Full opinion text
OPINION AND ORDER SOFAER, District Judge: Reborn Enterprises, Inc. (“Reborn”) brought this action in April 1982 against defendants, Andrews MacLaren Ltd. (“MacLaren Ltd.”); Andrews MacLaren Inc. (“MacLaren Inc.”); Ben’s for Kids, Inc. (“Ben’s”); Mark Wein (“Wein”), the since deceased former president of Ben’s; Fine Child Inc. (“Fine Child”); and James Fine (“Fine”), president of Fine Child. Reborn seeks damages based upon alleged violations of federal and state antitrust laws and of common law contractual rights. Plaintiff alleges that defendants engaged in conduct constituting per se violations of section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, by forming horizontal and vertical contracts, combinations, and conspiracies to fix prices, by imposing restrictions on the territories in which various retailers could sell the MacLaren Baby Buggy, and by engaging in concerted refusals to deal and tying arrangements. Plaintiff claims that the tying arrangements were also unlawful under section 3 of the Clayton Act, 15 U.S.C. § 14. Alternatively, plaintiff maintains that the conduct amounted to an unreasonable restraint of trade under a “rule of reason” analysis. Plaintiff also alleges that defendants monopolized, attempted to monopolize, and conspired to monopolize commerce in violation of section 2 of the Sherman Act, 15 U.S.C. § 2, and that defendants Fine Child, Fine, Ben’s, and Wein engaged in illegal price discrimination in violation of section 2 of the Robinson-Patman Act, 15 U.S.C. § 13(a), (d), (f). Plaintiff further claims that defendants violated sections 340 and 369-a of New York’s Donnelly Act. N.Y.Gen.Bus.Law §§ 340, 369-a. Finally, Reborn contends that defendants tortiously breached contracts with Reborn and maliciously conspired to interfere with Reborn’s advantageous business relationships. Thus, Reborn contends, defendants are jointly and severably liable for compensatory, treble, and punitive damages, as well as for costs and attorney’s fees. Reborn requests that the court permanently enjoin defendants from refusing to sell MacLaren strollers, parts, and accessories to Reborn and order them to make such strollers, parts and accessories available to Reborn. Defendants Fine and Fine Child counterclaimed against Reborn and its attorneys for defamation based on a letter charging defendants with illegal conduct, sent by Reborn’s attorneys to all defendants on January 15, 1982. By order dated August 30, 1982, the defamation claim was severed from the antitrust claims, to be tried separately after all other issues were determined. After exhaustive discovery, the case was placed on the ready trial calendar in January 1984. At that time, defendants raised a variety of motions which taken together seek dismissal and/or summary judgment against all plaintiffs claims. For the reasons that follow, summary judgment is granted on behalf of all defendants on the federal antitrust claims. The pendent state claims are dismissed without prejudice to plaintiffs right to pursue them in an appropriate court, in which the defamation counterclaim may also be asserted. I. Factual Background Reborn is a New York corporation that operates eight retail stores in New York, New Jersey, and Connecticut. Its Manhattan store is located on Third Avenue and 82nd Street. Matthew Wallis, who founded Reborn in 1976, is its president and chief executive officer. Reborn is a discount maternity shop selling primarily maternity clothing and, for a time, the MacLaren Baby Buggy. Wallis sometimes also sells non-clothing items such as wallets and pocketbooks that he acquires by buying the inventory of maternity stores which have gone out of business. Wallis’ pricing policy is to buy his goods at wholesale, to determine the retail price at which other companies are selling particular items, and then to sell those items for less. Wallis 317. MacLaren Ltd. is a relatively small British company that manufactures and sells a line of folding baby strollers and related equipment. Its goods are sold throughout Europe and in the United States. Until May 1980, MacLaren Ltd. sold its stroller directly to customers in the United States. On May 1, 1980, MacLaren Ltd. formed a wholly owned subsidiary named MacLaren Inc., a corporation organized under the laws of New York, to act as the sole distributor of its stroller in the United States. This arrangement has continued since that time, except for the period between November 1981 and May 1983, during which Fine Child acted as sole distributor for MacLaren in the United States. Fine Child was a New York corporation, incorporated in 1975, which sold infant products to juvenile stores. Fine Child was