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.
As the district court explained, strangers to a consent decree generally do not have standing to enforce a consent decree. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Data Processing Fin. Gen. Corp. v. Int'l Bus. Machs. Corp., 430 F.2d 1277 (8th Cir. 1970) (per curiam), aff'g Control Data Corp. v. Int'l Bus. Machs. Corp., 306 F.Supp. 839 (D.Minn. 1969). In order for a third party to be able to enforce a consent decree, the third party must, at a minimum, show that the parties to the consent decree not only intended to confer a benefit upon that third party, but also intended to give that third party a legally binding and enforceable right to that benefit.
( 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.
Generally, non-parties have no right of action based upon a settlement or consent decree. Data Processing Financial General Corp. v. Int'l Business Machines Corp., 430 F.2d 1277 (8th Cir. 1970). It has been held that a consent decree is not enforceable directly or in collateral proceedings by those who were not parties to it even though they were intended to be benefited by it. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975).
It is clear, and plaintiffs concede, that a nonparty to a consent decree entered in a government antitrust suit may not either directly or collaterally enforce the decree against the defendant. United States v. Western Electric Co., 1968 Trade Case ¶ 72, 415 (D.N.J.) aff'd per curiam sub nom. Clark Walter Sons Inc. v. United States, 392 U.S. 659 (1968); Dahl, Inc. v. Roy Cooper Co., Inc., 448 F.2d 17, 20 (9th Cir. 1971); 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); Cinema Service Corp. v. Twentieth Century Fox Film Corp., 477 F. Supp. 174, 177 (W.D.Pa. 1979); Control Data Corp. v. International Business Machines Corp., 306 F. Supp. 839, 845 (D.Minn. 1969) aff'd sub nom. Data Processing Financial General Corp. v. International Business Machines Corp., 430 F.2d 1277 (8th Cir. 1970) (per curiam). Plaintiffs contend, however, that they are not seeking to enforce the consent decree, but are merely seeking a declaratory judgment interpreting their rights under the consent decree.
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.
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.
Most of the cases cited in support of the holding in Green Bay Packaging do not deal with counterclaims and none of them held that a counterclaim could be dismissed merely because it duplicated issues in the complaint. See United States Fidelity Guar. Co. v. Pierson, 89 F.2d 602, 605 (8th Cir. 1937) (upholding striking of portion of answer containing "an allegation of wholly impertinent matter or an allegation of evidentiary matter"); Control Data Corp. v. International Business Mach. Corp., 306 F. Supp. 839 (D.Minn. 1969) (striking complaint's allegations of consent decrees), aff'd, 430 F.2d 1277 (8th Cir. 1970); Vignovich v. Great Lakes S.S. Co., 3 F.R.D. 69 (W.D.N.Y. 1942) (striking paragraphs of complaint that were not "simple, concise, and direct" as required by Fed.R.Civ.P. 8(e)(1)); Chambers v. Cameron, 29 F. Supp. 742 (N.D.Ill. 1939) (dismissing prolix counterclaim as violating Fed.R.Civ.P. 8(a)). Defendants would have every right to seek a judgment declaring that their interpretation of the contract was the correct one.
It is well settled that such repetitious and unnecessary pleadings should be stricken. Control Data Corp. v. International Business Machine Corp., 306 F. Supp. 839 (D.Minn. 1969) appeal denied 421 F.2d 323 (8th Cir. 1970), aff'd 430 F.2d 1277 (8th Cir. 1970); United States F G Co. v. Pierson, 89 F.2d 602 (8th Cir. 1937); Vignovich v. Great Lakes S. S. Co. Inc., 3 F.R.D. 69 (W.D.N.Y. 1942); Chambers v. Cameron, 29 F. Supp. 742 (N.D.Ill. 1939). II. COUNTS II, IV, V, AND VI OF THE COUNTERCLAIM FAIL TO ADEQUATELY STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
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.