Sam Fox Publishing Co., Inc. v. United States, 366 U.S. 683 (1961)

Sam Fox Publishing Co., Inc. v. United States

No. 56

Argued March 29-30, 1961
Decided May 29, 1961
366 U.S. 683

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

Under the Expediting Act, 15 U.S.C. § 29, appellants, who were small music publishers, appealed directly to this Court from an order of a Federal District Court denying their motions under Rule 24(a)(2) of the Federal Rules of Civil Procedure to intervene as of right in a proceeding by the Government to modify a consent decree previously entered in a government suit under § 1 of the Sherman Act against an unincorporated association of music writers and publishers (of which appellants were members), which took licenses to the works of its members, licensed such works for public performance, and distributed the resulting revenues among its members. The Government had proposed modification of the decree to improve provisions for democratic elections of the governing board by membership vote and for an equitable distribution of revenues, and appellants contended that the modifications proposed did not go far enough towards ameliorating the position of the small publishers as against a few large publishers who allegedly dominated the association.

Held: appellants were not bound by the parts of the decree as to which they sought intervention; they were not entitled to intervene as of right; the order denying intervention was not appealable; and the appeal is dismissed. Pp. 684-695.

(a) If appellants’ interests are deemed aligned with the public interest in this case, they would not be bound by the outcome of the government antitrust litigation or precluded from enforcing their rights through private litigation. Therefore, they were not entitled to intervene as of right, and the order denying intervention was not appealable. Pp. 688-690.

(b) Though the Government’s suit was against the unincorporated association both as an entity and as a representative of its members, and appellants may be bound by the decree insofar as it deals with the external affairs of the association, they are not bound by its provisions pertaining to the internal affairs of the association, as to which their interests are adverse to those of the association’s governing board and could not be adequately represented by it. Pp. 690-693.

(c) It was not necessary for the District Court to hold a hearing in order to determine to what extent appellants’ interests diverged from those asserted by the association, since the record shows that appellants’ interests could not be considered to be adequately represented by the association with respect to its internal affairs, and therefore they could not be bound by the decree. Pp. 693-694.

(d) A different conclusion is not required by the fact that, even if appellants are not legally precluded from bringing a private suit, nevertheless the very existence of the decree in the Government’s suit might, as a matter of comity, limit the relief which some future equity court would decree. Pp. 694-695.

Appeal dismissed.