not a prime manufacturer, but sold imported products on a finished goods basis, or on an exclusive license basis. It also sold products it designed and then subcontracted out for manufacture. Fine 11. James Fine was Fine Child’s president, chief executive officer, and sole stockholder. By early 1983, when Fine Child had failed financially and had been taken over by Sassy Seat, Inc., also a juvenile goods company, Fine was hired by Sassy Seat and now serves as the company’s president. Ben’s for Kids is a New York corporation consisting of a single retail store located on Third Avenue between 78th and 79th Streets. It sells furniture and clothing for children up to three years of age. Mark Wein was Ben’s sole stockholder and chief executive officer during all times relevant to this litigation. His pricing policy was to charge as much as he could get for a product without losing customers. Wein 18. Ms. Kurzman, a MacLaren Inc. employee, had worked at Ben’s, and her brother is currently employed there. During the 1970’s, MacLaren Ltd. invented a lightweight infant umbrella stroller which could fold easily and was virtually unbreakable. All parties agree that it is one of the finest of all baby strollers. Plaintiff claims that it is known as the “Rolls Royce” of strollers. Plaintiff’s Pretrial Memorandum at 6; Kurzman 43-46. Despite its high price, it sells well because of its outstanding quality. The MacLaren stroller was originally sold in Europe. In 1979 the company decided to “test the waters” in the United States by selling at first to only one juvenile goods store while monitoring the stroller’s success. Around this time, Wein spotted the stroller at a trade show in England, and arranged with MacLaren Ltd. to purchase it. From 1979 through early 1980, Ben’s purchased directly from MacLaren Ltd. and was the only store in the United States carrying the stroller. The stroller sold well at Ben’s. MacLaren Ltd. was impressed with the quality of Wein’s store, the relationship Wein had with his customers, and his policy of providing extensive post-sale repair service. Then and now MacLaren Ltd. has worked hard to maintain a strong, positive relationship with Ben’s. Satisfied that its stroller would sell well in the United States, MacLaren Ltd. formed MacLaren Inc. to handle sales here. In August 1980, Wallis, owner of the Reborn maternity store, located near Ben’s on the Upper East Side of Manhattan, noticed the MacLaren stroller being sold at Ben's. He contacted MacLaren Inc. and sought to place an order. Barbara Kurzman, then employed by MacLaren Inc., visited Reborn. After her visit, she decided it would be unwise for MacLaren Ltd. to do business with Reborn. She reasoned that because it was a maternity shop which sold no juvenile goods, it would ill fit MacLaren’s marketing strategy, which was to sell only to juvenile goods shops. Kurzman 46-49. MacLaren believed that a juvenile goods store was more suitable for selling MacLaren strollers than a maternity shop because customers have the opportunity in a juvenile goods store to compare the MacLaren stroller with strollers of other brands and the proprietor has more knowledge about strollers. Kurzman 45-46. Ms. Kurzman also felt it would be unwise for MacLaren to deal with Reborn because of its close proximity to Ben’s. Kurzman explained her position to Ian Jones, Export Sales Manager of MacLaren Ltd., and to George Hambleton, Vice President of MacLaren Inc. Kurzman did, however, inform Jones that Reborn wanted to purchase the stroller. Jones made a note on a telex that he would contact Reborn in November 1980, the next time he planned to visit New York. During Jones’ visit in November, he opened new accounts in Manhattan and Brooklyn at Schneider’s Juvenile Furniture, Albee’s Baby Carriage, Yeedl’s, Berkowitz, and Hatzlacha, all well established juvenile goods stores which sold both “hard” and “soft” goods for very young children. (“Hard” goods include juvenile furniture: strollers, high chairs, car seats, carriages, cribs, and the like, while “soft” goods include baby clothing, bibs, and other accessories.) Jones or Kurzman gave Ben’s and all other retailers a “suggested price list,” and asked them to try and charge about the suggested price. Kurzman 13-16; see Hambleton 73-75. During his visit, Jones told Wein he thought it unlikely that any other store on the Upper East Side would receive the stroller, and he did not contact Wallis. Jones 53. The depositions and other evidence indicate that those involved in sales at both MacLaren Ltd. and MacLaren Inc. were ambivalent about doing business with Reborn. As a maternity store, with no repair facilities, and with the habit of cutting