U.S. and Oregon, Washington, and California v. Mulkey - Complaint
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HARDY MYERS Liaison counsel for all plaintiffs identified on attached signature pages FOR THE DISTRICT OF OREGON
DEPARTMENT OF JUSTICE I. Plaintiffs, UNITED STATES OF AMERICA and the STATES OF OREGON, WASHINGTON, AND CALIFORNIA, bring this action in their sovereign capacities, and the plaintiff states as parens patriae, against Defendants to secure injunctive relief and civil penalties for Defendants' violations of the antitrust laws of the United States and the antitrust laws of the Plaintiff States. Plaintiffs allege that Defendants and other commercial seafood fishermen (as defined herein), who directly compete with each other:
II. 1. This complaint is filed and the jurisdiction and venue of the Court are invoked under the provisions of 28 U.S.C. §§ 1331 and 1337, 15 U.S.C. § 26, and 15 U.S.C. § 4 to prevent and restrain a continuing restraint of trade by defendants in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. 2. Venue is proper in this judicial district because the Defendants are found, reside, and/or do business within the District of Oregon within the meaning of 28 U.S.C. § 1391(b) and (c) , and because many of the acts alleged herein occurred in this judicial district. 3. This Complaint also alleges violations of the following state antitrust laws and seeks both injunctive relief and civil penalties based on these claims under the following laws: California Commercial & Business Code § 16720, et seq.; Oregon Revised Statutes 646.705, et seq.; Revised Code of Washington § 19.86, et seq.. 4. This Court has pendent jurisdiction over the claims based upon State laws. 28 U.S.C. § 1367(a). All claims under federal and state law are based upon a common nucleus of facts and series of events such that the entire action commenced by this Complaint constitutes a single case which would ordinarily be tried in one judicial proceeding. Pendent jurisdiction would avoid unnecessary duplication and multiplicity of actions, and should be exercised in the interests of judicial economy, convenience, and fairness. III. 5. As used herein:
IV. 6. The United of America by and through its attorneys, acting under the direction of the Attorney General of the United States, and the States of California, Oregon, and Washington, by and through their Attorneys General, bring this civil action in their sovereign capacities, and the plaintiff states as parens patriae, to enforce federal and state antitrust laws that Defendants have violated. V. 7. Defendants are commercial seafood fishermen residing in and/or doing business within the District of Oregon. VI. UNNAMED CO-CONSPIRATORS 8. The unnamed co-conspirators are various other commercial seafood fishermen residing in and doing business in California, Oregon and Washington, who are known and unknown to Plaintiffs and not named as Defendants herein, who compete with Defendants for the sale of crab to purchasers, who participated as co-conspirators with Defendants in the violations alleged in this Complaint, and who performed acts and statements in furtherance thereof. VII. TRADE AND COMMERCE 9. Defendants and unnamed co-conspirators harvest crab from the Pacific Ocean and sell that crab to purchasers in the major fishing ports in California, Oregon, and Washington. 10. The activities of Defendants and unnamed co- conspirators in selling crab were in the regular, continuous, and substantial flow of interstate commerce, and have had a substantial effect upon interstate commerce. Each year Defendants and unnamed co-conspirators sell in excess of ten million dollars of crab in California, Oregon and Washington. 11. The activities of Defendants and unnamed co- conspirators in selling crab were in the regular, continuous, and substantial flow of trade and commerce within each of the Plaintiff States. VIII. 12. Beginning on a date uncertain, but as early as December 1, 1995 and continuing into January 1996, Defendants and unnamed co-conspirators entered into a combination and conspiracy to fix and stabilize the price of crab to be sold to purchasers. 13. This combination and conspiracy consisted of a continuing agreement among Defendants and unnamed co-conspirators to sell the crab they harvested from the Pacific Ocean to purchasers in the major fishing ports in California, Oregon and Washington at an ex-vessel price of not less than $1.25 per pound. 14. This combination and conspiracy was entered into, implemented, facilitated and monitored through a series of meetings among commercial seafood fishermen, including Defendants, during the months of November and December 1995. The meetings took place in fishing ports including, but not limited to, the ports of Ilwaco, Washington; Westport, Washington; Astoria/Warrenton, Oregon; Newport, Oregon; South Beach, Oregon; Charleston, Oregon; Brookings, Oregon; Crescent City, California; and Eureka, California. 15. The combination and conspiracy was also implemented, facilitated and monitored by a series of telephone calls among commercial seafood fishermen, including Defendants, located in California, Oregon and Washington. The telephone calls took place during November and December 1995 and January 1996. 16. Defendants and other co-conspirators attended, led, and/or participated in the port meetings and telephone calls among commercial seafood fishermen. 17. As a direct result of these meetings and telephone calls, an agreement was reached among Defendants and unnamed co- conspirators that they would negotiate for and accept no less than a minimum ex-vessel price of a $1.25 per pound for the sale of their crab to purchasers. 18. As a direct result of these meetings and telephone calls, an agreement was reached among Defendants and unnamed co- conspirators that the $1.25 per pound minimum ex-vessel price would be the minimum price for all crab sold in all major fishing ports in Oregon, California and Washington at the beginning of the 1995-1996 season. 