Full opinion text
MEMORANDUM CAHN, District Judge. On the eighth day of trial in this labyrinthine antitrust case I directed a verdict in favor of the defendant. (N.T. 1860). The directed verdict did not dispose of all of the issues in the case, however, and the parties agreed to resolve one of these issues amicably and to submit the others to this court for a decision based on their written briefs. (N.T. 1889-91). Now that I have received those briefs and had an opportunity to carefully review the record, I will explain why I decided to grant the defendant’s motion for a directed verdict. I will also rule on one of the two issues which remain in this case. Before undertaking that task, however, I wish to set forth the facts and procedural history of this litigation. I. FACTS The plaintiff, Edward J. Sweeney & Sons, Inc. (Sweeney), is a wholesaler and distributor of Texaco gasoline in the Eastern Pennsylvania and Southern New Jersey markets. In addition to its wholesale business Sweeney owns several retail gasoline stations. The defendant, Texaco, Inc. (Texaco), is a refiner of gasoline and other petroleum products. Sweeney has been in the wholesale gasoline business since 1944. (N.T. 90). After several years as a consignee and wholesaler for other companies it first became a Texaco wholesaler and distributor in 1958. (N.T. 90-94). It has remained a Texaco wholesaler and distributor up to the present time. (N.T. 94). In 1963 Sweeney and Texaco entered into a distributor agreement which ultimately led to this litigation. (1963 Distribution Agreement; Plaintiffs’ Exhibit 4; N.T. 100). Prior to 1965 Sweeney marketed gasoline through full-service gasoline stations. (N.T. 102). These stations provided services such as greasing, lubrication, and tuneups in addition to the selling of gasoline. (N.T. 101). Sometime in 1965 or 1966 Sweeney’s stations began to sell gasoline at a discount. (N.T. 102). Although other discount gasoline stations sold only unbranded gasoline, the Sweeney stations sold Texaco branded gasoline at a price of between one and three cents per gallon less than the price of other branded gasoline sold in the area. (N.T. 132, 145, 156-163). After the adoption of the discount concept, Sweeney’s gallonage increased steadily until in 1968 it won a wholesaler’s gasoline sales contest for having shown the highest gallonage increase of all the Texaco distributors in the area. (Plaintiffs’ Exhibit 6). As Mr. Richard V. Sweeney, president of the plaintiff corporation testified, the Sweeney stations were able to offer a discount primarily because of two factors: (1) they ceased to offer any services other than the sale of gasoline and related products, becoming “gas & go” operations (N.T. 15, 102), and (2) they had lower freight costs than their competitors due to their proximity to the Texaco terminal. (N.T. 179). It is the second factor that forms the basis of the claims made in this case. When Texaco sells gasoline to its distributors it charges a price which includes the cost of delivering the product to the distributor’s bulk plant — a delivered price. (See, e. g. Plaintiffs’ Exhibit 4). (N.T. 1251-56). However, if the distributor picks up the gasoline himself and thereby saves Texaco the cost of delivery, Texaco gives him a discount or hauling allowance. Although there are several methods by which Texaco could compute the amount of the hauling allowance (N.T. 34-37,1251-56), in its dealings with Sweeney Texaco based the hauling allowance on the lowest common carrier rate applicable between a designated Texaco distribution point and the Sweeney bulk plant. (See, e. g., Plaintiffs’ Exhibit 5). Since Sweeney had and continues to have its bulk plant in Pottstown, Pennsylvania, under this arrangement it could receive an allowance for the cost of hauling the product from the Texaco distribution point to Pottstown. (N.T. 109). From 1961 until 1970, the distribution point which Texaco designated as Sweeney’s pick up point was the Texaco bulk plant in Westville, New Jersey. (N.T. 172). Sweeney thus received a hauling allowance based on the lowest common carrier rate applicable between Westville and Pottstown. (N.T. 174). Between 1965 and 1970 Sweeney acquired numerous retail gasoline stations within approximately twenty miles of Texaco’s West-ville, New Jersey, terminal. (N.T. 120-46, 177). Although most of these stations had been selling unbranded gasoline at a discount, upon acquisition by the Sweeney interests these stations became branded Texaco stations. (N.T. 120-46). Unlike other branded stations, however, the Sweeney stations sold branded gasoline at a discount; they generally tried to price their product above unbranded but below branded gasoline. (N.T. 128-133). It was the hauling allowance that subsidized this practice. (N.T. 118). Due to the proximity between these newly acquired Sweeney stations and Texaco’s Westville bulk plant, Sweeney could pick up the product in Westville and transport it a short distance to its New Jersey and Philadelphia area stations. (N.T. 176-7). Sweeney did not transport all of the product it picked up at Westville to its bulk plant in Pottstown. This practice enabled Sweeney to receive an allowance for hauling product from Westville to Pottstown (roughly fifty miles), when in reality it was hauling product from Westville to points ten to twenty miles away. (N.T. 177-179). (See Defendant’s Exhibit 1). Receipt of this allowance permitted Sweeney to cut its costs and sell gasoline at a discount. (Id. 178-9). In effect the hauling allowance underwrote the discount. After adopting the concept of selling branded gasoline at a discount through “gas & go” stations Sweeney prospered. Its prosperity did not augur well with its competitor Texaco retailers, however, and some of these retailers complained to Texaco that Sweeney’s discount pricing was hurting them. (N.T. 418). Sweeney contends that Texaco conspired with these retailers to raise the cost of Texaco gasoline to Sweeney and thus force Sweeney to raise its prices. It cites the actions of Texaco in 1970 and 1971 as evidence of this alleged conspiracy. In the winter of 1970, Texaco personnel informed Sweeney that Texaco wished to change the Sweeney pick up point from Westville, New Jersey, to Macungie, Pennsylvania, where Texaco had a pipeline terminal. (N.T. 197). Macungie, Pennsylvania, is much closer to Pottstown (approximately twenty miles) than Westville, New Jersey (approximately fifty miles), and this change would have had the effect of reducing Sweeney’s hauling allowance by about fifty percent (N.T. 180). (See Defendant’s Exhibit 1). Given the importance of the hauling allowance to Sweeney’s competitive position, Sweeney strenuously objected to this change. (N.T. 180). Texaco then notified Sweeney that it was exercising its right to cancel the 1963 distributor agreement. (N.T. 180-81; Plaintiffs’ Exhibit 8). As a result of negotiations between Texaco and Sweeney, however, Texaco agreed to continue to give Sweeney the Westville to Pottstown hauling allowance for an additional ninety days. (N.T. 187-188; Plaintiffs’ Exhibit 10). This was designed to allow Sweeney to either adjust its operation to the new pick up point or seek an alternative source of supply. Notwithstanding its efforts to that end Sweeney was unable to secure