Full opinion text
OPINION AND ORDER PIERCE, District Judge. This action arises in a context in which it is asserted that for years the defendant Eastman Kodak Company (“Kodak”) has dominated the amateur photographic industry, developing, manufacturing, and selling cameras, film, photofinishing equipment, supplies, and other related products, and providing photofinishing services. Until July 1977, when it ceased its production of film, chemicals, print paper, and slide and movie projectors, and ceased its sales of amateur still and movie cameras, and later, in April 1978, when it sold its photofinishing service organization, GAF Corporation (“GAF”) competed with Kodak in many markets within the amateur photographic industry. By this lawsuit, commenced in 1973, GAF seeks treble damages and equitable relief for Kodak’s alleged violations of the federal antitrust laws. GAF presently alleges that Kodak combined and conspired with two flash manufacturers, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, to unlawfully restrain trade in the nationwide market for amateur conventional still cameras. Further, GAF alleges that Kodak monopolized and attempted to monopolize, in violation of § 2 of the Sherman Act, 15 U.S.C. § 2, five nationwide markets or sub-markets, including the markets for amateur conventional still film, amateur movie film, amateur movie cameras, amateur photofinishing equipment and services, and photographic chemicals for the amateur photofinishing industry. Now before the Court are five motions for partial summary judgment — one filed by the plaintiff and four filed by the defendant. I. Collateral Estoppel Effect of Berkey On January 29, 1973, Berkey Photo, Inc. (“Berkey”) instituted an antitrust action against Kodak — an action then Chief Judge Kaufman of the Second Circuit was later to describe as “one of the largest and most significant private antitrust suits in history.” Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 267 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). Approximately three months later, on April 30, 1973, GAF filed the present action against Kodak, an action apparently broader in its scope than Berkey. Identified as related cases, both were assigned to Judge Frankel. In 1976, after discovery and pretrial proceedings (which were jointly coordinated to some degree), Judge Frankel, over Kodak’s objection, ordered a prior and separate trial of the Berkey case. Berkey Photo, Inc. v. Eastman Kodak Co., 73 Civ. 424, Memorandum dated October 22, 1976 (appended as Exhibit 2 to Kodak’s Memorandum in Opposition to GAF’s Motion for Partial Summary Judgment Based On Collateral Estoppel). The jury trial of the Berkey action was bifurcated. A liability trial, commencing on July 13, 1977 and ending on January 21, 1978, consumed 109 trial days. A month later, trial was resumed for eight days on the issue of damages, and resulted in a jury verdict of over $37 million in favor of Berkey before trebling. After trial, Kodak’s motion for judgment notwithstanding the verdict was granted on certain of Berkey’s claims, portions of the damage award were set aside, and certain equitable relief was granted. 457 F.Supp. 404 (S.D.N.Y.1978). On July 3, 1978, a final judgment in excess of $87 million was entered in Berkey’s favor. Thereafter, both sides appealed and on June 25, 1979, a unanimous panel filed its opinion. 603 F.2d 263. Rather than attempt to summarize the Second Circuit’s detailed opinion, the disposition of the appeals will be discussed below. Berkey petitioned for certiorari, and Kodak filed a conditional cross-petition for certiorari, to be considered only in the event that Berkey’s petition was granted. On March 19, 1980, the Supreme Court denied certiorari, with three Justices dissenting. 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). GAF now seeks, by motion for partial summary judgment, an order based upon the doctrine of offensive collateral estoppel precluding Kodak from relitigating or denying material facts which it contends were necessarily and conclusively determined in Berkey. In essence, GAF claims that, with respect to its claims under § 2 of the Sherman Act, Kodak should be precluded from litigating or denying (1) the definition of three relevant product markets: conventional amateur cameras, amateur film, and color paper, and (2) that it had monopoly power in those three markets. Similarly, with regard to its claims that Kodak violated § 1 of the Sherman Act, GAF contends that Kodak should be precluded from denying or litigating that it engaged in illegal conspiracies with both Sylvania and General Electric in connection with the development of flash devices. The issues presented by GAF’s motion are (1) whether a private plaintiff in a treble damages action may, under the doctrine of offensive collateral estoppel, avail itself of the benefits of rulings adverse to the same defendant in a prior private antitrust action, and (2) if so, whether offensive collateral estoppel should be applied to the facts of this case. The first issue, and accordingly the second issue, are questions of first impression in this Circuit. Before beginning its discussion, the Court notes that the Supreme Court has instructed that “the trial court [has] broad discretion to determine when [offensive collateral estoppel] should be applied.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). A. Offensive Collateral Estoppel in Antitrust Actions Kodak contends that according to § 5(a) of the Clayton Act, 15 U.S.C. § 16, and the general enforcement scheme of the federal antitrust laws, offensive collateral estoppel can never be applied in an antitrust case. Kodak points to § 5(a) of the Clayton Act, which, prior to its amendment in September 1980, provided that an adverse final judgment or decree in a prior civil or criminal antitrust action brought by the government could be no more than prima facie evidence of a violation by the same defendant in a subsequent action brought by a private plaintiff. Kodak reasoned that since the statute barred the use of preclusive offensive collateral estoppel from a prior government action, it would be anomalous to allow a prior private action to be given full preclusive effect. This reasoning was founded on the premise that Congress intended government suits, both civil and criminal, to be the mainstays of federal antitrust law enforcement, with private actions playing a secondary role. Although this argument requires an acceptance of the proposition that Congress proscribed by implication the use of offensive collateral estoppel based on a prior private action, the argument nonetheless has some appeal. There is compelling evidence that Congress intended government suits, presumably brought in the public interest, to be the foundation of federal antitrust enforcement. See Note, Section 5(a) of the Clayton Act and Offensive Collateral Estoppel in Antitrust Damage Actions, 85 Yale L.J. 541, 555-563 (1976) (collecting authorities); see also II P. Areeda & D. Turner, Antitrust Law, § 327, at 131 (1978); but see Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968) (“private suits are bulwark of antitrust enforcement”). Kodak’s argument, however, was undercut by the enactment of the Antitrust Procedural Improvements Act of 1980, Pub.L. 96-349, on September 12, 1980. The Act amended, inter alia, § 5(a) of the Clayton