Full opinion text
OPINION AND ORDER SCHWARTZ, District Judge. Plaintiffs, related companies in the magazine and book wholesale business, allege that defendants, a wholesaler and various magazine and book distributors, have violated antitrust laws, breached certain contracts, and committed certain torts. The wholesaler, defendant Chas. Levy Circulating Co. (“Levy”), and the distributor defendants (collectively the “Distributors”) each move, pursuant to Rule 12(b)(6), to dismiss the claims against them respectively in the Amended Complaint. For the reasons set forth below, defendants’ motions are granted. I. THE PARTIES Plaintiff United Magazine Company (“Unimag”) is an Ohio corporation -with its principal place of business in Ohio. (Am. CompLf 6.) Unimag directly or indirectly owns all of the stock of each of the other plaintiffs. (Id.) Plaintiff The Stoll Companies (“Stoll”) is an Ohio corporation with its principal place of business in Ohio. (Id. ¶ 9.) Plaintiff Michiana News Service, Inc. (“Michiana”) is a Michigan corporation with its principal place of business in Ohio. (Id. ¶ 11.) Plaintiff Geo. R. Klein News Co. (“Klein”) is an Ohio corporation with its principal place of business in Ohio. (Id. ¶ 13.) Plaintiff Central News Company (“Central”) is an Ohio corporation with its principal place of business in Ohio. (Id. ¶ 15.) Plaintiff The Scherer Companies (“Scherer”) is a Delaware corporation with its principal place of business in Ohio. (Id. ¶ 19.) Defendant Murdoch Magazines Distribution, Inc. and defendant TV Guide Distribution, Inc. (together “Murdoch”) are Delaware corporations with their principal places of business in New York. (Id. ¶¶ 24-25.) Defendant Curtis Circulation Company (“Curtis”) is a Delaware corporation with its principal place of business in New Jersey. (Id. ¶ 26.) Defendant Hearst Distribution, Inc. and defendant Comag Marketing Group, LLC (together “Hearst”) are Delaware corporations with their principal places of business in New York. (Id. ¶¶ 27-28.) Defendant Kable News Company, Inc. (“Kable”) is an Illinois corporation with its principal place of business in New York. (Id. ¶ 29.) Defendant Time Distribution Services, Inc. (“Time”) is a Delaware corporation with its principal place of business in New York. (Id. ¶ 30.) Defendant Warner Publisher Services, Inc. (“Warner”) is a New York corporation with its principal place of business in New York. (Id. ¶ 31.) (Time and Warner will hereinafter together be referred to as “Time Warner.”) Defendant Levy is an Illinois partnership with its principal place of business in Illinois. (Id. ¶ 34.) II. BACKGROUND The facts set forth below are taken from the Amended Complaint. All of the parties herein are involved in the magazine and book distribution industry, the structure of which forms the factual background of this action. Each magazine or book (together “publication”) is published by a specific publisher. (E.g. Time-Warner, Inc. publishes Time.) (Am.ComplY 38.1.) Each publisher then sells specific publication titles to a particular distributor. Commonly, publication titles are available from only one distributor. (E.g. TV Guide is only available from Murdoch.) (Am. Compl.lffl 38.G, 46.) Distributors then resell the publications to wholesalers at a discount off of the cover price. (Id. ¶ 52.) Distributors determine the wholesalers to which titles will be sold, and in what quantity. (Id. ¶ 46.) Wholesalers, in turn, resell the publications to retailers at a smaller discount off the cover price than the wholesalers receive from the distributors. (Id. ¶ 52.) Wholesalers are responsible, at their own expense, for allocating the publications among retailers, physically distributing the publications to retail locations, and arranging the publications in display racks. (Id. ¶¶ 47-48.) Retailers then sell the publications to consumers at the cover price. {Id. ¶ 52.) Any publications unsold at the end of their respective shelf lives are removed from retail locations by the wholesalers, at the wholesalers’ expense. The wholesalers are then responsible for disposing of the unsold publications and certifying such disposal to the distributors. Certification may entail removing the cover of each unsold publication and shipping the covers back to the particular distributor, or scanning the UPC codes on the unsold publications and sending the distributor an affidavit stating that the wholesaler disposed of the particular publications properly. (Id. ¶¶ 48-49.) Unsold publications also generate credits back along the chain of sale. That is, retailers receive credits from wholesalers for each unsold publication; wholesalers receive credits from distributors; and distributors receive credits from publishers. {Id. ¶¶ 50, 52.) Under this system, distributors have a financial incentive to distribute as many copies of the publications as possible because they receive full credit for unsold publications that they purchased and are not responsible for the costs of physical distribution. {Id. ¶ 53.) Historically, each wholesaler was granted one or more exclusive geographic territories in which it alone sold publications to retailers. Any retailer in a given area could purchase publications only from the single wholesaler with rights to that area. {Id. ¶¶44, 56-60.) Under this system, wholesalers could operate profitably because any losses incurred supplying smaller, less-profitable retailers were compensated for by profits made on larger, more-profitable retailers. Over the last fifty years, the number of both distributors and wholesalers has decreased, as distributors purchased other distributors and wholesalers purchased other wholesalers. {Id. ¶ 45.) For example, during this period Unimag acquired Stoll, Michiana, Klein, and Central. {Id. ¶¶ 9, 11, 13, 15.) Beginning in 1995, one or more of the Distributors began permitting some wholesalers to sell magazines and books to certain large retailers without regard for exclusive geographic territories. {Id. ¶ 62.) Under the new system, wholesalers were permitted to bid for the right to sell to a given large retailer in multiple territories. {Id. ¶¶ 63-64.) This change was apparently driven by the large retailers, who preferred to purchase all of their publications from one wholesaler, rather than having to make purchases from a different wholesaler in each geographic area. {Id. ¶ 63.) From 1938 through late 1995, Stoll had exclusive territories in northern Ohio, southern Michigan, and eastern Indiana. {Id. ¶ 103.) From 1971 through late 1995, Michiana had exclusive territories in southwestern Michigan, Indiana, and northwestern Ohio. {Id. ¶ 104.) From 1958 through late 1995, Klein had exclusive territories in northern and northeastern Ohio. {Id. ¶ 105.) From 1959 through late 1995, Central had exclusive territories in northern Ohio, West Virginia, and Pennsylvania. {Id. ¶ 106.) Service News Company d/b/a Yankee News Company, had exclusive territories in Connecticut and New York from 1958 until its merger into Unimag in 1998. {Id. ¶¶ 21, 107.) From 1988 through late 1995, Unimag had exclusive territories in Connecticut, New York, North Carolina, South Carolina, and Pennsylvania. {Id. ¶ 108.) Scherer did not itself operate as a wholesaler of books and magazines. Instead, Scherer provided management services and computer hardware, software, and technical support to the other plaintiffs. (Am.ComplJ 20.) As