another supplier. (N.T. 188-190; Plaintiffs’ Exhibits 19a-19u). In March of 1971, after further negotiations the parties arrived at a compromise: Sweeney would receive the Macungie to Pottstown hauling allowance effective June 1,1971, but it would be permitted to pick up product at either the West-ville or Macungie terminals. (March 1 letter agreement; Plaintiffs’ Exhibit 10). This enabled Sweeney to continue to supply its southern New Jersey stations from the Westville terminal and mitigated the effect of the change in the hauling allowance. In December of 1971, however, Texaco notified Sweeney that effective February 29, 1972, it would terminate both the 1963 distributor agreement and the March 1 letter agreement. (N.T. 193-194; Plaintiffs’ Exhibit 16). Although Sweeney again tried to obtain an alternate source of supply, it was again unsuccessful. (N.T. 197-199). After various negotiations, during which Sweeney threatened to seek injunctive relief, Texaco agreed to continue supplying Sweeney until such a time as it gave Sweeney ten days notice of its intention to discontinue its supply. (Defendant’s Exhibit 68A). Sweeney does not contest the fact that Texaco never gave it such notice; indeed, Texaco has continued to supply Sweeney up to and including the present time. II. ALLEGATIONS In 1974, wary of the tolling of the statute of limitations, Sweeney brought the instant suit. Sweeney alleged that the 1970 change in Sweeney’s hauling allowance resulted from a conspiracy between Texaco and other Texaco retailers. According to Sweeney the object of this alleged conspiracy was to fix the resale price of Texaco gasoline. (N.T. 1802). Furthermore, Sweeney alleged that the 1971 termination of its distributor agreement also resulted from a price fixing conspiracy. According to Sweeney these alleged conspiracies are violative of § 1 of the Sherman Act, 15 U.S.C. § 1, and entitle it to treble damages as well as injunctive relief. In addition Sweeney claimed that Texaco’s actions in 1970 and 1971 constituted an attempt to monopolize in violation of § 2 of the Sherman Act, 15 U.S.C. § 2, and entitle it to treble damages as well as in-junctive relief. Sweeney also charged that imposition of the Pottstown to Macungie hauling allowance made it the victim of price discrimination in violation of § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a). For this alleged violation Sweeney also sought damages and injunctive relief. Other claims made by Sweeney were either resolved by agreement of counsel or withdrawn. Texaco responded to these allegations by asserting that it had changed Sweeney’s hauling allowance only because it was economically advantageous for it to do so and that it had terminated Sweeney because of Sweeney’s breaches of the hauling agreement and distributor contract, complaints received from customers about the condition of Sweeney’s stations, and, most importantly, the sale by Sweeney of non-Texaco gasoline and diesel fuel from Texaco pumps as well as its use of Texaco marked trucks to deliver non-Texaco gasoline. Texaco thus brought several counterclaims against Sweeney for Sweeney’s alleged trademark infringement and breach of contract. Although Texaco acknowledged that it had received complaints from other Texaco retailers about the competitive effect of Sweeney’s discount pricing, Texaco vehemently denied that it had taken any action as a result of those complaints. Thus, in response to Sweeney’s § 1 claim Texaco argued that unilateral action did not violate § 1 of the Sherman Act and that mere complaints could not establish the existence of a conspiracy. In response to Sweeney’s § 2 claim Texaco asserted that Texaco did not and indeed could not have attempted to monopolize the market of Texaco gasoline because Texaco gasoline did not represent a separate market. In response to Sweeney’s Robinson-Patman § 2(a) claim Texaco argued that the change in Sweeney’s hauling allowance did not violate that section because the hauling allowance is a functional discount which is not part of the price for purposes of the Robinson-Patman Act and that, in any event this court lacked jurisdiction to decide the claim due to the absence of sales made in interstate commerce. Texaco also argued that Sweeney had failed to prove that it sustained the kind of economic damage required for recovery under § 2(a) of the Robinson-Patman Act and could therefore recover nothing. III. PROCEDURAL HISTORY After nearly five years of pretrial proceedings marked by discovery disputes the case was called for trial in March of 1979. However Sweeney, who had not filed its first set of interrogatories until January 31, 1979, argued that it could not proceed to trial at that time. The court agreed to give Sweeney further time to prepare the case but admonished that given the age of the case, it would not grant further continuances. On June 5, 1979, the case finally went to trial. Since Sweeney still claimed that it needed additional time to prepare certain aspects of the case, the court agreed to tailor the trial schedule to Sweeney’s needs. (N.T. 80). Based on its previous experience with this case the court was, however, unwilling to grant another continuance. Throughout the trial the court allowed Sweeney to continue to conduct discovery. (N.T. 59-60, 339, 346). Indeed, on the first day of trial the court permitted a change in Sweeney’s damage theory despite Texaco’s claims that it would be prejudiced and put to considerable expense by such a belated alteration. (N.T. 63-81, 332-47). I permitted this because, as I remarked from the bench, I did not want to see Sweeney’s case “harmed through some inadvertent oversight.” (N.T. 73). I am certain that no such harm has occurred. Sweeney presented all of the admissible evidence which it deemed necessary and cannot, five years after bringing the case, be heard to complain about inadequate preparation time. On Monday, June 11,1979, the fourth day of trial, Texaco gave this court a copy of its motion for a directed verdict. On the next day, when Sweeney was close to the conclusion of its case in chief, the parties discussed how the court should proceed. (N.T. 1236-1240). To accommodate the interests of judicial economy and fairness to the litigants, I decided to defer further consideration of the arguments raised by Texaco’s motion until the following Monday. Thus, after Sweeney rested, Texaco began to present its case. By Monday, the date set for argument on its directed verdict motion, Texaco had rested and Sweeney had con-eluded its case in rebuttal. This procedure, agreed to by the parties, gave Sweeney ample time to reply to Texaco’s motion and efficiently utilized the jury’s time by keeping the case fresh in their minds and leaving it ready for their decision in the event that Texaco’s motion for a directed verdict should be denied. On Monday, June 18,1979, the eighth day of trial, I granted Texaco’s motion for a directed verdict. In Part IV of this memorandum I will set forth the standards applicable to such a motion. In Parts V through VII I will discuss the issues raised by the motion and explain the reasons for my decision. In Part VIIII will discuss and decide the issues raised by Texaco’s counterclaims for trademark infringement and breach of the distributor agreement. IV. STANDARDS