Full opinion text
MEMORANDUM OPINION AND ORDER ATLAS, District Judge. Pending before the Court are the Defendants’ Motion to Dismiss the Tying, Price Discrimination, and Fraud Counts of Plaintiffs’ First Amended Complaint (“Defendants’ Motion”) [Doc. # 11] and Defendants’ Supplemental Motion to Dismiss Plaintiffs’ Conspiracy Count [Doc. #46]. The parties have fully briefed the issues. The Court has considered all the parties’ submissions, all matters of record, and the applicable authorities, and concludes that Defendants’ Motion should be granted in part and denied in part, and the Defendants’ Supplemental Motion should be granted. I. FACTUAL BACKGROUND Defendants in this case manufacture and distribute Shell brand gasoline. Defendants distribute this gasoline to consumers through three different channels. First, Defendants directly own and operate retail stations, otherwise known as “company-owned stations” or “Shell-owned stations.” Second, Defendants sell their fuel to wholesale “jobbers,” who supply it to Shell-brand stations owned either by the jobber (“jobber stations”) or other individuals under a contractual relationship with the jobber (“open dealers”). Third, Defendants own or lease certain real estate and then lease or sub-lease the property to independent business persons who become Shell brand “dealers,” known as “lessee-dealers,” who operate and run “lessee-dealer stations.” Plaintiffs in this case consist of seventy-three individuals who, directly or indirectly, are lessee-dealers that now operate or have operated Shell-brand gasoline stations. Each Plaintiff has a contractual relationship contained in a standard “Dealer Agreement,” whereby the lessee-dealer agrees to sell exclusively Shell brand gasoline through the gas station. Plaintiffs allege that Defendants’ actions have violated federal antitrust laws, as well as state fraud, tort, and contract laws. In their First Amended Complaint, Plaintiffs assert ten causes of action. First, Plaintiffs allege an illegal tying arrangement in violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (Count I), and § 3 of the Clayton Act, 15 U.S.C. § 14 (Count II), challenging Defendants’ “pay at the pump” program whereby Defendants require Plaintiffs to enable retail consumers to pay for gasoline at the gasoline pump by using equipment and services mandated by Defendants. Plaintiffs also allege that Defendants have engaged in illegal price discrimination between Plaintiffs and the jobbers with whom they compete in violation of the Robinson-Patman Price Discrimination Act amendment to § 2(a) of the Clayton Act, 15 U.S.C. § 13(a) (Count III). Plaintiffs also contend that Defendants’ actions concerning the relative price charged to Plaintiffs and their retail competitors constitute a conspiracy affecting interstate commerce in violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (Count IV). Plaintiffs also allege that Defendants fraudulently induced the Plaintiffs to enter into the Dealer Agreements or other agreements with Defendants (Count V). Last, Plaintiffs allege five other state law claims arising from the parties’ business relationship. Defendants do not address Counts VI through X in their Motions. The claims in issue in the pending motions are described below in greater detail. A. Counts I and II: Alleged Illegal Tying Arrangement in Violation of § 1 of the Sherman Act and § 3 of the Clayton Act Plaintiffs challenge Defendants’ “pay at the pump” program. Plaintiffs claim they are being coerced by Defendants to lease “Island Card Readers” (“ICRs”) and to agree to utilize the bank chosen by Defendants to process the associated credit card transactions. See Plaintiffs’ First Amended Complaint, at 17, ¶¶ 125,127. ICRs are the credit card readers placed on the gasoline pumps which allow customers to “pay at the pump.” The ICRs are separate from the credit card machines operated by Plaintiffs inside their stations or convenience stores. Id. at 16, ¶ 124. The ICRs are operated in connection with banks selected by Defendants to process the transactions. Id. at 17, ¶ 127. Thus, the ICRs and Defendants’ chosen bank operate together as one credit card processing system. In addition, Plaintiffs allege that Defendants’ tying scheme was imposed on “most — if not all — Plaintiffs” only after Plaintiffs signed their Dealer Agreements. Id. at 16, ¶ 124. Plaintiffs complain first about being required to lease ICRs and pay a monthly fee based on the number of ICRs at each station. Id. at 17-18, ¶ 130. Second, Plaintiffs complain that Defendants’ fee is higher than the fee allegedly available if Plaintiffs were allowed to obtain the ICRs from another source. Id. at 17, ¶ 127. Third, as to the requirement that they use the bank chosen by Defendants to process ICR-related credit card transactions, Plaintiffs claim they could obtain less expensive financing elsewhere. Id. at 18, ¶ 131. Plaintiffs allege in Count I that Defendants’ “practice of coercing Plaintiffs to agree to lease ICRs and forcing Plaintiffs to agree to utilize only Shell’s chosen bank to process [these] credit card transactions” creates an illegal tying arrangement in violation of the Sherman Act, § 1. In this trying arrangement, the tying products are Shell brand gasoline and the Shell trademark, and the tied product is Defendants’ selected bank for processing of transactions. Id. at 19, ¶ 138. Plaintiffs alternatively contend that “Shell’s practice of coercing Plaintiffs to effectuate gasoline sales through ICRs and forcing [the use of) only Shell’s chosen bank to process [these] credit card transactions” is another illegal tying arrangement. Id. at 19, ¶ 139. Plaintiffs generally allege these tying arrangements affect interstate commerce, because all Shell brand lessee-dealers are required to abide by the same arrangements. Id. at 19-20, ¶¶ 139, 140. Plaintiffs allege that this tying arrangement harms both lessee-dealers and consumers. Plaintiffs contend that Shell gasoline has unique additives and there is no alternative for consumers of Defendants’ gasoline. See Id. at 19, ¶ 139. Defendants’ tying arrangement thus harms consumers who bear the burden when the increased costs of Defendants’ ICR policy is passed on to the consumer in higher priced Shell brand gasoline. Id. at 20, ¶¶ 139, 142. Plaintiffs deduce that Defendants thus have leverage power in “its branded gasoline and trademark” over Shell dealers because, from the independent lessee-dealers’ perspective, there is no alternative to Shell gasoline. Id. at 20, ¶ 141. In Count II, Plaintiffs allege that the tying product is “Shell’s unique branded gasoline product, in which Shell has market power, and the tied product is ICRs which travel in commerce.” Id. at 21, ¶ 147. Plaintiffs claim “Shell makes future sales of its branded gasoline contingent upon Plaintiffs’ use of Shell’s ICRs.” Id. at 21, ¶ 148. Plaintiffs add that Shell has leverage power in its branded gasoline over independent Shell dealers, because from the independent Shell lessee-dealers’ perspective, there is no alternative to Shell branded gasoline.” Id. at 21, ¶ 149. Plaintiffs add that “this harms the ultimate consumer who must endure higher prices to get unique Shell gasoline product ... because the costs to Plaintiffs are increased.” Id. at 21, ¶ 150. The