of late 1995, Levy had exclusive territories in Illinois, Indiana, Michigan, Pennsylvania, and Wisconsin. {Id. ¶ 112.) Sometime between 1995 and 1999, defendant Levy began selling to one or more large retailers in one or more of the plaintiffs’ previously exclusive territories. (Id. ¶ 76.) The Distributors enabled Levy to do this by providing Levy with extra copies of magazines and books, as well as with various discounts. These discounts were not provided to plaintiffs. (Id. ¶¶ 63, 67, 74.) As a result, plaintiffs were left with only smaller, less-profitable retailers, and so had difficulty maintaining sufficient revenues to continue to operate. (Id. ¶¶ 73, 93.) In late 1998, Levy negotiated to acquire the assets of plaintiffs. (Id. ¶ 115.) These negotiations culminated in an executed asset purchase agreement dated March 18, 1999 (the “Purchase Agreement”). Plaintiffs and Levy never closed on the asset purchase transaction, however. Plaintiffs allege that they were “forced” to cease doing business in September 1999. (Id. ¶ 93.) Plaintiffs filed this action on May 3, 2000. Murdoch moved to dismiss the complaint on July 20, 2000. In response, plaintiffs filed the Amended Complaint on August 31, 2000. All defendants then filed the instant motions to dismiss the Amended Complaint. The Court heard oral argument on the motions on May 1, 2001. III. MOTION TO DISMISS STANDARD A court may not dismiss a complaint pursuant to Rule 12 unless, even when the complaint is liberally construed, it appears beyond doubt that the plaintiff can prove no set of facts which would entitle it to relief. Jaghory v. New York State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). On a motion to dismiss, a court must accept as true all of the facts alleged in the complaint. Id. A court must also must draw all reasonable inferences in the light most favorable to the plaintiff. Id. In antitrust cases, as in other types of cases, all that is required is a “short plain statement of a claim for relief which gives notice to the opposing party.” Global Disc. Travel Servs. v. Tram World Airlines, 960 F.Supp. 701 (S.D.N.Y.1997). “This does not mean that ‘conclusory allegations which merely recite the litany of antitrust ... will suffice.’ ” Id. (quoting John’s Insulation, Inc. v. Siska Constr. Co., 774 F.Supp. 156, 163 (S.D.N.Y.1991)). IV. PLAINTIFFS’ ANTITRUST CLAIMS Plaintiffs’ Amended Complaint includes fifteen counts, some of which contain more than one cause of action. In this section, the Court addresses the three counts that implicate antitrust law, both federal and state. The remaining counts will be addressed in the following section. A. Robinson-Patman Act (Count I) Plaintiffs allege three separate causes of action under the Robinson-Patman Act, 15 U.S.C. § 13 et seq. First, that the Distributors violated section 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a), by selling goods to Levy at a lower price than they charged plaintiffs. Second, that all of the defendants violated section 2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(c), by the Distributors paying, and Levy receiving, discounts disguised as brokerage fees or discounts that constituted commercial bribes. Third, that Levy violated section 2(f) of the Robinson-Patman Act, 15 U.S.C. § 13(f), by receiving discriminatorily lower prices for goods. The Court will address each cause of action in turn. 1. Section 2(a) Plaintiffs allege that the Distributors sold publications to Levy at a lower price than the Distributors sold publications to plaintiffs, thereby harming plaintiffs, in violation of section 2(a). (Am. Compl.1ffl 66-84.) The Distributors argue that plaintiffs have failed to adequately allege all of the elements of a section 2(a) claim. (Joint Mem. of Law of the National Distributor Defs. in Supp. of Their Mot. to Dismiss Pis.’ Am. Compl. Pursuant to Fed.R.Civ.P. 12(b)(6) (“Distributors’ Mem.”) at 3-8.) The Court finds that plaintiffs have not adequately alleged two elements of their section 2(a) claim. Section 2(a) prohibits discriminatory pricing among competing buyers of the same goods. 15 U.S.C. § 13(a). To state a claim for secondary-line price discrimination under section 2(a), a plaintiff must allege that: (i) the seller made sales in interstate commerce; (ii) the seller discriminated in price between two buyers; (iii) the product sold to both purchasers was the same grade and quality; and (iv) the price discrimination had an unlawful effect on competition. George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 141 (2d Cir.1998). In order to establish an unlawful effect on competition, a plaintiff must allege that it was actually competing with the favored purchaser at the time of the price discrimination. Id.; Best Brands Beverage, Inc. v. Falstajf Brewing Corp., 842 F.2d 578, 584-85 (2d Cir.1987). An allegation of actual competition at the time of the price discrimination, and of a price discrimination that was substantial and sustained over time, will satisfy the fourth element of a section 2(a) claim. George Haug, 148 F.3d at 142-44. The first two elements of the section 2(a) claim are adequately pled here. The Distributors do not dispute that plaintiffs have alleged the first element, the sale of goods or commodities in interstate commerce. The Distributors argue that plaintiffs have not pled the second element, price discrimination between favored and disfavored buyers, because the plaintiffs have not alleged competition between plaintiffs and Levy at the time when, and in the geographic markets where, any price discrimination occurred. (Distributors’ Mem. at 5-6.) This argument addresses not the second element of a section 2(a) claim, but the fourth. All that is required for the second element is an allegation of discrimination by the seller between two buyers. George Haug, 148 F.3d at 136. Plaintiffs allege that Levy purchased publications from the Distributors at a unit price per publication lower than the unit price plaintiffs were forced to pay the Distributors. (Am.Compl^ 67.). This allegation is sufficient to satisfy the second element. The third element of plaintiffs’ section 2(a) claim is a closer question. The Distributors argue that plaintiffs have not adequately alleged the third element because they have not pled that Levy and the plaintiffs purchased products of the same grade and quality. (Distributors’ Mem. at 6-7.) Plaintiffs allege that they paid a higher price than did Levy “for the same Magazine or Book from the same seller.” (Am.Compl J 67.) As defendants point out, however, this allegation is made problematic by plaintiffs’ defined terms. “Magazines and Books” is defined as “the lines of mass-market magazine titles, newspapers, other periodicals and paperback book titles published by the Publishers and distributed by the [Distributors] to Wholesalers or directly to Major Retailers in the United States.” (Am.ComplJ 38.E.) Of course, if certain periodicals were sold directly to retailers, and not to wholesalers, they may not form the basis of plaintiffs’ Robinson-Patman claims. Also, the “Publishers” are alleged to publish only magazines; accordingly, “Magazines and Books” actually includes no books, newspapers, or “other periodicals” other than magazines. (Am.ComplJ 38.1.) Further, plaintiffs argue in their memorandum that, contrary to what is alleged in the Amended Complaint, the products at issue are “the 38 supertitle Magazines.” (Pis.’ Mem. in Opp. to the Nation Distributor Defs.’ Mot to Dismiss Pis.’ Am. Compl. Pursuant to Fed.R.Civ.P. 12(b)(6) (“Pis.’ Distributor Mem.”) at 8.) “Supertitle” is an undefined term that apparently refers to the most popular magazines. “Magazines and Books” by its definition, however, does not refer to certain supertitles. For example, Shape is allegedly a “supertitle.” (Am. Compl. ¶ 38.G.4.) However, Shape is not within the category of “Magazines and Books” because it is not published by one of the “Publishers.” (Am.ComplJ 38.1.) Thus, Kable’s sale of Shape is not alleged to be a basis for the section 2(a) claim. Plaintiffs do not clearly allege that Kable distributes magazines and books other than Shape, or that Levy and any particular plaintiff was charged different prices for whatever magazines Kable does distribute. Even under notice pleading, plaintiffs’ conclusory allegation, combined with their unclear and inconsistent definitions of terms, does not afford Kable proper notice of how it has allegedly violated the Robinson-Patman Act. Similarly, plaintiffs’ conclusory allegations and problematic definitions fail to give adequate notice to the other Distributors. That is not to say that plaintiffs must allege the exact price paid by each of them and by Levy for each specific title, or otherwise plead all of them evidence. However, absent clearer notice than they have provided in the Amended Complaint, plaintiffs have failed to adequately allege the third element of their section 2(a) claim. Plaintiffs also do not adequately allege the fourth element of their claim. As noted above, the Distributors argue that there is no sufficient allegation of actual competition between plaintiffs and Levy at the time when, and in the place where, any price discrimination occurred. The Distributors also argue that, even if there was competition and price discrimination, any such price discrimination was not sustained over a long enough period of time to establish harm to competition. (Distributors’ Mem. .at 5-6, 8.) Plaintiffs initially allege that, “[smarting in 1995, some of the [Distributors] permitted some Wholesalers to supply Magazines and Books to retail locations of Major Retailers without regard to the exclusive geographic areas.” (Am.ComplJ 62.) This allegation is insufficient to meet the requirement that there have been competition between any of the plaintiffs and Levy. Plaintiffs later allege that during the period from May 1996 to May 2000, “plaintiffs have been in competition with Levy and other Wholesalers ... for sales of Magazines and Books to some of plaintiffs’ Major Retailer customers and prospective customers in the 11-state territory serviced by plaintiffs.... ” (Am. Comply 76.) While an improvement over the first allegation, this allegation is still insufficient. First, it is not clear from this allegation if any competition was with Levy or a non-party wholesaler. Second, as noted above, plaintiffs may not treat six separate entities as if they were one. Each of the five wholesaler plaintiffs had a distinct territory or territories. See supra p. 5. It is unclear from the Amended Complaint as to which plaintiffs faced competition from which of the wholesalers in which territories for sales of the same commodities. Plaintiffs may not state a claim by glossing over these factual requisites with a conclusory allegation of competition. Moreover, there is no clear link between the timing and location of any competition and the timing and location of the alleged price discrimination. To state a claim, each plaintiff must allege that there was price discrimination between it and Levy during the time, and in the place, where that plaintiff and Levy competed for the sale of the same goods. Because plaintiffs have not done this, they have not adequately alleged a claim under section 2(a). Accordingly, the Court dismisses this cause of action. 2. Section 2(c) Plaintiffs allege that the defendants violated section 2(c) of the Robinson-Pat-man Act by arranging for Levy to receive various payments and discounts that amounted to sham brokerage fees and commercial bribes. (Am.Compl.Hfl 66-84.) The defendants argue that plaintiffs have not sufficiently alleged sham brokerage fees or commercial bribery. (Distributors’ Mem. at 4 n. 3; Defendant Chas. Levy Circulating Co.’s Mem. of Law in Supp. of its Mot. to Dismiss Pis.’ Am. Compl. Pursuant to Rule 12(b)(6) (“Levy’s Mem.”) at 7-9; Joint Reply Mem. of Law of the National Distributor Defs. in Further Support of Their Mot. to Dismiss Pis.’ Am. Compl. Pursuant to Fed.R.Civ.P. 12(b)(6) at 3-4; Def. Chas. Levy Circulating Co.’s Reply Mem. of Law in Supp. of its Mot. to Dismiss Pis.’ Am. Compl. Pursuant to Rule 12(b)(6) at 4-5.) The Court finds that plaintiffs have not adequately alleged all of the elements of a claim under section 2(c). Section 2(c) prohibits sham brokerage fees, that is, price concessions disguised as payments to alleged brokers who do no brokerage work but simply turn the payments over to buyers. 15 U.S.C. § 13(c); Federal Trade Comm’n v. Henry Brock & Co., 363 U.S. 166, 169, 80 S.Ct. 1158, 4 L.Ed.2d 1124 (1960). Some courts have also construed section 2(c) to prohibit commercial bribery, although this is not a settled question in the Second Circuit. Compare, e.g., Philip Morris, Inc. v. Grinnell Lithographic Co., 67 F.Supp.2d 126 (E.D.N.Y.1999) (prohibits bribery) with Intimate Bookshop, Inc. v. Barnes and Noble, Inc., 88 F.Supp.2d 133 (S.D.N.Y.2000) (applies only to brokerage fees). Plaintiffs’ claim of a violation of section 2(c) apparently rests entirely upon the allegations in one paragraph of the Amended Complaint, which alleges: Upon information and belief, the [Distributors] offered and/or Levy and Hudson News solicited, induced and knowingly received on its [sic] Magazine and Book purchases from the [Distributors] and from the Publishers the following secret Discounts, Rebates and Deductions knowing that they were not being offered or made available to plaintiffs and that such Discounts, Rebates and Deductions were in violation of the Robinson-Patman Act: ;¡í if; sji sf: (r) upon information and belief, Murdoch and the other [Distributors] arranged for additional discounts and payments to or for the benefit of Levy: (1) from Publishers of supertitles being distributed by the respective [Distributors] and other Publishers, given directly to Levy (2) from said Publishers and the [Distributors], given indirectly to Levy through payments to Levy Trucking Company, Levy Book Company or other Levy affiliates; and (8) from brokers or other third persons as brokerage fees or similar payments; in violation of paragraph 2(c) of the Robinson-Patman Act. (Am.Compl^ 74(r).) Subparagraph (3) is conclusory, devoid of facts, and fails to state a claim under section 2(c) of the Robinson-Patman Act. Subparagraphs (1) and (2) are insufficient to allege sham brokerage fees. “The fact that a direct payment or indirect discount passes from one party to another party does not compel the conclusion that the payment or discount violates Section 2(c).” Intimate Bookshop, 88 F.Supp.2d at 140. Yet subparagraphs (1) and (2) allege nothing more. “In order to make out a prima facie Section 2(c) claim, a plaintiff must specifically plead that the payment or discount is in lieu of a brokerage [fee], which the Federal Trade Commission and courts have defined as a reduced or eliminated brokerage.” Id. Plaintiffs do not make this required pleading. The only mention of brokerage is the conclusory statement in subparagraph (3). It is not possible to conclude from the Amended Complaint that the payments described were not genuine brokerage fees “for services rendered in connection with the sale or purchase of goods,” as the Robinson-Patman Act permits. 