Indeed, it has been specifically established that a private party cannot premise a treble damage action under Section 4 upon violations of a government consent decree. Paul M. Harrod Co. v. A.B. Dick Co., 194 F. Supp. 502, 504 (N.D.Ohio 1961);See also, Sound, Inc. v. American Tel. Tel. Co., [1979-2] Trade Cas. ¶ 62,974, at 79,547-48 (S.D.Iowa 1979, aff'd, 631 F.2d 1324 (8th Cir. 1980)); Cinema Service Corp. v. Twentieth Century-Fox Film Corp., 477 F. Supp. 174, 177-78 (W.D.Pa. 1979); Control Data Corp. v. International Business Machines Corp., 306 F. Supp. 839, 846 (D.Minn. 1969), aff'd, 430 F.2d 1277, 1278 (8th Cir. 1970). Plaintiff attempts to distinguish Paul M. Harrod by suggesting that it turns on the fact that references to the consent decree would prejudice the jury and that references to it were readily excisable.
( E. g., Buckeye Co. v. Hocking Valley Co. (1925) 269 U.S. 42, 46 S.Ct. 61, 70 L.Ed. 155; United States v. ASCAP (2d Cir. 1965) 341 F.2d 1003; Control Data Corp. v. IBM Corp. (D.Minn. 1969) 306 F. Supp. 839, aff'd sub nom. Data Processing Financial General Corp. v. IBM Corp. (8th Cir. 1970) 430 F.2d 1277. See Dahl, Inc. v. Roy Cooper Co. (9th Cir. 1971) 448 F.2d 17, 20.
Other courts, although not all directly confronted by the allegation pleaded here, have interpreted California Motor Transport as creating a cause of action based upon unethical or illegal behavior before an adjudicatory body. See, e. g., Rodgers v. Federal Trade Commission, 492 F.2d 228, 232 n. 6 (9th Cir.), cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974); Semke v. Enid Automobile Dealers Association, 456 F.2d 1361, 1366-67 (10th Cir. 1972). Similarly, lower federal courts have interpreted California Motor Transport as excluding gross misconduct in an adjudicatory setting or abuse of process from the Noerr-Pennington immunity.See Rush-Hampton Industries v. Home Ventilating Institute, 419 F. Supp. 19, 24 (M.D.Fla. 1976); Control Data Corp. v. International Business Machines Corp., 306 F. Supp. 839, 849 (D.Minn. 1969), aff'd, 430 F.2d 1277 (8th Cir. 1970). None of the cases cited above appear to concur with plaintiff's interpretation that the "sham" exception can only be successfully invoked when literal exclusion from the agency proceedings has occurred.
The defendant points to the well-settled principle that in such case the consent decree is not admissible in evidence. See e. g., City of Burbank v. General Electric Co., 329 F.2d 825 (9 Cir. 1964); Control Data Corp. v. International Business Machines Corp., 306 F.Supp. 839, 841 (D.Minn.1969), aff'd sub nom Data Processing Financial & General Corp. v. International Business Machines Corp., 430 F.2d 1277 (8 Cir. 1970). That does not end the matter, however.
The fact that the decree was intended to benefit certain non-parties does not confer on them an independent cause of action for violations of the decree. Control Data Corp. v. International Bus. Mach. Corp., 306 F. Supp. 839 (D.Minn. 1969), aff'd 430 F.2d 1277, 1278 (8th Cir. 1970). In Control Data, plaintiffs were barred from asserting defendants' alleged violations of two prior consent decrees even though plaintiffs did not per se seek to enforce the provisions of the earlier decrees and even though the decrees clearly intended to benefit defendants' competitors, including plaintiffs.
Federal courts are not bound by state court rulings on evidence. The second case cited by the Defendant is Control Data Corp. v. International Business Machines Corp., 306 F. Supp. 839, App. Denied, 421 F.2d 223, aff'd Data Processing Financial General Corp. v. International Business Machines, 430 F.2d 1277 (DC Minn., 1969). Control Data Corp. involved the use of consent judgments as evidence in subsequent civil actions, and as such it is easily distinguishable on the facts and is not applicable to the case before the Court.