State of Oregon, et al. v. Jeff Mulkey, et al., No. 97-234MA District of Oregon, Filed February 11, 1997
Federal RegisterFeb 24, 1997
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DEPARTMENT OF JUSTICE
Antitrust Division
State of Oregon, et al. v. Jeff Mulkey, et al., No. 97-234MA
District of Oregon, Filed February 11, 1997
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16 (b)-(h), that a proposed Final
Judgment, Stipulation and Competitive Impact Statement have been filed
with the United States District Court for the District of Oregon in the
above-captioned case.
On February 11, 1997 the United States jointly filed with the
states of Oregon, California and Washington a complaint to prevent and
restrain the defendants from violating Section 1 of the Sherman Act.
The Complaint alleges that in late 1995 and early 1996 the defendant
commercial crab fishermen were leaders in a conspiracy with unnamed co-
conspirators to restrain competition among commercial crab fishermen in
violation of Sec. 1 of the Sherman Act. The conspiracy consisted of an
agreement and concert of action between the defendants and co-
conspirators to fix the price at which they would sell their catch to
purchasers at a minimum of $1.25 per pound and to eliminate competition
among commercial fishermen in the sale of crab. As a result of the
conspiracy, the vast majority of west coast commercial crab fishermen
did not fish for crab during December 1995.
The proposed Final Judgment enjoins the defendants from
participating in any discussion, communication or agreement, except as
members of a fishermen's marketing association formed pursuant to the
Fishermen's Collective Marketing Act (15 U.S.C. Sec. 521) or similar
state statutes, with other fishermen, regarding the price or sales
terms to be negotiated with purchasers, or refraining from fishing
while commercial fishermen are negotiating price with purchasers. The
defendants are also enjoined from any interference with any other
commercial fisherman's business through threats or other means of
intimidation.
Public comment is invited within the statutory 60-day period. Such
comments will be published in the Federal Register and filed with the
Court. Comments should be addressed to Christopher S. Crook, Acting
Chief, San Francisco Office, U.S. Department of Justice, Antitrust
Division, Box 36046, 460 Golden Gate Avenue, San Francisco, California
94102 (telephone: (415) 436-6660).
Rebecca P. Dick,
Deputy Director of Operations.
Hardy Myers,
Attorney General
Andrew E. Aubertine,
Assistant Attorney General, Oregon Department of Justice, 1162 Court
Street NE, Salem, Oregon 97310, (503) 378-4732, OSB #: 83013.
Liaison counsel for all plaintiffs identified on attached
signature pages.
In the United States District Court for the District of Oregon
State of Oregon, ex rel., Attorney General Hardy Myers, State of
Washington, ex rel., Attorney General Christine O. Gregoire, State
of California, ex rel., Attorney General Daniel Lungren, United
States of America, Plaintiffs, v. Jeff Mulkey, Jerry Hampel, Todd
Whaley, Brad Pettinger, Joseph Speir, Thomas Timmer, Richard
Sheldon, Dennis Sturgell, Allen Gann and Russell Smotherman,
Defendants. Civil Action No. 97-234MA, Stipulation--Judge Malcom
Marsh.
Stipulation
It is stipulated by and between the undersigned parties, and by
their respective attorneys, that:
(1) The parties consent that a final judgment in the form hereto
attached as Exhibit A may be filed and entered by the Court at any time
after the expiration of the sixty (60) day period for public comment
provided by the Antitrust Procedures and Penalties Act, 15 U.S.C.
Sec. 16 (b)-(h), without further notice to any party or other
proceedings, either upon the motion of any party or upon the Court's
own motion, provided that plaintiff has not withdrawn its consent as
provided herein;
(2) The parties further consent that, pending entry of the Consent
Decree, defendants shall be subject to and abide by the terms of the
injunction set forth in the Consent Decree.
(3) The plaintiffs or any of them may withdraw their consent hereto
at any time within said period of sixty (60) days by serving notice
thereof upon the other party hereto and filing said notice with the
Court;
(4) In the event one or more plaintiffs withdraw their consent
hereto, this stipulation shall be of no effect and shall not be binding
upon the withdrawing plaintiff(s) in this or any other proceeding, and
the making of this stipulation shall not in any manner prejudice any
consenting party to any subsequent proceedings.
Respectfully submitted,
Dated this 6th day of February, 1997.
Hardy Myers,
Attorney General of Oregon.
Andrew E. Aubertine #83013,
Assistant Attorney General, Oregon Department of Justice, 1162 Court
Street, NE, Salem, Oregon 97310, (503) 378-4732.
Dated this ________ day of January, 1997.
Christine O. Gregoire,
Attorney General of Washington.
Marta Lowy #14430,
Assistant Attorney General.
Brian Dew #18877,
Assistant Attorney General, Office of the Washington Attorney General,
900 4th Avenue, Suite 2000, Seattle, WA 98164, (206) 464-6433.
Dated this 14th day of January, 1997.