Act to permit full preclusive effect to be given to prior government actions. Pub.L. 96-349 at § 5, amending 15 U.S.C. § 16(a). The avowed purpose of the amendment was to “permit application of the [collateral estoppel] doctrine to eliminate wasteful retrying of issues and reduce the costs of complex antitrust litigation to the courts and parties.” H.R.Rep.No. 96-874, 96th Cong., 2d Sess. at 3 (1980), reprinted in 1980 U.S. Code Cong. & Ad.News 2716, 2752, 2753; see also H.R.Rep.No. 96-1234, 96th Cong., 2d Sess. at 9 (1980), reprinted in 1980 U.S. Code Cong. & Ad.News 2781, 2783; National Commission for the Review of Antitrust Law and Procedures, Report to the President and the Attorney General (Jan. 22, 1979), reprinted in 897 Antitrust & Trade Reg.Rep. (BNA) (Special Supp.) at 29-31. Now, given the amended language of § 5(a), the grant of collateral estoppel effect from a prior private action to another private action would not, in this Court’s view, relegate government suits to a secondary role. Thus, the Court concludes that offensive collateral estoppel effect may be given to a prior private antitrust action in a subsequent private antitrust suit. B. Application of Collateral Estoppel to the Case at Bar The next issue presented is whether offensive collateral estoppel is properly applicable to the case at bar. Briefly stated, the following are preconditions to the application of collateral estoppel: (1) the party against whom collateral estoppel is asserted must have been a party, or in privity with a party, to the prior,action; (2) there must have been a final determination of the merits of the issues sought to be collaterally estopped; (3) the issues sought to be precluded must have been necessary, material, and essential to the prior outcome; (4) the issues sought to be precluded must have been actually litigated in the prior action, with the party against whom the estoppel is asserted having had a full and fair opportunity to litigate the issues; and (5) the issues actually and necessarily decided in the prior litigation must be identical to the issues sought to be estopped. See Montana v. United States, 440 U.S. 147, 153-55, 99 S.Ct. 970, 973-974, 59 L.Ed.2d 210 (1979); Parklane Hosiery, 439 U.S. at 326-337, 99 S.Ct. at 649; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Yates v. United States, 354 U.S. 298, 335-38, 77 S.Ct. 1064, 1085-1087, 1 L.Ed.2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Partmar Corp. v. Paramount Pictures Theatre Corp., 347 U.S. 89, 100-103, 74 S.Ct. 414, 420-422, 98 L.Ed. 532 (1954); Emich Motors Corp. v. General Motors, 340 U.S. 558, 568-69, 71 S.Ct. 408, 413-414, 95 L.Ed. 534 (1951). In addition, in exercising its discretion, the trial court may only invoke offensive collateral estoppel when the plaintiff could not have easily joined in the prior action and when application of the doctrine would not be unfair to the defendant. Parklane Hosiery, 439 U.S. at 331, 99 S.Ct. at 651. The issues sought to be collaterally estopped in the present action — first the § 2 issues and then the § 1 issues — will be evaluated in light of the foregoing guiding principles. 1. Section 2 Claims The jury in Berkey found that Kodak monopolized three relevant markets: conventional amateur cameras, amateur film, and color paper — to the injury of Berkey. The conventional amateur camera market consisted of 110 and 126 instant loading cameras and simple box type cameras which take roll films, but excluded instant print cameras and 35mm cameras. See 603 F.2d at 269 n.2. The amateur film market consisted of all amateur conventional film, including black and white and color film, still and movie film, and slide and print film, but excluded the film used in instant picture cameras. See id. The parties stipulated that the color paper market consisted of the paper used to make color prints from amateur film. The jury awarded treble damages to Berkey for Kodak’s violations with respect to the each of these markets. Thereafter, Judge Frankel denied Kodak’s motion for judgment notwithstanding the verdict with respect to amateur camera and amateur film damages, but granted Kodak’s motion with respect to color print paper. 457 F.Supp. at 410-27. On appeal, the Second Circuit reversed the jury’s award of damages relative to the camera market. 603 F.2d at 279-90. The Court also reversed and remanded for a new trial the jury’s award of damages relative to the amateur film market and reversed the trial court’s grant of Kodak’s judgment n.o.v. motion regarding the color paper market. 603 F.2d at 293-99. In reaching these results, however, the panel specifically upheld the jury’s delineation of the relevant markets. 603 F.2d at 268-71. Further, the Circuit found that the evidence was sufficient for the jury to find that Kodak possessed monopoly power in the amateur camera, amateur film, and color paper markets. 603 F.2d at 273, 279 (cameras), 299 (film and color paper). Thus, GAF seeks to preclude Kodak from relitigating these market definition and monopoly power issues. Those issues will now be examined in light of the collateral estoppel prerequisites previously set out. a. Identity of Defendants The requirement that the party against whom collateral estoppel is asserted must have been a party, or in privity with a party, to the prior action is not an issue here, since Kodak was the defendant in both cases. b. Finality Although Kodak concedes that there is a final judgment with respect to Berkey’s § 2 camera claims, Kodak argues that since the judgment is in its favor, the market definition and monopoly power findings of the jury and their approval are void for collateral estoppel purposes. With respect to the film and color paper decisions, Kodak contends that they have no independent legal significance now, are subject to revision at a later date, and may never have any legal significance if Kodak ultimately prevails on those issues, as it has on Berkey’s camera contentions. This Court rules that Kodak’s proposed narrow readings of the finality requirement of collateral estoppel is too restrictive and not well supported by the case law. While the Court does not accept GAF’s contention that, pursuant to Southern District of New York Local Civil Rule 43, the Second Circuit mandate is sufficient to constitute a final judgment with respect to the market definition and monopoly power rulings in Berkey, those rulings by the Second Circuit are certainly the “law of the case.” The Second Circuit has held that the “finality” requirement of collateral estoppel is satisfied by determinations that were merely “law of the case.” Zdanok v. Glidden, 327 F.2d 944, 955 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964) (“ ‘Finality’ ... may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.”). See Restatement of Judgments 2d, Tent. Draft No. 1, § 41 (1973). Thus, the determination of issues by the jury which were subsequently affirmed by the Second Circuit satisfies the finality requirement of collateral estoppel. c. Determination Necessary and Essential to the Prior Determination In order to prevail on a monopolization claim, a plaintiff must prove, sequentially, the following elements: (1) the relevant market, (2) the defendant’s possession of monopoly power in that market, (3) the defendant’s misuse of the power by anti-competitive behavior or otherwise, (4) injury to