15 U.S.C. § 13(c). As for commercial bribery, assuming arguendo that it is prohibited under section 2(c), plaintiffs have failed to state a claim. To the extent that section 2(c) prohibits bribery, it prohibits “cases of commercial bribery involving a breach of a fiduciary duty by the buyer’s agent.” Grinnell, 67 F.Supp.2d at 131. For example, the plaintiff in Grinnell alleged that the defendants bribed plaintiffs purchasing manager to buy lithographic services from defendants rather than from defendants’ less expensive competitors. Id. at 128. Plaintiffs here allege nothing of the sort; they allege only payments to Levy or its affiliates. The allegation that a discount or payment passed from one business to another does not implicate bribery involving a breach of fiduciary duty. Thus, even if it is possible to state a claim for commercial bribery under section 2(c), plaintiffs have not done so. Accordingly, plaintiffs’ causes of action under section 2(c) are dismissed. 3. Section 2(f) Plaintiffs allege that Levy violated section 2(f) by knowingly receiving discriminatory prices in violation of other sections of the Robinson-Patman Act. Section 2(f) provides that, “[i]t shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.” 15 U.S.C. § 13(f). Because the Court has already dismissed plaintiffs’ other causes of action under the Robinson-Patman Act, there remains no allegation of any prohibited price discrimination that Levy could have received. Accordingly, this cause of action is dismissed. B. Tying (Count XII) Plaintiffs allege that the Distributors have each engaged in unlawful tying (also referred to as “full-line forcing”) in violation of the Sherman Act, 15 U.S.C. §§ 1, 2, New York’s Donnelly Act, N.Y. Gen. Bus. Law § 340, and Ohio’s Valentine Act, Ohio Rev.Code Ann. § 1331.01 et seq. Specifically, plaintiffs allege that the Distributors required that wholesalers who wished to purchase a quantity of supertitles also purchase other titles sold by the Distributors and unwanted quantities of all titles. (Am. Compl.M 267-268, 270.) Plaintiffs assert that, if given a choice, they would not have purchased the titles other than the superti-tles nor the extra copies of any of the titles. (Am. Compl. ¶ 266; Pis.’ Distributor Mem. at 26-27.) As an initial matter, this Court has previously observed that, “[a]s a prerequisite to any antitrust claim, plaintiff must allege a relevant product market in which the anticompetitive effects of the challenged activity can be assessed.” Carell v. Shubert Org., Inc., 104 F.Supp.2d 236, 264 (S.D.N.Y.2000) (internal quotations omitted). A relevant product market must include all reasonably interchangeable products. This requires consideration of cross-elasticity of demand. Id. “A plaintiffs failure to define its market by reference to the rule of reasonable interchangeability is, standing alone, valid grounds for dismissal.” Id. (quoting Global, 960 F.Supp. at 705) (internal quotations omitted). Here, plaintiffs allege that “[t]he relevant product market is each of the supertitles distributed by the [Distributors], and the relevant product/service market of distribution of the supertitles .... ” (Am.ComplJ 262.) This is an inadequate market allegation. The Amended Complaint fails to make reference to the rule of reasonable interchangeability; it does not expressly define the term “supertitles,” let alone assert a rational explanation of why the relevant markets should be restricted to individual su-pertitles, or even supertitles as a whole. Indeed, with the exception of TV Guide (Am.ComplJ 269), plaintiffs do not even attempt to allege the absence of cross-elasticity of demand. “Courts in this [District have rejected the proposition that allegedly unique products, by virtue of customer preference for that product, are markets unto themselves.” Carell, 104 F.Supp.2d at 265 (market was products related to Broadway shows, not just products related to Cats) (internal quotations omitted); Global, 960 F.Supp. at 704-05 (market was tickets on all airlines, not just tickets on TWA); Theatre Party Assocs., Inc. v. Shubert Org., Inc., 695 F.Supp. 150, 154 (S.D.N.Y.1988) (market was Broadway shows, not just Phantom of the Opera); Frito-Lay, Inc. v. Bachman Co., 659 F.Supp. 1129, 1137 (S.D.N.Y.1986) (market was all salty snacks, not just corn chips); Shaw v. Rolex Watch, USA, Inc., 673 F.Supp. 674, 679 (S.D.N.Y.1987) (market was high quality watches, not just Rolex watches). It is true that the Supreme Court recognized markets for a single brand in Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). That case is distinguishable, however, because it involved circumstances not present here. There, the relevant markets were for parts and services for Kodak photocopiers and micro-graphic equipment. These photocopiers and other machines were expensive to purchase, but had little resale value. Once a customer purchased these machines, it was locked into Kodak parts and service because the hardware and software for those machines was incompatible with equivalent machines made by Kodak’s competitors, and vice-versa. 504 U.S. at 456-57, 112 S.Ct. 2072. In these circumstances, the Supreme Court recognized that parts for Kodak machines were a market unto themselves because there were no reasonably available substitutes, and owners of Kodak machines could not practically replace the machines once they had purchased them. 504 U.S. at 481-82, 112 S.Ct. 2072. Here, the market is for magazines, reasonably inexpensive publications that inherently become outdated within weeks or months. Buying one issue of a particular magazine from a retailer does not in any way lock the customer into that title. See Global, 960 F.Supp. at 705 (consumers not “locked into” airline, soft drink, or television network). Additionally, plaintiffs allege no lack of readily available substitutes for the supertitles. For example, a customer dissatisfied with Time could easily switch the next week to Newsiveek, U.S. News & World Report, or a number of other news magazines. Neither supertitles nor wholesale sales of supertitles constitute a separate market. Accordingly, plaintiffs have failed to properly allege a relevant product market and their tying claim must be dismissed for that reason. Even if the plaintiffs had properly alleged a relevant product market, however, the Court would be compelled to dismiss this cause of action for failure to state a claim for tying. “A tying arrangement is an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product.” Yentsch v. Texaco, Inc., 630 F.2d 46, 56 (2d Cir.1980) (internal quotations omitted). The Second Circuit recently reiterated the elements of a claim for tying that is per se unlawful under the federal antitrust statutes, stating: [a]s to the detailed requirements to state a tying claim- We have required allegations and proof of five specific elements before finding a tie illegal: first, a tying and a tied product; second, evidence of actual coercion by the seller that forced the buyer to accept the tied product; third, sufficient economic power in the tying product market to coerce purchaser acceptance of the tied product; fourth, anticompeti-tive effects in the tied market; and fifth, the involvement of a “not insubstantial” amount of interstate commerce in the “tied” market. Hack v. President and Fellows of Yale Coll., 237 F.3d 81 (2d Cir.2000). Plaintiffs contend that each magazine title, in any quantity, is available from only one distributor. (Am. Compl. ¶¶ 38.G, 46; Pis.’ Distributor Mem. at 25-26.) Accordingly, no competing distributor of the tied products is being prevented from selling the tied products to wholesalers; there are no competing distributors of the tied products. Therefore, there can be no anticom-petitive effects in the tied markets. See Coniglio v. Highwood Servs., Inc., 495 F.2d 1286, 1291-92 (2d Cir.1974) (plaintiffs allegation that Buffalo Bills football team unlawfully tied regular season tickets and preseason tickets failed because all Bills tickets only available from the Bills); Can- call PCS LLC v. Omnipoint Corp., No. 99 Civ. 3395(AGS), 2001 WL 293981, at *4 (S.D.N.Y. Mar. 26, 2001) (hereinafter “Cancall II”) (plaintiffs’ allegation that defendant Omnipoint unlawfully tied air time on its wireless telephone network and handsets compatible with that network failed because handsets and air time on Omnipoint’s network only available from Omnipoint). A required element of the per se tying claim is therefore necessarily absent here. Plaintiffs cannot cure this defect with their contention that, if given a choice, they would not have purchased the non-supertitles nor the extra quantities of any titles. The Supreme Court has ruled that “when a purchaser is ‘forced’ to buy a product he would not have otherwise bought even from another seller in the tied-produet market, there can be no adverse impact on competition because no portion of the market which would otherwise have been available to other sellers has been foreclosed.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 16, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). Since plaintiffs claim that the non-supertitles and the surplus copies of all titles were unwanted, and would not have been purchased at all, no competition in the market for those tied products was foreclosed. See id.; Gonzalez v. St. Margaret’s House Dev. Fund., 880 F.2d 1514, 1518 (2d Cir.1989) (doubtful that competition was foreclosed in tied market where, absent compelled link between housing and prepared meals, residents of housing development would probably not have purchased prepared meals at all); Yentsch, 630 F.2d at 57-58 (unlikely that there were anticom-petitive effects in the tied market where testimony suggested that, absent compulsion, plaintiff would not have purchased tied products at all). Accordingly, plaintiffs fail to state a per se tying claim. Plaintiffs also fail to state a tying claim under the Rule of Reason. “The Rule of Reason requires, among other things, an adverse effect on competition in the relevant market.” Cancall II, 2001 WL 293981, at *5 (citing Vermont Mobile Home Owners’ Ass’n, Inc. v. Lapierre, No. 2:97-CV-209, 2001 WL 137583, at *3 (D.Vt. Feb. 1, 2001) and Audell, 903 F.Supp. at 371-72.) As set forth above, there are no anticompetitive effects on competition in the markets for any magazine titles or for any quantities of any magazine title, or in the market for distribution of such titles. The requirements of the Rule of Reason are therefore not satisfied. In sum, the Amended Complaint fails to state a claim for unlawful tying because its allegations demonstrate an absence of anticompetitive effects in the markets for the tied products. Accordingly, the Court dismisses plaintiffs’ cause of action for alleged unlawful tying. C. Predatory Pricing (Count XIII) Plaintiffs allege that the Distributors and Levy violated sections 1 and 2 of the Sherman Act, and the Valentine Act, by engaging in a conspiracy in which Levy charged certain retailers predatory (i.e. below cost) prices in order to drive plaintiffs out of business. (Am.Compl.1ffl 282-306.) The defendants argue, on multiple grounds, that plaintiffs have failed to state a claim. (Distributors’ Mem. at 18-20.) The Court finds that this cause of action must be dismissed because plaintiffs’ have failed to state a claim under section 1 or section 2 of the Sherman Act. The first problem is, again, market definition. Although Count XIII refers primarily to sales of magazines to, and by, “Major Retailers” (Am.Compl.lffl 283, 285, 287, 291-94, 300-01), plaintiffs argue in their memo-randa that four markets are at issue. (Pl.’s Mem. in Opp. to Def. Chas. Levy Circulating Co.’s Mot. to Dismiss Pis.’ Am. Compl. Pursuant to Rule 12(b)(6) (“Pis.’ Levy Mem.”) at 21; Pis.’ Distributor Mem. at 29.) Two of these markets, “each of the Magazine supertitles distributed by the respective [Distributors]” (Am. Comply 38.J(ii)) and “distribution of the Magazine supertitles” (Am. Comply 38.J(iii)) are deficient for the reasons set forth in Section IV.B, supra. A third alleged market, “Magazine distribution through the checkout counters of Major Retailers” (Am.Compl^ 38.J(iv)) is also deficient. While a particular method of distributing a product may constitute a distinct market, a plaintiff seeking to establish such a market must allege that “enough customers do not view other methods of distribution as viable substitutes to the distribution method in question.” Pepsico, Inc. v. Coca-Cola Co., No.98 Civ. 3282(LAP), 1998 WL 547088, at *8 (S.D.N.Y. Aug. 27, 1998). To establish a market consisting solely of retail sales of Magazines through checkout counters of large retailers, plaintiffs would have to allege that a sufficient number of retail customers view other retail sales, such as retail sales at small retailers or newsstands, as inadequate substitutes. Plaintiffs make no such allegations. The only product or service markets that appear to be adequately alleged, then, are the distribution market and the wholesale market for publications. (Am.ComplY 38.J(i).) As to the geographic component of the markets, plaintiffs allege that the relevant area consists of those territories in which plaintiffs, Levy, and non-party wholesaler Hudson News, conducted wholesale sales. (Am.ComplJ 38.J.) Hudson News’ territory appears irrelevant because Hudson News’ conduct is not at issue here. As to the territories in which plaintiffs did business, as noted previously, plaintiffs must distinguish among themselves as to their different territories. Assuming that plaintiffs have alleged markets consisting of magazine and book sales by distributors to wholesalers, or by wholesalers to retailers, in the geographic areas where each plaintiff and Levy did business, plaintiffs have failed to allege all of the elements required to assert a claim under section 1 or section 2 of the Sherman Act. 1. Section 1 Section 1 prohibits, among other things, conspiracies in restraint of trade. 