net effect, Plaintiffs allege in Counts I and II, is that the “tying arrangement is forcing Plaintiffs out of business, as they lose money if they accept the higher lease amount without passing the increase on to their customers, or they lose money by making fewer sales as customers frequent competing Shell gasoline stations which have lower gasoline prices and which are not restrained by Shell’s illegal tying arrangements.” Id. at 20-21, ¶ 145; at 22, ¶ 153. B. Count III: Price Discrimination in Violation of the Robinson-Patman Act Plaintiffs allege that “beginning at least in 1995 and continuing to the present, Shell has engaged in the practice of giving jobbers a substantial and preferential discount on the price of Shell gasoline.” Plaintiffs’ First Amended Complaint, at 14, ¶ 111. Jobbers purchase Shell brand gasoline from the Shell terminal at a predetermined “rack price.” Id. The independent lessee-dealers, on the other hand, purchase Shell gasoline directly from Shell at a “dealer tank wagon” (“DTW”) price, which is greater than Shell’s rack price. Id. These jobbers, Plaintiffs allege, sell this gasoline to jobber stations at a discounted price, which is lower than the price Shell charges Plaintiffs’ stations. Id. at 14, ¶ 112. Plaintiffs allege that the difference constitutes a discriminatory sale within the meaning of the Robinson-Patman Price Discrimination Act amendment to § 2(a) of the Clayton Act, 15 U.S.C. § 13(a). Id. at 23, ¶ 161. Plaintiffs further allege that these discriminatory pricing practices have caused the “substantial lessening of competition” in the retail gasoline market as between Plaintiffs and Defendants’ “favored buyers.” Plaintiffs’ First Amended Complaint, at 23, ¶ 159. Plaintiffs claim impairment of their “ability to compete with Shell jobbers at the retail level ... resulting in lost sales and profits, as well as other damages, including being forced out of the Shell-branded gasoline market.” Id. at 23, ¶ 160. C. Count IV: Violation of § 1 of the Sherman Act In Count IV, the last federal law claim, Plaintiffs contend the Defendants have conspired with unspecified jobbers to keep Plaintiffs from purchasing fuel at competitive wholesale prices. Plaintiffs’ factual allegations regarding price discrimination are essentially the same as those outlined above in Count III of Plaintiffs’ First Amended Complaint. See Id. at 23-34, ¶¶ 163-165. In Count IV, however, Plaintiffs explicitly allege that the “relevant product market” is “Shell-branded gasoline.” According to Plaintiffs, this product “is unique and defines its own relevant market due to the patented additives” included in this gasoline and due to Defendants’ branded “credit cards that allow consumers holding those cards to charge gasoline at Shell stations.” Plaintiffs’ First Amended Complaint, at 24, ¶ 166. Plaintiffs alternatively argue that the “relevant product market for this cause of action is Shell-branded gasoline from the perspective of independent Shell lessee-dealers.” Id. at 24, ¶ 167. Plaintiffs then argue that the entire continental United States constitutes the relevant geographical market for their relevant product, Shell brand gasoline. Id. at 24, ¶ 168. Plaintiffs allege that “[ojther relevant geographic markets, or sub-markets, for this cause of action are the geographic markets of each of the individual Plaintiffs’ stations....” Id. Plaintiffs complain that Defendants have “sought to obtain or maintain monopoly market power within the U.S. Shell-branded gasoline market as well as each sub-market” (Id. at 25, ¶ 171), and have “used [their] market power to engage in discriminatory pricing of Shell-branded gasoline and to breach its duties owed to Plaintiffs under [their] contracts with Plaintiffs to quash competition and force independent dealers out of the Shell-brand gasoline market.” Id. at 25, ¶¶ 172, 177. Plaintiffs in conclusory fashion allege that Defendants’ conduct has “injured the relevant Shell-branded gasoline markets and each Plaintiff’ (Id. at 25, ¶ 170), and have “unreasonably restrain[ed] trade in an anti-competitive manner” (Id. at 25, ¶ 173). Plaintiffs further contend that Defendants’ officers and agents have “conspired” or “acted in concert and have entered into agreements with Plaintiffs, which restrain trade in an anti-competitive manner” (Id. at 25, ¶ 175), and have conspired with jobbers to restrain trade (Id. at 25, ¶ 176). Plaintiffs’ counsel, in oral argument, stated that they assert a horizontal boycott of the lessee-dealers by Shell and the jobbers and, as such, they allege a per se violation of § 1 of the Sherman Act. D. Count V: Fraudulent Inducement Plaintiffs allege that Defendants failed to disclose several material facts which, if disclosed, would have resulted in the lessee-dealers not entering into relationships with the Defendants. See id. at 26, ¶ 182. Plaintiffs claim Defendants either knew the assertions were false when made or that they were made recklessly without knowledge of the truth. Id. at 26-27, ¶ 182. In addition, Plaintiffs allege that Defendants intended for Plaintiffs to rely on the misrepresentations to their detriment. As a result, Plaintiffs were fraudulently induced to sign the agreements that now govern Plaintiffs’ relationships with Defendants. Id. Defendants argue that Plaintiffs allegations are merely conclusory and do not satisfy the heightened pleading requirement for fraud allegations. Fraudulent allegations must be pleaded with particularity in accordance with Fed.R.Civ.P. 9(b). Defendants note that no specific Plaintiff has alleged what misrepresentations were made to him or her, or specify how any misrepresentation was relied upon by Plaintiff to his or her detriment. Defendants state the purpose of the particularity requirement is to avoid meritless complaints. Defendants claim Plaintiffs’ allegations ignore this requirement and therefore the First Amended Complaint should be dismissed. At the Court’s September 17, 1999, pretrial conference, Plaintiffs did not dispute the lack of specifics as to each Plaintiff but requested time to gather the necessary information. The Court orally ruled that Plaintiffs’ fraud claim was insufficiently specific and therefore was legally insufficient as to each separate Plaintiff. Rather than require re-pleading in the complaint per se, the Court directed Defendants to serve interrogatories to which each Plaintiff must respond; these interrogatories are to elicit the necessary details as to each Plaintiffs fraud claims, standing, and other matters. On reflection, and in light of other rulings on Defendants’ motions, the Court now concludes that Plaintiffs shall be required to file a second amended complaint with an appendix that addresses the claims of each Plaintiff separately, including inter alia the particulars of his or her fraud claim. The Court will address the sufficiency of the fraud claims when and if challenged by summary judgment motion at a later date. E. Plaintiffs Other State Law Claims Plaintiffs also allege claims of tortious interference with a contract, breach of contract, breach of the duty of good faith and fair dealing and unfair competition. Defendants have not filed motions concerning these claims and issues concerning their sufficiency are not currently before the Court. II. LEGAL STANDARDS FOR MOTIONS TO DISMISS Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure is appropriate when, taking the facts alleged in the complaint as true, it appears certain that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); C.C. Port, Ltd. v. Davis-Penn Mortgage Co., 61 F.3d 288, 289 (5th Cir.1995). A court must limit its inquiry to the facts stated in the complaint and the documents either attached to or incorporated into the complaint; however, courts may also consider matters of which they may take judicial notice. Lovelace v. Software Spec trum, Inc., 78 F.3d 1015, 1017-18 (5th Cir.1996). “In antitrust cases in particular, the Supreme Court has stated that ‘dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.’ ” George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 139 (2d Cir.1998) (quoting Hospital Building Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976).) “Nonetheless, ‘[i]t is not ... proper to assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.’ ” Id. (quoting Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)). III. DISCUSSION A. Illegal Tying Arrangements 1. Summary Plaintiffs allege that, in order to continue to supply Shell gasoline to Plaintiffs, Defendants illegally (i) require the use of ICRs, (ii) require the use of Defendants’ specified ICRs, and (iii) require the use of Defendants’ specified credit processing services for ICR transactions, all of which impose added costs on Plaintiffs (collectively, the “ICR policy”). Plaintiffs consistently allege that the tying products are Shell gasoline and the Shell trademark, and the tied products are Defendants’ selected ICRs and/or credit processing services. See Plaintiffs First Amended Complaint, at 19-20, ¶¶ 138, 139. The ICR policy, Plaintiffs argue, violates both § 1 of the Sherman Act (Count I) and § 3 of the Clayton Act (Count II). Defendants argue that Plaintiffs have not alleged all of the necessary elements for an illegal tying claim. First, Defendants argue that Plaintiffs cannot show that Defendants have market power in the tying product, which Defendants contend is gasoline generally. Implicitly, Defendants contend that the “relevant market” is branded gasoline, rather than Shell brand gasoline. Second, Defendants emphasize that relationships arising from the Dealer Agreements at issue in this case do not create market power recognized under the antitrust law. Rather, Defendants contend they have contractual power over Plaintiffs. Last, Defendants contend that Plaintiffs have failed to allege an unreasonable restraint of competition in the tied product. Plaintiffs respond to Defendants’ Motion by contending that they have alleged all the necessary elements of an illegal tying agreement. First, Plaintiffs contend that “Shell-branded gasoline” constitutes the relevant market. Plaintiffs support this contention first by arguing that Shell gasoline, a product protected by the Shell trademark, is a unique product for which consumers are willing to pay a higher price than other gasoline. See Plaintiffs’ First Amended Complaint, at 19, ¶ 139. Alternatively, Plaintiffs argue that the individual lessee-dealers are “locked in” by the ICR policy. Plaintiffs point out that they were unaware of Defendants’ plan to use ICRs when they entered into their Dealer Agreements, which by their nature are long term agreements. Id. at 16, ¶ 124. Plaintiffs complain that Defendants’ ICR policy invokes antitrust liability under the Supreme Court’s rule announced in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (“Kodak ”) (1992). Last, Plaintiffs state generally that, if not coerced by Defendants’ tying arrangement, Plaintiffs would choose less expensive ICRs and processing services with more favorable rates. See e.g., Plaintiffs’ First Amended Complaint, at 20, ¶ 143. Plaintiffs contend they have sufficiently alleged an anti-competitive effect on the tied market. The Court concludes that Plaintiffs have failed to state a legally cognizable claim of illegal tying. As to the alleged injury to Plaintiffs’ lessee-dealers, the Court concludes that the tying arrangement arises from contractual provisions contained in Defendants’ Dealer Agreement, and the Kodak doctrine is not applicable. Furthermore, the Court holds that Plaintiffs have failed to allege any anti-competitive effect on the market for the tied products, ICRs and related credit card processing services. As to the alleged injury to the retail gasoline consumers, the Court concludes that, as a matter of law, Shell gasoline is not a legally cognizable “relevant market.” Therefore, Plaintiffs have not alleged that Defendants have market power in the tying product, and cannot state a claim under either the Sherman or Clayton Acts. The Court last concludes that, as to the retail gasoline consumers, Plaintiffs have failed to allege either an anti-competitive effect on the tied market or an illegal tie. 2. Legal Standards Governing Tying Arrangements Plaintiffs allege that Defendants’ ICR policy is an illegal tying arrangement. A “tying arrangement” is one under which “a seller agrees to sell one product (the ‘tying product’) only on the condition that the buyer also purchase a second product (the ‘tied product’),” Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 373 (5th Cir.1977), or that the seller sells the tying product only on the condition that the buyer “agrees that he will not purchase the product from any other supplier.” Eastman Kodak Co., 504 U.S. at 461, 112 S.Ct. 2072 (citation omitted). Thus, Defendants’ ICR policy is a tie under federal law. However, not every tying arrangement is illegal. See Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 11, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). “Such an arrangement violates § 1 of the Sherman Act if the seller has appreciable economic power in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.” Kodak, 504 U.S. at 462, 112 S.Ct. 2072 (citation omitted). To show that a tying agreement is illegal, a plaintiff must demonstrate that the tie is either per se illegal or invalid under the rule of reason. See 9 Phillip E. Areeda Antitrust Law § 1719a (1991) (“Areeda”). To establish per se illegality, a plaintiff must show: (1) two separate products (as opposed to components of a single product); (2) that are tied together or the customers are coerced into buying; (3) the supplier possesses substantial economic power over the tying product; (4) the tie has an anti-competitive effect on the tied market; and (5) the tie affects a not insubstantial volume of commerce. United Farmers Agents Ass’n, Inc. v. Farmers Ins. Exchange, 89 F.3d 233, 236 n. 2 (5th Cir.1996) (“United Farmers ”) (citing Areeda § 1702; Kodak, 504 U.S. at 461-62, 112 S.Ct. 2072; Hyde, 466 U.S. at 11-28, 104 S.Ct. 1551). If a plaintiff is unable to satisfy this test, the plaintiff nevertheless may be able to show that a tying arrangement is invalid under the “rule of reason.” Id. Under this latter approach, a plaintiff has the burden of demonstrating that “the tying arrangement ‘unreasonably restrained competition.’” Id. at 236 n. 2, 104 S.Ct. 1551 (citing Hyde, 466 U.S. at 29, 104 S.Ct. 1551). A key element in most antitrust claims is ultimate harm to consumers. See Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 441 (3rd Cir.1997) (Scirica, J.) (“Queen City Pizza ”) (recognizing that “[t]he purpose of the Sherman Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market”); United Farmers, 89 F.3d at 236 (rejecting plaintiffs antitrust claim because it “has nothing to do with ... ultimate consumers ...”); Roy B. Taylor Sales, Inc. v. Hollymatic Corp., 28 F.3d 1379, 1382 (5th Cir.1994) (“[T]he antitrust laws protect competition, not competitors. Ultimately, the consumer is the beneficiary.”). 