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.
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.
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.
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.
( 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.
In United States v. Swift Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), for example, the Court summarily rejected the contention that a consent decree should be considered a contract for purposes of determining whether the courts have the power to modify such a decree absent the parties' consent. And, in Control Data Corp. v. International Business Machines Corp., 306 F. Supp. 839 (D.Minn. 1969), aff'd, 430 F.2d 1277 (8th Cir. 1970), the court rejected the argument that a consent decree should be treated as a contract for purposes of determining whether a third party beneficiary action could be maintained for breach of that contract. As Professor Handler has pointed out, treating consent decrees differently in distinct contexts is not inconsistent:
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.
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.
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).