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HARDY MYERS Attorney General
Andrew E. Aubertine, Assistant Attorney General
Oregon Department of Justice
1162 Court Street NE Salem,
Oregon 97310 (503) 378-4732
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.,
STATE OF WASHINGTON, ex rel.,
STATE OF CALIFORNIA, ex rel.,
UNITED STATES OF AMERICA,
Entered: June 16, 1997
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. § 16 and that this Consent Decree shall be a consent judgment as the term is used in 15 U.S.C. § 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. § 1 and counterpart state statutes, Oregon Revised Statutes 646.725; Revised Code of Washington § 19.86.030, and California Professional & Business Code §§ 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:
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. § 4, 15 U.S.C. § 26, and 28 U.S.C. § 1367(a). The Complaint states claims upon which relief may be granted against defendants under 15 U.S.C. § 1 and related pendent state antitrust claims under ORS 646.725, 646.760 and 646.770; RCW § 19.86.030; and Cal Prof & Bus. Code §§ 16720-16770.
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. § 521 or under the companion laws of the State of California, Cal. Corp. Code § 130.26, the State of Washington, RCW § 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.
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.
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:
- 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;
- 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
- 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. §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. § 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. § 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:
- 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
- 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. § 1311 and § 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 respects is hereby dismissed with prejudice with respect to defendants.
- APPROVED AND ORDERED this 16th day of June 1997.
United States District Court Judge
Andrew E. Aubertine
Assistant Attorney General
Oregon Department of Justice
1162 Court Street, NE Salem,
Oregon 97310 (503) 378-4732
Liaison Counsel for Plaintiffs