June 29, 2023

Podcast - The Latest on Antitrust and Non-Compete Agreements in Healthcare

Counsel That Cares Podcast

In this episode of "Counsel That Cares," antitrust attorney David Kully and labor and employment attorney Mark Peters take a deep dive into the latest updates regarding non-solicitation and non-compete agreements in the healthcare space. Their conversation provides insight into what's happening at a federal level regarding employment-related matters, the Federal Trade Commission’s proposed rule, the impact of potentially banning non-competes and more.


Morgan Ribeiro: Welcome to Counsel That Cares. I am Morgan Ribeiro, the host of the podcast and a director in the firm's Healthcare Section. On today's episode, we are kicking off a series of conversations where we will look at the involvement by the federal government, including federal antitrust authorities, in healthcare transactions and arrangements. And in today's episode we will specifically look at non-solicitation and non-compete agreements in the healthcare setting. And joining me are two Holland & Knight partners. Dave Kully is a partner in the firm's antitrust group based in Washington, D.C.,  and Mark Peters is a healthcare labor and employment partner based in Nashville. Both attorneys focus a large component of their practice, advising clients on non-compete and related matters, with a particular emphasis on the nuances that face healthcare providers. As many of our listeners are likely aware, the Department of Justice (the DOJ) has been very active and going after companies, including several healthcare providers that they claim have entered into agreements not to poach each other's employees or to fix employee wages. This has played out in a surprising way with the DOJ losing case after case after these issues have been presented to juries. And relatedly, in January, the FTC proposed a ban on non-compete clauses and employee contracts, which is still under consideration. This sent shockwaves through the healthcare industry, and while I was out at the JPMorgan annual healthcare conference in January, this was a key point of discussion and our conversations with both healthcare company executives, private equity firms, you name it. Everyone was talking about what do you think is going to happen and what will this ultimately mean for the industry? The January announcement by the FTC follows multiple other discussions, including the 2021 approval of a new uniform state law by the Uniform Law Commission that will regulate restrictive employment agreements and President Biden's 2021 executive order calling for increased antitrust enforcement with a focus on healthcare as one of their four key industries called out in that executive order. And then just weeks ago, the National Labor Relations Board general counsel issued a memo on non-compete violating the National Labor Relations Act. And the NLRB general counsel is committed to an interagency approach that's mentioned in that memo that was circulated in last year, entered into a memorandum of understanding with the Federal Trade Commission and the DOJ's Antitrust Division, both of which have addressed the anti-competitive effects of non-compete agreements. So long intro, but I think just laying that sort of background of all of these different agencies, all of this sort of federal oversight, and I think in particular for the stakeholders in the healthcare services space, employed healthcare providers to independent physician groups, all the way to entrepreneurs and private equity investors, should prepare for the potentially unpredictable and adverse consequences to provider compensation, talent retention, existing contract interpretation in the event that the non-compete restrictions are prohibited by future federal regulations. So we're to dive into all of this and today's conversation. And with that introduction, Mark and Dave, welcome to the show and thanks for being here.

Dave Kully: Thanks, Morgan. We've been noting how much there is to talk about here and how fast this is moving, so thanks for doing this.

Mark Peters: Again, thanks, Morgan. Great to be with you and Dave, and looking forward to our conversation today.

Morgan Ribeiro: Great. So first, I think it would be helpful if you can each provide a lay of the land from your perspective. What's happening at a federal level regarding employment-related matters?

Employment-Related Matters at a Federal Level: What's Happening?