Daniel Lungren,
Attorney General of California.
Lindsay Bower #69577,
Assistant Attorney General, California Department of Justice, 50
Fremont Street, Suite 300, San Francisco, CA 94105-2239, (415) 356-
6377.
Dated this ________ day of December, 1996.
United States of America Department of Justice, Antitrust Division
Richard Cohen WA#3671/CA79601,
Trial Attorney, U.S. Department of Justice, Antitrust Division, 450
Golden Gate Avenue, San Francisco, CA 94102, (415) 436-6695.
Dated this ________ day of December, 1996.
Thomas Triplett #65125,
Schwabe, Williamson, et al. 1600-1800 Pacwest Center, 1211 SW 5th
Avenue, Portland, OR 97204, (503) 796-2901.
Counsel for Defendants Jeff Mulkey and Allen Gann
Dated this 30th day of December, 1996.
Michael Treman #063039 Cal.,
Attorney at Law, 1428 Chapala Street, Santa Barbara, CA 93101, (805)
962-6544.
Counsel for Defendant Thomas Timmer
[[Page 8268]]
Dated this ________ day of December, 1996.
Frank H. Hilton #66064,
Dunn, Carney, Allen, Higgins and Tongue 851 SW 6th Avenue, #1500,
Pacific First Center, Portland, OR 97204, (503) 224-6440
Counsel for Defendants Brad Pettinger, Todd Whaley, and Joseph Speir
Dated this ________ day of December, 1996.
Kathleen P. Eymann #79220,
Attorney at Law, 14303 SE Amillia Court, Portland, OR 97267, (503) 654-
6797.
Counsel for Defendants Jerry Hampel and Richard Sheldon
Dated this ________ day of December, 1996.
Harold A. Snow #68156,
McCallister & Snow, 801 Commercial, P.O. Box 508, Astoria, OR 97103,
(503) 325-2511.
Counsel for Defendant Dennis Sturgell
Dated this ________ day of December, 1996.
Russell Smotherman,
Pro Se, 310 SW Cedar, Warrenton, OR 97146.
Hardy Myers,
Attorney General
Andrew E. Aubertine,
Assistant Attorney General, Oregon Department of Justice, 1162 Court
Street NE, Salem, Oregon 97310, (503) 378-4732, OSB # 83013.
Liaison counsel for all plaintiffs identified on attached
signature pages.
In the United States District Court for the District of Oregon
State of Oregon, ex rel., Attorney General Hardy Myers, State of
Washington, ex rel., Attorney General, Christine O. Gregoire, State
of California, ex rel., Attorney General Daniel Lungren, and United
States of America, Plaintiffs, v. Jeff Mulkey, Jerry Hampel, Todd
Whaley, Brad Pettinger, Joseph Speir, Thomas Timmer, Richard
Sheldon, Dennis Sturgell, Allen Gann and Russell Smotherman,
Defendants. Civil Action No. 97-234MA, Consent Decree--Judge Malcom
Marsh.
Plaintiffs, through their respective attorneys, and defendants,
through their respective attorneys or appearing pro se, have stipulated
to entry of this Consent Decree in accordance with the terms of the
Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 and that this
Consent Decree shall be a consent judgment as the term is used in 15
U.S.C. Sec. 16(a).
Whereas: Plaintiffs, State of Oregon, State of Washington, State of
California, and the United States Department of Justice through their
respective attorneys, filed their complaint on February 11, 1997,
alleging a violation of the Sherman Act, 15 U.S.C. Sec. 1 and
counterpart state statutes, Oregon Revised Statutes 646.725; Revised
Code of Washington Sec. 19.86.030, and California Professional &
Business Code Secs. 16720-16770;
Whereas: Defendants Jeff Mulkey, Jerry Hampel, Todd Whaley, Brad
Pettinger, Joseph Speir, Thomas Timmer, Richard Sheldon, Dennis
Sturgell, Allen Gann and Russell Smotherman deny any liability with
respect to all matters which are the subject of the complaint;
Whereas: There has been no determination by the Court that a
violation of law occurred;
Whereas: The plaintiffs and defendants desire to resolve their
dispute without adjudication of any issue of law or fact; and
Whereas: The Consent Decree shall not be evidence against nor an
admission by any party with respect to any issue of law or fact;
Now, Therefore, before the taking of any testimony, and without
trial or adjudication of any issue of law or fact herein, and upon the
consent of the parties hereto, it is hereby ordered, adjudged and
decreed as follows:
I. Jurisdiction
This Court has jurisdiction over the subject matter herein and each
of the parties consenting hereto. This Court has jurisdiction over
Counts I through VIII of the Complaint pursuant to 15 U.S.C. Sec. 4, 15
U.S.C. Sec. 26, and 28 U.S.C. Sec. 1367(a). The Complaint states claims
upon which relief may be granted against defendants under 15 U.S.C.