APPLICABLE TO A MOTION FOR A DIRECTED VERDICT Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move for a directed verdict “at the close of the evidence offered by an opponent . . . .” To decide such a motion the trial judge must analyze all the evidence presented by the party opposing the motion, reviewing that evidence in the light most favorable to that party and making all inferences in his favor. Continental Ore Co. v. Union Carbide and Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20, 25 (3d Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978); Fireman’s Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969); Dovberg v. Dow Chemical Co., 353 F.2d 963, 968 (3d Cir. 1965), cert. denied, 384 U.S. 907, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966). The trial judge cannot pass on either the weight or the credibility of the evidence, Brady v. Southern R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 88 L.Ed. 239 (1943), Burchill v. Kearney-National Corp., Inc., 468 F.2d 384 (3d Cir. 1972), 5A Moore’s Federal Practice, ¶ 50.02[1] at 50-25, since it must leave to the jury the task of “evaluat[ing] contradictory evidence and drawpng] inferences therefrom.” Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977) (citations omitted). The trial judge, however, retains power to decide whether the evidence, so reviewed, would support a jury verdict in favor of the party opposing the motion. That party must have introduced more than a scintilla of evidence from which the jury could find in his favor; Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, at 1179 n. 6; Denneny v. Siegel, 407 F.2d 433 (3d Cir. 1969); 5A Moore’s Federal Practice, ¶ 50.02[1] at 5031 n. 22; he must have introduced sufficient evidence to support a jury verdict in his favor. Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., 529 F.2d at 25; Hourston v. Harvlan, Inc., 457 F.2d 1105, 1108 (3d Cir. 1972). If a reasonable jury could not find that the party opposing the motion for a directed verdict had proved his case by a preponderance of the evidence the trial judge must direct a verdict against him. Sweeney has failed to introduce even a scintilla of evidence in support of its claim. It follows that it has also failed to introduce sufficient evidence to support a jury verdict in its favor. I reached this conclusion after careful review of the evidence and with full awareness of the difficulties inherent in proving an antitrust conspiracy. See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). Like other courts, however, I recognized that “if an antitrust plaintiff, as well as any other plaintiff, does not present enough evidence within his case-in-chief to support a reasonable finding in his favor, a district court has a duty to direct a verdict in favor of the opposing party.” Chisholm Bros. Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1139-40 (9th Cir.), cert. denied 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974). I will not shirk that duty. V. SWEENEY’S DAMAGE CLAIMS UNDER § 1 OF THE SHERMAN ACT Section 1 of the Sherman Act proscribes “[ejvery contract, combination, . or conspiracy, in restraint of trade . 15 U.S.C. § 1. To establish a defendant’s liability under this section a plaintiff must therefore prove that the defendant entered into a contract, combination, or conspiracy and that said conspiracy constituted a restraint of trade. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). The issue in this case is whether Sweeney has introduced enough evidence to allow the jury to conclude that Texaco conspired to fix the retail price of Texaco gasoline. On June 8, 1979, I ruled that Sweeney had failed to meet this burden. Sweeney alleged that Texaco violated § 1 of the Sherman Act by conspiring to change Sweeney’s hauling allowance in 1970. Sweeney introduced two items of evidence in support of its § 1 claim. First, it showed that some Texaco retailers had complained to Texaco that Sweeney’s policy of discount pricing was hurting their sales. Second, Sweeney produced one James P. Rodden, a former Texaco employee now working for a Sweeney-related enterprise, who testified he thought that Texaco had terminated Sweeney because of Sweeney’s pricing policy. This evidence cannot, as a matter of law, support a jury finding of a contract, combination, or conspiracy between Texaco and other Texaco retailers either in 1970 or 1971. Prior to the oral argument on Texaco’s motion for a directed verdict Sweeney had not-specified the nature of this conspiracy or the identity of the putative co-conspirators. Even at oral argument the court was unable to obtain this information. (Compare N.T. 1802-08 with N.T. 1811-17). Before granting Texaco’s motion I evaluated whether the evidence would support a finding of either a horizontal or vertical price fixing combination or conspiracy in either 1970 or 1971. I will follow that analysis here. A. 1970 COMBINATION OR CONSPIRACY-CHANGE IN SWEENEY’S HAULING ALLOWANCE. 1. HORIZONTAL PRICE FIXING AGREEMENT. To find that Sweeney had introduced sufficient evidence to allow the jury to conclude that Texaco had conspired with other Texaco retailers to fix the retail price of Texaco gasoline I would have to find that competitors’ complaints, without more, permit an inference of concerted action. Like numerous courts before me, I hold that evidence of competitors’ complaints standing alone cannot support a finding of liability under § 1 of the Sherman Act. Westinghouse Electric Corp. v. CX Processing Laboratories, 523 F.2d 668 (9th Cir. 1975); Klein v. American Luggage Works, Inc., 323 F.2d 787 (3d Cir. 1963); Carr Electronics Corp. v. Sony Corp. of America, 472 F.Supp. 9 (N.D.Cal.1979); Carbon Steel Products Corp. v. Alan Wood Steel Co., 289 F.Supp. 584 (S.D.N.Y.1968). In Carr Electronics Corp. v. Sony Corp. of America, 472 F.Supp. 9 (N.D.Cal.1979), the court faced this precise issue. Carr, a dealer of Sony products, claimed that Sony had terminated its dealership because Carr had adopted a discount pricing policy as a result of which Carr’s competitors had “complained forcefully to Sony that they were unhappy with the fact that several low-overhead dealers were underselling them.” 472 F.Supp. at 10 (footnote omitted). Carr thus brought an action against Sony alleging that Sony had conspired to fix the retail price of television sets and thus violated § 1 of the Sherman Act. Faced with Sony’s motion for summary judgment, Carr argued [T]hat the court must, as a matter of law, permit the inference that the complaints of the dealers, followed by Sony's termination of Carr, constitutes an illegal combination in violation of the antitrust laws. Id. 472 F.Supp. at 12. The court rejected that argument. Like Sweeney, Carr relied on Girardi v. Gates Rubber Company Sales Division, Inc., 325 F.2d 196 (9th Cir. 1963). Like the Carr court, I find that the facts of Girardi were “much more extreme than those of the instant case,” 472 F.Supp. at 13, and that Sweeney’s reliance on Girardi is unwarranted. The plaintiff in Girardi was a discount dealer of the defendant’s products who had argued that its termination by the defendant had come as a result of complaints by the plaintiff’s competitors. Unlike the plaintiffs in both Carr and the instant case, however, the plaintiff in Girardi had shown that one of the defendant’s salesmen had actually threatened him with termination if he did not cease discount pricing. 