the plaintiff resulting from the misuse of monopoly power, and (5) sufficient facts to support a determination of monetary damages to compensate for the injury. In order to determine whether a defendant engaged in conduct violative of § 2, a court must first determine the relevant market and the existence of monopoly power. Only then can the court determine whether or not the defendant abused its monopoly power. Simply stated, the Second Circuit had to reach the questions of market definition and monopoly power in deciding to reverse the damages award regarding cameras and reverse and remand the films and color paper claims as it did. Regardless of the Berkey panel’s decisions regarding misuse of power, injury, or proof of damages, the market and power issues were necessarily decided. This conclusion is supported by the cases which hold that relitigation of alternative but essential issues may be precluded. Winters v. Lavine, 574 F.2d 46, 66-67 (2d Cir. 1978); Williams v. Ward, 556 F.2d 1143, 1154 (2d Cir.), cert. dismissed, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977). d. Prior Issues Actually and Fully Litigated Kodak raises several arguments in support of its position that the market definition and power issues were not actually and fully litigated. Initially, it contends that these issues were not fully litigated because other issues dominated the litigation, especially at the appellate stage and because significant portions of the issues were stipulated. As to the first portion of this argument, the Court notes that the issues were vigorously litigated before Judge Frankel and the jury. Failure to raise these issues on appeal does not alter their preclusive effect. See Winters v. Lavine, 574 F.2d at 62-63; see also Cyclops Corp. v. Fischback & Moore, Inc., 71 F.R.D. 616, 618 (W.D.Pa.1976); Sherman v. Jacobson, 247 F.Supp. 261, 270 (S.D.N.Y.1965). Regarding the use of stipulations, the decision to agree to certain facts was a decision made by Kodak as part of its litigation strategy. Several courts, including the Second Circuit, have recognized that collateral estoppel should not be barred because a party entered into stipulations. Tillman v. National City Bank of New York, 118 F.2d 631, 635 (2d Cir.), cert. denied, 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521 (1941); Fairmont Aluminum Co. v. Commissioner, 222 F.2d 622, 625 (4th Cir.), cert. denied, 350 U.S. 838, 76 S.Ct. 76, 100 L.Ed. 748 (1955); Wil liamson v. Columbia Gas & Electric Corp., 186 F.2d 464, 466-67 (3d Cir. 1950), cert. denied, 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355 (1951). Kodak further argues that because a general verdict form was used by the trial court in Berkey, a practice criticized on appeal, 603 F.2d at 279, it is difficult to determine what the jury actually decided. Kodak contends that GAF bears the burden of showing what was actually decided, rather than what should have been decided, and that failure to remove a reasonable doubt as to what was actually decided in Berkey should preclude the application of collateral estoppel. McNeliis v. First Federal Savings and Loan Association, 364 F.2d 251, 257 (2d Cir.), cert. denied, 385 U.S. 970, 87 S.Ct. 504, 17 L.Ed.2d 434 (1966). While the Court concedes that the Berkey verdict form makes it difficult to determine' the exact findings of the jury regarding market definition and monopoly power, the jury was given a thorough charge on the elements of a § 2 monopoly claim, including the applicable legal standards for determining market parameters and monopoly power. Accordingly, this Court must assume, as did the Second Circuit, see supra at 1212, that the jury made specific findings as to the relevant markets and power in reaching their verdict. Finally, Kodak argues that it was denied a full and fair opportunity for an actual judicial resolution of the issues, because of the prejudice created by the testimony of Merton J. Peck, one of Kodak’s expert witnesses upon whom Kodak relied to prove its alleged market definitions. This claim essentially relates to the question of whether it would be fair to give preclusive effect to selected § 2 Berkey determinations and will be considered below in conjunction with Kodak’s other “fairness” arguments, e. Identity of Issues Regarding the question of whether the market definition and market power issues determined in Berkey and presented in this case are identical, Kodak contends that the Berkey determinations are temporally distinct from the issues presented here. Although the Berkey verdict contains no specific reference to the time period covered, the evidence at the liability trial was apparently restricted to pre-1977 occurrences and documents. In the present case, damages are claimed through mid-1977 when GAF was allegedly driven out of business by Kodak’s anticompetitive activities. Kodak contends that its introduction of instant photographic products in 1977 and a drop in its 1977 camera market share could lead a jury to different conclusions with regard to market definition and power than were reached in Berkey. The Court, however, concludes that the slightly different time period covered by the evidence in this case would not likely cause a jury to find different market definitions or reach different conclusions as to Kodak’s market power. The slim possibility that the jury could reach a different conclusion is insufficient justification for relitigating issues vigorously and fully contested by Kodak over the course of several months in the Berkey trial. f. Plaintiff’s Ability to Join in Prior Action Rather than wholeheartedly endorsing the doctrine of offensive collateral estoppel, the Supreme Court in Parklane Hosiery cautioned that the policies of judicial economy could be frustrated by the application of offensive collateral estoppel in instances in which the plaintiff could easily join in an earlier action, but instead adopts a “ ‘wait and see’ attitude, in the hope that the first action by another plaintiff will result in a favorable judgment.” 439 U.S. at 330, 99 S.Ct. at 651. In such a case, the plaintiff “will have everything to gain and nothing to lose by not intervening in the first action.” Id. As noted earlier, GAF and Berkey requested separate trials, while Kodak sought a consolidated trial. In an Order dated September 22, 1976, Judge Frankel ordered Berkey to be tried first and separate from GAF. Judge Frankel’s decision was founded upon the following rationale: “The issues in the two cases are different in substantial respects. The GAF case is larger, more complex, and likely to require much more trial time. The Berkey case is more nearly ready for trial, and there is unwarranted prejudice to this plaintiff in waiting for the other. There are counterclaims against Berkey, none against GAF. Overall, the prejudice to plaintiffs from a joint trial outweighs the burdens upon defendant of separate trials. Not least of all, the fact that these are to be jury trials, upon defendant’s insistence, counsels against consolidation. Each case separately promises to be extraordinarily complex. The problem of guiding lay persons through these long and intricate proceedings will be difficult enough for everyone if the cases are tried one at a time.” (Emphasis added). The foregoing language makes clear that Berkey was not an action that GAF could have “easily joined in.” The complexity of each case and the fact that counterclaims were being asserted by Kodak against Berkey, coupled with the fact that, at Kodak’s insistence, both cases were jury trials, indicates that GAF is not the “wait and see” plaintiff contemplated by Parklane Hosiery. g. Fairness to Defendant The final and perhaps preeminent question to be considered by the trial judge in exercising his broad discretion is whether the application of offensive collateral estoppel “would be unfair to the defendant.” Id. at 331, 99 S.Ct. at 651. Kodak points to three separate factors which it contends makes application of offensive collateral estoppel unfair: (1) the “Peck incident”, (2) the unavailability of Gerald B. Zornow as a witness at the Berkey trial, and (3) GAF’s late production of four documents. Each will be briefly discussed in turn. The so-called “Peck incident” relates to the cross-examination of Merton J. Peck, Kodak’s sole expert witness at the Berkey trial. The incident was fully described and discussed by the Second Circuit in considering Kodak’s appeal. 