Sec. 1 and related pendent state antitrust claims under ORS 646.725,
646.760 and 646.770; RCW Sec. 19.86.030; and Cal Prof & Bus. Code
Secs. 16720-16770.
II. Definitions
As used in this Consent Decree:
A. ``Association'' means any group of fishermen organized under the
Fisherman's Collective Marketing Act, 15 U.S.C. Sec. 521 or under the
companion laws of the State of California, Cal. Corp. Code Sec. 130.26,
the State of Washington, RCW Sec. 24.36, and/or the State or Oregon.
B. ``Commercial Seafood Fishermen'' means fishermen who fish for
and catch seafood products and sell the seafood products to purchasers.
C. ``Ex-vessel price'' means the price paid by purchasers to
fishermen for seafood products.
D. ``Person'' means any individual, sole proprietorship,
partnership, firm, corporation or any other legal or business entity.
E. ``Purchasers'' mean commercial seafood processors, commercial
seafood canneries, retail stores and/or restaurants.
F. ``Seafood'' and ``Seafood Products'' mean crab, crab meat, and
any and all other crab products, whether fresh, raw, cooked, frozen,
canned, or otherwise preserved or prepared for consumption.
III. Applicability
The provisions of this Consent Decree shall apply to plaintiffs and
defendants and to all of defendants' managers, agents, employees,
affiliates, and to those persons in active concert or participation
with them who receive actual notice of this Consent Decree by personal
service or otherwise.
IV. Injunction
A. Defendants are enjoined from forming or participating in, or
continuing to participate in any agreement, plan, scheme, arrangement
or undertaking, with any other commercial seafood fisherman, the
purpose or effect of which is:
1. To set, fix, or stabilize the ex-vessel price of seafood or any
price terms or conditions for the sale of seafood, directly or
indirectly, either (i) through coercion or intimidation, or threats of
coercion or intimidation, including, but not limited to, the use or
threat of use of physical force or reprisal against persons or property
or (ii) where antitrust immunity is not provided under federal or state
law;
2. To reduce, limit or eliminate the supply of seafood, directly or
indirectly, either (i) through coercion or intimidation, or threats of
coercion or intimidation, including, but not limited to, the use or
threat of use of physical force or reprisal against persons or property
or (ii) where antitrust immunity is not provided under federal or state
law; and
3. To impede, obstruct, or prevent any person from processing,
purchasing or selling or offering to purchase or sell seafood, directly
or indirectly, either (i) through coercion or intimidation, or threats
of coercion or intimidation, including, but not limited to, the use or
threat of use of physical force or reprisal against persons or property
or (ii) where antitrust immunity is not provided under federal or state
law.
B. Defendants are also enjoined from compelling any fisherman or
other person to become a member of, or to participate in the activities
of, any association through coercion or intimidation, or threats of
coercion or intimidation, including, but not limited to, the use or
threat of physical force or reprisal against persons or property.
C. This Consent Decree shall not be interpreted to limit or
constrict any rights to form or participate as a member in activities
of a fishermen's marketing association granted to defendants by the
Fishermen's Collective Marketing Act (15 U.S.C. Sec. 521) or other
similar state statutes. Oregon law shall be interpreted to permit
defendants to engage in
[[Page 8269]]
fishermen marketing association activities which are immune or exempt
from antitrust liability under 15 U.S.C. Sec. 521, unless and until the
Oregon legislature amends any existing law or passes any new law that
provides a different standard of immunity or exemption than what is
provided under 15 U.S.C. Sec. 521.
V. Payment to States
A. In settlement of all of plaintiffs' claims set forth in the
complaint, and pursuant to ORS 646.760 and ORS 180.095, RCW 19.86.080
and 19.86.090, and Cal Prof. & Bus. Code 16750, defendants agree to pay
to the Oregon Department of Justice the total sum of Ninety Thousand
Eight Hundred Seventy Four dollars ($90,874.00) in this matter for
reimbursement of attorneys fees and investigative costs incurred
herein.
B. The plaintiffs' apportioned shares of defendants' payments and
the use of such shares shall be determined exclusively by the
plaintiffs. Oregon's share of said payments shall be deposited into the
Oregon Department of Justice Consumer Protection and Education
Revolving Account and shall be used as provided by Oregon law.
C. Payments shall be made by certified check and made payable to
the Oregon Department of Justice in accordance with the schedules set
forth in the Settlement Agreement between the parties to this Consent
Decree.
VI. Securing Compliance With Consent Decree
For the purpose of securing compliance with this Consent Decree
defendants shall fully and completely cooperate in any future
investigation for violations of this Consent Decree or any matters
related to this Decree in accordance with the following conditions:
A. Any information provided to plaintiffs under this Consent Decree
shall be kept confidential by plaintiffs and shall not be disclosed to
third parties except as necessary to enforce the Consent Decree, as
otherwise previously agreed, and/or as permitted or required under
applicable state or federal law.
B. The defendants shall have the right to be represented by counsel
in any process permitted by this Consent Decree section, including
those described in Paragraph C.