Dave Kully: Yeah, so I'll start. The short answer is a lot is happening. There seem to be new developments every single day. And I don't think we've reached the end of the story, because the government's facing setbacks and there's some still some legal issues that still remain to play out, but this is as hot and active an area as there is right now. So let me just mention a couple of things to set the stage. And the first goes to where this interest really comes from, and Morgan, you mentioned the executive order. So in July 2021, the Biden Administration issued an executive order calling for a whole of government approach to promoting competition, and the order specifically encouraged the FTC to use its rulemaking power to ban non-compete agreements. So this isn't the first government interest in how employer agreements might impact workers. We'll talk in a few minutes about the 2016 antitrust guidance for human resource professionals. But it's probably the direct connection to the FTC efforts to ban non-competes. And the second point I want to make is just to mention, sort of, what the government's concern is about these kind of agreements, which I think is helpful to understand as companies think about what their options are in this new world. And so the first is, so the way the government views non-competes and no poach, or non-solicitation, agreements [is] as ways to deny workers the benefits of competition. So, I mean, no poach agreements. It's pretty obvious if employers agree not to hire each other's employees, the employees lose the benefits of that competition between their employers. And the government says they get lower wages or benefits. And with non-competes the concern is that if workers can't credibly threaten to move to competitors, they lose a certain bargaining leverage with their employers. So the antitrust enforcement agencies are considering the impact on workers in all aspects of the work that they do, even when they evaluate company transactions, which I know a lot of our clients are interested in. I mean, they're really taking this whole government call to heart, and it's important that clients keep that in mind in any interactions that they have with the government.

The short answer is a lot is happening. There seem to be new developments every single day. And I don't think we've reached the end of the story, because the government's facing setbacks and there's some still some legal issues that still remain to play out, but this is as hot and active an area as there is right now.

Mark Peters: Dave, I agree. This is Mark, and I'm now in my 26th year of helping healthcare clients navigate thorny employment issues, from mid-search hospitals to long-term care facilities, to dialysis clinics to DSOs and MSOs, there is never a dull day, in my world, dealing with situations where people have said things they ought not to have said and unfortunately, touching things they ought not to have touched. But those are kind of fundamental anti-discrimination, anti-harassment, anti-retaliation issues. They have been and will continue to be ever-present. But what we're starting to see more recently, and as we often do when there is a change in administrations in Washington, is a pendulum shift. For this particular shift, it is, as Dave said, focused on worker rights, protecting worker mobility and in particular, under the National Labor Relations Act and the intersection of those rights with what is governed by the FTC and the antitrust division. Those intersections are what are prompting those many interesting conversations, like Morgan you had at the JPMorgan Conference, that Dave and I are having across practice groups to help clients have the perspective of the labor and employment lawyers, the antitrust lawyers and helping clients understand and deal with their legal obligations and potential exposure. Also, the practical impacts and the business-driven and legally compliant solutions to those problems. It has been a busy six months for both Dave and me.

Morgan Ribeiro: And will likely continue to be. As you said earlier, this is just beginning, it seems, and I thank you both for that summary. I think it's really helpful to lay that foundation as we jump into more of the specifics. I now want to look at the FTC's January 2023 proposal to ban non-competes. What does this proposal say? And Mark, I'll start with you.

Mark Peters: It says a lot. Boiled down, it basically says the proposed rule in its current form would require two things. It would require employers to rescind all existing non-competes no later than the rule's compliance date, which obviously has not been determined yet. And it would require employers to provide notice to current and former workers that the workers' non-compete clauses are no longer in effect. The model rule provides some sample language that employers can use to satisfy the obligation, and the rule would be retroactive, so it would rescind all existing non-competes. That's what the rule generally does, but there is a lot to it. As Dave mentioned, for the fundamental purpose of the rule, it's to stop employers from blocking workers from working for a competing employer or starting a competing business within a certain geographic area and period of time, OK? And as Dave mentioned earlier, this proposal comes on the heels of the 2021 executive order by President Biden. Importantly, the proposed rule does not prohibit non-solicitations or confidentiality provisions unless they are effectively a non-compete, and the agency has proposed what they call or characterize as a functionality test to make this determination. The proposed rule does not apply to a non-compete entered into the sale of a business context, but it proposes what it calls a substantiality test. Right now, an individual holding an interest of 25 percent or more could be bound by non-compete. But the proposed rule says that number may change. It could be 10 percent, it could be as high as 90 percent, we just don't know. The rule says it supersedes any inconsistent state statute. So to answer your question, Morgan, the rule says a lot and is causing a lot of our healthcare clients and investors some sleepless nights.