603 F.2d at 305-308. In brief, Judge Frankel allowed plaintiff’s counsel to cross-examine Peck with respect to the alleged destruction of documents and a 1915 decree entered against Kodak in a government antitrust suit. Here, Kodak contends that the Peck incident was highly prejudicial to its defense and such prejudicial effects should not be perpetuated by the application of offensive collateral estoppel. However, the Second Circuit considered Kodak’s prejudice argument and rejected it. “We are not unmindful that the incidents described, as presented to the jury, led to the unfortunate consequence of casting Kodak’s attorneys, and the defendant itself, in a highly unfavorable light. It is no less true, however, that the cross-examination elicited information that was highly relevant to an assessment of the independence of judgment and probity of one of Kodak’s principal witnesses. Where the trial judge was taken great care to balance the probative value of the evidence against the prejudice that may accrue from its introduction, we think it inappropriate to substitute our judgment for his.” 603 F.2d at 308. That Peck may not be called as a witness at the trial of the present action is irrelevant. The question before this Court is whether application of offensive collateral estoppel to the market definition and market power issues would be unfair in light of the Peck incident. Based upon the Second Circuit’s ruling and the fact that the testimony of Peck was only a part of Kodak’s defense case in Berkey, the Court concludes that the Peck incident should not preclude application of collateral estoppel in this case. Secondly, Kodak contends that the unavailability of Gerald B. Zornow as one of its witnesses at the Berkey trial should preclude the application of collateral estoppel. During the time period relevant to Berkey and this case, Zornow served as Kodak’s chief marketing executive and then its president and chairman of the board. Due to illness, Zornow was unable to testify at the Berkey trial. Zornow, however, had been deposed prior to trial by Berkey’s counsel. During the course of that deposition, Kodak’s counsel did not “cross-examine” Zornow, apparently anticipating that Zornow would be available to Kodak as a witness at trial. See Affidavit of David A. Weir, Esq., sworn to July 30, 1980 at ¶ 6. In essence, Kodak argues that much of Berkey’s proof regarding market definition and market power relied upon deposition testimony of Zornow, and that subsequent deposition testimony of Zornow indicates that the prior deposition testimony was incomplete and misleading. Initially, the Court notes that while Zornow’s deposition testimony may have been important to Berkey at trial, it was apparently corroborated by other Berkey witnesses and Kodak witnesses. See Affidavit of Dennis J. Drebsky, Esq., sworn to August 15,1980 at ¶ 9. In addition, Kodak was free to “cross-examine” Zornow before trial, but failed to do so, presumably as part of its litigation strategy. Finally, the post-trial deposition testimony of Zornow (see Weir affidavit) does not unequivocally indicate that the market definitions or market power determinations of the jury would have differed in the event that Zornow had appeared at trial. In sum, the Court concludes that Zornow’s failure to testify at the Berkey trial would not render unfair the application of offensive collateral estoppel to the present action. Finally, Kodak contends that GAF failed to produce prior to the Berkey trial four requested documents which indicate that instant cameras and films are in the same markets as conventional products. See Affidavit of Helmut F. Furth, Esq., sworn to July 15,1980. Kodak alleges that if it had presented these four documents at the Berkey trial, the jury could have found different market definitions, and accordingly, made different market power findings. Despite Kodak’s assertions, even reading these documents in a light most favorable to Kodak, the Court finds that the four documents are of marginal value in proving that instant and conventional products are in the same relevant product markets. Parenthetically, while the Court does not wish to condone GAF’s apparently belated production of these four documents, there is no evidence that GAF intentionally withheld the four documents until the close of the Berkey trial. In short, there appears to be no compelling reason to allow the late production of four marginal documents to stand in the way of the application of offensive collateral estoppel. As previously discussed, the question of whether instant and conventional products were in the same relevant market was fully, fairly, and fiercely litigated in Berkey. h. Conclusion Regarding Application of Offensive Collateral Estoppel to GAF’s § 2 Claims The determination of the parameters of the amateur camera, amateur film, and color paper markets, and Kodak’s possession of monopoly power in those markets were fairly, fully, and finally litigated in Berkey. Indeed, Kodak had two powerful incentives to vigorously litigate the action. First, it sought to avoid a treble damage verdict against it by Berkey, and second, it knew after Judge Frankel ordered separate trials that an adverse decision in Berkey might well have collateral estoppel effect in other pending, antitrust actions against Kodak, especially GAF’s suit. Additionally, there are “no procedural opportunities available to [Kodak in the present action] that were unavailable in the [Berkey ] action of a kind that might be likely to cause a different result.” Parklane Hosiery, 439 U.S. at 332, 99 S.Ct. at 652. In short, application of offensive collateral estoppel to the market definition and monopoly power issues would not be unfair to Kodak. Accordingly, GAF’s motion for partial summary judgment with regard to the § 2 issues is granted. 