C. Subject to any legally recognized privilege, the defendants
agree that duly authorized representatives of plaintiffs shall, on
written request and on reasonable notice to Defendant, be permitted:
1. Access during the office hours of the defendant to inspect any
copy all books, ledgers, accounts, correspondence, memoranda, and other
records and documents in the possession, custody or control of such
defendant relating to any matters contained in this Consent Decree; and
2. To interview defendant or any employee or agent of defendants
regarding any matters contained in this Consent Decree, under oath if
requested, subject to reasonable convenience of the defendant and
without restraint or interference from defendant.
D. Subject to any legally recognized privilege, the defendants
further agree that upon written request from duly authorized
representatives of the plaintiffs to a defendant, defendant shall
submit written reports, under oath if requested, with respect to any of
the matters contained in the Consent Decree.
VII. Violations of Consent Decree
A. In the event that one or more of the plaintiffs believe that one
or more of the Defendants have violated any provisions of this Consent
Decree, plaintiffs, either jointly or individually, may move the Court
for an Order for Show Cause for violation of this Consent Decree, based
upon affidavits stating factual grounds, after notice by regular mail
to the last known address of the defendants allegedly involved and to
their attorneys of record.
B. After a hearing at which defendants involved shall have a
reasonable opportunity to present evidence and legal argument, the
Court may enter an order which, among other remedies, may require each
defendant involved to pay a penalty to the moving plaintiffs of up to
fifteen thousand dollars ($15,000) per violation and any other sanction
the Court deems appropriate.
C. Upon a defendant's failure to pay the penalty provided in this
section, or for any other violation of this Consent Decree, the moving
plaintiffs, either jointly or individually, may exercise all remedies
available at law or in equity, including plaintiff United States
seeking an order of criminal contempt.
VIII. Enforcement of Consent Decree
A. Plaintiffs shall have concurrent authority to enforce any
provision of this Consent Decree against any party to this Consent
Decree.
B. The authority to enforce this Consent Decree shall be in
addition to any other enforcement action authority plaintiffs may have
in prosecuting new violations of state or federal antitrust laws.
C. Nothing contained in this Consent Decree shall limit the rights
of the United States from utilizing other investigative alternatives,
such as the Civil Investigative Demand process provided by 15 U.S.C.
Sec. 1311 and Sec. 1314, or a federal grand jury. Nothing contained in
this Consent Decree shall limit the rights of the States of Oregon,
California and Washington from utilizing other investigative
alternatives, such as their civil investigative authority and, if
applicable, their grand jury authority.
IX. Retention of Jurisdiction
Jurisdiction shall be retained by the United States District Court
for the District of Oregon to enable any party to apply for further
orders and directions as are necessary and appropriate for enforcement,
compliance, construction, or modification of this Consent Decree.
X. Scope of Consent Decree
This Consent Decree and the Settlement Agreement represent the
complete agreement of the parties. Nothing in this Consent Decree or
the Settlement Agreement shall give standing to any person not a party
to this Consent Decree to seek any relief related to it.
XI. Length of Consent Decree
This Consent Decree shall be in full force and effect for a period
of five (5) years following entry of this decree.
XII. Public Interest
Entry of this Consent Decree is in the public interest. Except as
provided in this Consent Decree for future action taken pursuant to
Section IX, this proceeding in all other respect is hereby dismissed
with prejudice with respect to defendants.
Approved and Ordered this ______ day of ____________, 1997.
----------------------------------------------------------------------
United States District Court Judge
Presented by:
Andrew E. Aubertine,
Assistant Attorney General, Oregon Department of Justice, 1162 Court
Street, NE, Salem, Oregon 97310, (503) 378-4732, OSB# 83013.
Liaison Counsel for Plaintiffs
Hardy Myers
Attorney General
Andrew E. Aubertine,
Assistant Attorney General, Oregon Department of Justice, 1162 Court
Street NE, Salem, Oregon 97310, (503) 378-4732, OSB #83013.
Liaison counsel for all plaintiffs identified on attached
signature pages.
[[Page 8270]]
In the United States District Court for the District of Oregon
State of Oregon, ex rel., Attorney General Hardy Myers, State of
Washington, ex rel., Attorney General Christine O. Gregoire, State
of California, ex rel., Attorney General Daniel Lungren, and United
States of America, Plaintiffs, v. Jeff Mulkey, Jerry Hampel, Todd
Whaley, Brad Pettinger, Joseph Speir, Thomas Timmer, Richard
Sheldon, Dennis Sturgell, Allen Gann and Russell Smotherman,
Defendants. Civil Action, No. 97-234MA, Consent Decree--Judge Malcom
Marsh.
Plaintiffs, through their respective attorneys, and defendants,
through their respective attorneys or appearing pro se, have stipulated
to entry of this Consent Decree in accordance with the terms of the
Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 and that this
Consent decree shall be a consent judgment as the term is used in 15
U.S.C. Sec. 16(a).