352 F.2d at 198. There is simply no such evidence in this case. Indeed, Sweeney’s president testified that Texaco never interfered with the way in which Sweeney arrived at the price at which it sold gasoline (N.T. 382), and that Texaco had never threatened to take any action in response to Sweeney’s marketing practices (N.T. 379). Moreover, the internal memoranda of the defendant in Girardi showed that management was concerned about exercising control over the dealer’s marketing practices and actively sought ways of exercising that control. Again, there is simply no such evidence in this case. Although Texaco’s management was aware of the complaints, there is no evidence to show that it took any action in response to them. There is, however, an abundance of evidence that Texaco had other, legitimate reasons for changing Sweeney’s hauling allowance and terminating its distributor agreement. Thus, a marketing study conducted by Texaco had demonstrated that it would be more economical for Texaco to have Sweeney pick up at Macungie instead of at Westville. (Plaintiffs’ Exhibits 35, 39; Defendant’s Exhibit 438-439; N.T. 1287-1298, 1365-1378). Furthermore, Texaco had received numerous complaints from customers regarding the condition of Sweeney owned stations and had misgivings over Sweeney’s credit card practices. (N.T. 1304-1322). Most importantly, Texaco was concerned about Sweeney’s undisputed practice of co-mingling Texaco gasoline with gasoline purchased from other refiners, selling non-Texaco diesel fuel from Texaco pumps and using Texaco branded trucks to deliver non-Texaco gasoline. (N.T. 1313; Plaintiffs’ Exhibit 18; Defendant’s Exhibits, 55, 64, 66, 435A-K). Significantly, the defendant in Girardi could point to no other justification for its actions, and indeed was so bold as to terminate the plaintiff’s dealership in two areas where he engaged in discounting but not in a third where he did not engage in discounting. There is no similar evidence in this case, therefore like the Carr court, I have concluded that [I]t was on a much more forceful record that the Girardi court held that the jury should be permitted to infer a combination in violation of section 1 of the Sherman Act. The mere fact that dealers complained does not require sending the case to the jury, despite the appeal of some of the Girardi court’s language. 472 F.Supp. at 13. Even the facts of Carr itself are stronger than the facts of this case. In Carr, there was evidence, albeit of doubtful admissibility, that one of the defendant’s salesmen had told the plaintiff that other retailers were complaining and that the defendant “intended to take some action.” Id. at 13 n. 5. Sweeney never even attempted to introduce any evidence that Texaco either responded to the complainants or told Sweeney that it would take any action in response thereto. My decision in this case thus follows a fortiori from the court’s decision in Carr. Other courts agree. In Carbon Steel Products Corp. v. Alan Wood Steel Co., 289 F.Supp. 584 (S.D.N.Y.1968), the plaintiff, a wholesaler of steel products, alleged that the defendant manufacturer had conspired with other wholesalers in violation of § 1 of the Sherman Act. The plaintiff sought to survive the defendant’s motion for summary judgment by arguing that evidence of complaints to the defendant manufacturer by plaintiff’s competitors would permit an inference of conspiracy. The court rejected this argument and held that, A combination violative of Section 1 of the Sherman Act cannot be implied from the fact that some of Wood’s customers complained of Carbon Steel’s practices, since it was the normal working of the marketplace for them to have done so. Cf. Klein v. American Luggage Works, Inc., 323 F.2d 787, 791 (3d Cir. 1963). 289 F.Supp. at 588. Sweeney has shown even less evidence of a conspiracy than the plaintiff in Carbon Steel. In that case the plaintiff had submitted copies of memoranda drafted by the defendant’s district sales manager to the attention of a marketing vice president and a general manager; after explaining the substance of the complaints received from plaintiff’s competitors, these memoranda “urged that all business relations with Carbon Steel be severed.” 289 F.Supp. at 587. The court nevertheless granted the defendant’s motion for summary judgment on the ground that the plaintiff had failed to demonstrate the existence of a combination. A similar conclusion follows in this case. Sweeney has not even introduced evidence of internal memoranda and in light of the Carbon Steel holding Sweeney can hardly maintain that mere discussion of the complaints by Texaco management suffices to show the existence of a combination or conspiracy. Carbon Steel illustrates the difference between the type of internal communications which permit the inference of a combination and those which do not. In the former situation the communications show that the manufacturer knew of the complaints and planned specific actions in response thereto (Girardi). In the latter situation the communications show only that the manufacturer knew of the complaints (Carbon Steel, Carr). The courts agree that where the communications show only the manufacturer’s knowledge they cannot serve as the basis for an inference of a combination (Carbon Steel, Carr), whereas if the communications show knowledge plus an intent to act on the complaints, they can (Girardi). This conclusion has its genesis in sound policy considerations, as the Carbon Steel court noted. It would be inequitable to hold that the mere receipt of a complaint creates an inference of a combination between the recipient and the complainant. The recipient of the complaint cannot help receiving the complaint and it would be unfair, without additional evidence of the existence of a conspiracy, to hold him liable for something over which he has no control. It is only if he acts upon the complaints, thereby becoming more than a passive recipient, that he turns into a coconspirator and violates the antitrust laws. As the court of appeals has noted, “[t]he substantive law of trade conspiracies requires some consciousness of commitment to a common scheme.” Klein v. American Luggage Works, Inc., 323 F.2d 787, 791 (3d Cir. 1963), quoting United States v. Standard Oil Co., 316 F.2d 884, 890 (7th Cir. 1963). See Harold Friedman, Inc. v. Kroger Co., 581 F.2d 1068, 1078 (3d Cir. 1978). I can perceive no reason for departing from this rule. Contrary to Sweeney’s assertions, Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164 (3d Cir. 1979), does not require a different result. In Cernuto the court of appeals decided that an agreement between a manufacturer and one of his customers to refuse to deal with another customer would constitute a per se violation of § 1 of the Sherman Act. The plaintiff in Cernuto was a discount seller of the defendant’s products. The plaintiff alleged that the defendant, at the insistence of one of plaintiff’s competitors, had refused to deal with the plaintiff. Since plaintiff could not prove that the defendant’s conduct had any anti-competitive effect, he could recover only if the court held that the defendant’s conduct constituted a per se violation of § 1. 