Full opinion text
OPINION LEWIS A. KAPLAN, District Judge. Table of Contents Facts..........................................................................337 The Parties................................................................337 Immigration Services.......................................................337 The Background of the Dispute..............................................338 This Lawsuit..............................................................338 The Antitrust Claims .................................................338 The Motion for Summary Judgment....................................339 1. The Theory of the Motion .........................................339 (a) The Section 2 Claims..........................................339 (b) The Section 1 Claims..........................................340 2. The Evidence....................................................340 3. Emigra’s Response...............................................341 (a) The DuPuis Declaration .......................................341 (b) The Flyer Declaration.........................................342 Discussion......................................................................343 I. The Law Governing Summary Judgment................................344 A. General Principles................................................344 B. S.D.N.Y. Civ. R. 56.1..............................................347 II. The Section 1 Claims .................................................348 A. Intra-enterprise Conspiracy.......................................348 B. Vertical Restraint................................................350 III. Monopolization and Attempted Monopolization — Relevant Markets..........351 A. Cluster Markets..................................................352 B. The Brown Shoe Criteria..........................................355 1. Industry or Public Recognition .................................356 2. Special Characteristics and Uses................................356 3. Distinct Customers............................................358 4. Distinct Prices................................................358 5. Sensitivity to Price Changes....................................358 6. Specialized Vendors...........................................359 C. Conclusion — Market Definition.....................................359 IV. Monopolization and Attempted Monopolization — Monopoly Power...........361 V. The Conspiracy to Monopolize Claim....................................362 VI. The Rule 56(f) Application.............................................363 A. Section 1 Claims .................................................365 B. The Service Submarket — Market Definition..........................365 C. The Service Market — Monopoly Power..............................367 VII. The Pendent State Law Claims.........................................368 Conclusion 368 This is a dispute over the hiring by one competitor of an employee of another that has been dressed in the raiment of an antitrust case. The antitrust claims are the only basis of federal subject matter jurisdiction. The matter is before the Court on the defendants’ motion for summary judgment dismissing the antitrust claims on the merits, thus sending the state law tort claims to state court. Plaintiff has offered very little evidence in support of its allegations. It resists dismissal chiefly by contending that it is entitled to discover defendants’ sensitive business information, purportedly to test the reliability of defendants’ declarations. Plaintiffs opposition to the motion rests on at least two fundamental misconceptions. First, it mistakenly asserts that it is defendants’ burden to prove conclusively the negative of the allegations of the complaint. Second, it supposes, again wrongly, that summary judgment is categorically improper prior to discovery rather than something that is permissible in the perhaps rare appropriate case. After stripping away these mistaken views and carefully considering both the evidence of record and plaintiffs proposed discovery, the Court has concluded that there is no genuine issue of material fact, that plaintiff has not satisfied the requirements of Fed.R.Civ.P. 56(f) and .therefore is not entitled to discovery, and that defendants are entitled to judgment as a matter of law. In other words, this is one of those unusual cases in which summary judgment prior to discovery is warranted. Facts The Parties Plaintiff Emigra Group LLC (“Emigra”) is a provider of business-related immigration services. It claims to offer a wide range of consultation in immigration matters, document procurement, consular processing, and related services to assist corporations in their movement of employees across national borders. Its business plan is to be a single source provider of immigration services for large corporations around the world. The defendants are Fragomen, Del Rey, Bernsen & Loéwy, LLP (“Fragomen LLP”), Fragomen, Del Rey, Bernsen & Loewy, LLP (“Fragomen II”), Fragomen Global LLP (“Fragomen Global”), Fragomen Global Immigration Services, LLC (“FGIS”) (collectively, the “Fragomen Organization”), and Ryan Freel. Fragomen LLP is a law firm headquartered in New York that specializes in providing legal advice and services concerning U.S. immigration laws to domestic and foreign clients, typically companies seeking to relocate foreign employees to the United States. Fragomen Global is an intermediate holding company owned by the Class A equity partners of Fragomen LLP. It owns 93 percent of FGIS, which is a vehicle for providing information, guidance, and assistance to clients concerning the immigration requirements and procedures of various foreign countries. Thus, the Fragomen Organization offers immigration services with respect to persons seeking to enter the United States from abroad (inbound work) and to persons seeking to enter foreign countries (out-bound work), the former principally through Fragomen LLP and the latter principally through FGIS. Defendants say that inbound work accounts for 80 to 85 percent of the revenues of the Fragomen Organization as a whole. Immigration Services Within the United States, immigration services generally are considered the practice of law and may be provided only by licensed attorneys or people working under their supervision. Outside the United States, some categories of immigration services are provided by non-lawyers, presumably in competition with lawyers. There is no internationally uniform set of immigration laws and procedures. Even where regional or supra-national immigration arrangements exist, local implementation varies among member states. However, U.S. firms wishing to meet the outbound immigration needs of corporate clients need not maintain an office in every country where its clients might need to send employees. They can form alliances or working relationships with local firms in relevant foreign countries, enabling them to provide outbound services abroad without maintaining a physical presence in every potential foreign jurisdiction. The Background of the Dispute Defendant Ryan Freel is a lawyer who first worked for Fragomen LLP from August 1999, following his graduation from law school, until January 2005. On