The proposed rule does not apply to a non-compete entered into the sale of a business context, but it proposes what it calls a substantiality test. Right now, an individual holding an interest of 25 percent or more could be bound by non-compete. 

Dave Kully: Mark definitely covered it, just a couple other thoughts about it. Interestingly, it not only bans non-compete agreements, but also de facto non-competes. So it says explicitly that if you have a nondisclosure agreement, a lot of times companies might enter into a non-compete because they're worried about somebody taking their intellectual property and bringing it to another company. If it's a broad nondisclosure agreement that limits worker mobility, that's also prohibited under the act, so even if it's not expressed directly as a non-compete agreement. And it also says, another reason why companies enter into these, is that if they invest in worker training, you know, they don't want the worker to go across the street and take that benefit to their competitor. This says that requirements that workers reimburse employers for the training costs unless the payment demanded is reasonably related to what the training actually costs. It just kind of shows the breadth of what happened here. I also feel like this is worth mentioning, so what happens if this goes into effect and somebody violates it? What can the FTC do? I mean, it has the power to impose fines for violations of the rules, it has power to seek injunctive release. And interestingly, for some of our healthcare clients, if some of them are nonprofits, the rule wouldn't actually apply to them because the FTC's power under Section 5 of the FTC Act, which is where it derives this rulemaking authority, only applies to for-profit companies. So maybe, maybe we have some clients that are going to find themselves in an advantageous competitive position versus some other competitors if they are structured in that way.

Mark Peters: Dave, I think those are great points. It reminds me of the old rule, if it walks like a duck and talks like a duck, it's not a chicken, it's a duck. And so that's, I think where we come back to with that functionality test. We can't be creative and call a non-compete, a nondisclosure or a non-solicit if it's really a non-compete. This proposed rule takes square aim at those type of agreements, however identified or called.

Morgan Ribeiro: Great points. And I think, you know, as you all were talking, it's interesting because so much of the conversation in the healthcare industry since COVID, I mean, just the challenges of hiring and retaining talent, and now you put this kind of added complexity on top of that, and it certainly could really put even more stress on healthcare providers in particular. So just to wrap up on the FTC's proposed role, what are the next steps? As I understand it, they extended the initial comment period, I think that wrapped up a couple of months ago in the spring. What can we expect from here, any guesses or thoughts on when we may hear more information?

Next Steps for FTC's Proposed Rule

Dave Kully: Well, some of this is a guess, like you said, but here's what we know, right? Public comment period wrapped up on April 19. The FTC received 16,000 comments, they kind of fell into some broad themes, I can't I say that I've read all or any of them. But this is that people have characterized that a lot of them went to how the rule would just incentivize work or training, and I think that's a big deal. A lot of them went to the question about how the rule would prevent companies protecting their intellectual property, and a lot of them went to this question of whether nonprofit healthcare companies are going to have a competitive advantage over ones that are structured differently. So the rule would become effective 60 days after the FTC publishes it in the Federal Register, but there's nothing that says when the FTC needs to do that. And no indication now as to, as to when it's going to do that. And then, the employer would have 180 days after its effective date to come into compliance and rescind any existing non-competes. Now, legal challenges here are a certainty, and that's what creates so much uncertainty here, because it's impossible to figure out exactly how it's going to play out. I mean, there's some, there's a lot of, administrative law talks about, you know, major questions doctrine and recent Supreme Court jurisprudence. So predicting exactly how it's going to play out is impossible, but that's kind of what is to come.

Now, legal challenges here are a certainty, and that's what creates so much uncertainty here, because it's impossible to figure out exactly how it's going to play out. I mean, there's some, there's a lot of, administrative law talks about, you know, major questions doctrine and recent Supreme Court jurisprudence.

Morgan Ribeiro: Mark, any other comments from your end?