595 F.2d at 165. For the sole purpose of deciding the propriety of the district court’s grant of the defendant’s motion for summary judgment the court of appeals assumed that the plaintiff could show that the manufacturer terminated him as a result of the complaints. Id. The court carefully pointed out that it had before it only the question of [Wjhether the conduct at issue here — a manufacturer deliberately withdrawing its product from a distributor that resold it for a price less than its competitors at the request of a competitor — should be classified as a per se violation of the [Sherman] Act. 595 F.2d at 166 (emphasis added). It answered that question in the affirmative. Cernuto does not govern this case, however. There is no question that if Sweeney had succeeded in proving the allegations in its complaint it would have made out a per se violation of the Sherman Act; that is all that Cernuto decided. The issue in this case — whether complaints permit the inference of a combination — was neither considered nor decided by the Cernuto court. Indeed the instant case presents the question that the trial judge in Cernuto will have to decide upon remand: whether the plaintiff has introduced enough evidence of the allegations in his complaint to allow a jury to find in his favor. Thus, the court of appeal’s decision in Cernuto does not foreclose a decision favorable to the defendant in this case. Aside from the evidence of complaints which other retailers made to Texaco, Sweeney introduced no evidence of a conspiracy between Texaco and its retailers or wholesalers. I have concluded that on the basis of such evidence no reasonable jury could find that Texaco engaged in a combination or conspiracy in restraint of trade by changing Sweeney’s hauling allowance in 1970. 2. VERTICAL PRICE FIXING — RETAIL PRICE MAINTENANCE. Sweeney also argued that Texaco conspired with the complaining dealers to maintain the resale price of Texaco gasoline. Alternatively, Sweeney argued that Texaco conspired with Sweeney as of the time Sweeney agreed to the change in the hauling allowance. Sweeney cites Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), in support of these contentions. However, as the Court of Appeals for the Second Circuit noted in Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 602 F.2d 1025 (2d Cir. 1978), to succeed in such a claim the plaintiff must prove that the manufacturer had a program of resale price maintenance, that it sought the aid of plaintiff’s competitors in enforcing said program, and that its actions toward plaintiff were designed to secure compliance with the desired resale price. Sweeney has neither alleged nor proved any of these things. In United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), the Supreme Court made it clear that unilateral action by a manufacturer does not violate § 1 of the Sherman Act. This basic premise remains unchanged despite a series of Supreme Court decisions which defined and narrowed the limits of unilateral behavior. United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024 (1944); F.T.C. v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922); Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208, 41 S.Ct. 451, 65 L.Ed. 892 (1921); United States v. A. Schrader’s Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471 (1920); Areeda, Antitrust Analysis, 559-560 (1974). The defendant in Colgate was a manufacturer who had published lists of the prices at which its products should be sold and had announced that it would refuse to sell to any dealers who failed to charge those prices. The Court refused to find that such conduct violated § 1 of the Sherman Act and held that, In the absence of any purpose to create or maintain a monopoly, [which would bring the case under § 2, not § 1] the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell. 250 U.S. at 307, 39 S.Ct. at 468. The Court thus distinguished Colgate’s practice from that which it had condemned in Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911), where “the unlawful combination was effected through contracts which undertook to prevent dealers from freely exercising the right to sell.” 250 U.S. at 307-08, 39 S.Ct. at 468. Through a series of decisions culminating with United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), the Court blurred the seemingly clear line between conduct permitted (Colgate) and proscribed (Dr. Miles) by § 1 of the Sherman Act. The defendant in Parke Davis had announced that it would refuse to sell to wholesalers who sold to retailers who failed to charge the resale prices specified by Parke Davis. Parke Davis effectuated this policy by supplying wholesalers with the names of retailers who refused to charge the prices specified by Parke Davis; the wholesalers then had to either stop supplying the offending retailers or face the loss of supplies from Parke Davis. In holding that this scheme violated the Sherman Act the Court reasoned that by [T]hus involving the wholesalers to stop the flow of Parke Davis products to the retailers, thereby inducing retailers’ adherence to its suggested retrial prices, Parke Davis created a combination with the retailers and the wholesalers to maintain retail prices . . . Although Parke Davis’ originally announced wholesalers’ policy would not under Colgate have violated the Sherman Act if its action thereunder was the simple refusal without more to deal with wholesalers who did not observe the Wholesalers’ Net Price Selling Schedule, that entire policy was tainted . . . when Parke Davis used it as the vehicle to gain the wholesalers’ participation in the program to effectuate the retailers’ adherence to the suggested retail prices. . 362 U.S. at 45-6, 80 S.Ct. at 512-513. The Court thus identified the factors which a plaintiff must establish before a jury can find liability for resale price maintenance under § 1 of the Sherman Act: 1. the announcement of a suggested retail price; 2. procurement of competitors’ assistance in insuring compliance with that price. Since Sweeney has not alleged that Texaco had any announced retail prices it has failed to fulfill the first requirement of Parke Davis. Even if I found that announcement of suggested retail prices was not required for a finding of liability under Parke Davis, I would nevertheless have to hold that Sweeney has failed to show that Texaco entered into a combination, as defined by the Parke Davis court. Sweeney has not introduced any evidence from which a jury could reasonably infer that Texaco took “affirmative action” to ensure adherence to some particular resale price. Compare United States v. Parke, Davis & Co., 362 U.S. at 47, 80 S.Ct. 503 (1960) (Court held that when manufacturer takes affirmative action to achieve uniform adherence to a particular price he engages in concerted action and violates § 1 of the Sherman Act). Sweeney has shown only that other retailers complained to Texaco. Like other courts, I find that such evidence does not permit an inference of concerted action. Westinghouse Electric Corp. v. CX Processing Laboratories, 523 F.2d 668 (9th Cir. 1975); Butera v. Sun Oil Co., Inc., 496 F.2d 434 (1st Cir. 1974); Dart Drug Corp. v. Parke, Davis & Co., 120 U.S.App.D.C. 79, 344 F.2d 173 (1965); Klein v. American Luggage Works, Inc., 