August 16, 2005, however, he began work at Emigra as its vice president of operations. During his tenure at Emigra, Freel allegedly was a member of Emigra’s highest management team. He reported to the chief executive officer and allegedly had access to all aspects of its business, trade secrets, and confidential information including, among other things, its strategies, customer lists, pricing, profit and loss data, and the like. Freel resigned from Emigra on or about September 19, 2007, and returned to Fragomen on October 1, 2007. Emigra claims — on “information and belief’ — that Freel disclosed Emigra confidential information to Fragomen and, after beginning work at Fragomen, began contacting certain Emigra customers on Fragomen’s behalf. This Lawsuit Companies who feel that their trade secrets and confidential information are being betrayed by former employees hired by competitors typically file suit and promptly seek preliminary injunctions. Such controversies often are quickly resolved, at least on a preliminary injunction basis and often by accelerated plenary trial. Emigra, however, did not follow that path. It filed this action on November 29, 2007, about two months after Freel began work at Fragomen, and asserted the usual state law claims for misappropriation of trade secrets, unfair competition, and the like. But it did not seek a preliminary injunction. Rather, its complaint asserts also five antitrust claims relating principally to what Emigra claims are relevant markets for immigration services. As will appear, there is reason to believe that Emigra adopted this strategy at least in part to gain access through pretrial discovery to precisely the sort of competitively sensitive information about Fragomen’s business that Emigra claims Freel improperly disclosed to Fragomen about Emigra’s business. Defendants’ motion therefore poses, among other questions to be sure, the issue whether Emigra should be permitted to gain that access by asserting antitrust claims rather than being remitted to state court to pursue its trade secret and unfair competition claims, matters as to which this Court lacks subject matter jurisdiction if there is no substantial federal question. The Antitrust Claims The amended complaint contains five antitrust claims: • Count I alleges that the Fragomen Organization monopolized an alleged market for immigration services provided to corporations who are employers of U.S. citizens and/or foreign nationals (the so-called “Service Market”) and an alleged submarket for business-related immigration services provided by single-source providers to large multinational corporations who are major employers of U.S. citizens and foreign nationals (the so-called “Service Submarket”) in violation of Section 2 of the Sherman Act. • Count II alleges that two or more of the defendants have conspired to monopolize the Service Market and the Service Submarket, also in violation of Section 2. • Count III asserts that the Fragomen Organization has attempted to monopolize the Service Market and the Service Submarket, also in violation of Section 2. • Count IV contends that “[t]wo or more of the Defendants, not having complete common ownership (upon information and belief),” conspired to restrain trade and commerce in the Service Market and Service Submarket in violation of Section 1 of the Sherman Act. • Finally, Count V asserts that the Fragomen Organization violated Section 1 of the Sherman Act by entering into a vertical arrangement with Emigra’s former vendor in Japan. The Motion for Summary Judgment At the initial Rule 16 conference, defendants asserted that Emigra’s antitrust claims — the only basis of federal subject matter jurisdiction — are not viable and indicated a desire to move for summary judgment dismissing those claims. The Court concluded that there was substantial doubt as to whether the case could survive such a motion and that full blown antitrust discovery perhaps would serve only to increase the cost of litigation without any benefit. Accordingly, it stayed discovery pending the filing and disposition of defendants’ motion. 1. The Theory of the Motion (a) The Section 2 Claims Section 2 of the Sherman Act makes it unlawful to monopolize or attempt or conspire to monopolize “any part of the trade or commerce among the several States, or with foreign nations ...” In order to establish monopolization, a plaintiff must prove that the defendant (1) possesses monopoly power in the relevant market, and (2) has wilfully acquired or maintained that power. Monopoly power is the power to control prices or exclude competition. “[A] plaintiff claiming monopolization [therefore] is obligated to establish the relevant market because the power to control prices or exclude competition only makes sense with reference to a particular market.” This requirement applies also to attempts to monopolize, as that offence requires proof of a “dangerous probability of achieving monopoly power,” which cannot be evaluated without consideration of the relevant market. And while rigorous proof of a relevant market and of a dangerous probability of achieving monopoly power are not, in this Circuit, essential elements of conspiracy to monopolize, the relevant market and the likelihood of its monopolization may have a significant bearing on whether the requisite specific intent to monopolize is present. Defendants seek summary judgment dismissing the Section 2 claims. They tacitly accept for purposes of the motion the existence of a market for immigration services provided to corporations, but dispute that Emigra’s alleged Service Submarket is a relevant market for antitrust purposes. They maintain also that the Fragomen Organization manifestly lacks anything approaching monopoly power, or a dangerous probability of acquiring it, in either the alleged Service Market or Service Sub-market. (b) The Section 1 Claims Count IV of the complaint purports to allege a classic conspiracy in restraint of trade among “[t]wo or more of the Defendants, not having complete common ownership.” Defendants seek summary judgment of dismissal on the ground that the Fragomen Organization is incapable, as a matter of law of conspiring with itself in light of the intra-enterprise conspiracy doctrine. Finally, defendants seek dismissal of Count V, which purports to allege an unlawful vertical agreement with one local service provider in Japan not to do business with Emigra, on the ground that Emigra cannot establish the requisite adverse effect on competition. 2. The Evidence Defendants’ motion is supported by two declarations, one by Fragomen partner Lance Kaplan and the other by Darryl Buffenstein, a partner in a large law firm with broad experience in the practice of immigration law and a past president of the American Immigration Lawyers Association. Mr. Kaplan’s declaration sets out the structure of the Fragomen Organization, which is pertinent to the intra-enterprise conspiracy claim in Count IV, and describes its immigration practice. It contains also a description, in broad terms, of competition and pricing in the provision of global immigration services. Mr. Buffenstein’s declaration describes the business of providing business-related immigration services, including the roles of Fragomen and Emigra. His declaration also denies the existence of the Service Submarket alleged by Emigra. Defendants’ motion is accompanied by a detailed Rule 56.1 Statement setting forth the material facts that defendants maintain are undisputed and citing the evidence that they maintain support those facts, all as required by the local rules. 