Mark Peters: Yeah. You know, the one thing that I saw fairly recently out of Bloomberg Law was a prediction, as David said, we're all kind of looking into a crystal ball on this one. But some prediction that we would not hear anything until late spring of 2024. I think one of the dates I've heard is April of 2024. I understand that the commission has spent over 6,000 hours looking at all of these thousands, and thousands, and thousands of comments. And it's reported that in terms of, man, our dollar expenditures, they've already spent more than half a million dollars just thinking and reviewing these. Again, gosh, we look at our crystal ball, we have elections coming up, and depending on the way those go, we may never hear from the FTC again or we may get an accelerated timetable. So I think we're looking to Washington, D.C., to see what happens, and that's going to certainly dictate where the next steps lie.

Dave Kully: Yeah, the political angle on that is interesting, Mark, and I won't belabor this, but it's not entirely clear that there is a clear political divide on this. I think that both parties in the current environment are interested in convincing workers that they have their interests at heart. So that's another wild card here. I'm interested to see how it's going to play out.

Mark Peters: I think you're right on that, Dave. I'm fascinated by this issue because where I think it oftentimes will make a difference is in the areas where our clients care the most about. You know, when you look at all of the statements by the commissioners and the like, they're talking about worker mobility. They're talking about, in large part, folks who are making $40,000 or $50,000 a year. Candidly, our clients aren't, as you well know, interested in enforcing non-competes for their lowest paid hourly workers. We're not imposing non-competes on nurses, or techs, or janitorial staff. Our clients are most interested in preserving their confidential information and their investment in their senior managers and executives. So I agree 100 percent. I think that there is widespread joint view amongst the parties to protect our most vulnerable workers, which makes total sense because non-competes against that group of employees aren't going to be enforceable anyway. They never were, and they probably never will be. It's those high-paid earners, the managers, the supervisors that I think is where we're really going to have a debate that we may see break out amongst or along party lines. We'll talk a little bit, I know we're going to talk about the National Labor Relations Act, and one of the things we'll talk about there is the fact it doesn't apply to supervisors, and managers, and executives. So it is going to be an absolute fascinating spectacle. May not be the right word, but maybe it is to watch over the next six, nine, 12 months.

I'm fascinated by this issue because where I think it oftentimes will make a difference is in the areas where our clients care the most about. You know, when you look at all of the statements by the commissioners and the like, they're talking about worker mobility. 

Morgan Ribeiro: So you were just touching on this a little bit, but for those listeners or clients who are worried that their restrictive covenants will no longer be enforceable, should they panic? If non-competes are banned, what does this do to our clients, particularly those who are acquirers of healthcare practices? I know I've mentioned that has come up in conversations with either private equity-backed platforms or other clients that do fall into this category of for-profit, and I'm just curious if you have any suggestions for them or recommendations on how to proceed while we're sort of in this "in limbo" phase.

An Update on Non-Competes

Mark Peters: No lawyer would ever tell their client to panic, so we don't recommend that, for sure. You know, look, it's such an interesting patchwork that we have to deal with and our clients have to deal with both on the federal level and on the state level. For those clients who have had the good fortune of doing business in California, they have lived for years with a landscape in which non-competes are unenforceable in the employment context. Colorado, Illinois, Washington, Arizona, Nevada, Oklahoma, those are all states in which non-compete in the employment context are unenforceable as well. So we have — and we've seen places where, including most recently Minnesota just last week, passed a total ban on non-competes. So we've seen that companies can exist and thrive in environments where non-competes are not enforceable. But right now, given the uncertainty, it is a pause, assess, see what happens, plan for the future.

For those clients who have had the good fortune of doing business in California, they have lived for years with a landscape in which non-competes are unenforceable in the employment context.

Dave Kully: Yeah. Regardless of what the source of a change here is, whether it's the FTC, whether it's state law, whether it's the NLRB, something is afoot, right? Companies need to start to understand that this is going to have to be part of their future planning. And to me, that means that they need to just think hard about what really motivated their interest in having non-competes in the first place, and what options might exist to address those concerns. I mean, if it's protecting intellectual property and one of the chief bases for these, I think is, you know, is there going to be some room under the FTC rule or state statutes that, you know, kind of narrowly protect and prevent employees from disclosing intellectual property of the company? And I also understand that one of the practices that employers adopted in California, where, as Mark said, there's been a ban on non-competes for a long time, is to have employees agree not to solicit customers for a reasonable period of time after they leave the employer. I mean, things like this, you know, like in this new world, there's going to have to be some adaptation by employers, and I guess my hope is that there's practical solutions along these lines that employers are going to be able to come to.