Whereas: Plaintiffs, State of Oregon, State of Washington, State of
California, and the United States Department of Justice through their
respective attorneys, filed their complaint on February 11, 1997,
alleging a violation of the Sherman Act, 15 U.S.C. Sec. 1 and
counterpart state statutes, Oregon Revised Statues 646.725; Revised
Code of Washington Sec. 19.86.030, and California Professional &
Business Code Secs. 16720-16770;
Whereas: Defendants Jeff Mulkey, Jerry Hampel, Todd Whaley, Brad
Pettinger, Joseph Speir, Thomas Timmer, Richard Sheldon, Dennis
Sturgell, Allen Gann and Russell Smotherman deny any liability with
respect to all matters which are the subject of the complaint;
Whereas: There has been no determination by the Court that a
violation of law occurred;
Whereas: The plaintiffs and defendants desire to resolve their
dispute without adjudication of any issue of law or fact; and
Whereas: The Consent Decree shall not be evidence against nor an
admission by any party with respect to any issue of law or fact;
Now, therefore, before the taking of any testimony, and without
trial or adjudication of any issue of law or fact herein, and upon the
consent of the parties hereto, it is hereby ordered, adjudged and
decreed as follows:
I. Jurisdiction
This Court has jurisdiction over the subject matter herein and each
of the parties consenting hereto. This Court has jurisdiction over
Counts I through VIII of the Complain pursuant to 15 U.S.C. Sec. 4, 15
U.S.C. Sec. 26, and 28 U.S.C. Sec. 1367(a). The Complaint states claims
upon which relief may be granted against defendants under 15 U.S.C.
Sec. 1 and related pendent state antitrust claims under ORS 646.725,
646.760 and 646.770; RCW Sec. 19.86.030; and Cal Prof & Bus. Code
Secs. 16720-16770.
II. Definitions
As used in this Consent Decree:
A. ``Association'' means any group of fishermen organized under the
Fisherman's Collective Marketing Act, 15 U.S.C. Sec. 521 or under the
companion laws of the State of California, Cal. Corp. Code Sec. 130.26,
the State of Washington, RCW Sec. 24.36, and/or the State of Oregon.
B. ``Commercial Seafood Fishermen'' means fishermen who fish for
and catch seafood products and sell the seafood products to purchasers.
C. ``Ex-vessel price'' means the price paid by purchasers to
fishermen for seafood products.
D. ``Person'' means any individual, sole proprietorship,
partnership, firm, corporation or any other legal or business entity.
E. ``Purchasers'' mean commercial seafood processors, commercial
seafood canneries, retail stores and/or restaurants.
F. ``Seafood'' and ``Seafood Products'' mean crab, crab meat, and
any and all other crab products, whether fresh, raw, cooked, frozen,
canned, or otherwise preserved or prepared for consumption.
III. Applicability
The provisions of this Consent Decree shall apply to plaintiffs and
defendants and to all of defendants' managers, agents, employees,
affiliates, and to those persons in active concert or participation
with them who receive actual notice of this Consent Decree by personal
service or otherwise.
IV. Injunction
A. Defendants are enjoined from forming or participating in, or
continuing to participating in any agreement, plan, scheme, arrangement
or undertaking, with any other commercial seafood fisherman, the
purpose or effect of which is:
1. To set, fix or stabilize the ex-vessel price of seafood or any
price terms or conditions for the sale of seafood, directly or
indirectly, either (i) through coercion or intimidation, or threats of
coercion or intimidation, including, but not limited to, the use or
threat of use of physical force or reprisal against persons or property
or (ii) where antitrust immunity is not provided under federal or state
law;
2. To reduce, limit or eliminate the supply of seafood, directly or
indirectly, either (i) through coercion or intimidation, or threats of
coercion or intimidation, including, but not limited to, the use or
threat of use of physical force or reprisal against persons or property
or (ii) where antitrust immunity is not provided under federal or state
law; and
3. To impede, obstruct, or prevent any person from processing,
purchasing or selling or offering to purchase or sell seafood, directly
or indirectly, either (i) through coercion or intimidation, or threats
of coercion or intimidation, including, but not limited to, the use of
threat of use of physical force or reprisal against persons or property
or (ii) where antitrust immunity is not provided under federal or state
law.
B. Defendants are also enjoined from compelling any fisherman or
other person to become a member of, or to participate in the activities
of, any association through coercion or intimidation, or threats of
coercion or intimidation, including, but not limited to, the use of
threat of physical force or reprisal against persons or property.
C. This Consent Decree shall not be interpreted to limit or
constrict any rights to form or participate as a member in activities
of a fishermen's marketing association granted to defendants by the
Fishermen's Collective Marketing Act (15 U.S.C. Sec. 521) or other
similar state statutes. Oregon law shall be interpreted to permit
defendants to engage in fishermen marketing association activities
which are immune or exempt from antitrust liability under 15 U.S.C.
