[Federal Register Volume 62, Number 36 (Monday, February 24, 1997)]
[Notices]
[Pages 8267-8273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4389]


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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.

----------------------------------------------------------------------
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