Morgan Ribeiro: Right. OK, so you both have mentioned — I mentioned in my intro and you've touched on this a couple of times already — but the NLRB's memo from last week. What can you share with our listeners about this announcement and what it could mean for employers?

Mark Peters: I'll take that one to start with, and Dave, jump in as well. It has been, as I mentioned, a busy and interesting 2023 for labor and employment lawyers, for sure. The NLRB has taken an increasingly aggressive — some may say anti-employers, some may say pro-employee — position over the last six months or so. I'm going to go back before the non-compete memo from last week from general counsel, to February of this year when the NLRB issued the McLaren Macomb decision. And that decision caused a lot of consternation, discussion amongst employers and employees because that decision held that non-disparagement and confidentiality provisions and settlement agreements, which we all put in and have since time immemorial, violate the National Labor Relations Act, because under the NLRB's theory, they precluded the signing employee from engaging in concerted activity under Section 7. So we had that in February. Lots of confusion. Some law firms taking very conservative approaches and saying, oh gosh, employers, clients, take out those agreements. We were not one of those law firms, but some people did that. Others took a more measured approach, which was, let's wait and see how this all plays out, right? Then at the end of May, the NLRB's General Counsel, Jennifer Rizzo, issued a memorandum articulating her view, not the law, her view that, "Employers likely violate federal labor law when they profess, maintain and enforce non-compete provisions unless those provisions are narrowly tailored to special circumstances justifying the infringement on employee rights." And everybody went, oh my, what's going to happen now? Does this signal a continuation of the executive order, and the FTC's move, and the 2016 Antitrust Enforcement Guidance? What is going on? So then we started all looking at the memorandum, and what we see in that memorandum is a lot of case law cited, none of which actually deals with non-compete agreements, but there's a lot case law in there. And the general counsel takes the view that non-competes are not unlawful per se, but that they're overbroad because they tend to chill Section 7 rights. OK, so we have that issued at the end of last month. As I mentioned earlier, the National Labor Relations Act does not cover supervisors, managers and executives, which are the primary positions that are asked to sign non-competes, and the memo itself is kind of a unique trait of what's happening here. The memo is not actual law. It is a memo that is sent out to the supervisory investigators and attorneys in the various divisions and parts of the country. For it to become law, for that legal position to become law, there has to be an NLRB decision or an administrative rule that is established and published, and then it has to actually be litigated in court to determine whether it is enforceable. As Dave said earlier, that memo, if it ever turns into an administrative rule or a ruling from the NLRB, is certain to be challenged, and there are going to be significant challenges to it. That is why we are recommending to clients, be aware of it, be thoughtful about how it may impact your business, be thinking creatively and practically about ways in which you can create legally compliant solutions to deal with the issues that have prompted your desire to have non-competes, but don't go out willy nilly and just change the way you're doing business and change all your agreements. We've got to let this play out. Dave?

Dave Kully: I'll just say thank you for deciphering something, which to me was all very complicated in your labor and employment world, and less so in my antitrust world. I mean, to me the implications were just that there's, there's a lot of momentum for some activity here, and this is just another source of it. And the client should just expect that there's going to have to be some adaptation, and then they're going to have to be flexible and see how this plays out. But just another source of where that's coming from.