3. Emigra’s Response Emigra’s response to the motion includes declarations of Emigra’s president, A. Pendleton DePuis, and a retained expert, economist Fredrick A. Flyer, Ph.D. It is accompanied by a purportedly responsive Rule 56.1 Statement. The response as whole is notable for the extent to which it fails to engage defendants as to the facts that are material to the motion, largely resting instead on the propositions that (1) Emigra should not be required to respond to the motion without extensive discovery, and (2) defendants have not conclusively proved their contentions. (a) The DuPuis Declaration Mr. DuPuis’s declaration begins with the statement that his primary areas of disagreement with defendants’ declarations include (a) the nature of relevant services offered by the two firms, (b) customer requirements for single-source services and competitors of the two firms for their provision — i.e., whether there is a relevant Service Submarket, and (c) barriers to entry thereto. He states that his disagreement is based on an alleged lack of factual basis for defendants’ declarations which, he says, “is made more difficult to expose because of Emigra’s inability to complete, or even commence, discovery.” This is followed by a list, based on the Flyer declaration, of “[ejvidentiary matters requiring Fragomen disclosure” including: “a. Information regarding Fragomen competition for work, including content of request for proposals from potential customers, identities of competing bidders and their characteristics as service providers, specific services required by potential customers, specific services offered to customers in proposals from competing vendors, identity of winning bidders, prices in winning bids, margins earned on winning bids, Fragomen internal documents regarding competitors and market share and pricing policies, and related information (Flyer Decl. ¶ 11-17)”; “b. Information regarding Fragomen customers, including customer lists, annual revenue per customer, customer size, number of customer employees serviced annually, and related information (Flyer Decl. ¶ 18)”; “e. Information regarding Fragomen sales, including aggregate sales revenue, aggregative volume of transactions, sales by location, market share, and comparable data regarding competitor sales (Flyer Decl. ¶ 19)”; “d. Information regarding Fragomen vendor relationships and dealings, including whether any such relationships are exclusive and whether vendor alternatives are available to Emigra if Fragomen requires exclusivity (Flyer Decl. ¶ 22).” According to Mr. DuPuis, Emigra sought “many” of these facts from public record sources and says that “[c]ertain” of them formed the basis for its complaint, although he does not tell us what those are. He claims that these efforts were largely unsuccessful, in part because some are “within Fragomen’s sole knowledge,” including information regarding Fragomen’s (a) ownership, structure and staffing, (b) contractual relationships, (c) revenues and market share, and (d) bidding activity and resultant contracts. Having thus begun with an attempt to make a case for discovery of commercially sensitive material from Fragomen, Mr. DuPuis’s declaration proceeds briefly to the merits. He begins with the assertion that Emigra’s strategy “is to be a single-source provider for large corporations ... for ... global immigration services,” a goal it seeks to achieve without primary reliance on U.S. in-bound immigration work and without lawyers. Mr. DuPuis asserts that Fragomen offers similar services “with the additional ability, unlike Emigra, to provide legal services in house.” The DuPuis declaration then asserts that only Fragomen, Emigra and the Littler Mendelson law firm, much of the immigration practice of which recently was acquired by Fragomen, have provided a similar range of immigration services worldwide and argues, based on a Fragomen press release, that the alleged Service Submarket is a relevant market for antitrust purposes. It passes then to a contention that there are substantial barriers to entry into that market. (b) The Flyer Declaration The Flyer declaration states that Dr. Flyer was retained “to assess (1) whether Emigra’s allegations ..., if supported, would result in harm to competition; and (2) whether the evidence put forth by ... Fragomen ... constitutes a reliable evidentiary basis to dismiss Emigra’s claims.” On the latter point, it purports to assess whether the evidence “contradicts Emigra’s claims that: (1) the competitors in their relevant market are geographically dispersed ‘single-source’ providers of business related immigration services, (2) the customers in this market are major employers with workforces comprised of citizens of many countries; (B) Fragomen possesses monopoly power in the market for immigration services; and (4) Fragomen used this monopoly power to diminish competition in this market.” The first two of these claims are said to be significant because, if they are correct, “they would indicate that the relevant market for the services provided by Fragomen and Emigra is limited to geographically dispersed providers of services,” i.e., to firms with large multi-region services networks with clients consisting of large corporations with diverse work forces. The declaration then goes on to say that it is impossible to evaluate Fragomen’s claim that there are not significant barriers to entry absent “information on the ease with which firms have been able to enter the market for immigration services and quickly establish geographically dispersed network[s] in a short period of time.” With this prelude, the declaration lays out a detailed list of information that Dr. Flyer claims would be necessary to answer the questions he raises. Plaintiffs memorandum asserts that Dr. Flyer’s declaration “opines that Emigra has alleged valid antitrust claims” and that defendants’ position “at its very best, ... presents only a clash of expert opinion regarding market definition and dominance, and thus cannot possibly justify summary judgment.” In fact, however, this assertion takes significant liberties because Dr. Flyer in fact said no such thing. Rather than offering expert opinion that supports Emigra’s allegations, he expresses only the view that the allegations of the complaint, if true, would result in harm to competition and that defendants’ evidence, in his view, is not a reliable basis for rejecting those allegations. So what Dr. Flyer in fact said — as opposed to the spin Emigra’s memorandum places on it — proceeds from the assumption that defendants have the burden of negating plaintiffs allegations, an assumption that is incorrect for reasons shown below — and adds nothing of an evidentiary nature to plaintiffs opposition to the motion. Discussion Emigra maintains that summary judgment rarely, if ever, should be granted in an antitrust case before