2. Section One Claims As mentioned earlier, GAF seeks to preclude Kodak from denying or litigating that it engaged in illegal conspiracies, in violation of § 1 of the Sherman Act, with both Sylvania and General Electric in connection with the development of the magicube and flipflash devices. In Berkey, the jury found that Kodak unlawfully conspired with Sylvania and GE to restrict the flow of information regarding the development of the magicube and the flipflash devices, respectively, in violation of § 1. The jury found that these § 1 violations caused injury to Berkey and awarded damages to it. On appeal, the Second Circuit affirmed the jury’s findings of § 1 violations with respect to the magi-cube and flipflash conspiracies, affirmed the award of damages with regard to lost camera sales in 1970 due to the magicube conspiracy, and remanded for a new trial the determination of 1971 magicube conspiracy damages and flipflash conspiracy damages. 603 F.2d at 299-305. The Court finds that all the preconditions to application of offensive collateral estoppel — previously discussed in detail with respect to GAF’s § 2 claims — are satisfied with regard to the magicube and flip-flash conspiracies. Aside from those items discussed with regard to GAF’s § 2 claims, Kodak’s only other challenge to the application of offensive collateral estoppel to the magicube and flipflash claims asserted by GAF is that such an application is inappropriate because the findings sought to be given estoppel effect were of the type “likely to be decided on the basis of a jury’s choice among different factual inferences.” Berner v. British Commonwealth Pacific Airlines, 346 F.2d 532, 541 (2d Cir. 1965), cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966). Kodak’s reliance upon Berner is misplaced. That case involved a multiple accident case in which a plaintiff sought to use a prior unappealed $35,000 judgment against the defendant to estop the same defendant from litigating a $7 million claim based upon similar facts. The Berner panel merely held, in accord with Zdanok, 327 F.2d at 955-56, that mutuality of estoppel should not be readily discarded in multiple accident cases. 346 F.2d at 540-41. Similarly, Kodak’s reliance upon Divine v. Commissioner of Internal Revenue, 500 F.2d 1041 (2d Cir. 1974), a tax case, is unfounded. There, the Court ruled that collateral estoppel should not apply to a tax case because of the unsettled legal decisions of different tribunals interpreting the Internal Revenue Code. The Court, however, recognized that in cases in which complex factual issues are applied to settled legal principles, collateral estoppel should be applied. Id. at 1048-49. In short, the overriding policy factors found in Berner and Divine mitigating against the use of collateral estoppel are not present in the case at bar. Further, for the reasons previously stated, supra at 1215-1216, the Court does not believe it would be unfair to Kodak to give collateral estoppel effect to the magicube and flipflash conspiracy rulings from Berkey. Accordingly, the plaintiff’s motiqn for partial summary judgment with respect to the magi-cube and flipflash conspiracies is granted. C. Summary of Part I Antitrust litigation and trials are frequently and increasingly criticized for being too costly, time-consuming, and complex. See National Commission for the Review of Antitrust Laws and Procedures, Report to the President and the Attorney General 11 (Jan. 20, 1979); S.Rep.No. 96-238, 96th Cong., 1st Sess. 3 (1979). Indeed, Congress has evidenced its intention and concern about the matter by giving full preclusive effect to prior government antitrust suits in order to “eliminate wasteful retrying of issues and reduce the cost of complex litigation to the courts and the parties.” H.R. Rep.No. 96-874, at 3. In exercising the discretion prescribed by the Supreme Court, this Court finds that the issues for which GAF seeks preclusion were fully, fairly, and fiercely contested by Kodak in the Berkey action, with full knowledge that the day would come when GAF sought to use the Berkey findings to its advantage. For all the reasons discussed, the limited application of offensive collateral estoppel sought by GAF would not be unfair to Kodak. Application of collateral estoppel to the § 2 issues of relevant market definition and monopoly power and the § 1 issues of the illegality of the magicube and flipflash conspiracies will promote the public interest by preventing needless and repetitious litigation and by conserving the resources of the Court and the parties. Accordingly, the plaintiff’s motion for partial summary judgment is granted in full. II. GAF’s Standing to Assert Section 1 Camera Claims As previously mentioned, GAF alleges, inter alia, that Kodak entered into agreements with Sylvania and General Electric in connection with two joint research programs, which violated § 1 of the Sherman Act by restraining the flow of information regarding flash device developments to other camera manufacturers. The joint research projects resulted in the introduction of the “magicube” by Sylvania in 1970, the “flipflash” by General Electric in 1975, and cameras capable of utilizing these new flash devices by Kodak in each of those years. In Berkey, the Second Circuit affirmed verdicts against Kodak with respect to these joint research programs, holding that the jury could properly have found that these programs unreasonably restrained competition by Berkey “in the production of cameras that could cooperate with the new flash device,” and that Berkey was entitled to recover lost profits on sales lost as a result of the restraint on the flow of information from Sylvania and GE and Kodak. See 603 F.2d at 299-304. The Court has ruled that Kodak shall be estopped from relitigating the illegality of these two joint research programs. Here, GAF alleges that the restraint on the flow of information regarding the magicube and the flipflash allowed Kodak to introduce cameras compatible with the new flash devices well in advance of GAF, forcing GAF to sell its old model cameras in competition with Kodak’s magicube and flipflash cameras, and preventing GAF from selling a new model magicube or flipflash camera in competition with Kodak’s cameras that were compatible with the new flash devices. GAF seeks treble damages for the losses it allegedly sustained due to the magicube and flipflash agreements. Kodak moves to dismiss these claims on the grounds that GAF lacks standing to assert them. Kodak contends that GAF did not manufacture cameras; that GAF’s business was outside the “target area” of the alleged antitrust violations; and that GAF’s injury from the magicube and flip-flash conspiracies, if any, was derivative of the impact on the camera manufacturers who competed with Kodak. This Court disagrees. Section 4 of the Clayton Act, 15 U.S.C. § 15, confers standing upon parties asserting claims under the federal antitrust statutes (including § 1 of the Sherman Act) as follows: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... without respect to the amount in controversy ... . ” Literally read, this statute would provide antitrust standing to virtually any party affected by an antitrust violation, regardless of the remoteness of the injury. As the Supreme Court has recognized, however, “[t]he lower courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.” Hawaii v. Standard Oil Co., 405 U.S. 251, 263 n.14, 92 S.Ct. 885, 891, 31 L.Ed.2d 184 (1972). The doctrines of “standing”, “pass-on” (see Illinois Brick Co. v. State of Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977)), and “antitrust injury” (see Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)), have been developed in order to limit the portals to a treble damages action. With respect to the standing issue presented here, the Supreme