IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JEFF BOARDMAN, et al., 

Plaintiffs, 

v. 

PACIFIC SEAFOOD GROUP, 

et al., 

Defendants. 

PANNER, District Judge: 

MEDFORD DIVISION 

No. 1:15-108-CL 

ORDER 

Plaintiffs, who are commercial fishermen, bring this 

antitrust action for injunctive relief against the Pacific Seafood 

Group and other businesses owned in full or part by defendant 

Frank Dulcich. Plaintiffs now move for a preliminary injunction 

prohibiting the Pacific Seafood Group defendants (Pacific Seafood) 

\ 

from acquiring a controlling ownership interest in another seafood 

processor, Ocean Gold Seafoods and its affiliates (collectivel~ 

1 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 1 of 9
Ocean Gold). I grant Plaintiffs' motion for a preliminary 

injunction. 

At the hearing, I said that this action would be reassigned 

to another judge in this district for trial. But because 

Plaintiffs seek equitable relief only, I will continue to preside 

over this action, including a court trial if necessary. I set a 

court trial in Medford to start July 21, 2015, at 9:00a.m., with 

the first pretrial conference June 30, 2015, at 10:00 a.m. I will 

issue a trial management order on required documents and 

procedures. 

BACKGROUND 

This action is related to the Whaley antitrust action that 

settled in 2012. Whaley v. Pacific Seafood Group, No. 1:10-cv3057~PA (D. Or.), ECF No. 426-1 (settlement agreement). The 

Whaley settlement agreement allows Pacific Seafood to continue 

working with Ocean Gold under a ten-year joint marketing 

agreement, but also requires that Pacific Seafood not renew the 

cooperation agreement when it expires in February. 2016. 1 

In fall 2010, during the Whaley litigation, Pacific Seafood 

was in negotiations to acquire Ocean Gold. When the Whaley 

plaintiffs moved for a temporary restraining order to halt the 

proposed acquisition, Pacific Seafood mooted the plaintiffs' 

1

The Whaley settlement agreement allows Pacific Seafood to 

propose a new agreement with Ocean Gold, subject to objections 

from the plaintiffs' counsel and the Oregon Department of 

Justice. If there are objections, the settlement judge would 

then determine whether to approve the proposed new agreement. 

Whaley, ECF No. 426-1 ~ 3(a). 

2 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 2 of 9
concerns by cancelling the transaction. 

During 2014, Pacific Seafood was again in negotiations to 

acquire Ocean Gold. In December 2014, Pacific Seafood notified 

Plaintiffs and the Oregon Attorney General (AG) about its proposed 

acquisition of Ocean Gold. 

In January 2015, Plaintiffs filed this action. On January 

23, 2015, I granted Plaintiffs' motion for a temporary restraining 

order preventing Pacific Seafood from acquiring control of Ocean 

Gold. ECF No. 11. That order remains in effect by stipulation. 

In seeking injunctive relief, Plaintiffs allege that if 

Pacific Seafood does acquire control of Ocean Gold, the combined 

seafood processor would exercise illegal monopoly power over the 

buyers' market for trawl-caught groundfish, Pacific whiting, and 

Pacific coldwater shrimp in markets along the West Coast from Fort 

Bragg, California to the Canadian border. Plaintiffs allege the 

combined market shares for Pacific Seafood and Ocean Gold would be 

about 70% for Pacific shrimp, 65% for whiting, and 50% for trawlcaught groundfish. Plaintiffs also allege that a merger would 

allow Pacific Seafood control over Ocean Gold's large, modern 

facilities for freezing and storage, and for producing fishmeal. 

LEGAL STANDARDS FOR PRELIMINARY INJUNCTIONS 

A party seeking a preliminary injunction "must establish that 

he is likely to succeed on the merits, that he is likely to suffer 

irreparable harm in the absence of preliminary relief, that the 

balance of equities tips in his favor, and that an injunction is 

in the public interest." Winter v. Natural Resources Defense 

3 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 3 of 9
Council, Inc., 555 U.S. 7, 20 (2008). The plaintiff "must 

establish that irreparable harm is likely, not just possible." 

Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 

(9th Cir. 2011). Alternately, the court may apply the sliding 

scale test, under which the party seeking an injunction must show 

greater irreparable harm as the probability of success on the 

merits decreases. Id. at 1134-35. 

DISCUSSION 

I. Likelihood of Success on the Merits 

A. This Dispute Is Not Moot 

The parties dispute whether Plaintiffs' claim for injunctive 

relief has been mooted by Defendants' cancellation of the planned 

acquisition of Ocean Gold. To support their mootness argument, 

Defendants submit the following stipulation: 

The Oregon Attorney General has commenced an 

investigation and has requested that Pacific Seafood and 

its entities not close any purchase transaction with 

respect to Ocean Good or Ocean Protein while the 

investigation is pending. 

Upon acceptance by the Attorney General or this 

Court, defendants stipulate that neither they, no any 

other Pacific-entity, will enter into any purchase 

transaction with respect to Ocean Gold Seafoods, Inc., 

O~ean Protein, LLC, or Hoquiam Riverview Properties, LLC 

while the Attorney General's investigation is pending. 

Defendants may terminate this stipulation upon 60-days' 

prior notice to the Oregon Attorney General and the 

Court. 

Defs. Stipulation at 2-3, ECF No. 40. 

1. Legal Standards 

An action is moot if "the dispute between the parties no 

longer exists, or the parties lack a legally recognizable interest 

in the outcome of the litigation." Am. Humanist Ass'n v. United 

4 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 4 of 9
States, No. 3:14-cv-565-HA, 2014 WL 5500495, at *4 (D. Or. 2014) 

(citing Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086-87 

(9th Cir. 2011)). Generally, "'a defendant's voluntary cessation 

of a challenged practice does not deprive a federal court of its 

power to determine the legality of the practice.'" Id. (quoting 

Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., 528 U.S. 167, 

180 (2000) (further citation omitted)). "Accordingly,_ the 

voluntary cessation of a challenged conduct moots a claim only if 

'subsequent events [make] it absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.'" 

Id. (quoting Friends of the Earth, 528 U.S. at 180) (further 

citation omitted) ) . The party asserting mootness "has a heavy 

burden to meet." Id. 

2. Discussion 

Pacific Seafood has not shown that this action is moot. I 

agree with the AG's amicus brief that Pacific Seafood's 

stipulation "does not negate the parties' conduct that occurred 

since the con6lusion of the prior litigation. More importantly, 

the economic environment and the parties' motivations to merge or 

integrate remain unchanged." Amicus Br. at 9. The AG states that 

Ocean Gold's current owners appeared motivated to sell and were 

not optimistic about finding another viable purchaser. 

(Defendants own about a one-third interest in Ocean Gold.) 

A preliminary injunction will preserve the status quo while 

this court determines whether the proposed acquisition of Ocean 

Gold would be anticompetitive. 

5 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 5 of 9
B. Plaintiffs Adequately Allege Antitrust Injury 

Defendants contend Plaintiffs have not alleged an antitrust 

injury because Plaintiffs do not sell fish or shrimp to Pacific 

Seafood or Ocean Gold. Defendants argue that not only do 

Plaintiffs not sell to Pacific Seafood or Ocean Gold, Plaintiffs 

are not even operate in the same seafood markets. 

A similar issue arose during the Whaley litigation. There, 

in certifying a class, I certified a class even though none of the 

plaintiffs were selling to the defendants. In the order, I noted: 

Although plaintiffs do not currently sell to defendants, 

plaintiffs contend they are suffering antitrust damages 

because other seafood processors follow defendants' lead 

on prices. Plaintiffs thus rely on the so-called 

umbrella theory of antitrust damages. "[T]he plaintiff 

pursuing this theory contends that defendants' 

successful price-fixing conspiracy created a 'price 

umbrella' under which non-conspiring competitors of 

defendants raise their prices to a level at or near the 

fixed price set by the conspiring defendants." Sun 

Microsystems Inc. v. Hynix Semiconductor Inc., 608 F. 

Supp. 2d 1166, 1205 (N.D. Cal. 2009) (citing In re 

Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1341 

(9th Cir. 1982)). 

