Full opinion text
MEMORANDUM BAYLSON, District Judge. I. Jurisdiction, Procedural Background, and Summary Plaintiff Harrison Aire, Inc., an owner and operator of hot air balloons, filed this action on March 12, 2002, alleging that Defendants Aerostar International, Inc. and Raven Industries, Inc. (Aerostar’s corporate parent) operated their hot air balloon business in violation of Sections 1 and 2 of the federal antitrust laws. 15 U.S.C. §§ 1 & 2. Plaintiff also makes state law allegations of fraud and negligence. This Court has jurisdiction over Plaintiffs claims under 28 U.S.C. §§ 1331, 1332, and 1337 and 15 U.S.C. § 15. Venue is proper under 28 U.S.C. § 1391(b). Presently before the Court is Defendants’ Motion for Summary Judgment (Docket No. 12). The Court held oral argument on January 27, 2004, and the parties submitted supplemental briefs on April 2, 2004. Defendants move for summary judgment on three grounds. For the reasons which follow, Defendants’ motion will be granted, and the Court summarizes its rulings as follows: One: Defendants’ contention that Plaintiffs antitrust claim is barred by the four-year statute of limitations applicable to antitrust claims is rejected as presenting an issue of fact. {See infra pp. 202-203.) Two: Defendants claim that summary judgment is warranted upon application of implied immunity to Plaintiffs antitrust claims is rejected as a matter of law. (See infra pp. 205-206.) Three: Defendants argue that Plaintiff cannot succeed in proving the requisite elements for its antitrust, fraud, or negligence claims, thus justifying summary judgment against Plaintiff. The Court concludes that Plaintiff has not adduced sufficient facts to warrant a trial on its antitrust claims and the Court will grant summary judgment for Defendants, as to Counts I and II. {See infra pp. 213-224.) II. Factual Background A. Description of Parties and Ballooning Industry Plaintiff Harrison Aire, Inc. is a New Jersey corporation in the business of providing commercial balloon hot air rides, aircraft maintenance, and pilot training for hot air balloons and fixed wing aircraft. (Defs.’ Undisputed Facts ¶2.) Its sole owner and proprietor is Terry Harrison. Defendant Aerostar International, Inc. is a hot air balloon manufacturer located in South Dakota. Aerostar International is a wholly owned subsidiary of Raven Industries. Raven Industries preceded Aerostar International in the manufacture of hot air balloons, but formed Aerostar International in 1986 for the purposes of undertaking the hot air balloon aspect of the company’s business. (Id. ¶ 6.) Raven Industries has not manufactured hot air balloons since February 1986; rather, Aerostar International, as its wholly owned subsidiary, has fulfilled that role. (CompU 14.) During the 1970s and 1980s, Harrison Aire purchased hot air balloons for its flight operations from Raven Industries, and subsequently from Aerostar Industries. Hot air balloons are comprised of three principal components: the basket (which contains the balloon’s instruments and occupants); the fuel and heater system (which produces the hot air); and the envelope (which contains the hot air). (Comply 10.) With use and age, balloon envelopes deteriorate, with the top hemisphere of the envelope deteriorating much more quickly than the lower hemisphere. (Id. ¶ 12.) After approximately 300-500 hours of use (actual mileage may vary), because of this deterioration, at least the upper portion of the envelope must be replaced in order to continue piloting safely. (Id.) This replacement typically extends the life of the envelope for another 200-300 hours. (Id.) In general, replacement of the fabric in the upper hemisphere of the envelope is significantly less costly than replacement of the entire envelope. Because of design and wear patterns, replacement of up to 80% of the envelope fabric (somewhat more than the top half of the envelope) is generally most practical and economical. (Id. ¶ 13.) B. Federal Regulations Applicable to Hot Air Ballooning At the heart of this case are issues regarding replacement fabrics for the envelope for Raven/Aerostar hot air balloons. Although these issues were present in the 1980s, the present case centers on events beginning in late 1995 or early 1996. Plaintiff needed to buy replacement fabric for one of its Raven/Aerostar balloons, and believed the balloon’s accompanying manual restricted its abilities to purchase replacement fabric. The plaintiff contends that the defendants issued fraudulent statements that purportedly required the users and owners of Defendants’ hot air balloons to buy replacement fabric from the defendants, whose fabric was more expensive than third-party fabric. The defendants, on the other hand, assert that federal regulations did require that owners of Raven/Aerostar hot air balloons had to purchase replacement fabric from either Defendants or a limited number of entities that made replacement fabric in satisfaction of Defendants’ standards. Thus, in understanding the regulatory parameters of this case, the Court first sets out the federal regulations at issue. 1. Manufacturer-Provided Instructions for Balloon Owners: Instructions for Continued Airworthiness and Airworthiness Limitations Section Ballooning in the United States is regulated by the Federal Aviation Administration, which has promulgated regulations— the Federal Aviation Regulations or the Federal Rules of Aviation (“FARs”) — that apply inter alia to the replacement of balloon envelope fabric. The regulations generally require that major balloon repairs, such as the replacement of significant areas of envelope fabric, be performed by a repairman or mechanic certified by the FAA. Since 1980, FAA regulations require balloon manufacturers to publish a maintenance manual for their product; this manual is known as “Instructions for Continued Airworthiness” (“ICA”). 14 C.F.R. § 31.82. Section 31.82 provides: The applicant must prepare Instructions for Continued Airworthiness in accordance with Appendix A to this part that are acceptable to the Administrator. The instructions may be incomplete at type certification if a program exists to ensure their completion prior to delivery of the first balloon or issuance of a standard certificate of airworthiness, whichever occurs later. Id. A hot air balloon manufacturer must provide this model-specific ICA to each purchaser of its product. 14 C.F.R. § 21.50. Section 21.50 provides in pertinent part: (b) The holder of a design approval, including either the type certificate or supplemental type certificate for an aircraft ... shall furnish at least one set of complete Instructions for Continued Airworthiness, prepared in accordance with [§ 31.82] to the owner of each type of aircraft ... upon its delivery, or upon issuance of the first standard airworthiness certificate for the affected aircraft, whichever occurs later, and thereafter make those instructions available to any other person required by this chapter to comply with any of the terms of these instructions. Id. Generally, the maintenance standards and procedures specified in the ICA are permissive in nature (“FAA accepted”) in that maintenance personnel may substitute other “FAA accepted” maintenance standards and procedures. 