Court has provided no direct guidance. Consequently, the Court looks to the decisions of the lower courts, primarily those of the Second Circuit, to determine the standard which governs standing to assert treble damages claims. A brief review of earlier decisions and the decisions of other Circuits is helpful in placing the current law of this Circuit in perspective. In a seminal case decided shortly after enactment of the Sherman Act, the Third Circuit denied standing to a shareholder, creditor, director, and employee of a corporation that went bankrupt as a result of the defendant’s alleged monopolization of photographic supplies. Loeb v. Eastman Kodak Co., 183 F. 704 (3d Cir. 1910). By reasoning that only a person directly injured by the violation — in that case the corporation — had standing under Section 4, the court promulgated the standard which became known as the “direct injury” test. In the early 1950’s, the “target area” test for standing was developed by the Ninth Circuit. See Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955); Conference of Studio Unions v. Loew's, Inc., 193 F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). Thereafter, the “target area” label was used by most circuit courts, but the various formulations of the “test” varied from circuit to circuit. The Second and Third Circuits adopted a narrower “target area test, closely related to the “direct injury” test. See, e. g., Billy Baxter, Inc. v. Coca-Cola Co., 431 F.2d 183 (2d Cir. 1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826 (1971); Harrison v. Paramount Pictures, Inc., 115 F.Supp. 312 (E.D.Pa.1953), aff’d, 211 F.2d 405 (3d Cir.), cert. denied, 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653 (1954). In contrast, other circuit courts, notably the Ninth Circuit, used the “target area” label, but more broadly defined target area to include all persons who, with reasonable foreseeability, would be affected by the alleged antitrust violation. See, e. g., Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1377, 28 L.Ed.2d 662 (1971); South Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414 (4th Cir.), cert. denied, 385 U.S. 934, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966). These various “target area” tests have led to different results in substantially identical cases. Compare Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir. 1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1776, 32 L.Ed.2d 132 (1972) (standing denied) with Congress Building Corp. v. Loew’s Inc., 246 F.2d 587 (7th Cir. 1957) (standing granted). More recently, due to dissatisfaction with the “target area” formulation, several circuits have abandoned the test in favor of generally broader tests of standing. Turning to the controlling precedents of the Second Circuit, as noted earlier, this Circuit adopted a narrow target area test in determining antitrust standing. In Billy Baxter, 431 F.2d at 187-89, a divided panel affirmed the district court’s grant of defendants’ summary judgment motion on the grounds that a soft drink franchisor lacked standing to sue for alleged anticompetitive actions taken against its franchisees. The franchisees manufactured and sold beverages and remitted royalties to the plaintiff based on the number of bottles sold. The plaintiff franchisor alleged that its royalties were reduced due to the defendants’ anti-competitive acts. The court ruled that the franchisor was not in the “target area” of the defendants’ illegal acts. The majority, per Judge Anderson, instructed that the area of economic activity rather than the product should be considered and, accordingly, it is “necessary to examine a given plaintiff’s role in these processes to determine whether it has the requisite relationship to the type of wrong alleged.” Id. at 188. In denying standing to the franchisor, the majority noted that the plaintiff was not “a firm with comprehensive responsibilities for and identification with the beverages.” Id. A year later, another divided panel affirmed the dismissal of a suit by a non-operating movie house landlord against its lessees and motion picture distributors on the ground that the plaintiff was not in the target area of an alleged conspiracy which restricted the number of first run movies shown at theatres managed by plaintiff’s lessees, thereby reducing rental payments made to the plaintiff. Caiderone, 454 F.2d at 1295-97. The majority ruled that the target area test was applicable and stated the perceived rationale behind that test. In sum, the rule accommodates a sufficient number of private plaintiffs to deter antitrust law violations, and at the same time recognizes that there must be limitations on the use of the treble damage weapon to prevent an “over-kill”. Id. at 1295. In addition, the court reasoned that due to the uncertain parameters of substantive antitrust violations, standing should be kept narrow. Id. According to the majority, the target area test is a “rule of reason” which recognizes and conforms to the above-stated policies. Id. at 1296. The majority defined a “target” as “a person or business against which competitive aim is taken” and stated that “to have standing one must be an object of an antitrust conspiracy.” Id. at 1296 n.2. Cited as an example of a person against whom a conspiracy is aimed was “a competitor of the person sued.” Id. at 1295. Importantly, the majority expressly rejected the dissent’s proposed adoption of the “foreseeability” test used by the Ninth Circuit and previously discussed herein. Id. at 1296 n.2. Until 1980, the Second Circuit continued to adhere to the target area test rooted in Biily Baxter and Caiderone, and the district courts in this Circuit apparently applied this test in approaching antitrust standing issues. See Western Geophysical Co. v. Bolt Associates, 584 F.2d 1164, 1175 (2d Cir. 1978); Long Island Lighting Co. v. Standard Oil, 521 F.2d 1269 (2d Cir. 1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 855, 47 L.Ed.2d 83 (1976); Bowen v. New York News, Inc., 522 F.2d 1242 (2d Cir. 1975), cert. denied, 425 U.S. 936, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976); Laurie Visual Etudes, Inc. v. Cheesebrough-Pond’s, Inc., 473 F.Supp. 951 (S.D.N.Y.1979) (Weinfeld, J.); Star Lines, Ltd. v. Puerto Rico Maritime Shipping Authority, 451 F.Supp. 157 (S.D.N.Y.1978); Sulmeyer v. Seven-Up Co., 411 F.Supp. 635 (S.D.N.Y.1976); Hunt v. Mobil Oil Corp., 410 F.Supp. 10 (S.D.N.Y.1976) (Weinfeld, J.), aff’d on other grounds, 550 F.2d 68 (2d Cir. 1977), cert. denied, 434 U.S. 984, 98 S.Ct. 608, 54 L.Ed.2d 477 (1977). In Schwimmer v. Sony, 637 F.2d 41 (2d Cir. 1980), the Second Circuit arguably broadened the scope of the target area test. The court affirmed, inter alia, the dismissal of the plaintiff’s price discrimination suit against Sony on the grounds that the plaintiff, an indirect purchaser from Sony, lacked standing. The plaintiff was an authorized Sony dealer that bought directly from Sonam which in turn purchased from Sony. The plaintiff charged that Sony engaged in price discrimination in violation of Section 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a) due to the alleged differences in prices charged by Sony to Sonam, Sony’s United States Distributor, and to Interocean, Sony’s distributor for Central and South America. In concluding that the plaintiff, an indirect