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.
The rationale for strictly limiting standing to sue for violation of antitrust consent decrees was stated in a pre- Blue Chip decision: "To permit enforcement of an antitrust consent decree by third parties in reality makes the decree a statute continuing perhaps in perpetuity, and one withal not enacted by Congress." Control Data Corp. v. IBM Corp., 306 F.Supp. 839, 846 (D.Minn. 1969), aff'd, 430 F.2d 1277 (8th Cir. 1970); see Gautreaux v. Pierce, 707 F.2d 265, 273 (7th Cir. 1983) (antitrust consent decree creates enforceable rights in plaintiff only) (Posner, J., concurring). The Blue Chip statement is not limited solely to government antitrust consent decrees, as that case was itself a suit for violation of the securities law.
Defendant has cited in its brief numerous cases wherein the courts have held both with regard to decrees generally and the Loew's decree specifically, that a non-party to a decree previously entered in a government antitrust suit states no cause of action by alleging a violation of its provisions and may not attempt collaterally to enforce any such decree against a defendant. See United States v. American Society of Composers, Authors and Publishers, 341 F.2d 1003, 1008 (2d Cir.), cert. denied, 382 U.S. 877, 86 S.Ct. 160, 15 L.Ed.2d 119 (1965); Control Data Corp. v. IBM Corp., 306 F. Supp. 839, 845 (D.Minn. 1969), aff'd, 430 F.2d 1277 (8th Cir. 1970); Independent Theatres, Inc. v. American Broadcasting-Paramount Theatres, Inc., 179 F. Supp. 489, 490 (S.D.N.Y. 1959); Brownlee v. Malco Theatres, Inc., 99 F. Supp. 312, 317 (W.D.Ark. 1951). Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17, 20 (9th Cir. 1971); Sablosky v. Paramount Film Distributing Corp., 137 F. Supp. 929, 936 (E.D.Pa. 1955).
As earlier described in footnote 1, paragraph 19 of the second amended complaint, alleging violation of the 1956 consent decree involving the 4A's was stricken. This ruling was based on decisions such as Data Processing Financial General Corp. v. IBM, 430 F.2d 1277 (8th Cir. 1970), holding that third parties cannot enforce, or assert violations of, consent decrees. This does not mean that the 1956 consent decrees cannot be referred to in the present case as an important part of the factual background, which they clearly are.