extensive diseovery. But “rarely” does not mean “never.” And, as discussed below, this case arises in a singular posture for several reasons that, both individually and collectively, counsel careful consideration of granting summary judgment in this case. First, there is reason to suppose that the antitrust claims are insubstantial. The Court assumes that Fragomen and Emigra have built networks of subcontractors in foreign nations and, in the case of Emigra, perhaps outside lawyers in the United States — through which both offer immigration services across broad geographical areas. It assumes further that some corporate clients use one or the other organization, rather than dealing directly with several individual service providers, for the convenience of “one-stop shopping.” But thousands of American lawyers provide in-bound immigration services, and thousands of foreign nationals doubtless provide immigration services for those seeking to enter their countries. The likelihood that any one provider or provider network has or threatens to have market power seems remote. Second, the genesis and conduct of this lawsuit suggests that Emigra’s purpose is at least as much to use the discovery process to get at Fragomen’s competitively sensitive information for business reasons as to litigate the antitrust claims on their merits. Third, a great deal of information that Emigra claims it needs to meet Fragomen’s motion is in Emigra’s hands. Emigra, after all, claims to be the only other single-source provider in the business. It therefore must know who the customers are. It must have copies of their requests for proposals or comparable evidence It must know at least most of the instances in which it or Fragomen obtained the business. It must know the identities of any local service providers who have declined to serve it as a result of relationships with Fragomen. And it must have a host of other information pertinent to the present motion. Indeed, it must have each of the items on Mr. DuPuis’s list of discovery that Emigra wants from Fragomen save that it presumably lacks details concerning Fragomen’s profit margins and similar matters confidential to Fragomen. Yet it has come forward with none of that data on this motion. As the Supreme Court said only recently in Bell Atlantic, “the costs of modern federal antitrust litigation and the increasing caseload of federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint.” And while Bell Atlantic was a pleading case, the concern it expressed is at least as applicable here as on a motion to dismiss. As the Second Circuit said in PepsiCo, Inc. v. Coca-Cola Co., “[i]n the context of antitrust cases, ... summary judgment is particularly favored because of the concern that protracted litigation will chill pro-competitive market forces.” I. The Law Governing Summary Judgment A. General Principles Plaintiffs brief begins with the proposition that “[t]he movant has the burden of adducing proof sufficient to show its entitlement to judgment as a matter of law, even assuming all factual disputes and inferences in favor of the party opposing the motion.” That assertion, which underlies plaintiffs entire position, is wrong in one critical respect. The movant does not have the burden of proving the negative of matters as to which the non-moving party would have the burden of proof at trial. Indeed, the Supreme Court rejected precisely the argument plaintiff makes here in Celotex Corp. v. Catrett. The basic principle, of course, is uncontroversial. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Plaintiffs assertion, however, goes to a different question, viz. the allocation of the burdens of coming forward with evidence on a motion for summary judgment. In Celotex Corp., the D.C. Circuit had held, as plaintiff contends is the rule, that “the party opposing the motion ... bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.” The Supreme Court, however, reversed. It held that summary judgment must be entered against a non-moving party “who fails to make a 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.” Indeed, it went on to say quite explicitly that the moving party’s burden is only to “inform [ ] the district court of the basis for its motion” and that “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment ... is satisfied.” The fact that the non-movant has the burden of coming forward with admissible evidence sufficient to raise a genuine issue of fact on a matter as to which non-movant would have the burden of proof at trial, regardless of the existence or adequacy of evidence submitted by the movant, has important consequences for Emigra’s reliance on Dr. Flyer’s declaration. It proceeds from the premise that the movant is obliged to put forward “a reliable evidentiary basis to dismiss Emigra’s claims.” In other words, he proceeds on the assumption that defendants are not entitled to summary judgment unless their evidence “contradicts Emigra’s claims.” But that premise is incorrect. Once defendants put in issue Emigra’s ability to get to the jury on essential elements of its claims, the burden fell on Emigra to produce admissible evidence to meet that burden. In consequence, much of Dr. Flyer’s declaration has little if any significance on this motion. Emigra then makes the assertion that “a party must be afforded reasonable opportunity for discovery before judgment can be imposed.” That proposition is incorrect as well. First, antitrust cases may be dismissed under Rule 12(b)(6) on the face of the complaint, without any opportunity for discovery. In Bell Atlantic, for example, the Supreme Court held that a Sherman Act Section 1 complaint will be dismissed absent “allegations plausibly suggesting (not merely consistent with) [the requisite] agreement” in restraint of trade. Nor is Bell Atlantic limited to allegations of conspiracy. Indeed, just a few months ago, our Circuit held that an antitrust complaint may be dismissed pursuant to Rule 12(b)(6) for failure to allege a relevant product market, most notably “[w]here the plaintiff fails to define its proposed relevant market with a reference to the rule of reasonable interchangeability and cross-elasticity of demand, or alleges a proposed relevant market that clearly does not encompass all interchangeable substitute products even when all factual inferences are granted in plaintiffs favor.” Second, while it is true that summary judgment is not often granted prior to discovery, there is nothing in the Federal Rules of Civil Procedure precluding summary judgment — in an appropriate case — prior to discovery. To the contrary, Rule 56 makes clear that a defendant “may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim.” District courts in our Circuit have recognized this, granting summary judgment prior to discovery in a few appropriate cases. To be sure, there are circumstances in which a non-moving party that has not completed discovery has a legitimate need for discovery to meet a motion for summary judgment. But Rule 56(f) is the mechanism for addressing that need. If the non-moving party makes a sufficient showing by affidavit, a motion for summary judgment will be denied or delayed to permit discovery that is reasonably expected to create a