Sec. 521, unless and until the Oregon legislature amends any existing
law or passes any new law that provides a different standard of
immunity or exemption that what is provided under 15 U.S.C. Sec. 521.
V. Payment to States
A. In settlement of all of plaintiffs' claims set forth in the
complaint, and pursuant to ORS 646.760 and ORS 180.095, RCW 19.86.080
and 19.86.090, and Cal Prof. & Bus. Code 16750, defendants agree to pay
to the Oregon Department of Justice the total sum of Ninety Thousand
Eight Hundred Seventy Four dollars ($90,874.00) in this matter for
reimbursement of attorneys fees and investigative costs incurred
herein.
B. The plaintiffs' apportioned shares of defendants' payments and
the use of such shares be determined exclusively by the plaintiffs.
Oregon's share of said payments shall be deposited into the Oregon
Department of Justice Consumer Protection and Education Revolving
Account and shall be used as provided by Oregon law.
[[Page 8271]]
C. Payments shall be made by certified check and made payable to
the Oregon Department of Justice in accordance with the schedules set
forth in the Settlement Agreement between the parties to this Consent
Decree.
VI. Securing Compliance With Consent Decree
For the purpose of securing compliance with this Consent Decree
defendants shall fully and completely cooperate in any future
investigation for violations of this Consent Decree or any matters
related to this Decree in accordance with the following conditions.
A. Any information provided to plaintiffs under this Consent Decree
shall be kept confidential by plaintiffs and shall not be disclosed to
third parties except as necessary to enforce the Consent Decree, as
otherwise previously agreed, and/or as permitted or required under
applicable state or federal law.
B. The defendants shall have the right to be represented by counsel
in any process permitted by this Consent Decree section, including
those described in Paragraph C.
C. Subject to any legally recognized privilege, the defendants
agree that duly authorized representatives of plaintiffs shall, on
written request and on reasonable notice to Defendant, be permitted:
1. Access during the office hours of the defendant to inspect and
copy all books, ledgers, accounts, correspondence, memoranda, and other
records and documents in the possession, custody or control of such
defendant relating to any matters contained in this Consent Decree; and
2. To interview defendant or any employee or agent of defendants
regarding any matters contained in this Consent Decree, under oath if
requested, subject to reasonable convenience of the defendant and
without restraint or interference from defendant.
D. Subject to any legally recognized privilege, the defendants
further agree that upon written request from duly authorized
representatives of the plaintiffs to a defendant, defendant shall
submit written reports, under oath if requested, with respect to any of
the matters contained in the Consent Decree.
VII. Violations of Consent Decree
A. In the event that one or more of the plaintiffs believe that one
or more of the Defendants have violated any provisions of this Consent
Decree, plaintiffs, either jointly or individually, may move the Court
for an Order for Show Cause for violation of this Consent Decree, based
upon affidavits starting factual grounds, after notice by regular mail
to the last known address of the defendants allegedly involved and to
their attorneys of record.
B. After a hearing at which defendants involved shall have a
reasonable opportunity to present evidence and legal argument, the
Court may enter an order which, among other remedies, may require each
defendant involved to pay a penalty to the moving plaintiffs of up to
fifteen thousand dollars ($15,000) per violation and any other sanction
the Court deems appropriate.
C. Upon a defendant's failure to pay the penalty provided in this
section, or for any other violation of this Consent Decree, the moving
plaintiffs, either jointly or individually, may exercise all remedies
available at law or in equity, including plaintiff United States
seeking an order of criminal contempt.
VIII. Enforcement of Consent Decree
A. Plaintiffs shall have concurrent authority to enforce any
provision of this Consent Decree against any party to this Consent
Decree.
B. The authority to enforce this Consent Decree shall be in
addition to any other enforcement action authority plaintiffs may have
in prosecuting new violations of state or federal antitrust laws.
C. Nothing contained in this Consent Decree shall limit the rights
of the United States from utilizing other investigative alternatives,
such as the Civil Investigative Demand process provided by 15 U.S.C.
Sec. 1311 and Sec. 1314, or a federal grand jury. Nothing contained in
this Consent Decree shall limit the rights of the States of Oregon,
California and Washington from utilizing other investigative
alternatives, such as their civil investigation authority and, if
applicable, their grand jury authority.
IX. Retention of Jurisdiction
Jurisdiction shall be retained by the United States District Court
for the District of Oregon to enable any party to apply for further
orders and directions as are necessary and appropriate for enforcement,
compliance, construction, or modification of this Consent Decree.
X. Scope of Consent Decree
This Consent Decree and the Settlement Agreement represent the
complete agreement of the parties. Nothing in this Consent Decree or
the Settlement Agreement shall give standing to any person not a party
to this Consent Decree to seek any relief related to it.
XI. Length of Consent Decree
This Consent Decree shall be in full force and effect for a period
of five (5) years following entry of this decree.