Whaley, ECF No. 392, at 8-9. Similarly, for purposes of ruling on 

this motion, I assume the umbrella theory of antitrust injury is 

viable. As I noted in Whaley, Professor Areeda's treatise accepts 

the umbrella theory despite difficulties in proving causation and 

damages. See IIA Phillip E. Areeda, Herbert Hovenkamp, Roger D. 

Blair & Christine Piette Durrance, Antitrust Law~ 347, at 198, 

200 (3d ed. 2007). 

C. Reduced Competition 

Plaintiffs have shown a reasonable probability that Pacific 

Seafood's proposed acquisition of Ocean Gold would substantially 

6 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 6 of 9
lessen competition in the buyers' markets for whiting and shrimp. 

A viable claim under section 7 of the Clayton Act, 15 U.S.C. § 18, 

"'does not require proof that a merger or other acquisition has 

caused higher prices in the affected market. All that is 

necessary is that the merger create an appreciable danger of such 

consequences in the future.'" Saint Alphonsus Med. Ctr.-Nampa 

Inc. v. St. Luke's Health Sys., Ltd., F.3d , 2015 WL 

525540, at *7 (9th Cir. 2015) (quoting Hosp. Corp. of Am. v. FTC, 

807 F.2d 1381, 1389 (7th Cir. 1986)). Under this standa~d, 

Plaintiffs have sufficiently shown a likelihood of success on the 

merits. 

II. Irreparable Har.m 

Plaintiffs have adequately shown irreparable harm. The 

"lessening of competition . is precisely the kind of 

irreparable injury that injunctive relief under section 16 of the 

Clayton Act was intended to prevent." California v. Am. Stores 

Co., 872 F.2d 837, 844 (9th Cir. 1989), rev'd on other grounds, 

495 u.s. 271 (1990). 

III. Balance of Hardships 

The balance of hardships favors Plaintiffs. If Plaintiffs' 

allegations are correct, Pacific Seafood's acquisition of Ocean 

Gold would create a buyers' monopoly (a monopsony) in three 

markets for seafood on the West Coast. On the other hand, 

Defendants have stipulated that they will not proceed with the 

acquisition of Ocean Gold, so a preliminary injunction does not 

alter their position. 

7 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 7 of 9
IV. Public Interest 

The public interest fa~ors Plaintiffs. The AG states that 

"the proposed m~rger is presumptively unlawful given the degree of 

market concentration." Amicus Br. at 8. Maintaining competition 

is in the public interest. 

I conclude that Plaintiffs are entitled to a preliminary 

injunction prohibiting Pacific Seafood from acquiring control of 

Ocean Gold. I note that the decision to grant or deny preliminary 

injunctive relief is not a ruling on the merits of a claim. See 

Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 

1422 (9th Cir. 1984). 

V. Defendants' Motion to Strike Portions of Radtke Declaration 

I deny Defendants' motion to strike statements from the 

declaration of Plaintiffs' economic expert Hans Radtke. Experts 

have latitude in presenting their opinions. In any event, 

striking these statements would not affect my ruling on the 

preliminary injunction. 

CONCLUSION 

Plaintiffs' Motion for Preliminary Injunction (#21) is 

granted. Defendants' Motion to Dismiss (#13) and Motion to Strike 

(#41) are denied. 

Defendants, their subsidiaries, affiliates, owners, officers, 

employees, and agents and all persons acting on their behalf are 

prohibite~, through contra~tual or any other means, from 

undertaking any further act to acquire or control any interest in 

the stock, capital assets, real property, quota, or fishing 

8 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 8 of 9
permits of Ocean Gold Seafoods, Inc. or its affiliated companies 

including but not limited to Ocean Gold International, Inc.; Ocean 

Protein, LLC; Ocean Cold, LLC; Ocean Cold Transport, LLC, and 

Hoquiam Riverview Properties, LLC, or their shareholders or 

members until further order of this Court. 

IT IS SO ORDERED. 

DATED this ~ day of March, 2015. 

OWEN M. FANNER 

U.S. DISTRICT JUDGE 

9 - ORDER 

Case 1:15-cv-00108-PA Document 55 Filed 03/06/15 Page 9 of 9