3. Lessee-Dealers as Consumers Plaintiff’s Allegations. — To analyze a tying claim, the relevant product market for both the tying and tied products must be identified. See Town Sound and Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 479 (3rd Cir.1992) (“To determine the existence of market power for purposes of the ‘per se’ test, then, we must first define the relevant tying product market....”); Queen City Pizza, 124 F.3d at 441 (holding that plaintiffs had failed to adequately allege a tied product market). Plaintiffs’ definitions of the relevant products and markets for Plaintiffs as consumers vary slightly in Counts I and II. As to the tying product and markets, Plaintiffs variously allege that Shell gasoline and the associated Shell trademark are the tying products and argue that the relevant market is retail gasoline sales to the public, i.e. individual retail consumers; either in a national market or in the locale of each individual dealership. See Plaintiffs’ First Amended Complaint, at 20, ¶ 142; at 21, ¶ 150. Plaintiffs also complain that in order to obtain continued supply of Shell gasoline, the necessary product for their Shell dealerships, Plaintiffs are locked in to the ICR policy, and have high costs of switching to a new product. See, e.g., id. at 9-10, ¶ 84; at 17, ¶ 128 (“All facts indicate that ... Shell requires dealers to agree to use the single Shell-approved bank as a condition for continued purchase of Shell-branded gasoline and the use of the Shell trademark.”); at 19-20, ¶¶ 131, 138, 139, 141; at 21, ¶¶ 147, 148, 149. These allegations are surrogates for the theory that Plaintiffs’ Shell dealerships (the right to obtain Shell gasoline and use Shell’s trademark) established by the Dealer Agreement are the relevant tying products for Plaintiffs as the consumers in issue. See Plaintiffs’ First Amended Complaint, at 19, ¶ 138; at 21, ¶ 141; at 21-22, ¶¶ 148,149,152,153. Plaintiffs allege various theories as to the tied products under Defendants’ ICR policy. In Counts I and II Plaintiffs allege that the tied product is the ICRs per se, since Plaintiffs are required to make monthly payments to Defendants for this equipment which Defendants allegedly require. See First Amended Complaint, at 17, ¶ 128; at 20, ¶ 138; at 21, ¶ 147. Plaintiffs also allege in Count I that the tied product is the bank credit card processing services which Defendants select and require in connection with all ICR transactions. See id. at 20, ¶¶ 139,140. Sufficiency Under Tying Doctrines Generally. — Plaintiffs’ allegations are insufficient to state a tying claim in which the Shell trademark and right to receive gasoline are the tying products. Plaintiffs have not alleged that Defendants have market power in the gasoline trademark/franchise market generally. Nor do Plaintiffs allege that other gasoline franchises or branded gasoline are now or ever were available to them from other gasoline suppliers (e.g., Texaco, Mobil or Chevron) without similar constraints. Nor do Plaintiffs allege that selling a different brand of gasoline would cost them less in general, or cost them less specifically because they could use different ICRs, could obtain different credit processing services, or could avoid ICRs at all. Effect of Contractual Relationships on Antitrust Analysis. — Plaintiffs complain as to the ICR policy that Defendants’ “tying arrangement is forcing Plaintiffs out of business” because Plaintiffs are “locked in” to the ICR policy in order to continue their supply of Shell gasoline. See id. at 19-21, ¶¶ 138-153. Plaintiffs and Defendants entered into Dealer Agreements which establish contractual relationships akin to a franehisee/franchi-sor relationship. As a result of this contract, Plaintiffs are obligated to purchase only Shell gasoline. The “lock in” theory, insofar as Plaintiffs allege harm to themselves, rests entirely on the Supreme Court’s opinion in Kodak Plaintiffs contend that the Supreme Court in Kodak held that antitrust liability may exist when the purchasers of a unique product demonstrate that they are “locked in” to buying tied products. In Kodak, the seller, Eastman Kodak Co., sold both complex copiers (and other expensive equipment), as well as aftermarket parts and repair services. Id. at 457, 112 S.Ct. 2072. All the equipment and parts were unique to Kodak and could not be “interchanged with other manufacturers’ goods.” Id. at 456-57, 112 S.Ct. 2072. In the early 1980s, independent entities (“independent service organizations” (“ISOs”)) began to provide aftermarket repair services for Kodak equipment. The ISOs purchased parts both from Kodak and independent original equipment manufacturers (“OEMs”). In 1985 and 1986, Kodak instituted several policies in an attempt to destroy the ISOs. Id. at 458, 112 S.Ct. 2072. First, Kodak agreed to sell its replacement parts only to those owners of its equipment who used Kodak repair services. Id. Second, Kodak entered into agreements with the OEMs to limit sales of aftermarket parts to the ISOs. Id. As a result, the cost of aftermarket servicing and repairs rose considerably. Id. The Supreme Court held that the plaintiff ISOs stated a viable Sherman Act § 1 claim in their allegations that Kodak’s tie of aftermarket servicing and repairs to the purchase of Kodak equipment was illegal. Id. at 477, 112 S.Ct. 2072. The Supreme Court held that the ISOs § 1 claim could go to a jury even though defendant Kodak did not have market power over the tying product, complex copiers. The Court reasoned that the purchaser of a new Kodak copier in effect was “locked in” to the purchase of Kodak’s unique replacement parts market, over which Kodak had a 100% monopoly. Through its total control of the replacement parts, Kodak had the power to manipulate the market for repair services of its copiers. Id. at 465, 112 S.Ct. 2072. The Supreme Court thus held that plaintiffs had met their summary judgment burden to raise a fact question. The Court then addressed an alternative argument by Kodak, that it lacked market power in the copier market (an alternative tying product). The Court held that the lack of power in the tying product market was not dispositive of the tying claim because its prices for after-market goods were limited by the competitive market for the original equipment; Kodak contended that the increase in profits it could earn from higher prices in the after-markets for parts and service “would be offset by a corresponding lost in profits from lower equipment sales as consumers began purchasing equipment with more attractive service costs.” Id. at 465-66, 112 S.Ct. 2072. The Supreme Court rejected this argument because, at the time of the consumer’s original equipment purchase, the consumer did not have the information necessary to determine the ultimate