Deerfield, Ill.-based Surgical Care Affiliates wants the U.S. Justice Department's charges of entering into agreements with competitors not to poach senior employees to be dismissed.
In January, the Justice Department revealed an indictment against SCA, a division of UnitedHealth Group's Optum, alleging the company conspired with others to violate the Sherman Act by agreeing not to solicit employees from their competitors. On May 14, SCA filed a proposed reply brief supporting its bid to dismiss the case.
SCA argued that widespread forms of "no-poach" agreements have been used in the outpatient services industry for decades, and the federal government did not show this case should be subject to the per se rule.
The company stated in the brief: "When it comes to employee non-solicitation agreements in particular, there does not even appear to be a case squarely condemning such an agreement under the rule of reason. Under those circumstances, it is fanciful to insist that employers have been given fair warning that entering into employee non-solicitation agreements is criminal misconduct. Unsurprisingly, the indictment here fails to allege that anyone thought they were breaking the law, or tried to hide the existence of these agreements."
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