away With Merger: Stealth 
Consolidation and its Real Effects on US Healthcare (Nat'l Bureau of 
Econ. Rsch., Working Paper No. 27274) (``In short, the FTC blocks 
nearly all reportable facility acquisitions resulting duopoly and 
monopoly. In sharp contrast, the dashed line reflects exempt 
facility acquisitions. These ownership changes witness effectively 
no enforcement actions, regardless of simulated HHI change. This 
includes dozens of facility acquisitions involving [Delta]HHI 
>2,000, several of which involve [Delta]HHI near 5,000.'').
    \5\ Eliason et al., supra note 3, at 223 (``We find that 
acquired facilities alter their treatments in ways that increase 
reimbursements and decrease costs. For instance, facilities capture 
higher payments from Medicare by increasing the amount of drugs they 
administer to patients, for which Medicare paid providers a fixed 
per-unit rate during our study period. . . . On the cost side, large 
chains replace high-skill nurses with lower-skill technicians at the 
facilities they acquire, reducing labor expenses. Facilities also 
increase the patient load of each employee by 11.7% and increase the 
number of patients treated at each dialysis station by 4.5%, 
stretching resources and potentially reducing the quality of care 
received by patients.'').
    \6\ See, e.g., Statement of Commissioner Christine S. Wilson, 
Joined by Commissioner Rohit Chopra, Concerning Non-Reportable Hart-
Scott-Rodino Act Filing 6(b) Orders (February 11, 2020), https://
www.ftc.gov/system/files/documents/public_statements/1566385/
statement_by_commissioners_wilson_and_chopra_re_hsr_6b.pdf#:~:text=St
atement%20of%20Commissioner%20Christine%20S.%20Wilson%2C%20Joined%20b
y,that%20drive%20content%20curation%20and%20targeted%20advertising%20
practices.
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    Against this backdrop, a prior approval provision is appropriate 
here. Specifically, there is a credible risk DaVita will attempt to 
acquire additional dialysis facilities in the same general area in 
which divestiture has been ordered. But to be clear, my vote in favor 
of this consent should not be construed as support for the liberal use 
of prior approval provisions foreshadowed by the Commission's majority 
when it rescinded the 1995 Policy.
    Second, the order contains provisions that prohibit DaVita from 
enforcing non-compete agreements in the University of Utah 
nephrologists' medical director contracts.\7\ Some commentators have 
suggested non-compete provisions should be banned, and some of my 
current and former colleagues on the Commission have expressed sympathy 
for that view.\8\
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    \7\ Analysis of Agreement Containing Consent Orders to Aid 
Public Comment, In the Matter of DaVita, Inc. and Total Renal Care, 
Inc., No. 211-0013 (October 25, 2021), (``[The Order] prohibits 
DaVita from entering into or enforcing non-compete agreements with 
any University nephrologist. . . .'').
    \8\ Letter from Chair Lina M. Khan to Chair Cicilline and 
Ranking Member Buck at 2 (Sept. 28, 2021), https://docs.house.gov/meetings/JU/JU05/20210928/114057/HHRG-117-JU05-20210928-SD005.pdf 
(``The FTC has heard concerns about noncompete clauses at its open 
meetings, and the Commission recently opened a docket to solicit 
public comment on the prevalence and effects of contracts that may 
harm fair competition. As we pursue this work, I am committed to 
considering the Commission's full range of tools, including 
enforcement and rulemaking.''); New Decade, New Resolve to Protect 
and Promote Competitive Markets for Workers, Remarks of Commissioner 
Rebecca Kelly Slaughter As Prepared for Delivery at FTC Workshop on 
Non-Compete Clauses in the Workplace at 1 (Jan. 9, 2020), https://www.ftc.gov/system/files/documents/public_statements/1561475/slaughter_-_noncompete_clauses_workshop_remarks_1-920.pdf (``I also 
want to thank the advocates and academics--including those 
participating today--who have raised awareness about and contributed 
both research and new ideas to the discussion concerning non-compete 
provisions in employment contracts. State attorneys general and 
their staff have also been at the forefront of this issue by 
investigating and initiating legal action to end unjustified and 
anticompetitive non-compete clauses in employment contracts.''); 
Letter from Commissioner Rohit Chopra to Assistant Attorney General 
Makan Delrahim at 3 (Sept. 18, 2019), https://www.ftc.gov/system/files/documents/public_statements/1544564/chopra_-_letter_to_doj_on_labor_market_competition.pdf (``A rulemaking 
proceeding that defines when a non-compete clause is unlawful is far 
superior than case-by-case adjudication.''); Open Markets Institute 
et al., Petition for Rulemaking to Prohibit Worker Non-Compete 
Clauses, (posted by the Fed. Trade Comm'n on July 21, 2021), https://www.regulations.gov/document/FTC-2021-0036-0001.
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    While I disagree with that perspective,\9\ I have concluded the 
provisions limiting the effect of non-competes in this matter are 
necessary to achieve an effective remedy. Specifically, the operations 
of a dialysis facility must occur under the auspices of a nephrologist; 
indeed, without a nephrologist, a dialysis clinic cannot operate. 
Nephrologists are in short supply,\10\ and the inability of a facility 
owner to retain or replace a licensed nephrologist could serve as a 
barrier to entry or, in this case, preclude the buyer from continuing 
to compete in the market. Moreover, a repeal of non-competes to 
effectuate a remedy is not novel; past consent orders have included 
provisions that prohibit merging parties from enforcing non-competes to 
aid divestiture buyers in hiring employees.\11\ For these reasons, I