cost of the tying good, the purchase price of the complicated copiers plus all maintenance costs (service and repairs) over the life of that equipment. Id. at 476, 112 S.Ct. 2072. In addition, the Court noted that evidence established that the cost of the ultimate consumer switching the tying product (the copiers) after the initial purchase was prohibitively high. Id. at 477, 112 S.Ct. 2072. Thus, the Court held that it was possible that Kodak’s attempt to increase overall profits by tying its monopolistic control of aftermarket parts and services to sales of its equipment could constitute an illegal tie, and that the district court’s grant of summary judgment in favor of Kodak was improper. Id. at 477-79, 112 S.Ct. 2072. This Court concludes that the Kodak “lock in” theory does not govern Plaintiffs’ tying claims in the case at bar. There are material distinctions between the circumstances of a Kodak copier purchaser and Plaintiff lessee-dealers in the instant case. In Kodak, there was no long term contractual relationship between the copier purchaser and Kodak. Rather, provision of repair services or parts was an independent transaction between the copier owner (the consumer) and the supplier of the repair services; customers of Kodak equipment did not enter into any contractual obligation to purchase aftermarket service and parts from Kodak. See Kodak, 504 U.S. at 457-58, 112 S.Ct. 2072. Indeed, the absence of a required service agreement with Kodak had provided the opportunity to the ISOs to thrive for years. Moreover, integral to the Court’s analysis was Kodak’s indisputable monopoly on the replacement parts market, one of the tying products, although the replacement parts were not included in the original copier purchase. In contrast, Plaintiffs at bar have preexisting and continuing contractual relationships with Defendants. Specifically, each Plaintiff signed a detailed Dealer Agreement and is obligated to comply with requirements in related documents such as 'the “Image Excellence Book” that establish a marketing plan prescribed by Defendants. See Plaintiffs’ First Amended Complaint, at 11-12, ¶¶ 90-93. Plaintiffs are “locked in” to Defendants’ ICR policy because of their supply contracts and contractual marketing requirements. It is these agreements that dictate how Plaintiffs are to sell Shell gasoline and grant Defendants the power to dictate policy to Plaintiffs. See Hyde, 104 S.Ct. at 1565 (“[Tjhere is nothing inherently anti-competitive about packaged sales. Only if [buyers] are forced to purchase [the tied] services as a result of the [seller’s ] market power would the arrangement have anti-competitive consequences.”) (emphasis added); see also Queen City Pizza, 124 F.3d at 441 (finding Kodak inapplicable where the plaintiffs were forced to purchase related products because of contractual requirements); see generally United Farmers, 89 F.3d 233 (5th Cir.1996). Plaintiffs’ complaints about the ICR Policy challenge the way Defendants require their dealers (ie., franchises) to market and sell the supplier’s franchised product. These allegations presume Plaintiffs have an entitlement to Shell gasoline outside the relationship created by the Dealer Agreement. Plaintiffs arguments attack the essence of the parties’ contractual relationship. Plaintiffs artificially attempt to separate the means of delivery of the Shell gasoline to retail customers from the franchise relationship. Receipt and processing of retail customers’ payments for retail gasoline purchases is an integral part of a gasoline dealer’s function. Plaintiffs’ challenge to Defendants’ ICR policy amounts to an attack on the scope of parties’ franchise relationship, and thus sounds in contract, or conceivably tort, not antitrust. The relationship between Plaintiffs and Defendants here is materially different from the circumstances in Kodak and its progeny. Kodak does not resuscitate life into Plaintiffs’ otherwise insufficient tying allegations. This conclusion is consistent with two circuit court rulings. First, in United Farmers, the Fifth Circuit indicated skepticism of antitrust claims arising solely from contractual relationships. In that case, the United Farmers Agents Association, Inc. (“UFAA”) and insurance agents selling Farmers insurance sued Farmers, alleging that Farmers illegally tied the sale of specifically configured computers to its sale of electronic policyholder information. See United Farmers, 89 F.3d at 235. The Fifth Circuit held, in affirming a district court’s grant of summary judgment in favor of Farmers, that the relevant market was insurance sales and that the UFAA did not present evidence that Farmers had market power in the insurance sales market. Id. at 237. The court of appeals in United Farmers further concluded that, even if it assumed the narrower tying product market advocated by the plaintiffs, UFAA had failed to offer any evidence concerning the supra-competitive price of the tied product, the specially configured computers. • Id. The Fifth Circuit stated that: This suit is essentially an intracompany dispute over how to run a computer system, not a valid claim under antitrust laws. Economic power derived from contractual arrangements such as franchises or in this case, the agents’ contract with Farmers, has nothing to do with market power, ultimate consumers’ welfare, or antitrust. Id. at 236-37 (emphasis added) (citation omitted). The limitation that franchise agreements impose upon antitrust claims is also addressed by the Third Circuit in Queen City Pizza. In Queen City Pizza, the plaintiffs were eleven Domino’s Pizza, Inc. franchisees and the International Franchise Advisory Council, Inc. (a corporation formed to protect Domino’s franchisees’ common interests). As franchisees of Domino’s, plaintiffs were required to sign a franchise agreement which provided that Domino’s “may in [Domino’s] sole discretion require that ingredients, supplies, and materials ... be purchased directly from us or from approved suppliers or distributors.” Id. at 433. The plaintiffs contended that years after the inception of plaintiffs’ franchise agreements, Domino’s initiated policies designed to limit the plaintiffs’ ability to purchase less expensive ingredients and supplies from independent sources. Id. at 434. In response to Domino’s actions, plaintiffs asserted various antitrust causes of action, including a tying claim alleging that Domino’s illegally required franchisees to buy supplies and ingredients as a condition of obtaining fresh dough from Domino’s. Id. at 436. The Third Circuit upheld the district court’s Rule 12(b)(6) dismissal of plaintiffs antitrust claims. The court of appeals rejected the argument advanced by the plaintiffs that the relevant market was Domino’s approved ingredients. Id. at 438. In so doing, the Third Circuit stated that “no court has defined a relevant product market with reference to the particular contractual restraints of the plaintiff.” Id. (citing Mozart Co. v. Mercedes-Benz of North America, 833 F.2d 1342 (9th Cir. 1987)). The court of appeals explicitly found Kodak inapplicable and reiterated that the plaintiffs were involved in contractual franchise relationships with defendant: “[Franchising is a bedrock of the American economy ... we do not believe the antitrust