14 C.F.R. § 43.13. Section 43.13 provides in relevant part: (a) Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in § f3.16.... (b) Each person maintaining or altering, or performing preventive maintenance, shall do that work in such a manner and use materials of such a quality, that the condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition Id. (emphasis added). However, if a manufacturer or the FAA chooses to require a particular maintenance standard or procedure, that particular standard or procedure must be published in a separate and distinct portion of the ICA, known as the Airworthiness Limitations Section (“ALS”). Part A31.4 of Appendix A to Part 31 — Instructions for Continued Airworthiness defines the ALS portion and specifies how the manufacturer should present the ALS to the balloon owner. Part A31.4 reads: The Instructions for Continued Airworthiness must contain a section titled Airworthiness Limitations that is segregated and clearly distinguishable from the rest of the document. This section must set forth each mandatory replacement time, structural inspection interval, and related structural inspection procedure, including envelope structural integrity, required for type certification. If the Instructions for Continued Airworthiness consist of multiple documents, the section required by this paragraph must be included in the principal manual. This section must contain a legible statement in a prominent location that reads: “The Airworthiness Limitations section is FAA approved and specifies maintenance required under §§ 4-3.16 and 91403 of the Federal Aviation Regulations. ” Id. (emphasis added). In contrast to an ICA’s maintenance standards, which may be replaced by other “FAA accepted” maintenance procedures, maintenance personnel are required to adhere strictly to the provisions of an Airworthiness Limitations Section, if one exists. 14 C.F.R. § 43.16. Section 43.16 states in relevant part, “Each person performing an inspection or other maintenance specified in an Airworthiness Limitations section of a manufacturer’s maintenance manual or Instructions for Continued Airworthiness shall perform the inspection or other maintenance in accordance with that section ....’’Id. 2. Replacement Parts for Hot Air Balloons The FAA also has instituted a regulatory scheme that governs the manufacture and sale of replacement parts. When the FAA approves an aircraft, it issues a type certificate under Part 23 of its regulations. 14 C.F.R §§ 21.11-21.53. For example, as a type certificate would be for the whole aircraft (e.g., Waligunda Dep., Pl.’s Ex. F, at 21), Defendants would hold the type certificate for each of their separate hot air balloon designs. The FAA must also approve modifications to a particular aircraft, whether designed by the original manufacturer or a third-party, after which the FAA issues a supplemental type certificate (“STC”). 14 C.F.R. § 21.113. An STC would enable its holder to manufacture a component or a part for a balloon system, e.g., a balloon envelope. (Waligunda Dep., Pl.’s Ex. F, at 20; DiGiovanni Dep., Pl.’s Ex. B, at 26-27.) Any person, in addition to the original manufacturer, may petition the FAA for a Parts Manufacturer Approval (“PMA”), which allows the holder to manufacture and sell specific replacement parts directly to aircraft owners. 14 C.F.R. § 21.303 (“[N]o person may produce a modification or replacement part for sale for installation on a type certificated product unless it is produced pursuant to a Parts Manufacturer Approval ....”). A PMA covers a part, such as the balloon fabric itself. (Waligunda Dep., Pl.’s Ex. F, at 21; DiGiovanni Dep., Pl.’s Ex. C, at 27-28.) The Court concludes that the regulatory language makes clear the FAA has created a mechanism by which third-parties can be approved to manufacture and sell replacement parts for hot air balloons. The FARs do not mandate that replacement fabric has to be of the same manufacture as the balloon, nor could any manufacturer impose such a requirement in their ICAs, given that the ICAs need not be followed strictly by their owners. The Court presumes that were a hot air balloon manufacturer to place such restrictions in its ALS, which is not the case here, the balloon’s owner then would be obligated to follow that language. In this case, Defendants’ ICA purportedly implied that only replacement parts approved for use by Raven/Aerostar could be used in repairing Raven/Aerostar hot air balloons. As stated above, there is no requirement in the FARs that replacement envelope material be tested in accordance with the manufacturer’s standards. In fact, before Defendants even published their ICA, the FAA already had set forth its own standards for strength and safety, 14 C.F.R. §§ 31.21-31.27, which must be met by all manufacturers and replacement parts manufacturers, including holders of STCs and PMAs. As the parties have not submitted copies of Defendants’ ALS and as the parties have focused their arguments on perceptions surrounding Defendants’ ICA, the Court presumes that any and all allegedly offensive, restrictive language is contained in the ICA and that there are no restrictions on third-party fabric whatsoever in Defendants’ ALS. C. Chronology of Events 1. Plaintiffs Business Harrison Aire is a corporation which derives its income from selling hot air balloon rides to members of the general public. (Harrison Dep., Defs.’ Ex. B, at 28.) In the late 1970s, Mr. Harrison purchased his first Raven-made balloon. (Harrison Dep., Pl.’s Ex. H, at 154.) In 1986, he purchased the “Big Ride” balloon from Defendants. (Actuarial-Economic Consultants Report, Pl.’s Ex. A, at 2.) Since 1986, Plaintiff has had five or six conversations with Defendants’ agents about the language in their ICAs restricting third-party fabric, and each time Defendants responded with the same “buy our fabric” answer. (Harrison Dep., Pl.’s Ex. H, at 159-61.) In the late 1980s, having considered the venture, Mr. Harrison decided not to enter the replacement fabric business himself. (Harrison Dep., Defs.’ Ex. D & Pl.’s Ex. I, at 48-49.) Plaintiffs “Big Ride” balloon needed repairs to its envelope in 1995, which would have extended the life expectancy of the balloon another ten years. (Pl.’s Undisputed Facts, ¶ 8; Defs.’ Undisputed Facts ¶ 8.) Plaintiff earlier had stockpiled sufficient amounts of Defendants’ balloon fabric (purchased at 50% of cost from Raven/Aerostar distributors) for use when any of his balloon envelopes became unairwor-thy (Defs.’ Undisputed Facts ¶ 7), but had exhausted his stockpiled resources when his “Big Ride” balloon required repairs. (Id. ¶ 8; Harrison Dep., Defs.’ Ex. B, at 112-13.) Plaintiff claims it could not afford to purchase Defendants’ fabric at this time, and instead investigated buying less-expensive third-party parts. (Harrison Dep., Defs.’ Ex. C, at 35; Harrison Dep., Defs.’ Ex. D, at 67.) According to Robert Waligunda, a former Raven/Aerostar distributor, Defendants’ fabric was more expensive than any other fabric on the market. (Waligunda Dep., Pl.’s Ex. F, at 67.) Plaintiff long had criticized Defendants’ ICA for purportedly implying that only replacement parts approved for use by Raven/Aerostar could be used in repairing Raven/Aerostar hot air balloons. In meetings with Defendants and their representatives, Mr. Harrison frequently inquired whether this policy had changed and was repeatedly informed that Defendants’ stance remained firm. Regarding Plaintiffs interaction with Raven in particular, Mr. Harrison’s deposition proceeded as follows: Q. What was your particular complaint to Raven then if you didn’t believe it was misleading? What was your particular complaint? A. The complaint was if — if the manufacturer is providing or a supplier is providing the same material to Raven, and it’s available directly at half the cost to someone else, same fabric, and the same factory is saying, “We make it for Raven, and the same specs coming off the same mills, the same run, the same colors and everything. We’ll provide it to you directly.” Q. Would it be — go ahead. You finish. A. And Raven said, “No. You can’t do that.” Q. Did you ever get any resolution of that issue that you took with Raven from Raven? A. No. (Harrison Dep., PL’s Ex. H, at 157-58.) Regarding Plaintiffs interaction with Ae-rostar in particular, Mr. Harrison’s deposition proceeded as follows: Q. When you received your first Aeros-tar manual, did it have the same type of provision regarding replacement fabric that you complained about with Raven? A. Yes. Q. Do you remember what your specific complaint to [Aerostar] was? A. I had two or three items, maintenance items that I wanted to discuss that I was having problems with. Then when I brought those items up, I just want to see if their position was still the same on the fabric.... So there’s probably been through the years five or six conversations that I had over other things, and at the end I always said, “By the way, has your position on fabrics changed?” Q. And the answer was? A. “As long as you buy the fabric, we don’t care what you do,” basically. The emphasis, “buy the fabric.” Q. In any event, is it fair to say that you registered the complaint with Ae-rostar at its inception or shortly thereafter, within a year or two, that you did with Raven and didn’t get any change A. Correct. Q. Okay. And that particular complaint, and correct me if I’m wrong, but the particular complaint was that the manual required you to purchase fabric from Aerostar or Raven before it and only Aerostar or Raven before it? A. Correct. (Id. at 159-62.) In 1995, there were only three possible purveyors for fabric sales: Defendants (the manufacturer); Custom Nine Designs, run by Ronald DiGiovanni; and Head Balloons; these were the only lawful market options available to Harrison Aire. (Defs.’ Undisputed Facts ¶¶ 9-10.) Mr. Harrison met with Mr. DiGiovanni in 1995 or 1996 to discuss purchasing replacement fabric for Plaintiffs Raven/Aerostar balloons. (Id. ¶ 11.) Plaintiff decided not to purchase Mr. DiGiovanni’s fabric — which was “much cheaper” than Defendants’ own (Waligunda Dep., Pl.’s Ex. F, at 28)— concluding that any purchase would conflict with the Defendants’ ICA restrictions on third-party fabric, even though Plaintiff knew the FAA had certified Mr. DiGiovan-ni to produce and sell Raven/Aerostar fabric. (Defs.’ Undisputed Facts ¶¶ 12-14; Harrison Dep., Defs.’ Ex. B, at 124-28.) Mr. Harrison provided two reasons for not purchasing Mr. DiGiovanni’s fabric, notwithstanding Mr. DiGiovanni’s apparent FAA authorization to sell the replacement parts: One, that Mr. DiGiovanni could not confirm that his fabric was “equal to or better” than Defendants’ fabric, as Mr. Harrison believed Defendants’ manual required (Harrison Dep., Defs.’ Ex. B, at 127); and two, that Mr. DiGiovanni was involved in a “bait and switch” ruse in which he had secured FAA approval with one product, but then switched the product with a substandard “knock off,” selling the shoddy substitute to unknowing, less discerning customers (Harrison Dep., Defs.’ Ex. D, at 36-37). Without replacement fabric, Plaintiff retired the “Big Ride” balloon in 1996, never to use it again commercially (Defs.’ Undisputed Facts ¶ 17), and Plaintiff seeks damages for the alleged inability to use it, due to Defendants’ misconduct. In 2001 or 2002, Plaintiff noticed that the Defendants’ manual specifically allowed for third-party replacement fabric, mentioning only that STC holders (but not PMA holders) may repair Raven/Aerostar hot air balloons. (Pl.’s Undisputed Facts ¶ 35.) 2. Defendants’ Business Defendants manufacture and sell hot air balloons, cold air inflatables, helium inflatables, remote control blimps, inflatable costumes and mascots, and specialty sewn products, http://www.aerostar.com. In 1981, Raven first made replacement fabric specifically for a competitor’s balloon. (Waligunda Dep., Pl.’s Ex. F, at 11.) In 1982, Raven introduced new language into its balloon owners’ manual that required owners either to buy replacement fabric from Raven itself or to secure Raven’s approval in advance if purchasing third-party fabric. (Waligunda Dep., Pl.’s Ex. F, at 18-19.) Plaintiff complained to Raven, some time before 1986, about the ICA language. (Harrison Dep., Pl.’s Ex. H, at 156-58.) Raven formed Aerostar International in 1986 for the purposes of taking over the hot air balloon aspect of Raven’s business. Raven Industries has not manufactured hot air balloons since February 1986; rather, Aerostar International, as its wholly owned subsidiary, has fulfilled that role. (Comply 14.) After the inception of Aerostar, the Defendants’ ICA language read as follows: WARNING Only fabric which has been tested and approved according to AEROSTAR (Raven) factory standards may be used for repair of AEROSTAR (Raven) envelopes. Failure to comply with this requirement constitutes a departure from type design and renders the balloon unairworthy. (Defs.’ Supplemental Ex. B.) In 1998, Defendants revised the language in their ICAs. (West Aff. of Nov. 2003 ¶ 9.) In 1998, the ICA language read as follows, in pertinent part: 6.0 STANDARD PROCEDURES FOR REPAIR AND REPLACEMENT WARNING Improper repairs will render the aircraft unairworthy until repaired properly. # * sfc ‡ Likewise, repair/replacement materials must be obtained from Aerostar to be considered a “certified part”. In the event that repair materials are obtained, the supplying company or the repair station performing the repair must act to “certify” the material and part as equal to or better than the original equipment. 6.1.2 Fabric Repair and Replacement WARNING Only fabric which has been tested and approved according to AEROS-TAR (Raven) factory standards may be used for repair of AEROSTAR (Raven) envelopes. Failure to comply with this requirement constitutes a departure from type design and renders the balloon unairwor-thy. Note Fabric replacement is normally limited to 35% of the surface area of the envelope within a period of 100 flight hours or one year, (whichever comes first), except for additional minor patches and repairs. Deviation from this procedure up to 65% total fabric replacement may be approved after consultation with the AEROSTAR (Raven) factory. Such extensive replacement may only be undertaken if approved in writing by AEROSTAR (Raven). To protect the integrity of manufacturers’ type designs, “100% rebuilding” of balloon envelopes is expressly prohibited according to FAR 43.13. FOR APPROVAL TO REPLACE MORE THAN 35% OF THE ENVELOPE FABRIC, please contact: Dee M. Rose Aerostar International, Inc. Customer Service 1812 “E” Avenue, PO Box 5057 Sioux Falls, SD 57117-5057 605/331-3500 Fax 605/331-2547 (Defs.’ Supplemental Ex. C.) According to Plaintiff, Defendants again changed their ICA language in 2001, removing the language that required Defendants’ permission before replacing more than 35% of the envelope fabric and the “WARNING” that failure to use fabric which has been tested and approved according to Aerostar factory standards would make the balloon unairworthy. (PL’s Mem. Opp’n Summ. J. at 13.) 3. Braden’s Balloons and Ronald Di-Giovanni In 1996, Braden’s Balloons Aloft, Inc., an FAA-approved repair station, replaced between 54% and 64% of a Raven/Aerostar balloon’s envelope fabric with material from Custom Nine Designs without first obtaining Defendants’ written permission. In re Braden’s Balloons Aloft, Inc., FAA Docket No. CP99SWO037, at *1 (July 26, 2000) (Defs.’ Ex. O) [hereinafter Braden’s Balloons ]. The FAA prosecuted Braden’s in an administrative civil penalty action, on the theory that Braden’s had violated various regulations by failing to follow Defendants’ ICA requirement that maintenance personnel secure written permission before performing the replacement. Even though Mr. DiGiovanni, President of Custom Nine Designs, has no formal legal training, Mr. DiGiovanni represented Bra-den’s in the administrative action. The Administrative Law Judge dismissed the FAA’s complaint, concluding that the FAA had failed to allege facts that, if proved, would have established the elements of the violations of the FARs with which Braden’s had been cited. For example, the FAA complained that Bra-den’s failed to comply with Defendants’ ICA by replacing the envelope fabric without Defendants’ permission, but the FAA had failed to allege that Braden’s replaced the fabric in a manner not otherwise acceptable to the FAA, a fatal pleading defect considering that procedures listed in a balloon’s ICA (unlike those in the balloon’s ALS) may be substituted for other FAA-accepted methods. Braden’s Balloons, supra, at *6. In his opinion supporting dismissal, the ALJ observed: [T]he Complaint lists an alleged violation of FAR § 43.16. This section requires that, if one performs an inspection or maintenance specified in an Airworthiness Limitations section of a manufacturer’s maintenance manual or Instructions for Continued Airworthiness, such an inspection or maintenance must conform to that Airworthiness Limitations section. Thus, unless the requirement that Braden’s receive written permission for the extensive envelope repair it performed on N57199, is contained in the Airworthiness Limitations section of the maintenance manual or Instructions Continued Airworthiness promulgated by Aerostar (Raven), Braden’s would not be required to comply with such a requirement. The Complaint does not state whether or not such a requirement is contained in the Airworthiness Limitations section of the maintenance manual or the Instructions for Continued Airworthiness. It merely states that such a requirement is a part of the Instructions for Continued Airworthiness, without making clear, one way or another, whether it is specifically located in the Airworthiness Limitations Section. The difference is important, as whether it is required or not hinges on its location. If located within the Airworthiness Limitations section, it is approved by the Administrator and a person performing an inspection or maintenance must follow its prescription. See 14 C.F.R. Part 31, App. A, § A31.4. However, if not located within the Airworthiness Limitations’ section, the inspection and maintenance information is only accepted by the Administrator, and there is no requirement to follow the manufacturer’s instructions. A deviation from those instructions will not result in a violation in § 43.16 so long as the inspection or maintenance falls under the “other methods, techniques, and practices acceptable to the Administrator” language of FAR § 43.13(a). Because the Complaint fails to specifically allege that the requirement, that Braden’s consult with Aerostar (Raven) prior to performing the fabric replacement, is found in the Airworthiness Limitations section of the Aerostar (Raven) Instructions for Continued Airworthiness, this claim must also fail. (Braden’s Balloons, supra, at *7-8) (emphasis removed). Defendants downplay the relevance and applicability of Braden’s Balloons to the instant case by referring to Braden’s Balloons as an “irrelevant,” “unrelated, insignificant administrative action.” (Defs.’ Reply Br. at 5 & n. 2.) While the Court recognizes that the ALJ dismissed the case for defects within the pleadings, it is important to note the distinction which the ALJ made between the mandatory Airworthiness Limitations Section (ALS), and the Instructions for Continued Airworthiness, which may be substituted by alternate methods, techniques, and practices acceptable to the Administrator. As explained below, this distinction is of great relevance to the claims and issues presented in this case. Mr. DiGiovanni had taken it upon himself to inform the ballooning community of the case’s result and of his interpretation of the case’s precedential value, most notably through his privately maintained website, http://home.earthlink.net/~aironon, which chronicles the Braden’s Balloons saga. In a September 7, 2000 response to Mr. DiGiovanni’s trumpeting, Defendants made the following representation in a letter to Raven/Aerostar owners: We are extremely concerned with the recent mailing which claims that the ruling in FAA v. Bradens “effectively nullifies the Aerostar Instructions for Continued Airworthiness manual.” This is patently false and seems to suggest ignoring the Airworthiness Manual which would pose possible significant risk to balloon owners, operators and passengers. The ruling in this case was, simply, that the FAA had not met the correct technical pleading requirements in its complaint and, accordingly, the complaint was dismissed. The ruling .did not nullify the Aerostar Instructions for Continued Airworthiness manual and we urge you to follow the procedures contained in the manual as well as all applicable FAA rules and directives. We have been in contact with various offices within the FAA and have their full agreement, based on the FAR’s and the requirements within the FAA Type Certificate Data Sheet that “all inspections, repairs, and replacements must be accomplished in accordance with the latest issue of Aerostar Instructions for Continued Airworthiness.” (PL’s Mem. Opp’n Summ. J. at 14-15, emphasis removed; also available at http://home.earthlink.net/~airo-ron/new_page_80.htm.) According to Plaintiff, Mr. Harrison has testified that he did not realize he was not required to use Aerostar fabric until Mr. DiGiovanni told him about the result in Braden’s Balloons. (PL’s Undisputed Facts ¶ 84.) According to Plaintiff, Defendants