[[Page 62537]]

support the provisions pertaining to non-competes in this matter--but 
my acquiescence to these provisions should not be construed as support 
for a sweeping condemnation of non-competes more generally.
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    \9\ Testimony of Commissioner Christine S. Wilson at the Hearing 
on Reviving Competition, Part 4: 21st Century Antitrust Reforms and 
the American Worker at 9-12, (Sept. 28, 2021), https://www.ftc.gov/system/files/documents/public_statements/1596880/commissioner_wilson_hearing_on_reviving_competition_part_4_-_21st_century_antitrust_reforms_and_the.pdf.
    \10\ Muhammad U. Sharif et al., The global nephrology workforce: 
Emerging threats and potential solutions!, 9 Clinical Kidney J. 11, 
13 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4720191/ 
(``These facts would suggest that the current nephrology workforce 
[in the U.S.] should increase in order to compensate for the 
expected growth in patient numbers. Unfortunately, the opposite 
appears to be the case.'').
    \11\ See, e.g., Decision and Order, Gallo et al. No. 191-0110 at 
VI.A.4 (April 5, 2021), https://www.ftc.gov/system/files/documents/cases/gallo-cbi_decision_and_order_final_201107.pdf (``Remove any 
impediments within the control of Respondents that may deter 
relevant Divestiture Business Employees from accepting employment 
with the Acquirer, including removal of any non-compete . . .''); 
Decision and Order, Stryker et al., No. 201-0014 at VI.B.3 (Dec. 17, 
2020), https://www.ftc.gov/system/files/documents/cases/2010014c4728strykerwrightorder.pdf (``Remove any impediments within 
the control of Respondents that may deter Implant Business Employees 
from accepting employment with the Acquirer, including removal of 
any non-compete . . .''); Decision and Order, Arko Holdings et al., 
No. 201-0041 at VI.B.3 (Oct. 7, 2020), https://www.ftc.gov/system/files/documents/cases/c-4726_201_0041_arko_empire_order.pdf 
(``Remove any impediments within the control of Respondents that may 
deter Retail Fuel Employees from accepting employment with an 
Acquirer . . .''). This consent does contain a new twist on our 
approach to non-competes. Specifically, DaVita may not enforce non-
competes to the extent they prevent competitors or potential 
competitors from obtaining the services of a nephrologist, which 
will allow potential competitors to launch a competing dialysis 
clinic in Utah. Given my understanding of DaVita's business 
practices, the nephrologist shortage, and the historical industry 
context, I believe this remedy constitutes appropriate fencing-in 
relief.
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Ban on No-Poach Agreements

    The order contains an anti-no-poach provision that prevents DaVita 
from entering into any agreement that would restrict the divestiture 
buyer from soliciting DaVita's employees. I highlight this provision 
because some critics have asserted antitrust enforcement ignores 
competition for labor as an input.\12\ I believe modern antitrust 
enforcement does, in fact, police the market for unlawful practices 
impacting competition for labor.\13\ Naked no-poach agreements are per 
se illegal under the antitrust laws, and have been subject to 
enforcement accordingly.\14\
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    \12\ Testimony of Eric A. Posner on Antitrust and Labor Markets 
at 2 (Sept. 28, 2021), https://docs.house.gov/meetings/JU/JU05/20210928/114057/HHRG-117-JU05-Wstate-PosnerE-20210928.pdf (``Yet, 
while thousands of antitrust cases have been brought over the years, 
hardly any have addressed labor market cartelization. The Justice 
Department and the Federal Trade Commission have reviewed thousands 
of mergers, approving some and rejecting others, but have not even 
once analyzed the labor market effects of a merger.'').
    \13\ Testimony of Commissioner Christine S. Wilson at the 
Hearing on Reviving Competition, Part 4: 21st Century Antitrust 
Reforms and the American Worker at 12-14, (Sept. 28, 2021), https://www.ftc.gov/system/files/documents/public_statements/1596880/commissioner_wilson_hearing_on_reviving_competition_part_4_-_21st_century_antitrust_reforms_and_the.pdf.
    \14\ Dep't of Justice, Antitrust Div. & Fed. Trade Comm'n, 
Antitrust Guidance for Human Resource Professionals (Oct. 2016), 
https://www.justice.gov/atr/file/903511/download.
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    With respect to the instant matter, DaVita and its former CEO were 
recently indicted for agreeing with competitors to refrain from 
recruiting one another's employees.\15\ In a past consent order, where 
respondents had entered into no-poach agreements, provisions explicitly 
prohibiting these agreements have been included in an order.\16\ I 
support the inclusion of an anti-no-poach provision in this order 
because of the relevant allegations against DaVita and to allow the 
Commission to pursue an order violation if DaVita attempts to limit 
competition through anticompetitive no-poach agreements in the future.
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    \15\ Indictment, United States v. DaVita Inc. et al., No. 1:21-
cr-00229 (D. Colo. July 14, 2021).
    \16\ Press Release, Fed. Trade Comm'n, VieVu's Former Parent 
Company Safariland Agrees to Settle Charges That It Entered into 
Anticompetitive Agreements with Body-Worn Camera Systems Seller Axon 
(April 17, 2020), https://www.ftc.gov/news-events/press-releases/2020/04/vievus-former-parent-company-safariland-agrees-settle-charges-it (``According to the complaint, the agreements barred 
Safariland from competing with Axon now and in the future on all of 
Axon's products, limited solicitation of customers and employees by 
either company, and stifled potential innovation or expansion by 
Safariland. . . . Under the proposed order, Safariland is required 
to obtain approval from the Commission before entering into any 
agreement with Axon that restricts competition between the two 
companies.'').

[FR Doc. 2021-24554 Filed 11-9-21; 8:45 am]
BILLING CODE 6750-01-P