19. As a direct result of these meetings and telephone calls, Defendants and unnamed co-conspirators implemented monitored and reinforced the coastwide $1.25 per pound ex-vessel price agreement. 20. Certain defendants and unnamed co-conspirators used and/or relied upon threats, intimidation and/or coercion against competing commercial seafood fishermen to enforce the coastwide $1.25 per pound ex-vessel price agreement. 21. At all times relevant herein, Defendants Jeff Mulkey, Jerry Hampel, Todd Whaley, Joseph Speir, Brad Pettinger, Allen Gann, Dennis Sturgell and Russell Smotherman and many of the unnamed co-conspirators were not members of a fishermens' association established and used and for the purpose of harvesting, marketing, or selling of crab. 22. The port meetings and telephone calls and contacts used to facilitate the $1.25 per pound ex-vessel price agreement involved commercial seafood fishermen who were not members of any fishermens' association established and used for the purpose of harvesting, marketing or selling crab; and, furthermore, the meetings, telephone calls and/or contacts were not arranged, held, or otherwise facilitated by such an association. 23. The aforementioned practices by Defendants constituted a price-fixing agreement in restraint of trade and in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. IX. 24. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 12-22 with the same force and effect as if set forth fully herein. 25. An agreement was reached among Defendants and unnamed co-conspirators to engage in a group boycott, known in the commercial seafood industry as a "tie-up", in which they refused to fish for crab until all commercial seafood fishermen in every major California, Oregon and Washington fishing port were offered an ex-vessel price of at least $1.25 per pound for their crab. 26. Defendants and other co-conspirators used port meetings and engaged in conversations over the telephone and in person with other commercial seafood fishermen to:
27. The port meetings and telephone calls and contacts used to facilitate the group boycott agreement, involved commercial seafood fishermen who were not members of any association established and used for the purpose of harvesting, marketing or selling crab; and, furthermore, the meetings, telephone calls and/or contacts were not arranged, held, or otherwise facilitated by such an association. 28. In order to facilitate the success of and adherence to the tie-up, certain Defendants and other unnamed co-conspirators used and/or relied upon threats, intimidation and/or coercion against competing commercial fishermen who fished for crab during December 1995 or were about to begin fishing for crab during December while the tie-up was still in effect. 29. The purpose and effect of the threats, intimidation and coercion was to minimize the number of commercial seafood fishermen fishing for crab during the tie-up and to put pressure on purchasers of seafood in the major fishing ports to agree to pay a coastwide ex-vessel price for crab of $1.25 per pound. 30. As a direct result of the efforts employed by Defendants and other unnamed co-conspirators to facilitate the success of the tie-up, commercial seafood fishermen who received ex-vessel price offers above, at or below $1.25 per pound for their crab catch, did not fish for crab and/or discontinued their fishing for crab in December of 1995. 31. As a direct result of the agreement to tie-up boats and the efforts employed by Defendants and other unnamed co- conspirators to facilitate the success of the tie-up, the vast majority of commercial seafood fishermen did not fish for crab for the majority of December 1995. 32. Acts and practices of the type alleged in paragraphs 24 through 31 have taken place in recent years in Oregon, California and Washington prior to and/or at the beginning of commercial crab seasons. 33. The aforementioned practices by Defendants constituted a group boycott agreement in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. X. 33. Plaintiff State of Oregon repeats and realleges each and every allegation contained in paragraphs 12-22 with the same force and effect as if set forth in full herein. 34. The aforementioned practices by Defendants constituted a price-fixing agreement in violation of ORS 646.725. XI. 35. Plaintiff State of Oregon repeats and realleges each and every allegation contained in paragraphs 24-32 with the same force and effect as if set forth in full herein. 36. The aforementioned practices by Defendants constituted a group boycott agreement in violation of ORS 646.725. XII. 37. Plaintiff State of California repeats and realleges each and every allegation contained in paragraphs 12-22 with the same force and effect as if set forth in full herein. 38. The aforementioned practices by Defendants constituted a price-fixing agreement in violation of Ca. Prof. & Bus. Code §§ 16720-16770. XIII. 39. Plaintiff State of California repeats and realleges each and every allegation contained in paragraphs 24-32 with the same force and effect as if set forth in full herein. 40. The aforementioned practices by Defendants constituted a group boycott agreement in violation of Ca. Prof. & Bus. Code §§ 16720-16770. XIV. 41. Plaintiff State of Washington repeats and realleges each and every allegation contained in paragraphs 12-22 with the same force and effect as if set forth in full herein. 42. The aforementioned practices by Defendants constituted a price-fixing agreement in violation of RCW § 19.86.030. XV. 43. Plaintiff State of Washington repeats and realleges each and every allegation contained in paragraphs 24-32 with the same force and effect as if set forth in full herein. 44. The aforementioned practices by Defendants constituted a group boycott agreement in violation of RCW § 19.86.030. XVI. 45. The aforementioned unlawful practices had the following effects:
XVII. 46. As a result of these illegal combinations and conspiracies alleged above:
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court:
Dated this 7th day of February, 1997
Dated this 6th day of February ,1997
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