suggested retail prices, Reborn did not fit MacLaren’ s marketing strategy. Furthermore, MacLaren had carefully cultivated its relationship with Ben’s, which was located close to the Reborn store. Consequently, a year passed between Wallis’ initial inquiry and MacLaren’s decision seriously to examine Reborn as an account. In March 1981, Kurzman, acting as a representative of MacLaren Inc., visited Reborn, which by then had moved to a larger store. She told Wallis outright that MacLaren was reluctant to deal with him because he sold no other juvenile goods and because there was ample distribution of the stroller on the Upper East Side. She asked Wallis if he would agree not to sell the stroller from his Upper East Side store, and Wallis acceded in order to increase his chances of getting the stroller. Kurzman 113. Kurzman stated “Wallis has given me his word as a gentleman that if indeed we open him as an account, that he will not sell in his New York Store.” Kurzman 114. Kurzman also told Wallis that MacLaren would appreciate his selling the stroller close to the suggested retail price. Kurzman 124-25. Nevertheless, after the meeting Kurzman again advised MacLaren that in her opinion the company should not deal with Reborn. In April 1981, Mr. Hambleton himself visited Reborn’s Manhattan store. Despite Kurzman’s suggestion, he agreed to open an account with Wallis because he liked the fact that Reborn had eight outlets and an extensive advertising campaign. He asked Wallis not to sell the stroller from Reborn’s Upper East Side store until Hambleton had had a chance to talk to Wein. Hambleton 67-68. Wallis grudgingly agreed. Wallis 214-215. Hambleton did not set a specific time by which he would talk to Wein, and did not condition MacLaren’s sale to Wallis upon Wallis’ promise not to sell from the Upper East Side. Hambleton also told Wallis that Reborn should try to sell near the suggested retail price if possible, but that MacLaren understood they could not require retailers to adhere to the price. Hambleton 72-73. Wallis agreed to consider this suggestion and entered an order for a quantity of strollers. Plaintiff Exhibit 9. In early April 1981, the first shipment of MacLaren strollers bound for Reborn was misdelivered to Ben’s through an error of the trucking company, whose driver had been accustomed to delivering strollers to Ben’s when his truck entered that part of town. Upon learning of the trucker's error, Wein promptly returned the misdelivered goods to the company, and the shipment was then properly delivered to Reborn’s Manhattan store. Wallis became very suspicious and agitated by the misdelivery. He persistently called Hambleton and Kurzman, insisting that the misdelivery was purposeful and accusing MacLaren of conspiring to deprive him of the stroller because he was a discounter. When the shipment was redelivered to Reborn, Wallis refused the goods, contending that all the boxes had been opened. The boxes were returned to the warehouse and examined by Kurzman, who claims that only two had been opened. Hambleton 90. The open boxes were sealed, the shipment went back to Wallis, and he accepted it. After the misdelivery incident, Kurzman, Hambleton, and Wallis had lunch in an attempt to “improve relations.” Hambleton 104. At this meeting, Wallis threatened to sue MacLaren. He also said that he had been taping all conversations with MacLaren Inc., that he believed a sinister motive existed for the misdelivery, and that he feared that MacLaren Inc. was going to cut him off because he was a discounter. Hambleton tried to assure him that Reborn’s pricing policy would not influence their decision to do business with him. Wallis remained suspicious. Throughout April, Wallis repeatedly called Hambleton to find out whether or not he had spoken to Wein, so Wallis could begin selling strollers from Reborn’s upper east side store. Hambleton had not done so, allegedly due to the aggravation Wallis had caused him during the month. Wallis nevertheless began to sell the stroller from Reborn’s Upper East Side store. Hambleton claims this was done without his approval, but Wallis maintains that Hambleton told him to go ahead. Wallis 215. In any event, no person from MacLaren took any action to prevent Wallis from selling from the Upper East Side once he had begun, and Reborn quickly became one of MacLaren’s largest accounts. After the April misdelivery, Wein called Hambleton of MacLaren Inc. and Alan Nash and Ian Jones of MacLaren Ltd. to ask why MacLaren was selling its stroller to Reborn, a maternity store. He was told by all that the company wanted to see how the arrangement would work out. Subsequently, Wein walked by Reborn’s Manhattan