genuine issue of material fact. The structure of Rule 56 therefore is clear. A defendant may move for summary judgment of dismissal at any time. In many cases, the need for discovery will be evident and a defendant will await the discovery process before doing so. But where a defendant elects to seek summary judgment, even at an early stage, on the ground that the plaintiff cannot get to a jury on an essential element as to which the plaintiff would have the burden of proof at trial, the plaintiff should suffer dismissal unless it comes forward -with either (1) admissible evidence sufficient to raise a genuine issue of fact for trial, or (2) a Rule 56(f) affidavit sufficient to warrant denial or deferral of the motion pending necessary discovery. In sum, then, an antitrust case in which proof of a relevant market is an element of the plaintiffs claim will be dismissed under Bell Atlantic and Chapman unless the complaint alleges facts that properly define the proposed relevant market by “reference to the rule of reasonable interchangeability and cross-elasticity of demand.” By parity of reasoning, the same is true of a complaint that alleges market or monopoly power in conclusory terms unless the complaint alleges facts that properly give rise to an inference that such power exists. Even if such a complaint is not attacked on its face, a plaintiff whose proposed relevant market or allegation of market power is challenged by a motion for summary judgment must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial as to the market definition or the existence of market power, as the case may be, or a sufficient Rule 56(f) affidavit demonstrating, among other things, the need for specific discovery to raise such an issue. B. S.D.N.Y. Civ. R. 56.1 There is another factor relevant to the proper disposition of this motion. It is well to state it specifically. Local Civil Rule 56.1 of this Court, which is substantially similar to antecedents that have been- in effect for many years, provides in relevant part as follows: “(a) Upon any motion for summary judgment ..., there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.” “(b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.” “(c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.” “(d) Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).” The purpose of the rule “is to assist the Court in understanding the scope of the summary judgment motion by highlighting those facts which the parties contend are in dispute.” In order for a Rule 56.1 statement in opposition to a motion for summary judgment to serve this purpose, it must respond appropriately to the movant’s statement. Thus, “[a] proper Rule 56.1 statement submitted by a non-movant should consist of a paragraph-by-paragraph response to the movant’s 56.1 statement, much like an answer to a complaint.” It must cite admissible evidence in support of the non-movant’s contention that there is admissible evidence creating a genuine issue for trial or, where the non-movant contends that further discovery is required to enable it to raise a genuine issue with admissible evidence, must be accompanied by a Rule 56(f) affidavit that demonstrates such a need with respect to each relevant averment in the movant’s Rule 56.1 Statement. In this case, both sides have submitted Rule 56.1 Statements. Emigra’s responses to defendants’ averments, however, frequently do not simply admit or deny defendants’ averments. Many fall instead into two categories that bear preliminary consideration. First, Emigra in many instances neither admits nor denies defendants’ averment. It responds instead by saying that Emigra does not dispute a proposition that is not fully responsive to the averment in question. To the extent that the defendants’ averments go beyond these partially responsive answers and are supported by evidence, defendants’ averments are deemed admitted in light of Emigra’s failure explicitly to deny them and to adduce admissible evidence in support of the contrary proposition. Second, Emigra in many cases has responded that it is without sufficient knowledge to admit or deny defendants’ averment because it has not had discovery. Of course, its failure to admit or deny a particular averment—to the extent its Rule 56(f) affidavit sufficiently shows a justified failure to come forward with admissible evidence on the point in question—cannot result in its being deemed to have admitted the averment. In those instances, however, in which the Rule 56(f) affidavit makes no such showing, the failure to admit or deny is not justified by a general claim that Emigra has not had discovery. To that extent, it is deemed to have admitted the averments in question. II. The Section 1 Claims A. Intra-enterprise Conspiracy Count IV alleges a conspiracy in restraint of trade among “[t]wo or more of the Defendants, not having complete common ownership.” Defendants seek summary judgment on the ground that the Fragomen Organization is incapable, under the intra-enterprise conspiracy doctrine, of conspiring with itself. They principally rely on Copperweld Corp. v. Independence Tube Corp. and its progeny. Emigra’s memorandum in opposition to the motion did not contest the propriety of dismissal of Count IV. At oral argument, it explicitly conceded the point. Nevertheless, in a letter submitted following oral argument, plaintiffs counsel sought to “clarify” that concession by contending that (1) defendants’ allegations of common ownership among the constituents of the Fragomen Organization have not been tested by discovery and (2) Count IV in any event states a sufficient claim on the theory that it alleges a conspiracy between Mr. Freel and the Fragomen Organization during the period prior to the commencement of Mr. Freel’s employment at Fragomen. These belated contentions are without merit. First, Emigra’s Rule 56(f) submission, whatever its other merits, is of no avail with respect to the defendants’ claim of common ownership. This is a matter on which the Fragomen Organization plainly is competent to testify. Emigra has not shown that discovery is “reasonably expected to create a genuine issue of material fact” on this point. It therefore has failed to satisfy at least one element of the standard articulated in Concourse Rehab. & Nursing Ctr. Inc. v. Whalen, Gurary v. Winehouse and other cases. Second, the contention that Count IV alleges an actionable horizontal conspiracy between Mr. Freel and the Fragomen Organization was not advanced by Emigra in its memorandum in opposition to this motion. Just as a moving party will not be heard to advance a new argument for the first time in its reply brief, a non-moving party should not be heard to advance a new argument in opposition to a motion after the close of briefing and oral argument. In any case, the Court sees no reason to relieve Emigra of the consequences of its express concession that Count IV fails in light of Coppenoeld and its progeny. Accordingly, defendants are entitled to summary judgment dismissing Count IV. B. Vertical Restraint Count V asserts that the Fragomen Organization violated Section 1 of the Sherman Act by entering into an unspecified vertical arrangement with Emigra’s former vendor in Japan, whom the parties