laws were designed to erect a serious barrier to this form of business organization.” Queen City Pizza, 124 F.3d at 441. The appeals court concluded its distinction of Kodak by stating: [U]nlike the plaintiffs in Kodak, plaintiffs here must purchase products from Domino’s Pizza not because of Domino’s market power over a unique product, but because they are bound by contract ... [plaintiffs’ remedy, if any, is in contract, not.under the antitrust laws. Id. at 441. The Third Circuit’s rationale concerning contractual power and antitrust claims in Queen City Pizza is probative in the case at bar. Plaintiffs, by entering into their Dealer Agreements, were aware that Defendants would control the gasoline product and many aspects of the method of sales by Plaintiffs. Plaintiffs attempt to distinguish Kodak from Queen City Pizza on the grounds that the Domino’s franchisee plaintiffs, unlike those in Kodak and the present case, were aware of the contractual provisions that necessitated purchase of the tied product when they entered the franchise contract. See Plaintiffs’ Response, at 11 & n. 5. The Court is unpersuaded. The Third Circuit squarely held that franchise agreements do not give rise to antitrust liability. Any discussion of the knowledge of the franchisees in Queen City Pizza is ancillary to this main point. Moreover, the ties in issue in Queen City Pizza were imposed after the parties had entered into the initial franchise agreements. See Queen City Pizza, 124 F.3d at 434. As stated in United Fanners, “[economic power derived from contractual arrangements such as franchisees ... has nothing to do with market power, ultimate consumers’ welfare, or antitrust.” See United Farmers, 89 F.3d at 236-237. The only reason that Shell gasoline is “unique” for the Plaintiffs (lessee-dealers) is that they have contracted to sell Shell gasoline. Plaintiffs’ tying claim complaining of injury to Plaintiffs as lessee-dealers therefore does not fit within the wrongs antitrust laws were designed to address. In summary, the Court holds that, in the case at bar, Plaintiffs’ allegations are insufficient to escape the constraints of the Dealer Agreements, Plaintiffs’ voluntary contractual arrangements with Defendants. Lack of Allegations of Lessening of Competition in Tied Product’s Market.— Kodak also fails to assist Plaintiffs because Plaintiffs’ First Amended Complaint does not allege that Defendants’ tying arrangement had an anti-competitive effect on the ICR market or the market for bank processing services of ICR transactions. Thus, Plaintiffs fail as a matter of law to allege an illegal tying claim. Kodak eliminates the need to plead market power in the tying product, but does not excuse failure of a plaintiff to allege an effect on competition in the tied product’s market. Examples of Plaintiffs’ allegations are that “[a]s a result of Shell’s mandates regarding ICR financing, Plaintiffs have been forced to pay a higher lease amount for the ICR machines than they would have incurred had they been able to purchase them outright or lease them from another party.” Plaintiffs’ First Amended Complaint, at 22, ¶ 151. See also id. at 18, ¶¶ 130, 131. Plaintiffs in their Response state that “[i]n the absence of a tie, plaintiffs would have selected different banks with more favorable rates.” Plaintiffs’ Response, at 12. These allegations are legally insufficient. Indeed, Plaintiffs’ allegations have the unintended consequence of demonstrating that the markets for ICRs and credit card processing services have not been affected by Defendants’ ICR policy. Plaintiffs believe they could find comparable ICR products and services at a lower price from third party sources. Plaintiffs thus indicate that the market for those products and services experiences competition. Therefore, the Court concludes that Plaintiffs have failed to allege an anti-competitive effect on the markets for the tied products. 5. Retail Consumers of Shell Gasoline Insufficient Allegations Concerning Tying Product Market. — Plaintiffs allege a second illegal tying theory: they allege that Defendants’ policies harm retail gasoline purchasers, the ultimate gasoline consumer. In this context, Plaintiffs contend that the tying product is Shell gasoline. “[M]arket power is a necessary prerequisite to an illegal tie.” See United Farmers, 89 F.3d at 235. In order to show market power, a plaintiff first must define the relevant market. While the exact contours of the relevant market depend upon factual determinations, the antitrust plaintiff in a tying claim at a minimum must allege a relevant market. See Queen City Pizza, 124 F.3d at 436 (there is no “per se prohibition against dismissal of antitrust claims for failure to plead a relevant market under Fed.R.Civ.P. 12(b)(6).”). A key in determining the relevant market includes an analysis of the cross-elasticity of demand for the product in question and all of its potential substitutes. In other words, “[t]he outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Id. (quoting Brown Shoe Co., 370 U.S. at 325, 82 S.Ct. 1502). Plaintiffs’ allegations as to the retail gasoline consumer fail as a matter of law for two reasons. First, the only tying product as to which Plaintiffs plead a relevant market in which Shell has market power is Shell gasoline, which Plaintiffs allege is “unique” because of “special patented additives in which Shell has market power.” Plaintiffs’ First Amended Complaint, at 19, ¶ 139; at 21, ¶ 147. Plaintiffs claim that Defendants’ actions “harm[ ] the ultimate consumer who must endure higher prices to get the unique Shell gasoline product.” Plaintiffs’ First Amended Complaint, at 20, ¶ 142; at 21, ¶ 150. In addition, Plaintiffs allege that the tying product is “Shell’s trademark.” Id. at 19, ¶¶ 138,139. Plaintiffs’ definition of the tying product market makes no reference to cross-elasticity of demand. Plaintiffs’ allegations amount only to the contention that consumers may prefer Shell brand gasoline. Plaintiffs do not allege that there are no close substitutes for Shell gasoline. A single product, rarely constitutes a market for antitrust purposes, even if that product is a trademarked product. See Town Sound and Custom Tops, Inc., 959 F.2d at 479. In Town Sound the Third Circuit held that “a prestigious trademark is not itself persuasive evidence of economic power because a trademark, unlike a patent, protects only the name or symbol and not the product itself.” Id. In response to an attempt to define the relevant market in terms of a single trademarked product, the Seventh Circuit stated that: Not even the most zealous antitrust hawk has ever argued that Amoco gasoline, Mobil gasoline, and Shell gasoline are three separate product markets, yet that absurd result would follow if we recognized Olympian trademarked generator sets as a separate market in this case. Generac Corp. v. Caterpillar Inc., 172 F.3d 971, 977 (7th Cir.1999). Therefore, the Court concludes with respect to the retail consumer theory that Plaintiff has failed to plead a legally viable relevant market or to plead that Defendants possessed market power over a viable relevant product market. No Effect on Tied Market. — Plaintiffs’ tying claim of alleged harm to retail consumers also is insufficient because Plaintiffs fail