changed their ICA language in 2001, removing the language that required Defendants’ permission before replacing more than 35% of the envelope fabric and the “WARNING” that failure to use fabric which has been tested and approved according to Aerostar factory standards would make the balloon unairworthy. (Id. at 13.) Plaintiff suggests that Defendants undertook these revisions at the stern request of the FAA, supposedly “stung by the result in Braden’s ” and “prodded unmercifully by Custom Nine.” (Id., citing Michalik Dep., PL’s Ex. D, at 72.) III. Plaintiffs Allegations Plaintiff brings four counts against Defendants (Antitrust — Monopolization; Antitrust — Tying Arrangement; Fraud; and Negligence). As stated above, Plaintiff is a corporation that derives its income from selling hot air balloon rides to the public. Plaintiff alleges that Raven Industries consciously developed and implemented several schemes to deceive balloon owners and to convince them that federal law required the exclusive use of Raven Industries fabric in the repair and replacement of hot air balloon envelopes originally purchased from Raven. (Compl. ¶ 19; see also Waligunda Dep., PL’s Ex. F, at 24-25.) Plaintiff alleges that after its incorporation, Aerostar International assumed continued responsibility for implementing and maintaining the original schemes, with the full knowledge, participation, and consent of the directors and officers of Raven, its parent corporation. (Comply 19.) As a direct and proximate result of Defendants’ behavior (to be detailed below), Plaintiff claims it could not afford to purchase replacement envelope fabric directly from Defendants for one of its hot air balloons — its “big ride” balloon — and was therefore unable to utilize that particular balloon commercially after 1996. (Id. ¶ 28.) Plaintiff apparently could have afforded to replace the envelope fabric had Plaintiff thought it was permitted to use third-party fabric, and Plaintiff contends that it would have indeed purchased the third-party fabric if the defendants had not implemented the scheme described above. (Id. ¶ 29.) Plaintiff claims economic losses totaling $35,000 per year (at least) from 1996 continuing through the present. (Id. ¶ 30; Actuarial-Economic Consultants Report, Pl.’s Ex. A.) A. Defendants’ Alleged Schemes In its complaint, Plaintiff describes three schemes purportedly undertaken by Defendants that constitute a violation of federal antitrust law. 1. Scheme One According to Plaintiff, Raven Industries officers expressed their interest and desire in controlling the replacement fabric market at various meetings between Raven Industries and its distributors during the 1980s. At one meeting, shortly before Raven Industries created Aerostar International, Raven Industries officers allegedly advised the attendees, among whom was at least one distributor, that its maintenance manual (“Instructions for Continued Airworthiness” or “ICA”) would be changed in order to control the replacement fabric market. (Compl. ¶ 20.B; see also Waligunda Dep., Pl.’s Ex. F, at 14-19.) Plaintiff avers that Raven Industries deliberately inserted language into its ICA that appeared to require balloon owners either to use only Raven/Aerostar replacement fabric or to secure Raven/Aerostar approval before obtaining replacement fabric elsewhere. Plaintiff contends that at this meeting, at least one distributor in attendance raised concerns that the proposed manual language would run afoul of federal antitrust laws, and that Raven Industries officers replied that the inserted language would simply “imply” that federal regulations required the owners to use Raven replacement fabric. (Compl. ¶ 20.C; see also Waligunda Dep., Pl.’s Ex. F, at 23-25.) These officers allegedly told the attendees that because the inserted language appeared in the ICA (which would not require strict compliance), and not in the Airworthiness Limitations Section (which would have required strict compliance), there would be no actual antitrust violation. (Id.) Plaintiff claims that this scheme was implemented in 1986, ten days after the incorporation of Aerostar International. As stated above, Section 43.13 of the FARs requires that with limited exceptions, all repairs of any type be performed consistent with the ICA. That is, according to this FAR, a hot air balloon repairman should follow the methods listed in the manufacturer’s ICA or an alternative method acceptable to the FAA. 14 C.F.R. § 43.13. Furthermore, this FAR directs a hot air balloon repairman to use materials that equal or surpass the manufacturer-supplied originals in order to create a (repaired) balloon that will be at least equal to its original condition. Id. The parties do not dispute that the FAA has regulated the repairs of hot air balloons. (Tr. at 18.) What the parties do dispute, and what centrally defines Plaintiffs action against Defendants, is whether Defendants acted appropriately in 1993 and 1995 (see supra pp. 14-16 and notes 7 & 13) by inserting language that required Raven/Aerostar balloon owners either to use Defendants’ own fabric in repairs or to secure Defendants’ written permission before using third-party fabric. According to Plaintiff, nothing in the FARs requires a balloon owner to use the manufacturer’s own fabric in repairs or to secure the manufacturer’s written approval before using third-party fabric. (ComplJ 20.F.) Plaintiff criticizes Defendants’ WARNING language, which specified that, under penalty of unairworthiness, Raven/Aerostar factory standards were to be applied when testing third-party fabric, especially since the FAA regulations provide separate standards for strength and safety, 14 C.F.R. §§ 31.21-31.27, which must be met by all manufacturers and replacement parts manufacturers, including holders of STCs and PMAs. Plaintiff further contends that Defendants inserted language that appeared to require, at penalty of violation of law, that owners get specific approval from Defendants in advance before replacing more than 35% of envelope fabric, and which prohibited replacement of more than 65% of envelope fabric without the defendants’ approval. (ComplJ 20.E.) Plaintiff alleges that Defendants had arranged the language in such a manner, and with such authority, that it reasonably appeared to balloon owners that federal law and regulations required compliance with these restrictions on envelope fabric replacement. (Id. ¶ 20.G.) According to Plaintiff, Defendants purposely misled Mr. Harrison — and, by implication, all other Raven/Aerostar balloon owners (see, e.g., Waligunda Dep., PL’s Ex. F, at 25) — regarding his rights and alternatives on the matter of repairing envelope fabric for Raven/Aerostar balloons. Plaintiff contends that in practice, and in furtherance of the foregoing scheme, Defendants refused to approve any replacement that did not utilize Raven/Aerostar fabric. (Compl ¶ 20.H.) In order to reinforce its deception of fabric purchasers, Defendants allegedly contacted FAA officials and persuaded them to initiate the administrative prosecution of a certified repairman (Bra-den’s Balloons Aloft, Inc.), who had failed to obtain Defendants’ pre-approval before replacing more than 35% of a balloon envelope’s fabric. (Id. ¶ 20.1.) 