Enforcement of Government Antitrust Decrees: Third Party Beneficiary Rights and Intervenor Status

Abstract

The federal government often resolves civil antitrust suits by entering into a consent decree with the defendant. That decree, of course, may be enforced by the Department of Justice, but it is far less clear whether private parties, typically customers or competitors, can also seek enforcement. This article considers two potential theories that might be invoked in such situations: first, framing a contract claim in terms of the third party being a third party beneficiary of the decree, and, second, having the third party seek postjudgment intervention.

Although both theories pose conceptual and practical difficulties, it seems likely that recognition of such rights of third parties would result fairly frequently in enforcement where there is little or none now.

Keywords: third party beneficiary, consent decree, intervention, antitrust, private enforcement, Department of Justice,