Morgan Ribeiro: Great, thank you both. I think we've spent the bulk of our conversation discussing non-competes, but the other aspect of this that was highlighted in the intro are no poach agreements. And for several years the Antitrust Division, the DOJ has investigated illegal agreements between employers not to solicit or hire each other's employees. And the DOJ's argument is that employee no poaching agreements, which are also referred to as no-hire agreements or no-solicit agreements or no-switching agreements, restrict employee mobility and put downward pressure on employee wages and benefits. And the DOJ has tried several criminal cases in the healthcare industry, accusing employers of illegal no poach agreements, but has lost all of those cases it has tried, and in March, the DOJ Antitrust Division suffered another no poach loss following the acquittal of home health, healthcare workers or owners and managers in Maine, and I know that case actually received a lot of attention. The DOJ's only, quote unquote, "win" in a criminal no poach case was its extraction of a guilty plea from one defendant. Mark, I want to start with you on this. What do HR professionals and healthcare companies need to know about the DOJ and FTC published antitrust guidance describing the pitfall of no poaching agreements?

Mark Peters: So, Morgan, back in October of 2016, as the Obama Administration was, it was drawing to a close, the Antitrust Division of the Department of Justice and the FTC jointly published an 11-page document called the Antitrust Guidance for Human Resources Professionals. That sounds really boring, but I would recommend it to all of our listeners read it, not just HR professionals, it is essential reading for anybody in the healthcare industry. And basically what that guidance says is that an employer is generally free to make decisions regarding hiring or soliciting or recruiting employees and the compensation to be paid to those employees, so long as it does not make those decisions in concert with another individual or employer. When two or more employers agree amongst themselves not to hire certain employees or how much to pay certain employees, then antitrust concerns arise. So under the guidance, an individual or an employer is likely breaking the antitrust laws if he or she does one or both of the following. One, agrees with an individual at another company about employee salary or other terms of compensation, either at a specific range or a specific level. Those are so-called wage-fixing agreements. You can't do that, it's illegal. Second thing is, you can't agree with an individual at another company to refuse to solicit or hire that company's employees. Those are the no poach agreements that we've been talking about. I will say that 10 years earlier, there were a series of lawsuits filed by the service workers unions, the SEIU, against hospitals in Albany, in Chicago, and Memphis, and San Antonio and Detroit, based upon those hospitals sharing of wage information. And the theory was by conducting wage surveys, the hospitals in those particular cities were artificially depressing wages. So, and I will tell you, those cases went on for a good period of time, and the vast majority of hospital defendants in those cases settled for significant amounts in the seven figures. Those cases were relatively quiet in the 2010s. We had the guidance issued in 2016, and then literally within the last month, the SEIU has recently filed an antitrust complaint, wage-fixing complaint against the University of Pittsburgh Medical Center with the DOJ, alleging, among other theories, wage suppression. So those claims from the mid-2000s seem to be rearing their head again. But we also have, Morgan, as you mentioned in your intro, to this part of the litigation by the Department of Justice against DaVita's former CEO Kent Thiry, SCA and others. David, can you talk a little bit about those criminal complaints?

Dave Kully: Yes, absolutely. And that was, in the antitrust world, that was the big news about this guidance, because it wasn't, it was understood before the DOJ and FTC released these, that agreements between competing employers not to hire each other's workers or to fix wages was going to be a problem. But this was an announcement by the DOJ that said that, and they use the term naked, naked agreements between employers not to poach each other's could be prosecuted criminally. And like Mark said, this came out right at the end of the Obama Administration, but wasn't repudiated at all in the Trump Administration. And in fact, the first prosecution for a no poach against SCA was brought at the tail end of the Trump Administration, and they were as committed to this as the Obama enforcers were. And just a little context, so what does it mean, this naked agreement, or what does that not mean? So there's a room under this guidance for focused non-solicitation provisions that are, if they're reasonably necessary, to achieve benefits of legitimate collaborative activity. So allow me to unpack that because that was just a lot of antitrust jargon. You've got two healthcare providers. They enter into a joint venture to expand service to new patients, a non-solicitation provision that's applicable to key employees of each involved in the project probably wouldn't be a naked no poach agreement, probably something that would be reasonably necessary for the two companies to agree to work with one another. But if it was expanded to cover all employees in both companies, it might be something that could be a problem, it could be back into the suspect category. So, I mean, so one thing that the companies need to know about this guidance is that the threat of criminal prosecution is real. And like Mark said, and Morgan, you mentioned, there's been, the DOJ brought a number of prosecutions around this area. The main one was interesting because what the judge did was not even allow the issue to go to a jury. And so the DOJ has been losing all these and that. And the judge said, look, there's so many opportunities under this alleged agreement for the companies to hire each other's employees, so many loopholes or exceptions that this wasn't a real agreement not to poach each other's. But it's still a threat out there. Companies are going to see a threat, and I mean, if I'm somebody thinking about what can I take from these losses, I mean, I would tell them the prospect of winning at trial after a long and painful process with bad publicity, distractions from the business, high legal fees, shouldn’t give companies a lot of comfort in this and that they really need to think hard when they’re entering these non-solicitation provisions about whether it is something that might cross the line and present one of these kinds of issues, because I don't think that, you know, DaVita or anybody is going to feel satisfied with the ultimate result, but probably regretful about what might have led up to it.