store, noticed the stroller displayed in the window, and went in to talk to Wallis. Tempers flared, and Wallis ended up ejecting Wein from the store and summoning the police. Wallis 366. Despite requests from MacLaren Inc. to try to adhere to the suggested retail price, Reborn continued to discount. Pltf. Pretrial Memo, at 26. MacLaren Inc. began to receive complaints from Wein and its other customers that Reborn was selling the stroller at a predatory price, that it did not have repair facilities, and that it was inappropriate for a maternity store to sell baby strollers. They did not threaten to stop buying from MacLaren unless Reborn were terminated, but merely voiced dissatisfaction. Weintraub 49; Leffler 30-33; Wax-man 57-58. Both Kurzman and Hambleton informed the callers that nothing could be done. Weintraub 49. A few of MacLaren Inc.’s other accounts sold below the suggested retail price. Complaints had been received about Berkowitz and Hatzlacha. Kurzman told the proprietor of Hatzlacha that MacLaren wanted retailers to sell the stroller near the suggested retail price, because it was trying to introduce a new product in America. Kurzman 68. None of these stores, however, was ever threatened, forced, or coerced into selling at the suggested retail price. When Hatzlacha, for example, continued to sell below that price, MacLaren took no further action. MacLaren Inc.’s distribution capability was restricted due to its limited personnel and facilities. MacLaren decided that United States distribution of the stroller would be profitable only if an organized national distributor with a staff larger than MacLaren Inc.’s were to handle the operation. Also, Hambleton was becoming increasingly involved in an organization for the blind which consumed almost all of his time. Hambleton 136. After a comprehensive search, MacLaren selected Fine Child, Inc., a New York corporation with an excellent reputation in the sale of infant products to juvenile goods stores, as its new distributor. An agreement in principle was reached between MacLaren and James Fine in October 1981 for a one-year period to commence January 1982. The arrangement was publicly announced in a press release at the Juvenile Products Manufacturers Association Trade Show in Dallas, Texas, on October 25, 1981, and in January 1982 Fine Child replaced MacLaren Inc. as the exclusive distributor of the MacLaren stroller in the United States. Pltf. Exh. 47. MacLaren and Fine Child understood the distributorship agreement to give Fine Child complete autonomy to choose with whom it would do business, according to Fine’s marketing strategy. Cross 106. In addition, the parties agreed that Fine would have authority to resolve disputes if MacLaren Ltd. chose not to get involved: [I]n the event of any dispute arising between the Distributor and any purchaser or proposed purchaser in relation to the sale or offer for sale of the Products [Distributor shall] forthwith inform MacLaren of the details and circumstances of the dispute. Within five days of such notice, MacLaren shall at its option elect to pursue or not pursue such dispute, in which latter event the Distributor shall have the exclusive right to pursue, settle or otherwise dispose of the dispute. Distributorship Agreement ¶ 4(m), at 7 (Pltf.Exh. 144). Fine Child’s marketing strategy for the national distribution of the stroller was “to concentrate on independent full line juvenile products retailers around the country and perhaps a few department stores with full juvenile departments.” Fine believed it was essential that in each store where the stroller would be placed there be sales people knowledgeable about the product. Fine 157. He thought that “consumer word of mouth was far and away the best advertising and best promotion that a product can have; ... new parents ... talk to one another a great deal ... we wanted that kind of consumer to be sold, to have the MacLaren attributes explained to them as thoroughly and as knowledgably and as convincingly as possible, by those people in the industry, those retailers who have been dealing in these kinds of goods for years and years.” Fine 158. Hambleton and Kurzman provided Fine with information on all MacLaren Inc.’s accounts. Most of the accounts were familiar to Fine because he had previously done business with them. He was not, however, familiar with Reborn. Kurzman and Hambleton told Fine that they had had problems with Wallis, that his store was not a juvenile goods store, that Reborn was a discounter and had inadequate repair facilities, but that it was one of MacLaren’s largest accounts. Kurzman 159. They did not tell Fine whether or not to sell to Wallis, but this