XII. Public Interest
Entry of this Consent Decree is in the public interest. Except as
provided in this Consent Decree for future action taken pursuant to
Section IX, this proceeding in all other respects is hereby dismissed
with prejudice with respect to defendants.
Approved and Ordered this ________ day of ____________, 1997.
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United States District Court Judge
Presented by:
Andrew E. Aubertine,
Assistant Attorney General, Oregon Department of Justice, 1162 Court
Street, NE, Salem, Oregon 97310, (503) 378-4732, OSB# 83013.
Liaison Counsel for Plaintiffs
Richard B. Cohn,
Antitrust Division, U.S. Department of Justice, 450 Golden Gate
Avenue, Box 36046, Room 10-0101, San Francisco, California 94102,
Telephone: (415) 436-6660, Cal. Bar #: 79601.
Attorney for the United States
In the United States District Court for the District of Oregon
State of Oregon, ex rel., Attorney General Hardy Myers, State of
Washington, ex rel., Attorney General Christine O. Gregorie, State
of California, ex rel., Attorney General Daniel Lungren, United
States of America, Plaintiffs, v. Jeff Mulkey, Jerry Hampel, Todd
Whaley, Brad Pettinger, Joseph Speir, Thomas Timmer, Richard
Sheldon, Dennis Sturgell, Allan Gann and Russell Smotherman,
Defendants. Civil Action No. 97-234MA, Competitive Impact
Statement--Antitrust.
Filed: February 11, 1997, Judge Malcom Marsh
Competitive Impact Statement
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
Sec. 16(b)-(h), the United States files this Competitive Impact
Statement relating to the proposed Consent Decree submitted for entry
in this civil antitrust proceeding.
I
Nature and Purpose of the Proceeding
The United States and the states of Oregon, California, and
Washington have filed a civil antitrust suit alleging that ten (10)
commercial crab fisherman and various unnamed co-conspirators conspired
to restrain competition among commercial fishermen in violation of
Sec. 1 of the Sherman Act, 15 U.S.C. Sec. 1. The Complaint asks the
Court to find that the defendant fishermen have violated Sec. 1 of the
Sherman Act, requests that the defendants pay civil penalties and the
[[Page 8272]]
costs of the investigation to the plaintiff states and further requests
the Court to enjoin the continuance of the alleged unlawful acts.
Entry of the proposed Consent Decree will terminate the action,
except that the Court will retain jurisdiction over the matter for
further proceedings which may be required to interpret, enforce or
modify the Consent Decree or to punish violations of any of its
provisions.
II
Practices Giving Rise to the Alleged Violation
The defendants are commercial crab fishermen who fish in waters off
the coasts of California, Oregon, and Washington.
The Oregon defendant fisherman are not members of a fishermen's
marketing association. They are thus not entitled to the exemption
given to fishermen's marketing associations by the Fishermen's
Collective Marketing Act of 1934 (``FCMA''), 15 U.S.C. Secs. 521-522.
The exemptions provided by the FCMA do not apply to fishermen who do
not belong to fish marketing associations formed pursuant to the FCMA
or to FCMA association members who enter into marketing agreements with
non-FCMA association fishermen. Price fixing and horizontal boycott
agreements which are not protected by the FCMA are per se violations of
Sec. 1 of the Sherman Act (15 U.S.C. Sec. 1) and are subject to
criminal prosecution by the United States Department of Justice. The
United States chose not to proceed criminally in this matter because
most of the defendants mistakenly believed their conduct was protected
by the FCMA from prosecution under the Sherman Act.
The United States and the states of Oregon, California, and
Washington contend and were prepared to show at trial, that beginning
in or about December 1995 and continuing up until at least January
1996, the defendants were leaders in a conspiracy with unnamed co-
conspirators to restrain competition among commercial crab fishermen in
violation of Sec. 1 of the Sherman Act. The conspiracy consisted of an
agreement and concert of action between the defendants and co-
conspirators to fix the ``ex vessel'' price (price at which fishermen
sell their catch to purchasers such as processors) at a minimum of
$1.25 per pound and to eliminate competition among commercial fishermen
in the sale of crab. In furtherance of this conspiracy the defendants
and co-conspirators: (1) Agreed to sell crab at a minimum ``ex vessel''
price of $1.25 per pound; (2) agreed not to fish for crab until all
purchasers operating in the major West Coast crab fishing ports had
agreed to pay a minimum ``ex vessel'' price of $1.25 per pound; and (3)
compelled, through threats of physical and economic harm, harassment
and other forms of intimidation, other fishermen not to fish for crabs
until all the purchasers agreed to pay a minimum $1.25 ``ex-vessel''
price.
This conspiracy fixed the ``ex vessel'' price of crab sold by
commercial fishermen, eliminated price and other forms of competition
among commercial fishermen in the sale of crab and deprived purchasers
of commercial crab of the benefits of free and open competition in the
sale of crab.
