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.
This effect is similar to that caused by IBM's past practices of offering tabulating and computer equipment only for lease and not for sale. These practices also spawned antitrust litigation, resulting in a 1935 injunction and a 1956 consent decree. See Control Data Corp. v. IBM Corp., 306 F. Supp. 839 (D.Minn. 1969), aff'd, 430 F.2d 1277 (8th Cir. 1970). We also disagree with the district court's view that AMI admitted that leasing companies "compete with IBM and constrain IBM's ability to set prices or exclude competition in the market for new large scale main frame computers."
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 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.
( 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.
See House Report No. 1130, 90th Congress, 2d Session, 1968 U.S. Code Cong. Admin.News, pp. 1898, 1900; see also Control Data Corp. v. International Business Machines Corp., 306 F. Supp. 839, 852 (D.Minn. 1969), aff'd sub nom. Data Processing Financial General Corp. v. International Business Machines Corp., 430 F.2d 1277 (C.A.8, 1970); In re Fourth Class Postage Regulations, 298 F. Supp. 1326, 1327-1328 (Jud.Pan.Mult.Lit. 1969); note In re Plumbing Fixtures, 298 F. Supp. 484 (Jud.Pan.Mult.Lit. 1968). Thus the resolution of the issue of the application of collateral estoppel under the rationale of Blonder-Tongue is a matter which the § 1407 transferee Court would have ample authority to resolve and which could be resolved by it as a matter of justice and judicial efficiency.
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.
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.
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).