United States v. Columbia Pictures Industries, Inc.

88 F.R.D. 186, 31 Fed. R. Serv. 2d 685, 1980 U.S. Dist. LEXIS 13808
CourtDistrict Court, S.D. New York
DecidedSeptember 26, 1980
DocketNo. 80 Civ. 4438 (GLG)
StatusPublished
Cited by16 cases

This text of 88 F.R.D. 186 (United States v. Columbia Pictures Industries, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Columbia Pictures Industries, Inc., 88 F.R.D. 186, 31 Fed. R. Serv. 2d 685, 1980 U.S. Dist. LEXIS 13808 (S.D.N.Y. 1980).

Opinion

[188]*188OPINION

GOETTEL, District Judge:

In this antitrust action brought by the United States Department of Justice against four major film companies and Getty Oil Company seeking to enjoin those defendants from pursuing their joint venture of establishing Premiere, a company intended to provide a new pay television programming service, Premiere has moved to intervene, and three nonparty witnesses have objected to defendants’ nonparty discovery demands.

The Action

The main action can be outlined as follows: On April 12, 1980, Columbia Pictures, Inc., MCA, Inc., Paramount Pictures Corporation, Twentieth Century-Fox Corporation, and Getty Oil Company signed an agreement forming Premiere as a “noncorporate joint venture ... for the purpose of establishing and operating a new Network Program Service devoted exclusively to the exhibition of Motion Pictures” on pay television. On August 4, 1980, the Antitrust Division of the Department of Justice (“Government”) brought suit against the five joint venturers, charging that certain provisions of their agreement amounted to antitrust violations-specifically, price-fixing and a group boycott-under section 1 of the Sherman Act, 15 U.S.C. § 1 (1976). On August 15, 1980, the Government filed a motion for a preliminary injunction.

Meanwhile, on August 14, 1980, Premiere filed its motion for leave to intervene in the action pursuant to Fed.R.Civ.P. 24. Three other nonparties-pay cable network programming companies currently operating in the industry — entered the picture in late August by notifying the Court of their objections to defendants’ subpoenas and, in mid-September, filing formal objections to those subpoenas.

Intervention

Premiere’s motion to intervene presents the Court with an unusual situation, chiefly because Premiere is attempting to intervene as a defendant in this government antitrust action. No case involving intervention as a defendant in an antitrust suit has been brought to the attention of the Court. On the other hand, intervention as a defendant has been sought and allowed in a few cases of other types. See, e. g., Natural Resources Defense Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977); New York Public Interest Research Group, Inc. v. Regents of the University of the State of New York, 516 F.2d 350 (2d Cir. 1975); Town of North Hempstead v. Village of North Hills, 80 F.R.D. 714 (E.D.N.Y.1978); New England Petroleum Corp. v. Federal Energy Administration, 71 F.R.D. 454 (S.D. N.Y.1976). Premiere’s desire to intervene in the instant action obviously results from the knowledge that its existence depends upon the outcome of the antitrust suit. The opposition to Premiere’s intervention comes from the Government. Finding no sufficient reason to deny Premiere’s application, the Court hereby grants the motion for leave to intervene.

Under the Federal Rules of Civil Procedure, intervention may be granted as of right or as a matter of discretion. Rule 24(a)(2)1 lists four requirements for intervention as of right: (1) “timely application”; (2) “an interest relating to the property or transaction which is the subject matter of the action”; (3) a position in which “the disposition of the action may . . . impair or impede [the applicant’s] ability to protect that interest”; (4) inadequate representation of “the applicant’s interest ... by existing parties.” Although the Government challenges Premiere’s right to intervene on grounds that Premiere fails to meet the second and fourth requirements, the thrust of its opposition to the interven[189]*189tion is its contention that Premiere’s interest is already adequately represented by the five original defendants. It seems likely that Premiere could be found to have met its burden of demonstrating that its representation by existing parties “may be inadequate,” since that burden “ ‘should be treated as minimal,’ ” United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972)), and since Premiere has identified some areas in which its interests, as well as its perspective and expertise, may differ from those of the joint venturers. This Court need not resolve that issue, however, given the availability of permissive intervention.

Rule 24(b)(2)2 lists three requirements for permissive intervention: (1) “timely application”; (2) “a question of law or fact in common” between the “applicant’s claim or defense and the main action”; (3) a determination that the intervention will not “unduly delay or prejudice the adjudication of the rights of the original parties.” The Government’s opposition to Premiere’s intervention rests primarily on its assertion that Premiere’s entry into the action would delay the proceedings and on a reiteration of its argument that Premiere’s interest is already adequately represented.

Avoidance of delay or prejudice to the original parties is certainly the primary consideration of a court faced with an application for permissive intervention. United States Postal Service v. Brennan, supra, 579 F.2d at 191. The Government, however, fails to specify in what ways Premiere’s entry into the action would cause delay or prejudice. Instead, it relies on the general proposition that any additional party will take additional time. In the chief case the Government cites for that proposition, Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., 51 F.Supp. 972 (D.Mass.1943), the court, despite its cautionary words, did allow intervention. In the other cases the Government cites, where intervention was denied, the denial was based on some specific problem likely to cause delay or prejudice. See, e. g., National American Corp. v. Federal Republic of Nigeria, 425 F.Supp. 1365 (S.D.N.Y.1977) (multiplication of choice of law problems caused by allowing intervention). Here, in contrast, the opponent to intervention outlines no specific likelihood for delay or prejudice, and, indeed, it is possible that the proposed intervenor’s expertise and perspective could speed the adjudication of the action as well as aid in shaping the judicial remedy. See Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., supra, 51 F.Supp. at 974.

The Government’s reliance on its contention that Premiere’s interest is already adequately represented seems inappropriate in an application for permissive intervention. Rule 24(b) does not list inadequacy of representation as one of the considerations for the court. Although some cases mention it as one factor to be considered, see, e. g., United States Postal Service v. Brennan, supra, 579 F.2d at 191, it is clearly a minor factor at most.3

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Bluebook (online)
88 F.R.D. 186, 31 Fed. R. Serv. 2d 685, 1980 U.S. Dist. LEXIS 13808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-columbia-pictures-industries-inc-nysd-1980.