2. Schemes Two and Three Next, as Plaintiff contends, in order to deal with balloon owners and repairmen not fooled by the foregoing scheme, Defendants’ manuals required that third-party fabric be subjected to highly-destructive “tear testing” before the fabric could be used as replacement fabric on Defendants’ balloons; this fabric was later subjected to the same testing procedure annually. (Id. ¶ 20.J.) Defendants allegedly did not require their own fabric to undergo such testing until it had nearly reached the end of its useful life. (Id.) Because the test procedure required that relatively large pieces of fabric be removed for testing and then replaced, both the labor costs involved and the resulting unsightly patches in the envelope deterred owners and repairmen from using third-party fabric, and increased the probability that Aerostar International fabric would be used in the replacement process. (Id.) Third, in order to discourage balloon owners from purchasing third-party fabric, Defendants allegedly defamed at least one third-party manufacturer (Custom Nine Designs, Inc.) by publishing an article in their newsletter reporting fabric strength tests purportedly demonstrating that Custom Nine Designs fabric was unsuitable for use in Raven/Aerostar envelopes. (Id. ¶ 20.K.) Plaintiff contends that Defendants knew their article was untrue and that Defendants refused to retract or correct the story even when its falsity was brought to their attention. (Id.) The parties have not developed their contentions regarding Schemes Two and Three in the summary judgment context. Plaintiff does not even explain how these acts would constitute antitrust violations. Therefore, for purposes of this Memorandum, the Court mentions these schemes in the interest of describing Plaintiffs allegations in the entirety, but will focus predominantly on Scheme One, finding that the parties have largely ignored Schemes Two and Three. B. Plaintiffs Counts Against Defendants 1.Count One: Antitrust — Monopolization Plaintiff asserts that Defendants possessed monopoly power in the Raven/Ae-rostar hot air balloon replacement fabric market in the United States. (Comply 32.) In the alternative, even if Defendants had not actually possessed monopoly power in the relevant market, their acts were intended as an attempt to monopolize the Raven/Aerostar envelope replacement fabric market. (Id. ¶ 34.) Defendants’ alleged acts supposedly constituted impermissible exclusionary practices under Section 2 of the Sherman Act, practices which were designed by Defendants to strengthen and to perpetuate their monopoly position. According to Plaintiff, Defendants’ acts directly and proximately restrained trade, and directly and proximately caused Plaintiffs damages. 2. Count Two: Antitrust — Tying Arrangement According to Plaintiff, Defendants possessed monopoly power in the market for the tying product (i.e., hot air balloons) and used this monopoly power to restrain trade in the tied product (i.e., replacement fabric for balloon envelopes). (ComplJ 38.) This alleged tying arrangement supposedly substantially affected — ■ and continues to affect — interstate commerce. (Id. ¶ 39.) Defendants’ acts, as alleged, directly and proximately restrained trade, and directly and proximately caused Plaintiffs damages. (Id. ¶¶ 40, 42.) 3. Count Three: Fraud Defendants allegedly intended that Plaintiff and all other Aerostar International balloon owners rely upon these supposed misrepresentations. (Comply 44.) Plaintiff contends that it justifiably relied upon these misrepresentations, and that its damages were a direct and proximate result of its justifiable reliance upon the misrepresentations. (Id. ¶¶ 45 — 46.) Additionally, as represented by Plaintiff, Defendants’ conduct was outrageous and warrants the imposition of punitive damages. (Id. ¶ 47.) 4. Count Four: Negligence Plaintiff alleges that Defendants’ conduct was negligent and that its damages were a direct and proximate result of said negligence. (Compl.lffl 49-50.) IV. Defendants’ Motion for Summary Judgment Defendants have moved for summary judgment. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “material” if it might affect the outcome of the case under governing law. Id. A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. CelOtex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party’s initial burden can be met simply by “pointing out to the district court that there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Defendants move for summary judgment on three grounds. One: Defendants contend that Plaintiffs antitrust claim is barred by the four-year statute of limitations applicable to antitrust claims. Two: Defendants claim that summary judgment is warranted upon application of implied immunity to Plaintiffs antitrust claims. Three: Defendants argue that Plaintiff cannot succeed in proving the requisite elements for its antitrust, fraud, or negligence claims, thus justifying summary judgment against Plaintiff. The Court will discuss these arguments seriatim. A. First Argument: Statute of Limitations 1. Parties’ Contentions A plaintiffs claim is viable under the federal antitrust provisions only if suit is “commenced within four years after the cause of action accrued,” 15 U.S.C. § 15(b), plus any additional number of years during which the statute of limitations is tolled. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiffs business. Id. According to Defendants, the four-year limitations period commenced in 1996 when Plaintiffs “big ride” balloon was no longer in service and its commercial losses began to accrue. Defendants note that Plaintiff did not file its complaint until March 2002, almost six years beyond the time Plaintiff claims to have first suffered a loss. Moreover, Defendants contend that Plaintiffs actual knowledge about the source of any losses — i.e., the “restrictive” manual — well predated the retirement of the big ride balloon. Defendants state that Mr. Harrison repeatedly expressed his complaints about the Raven/Aerostar language in the 1970s, 1980s, and 1990s, and contend that Mr. Harrison should not now be heard regarding damages that would have begun accruing in 1995 and 1996. Further, Defendants argue that given his 1995-1996 visit with its competitor for replacement fabric, Custom Nine Designs, Inc. and Mr. Harrison’s general familiarity with the FARs, Plaintiff clearly knew or should have known its legal avenues for fabric replacement as set forth within the FARs. Defendants emphasize that Mr. Harrison testified that in the late 1980s, he contemplated going into business as a manufacturer of replacement fabric, but did not do so, at least in part due to the allegedly restrictive language within Defendants’ ICA. Mr. Harrison opted not to pursue that venture believing that he could not effectively compete with Defendants for business. (Harrison Dep., Defs.’ Ex. D & PL’s Ex. I, at 48-49.) With Mr. Harrison’s longstanding knowledge of Defendants’ stance on replacement fabric, Defendants contend that Plaintiffs Complaint — filed more than six years after the retirement of the big ride balloon and decades after his complaints and aborted enterprise — must be dismissed as untimely. Moreover, Mr. Harrison conceded that certain language in Aerostar’s ICA indicates that balloon owners could purchase replacement fabric from third-party sources provided that the third-party held an STC or a PMA, and Mr. Harrison testified that such language would imply that third-party fabric, if so certified, was acceptable. (Harrison Dep., Defs.’ Ex. B & Pl.’s Ex. H, at 164-65.) While Mr. Harrison stated that he did not first notice this language until 2003, Defendants argue that such language had been printed in their ICA as early as 1993, thus placing Mr. Harrison on constructive notice since that time. Defendants conclude that Mr. Harrison had everything necessary to pursue his claim in 1996. Plaintiff alleges that Defendants engaged in fraudulent misrepresentation; to succeed on this claim, Plaintiff must demonstrate that Defendants fraudulently concealed their own unlawful activities and that Plaintiff did not discover these facts despite the exercise of due diligence. E.g., In re Linerboard Antitrust Litig., 203 F.R.D. 197 (E.D.Pa.2001). Plaintiff claims that equitable tolling applies and would have extended Plaintiffs deadline for suit past its original date. Defendants disagree, arguing that Plaintiffs pre-existing knowledge of the allegedly wrongful conduct defeats its attempt to establish equitable tolling. Defendants also emphasize that Plaintiff failed to exercise any form of due diligence to pursue the alleged wrong. Plaintiff supposedly did nothing between 1996 and 2002 to pursue its legal remedies following the loss of use of his “big ride” balloon and his alleged inability to have it repaired, notwithstanding his longstanding complaints about the manufacturers’ language, notwithstanding changes in the Ae-rostar ICA which alerted the owner to the validity of other replacements, and notwithstanding Mr. Harrison’s knowledge of, and access to, the federal regulations that govern this field. Defendants claim there were no efforts to seek redress with calls to the manufacturer, no calls to the FAA, no independent research, no calls for any form of legal representation or advice. Defendants also argue that Plaintiff cannot display any active conduct by the Defendants which would reveal fraudulent concealment or an intention to mislead. Defendants contend that Plaintiff cannot cite one conversation with the defendants, one passage of deposition testimony, one document, or any other evidence that bespeaks fraudulent intentions. 2. Analysis Generally, a cause of action accrues— and the statute of limitations begins to run — when a defendant commits an act that injures a plaintiff. In the context of a continuing antitrust violation, each time a plaintiff is injured by the act of the defendant, a cause of action accrues to the plaintiff to recover damages caused by that act. However, a suit may be brought more than four years after the events that initially created the cause of action if the defendant commits “an act that by its very nature constitutes a ‘continuing antitrust violation.’ ” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 n. 2, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). An act constitutes a “continuing antitrust violation” if it injures the plaintiff over a period of time. See Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 5, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). Antitrust law provides that in the case of a continuing antitrust violation each overt act that is part of the violation and that injures the plaintiff, “starts the statutory period running again, regardless of the plaintiffs knowledge of the alleged illegality at much earlier times.” Klehr v. A.O. Smith Corp., 521 U.S. 179, 189, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997); see also Hanover Shoe, 392 U.S. at 502, 88 S.Ct. 2224. In re Linerboard Antitrust Litig., MDL No. 1261, 2000 WL 1475559, at *4, 2000 U.S. Dist. LEXIS 14433, at *16-17 (E.D.J.Pa. Oct. 5, 2000). [A] new cause of action may arise from later overt acts in furtherance of a challenged conspiracy or from each injury resulting from a continuing violation. However, to trigger a new cycle of the limitations period, the overt act must specifically affect the plaintiff and not be merely a continuation of the conspiracy. If the plaintiff suffered injury at the beginning of the continuing conspiracy but not thereafter, the plaintiff may not enjoy the benefits of an extended limitations period. ABA Section of Antitrust Law, AntitRust Law Developments 893-94 (5th ed.2002) (footnotes omitted) [hereinafter ABA Antitrust]. Defendants thoroughly chronicle Plaintiffs actions since the 1970s that potentially indicate Plaintiffs longstanding-awareness of any allegedly offensive behavior, and Defendants essentially argue that Plaintiffs claim should not be considered timely considering its decades-old knowledge of the offending behavior and overall inactivity until only recently. (Harrison Dep., Defs.’ Ex. B & Pl.’s Ex. H, at 150-54, 156-58, 159-62; Harrison Dep., Defs.’ Ex. D & PL’s Ex. I, at 43-44, 46, 47-48.) Defendants claim that in 1993, their ICA first alerted balloon owners that they could purchase third-party replacement fabric instead of directly from Raven/Aerostar. Therefore, even though Mr. Harrison testified that he had not read this language until 2003, Defendants argue that Plaintiff had been on notice of its expanded alternatives for nearly ten years before filing this suit. In 1993, a portion of the relevant ICA language read, “[R]epair/re-placement materials must be obtained from Aerostar to be considered a ‘certified part’. In the event that repair materials are obtained, the supplying company or the repair station performing the repair must act to ‘certify’ the material and part as equal to or better than the original equipment.” (Defs.’ Supplemental Ex. C.) The Court cannot conclude that this language necessarily placed Raven/Aerostar balloon owners on notice that they could purchase third-party replacement fabric, given that the first and second sentences appear to contradict each other. As Defendants point out, balloon owners are notified that third-party fabric must be certified before use, thus indicating that third-party fabric is acceptable material; however, the preceding sentence states that only materials supplied by Defendants are considered certified. Given that the Court must give the benefit of the doubt to Plaintiff, as the non-moving party, the Court cannot conclude as a matter of law that this language placed Plaintiff and other Raven/Aerostar balloon owners on notice regarding their ability to purchase third-party fabric. Here, Plaintiff has presented facts that Defendants’ predatory acts continued unabated through 2001, at which time Defendants changed the ICA language. According to Plaintiff, it has been harmed by Defendants’ antitrust activity continuously until the ICA change, because the company has lost income which it otherwise would have earned had Plaintiff repaired its most profitable balloon. It is undisputed between the parties that the written change allegedly removing