P 13 at 5-6; P.T.O. P 12 at 6. Further, Whitmire argues that while he has simply marketed and sold software, the 1984 Judgment only prohibits him from furnishing "manuals and documents generated by computer." See supra note 2; 1993 Compl. P 13 at 5-6. In addition, Whitmire claims that he has not used any confidential or proprietary information gained from his employment at Corbel. See 1993 Compl. P 17 at 7.
Alternatively, Whitmire argues that even if his activities could be considered violative of the 1984 Judgment, the passage of time and changes in law and technology require modification of the 1984 Judgment. See 1993 Compl. P 17. Whitmire contends that the pension documents used by Corbel in 1983 are obsolete, thus making any secret information he may have known in 1983 of no value today. Id.
I. Violation of the 1984 Judgment
Consent judgments are agreements between parties to litigation and, therefore, should be construed as contracts. See United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37, 43 L. Ed. 2d 148, 95 S. Ct. 926 (1975); see also United States v. Int'l Bhd. of Teamsters, 998 F.2d 1101, 1106 (2d Cir. 1993); S.E.C. v. Levine, 881 F.2d 1165, 1178 (2d Cir. 1989). Since a consent judgment is generally entered into after careful negotiation has produced agreement upon its precise terms, see United States v. Armour & Co., 402 U.S. 673, 681, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971), the Court should interpret a consent judgment so as to give effect to what the parties agreed. See Levine, 881 F.2d at 1179. Therefore, the scope of a consent judgment "must be discerned within its four corners and not by reference to what might satisfy the purposes of one of the parties to it." Armour, 402 U.S. at 682. However, the Court may consider normal aids to construction, such as the circumstances surrounding the formation of the consent judgment, as if it was construing a contract. See ITT, 420 U.S. at 238; see also Teamsters, 998 F.2d at 1106.
Whitmire admits that AccuDraft purchases software programs and modifies them to permit its clients, which include attorneys, pension consultants, and actuaries, to assemble qualified pension and profit sharing plans in-house for their own customers. See Tr. at 10-11; 1993 Compl. P 11 at 5. Furthermore, Whitmire admitted during trial that AccuDraft is in competition with Corbel, that it targets the same customers, provides the same services, and provides the same pension document packages as Corbel. See Tr. at 55-56. Clearly, Whitmire is engaging in a business which ultimately furnishes "documents generated by computer, including qualified retirement and pension plans . . . [to] attorneys, pension professionals, [and] actuaries" in violation of the 1984 Judgment. See supra note 2. Merely because Whitmire furnishes the modified software that creates the pension forms, and not the actual forms themselves, does not require a different result. Whitmire himself is competing with Corbel and providing its customers with pension-related "manuals and documents generated by computer." Id. The Court therefore rejects Whitmire's hypertechnical suggestion that a literal reading of the terms of the 1984 Judgment does not preclude him from competing with Corbel himself. The 1984 Judgment clearly prohibits Whitmire from engaging in the same business activities that Corbel does, "whether as a principal or employee or in any other capacity." Id. To give the 1984 Judgment any other interpretation would negate the very purpose of that agreement.
Further, Whitmire's specious argument that AccuDraft is no longer a corporation but is, instead, a sole proprietorship d/b/a "AccuDraft" which does not violate the literal terms of the 1984 Judgment must also be rejected. See P.T.O. P 8 at 5. A "d/b/a" is still an entity, even if it is not a separate legal person, and AccuDraft is clearly "a Business in competition with Corbel." See supra p.4. Moreover, the 1984 Judgment specifically enjoins Whitmire from competing as a "principal or employee or in any other capacity." See supra note 2. Therefore, the Court finds that Whitmire, through the corporate form of AccuDraft, Ltd. and later as a sole proprietor d/b/a "AccuDraft," has violated the terms of the 1984 Judgment.
II. Modification of the 1984 Judgment
Likewise, the Court rejects Whitmire's alternate argument that the 1984 Judgment should be modified. Although the Court has the power to modify the terms of an injunction as a final consent judgment, see United States v. Swift & Co., 286 U.S. 106, 114, 76 L. Ed. 999, 52 S. Ct. 460 (1932); New York State Assoc. For Retarded Children v. Carey Inc., 706 F.2d 956, 967 (2d Cir. 1983), the general standard for modification applies only if changed circumstances have turned the consent judgment into an instrument of wrong. See Swift, 286 U.S. at 114-5 (nothing less than clear showing of grievous wrong evoked by new and unforeseen conditions should lead a court to change what was decreed after years of litigation with the consent of all concerned).
Where, as here, a commercial consent judgment is at issue, this tougher standard is warranted because the parties negotiated a voluntary contract which was accepted by this Court as a fair compromise of a litigated action affecting only the parties to the particular suit. See W.L. Gore & Assoc., Inc. v. C.R. Bard, Inc., 977 F.2d 558, 562 (Fed. Cir. 1992).
The Court further finds that there has been no significant change in circumstances to warrant a revision of the decree, see Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 383, 116 L. Ed. 2d 867, 112 S. Ct. 748 (1992); Still's Pharmacy, Inc. v. Cuomo, 981 F.2d 632, 637 (2d Cir. 1992), because Whitmire has failed to establish either a significant change in factual conditions or in the law. See Rufo, 502 U.S. at 384. Further, Whitmire has failed to prove that compliance with the 1984 Judgment has become substantially more onerous, that the decree is unworkable due to unforeseen obstacles, or that enforcement without modification would be detrimental to public interest. Id. This is especially true since Whitmire cannot colorably argue that the facts of this action were unanticipated at the time the consent judgment was entered. Id. at 385.
Whitmire freely consented to the 1984 Judgment with full knowledge of the changes which could occur in the computer industry. Similarly, changes in pension and tax laws are frequent and should also have been anticipated. This is especially true since the consent judgment was willingly embraced by Whitmire as a vehicle to avoid an adverse result in a case that was difficult to defend and was accepted, at least in part, to avoid putting on a defense case and being subject to cross-examination. Moreover, the Court fully expounded on the anticompetitive nature of the settlement reached and accepted it only because both sides urged the Court to do so. See Transcript of Trial Record dated June 10, 1985 ("1985 Tr.") at 2, 4, 10-13.
For the reasons set forth above, Whitmire's requests for a declaratory judgment and for modification of the 1984 Judgment are denied. The Clerk of Court shall enter judgment accordingly.
It is SO ORDERED.
Dated: New York, New York
September 24, 1997
John E. Sprizzo
United States District Judge