And that was, in the antitrust world, that was the big news about this guidance, because it wasn't, it was understood before the DOJ and FTC released these, that agreements between competing employers not to hire each other's workers or to fix wages was going to be a problem. 

Morgan Ribeiro: Excellent. Like non-compete agreements, non-solicitation agreements show up regularly in the M&A environment, is that a mistake?

Dave Kully: I don't think so. I mean, look, the value part of the value of a business is the employees that are running the business, and a buyer is going to be less interested in purchasing if the seller could immediately hire away all these employees. So this is one of those circumstances where a focused agreement that was of limited duration in an M&A agreement that the buyer, that the seller wouldn't hire away the employees is probably fine. It's not a naked agreement that's going to subject anybody to any criminal liability.

Mark Peters: Yeah, I agree with Dave, 100 percent. The Department of Justice has previously noted that no poaching agreements may be permitted, may be permitted in limited, narrowly tailored circumstances that are ancillary to a legitimate business collaboration, such as for joint ventures. There are five tests that are out there. They are lawyerly and full of legalese, and if you're going to do one as a client, you need to get some help doing it. There are, as to use an old Greek myth, it is a Scylla and Charybdis. You're either going to go through those rocks, or you're going to get smashed on them. And you need to understand that there is a path through the rocks, but it is one that has to be picked through very carefully. So no, don't abandon all hope, but be thoughtful, precise, careful and creative in the way you go about addressing the issue.

Morgan Ribeiro: I love it. And I think just this conversation shows to the collaboration between antitrust counsel and labor/employment counsel when it comes to these specific issues. But I mean, these are presented on an ongoing basis, but I think we've highlighted in particular around mergers and acquisitions. And, you know, if you're a buyer and you need to have some sort of comfort knowing that if you're acquiring a physician practice, well, a huge piece of that business is the actual practitioners. You guys have made that very clear in this conversation. And obviously the, the regulations are shifting, and so getting in front of issues as opposed to I know, Dave, you were talking about just on the litigation front, and thinking about it from a criminal perspective, hopefully you never get there, but that’s the goal here, is to prevent that from happening in the first place. So any wrap up comments or closing remarks from you all?

Closing Comments

Dave Kully: Yeah. So for me, I think the final comments are that I wish there were a lot of good news or easy answers here. A lot of uncertainty remains. One near certainty is that interest in this area isn't going away. So that to me means thinking hard about the practical options to protect the interest that really motivated companies entering into these kind of agreements that are getting so much attention. And I think there probably are practical solutions that they're going to be able to come to with appropriate thought.

Mark Peters: I agree 100 percent. And I want to thank Dave, you, and Morgan, for your time and inviting me to chat today. It crystallizes for me what I've thought for a long time, which is you have to take a holistic approach to these things, and you have the resources from a variety of different practice areas, all with an emphasis on knowing the business of healthcare, because you can be the greatest labor and employment lawyer in the world, or the greatest antitrust lawyer in the world, but if you don't know the healthcare industry and you don't know the business, you don't understand the practical impacts of it. So I'm so fortunate to work with folks like Dave and Morgan and the rest of our team where we can bring that expertise and holistic approach to bear and help get our clients to where they need to be.

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