the language offensive to Plaintiff occurred in 2001. Given that Plaintiff filed the instant suit less than four years following Defendants’ rewriting of the ICA, there is an issue of fact for trial as to whether the applicable statute of limitations had expired. In light of case law such as Linerboard and Klehr, supra, which held that, in the context of a continuing antitrust violation, each overt act starts the statutory period running again “regardless of the plaintiffs knowledge of the alleged illegality at much earlier times,” Linerboard, 2000 WL 1475559; at *4, 2000 U.S. Dist. LEXIS 14433, at *17, even though Plaintiff might have realized that it suffered injury each year, assuming Plaintiff filed this case within four years of its last alleged injury, its case is timely and the statute of limitations will not bar these claims from continuing. The Court cannot resolve this issue as a matter of law at this time. Thus, summary judgment will be denied on these grounds. B. Second Argument: Implied Immunity 1. Parties’ Contentions The doctrine of implied immunity arises where an alleged violator of the law has acted pursuant to congressional or regulatory authority that conflicts with conduct alleged to be in violation of the antitrust laws. See generally ABA Antitrust, supra, , at 1238-40. Because the hot air balloon industry is heavily regulated, Defendants argue that their actions and activities undertaken pursuant to congressional or regulatory authority should be entitled to implied immunity from the federal antitrust laws. Defendants assert they developed their ICAs jointly with the FAA, as they were obligated to do by operation of FAA guidelines, and each successive year after this initial acceptance by the FAA, the ICA remained subject to FAA oversight. In developing and maintaining their ICAs pursuant to the direct obligation imposed by the FAA, and having worked both with and under the direction of the FAA in creating their ICAs, Defendants contend that they cannot now be held liable in antitrust. At a minimum, Defendants claim they had a reasonable belief that their actions vis-a-vis Plaintiff were appropriate if not necessary in complying with regulatory and administrative mandates, confirmed by the FAA itself. According to Defendants, to hold them accountable in antitrust would subject them to severe liability for conduct they took in order to ensure aviation safety for hot air ballooning. 2. Analysis This case features the friction that occasionally arises when Congress establishes a regulatory regime which appears inconsistent with the vigorous competition also mandated by Congressional statutes. An express exemption to antitrust liability exists wherever Congress explicitly states that the antitrust laws will not apply to the conduct authorized by the legislation, either in general, or under the specific circumstances enumerated in the legislation. See generally ABA ANTITRUST, supra, at 1238. By contrast, where a Congressional statute mandates certain behavior, but omits to exempt the behavior expressly from the purview of the antitrust laws, an exemption might need to be implied in order to preserve Congress’s regulatory intentions. Id. In this case, where the relevant statutes contain no express exemption, Defendants argue that this Court should find that the regulations that mandated their conduct, now challenged by Plaintiff contain an implied exemption that would insulate Defendants’ behavior from antitrust liability. Defendants have a heavy burden to prove an implied immunity. “Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system.” United States v. Nat’l Ass’n of Sec. Dealers, Inc., 422 U.S. 694, 719, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975); see also United States v. Phila. Nat’l Bank, 374 U.S. 321, 348, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). Implied antitrust immunity is restricted only to the activity challenged, and will not extend to conduct otherwise overseen by the regulatory agency. See generally ABA Antitrust, supra, at 1238. In conformance with these principles, while the Supreme Court has recognized implied immunity from certain prosecutions under the antitrust laws, the Court has steadfastly held that the Federal Aviation Act does not completely displace the antitrust laws. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 387, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Pan Am. World Airways, Inc. v. United States, 371 U.S. 296, 305, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963). Whether Defendants are entitled to implied antitrust immunity because they developed, drafted, and promulgated their ICAs in conjunction with the FAA appears to be a matter of first impression. Only where Congress has invested pervasive supervisory authority in a regulatory agency should a court conclude that Congress intended to ease liability under the Sherman Act. See, e.g., Nat’l Ass’n, supra. The Court concludes that Defendants have not established a sufficiently coherent and pervasive theory of regulation, nor do they document any congressional intent that companies in the balloon industry are immune from antitrust litigation by virtue of collaboration with the FAA in drafting and promulgating their ICAs. a. Federal Regulations Applicable to Hot Air Ballooning As discussed above in Section II.B, there are numerous federal regulations that apply inter alia to the manufacture and sale of both hot air balloons and replacement parts. To summarize, balloon manufacturers are required to distribute to their customers ICAs, which are model-specific maintenance manuals that detail standards and procedures to be used during maintenance, alteration, or preventive maintenance of the aircraft. These methods or practices generally may be substituted by other maintenance methods or practices acceptable to the FAA. The ICA might contain a segregated section of additional techniques, known as the ALS, from which maintenance personnel may not deviate. Replacement parts may be manufactured and sold by the aircraft’s original manufacturer or by a third-party that holds either an STC or PMA, documents which indicate that the FAA has approved the third-party’s product. However, these regulations did not require the conduct which Plaintiff contends violated the antitrust laws: for example, no federal regulation requires that a hot air balloon owner first secure the original manufacturer’s permission to use third-party fabric before repairing the balloon envelope. It appears clear from the record that although Defendants’ ICA implied that only Defendants-approved replacement parts could be used, there is no requirement in the FARs that replacement envelope material be tested in accordance with the manufacturer’s standards. In fact, the FAA has set forth its own standards for strength and safety, 14 C.F.R. §§ 31.21-31.27, which must be met by all manufacturers and replacement parts manufacturers, including holders of STCs and PMAs. Thus the Court concludes that both Plaintiff and Defendants have overstated the case. The regulations do not require the defendants to do what they did, and what Plaintiff claims is unlawful under the antitrus