323 F.2d 787 (3d Cir. 1963); Carbon Steel Products Corp. v. Alan Wood Steel Co., 289 F.Supp. 584 (S.D.N.Y.1968); Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 602 F.2d 1025 (2d Cir. 1979); Carr Electronics Corp. v. Sony Corp. of America, 472 F.Supp. 9 (N.D.Cal.1979). In Westinghouse Electric Corp. v. CX Processing Laboratories, 523 F.2d 668 (9th Cir. 1975), a retailer sued a manufacturer when the manufacturer refused to fulfill the terms of a contract which gave the retailer a more favorable price than that available to the retailer’s competitors. The retailer alleged that the manufacturer’s conduct resulted from a combination or conspiracy to stabilize prices between the manufacturer and the retailer’s competitors. As evidence of this combination the retailer showed that its competitors had called the manufacturer to request that the manufacturer give them the same price offered to the retailer pursuant to the terms of the contract. The retailer also introduced the testimony of one of its principal owners who had said that in his opinion the conversations between the manufacturer and the other retailers had resulted in an agreement to fix prices. Faced with such meager evidence, which nevertheless exceeds that presented by Sweeney in this case, the district court directed a verdict in favor of the defendant. The Court of Appeals for the Ninth Circuit affirmed. In reaching this conclusion the court of appeals examined the case law cited by the retailer, which includes that cited by Sweeney, but found all of those cases distinguishable because In each instance the guilty manufacturer established either an express resale price or a method to prevent resale to either certain customers or within certain territories. Generally, these policies were imposed upon wholesalers or retailers through a well-defined enforcement scheme. 523 F.2d at 674-75, and Westinghouse had established no such price or method. Like Westinghouse, Texaco did neither of these things. Indeed, Westinghouse presented a more attractive case for denying the defendant’s motion for a directed verdict than does this case because at least in Westinghouse the court could find that the manufacturer had “discouraged direct competition with one other distributor,” 523 F.2d at 675, and the record in this case does not permit such a finding. (N.T. 379-82, 389-506). There is absolutely no evidence that Texaco announced a suggested retail price or price range for Texaco gasoline or that it solicited the aid of other retailers in policing its enforcement. (N.T. 461). Indeed, there is no evidence that Texaco tried to influence the retail price of Texaco gasoline in any manner whatsoever. (N.T. 379-382, 455-461). As the court noted in Carbon Steel, the retailers who complained were simply following rational market behavior, and their unsolicited activity cannot serve as the basis for finding § 1 liability under even the most favorable reading of Parke Davis. The court’s decision in Butera v. Sun Oil Co., Inc., 496 F.2d 434 (1st Cir. 1974), a case strikingly similar to this one, confirms the wisdom of this conclusion. The plaintiff in Butera was a retailer of defendant Sun Oil’s products. He alleged that a change in Sun Oil’s method of computing certain allowances prevented him from taking advantage of fluctuations in the wholesale price of gasoline and thus reduced his profit. Although the plaintiff argued that Sun Oil’s action constituted resale price maintenance in violation of § 1 of the Sherman Act, the district court granted Sun Oil’s motion for summary judgment and the court of appeals affirmed. As the court of appeals explained Sun Oil, like Texaco, had not suggested the resale price of the gasoline it supplied to the plaintiff. The court further reasoned that: [A] producer’s tight control over its wholesale prices does not become resale price maintenance merely because retail outlets to which it sells, being highly competitive and selling at low margins, are sensitive to every change in wholesale prices. The decision as to what margin to use and when to change it, and consequently what retail price to charge remains But-era’s, and we agree that such economic impact as follows from Sun’s tight control of its own wholesale pricing is not a Sherman Act violation. 496 F.2d at 437-38. Therefore the court held that the plaintiff had failed to show that by changing the method of computing the plaintiff’s allowance Sun Oil violated § 1 of the Sherman Act. The facts proven by the plaintiff in But-era closely parallel those proven by Sweeney. In both cases the plaintiffs adopted a method of operating which employed their supplier’s special allowances to increase their profits. Sweeney used the hauling allowance as a subsidy by acquiring stations near Westville and Butera used the volume allowance as a bonus by speculating on the price of gasoline and filling his oversize tank when he thought that due to fluctuations in the price he would get a larger allowance. In both cases the cost of the product to the plaintiffs was increased when the defendant changed the method of calculating the allowance. If the injury to the plaintiff did not suffice to establish a § 1 violation in Butera it cannot suffice here. Butera shows that Colgate survived Parke Davis and that when a manufacturer acts like Texaco, independently and for its own business purposes, it does not violate the Sherman Act. To hold otherwise would be to hold that Texaco had a duty to continue to give Sweeney a hauling allowance solely to provide Sweeney with an advantage over its competitors. That I cannot do. Sweeney has also argued that in light of the Supreme Court’s decision in Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), an agreement between Texaco and the complaining retailers can be established merely because the retailer’s complaints helped Texaco effectuate its plan to force Sweeney to raise its prices. Prior to the oral argument on the defendant’s motion for a directed verdict Sweeney cited Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 447 F.Supp. 867 (S.D.N.Y.1978), as the strongest authority for its position. However, just before the oral argument counsel learned that the Court of Appeals for the Second Circuit had reversed the district court in Fuchs, 602 F.2d 1025 (2d Cir. 1979). The plaintiffs in Fuchs were general sugar brokers who sometimes bought sugar from the defendant Amstar. In addition to general brokers, such as plaintiffs, who arranged for sales of sugar from Amstar as well as from Amstar’s competitors, Amstar dealt with direct brokers who arranged only for sales of Amstar’s products. It was undisputed that the operation of the general brokers reduced the price of Amstar’s sugar and therefore lowered Amstar’s profit margin. To increase its profit margin Amstar decided to change its system of distribution by ceasing to deal through general brokers. It then gave the general brokers the choice of becoming direct brokers or being terminated. Although some of the former general brokers agreed to become direct brokers the plaintiffs did not. Relying, like Sweeney, on Albrecht, the plaintiffs in Fuchs alleged that Amstar’s actions resulted from a combination violative of § 1 of the Sherman Act. The jury agreed and returned a verdict for the plaintiffs. Since the