15 U.S.C. § 1. A conspiracy to engage in predatory pricing would be barred under section 1. As this Court has previously ruled, however, where the facts alleged in a complaint demonstrate that an alleged predatory pricing conspiracy makes no economic sense, the cause of action must be dismissed. Cancall I, 2000 WL 272309, at *7 n. 4 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Cancall I is similar to the instant action in this respect. In Cancall I, defendants Ericsson, Siemens, and Nortel manufactured handsets for use on defendant Omnipoint’s wireless telephone network. Those handsets were sold exclusively to Omnipoint, which resold them to consumers and to other businesses, such as plaintiff Cancall, that also resold the handsets to consumers. Id. at *1. Since defendants were the exclusive source of handsets, and Cancall could only obtain handsets through the defendants, “predatory pricing to eliminate [Cancall] from that market [was] entirely unnecessary in order to charge supracompetitive prices.” Id. at *7 n. 4. Accordingly, the Court dismissed the predatory pricing claim. Id. The same is true here with respect to the Distributors. Plaintiffs are not competing distributors. Rather, as plaintiffs allege, the Distributors are plaintiffs’ exclusive source of supertitles and other magazines and books. It is entirely unnecessary for the Distributors to engage in predatory pricing in order to charge Plaintiffs supracompetitive prices or put plaintiffs out of business. In opposition to this line of reasoning, plaintiffs offer two arguments. First, they contend that driving plaintiffs out of business through predatory pricing saves the Distributors the costs of either properly terminating plaintiffs or arranging a buyout of plaintiffs by another wholesaler. First, as set forth in Section V.A., infra, there are no enforceable contracts between plaintiffs and the Distributors; accordingly, the Distributors could terminate plaintiffs at will, with no costs. Second, even if the Distributors were required to give plaintiffs notice of termination, doing so would impose no costs on the Distributors. The only costs alleged are the costs of performing the contracts for an additional time. However, plaintiffs specifically allege that they bear all of the costs of distribution. (Am.CompLIHI 46-55.) Thus, an additional period of performance would impose no costs on the Distributors. Third, plaintiffs do not allege any contractual requirement that the Distributors arrange a buyout of a terminated wholesaler. They allege only an industry custom. (Am.Compl.lffl 61-61A.) The Distributors could simply ignore such a custom. Thus, predatory pricing remains completely unnecessary. Plaintiffs second argument is that the Distributors conspired to engage in predatory pricing to effectuate a scheme whereby Murdoch would become the sole wholesaler in the nation. This argument suffers from the same defect as the preceding one. Even if the Distributors wished to engage in the alleged scheme to make Murdoch the nation’s only wholesaler, predatory pricing would be completely unnecessary. As set forth in the preceding paragraph, the Distributors could simply terminate plaintiffs and all of the other wholesalers, and then establish Murdoch as the sole wholesaler. Since, under any theory, plaintiffs alleged conspiracy to engage in predatory pricing is entirely unnecessary and makes no economic sense, plaintiffs fail to state a claim under section 1. Accordingly, the Court dismisses this cause of action. 2. Section 2 Plaintiffs’ section 2 cause of action fares no better. Section 2 prohibits monopolization or attempted monopolization. 15 U.S.C. § 2. A section 2 plaintiff must allege that the defendant has, or has a dangerous probability of obtaining, a monopoly in the relevant market. See Irvin Indus., Inc. v. Goodyear Aerospace Corp., 974 F.2d 241, 244 (2d Cir.1992) (monopolization claim requires, among other things, “monopoly power in the relevant market”); Kelco Disposal, Inc. v. Browning-Ferris Indus., 845, F.2d 404, 407 (2d Cir.1988) (attempted monopolization claim requires, among other things, dangerous probability of obtaining monopoly power). As for actual monopoly power, plaintiffs admit that Levy does not currently have monopoly power. (Tr. at 32.) As for the possibility of acquiring monopoly power, plaintiffs alleged that, beginning in 1995, the exclusive territorial system was replaced with a system whereby wholesalers bid for the right to supply magazines and books to large retailers. (Am.Compl.1ffl 62-64.) Plaintiffs also alleged that Levy obtained contracts with one or more large retailers for certain periods of time. (Am. ComplJ 291.) This does not establish that Levy will obtain a monopoly, only that it was the winning bidder for certain customers for certain times. In fact, the allegations regarding the establishment of a bidding system suggest that Levy is unlikely to have a monopoly, as it will have to compete against other wholesalers. The Court also notes that plaintiffs never allege Levy’s market share in any relevant geographic market. There is no basis for finding a dangerous probability of monopolization by Levy. Plaintiffs arg-ue in the alternative that the Distributors together have a monopoly in the distribution of magazines. Sales by distributors to wholesalers, however, constitute a separate market from sales by wholesalers to retailers. Thus, the Distributors’ monopoly power upstream, in the distribution market, has no legal significance with respect to the wholesale market. See H.L. Hayden Co. v. Siemens Med. Sys., Inc., 879 F.2d 1005 (2d Cir.1989) (industry concentration at supplier level of distribution chain irrelevant to claim of attempted monopolization at dealer level). Moreover, the Court has already dismissed plaintiffs’ conspiracy claim. Even if the Court had not dismissed the conspiracy claim, the alleged result of the conspiracy would be the destruction of Levy. (Am.Compl.1ffl 300-03.) If Levy were soon to be destroyed by the Distributors, there would be no risk that Levy will obtain a monopoly in the wholesale market. Plaintiffs’ own allegations demonstrate the absence of a required element of their section 2 cause of action. Accordingly, this cause of action is dismissed. V. PLAINTIFFS’ NON-ANTITRUST CLAIMS In addition to the antitrust claims described above, plaintiffs assert a variety of claims under state law, both statutory and common law. In this section, the Court addresses these non-antitrust claims. A. Breach of Contract by the Distributors (Count II) Plaintiffs allege that by allowing Levy and other wholesalers to sell magazines and books to retailers in plaintiffs’ various territories, the Distributors breached their contracts with plaintiffs. (Am. Compilé 96-121.) The Distributors argue that this claim must be dismissed because the Statute of Frauds bars enforcement of the alleged contracts between the Distributors and plaintiffs. (Distributors’ Mem. at 9-11.) The Court finds that the Statute of Frauds bars enforcement of the alleged contracts. Both sides address this count under New York law, without reference to any applicable choice of law issues. Accordingly, the Court assumes that New York law applies to any contracts between the Distributors and plaintiffs. Under New York law, the Statute of Frauds generally requires that a contract be evidenced by a writing signed by the party against whom enforcement is sought. N.Y. Gen. Oblig. Law § 5-701(a); N.Y. U.C.C. § 2-201(1). The Amended Complaint does not allege a writing evidencing the contracts that have allegedly been signed by any of the Distributors. Accordingly, unless the contracts fall within one of the exceptions to the Statute of Frauds, this cause of action must be dismissed. Plaintiffs first argue that then-contracts are exempt from the General Obligation Law’s Statute of Frauds because the contracts were capable of completion within one year. (Pis.’ Distributor Mem. at 10.) It is clear, however, that a contract of indefinite term is capable of performance within a year only if there is an express provision for termination prior to the end of a year. “The New York cases uniformly hold that implied termination terms are not sufficient to take an oral contract out of the statute.” Burke v. Bevona, 866 F.2d 532, 538 (2d Cir.1989); see also D & N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 483 N.Y.S.2d 164, 472 N.E.2d 992, 995 (1984) (“As this court early explained, ‘termination is not performance, but rather the destruction of the contract where there is no provision authorizing either of the parties to terminate as a matter of right.’ ”) Plaintiffs do not allege that their contracts with the Distributors contained express termination provisions, but only implied termination provisions. (Am.Compl^ 100.) Since no express term was ever alleged, the contracts are for an indefinite duration and so not capable of performance within one year. See D & N Boening, 483 N.Y.S.2d 164, 472 N.E.2d at 995. The alleged contracts are thus barred by § 5-701. Additionally, even if the contracts had express termination provisions, they were not capable of being performed within one year. Plaintiffs allege that the distribution cycles for magazines lasted 4-6 months for weekly magazines and 6 months for monthly magazines. (Am. Comply 100.1, 100.J.) A contract could not be terminated with respect to a distribution cycle that had already begun. (Id. ¶ 100.K.) Plaintiffs further assert that both sides had to perform certain activities for 6 to 8 months after termination. (Pis.’ Distributor Mem. at 10; Pis.’ Levy Mem. at 7.) Thus, to terminate a contract for distribution of a monthly magazine, a Distributor would have to give notice of termination more than six months in advance (so as not to terminate a distribution cycle in progress) and then perform for at least six months after the cycle terminated. The contracts could not, then, be performed within one year. Accordingly, § 5-701 bars enforcement of the contracts. U.C.C. § 2-201, the U.C.C. Statute of Frauds, also bars enforcement of the contracts if it applies. Plaintiffs contend that § 2-201 does not apply to distribution contracts (Pis. Distributor Mem. at 10-11.) New York courts are split on this issue. Compare Huntington Dental & Medical Co. v. Minnesota Mining and Mfg. Co., No. 95 Civ. 10959(JFK), 1998 WL 60954, at *4 (S.D.N.Y. Feb. 13, 1998) (2-201 applies) and Wallach Marine Corp. v. Donzi Marine Corp., 675 F.Supp. 838, 840 (S.D.N.Y.1987) (same) and United Beer Distrib. Co. v. Hiram Walker (N.Y.) Inc., 163 A.D.2d 79, 557 N.Y.S.2d 336, 337-38 (1990) (same) with Paper Corp. v. Schoeller Tech. Papers, 773 F.Supp. 632, 636-37 (S.D.N.Y.1991) (2-201 does not apply) and Zimmer-Masiello, Inc. v. Zimmer, Inc., 159 A.D.2d 363, 552 N.Y.S.2d 935 (1990) (applying Gen. Oblig. Law. § 5-701 without consideration of § 2-201). Plaintiffs argue that, if § 2-201 applies, their contracts with the Distributors fall under the “merchant’s exception” to § 2-201. (Pis.’ Distributor Mem. at 11-14.) The merchant’s exception provides that, “[b]etween merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.” N.Y. U.C.C. § 2-201(2). Plaintiffs assert that a confirmatory writing under § 2-201(2) is “sufficient for the entire oral agreement to be taken out of the 2-201 Statute of Frauds.” (Pis.’ Distributor Mem. at 12 (citing Bazak Int’l Corp. v. Mast Indus., 73 N.Y.2d 113, 538 N.Y.S.2d 503, 535 N.E.2d 633, 633-34 (1989) (emphasis added).)) Plaintiffs contend that because they sent the Distributors certain affidavits attesting to proper disposal of returned publications, the merchant’s exception is satisfied as to the distributorship contracts in their entirety. (Pis.’ Distributor Mem. at 12-14.) Bazalc does not, however, establish that an entire oral agreement for an exclusive territorial distributorship is outside the Statute of Frauds if there is a writing confirming sale of particular goods. Bazak concerned a contract for the one-time sale of certain textiles. 538 N.Y.S.2d 503, 535 N.E.2d at 634. The Bazak Court never considered whether confirmatory writings as to a particular shipment of goods established a distributorship agreement of indefinite duration for an exclusive territory. A court that did consider that issue ruled that such writings do not establish a distributorship agreement, but only the sale of the goods in question. United Beer, 557 N.Y.S.2d at 337-338. The Court agrees, and finds that the alleged affidavits referring to particular shipments of magazines are insufficient to satisfy the merchant’s exception. Plaintiffs also argue that their performance of the contracts takes the contracts out of the Statute of Frauds. (Pis.’ Distributor Mem. at 15.) Plaintiffs apparently rely here upon N.Y. U.C.C. § 2-201(3)(c). The plain language of this provision makes clear, however, that it only removes a contract from the Statute of Frauds to the extent that goods have been either paid for or received and accepted. N.Y. U.C.C. § 2 — 201(3)(c); N.Y. U.C.C. § 2-201, cmt. 2. As such, § 2-201(3)(c) cannot be used to establish a distributorship agreement. Section 2-201 thus bars enforcement of the contracts if it applies. For the reasons set forth above, the Statute of Frauds bars enforcement of plaintiffs’ alleged contracts with the Distributors. Accordingly, plaintiffs’ cause of action against the Distributors for breach of contract is dismissed. B. Breach of the Covenant of Good Faith and Fair Dealing by the Distributors (Count II) Plaintiffs allege that the Distributors breached the distribution contracts’ implied covenants of good faith and fair dealing. (Am.Compl.1ffl 122-135.) A cause of action for breach of this implied covenant, however, is dependent upon the existence of an enforceable contract. Kreiss v. McCown DeLeeuw & Co., 37 F.Supp.2d 294, 301 (S.D.N.Y.1999) (“no implied duty of good faith and fair dealing may attach to an unenforceable contract”); American-European Art Assocs., Inc. v. Trend Galleries, Inc., 227 A.D.2d 170, 641 N.Y.S.2d 835, 836 (1996) (cause of action for breach of implied covenant of good faith and fair dealing “properly dismissed for lack of a valid and binding contract from which such a duty would arise”). For the reasons set forth in Section V.A., supra, plaintiffs have failed to allege a valid contract. Accordingly, this cause of action is dismissed. C. Promissory Estoppel Against the Distributors (Count III) Plaintiffs allege, in the alternative to their breach of contract claim against the Distributors, that the Distributors were promissorily estopped from taking away plaintiffs’ exclusive territories. (Am. Compl.lffl 136-149.) The Distributors argue that this claim must be dismissed because plaintiffs have not alleged unconscionable injury. (Distributors’ Mem. at 12-13.) The Court finds that this cause of action is barred by the Statute of Frauds and a lack of unconscionable injury. The parties only address this cause of action under New York law; accordingly, the Court assumes that New York law applies. A claim for promissory estoppel may not be maintained under New York law where the alternative claim for breach of contract is barred by the Statute of Frauds, unless the circumstances make it unconscionable to deny the promise upon which the plaintiff relied. Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 826 (2d Cir.1994); Philo Smith & Co. v. USLIFE Corp., 554 F.2d 34, 36 (2d Cir.1977); D & N Boening, Inc. v. Kirsch Beverages, Inc., 99 A.D.2d 522, 471 N.Y.S.2d 299, 302 (1984), aff'd 63 N.Y.2d 449, 483 N.Y.S.2d 164, 472 N.E.2d 992 (1984); Swerdloff v. Mobil Oil Corp., 74 A.D.2d 258, 427 N.Y.S.2d 266, 269-70 (1980). Unconscionable injury for these purposes is “injury beyond that which flows naturally ... from the non-performance of the unenforceable agreement.” Merex, 29 F.3d at 826. Plaintiffs argue that they suffered unconscionable injury because the Distributors’ failure to give them proper notice left plaintiffs with incurred costs, for matters such as vehicles, employment contracts, and real estate contracts, expenses that they could not reduce to match their reduced income (as they would have if given proper notice). (Pis.’ Distributor Mem. at 16-17.) The facts alleged here are substantially similar to those in Boening. In that case, the plaintiff had, in 1955, entered into an oral agreement to become the prime distributor of a defendant’s beverage for as long the plaintiff satisfactorily performed. In 1982, new management at the defendant terminated the plaintiffs distributorship. 471 N.Y.S.2d at 300. After dismissing plaintiffs breach of contract claim under the Statute of Frauds, the court addressed the promissory estoppel claim. The court found no unconscionable injury even though plaintiff alleged that, in reliance upon defendant’s promise, it had invested considerable amounts of money in plant and capital equipment, increased its payroll, structured its growth around defendant’s beverage, and forgone other business opportunities. Id. at 302. The court stated: [i]n sum, this is not a case where a promisee was induced to act upon an unfulfilled promise. It is clear that both sides to the agreement herein continued to perform and derive benefits for almost three decades before the agreement was terminated. In our view, such circumstances are not so egregious as to render unconscionable the assertion of the Statute of Frauds. Id.; see also North Am. Knitting Mills, Inc. v. International Women’s Apparel, Inc., No. 99 Civ. 4643(LAP), 2000 WL 1290608, at *3 (S.D.N.Y. Sept. 12, 2000); Paper Corp. v. Schoeller Tech. Papers, Inc., 724 F.Supp. 110, 118-19 (S.D.N.Y.1989). So too here. Plaintiffs and the Distributors operated for decades under oral agreements for plaintiffs to act as exclusive wholesalers for particular publications in particular areas. Both plaintiffs and the Distributors profited under this arrangement for many years. The fact that the Distributors eventually stopped performing under the oral agreements, to plaintiffs’ financial detriment, is not unconscionable. Indeed, the loss of money invested in the business over the years is precisely the injury that flows naturally from the non-performance of an oral agreement to grant an exclusive wholesale territory until notice of termination is given. Because plaintiffs have failed to show unconscionable injury, their cause of action for promissory estoppel is dismissed. D. Violation of the New York Franchise Sales Act by the Distributors (Count IV) Plaintiffs allege that the Distributors are franchisors and that plaintiffs are franchisees, but that the Distributors did not comply with the requirements of the New York Franchise Sales Act, N.Y. Gen. Bus. Law § 680 et seq. (Am. Compl.lffl 150-177.) The Distributors argue that their relationships with plaintiffs did not fall within the scope of the Franchise Sales Act (Distributors’ Mem. at 13-16), and that, in any event, any claim by the plaintiffs under the Franchise Sales Act is time-barred. (Id. at 17-18.) The Court finds that, even assuming the Franchise Sales Act applies to the relationship between the Distributors and plaintiffs, any claim thereunder is barred by the statute of limitations. The Franchise Sales Act has a three year statute of limitations. N.Y. Gen. Bus. Law § 691(4). Courts applying this provision have ruled that the limitations period begins to run when the the franchise contract is entered into, and that continuous violations do not toll the statute of limitations. 6100 Cleveland, Inc. v. Staff Builders Int’l, Inc., 127 F.Supp.2d 877, 884-85 (N.D.Ohio 1999); Zaro Licensing, Inc. v. Cinmar, Inc., 779 F.Supp. 276, 287 (S.D.N.Y.1991); Leung v. Lotus Ride, Inc., 198 A.D.2d 155, 604 N.Y.S.2d 65, 67 (1993); Fantastic Enter., Inc. v. S.M.R. Enter., Inc., 143 Misc.2d 124, 540 N.Y.S.2d 131, 134 (1988). But cf. Keeney v. Kemper Nat’l Ins. Cos., 960 F.Supp. 617, 625 (E.D.N.Y.1997) (declining to follow Zaro or otherwise decide when statute of limitations began to run; cause of action dismissed on other grounds). Plaintiffs’ agreement with each Distributor was entered into in 1981. (Am.ComplY 152). Plaintiffs’ original complaint was not filed until 2000. Accordingly, this claim is untimely. Plaintiffs argue that changes to their alleged franchise agreements created entirely new agreements or restarted the limitations period in some other fashion. (Pis.’ Distributor Mem. at 20-21.) Plaintiffs do not, however, cite any authority in support of this argument. The Court concludes, consistent with the majority of the cases cited above, that the statute of limitations begins to run at the time that the parties first enter into the franchise agreement. Accordingly, the Court dismisses plaintiffs’ cause of action for breach of the New York Franchise Sales Act as untimely. E. Inducing Breach of Contract or Interference with Advantageous Business Relationship By Levy (Count V) Plaintiffs allege that Levy tortiously interfered with their contracts or business relationships with the Distributors by causing the Distributors to violate plaintiffs’ exclusive territories and permit Levy to sell to retailers in plaintiffs’ territories. (Am.Compl.Hf 178-184.) Levy argues that its activities constituted permissible competition. (Levy’s Mem. at 9-12.) The Court finds that Levy’s alleged actions were not tortious under New York or Ohio law. The parties address this issue under New York and Ohio law. Because the result is the same under either, the Court will discuss both. First, plaintiffs’ cause of action for inducing breach of contract must be dismissed because the Court has already found that the Statute of Frauds precludes enforcement of the contracts between plaintiffs and the Distributors. See Herman & Beinin v. Greenhaus, 258 A.D.2d 260, 685 N.Y.S.2d 41, 41 (1999) (New York law); Allied Sheet Metal Works, Inc. v. Kerby Saunders, Inc., 206 A.D.2d 166, 619 N.Y.S.2d 260, 265 (1994) (same); Bell v. Horton, 113 Ohio App.3d 363, 680 N.E.2d 1272, 1274 (1996) (Ohio law). Plaintiffs’ cause of action for tortious interference with advantageous business relationships must also be dismissed. To state a claim for tortious interference with advantageous business relationships under New York law, a plaintiff must allege that the defendant interfered with an existing business relationship between the plaintiff and a third party, either for the sole purpose of harming the plaintiff or by wrongful means. See Hannex Corp. v. GMI, Inc., 140 F.3d 194