presentation might well have suggested that Fine should terminate the account. MacLaren had itself been supplying the account, however, and no evidence supports the contention that MacLaren insisted on its termination. In October 1981, Reborn attempted to place an order for one hundred B30 model strollers with MacLaren Inc. but was advised by Kurzman that MacLaren was currently out of stock on that model and that MacLaren Inc. would no longer be handling distribution of the strollers in the United States. Wallis demanded to know the identity of the new distributor, but was told that the distributor would contact Wallis. Kurzman meanwhile turned Wallis’ order over to Fine. During October Kurzman went to Reborn to pick up a stroller for repair, and told Wallis that the new distributor might not do business with him because he could not adequately repair the strollers. Kurzman 171; Wallis 243. Wallis interpreted this as a threat and evidence of a conspiracy to cut him off because he was a discounter. He conceded, however, that “she didn’t tell me what the new people were going to do.” Wallis 241. Wallis repeatedly called MacLaren Inc. to get the name of the new distributor and to find out when to expect the strollers. He complained then, and claims now, that MacLaren had changed distributors in order to stop dealing with Reborn because it was a discount store. He was abusive to whomever he spoke, and tied up their switchboard for days. Kurzman 182. He became increasingly agitated, threatened to sue, and alleged the existence of multiple conspiracies to cut him off. Reborn claims that MacLaren Inc.’s refusal to identify the new distributor was part of a scheme to terminate the account. It contends that all other customers received a formal announcement of the change in October. MacLaren Inc. did in fact prepare a letter informing all of its customers that Fine Child was to become the new United States distributor of the MacLaren stroller. It sent this letter to Fine for him to distribute. He never did so, however, and many customers did not find out about the change until after January 1982, when Fine Child actually assumed control and began handling all orders and billings. Certainly Fine Child’s selection was no secret: a press release issued by MacLaren in late October announced the change. Reborn seems correct in contending that MacLaren Inc. treated it differently than other customers during October and November as Kurzman refused to identify Fine Child to Wallis, whereas she did tell others who inquired that Fine Child was to become the new distributor. Kurzman 164. This had no binding effect on Fine Child, however, and in fact had little if any practical effect on Reborn’s ability to obtain strollers. On November 19, 1981, Reborn received its last shipment of strollers from MacLaren Inc. Plaintiff’s Ex. 26. At about the same time, Kurzman identified Fine Child to Wallis and gave him Fine’s telephone number. Fine, too, treated Reborn differently than he did other potential customers. He was definitely inclined against doing business with Reborn. A Fine Child agent told Mr. Leffler of Darling’s in November that Fine Child was not going to sell to Reborn. Leffler 39-40. Kurzman and Jones testified that in November Fine told them that he was not planning to do business with Reborn. Kurzman 194. At the end of November 1981, Fine told Wallis he wanted a written purchase order to evaluate him as a new account, although Fine did not insist on written orders from some other stores. Fine also asked Wallis if he carried any other Fine Child products or juvenile goods. Wallis said no, but requested that Fine send him a catalogue and a price list. Fine 172. Fine sent nothing to Wallis for at least two weeks. This may have seemed insignificant to Fine, since he was to become distributor on January 1, 1982, and only received the first shipment of strollers for resale at the end of January. To Wallis, however, Fine’s failure to follow up on his conversation in late November proved he was conspiring to terminate the Reborn account. Two weeks after their telephone conversation, Wallis called Fine and accused him of conspiring with Reborn’s competitors, creating illegal tying arrangements, and discriminating against Reborn because it was a discounter. Wallis threatened to sue Fine, insisted that he had sued others before, and told Fine that he was recording their conversation. During this second conversation, Fine told Wallis that his company would not do business with Reborn. Reborn’s attorneys began charging Fine Child and all the other defendants with illegal acts in January 1982. During that month Wallis, trying to bypass Fine Child, wrote to