agree is a firm called ILS Shimoda (“Shimoda”) . To establish an unlawful vertical agreement, a plaintiff must show “(1) a combination or some form of concerted action between at least two legally distinct economic entities; and (2) [that] such combination or conduct constituted an unreasonable restraint of trade either per se or under the rule of reason.” Non-price vertical restraints are subject to rule of reason analysis. Here, Emigra claims that there is some unspecified but nonetheless anticompetitive arrangement between the Fragomen Organization and Shimoda. But it has offered no evidence to support that claim. Defendants, moreover, although it was not their burden to do so, have come forward with competent evidence that FGIS’s relationship with Shimoda is nonexclusive and that Shimoda is only one of three local providers with which FGIS does business. They have shown also that Shimoda in fact provides services to other customers, including at least one other U.S. immigration law firm. Finally, they have pointed to a significant number of other Japanese entities that are available to provide local immigration services to foreign firms such as Emigra. Thus, there is no reason to suppose that there is any anticompetitive arrangement between FGIS and Shimoda, much less an arrangement that violates the rule of reason. Emigra’s response is deficient. It has offered no evidence of the substance of (1) the Fragomen Organization’s relationship with Shimoda, let alone that it is dn exclusive relationship, (2) that Shimoda does not provide services to others, including at least one competing U.S. law firm, or (3) that there are not many other Japanese firms available to provide the local immigration services in question. Its conclusory contention that defendants have not shown that the many other Japanese providers that they have identified “could undertake the same services and pricing and relationship that Emigra obtained from [ ] Shimoda” misses the mark because, as we have seen, that was not defendants’ burden. Rather, as plaintiff would bear the burden at trial of proving that any arrangement between FGIS and Shimoda is an unreasonable restraint of trade, it is plaintiffs burden to come forward with admissible evidence that the Fragomen Organization has foreclosed Shimoda as a provider to Emigra and that there are not sufficient alternatives to Shimoda for foreign firms seeking local immigration services in Japan. They have not done so. In any case, even if the burden were on defendants on this point, their evidence, which Emigra has not undermined in this respect, would have satisfied that burden. Emigra therefore has not raised a genuine issue of material fact as to whether the Fragomen Organization’s relationship with Shimoda, whatever it may be, unreasonably restrains trade in immigration services in Japan. A fortiori it has not done so with respect to either of the alleged markets at issue in this case. Accordingly, defendants are entitled to summary judgment dismissing Count V unless Emigra has shown an adequate basis for discovery on this point under Rule 56(f), a matter discussed below. III. Monopolization and Attempted Monopolization-Relevant Markets “Proof of the relevant product market is a necessary element of a cause of action for monopolization or attempted monopolization.” Similarly, sufficient proof of a relevant market and of a risk of its monopolization is pertinent to permit an inference of the specific intent to monopolize that is essential to a conspiracy to monopolize claim. In this case, the amended complaint alleges the existence of (1) a Service Market, consisting of “immigration services provided to corporations who are employers of U.S. citizens and/or foreign nationals,” and (2) a Service Submarket, consisting of “business-related immigration services provided by single-source providers to larger multinational corporations who are major employers of U.S. citizens and foreign nationals.” A heading in defendants’ memorandum contends that Emigra has not properly defined the relevant market. In fact, however, the memorandum argues only that alleged Service Submarket is not a relevant market for antitrust purposes. Accordingly, the Court assumes for purposes of this motion that the so-called Service Market is a relevant market. It therefore passes to defendants’ contention that the alleged Service Submarket is not. The definition of a relevant market in a Section 2 case serves to identify the area of effective competition in order determine whether a defendant has or threatens to obtain monopoly power. As the Supreme Court said in a classic definition, a product “market is composed of products that have reasonable interchangeability.” Its “outer boundaries ... are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” The same fundamental principle is recognized in the Justice Department-Federal Trade Commission Horizontal Merger Guidelines (the “Guidelines”), another tool used to define a relevant market. The Guidelines recognize “buyer substitution as the underlying principle for defining relevant markets.” Accordingly, the Guidelines delineate a relevant market as: “a product or group of products such that a hypothetical profit-maximizing firm that was the only present and future seller of those products (‘monopolist’) likely would impose at least a ‘small but significant and nontransitory’ increase in price. That is, assuming that buyers likely would respond to an increase in price for a tentatively identified product group only by shifting to other products, what would happen? If the alternatives were, in the aggregate, sufficiently attractive at their existing terms of sale, an attempt to raise prices would result in a reduction of sales large enough that the price increase would not prove profitable, and the tentatively identified product group would prove to be too narrow.” Thus, a market is properly defined under the Guidelines “when a hypothetical profit-maximizing firm selling all of the product in that market could charge significantly more than a competitive price, i.e., without losing so many sales to other products that its price became unprofitable.” Direct evidence of cross-elasticity of demand is rare. In consequence, courts often look to a number of “criteria designed to focus, directly or indirectly, on cross-elasticity.” ' And the problem is more complex in this case because Emigra alleges a submarket consisting of a cluster of different services, few if any of which are interchangeable. As the propriety of this aggregation is a logical antecedent of any discussion of the sufficiency of its evidence of market definition, the Court begins with that question. A. Cluster Markets The Supreme Court’s statement that the outer boundaries of a product market are fixed by interchangeability of use or cross-elasticity of demand implied that a market invariably consists of a single product or service. But that conclusion has proved unwarranted. In a long line of cases dating back to 1960’s and 1970’s challenges to bank mergers, courts in appropriate cases have defined relevant markets of clusters of non-interchangeable goods and services^ Accordingly, it is necessary first to explore the boundaries of this cluster