III
Explanation of the Proposed Consent Decree
The United States and the defendants have stipulated that the Court
may enter the proposed Consent Decree after compliance with the
Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 (b)-(h). The
proposed Consent Decree provides that its entry does not constitute any
evidence against or admission by either party with respect to any issue
of fact or law.
Under the provisions of Section 2(e) of the Antitrust Procedures
and Penalties Act, 15 U.S.C. Sec. 16(e), the proposed Consent Decree
may not be entered unless the Court finds that entry is in the public
interest. Section XII of the proposed Consent Decree sets forth such a
finding.
The proposed Consent Decree is intended to ensure that the
defendants discontinue all practices which restrain competition among
commercial fishermen.
A. Prohibitions and Obligations
Under Section IV of the proposed Consent Decree, the defendants are
enjoined from participating in any discussion, communication or
agreement, except as members of FCMA fishermen's marketing associations
interacting with other members of such associations, regarding: (1) The
``ex vessel'' prices to be negotiated between purchasers and the
defendants; (2) any terms or conditions to be offered for the sale of
seafood; or (3) refraining from fishing while commercial fishermen are
negotiating with purchasers on an ``ex vessel'' price. Section IV also
enjoins the defendants from requesting or coercing other fishermen to
refrain from fishing or to sell fish to processors at specified prices
or under specified terms or conditions. The defendants are also
enjoined from any interference with any other commercial fishermen's
business through threats or other means of intimidation. The Consent
Decree further enjoins the defendants from impeding, obstructing, or
preventing any person from processing, purchasing, or selling or
offering to purchase or sell crab or any other seafood. Finally, the
Consent Decree restrains the defendants from compelling any fishermen
or other person to become a member, or to participate in the
activities, of any association.
Section V. of the Consent Decree requires the defendants to pay the
states of Oregon, California and Washington pursuant to ORS 646.760 and
ORS 180.095, RCW 19.86.080 and 19.86.090, and Cal. Prof. & Bus. Code
16760 $90,874.00 for civil penalties and reimbursement of attorney fees
and investigative costs.
B. Scope of the Proposed Consent Decree
Section XI. of the proposed Consent Decree provides that the
Consent Decree shall remain in effect for five years.
Section III. of the proposed Consent Decree provides that the
Consent Decree shall apply to the defendants and all of their managers,
agents, employees, affiliates, successors and assigns, and to those
persons in active concert or participation with any of them who shall
have received actual notice of the Consent Decree.
C. Effect of the Proposed Consent Decree on Competition
The relief set out in the proposed Consent Decree is designed to
prevent recurrence of the activities alleged in the Complaint. The
proposed Consent Decree's provisions are intended to ensure that
commercial crab fishermen act independently, except as members of a
FCMA fish marketing association interacting with other association
members, in any marketing or pricing decisions and that they not
interfere with the marketing and price decisions of other commercial
crab fishermen.
IV
Alternatives to the Proposed Consent Decree
The alternative to the proposed Consent Decree would be a full
trial of the case. In the view of the Department of Justice and the
states of Oregon, California and Washington, such a trial would involve
substantial cost to the plaintiffs and is not warranted since the
proposed Consent Decree provides almost all the relief sought in the
Complaint.
[[Page 8273]]
V
Remedies Available to Private Litigants
Section 4 of the Clayton Act (15 U.S.C. Sec. 15) provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages suffered, as well as costs and reasonable attorney fees.
Under the provisions of Section 5(a) (15 U.S.C. Sec. 16(a)), this
Consent Decree has no prima facie effect in the lawsuits which may be
brought against the defendants.
VI
Procedures Available for Modification of the Proposed Consent Decree
As provided by the Antitrust Procedures and Penalties Act, any
person believing that the proposed Consent Decree should be modified
may submit written comments to Christopher S. Crook, Acting Chief, San
Francisco Office, U.S. Department of Justice, Antitrust Division, 450
Golden Gate Avenue, Box 36046, Room 10-0101, San Francisco, California
94012, within the 60-day period provided by the Act. The comments and
the Government's responses to them will be filed with the Court and
published in the Federal Register. All comments will be given due
consideration by the Department of Justice, which remains free to
withdraw its consent to the proposed Consent Decree at any time period
to its entry if it should determine that some modification of the
Consent Decree is necessary to the public interest. The proposed
Consent Decree itself provides that the Court will retain jurisdiction
over this action, and that the parties may apply to the Court for such
orders as may be necessary or appropriate for the modification or
enforcement of the Consent Decree.
VII
Determinative Documents
No materials and documents of the type described in Section 2(b) of
the Antitrust Procedures and Penalties Act (15 U.S.C. Sec. 16(b)) were
considered in formulating this proposed Consent Decree. Consequently,
none are filed herewith.
Dated: February 6, 1997.
Christopher S. Crook,
Richard B. Cohen,
Attorneys, Antitrust Division, U.S. Department of Justice.
[FR Doc. 97-4389 Filed 2-21-97; 8:45 am]
BILLING CODE 4410-11-M
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.