to allege that Defendants’ ICR policy creates an adverse effect on a retail consumer market for any tied product. Plaintiffs, as noted above, do not make allegations concerning impact on the markets for ICRs and credit processing services. Even if Plaintiffs alleged a legally cognizable market from the retail gasoline consumers’ perspective, their theory fails since Plaintiffs do not allege that there is a tied product or any tying agreement as to these consumers. The Supreme Court has stated that a tying arrangement must link “two distinct markets for products that [are] distinguishable in the eyes of buyers.” Hyde, 466 U.S. at 20, 104 S.Ct. 1551. There can be no tying arrangement unless there is a “distinct demand” for the tied product. See Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 477 (7th Cir.1988). One indicator of this distinct demand for the tied product is whether consumers make specific requests for it. Id. Plaintiffs have not alleged — and cannot allege — that there is a distinct demand among retail gasoline buyers for a particular brand of ICR or for a certain bank’s processing services separate from the gasoline purchase. Potential choices in ICRs or credit processing services are apparent only to the dealers. Indeed, Plaintiffs’ own allegations imply that for the gasoline consumer, there is only one product, Shell gasoline. Plaintiffs allege that the price of that gasoline is the dispositive factor for the retail consumer. Plaintiffs’ First Amended Complaint, at 20, ¶ 142; at 20-21, ¶ 145; at 22, ¶ 153. From the consumer’s perspective, the tying product, gasoline, and the tied products, ICRs and related credit processing services, are offered in the same transaction. Plaintiffs have not alleged that gasoline consumers make (or seek to make) a separate choice as to which ICR or related credit service to use. See Roy B. Taylor Sales, 28 F.3d at 1384 (“a foreclosure of choice to an ultimate consumer appears to be the principal key to a tie that is illegal per se”). The Court thus concludes that Plaintiffs have failed to allege a per se unlawful tying arrangement for either Plaintiffs as the consumers, or for Plaintiffs’ retail consumers. Therefore, Defendants’ Motion to Dismiss Plaintiffs’ per se illegal tying claims under § 1 of the Sherman Act in Count I of Plaintiffs’ First Amended Complaint should be granted. 6. Rule of Reason Analysis on Tying Claims Claims that do not state a per se violation are analyzed under the rule of reason. See United Farmers, 89 F.3d at 236 n. 2 (citing Hyde, 466 U.S. at 29, 104 S.Ct. 1551). Using a rule of reason analysis, this Court reaches the same conclusion as set forth above on the per se analysis; Plaintiffs have failed to state a viable tying claim. In a case involving the rule of reason, the plaintiff must demonstrate that the defendants’ behavior “unreasonably restrained competition” (See Hyde, 466 U.S. at 29, 104 S.Ct. 1551), or “suppresses competition” (Nat’l Society of Prof'l Engineers v. United States, 435 U.S. 679, 691, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978)). In a tying case, the rule of reason test requires an additional “inquiry into the actual effect of the [tying arrangement] on competition in the market for the tied good.” Breaux Brothers Farms Inc. v. Teche Sugar Co., 21 F.3d 83, 88 (5th Cir.1994) (citing Hyde, 466 U.S. at 29, 104 S.Ct. 1551). As explained in the foregoing analysis, Plaintiffs have not alleged any effect on the market for ICRs and credit processing services. Therefore, the Court concludes that under a rule of reason analysis, Plaintiffs have failed to state an illegal tying claim under the Sherman Act § 1. 7. Clayton Act § 3 Analysis Defendants’ Motion seeks dismissal of Plaintiffs’ Clayton Act § 3 tying claim alleged in Count II of their First Amended Complaint. Plaintiffs allege in Count II that § 3 is violated by the ICR policy generally, but they focus more specifically on the requirement that Plaintiffs lease ICRs of Defendants’ choice. See Plaintiffs’ First Amended Complaint, at 21-22, ¶¶ 147, 148, 151. Plaintiffs allege that although Defendants may not produce the ICRs in question, they lease the ICRs “to Plaintiffs at inflated monthly fees.” Plaintiffs Response at 14. Plaintiffs have not responded to the Motion with any briefing pertaining to § 3. The Clayton Act § 3 provides in pertinent part: It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities ... on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce. 15 U.S.C. § 14 (emphasis added). Clayton Act § 3 applies only when both the tying and tied products are goods. See Marts v. Xerox, 77 F.3d 1109, 1113 n. 6 (8th Cir. 1996); Crossland v. Canteen Corp., 711 F.2d 714, 719 n. 1 (5th Cir.1983). Tying arrangements that involve services are not governed by § 3. See Advance Business Sys. and Supply Co. v. SCM Corp., 415 F.2d 55, 61 (4th Cir.1969). Plaintiffs attempt to fit within the Clayton Act § 3 rubric by contending that the tied “goods” are Defendants’ selection of ICRs. As a practical matter, however, the required lease of Defendants’ choice of ICRs is part and parcel of the “pay at the pump” service that is mandated by Defendants for the retail customers at Shell gasoline stations. ICRs are merely the means to implement the credit purchases in issue. Indeed, Plaintiffs in Count II re-allege all prior allegations in the First Amended Complaint, and then state first and foremost that “Shell’s practice of coercing Plaintiffs to agree to lease ICRs and forcing Plaintiffs to agree to utilize only Shell’s chosen bank to process credit card transactions constitutes an illegal tying arrangement as is prohibited by § 3 of the Clayton Act.” Id. at 21, ¶ 147. When read in context, Plaintiffs’ tying claim in Count II thus involves the coerced use of services, not merely the purchase or lease of goods. Plaintiffs’ Count II tying claim is therefore outside the scope of the Clayton Act § 3. In any event, analysis of the sufficiency of the pleadings under the Clayton Act § 3 is virtually the same as under § 1 of the Sherman Act. See Southern Card & Novelty, Inc. v. Lawson Mardon Label, Inc., 138 F.3d 869 (11th Cir.1998) (“As our predecessor court made clear, the two statutory theories of liability are substantively synonymous.” (citing Bob Maxfield, Inc. v. American Motors Corp., 637 F.2d 1033, 1037 (5th Cir. Unit A 1981))). Thus, to the extent the tied product in Plaintiffs’ Count II tying claim involves “goods” and therefore properly is governed by the Clayton Act § 3, the Court nevertheless concludes that Plaintiffs have failed to state a legally cognizable claim for the same reasons set forth above in regard to the Sherman Act § 1 tying claim. Since Plaintiffs have failed to allege a viable illegal tying claim under either possible theory, Counts I and II of Plaintiffs First Amended Complaint must be dismissed. B. Robinson-Patman Act Illegal Price Discrimination Plaintiffs also allege that Defendants have engaged in illegal price discrimination under § 2(a) of the Clayton Act as amended by the Robinson-Patman Price Discrimination Act, 15 U.S.C. § 13(a) (collectively, the “Robinson-Patman Act”). To establish a violation of the Robinson-Patman Act, each Plaintiff must prove the following four elements: (1) that one or more of Defendants’ sales of gasoline in issue as to that Plaintiff was made in interstate commerce; (2) that the gasoline supplied by Defendants directly or through jobbers to stations competing with the particular Plaintiff was of the same grade and quality as the gasoline sold to that Plaintiff; (3) that Defendants discriminated in price as between the identified jobber (or other competing buyer) and the Plaintiff in issue, and (4) that the discrimination had a prohibited effect on competition. See Texaco Inc. v. Hasbrouck, 496 U.S. 543, 555, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990); 15 U.S.C. § 13(a). In addition, to recover damages, a Plaintiff must prove the extent of his actual injuries. Id. Defendants basically contend that Plaintiffs’ Robinson-Patman Act claims fail because Plaintiffs’ purchases of Shell gasoline do not take place “in commerce.” Shell gasoline sold to each Plaintiff, Defendants argue, is produced in the same state in which that Plaintiff is located. The Court will address Plaintiffs’ various responsive arguments in turn. 1. Interstate Commerce Requirement Legal Standards Governing Interstate Commerce Element. — Analysis of these arguments in context is necessary. The Robinson-Patman Act has a stringent interstate commerce requirement. See McCollum v. City of Athens, Ga., 976 F.2d 649, 657-58 (11th Cir.1992) (adopting the Fifth Circuit standards); Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1144 (5th Cir.1973) (en banc) (“The language of the act — requiring discriminatory sales be ‘in commerce’ — is far narrower in scope than the ‘effect on commerce’ test applicable under the Sherman Antitrust Act.”); Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 208 (5th Cir.1969) (same); Foremost Dairies, Inc. v. FTC, 348 F.2d 674 (5th Cir.1965). Sales that merely “affect” interstate commerce do not meet the Robinson-Patman Act “in commerce” standard. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974) (“[T]he jurisdictional requirements of [the Robinson-Patman Act] cannot be satisfied merely by showing that allegedly anti-competitive acquisitions and activities affect commerce.”). In contrast with the Sherman Act, in which Congress exercised “the utmost extent of its Constitutional power in restraining trust and monopoly agreements,” United States v. South-Eastem Underwriters Ass’n, 322 U.S. 533, 558, 64 S.Ct. 1162, 1176, 88 L.Ed. 1440 (1944), “the distinct ‘in commerce’ language of the Clayton and Robinson-Pat-man Act[s] ... denote[ ] only persons or activities within the flow of interstate commerce — the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer,” Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195, 95 S.Ct. 392, 398, 42 L.Ed.2d 378 (1974). Claims under the Robinson-Patman Act must be predicated on the occurrence of an interstate sale of the relevant commodity. See S & M Materials Co. v. Southern Stone Co., 612 F.2d 198, 200 (5th Cir.1980) (“the cases establish that the state of being ‘in commerce’ under § 2(a) [of the Clayton Act] requires physical movement of the relevant product across a state line”) (emphasis added). McCallum, 976 F.2d at 655-56 (footnote omitted); accord, Godfrey v. Pulitzer Publishing Co., 161 F.3d 1137, 1141 (8th Cir. 1998); Littlejohn, 483 F.2d at 1142, 1143-44; Bacon v. Texaco, Inc., 503 F.2d 946 (5th Cir.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1447, 43 L.Ed.2d 763 (1975); Scranton Construction Co. v. Litton Indus. Leasing Corp., 494 F.2d 778 (5th Cir.1974). Interstate Commerce Analysis. — Defendants’ argument is founded on the factual assertion that the gasoline each Plaintiff resells at its retail stations is manufactured in the same state in which that Plaintiff is located. The Court is restricted to a review of Plaintiffs’ First Amended Complaint. See Lovelace, 78 F.3d at 1017-18. None of the seventy-three Plaintiffs in this case has pleaded with specificity a source of supply of gasoline. Nor has any Plaintiff identified the jobber or other Shell gasoline station with which that Plaintiff competes, which that Plaintiff contends receives discriminatory gasoline prices from Defendants. The Court previously has directed Plaintiffs to address these factual matters through Defendants’ interrogatories authorized by the Court at its pretrial conferences. Nevertheless, since the parties have fully briefed their legal positions on the Robinson-Patman Act’s jurisdictional “in commerce” element and this issue is a threshold matter, the Court will analyze the legal standards in light of'the pending allegations. The foregoing standards dictate that Plaintiffs who live in the same state in which Defendants refine the gasoline supplied to both those Plaintiffs and to the jobbers or others whom Plaintiffs contend receive favored pricing do not have a viable Robinson-Patman Act claim because they cannot meet the jurisdictional interstate commerce element. These Plaintiffs, in recognition of this problem, assert several theories in an attempt to salvage their Robinson-Patman Act claims. The Court will address these arguments in turn. Plaintiffs first contest Defendants’ jurisdictional argument by contending that all Plaintiffs, regardless of their wholesale suppliers’ locations, satisfy the interstate commerce element because Plaintiffs sell Shell gasoline to retail customers whose vehicles thereafter travel across state lines. This argument is rejected. Retail goods delivered from out of state to an instate buyer who then re-sells the goods to retail customers generally “cease to be in the flow of interstate commerce” when the goods reach the in-state retailer. Cliff Food Stores, Inc., 417 F.2d at 209. Plaintiffs’ argument concerning Plaintiffs gasoline sales to retail customers therefore cannot satisfy the “in commerce” requirement of the Robinson-Patman Act. Plaintiffs’ “retail sales” jurisdictional argument fails also because the retail sales by Plaintiffs to consumers are not the transactions that Plaintiffs claim are discriminatory. The Fifth Circuit has held that “[u]nder the terms of section 13(a) [of the Robinson-Patman Act] ... at least one of the sales alleged to be discriminatory must actually be in interstate commerce.” Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 208 (5th Cir.1969). In Cliff Food Stores, the court of appeals reaffirmed its observation in Hiram Walker, Inc. v. A & S Tropical, Inc., 407 F.2d 4 (5th Cir.1969), cert. denied, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969), that: In order to come within the provisions of the Robinson-Patman Act, the (plaintiff) must demonstrate that the discriminatory sales were “in commerce.” ... Thus, the Robinson-Patman Act is applicable only where the allegedly discriminatory transactions took place in interstate commerce. That is, “... at least one of the two transactions which, when compared, generate a discrimination must cross a state line.” Cliff Food Stores, Inc., 417 F.2d at 208-09. Plaintiffs’ Robinson-Patman Act claims center wholly on discriminatory wholesale sales by Defendants. In order to satisfy the jurisdictional requirement of the Robinson-Patman Act, Plaintiffs must allege an interstate wholesale sale of gasoline. Plaintiffs have not done so. Plaintiffs’ attempt to satisfy the interstate commerce element of their Robinson-Patman Ac