market concept beginning analysis of the alleged Service Submarket. Certainly it is possible to describe any number of related and even unrelated products or services as a single line of business provided only that one adopts a sufficiently high level of generality. The term “transportation vehicles” for example, reasonably might include such diverse products as planes, automobiles, golf carts, locomotives, horse-drawn carts, submarines, and other conveyances. But the fact that our language permits such generalization does not justify the uncritical aggregation of distinct products and services into relevant markets for antitrust purposes. Someone interested in an automobile to run local errands and drive four miles to work will not buy an airplane instead, no matter how high the price of automobiles. So any definition of a cluster market must be responsive to the purpose of the market definition process — identification of an area of competition in which variations in price will affect the demand for alternative products. As one commentator recently put it: “The cluster market approach is inappropriate for market definition because clusters include products and services that are not demand substitutes (or supply substitutes). It can be defended as a matter of analytical convenience: there is no need to define separate markets for a large number of individual hospital services, for example, when market shares and entry conditions are similar for each, or when data limitations will effectively require that the same proxy (such as the number of hospital beds) be employed to estimate the market share for each individual service. Or it could be understood as a way of looking to what the allegedly harmed buyers purchase as a basis for specifying the products and locations in the narrowly defined candidate market with which the market definition algorithm begins. But duster markets may mislead as to competitive effeds when competition from sellers of a partial line of products or services constrains the pricing of the full-line sellers offering the cluster. ” “A similar type of market definition problem could arise when sellers produce both bundled and unbundled products, for example, if software firms sell suites of products (such as an office productivity suite that includes a word processor, spreadsheet, and presentation program) and also sell the individual component programs on a standalone basis. Suppose suites sell for less than the sum of the prices of the components. If two suite suppliers merge, should the product market for analyzing it be limited to suites?” “The answer to this question, as always with market definition issues, turns on the economic force of buyer substitution. If at current prices, one group of buyers (e.g., corporate) purchases office software only as a bundle, and would not consider components, while other buyers (mass market) seek selected software products, the merger might reasonably be analyzed in both a suite market and in markets for the individual components. But if enough suite buyers would respond to a higher suite price by purchasing instead some components individually, thereby making it unprofitable for a hypothetical suite monopolist to raise price, then the competitive effect of the merger would not be captured by defining a suite mar ket and the transaction should be analyzed in individual component markets only. Here a competitive effects analysis limited to a suites market could mislead by ignoring the competitive constraint imposed by sellers of individual components, particularly if some sellers offer only some components and not suites.” Thus, buyer substitution is a fundamental consideration in evaluating a proposed cluster market. If the nature of competition is such that a full line seller would not be constrained in raising prices by competition from partial line or single product sellers, then a cluster market could be appropriate. If, however, buyers could and would respond to a price increase by a full line seller by shifting all or part of their business to partial line or single product sellers, or by making or providing the product or service themselves, then a cluster market would not be appropriate. This is the approach taken by the Ninth Circuit in Lucas Automotive Engineering, Inc. v. Bridgestone/Firestone, Inc. The plaintiff there argued for markets consisting of (a) original equipment major brand vintage tires, and (b) a range of different sizes of vintage tires. The Court of Appeals held that there was an issue of fact as to the existence of the alleged original equipment vintage tire market in light of evidence that a significant fraction of the purchasers of tires for vintage vehicles “insists on replacement tires which are duplicative of the tires that were originally on their particular vehicle[s]” and “is generally not concerned with price.” On the other hand, it upheld summary judgment dismissing the plaintiffs claim with respect to the proposed cluster market of a range of different sizes of vintage tires because there was no evidence that “the product package is significantly different from, and appeals to buyers on a different basis from, the individual products considered separately.” In this case, Emigra aspires to provide one-stop shopping for large corporations for immigration services all over the world. It attempts to define a relevant market in identical terms. But the fact that Emigra seeks to provide a broad array of immigration services does not mean that the market necessarily or even probably is limited to similar providers. The fundamental question is whether Emigra has offered any admissible evidence that demand by large corporations for immigration services provided by firms that offer one-stop shopping for services all over the world is sufficiently inelastic to make that a distinct market. In other words, assuming for the sake of argument that there are some buyers of immigration services that buy all or most of their global needs from full line providers like Emigra, would those buyers continue to do so in the face of price increases by such providers — or would they instead shift their purchases to the broad array of providers of particular kinds of services or of services in particular countries and areas? Emigra has offered no proof that defendants could charge significantly more than a competitive price for any or all of its immigrations services without losing too many sales to other service providers to make its price unprofitable. For that matter, it has offered no evidence that Emigra itself charges more for immigration services than providers who do not offer one-stop shopping. Indeed, as discussed in more detail below, Emigra has produced no evidence whatsoever regarding pricing. Nor has Emigra made any showing regarding the cost of switching services from a single-source to individual providers or any other measure typically used to define a market under Guidelines. Hence, while some customers might prefer a single source provider, Emigra has failed to adduce proof that such customers would not surrender that preference rather than pay a significantly higher price. The existence of one-stop shopping, and a group of customers with a preference or even