district court had refused to grant Amstar’s motion for judgment n. o. v., Amstar appealed. The Court of Appeals for the Second Circuit held that the defendant’s conduct did not violate § 1 of the Sherman Act and reversed the district court’s denial of the defendant’s motion for judgment n. o. v. My decision in this case follows inexorably from Fuchs. The court of appeals reversed the district court in Fuchs even though the plaintiffs had argued that the “jury . . . could infer that Amstar’s goal in terminating its general brokers was anti-competitive and that the conduct of its general and/or direct brokers materially aided and abetted its accomplishment,” Id. 1031, and that Amstar therefore engaged in a combination or conspiracy. Sweeney could not even make such an argument in this case for Sweeney has not alleged, and indeed could not show, that the complaints of its competitors aided and abetted Texaco’s allegedly anti-competitive scheme. In this case there is simply no one in the position of the brokers in Fuchs who, like the substitute distributor in Albrecht, reaped the benefit of the defendant’s allegedly anti-competitive behavior. Both in Fuchs and in Albrecht third parties entered into agreements which resulted in their receipt of business which might otherwise have gone to the plaintiff. The change in Sweeney’s hauling allowance had no such effect, for Sweeney’s gallonage continued to increase (Plaintiffs’ Exhibit 109) and Sweeney’s distributorship was never given to anyone else. If in Fuchs, where there was an agreement between the defendant and another entity which received business otherwise given to plaintiff the court did not find that the jury could infer a conspiracy in violation of the Sherman Act, I cannot so find in this case, which lacks even that agreement. The court of appeals has been unwilling to expand “Albrecht beyond its narrow factual confines,” Harold Friedman, Inc. v. Kroger Co., 581 F.2d 1068, 1074 (3d Cir. 1978), and I believe that it would agree with the Fuchs court and refuse to expand Albrecht to cover the facts of this case. As the Fuchs court realized, the jury’s ability to infer that the defendant had an anticompetitive purpose in taking the action in question is immaterial. As long as Texaco, like Amstar, acted without soliciting the aid of any other entity, as is undisputedly the case here, its motives are irrelevant. As the Court of Appeals for the District of Columbia has held, To establish the illegality of [an] act under Section 1, it is not enough to prove that [the defendant’s] motivation was that of punishment for discounting or anything else, however reprehensible. Dart Drug Corp. v. Parke, Davis & Co., 120 U.S.App.D.C. 79, 92, 344 F.2d 173, 186 (1965) (footnote omitted). While such motivation may do violence to the policy behind the Sherman Act it does not without more constitute a violation of that act. Id. at 92, 344 F.2d at 186 n. 6. House of Materials Inc. v. Simplicity Pattern Co., 298 F.2d 867 (2d Cir. 1962). See Mannington Mills, Inc. v. Congoleum Industries, Inc., 610 F.2d 1059, 1069 (3d Cir. 1979). Neither can I find that the hauling agreement, as revised in 1971 to provide for a hauling allowance equivalent to the Macungie to Pottstown rate (Plaintiffs’ Exhibit 10), was itself an agreement in restraint of trade violative of § 1. Sweeney raised this theory for the first time in its response to Texaco’s motion for a directed verdict. It urged that under the famous footnote 6 in Parke Davis, the jury could find that Sweeney and Texaco entered into an unlawful agreement when Sweeney reluctantly accepted the change in the hauling allowance. In further support of this argument Sweeney cites the district court’s opinion in Fuchs, which made passing reference to the possibility of establishing such a conspiracy. Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 447 F.Supp. 867, 875 (S.D.N.Y.1978), rev’d 602 F.2d 1025 (2d Cir. 1979). Notably, the court of appeals did not even discuss this theory. Sweeney misapprehends the teachings of footnote 6 in Parke Davis. In Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134 (1968), the court expanded on the theory first alluded to in Parke Davis. The plaintiffs in Perma Life, franchisees of Midas muffler shops, had sued the franchisor for alleged violations of § 1 of the Sherman Act. The franchisees charged that certain tying clauses and other restrictive provisions in the franchise agreement constituted unlawful restraints of trade. The franchisor argued that the franchisees had been willing participants in the agreements and that their claims were barred by the doctrine of in pari delicto. The Court, relying on its prior decision in Parke Davis, rejected the defendant’s argument and held it liable for violating § 1. Two points, though not articulated in the opinion, are crucial to understanding the court’s decision. First, the agreement between the dealer and the franchisor, in so far as it contained tying provisions, was unlawful on its face as a per se violation of § 1. International Salt Co., Inc. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). This made it like the agreement alluded to in footnote 6 of the Parke Davis, which in so far as it provided for adherence to predetermined resale prices, would have been unlawful on its face as a per se violation of § 1. Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). See United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Second, the Court decided only that the defense of in pari delicto would not apply in an antitrust case. It did not decide that an agreement would violate the Sherman Act merely because it was not as economically advantageous to one of the parties as he would wish. After understanding these points it is easy to see why the Supreme 'Court reached the decision it did in Perma Life and why that theory does not help Sweeney establish the existence of an unlawful agreement in this case. In neither Perma Life nor Parke Davis was there any question of the illegality of the agreement. That, however, is the precise issue which I must decide in this case. The Court in those cases was faced with agreements which contained provisions violative of the Sherman Act on their face. I am not. The hauling agreement between Sweeney and Texaco contains nothing which on its face constitutes an agreement in restraint of trade. Only if the agreement resulted from a combination or conspiracy in restraint of trade would it violate § 1. Sweeney cannot establish the existence of the combination or conspiracy by merely establishing the existence of an otherwise lawful agreement. Neither Parke Davis nor Perma Life can provide the missing link: the evidence of combination or conspiracy. Those cases, together with the district court’s opinion in Fuchs would only prevent Texaco from asserting the in pari delicto defense. They do not suffice to prove Sweeney’s case. B. 1971 COMBINATION CONSPIRACY-TERMINATION OF SWEENEY’S DISTRIBUTOR AGREEMENT 1. HORIZONTAL AGREEMENT Sweeney alleges that the testimony of one James P. Rodden, a former Texaco employee currently employed by a Sweeney enterprise, establishes the existence of a conspiracy between Texaco and other retailers to terminate Sweeney’s distributor agreement. At trial I allowed Sweeney to elicit testimony from Rodden