purchaser, lacked standing to sue, the opinion cited with approval the target area rule of Calderone. Schwimmer, 637 F.2d at 46-48. The court continued, however, by citing and quoting from leading Ninth Circuit cases that clearly apply the same foreseeability test unequivocally rejected by the majority in Calderone. Schwimmer, 637 F.2d at 47-48. The discussion concluded with the enunciation of the following standard: “Thus, an indirect purchaser is considered a ‘target’ of a seller’s price discrimination if there is evidence that the discrimination was ‘aimed at’ the indirect purchaser by virtue of the nature and foreseeable effect of the conspiracy.” Id. at 49. The Court also ruled that in order to have standing the plaintiff need not prove the defendant’s specific intent to include the plaintiff in its “target area”. Id. at 47 and n.15. In dicta, the Court stated that “evidence of a seller’s specific intent to restrain trade among indirect purchasers necessarily confers standing on those more remote customers.” Id. at n.15. Although the viability of the narrower Billy Baxter-Calderone target area test might be called into question by Schwimmer, a fair reading of the opinion indicates that the panel did not purport to rewrite the law of the Circuit. While the foreseeability language of the Ninth Circuit opinions cannot be ignored, those cases were arguably relied upon solely to support the proposition that specific intent is not required under the target area test. In fact, Reading Industries v. Kennecott Copper Corp., 631 F.2d 10 (2d Cir. 1980), cert. denied,-U.S.-, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981), the case that followed Schwimmer and the most recent ruling from the Circuit in this area, indicates that Schwimmer did not substantially alter the prevailing law of the Circuit. Writing for a unanimous panel, Judge Newman affirmed a grant of summary judgment dismissing the suit on the ground that the plaintiff, a refiner of copper scrap and manufacturer of copper tubing, lacked standing to sue the defendants, vertically integrated copper producers, for holding down the price of their refined copper thereby causing scrap prices to remain higher. At the outset, the Circuit Court noted that the difficulty in applying the prevailing standing rules may be “partially due to uncertainty as to whether the pertinent inquiry concerns whether a proper plaintiff is suing or whether a proper claim is being pursued.” Id. at 12. Notably, the panel stated that the target area test and the direct injury test “are ultimately tests of whether there is a legally significant causal relationship between the alleged violation and the alleged injury.” Id. at 13. Applying this principle, the court found that the causal relationship between the defendant’s alleged violation and the plaintiff’s payment of high scrap prices was too remote, tenuous and conjectural to permit the imposition of liability. Id. at 13-14. In summary, the Second Circuit appears to have adhered to the narrower target area test for standing in its recent opinions. Application of the prevailing target area test to the facts of the case at bar clearly indicates that GAF has standing to assert its Section 1 camera claims against Kodak. In support of its motion, Kodak contends that the alleged conspiracy between itself and Sylvania and General Electric was aimed solely at camera manufacturers. Since GAF did not manufacture cameras during the relevant time period, Kodak urges the Court to dismiss GAF’s claims pursuant to the Billy-Baxter-Calder-one line of cases. Kodak’s motion, however, is grounded on a very narrow definition of “manufacturer” and ignores GAF’s “role in the [camera production] processes” and “its comprehensive responsibilities for and identification with [its cameras].” Billy Baxter, 431 F.2d at 188. It is uncontroverted that GAF did not own a plant or facility for the manufacture of cameras during the relevant time period. This is not to say, however, that GAF was not involved in the “production” of cameras. Although elementary, it is important to note that the actual manufacture of a product — that is the physical construction or assembly of a product — is only one phase of the production process. Prior to assembly, a product must be designed and specifications must be given to the manufacturer. Often, but not in all cases, the design is conceived and finalized by the same firm that assembles the product. While Kodak operated in this manner, GAF has presented evidence showing that it designed cameras that ultimately bore the GAF label, provided specifications to foreign manufacturers, and contracted with those manufacturers to procure the raw materials and build the cameras. The assembled cameras were then returned to GAF for testing, packaging (often in an “outfit” consisting of the camera, film, and flash), and sale to distributors or other private label sellers. Under this production scheme, the responsibility for designing cameras remained with GAF. The firms with whom it contracted to build the cameras were required to build the cameras according to GAF’s specifications. Given this production scheme, GAF was clearly within the “target area” of the alleged conspiracies between Kodak and Sylvania and General Electric. Pursuant to the magicube and flipflash conspiracies, Sylvania and General Electric allegedly withheld information regarding the magi-cube and flipflash until introduction of the flash devices and Kodak cameras that were compatible with the new devices. Naturally, the parties most interested in information regarding the new flash devices would be those responsible for designing cameras. Of course, those designs would ultimately lead to the manufacture of cameras to be sold; but, the crucial first step — prerequisite to the manufacture of a camera compatible with the new flash device — was the design of such a camera. As the designer of its brand-name cameras, GAF would have been most interested in the new flash information. Insofar as GAF’s cameras were concerned, GAF’s foreign manufacturers would have had, at most, a secondary interest in the new flash information; those manufacturers were contractually committed to build cameras according to GAF specifications. Thus, GAF is the appropriate plaintiff to assert the within claims, consistent with the policy objectives enunciated in Calderone, 454 F.2d at 1295-96, and discussed supra at 1220. In short, the purpose of the alleged magi-cube and flipflash conspiracies was to place those who designed 126 format and 110 format cameras a step behind Kodak, thereby placing the manufacture, distribution, and ultimate marketing of the rival cameras one step behind Kodak. As the firm that designed 126 and 110 cameras, had the cameras assembled according to its own specifications, tested the cameras, packaged the cameras, distributed the cameras, and serviced the cameras, GAF was unquestionably within the target area of the alleged conspiracies. The rather simple causal chain alleged by GAF is not too tenuous or speculative to preclude liability as was the case in Reading. In essence, GAF alleges that the restraint on new flash devices information placed GAF at a temporal disadvantage in the design of compatible cameras, which in turn placed it at a temporal disadvantage in ordering the manufacture of suitable cameras, which then placed it at a temporal disadvantage in the distribution and sale of compatible cameras. Accordingly, GAF was forced to sell its “old flash technology” cameras in direct competition with Kodak cameras compatible with the new flash devices, thereby forcing GAF to “unload” its cameras with less appealing flash features at “distress” prices. The Court rules that there exists “a legally significant causal relationship between the alleged violation and the alleged injury.” 