demand for it, is insufficient to define a relevant market. B. The Brown Shoe Criteria Hard data concerning cross-elasticity is not the only means of proving a relevant market. In Brown Shoe Co. v. United States, the Supreme Court famously observed that, within the broad market determined by interchangeability of use and cross-elasticity of demand: “well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes, [citation omitted] The boundaries of such a sub-market may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” As a preliminary matter, it is relevant to note that the Supreme Court’s use of the submarket terminology does not make its criteria irrelevant here. In the years since Brown Shoe, the Department of Justice, the Federal Trade Commission, and many courts have come to recognize that the distinction between markets and submarkets is confusing and unhelpful because it obscures the real inquiry. Indeed, the Second Circuit has observed that “[t]he term ‘submarket’ is somewhat of a misnomer, since the ‘submarket’ analysis simply clarifies whether two products are in fact ‘reasonable’ substitutes and are therefore part of the same market.” Hence, the Brown Shoe factors are pertinent to the definition of relevant markets in antitrust cases, regardless of whether they are termed markets or submarkets. The Court therefore turns to the evidence pertaining to these considerations. 1. Industry or Public Recognition “[EJvidence of ‘industry or public recognition of [a proposed market or] sub-market as a separate economic unit’ ” is important in determining its relevance for antitrust purposes ‘because we assume that economic actors usually have accurate perceptions of economic realities.’ In Brown Shoe, for example, the Supreme Court upheld the lower court’s finding that men’s, women’s, and children’s shoes were separate submarkets based in part on the public’s clear recognition of these categories as individual submarkets. Emigra has adduced no evidence suggesting industry or public recognition of a distinct market consisting of large multinational corporations that insist upon or prefer providers offering one-stop shopping for immigration services. The only arrow in its quiver is a press release statement by Fragomen founder Austin Fragomen, Jr., in which Mr. Fragomen, in announcing the Fragomen Organization’s acquisition of another immigration practice, said that the organization could provide “comprehensive world-wide immigration services to large clients with complex needs who benefit from the delivery of consolidated global immigration services across multiple regions.” The Fragomen statement suggests that the Fragomen Organization seeks to sell its services on the basis, perhaps among others, that its global capabilities offer a benefit to certain large clients, a proposition that some prospective clients may find convincing. But it does not support the notion that there is industry or public recognition of a distinct market for a broad line of immigration services provided by single firms to large corporations. It thus falls considerably short of raising a genuine issue of material fact with respect to this Brown Shoe criterion. 2. Special Characteristics and Uses Under Brown Shoe and its progeny, the special characteristics and uses of a product or service can serve as another indicium of the existence of a relevant market. Indeed, the district court in FTC v. Staples credited the FTC’s evidence of special characteristics of office superstores that distinguish them from other purveyors of office supplies, including the superstores’ significant differences in appearance, physical size, format, the variety of products they offered, and the type of customers they targeted and served. The proof, which included the court’s own visits to several superstores and other office supply sellers, led the court to conclude, “You certainly know an office superstore when you see one.” Emigra’s main evidence on this point is Mr. DuPuis’s declaration regarding what Emigra calls its “Global Case Management,” which includes “document gathering assistance, document conditioning, consular processing, and internet status monitoring.” According to Mr. DePuis, Emigra’s “intention is to provide a complete immigration services solution ... with end-to-end case management, home country support, and host country services.” The shortcoming of this evidence, however, is that it does no more than restate as a proposed market Emigra’s own business plan without addressing the question whether that business plan reflects competitive realities in the marketplace. This is an important distinction. By way of illustration, consider the automobile industry of years gone by. General Motors sold five different car lines, Ford three and Chrysler two, all attempting in varying degrees to offer brands that would appeal to different groups of consumers at different but overlapping price points. But to define the market, for antitrust purposes, as 'consisting only of multibrand automobile manufacturers would have ignored the reality that single brand suppliers — think Toyota, Honda, Nissan, Volvo and others — could and did provide very meaningful competition. Similarly, Emigra’s attempt to define the market by reference only to a description of the activities in which it and the Fragomen Organization engage ignores the pivotal question — whether the activities of providers who offer narrower ranges of services offer meaningful competition to the full line providers. Emigra attempts to deal with this problem by asserting that “local and regional providers cannot meet the service needs of major international customers due to their limitations of range and reach and capacity.” But there is no admissible evidence to support that contention. To be sure, Mr. DePuis states his belief “that small departments of large global firms can [not] compete effectively for such work, as they have not developed global networks or combinations of local expertise necessary to provide geographically diverse services.” He maintains also that smaller providers of immigration services, including those identified by defendants as existing within accounting firms, relocation firms, and law firms, cannot compete in the single source market because they lack “global reach in the provision of single-source immigration services.” And he would conclude, therefore, that the potential competitors identified by Fragomen “simply are not competition for single-source work provided by Fragomen and Emigra.” But these statements of belief and conclusory statements are not supported by admissible evidence. S. Distinct Customers Emigra asserts that its “prime customers” — in other words, some unspecified subset of its entire customer base — “have needs for placement throughout the world, in sufficient volume that internal management or even monitoring is impractical for the customer” and that “such customers want a single-source option, which currently is provided primarily, if not solely, by Emigra and Fragomen.” This statement thus has three elements — claims that (1) some of Emigra’s customers have needs “throughout the world,” and (2) those customers (a) have such needs in sufficient volume that internal management and moni