on this subject and denied Texaco’s motion to strike. (N.T. 464, 592-96). At oral argument on its motion for a directed verdict Texaco renewed its motion to strike Rod-den’s testimony and I again, denied it. I continue to stand by that ruling. That Rodden’s testimony is admissible does not mean that it is admissible for all purposes however. I, like the jury, must consider testimony only for the purposes admitted. In this case Rodden’s testimony of his own opinions, surmises, and hearsay, is admissible only to show Texaco’s alleged motives for terminating Sweeney. (See N.T. 592-96). However, as the court held in Dart Drug Corp. v. Parke, Davis & Co., 120 U.S. App.D.C. 79, 344 F.2d 173 (1965), and recognized in Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 602 F.2d 1025 (2d Cir. 1979), anticompetitive motivation without more, does not violate the Sherman Act. See United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). Rodden’s testimony, while admissible, is so speculative on the issue of the relationship between the dealers’ complaints and Texaco’s actions that no reasonable jury could base a decision on it. Since I would have had to exclude such evidence from the jury’s consideration on the issue of conspiracy, Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1312 (3d Cir. 1975), Harlem River Consumers Cooperative, Inc. v. Associated Grocers of Harlem, Inc., 408 F.Supp. 1251, 1272 (S.D.N.Y.1976), I cannot use it as the basis for denying Texaco’s motion for a directed verdict. See International Election Systems Corp. v. Shoup, 452 F.Supp. 684, 709 (E.D.Pa.1978), aff'd 595 F.2d 1212 (3d Cir. 1979). As the court held in Harlem River Consumers: [Speculation and surmise may not support a jury verdict and may not substitute on this motion [for a directed verdict] for evidence of some kind that [the defendant] knowingly participated in any conspiracy which might have existed. 408 F.Supp. at 1272. While the jury could have used Rodden’s testimony to corroborate other evidence of a combination or conspiracy, it could not use it as the sole support for its verdict. Like the plaintiff in Venzie, Sweeney [H]ad the burden of adducing sufficient evidence from which the jury could conclude, on the basis of reasonable inferences and not on mere speculation, [the] defendants’ [actions] were the product of concerted action . 521 F.2d at 1312. As the court of appeals reiterated in Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., Inc., 579 F.2d 20 (3d Cir.) cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978), the trial judge may direct a verdict “where such action is necessary to guard against a verdict founded solely on ‘mere speculation.’ ” 579 F.2d at 25. That is precisely what I had to do in this case. Other than Rodden’s testimony Sweeney introduced no evidence with respect to the 1971 conspiracy which it had not already introduced to prove the existence of the 1970 conspiracy. It follows that given the inability of using Rodden’s testimony to establish the existence of a conspiracy to terminate Sweeney in 1971, I must find that for the reasons stated in Part V A of this opinion, with respect to the 1970 conspiracy, Sweeney has failed to produce sufficient evidence to allow the jury to conclude that Texaco entered into a combination or conspiracy to terminate Sweeney’s distributor agreement in 1971. 2. VERTICAL AGREEMENT Sweeney has also failed to introduce any additional evidence with respect to the existence of a vertical conspiracy in 1971. Indeed, with respect to this claim Sweeney has introduced evidence which makes the case so like Fuchs that my decision in this case follows from the court of appeals’ decision in that case as inevitably as night follows day. In Fuchs the court of appeals thought it significant that the decision to terminate the general brokers “was a closely guarded secret within the Amstar corporation . . . .” 602 F.2d at 1031. Likewise, according to Rodden, Sweeney’s own witness, the decision to terminate Sweeney was a closely guarded secret within Texaco, and those involved in reaching it were forbidden to discuss it with anyone outside Texaco. (N.T. 462-464). Moreover, Rodden testified that he did not know of anyone who had violated that directive (N.T. 463) or of any distributor who became aware of the reasons for the termination. (N.T. 464). By further contrast to Fuchs, where Amstar’s decision materially affected other general brokers, Texaco’s decision to terminate Sweeney had no effect on the marketing policies of other distributors. (N.T. 467-468). Indeed, Rodden testified that he did not know of “any instance where Texaco coerced Sweeney or any other Texaco distributor to refrain from dealing with Texaco service stations who engaged in vigorous price competition.” (N.T. 461). Since the facts of this case are even more compelling than those in Fuchs, I have decided to follow the court of appeals’ decision in that case. This decision is supported by sound policy. Although we must give a plaintiff considerable latitude in proving his case due to the difficulties inherent in proving the existence of a conspiracy, we should not do so at the expense of penalizing a defendant who, under current law, has the right to unilaterally alter his practices as he sees fit. See United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919); Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1318 (3d Cir. 1975); George W. Warner & Co. v. Black & Decker Mfg. Co., 277 F.2d 787 (2d Cir. 1960). As Professor Areeda has noted, “Once we recognize, however, that many cut-off dealers will harass their former suppliers with treble damage suits we might hesitate to scrutinize too closely the ambiguous refusal to sell that is not clearly employed to attain an end that could not lawfully be attained by direct agreement.” Areeda Antitrust Analysis, 560 (1974). The Court of Appeals for the Third Circuit has refused to so emasculate Colgate. In the case at bar, I have concluded after close scrutiny that the facts proven would not allow a jury to find that Texaco entered into a combination or conspiracy in violation of § 1 of the Sherman Act. VI. SWEENEY’S CLAIM UNDER §2 OF THE SHERMAN ACT Sweeney had also claimed that Texaco conspired and attempted to monopolize the market in Texaco gasoline in violation of § 2 of the Sherman Act. Sweeney has failed to produce any evidence from which a jury could find that Texaco gasoline constitutes a product market for § 2 purposes. Therefore, I directed a verdict in favor of Texaco on both of Sweeney’s § 2 claims. A. ATTEMPT TO MONOPOLIZE To establish a claim of monopolization or attempted monopolization the plaintiff must show that the defendant intended to acquire or maintain power in a relevant market, that it sought to do this by engaging in exclusionary practices, and in the case of attempt, that it had a dangerous probability of succeeding. American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Lorain Journal Co. v. United States, 342 U.S. 143, 153, 72 S.Ct. 181, 96 L.Ed. 162 (1951); Swift and Company v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518 (1905); Coleman Motor Corp. v. Chrysler Corp., 525 F.2d 1338, 1348 (3d Cir. 1975); Telex Corp. v. International Business Machines Corp., 510 F.2d 894 (10th Cir.), cert. dismissed, 423 U.S. 802, 96