Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Notices 8267

Date: March 12, 1997 (9:00 a.m. to

5:00 p.m.).

Location: State Department, Loy

Henderson Auditorium, 23rd Street

Entrance.

The purpose of the meeting is to

discuss an ACVFA Study on the State of

the USAID/PVO Partnership.

The meeting is free and open to the

public. However, notification by noon,

March 11, 1997, through the Advisory

Committee Headquarters is required.

Persons wishing to attend the meeting

must call Lisa J. Douglas (703) 351–0243

or Susan Saragi (703) 351–0244 or FAX

(703) 351–0228/0212. Persons attending

must include their name, organization,

birthdate and social security number for

security purposes.

Dated: January 29, 1997.

Adele Liskov,

Acting Director, Office of Private and

Voluntary Cooperation, Bureau for

Humanitarian Response.

[FR Doc. 97–4380 Filed 2–21–97; 8:45 am]

BILLING CODE 6116–01–M

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. § 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 § 1 of the

Sherman Act. The conspiracy consisted

of an agreement and concert of action

between the defendants and coconspirators 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.

§ 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. § 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 llll 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 llll 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 llll 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
8268 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Notices

Dated this llll 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 llll 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 llll 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 llll 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. § 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:

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. § 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.

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. § 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 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. § 521) or other similar state

statutes. Oregon law shall be interpreted

to permit defendants to engage in
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Notices 8269

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:

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. § 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 respect is hereby

dismissed with prejudice with respect

to defendants.

Approved and Ordered this lll day of

llllll, 1997.

lllllllllllllllllllll

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.
8270 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Notices

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. § 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 Statues 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:

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. § 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.

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. § 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.

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. § 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 that 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 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.
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Notices 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. § 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 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 llll day

of llllll, 1997.

lllllllllllllllllllll

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. § 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 § 1

of the Sherman Act, 15 U.S.C. § 1. The

Complaint asks the Court to find that

the defendant fishermen have violated

§ 1 of the Sherman Act, requests that the

defendants pay civil penalties and the
8272 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Notices

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. §§ 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 nonFCMA association fishermen. Price

fixing and horizontal boycott

agreements which are not protected by

the FCMA are per se violations of § 1 of

the Sherman Act (15 U.S.C. § 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 § 1 of the

Sherman Act. The conspiracy consisted

of an agreement and concert of action

between the defendants and coconspirators 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.

§ 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. § 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.
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Notices 8273

1This comment is attached hereto as Exhibit A.

V

Remedies Available to Private Litigants

Section 4 of the Clayton Act (15

U.S.C. § 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. § 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. § 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

Antitrust Division

U.S. v. US WEST, Inc. and Continental

Cablevision, Inc.; Public Comments

and Response on Proposed Final

Judgment

Pursuant to the Antitrust Procedures

and Penalties Act, 15 U.S.C. § 16(c)–(h),

the United States publishes below the

comments received on the proposed

final judgment in U.S. v. US WEST, Inc.

and Continental Cablevision, Inc., Civil

Action No. 96–2529 TPS, filed in the

United States District Court for the

District of Columbia, together with the

United States’ response to that

comment.

Copies of the comments and response

to the comments are available for

inspection and copying in Room 215 of

the U.S. Department of Justice, Antitrust

Division, 325 7th Street, N.W.,

Washington, D.C. 20530 (telephone:

(202) 514–2481), and at the Office of the

Clerk of the United States District Court

for the District of Columbia. Copies of

these materials may be obtained upon

request and payment of a copying fee.

Constance K. Robinson,

Director of Operations.

In The United States District Court for

The District of Columbia

United States of America, Plaintiff, v. US

West, Inc. and Continental Cablevision, Inc.,

Defendants.

[No. 96–2529 TPS (Antitrust)]

Comments Relating to Proposed Final

Judgment and Response of The United

States to Comments

Pursuant to Section 2(b) of the

Antitrust Procedures and Penalties Act

(15 U.S.C. § 16(b)–(h) (‘‘APPA’’), the

United States of America hereby files

the public comments it has received

relating to the proposed Final Judgment

in this civil antitrust proceeding, and

herein responds to the public

comments. The United States has

carefully reviewed the public comments

on the proposed Final Judgment and

remains convinced that entry of the

proposed Final Judgment is in the

public interest.

I.—Background

This action was commenced on

November 5, 1996, when the United

States filed a civil antitrust complaint

under Section 15 of the Clayton Act, as

amended, 15 U.S.C. § 25, alleging that

the proposed acquisition of Continental

Cablevision, Inc. (‘‘Continental’’) by US

WEST, Inc. (‘‘US WEST’’), would violate

Section 7 of the Clayton Act, as

amended, 15 U.S.C. § 18. US WEST is

the dominant provider of local

telecommunications services, including

dedicated services, within its telephone

service area in the States of Arizona,

Colorado, Idaho, Iowa, Minnesota,

Montana, Nebraska, New Mexico, North

Dakota, Oregon, South Dakota, Utah,

Washington, and Wyoming. At the time

the acquisition was announced,

Continental owned 20% of Teleport

Communications Group, Inc. (‘‘TCG’’), a

competitive access provider (‘‘CAP’’)

providing dedicated services in various

cities across the nation, including

Denver, Omaha, Phoenix and Seattle.

The complaint alleges that US WEST’s

acquisition of Continental’s interest in

TCG would substantially lessen

competition in the sale of dedicated

services in the areas within Denver,

Omaha, Phoenix and Seattle in which

TCG provides such services.

Contemporaneously with filing its

Complaint, the United States submitted

a proposed Final Judgment, a

Competitive Impact Statement and a

Stipulation signed by the defendants

consenting to entry of the proposed

Final Judgment. The proposed Final

Judgment orders US WEST to divest the

TCG Common Stock by certain specified

dates and contains other provisions

designed to bar US WEST’s access to

highly sensitive TCG business

information, and to treat TCG as a

passive business investment. The

Competitive Impact Statement explains

the basis for the Complaint and the

reasons why entry of the proposed Final

Judgment would be in the public

interest. In the Stipulation, the

defendants and the United States

consented to entry of the proposed Final

Judgment by the Court after completion

of the procedures required by the APPA.

II.—Compliance With the APPA

The APPA requires a sixty-day period

for the submission of public comments

on the proposed Final Judgment, 15

U.S.C. 16(b). In this case, the sixty-day

comment period commenced on

November 18, 1996, and terminated on

January 16, 1997. During this period, the

United States received only one

comment relating to the proposed Final

Judgment.1 The United States herein

responds to this comment. Upon

publication of this comment and the

following response of the United States

to this comment in the Federal Register

pursuant to 15 U.S.C. 16(d) of the

APPA, the procedures required by the

APPA prior to entry of the proposed

Final Judgment will be completed, and

the Court may enter the proposed Final