631 F.2d at 12. Therefore, GAF has standing to assert its § 1 camera claims. Accordingly, Kodak’s motion for partial summary judgment dismissing GAF’s § 1 camera claims is denied. III. Kodacolor II and the C-41 Process GAF’s major claim under § 2 of the Sherman Act concerns Kodak’s involvement in the amateur conventional still film market. More specifically, GAF attacks as anti-competitive Kodak’s design and introduction of Kodacolor II film and the concomitant C-41 photofinishing process. Kodak seeks partial summary judgment in its favor with respect to these claims. A. GAF’s Claims GAF contends, and Kodak concedes for purposes of this motion only, that the amateur conventional film market consists of the nationwide manufacture and sale of amateur conventional color negative film (i.e., color print film), amateur color reversal film (i.e., color slide film), amateur black and white film, and amateur color movie film, excluding instant color or black and white print film or instant color movie film. Amateur conventional still film — the subject of the present motion — is a sub-market of the amateur conventional film market and does not include amateur color movie film. For purposes of this motion, Kodak concedes that it possessed monopoly power in these markets. GAF’s film claims under § 2 are premised, in part, upon the relationship between and interaction of films and photofinishing processes. GAF alleges, and Kodak does not contest, that films which are not process compatible with Kodak film (i.e., not processable in the same photo-chemicals and equipment as Kodak film) must be processed separately in order to avoid destroying or seriously denigrating the images recorded on either or both groups of films. Similarly, films which are not print compatible with Kodak film (i.e., not designed to be printed on printing equipment balanced for printing Kodak negative film) must be printed separately in order to achieve a proper rendition of the desired colors. GAF alleges that, at all relevant times, approximately 90% of the amateur color negative film processed by independent photofinishers has been Kodak film. GAF further alleges that due to Kodak’s monopoly power in the market for amateur conventional film and particularly in the field of amateur conventional color negative film, and due to the high capital costs involved in operating a second processing line, the great majority of independent photofinishers only maintained the equipment necessary to process Kodak’s Kodacolor film. From 1955 until March 1972, the standard process used by photofinishers for processing amateur color negative still film was Kodak’s C-22 process which operated at 75 °F. and the standard printer setup was that prescribed by Kodak for Kodacolor film. GAF alleges that prior to 1969, Kodak was the only manufacturer offering for sale amateur color negative films (Kodacolor and Kodacolor X) which could be processed using Kodak C-22 chemistry. GAF contends that from 1955 to 1972, as a result of the widespread availability of an independent photofinisher network in the United States capable of economically processing and printing only amateur color negative film designed to be processed in C-22 chemistry and printed with the same printer balance as Kodacolor film, and the importance of these independent photofinishers as wholesalers and processers of such film, it was not commercially feasible for manufacturers of incompatible amateur col- or negative still films to sell significant quantities of their films to the average consumer in the United States. In June 1969, GAF, and later other film manufacturers, began to offer for sale in the United States amateur color negative films which were process and print compatible with Kodak’s C-22 process film. In March 1972, Kodak introduced Kodacolor II in the 110 format only, the C-41 process which operated at 100 °F., related photofinishing equipment and chemistry, and the 110 Pocket Instamatic camera. At the same time, Kodak allegedly announced to independent photofinishers and the public that as soon as its manufacturing capacity would permit, it intended to convert its other popular sized films to films compatible with the C-41 process and to discontinue the manufacture of films in those sizes which were compatible with the C-22 process. Indeed, commencing in September 1973, Kodak discontinued the manufacture of Kodacolor X (its C-22 compatible film) in the 126 and 135 sizes and introduced Kodacolor II in those sizes. Importantly, the films manufactured by GAF and other Kodak competitors, which were compatible with the C-22 process, were incompatible with the C-41 process. GAF alleges that the aforementioned product introductions and announcement that Kodacolor X would be replaced by Kodacolor II had both the purpose and effect of forcing independent photofinishers to convert from C-22 to C-41 processing. Allegedly as a result of Kodak’s conduct, including the replacement of Kodacolor X with Kodacolor II in the 126 and 135 sizes, C — 22 processing by independent photofinishers became increasingly difficult to obtain, and by 1975, the majority of independent photofinishers had ceased processing C-22 films. GAF alleges that the aforementioned conduct restricted and excluded competition in the amateur conventional still film market by causing consumers to purchase Kodacolor II film rather than GAF film. With respect to Kodacolor II and the C — 41 process, GAF also attacks as anticompetitive Kodak’s design conduct. GAF alleges that Kodak purposefully designed Kodacolor II for a new 100° F. process because it knew that the existing C-22 compatible films of its competitors, including GAF, could not withstand the higher temperature process without being destroyed. Further, GAF alleges that Kodak reduced the format of its 110 size Kodacolor II film from 15 X 20 mm to 13 X 17 mm solely to exclude “grainier” C-22 compatible films from competition with Kodacolor II in the 110 format. Finally, for purposes of this motion, GAF alleges that Kodak failed to take reasonable measures, including disclosure of necessary technology, to avoid the anticompetitive impact of its conversion from the Kodacolor X and C-22 process to Kodacolor II and the C-41 process. Complaint at ¶ 66. GAF contends that Kodak was under a duty to disclose to GAF the technology necessary to enable it to enter the market with a C-41 compatible film at the point when C-22 processing services were not available to consumers on the same terms as C-41 processing services. GAF Brief in Opposition at 132. Having reviewed GAF’s contentions with respect to Kodak’s introduction of Kodacolor II and the C-41 process, the Court will discuss the guiding principles of § 2 of the Sherman Act. B. Section 2 Principles In order to establish a monopolization charge under § 2 of the Sherman Act, a plaintiff must establish the defendant’s possession of monopoly power and “the [defendan