MacLaren in England and asked for strollers. MacLaren informed Wallis that at that time they were not in a position to decide who should receive strollers in the United States. This lawsuit followed in February 1982. Some time during the spring of 1982, after the filing of the suit, Fine Child sold fifty MacLaren strollers to a Massachusetts maternity retail store called Stork Time. Fine believed that Stork Time was not solely a maternity shop, because it also requested and purchased a number of Fine Child’s other juvenile products. Fine 234; Pltf.Exhs. 58-59. In July 1982, Fine discovered that the strollers sold to Stork Time were not in its store but had been resold to Wallis. Fine then stopped dealing with Stork Time. Fine 240. In May 1983, due to Fine Child’s crumbling economic position, MacLaren Ltd. terminated the distributorship agreement. MacLaren Inc. again became the sole distributor and remains so today. Reborn immediately placed an order for strollers, but MacLaren Inc. refused to fill it. Wallis then contacted Maxwell Cross, MacLaren Ltd.’s former marketing manager, and threatened to start a second lawsuit if MacLaren Inc. did not honor his order. Cross 88-90. MacLaren has taken the position that it will do no business with a company with which it is in litigation. Cross 58-59. From December 1981 through the present, Wallis has made no effort to purchase and sell any other high priced, high quality baby stroller, such as Perego or Aprica, MacLaren’s stiffest competition. II. Summary Judgment Summary judgment is to be granted sparingly in antitrust litigation, especially where an allegation of conspiracy raises issues of fact as to motive and intent. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); George C. Frey Ready-Mixed Concrete, Inc. V. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554-55 (2d Cir. 1977). In deciding whether to grant summary judgment, moreover, the court must view the facts in the light most favorable to the party opposing the motion, and all possible inferences must be resolved in that party’s favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). The moving party has the burden of showing that there is no genuine issue for trial as to any material fact, and that it is entitled to judgment as a matter of law. Summary judgment is nevertheless appropriate in some antitrust cases. Where a complete pretrial record shows there is “no genuine issue of material fact, and ... the resisting party does not present a record sufficient to support a reasonable finding in his favor, a district court has a duty to grant the motion for summary judgment.” Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1260 (9th Cir.1983), cert, dismissed, — U.S. -, 104 S.Ct. 385, 78 L.Ed.2d 331 (1984); see First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 288-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968). Rule 56(e) makes clear the task of the party opposing the motion: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response... must set forth specific facts showing there is a genuine issue for trial. See SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978); II P. Areeda & D. Turner, Antitrust Law II 316 (1978). The Supreme Court has approved awards of summary judgment in antitrust cases, see, e.g., First National Bank of Arizona, 391 U.S. at 274-88, 88 S.Ct. at 1585-92, as has the Second Circuit, see, e.g., Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 839-42 (2d Cir.1980); Modern Home Institute, Inc. v. Hartford Accident & Indemnity Co., 513 F.2d 102, 109-11 & n. 10 (2d Cir.1975). Summary judgment is particularly appropriate where, as here, extensive discovery has been taken, Giant Paper and Film Corp. v. Albermarle Paper Co., 430 F.Supp. 981, 983-84 (S.D.N.Y.1977), and legitimate business reasons have been advanced for defendants’ conduct, First National Bank of Arizona, 391 U.S. at 289, 88 S.Ct. at 1592. Immaterial factual disputes should not block summary judgment. SEC v. Research Automation Corp., 585 F.2d at 35. Finally, while plaintiff correctly complains that defendants have failed to submit the statement of material facts as to which the movants contend there is no genuine issue required by Local Rule 3(g), that failure is merely a technical omission in this case, since defendants’ responses to plaintiff’s pretrial order set forth the facts upon which they seek judgment. III. Alleged Sherman Act § 1 Conspiracies Reborn maintains that various horizontal and vertical conspiracies whose object was to terminate it as a retail distributor of the MacLaren Baby Buggy existed among the defendants. Reborn alleges conspiracies to fix prices, to allocate markets, to boycott, and to establish tying arrangements, all allegedly violations of section 1 of the Sherman Act. 15 U.S.C. § 1. Section 1 of the Sherman Act states: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal.” But while “the Sherman Act speaks of restraint of trade in absolute terms, it has long been established that § 1 proscribes only unreasonable restraints. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911).” Borger v. Yamaha International Corp., 625 F.2d 390, 396 (2d Cir. 1980). Courts apply a per se rule only to “agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The legality of all other arrangements is governed by a rule of reason, “which invites a more open inquiry into, and a balancing of, such factors as the power of the defendants), the effect of the arrangement, its possible redeeming virtues, and the availability of alternative ways of achieving any legitimate objectives with fewer threats to competition.” II Areeda & Turner, H 314 at 49. The starting point for proof of a section 1 violation is evidence of a contract, combination, or conspiracy between two or more persons. “Proof of joint or concerted action is required; proof of unilateral action does not suffice.” Schwimmer v. Sony Corp. of America, 677 F.2d 946, 952 (2d Cir.1982). For example, a unilateral decision by any defendant not to deal with Reborn for any reason would not amount to a violation of section 1 of the Sherman Act. See Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, -, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775, 783 (1984); Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 78-79 (2d Cir.1980), cert, denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 618 (1981). Conspiracies are, of course, rarely evidenced by explicit agreements, but must usually be proved by “inferences that may fairly be drawn from the behavior of the alleged conspirators.” Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1043 (2d Cir.), cert, denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976). At a minimum, however, “the circumstances [must be] such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). A. Alleged Intraenterprise Conspiracy Plaintiff contends that MacLaren Ltd. and MacLaren Inc. schemed to terminate his store as a distributor of the MacLaren Baby Buggy by combining to fix prices, boycott, and allocate markets. The initial question is whether section one proscribes the conspiracy alleged between the parent corporation, MacLaren Ltd., and its wholly owned subsidiary, MacLaren Inc. In Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 215, 71 S.Ct. 259, 261, 95 L.Ed. 219 (1951), the Supreme Court held that “common ownership and control does not liberate corporations from the impact of the antitrust laws.” However, “[a] single corporate entity of all its agents and employees are normally treated as a single actor for antitrust purposes except where the individuals or subentities are held out as competitors.” R. Givens, Antitrust: An Economic Approach § 16.03, at 16-11 (1983); see Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 28-29, 82 S. Ct. 1130, 1135, 8 L.Ed.2d 305 (1962); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 80-84 (9th Cir.1969) (divisions of same corporation cannot conspire), cert, denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). See generally Willis & Pitofsky, Antitrust Consequence of Using Corporate Subsidiaries, 43 N.Y.U.L.Rev. 20 (1968). The uncontradicted evidence here demonstrates that MacLaren Inc. and MacLaren Ltd. neither hold themselves out as competitors nor actually compete. MacLaren Inc. was formed solely to act as distributing agent for MacLaren Ltd. in America, as Hambleton, Kurzman, Myles, Jones, and Cross testified. The personnel of the two organizations are closely interrelated. James Myles serves as Chairman of the Board of Directors of both MacLaren Ltd. and MacLaren Inc.; George Hambleton is a member of both Boards and is President of MacLaren Inc.; Maxwell Cross, formerly Marketing Manager of MacLaren Ltd., is presently Vice President of MacLaren Inc. The subsidiary makes no major policy decisions without MacLaren Ltd.’s approval, as evidenced by their communications about whether to deal with plaintiff and their joint decision about which company would become the new distributor. MacLaren Ltd. set the suggested retail price, which MacLaren Inc. automatically adopted. The two corporations do not compete; rather, their relationship is one of cooperation and integration. See Brager & Co. v. Leumi Securities Corp., 429 F.Supp. 1341, 1345 (S.D.N.Y.1977) (Weinfeld, J.), aff'd mem., 646 F.2d 559 (2d Cir.1980), cert, denied, 451 U.S. 987, 101 S.Ct. 2322, 68 L.Ed.2d 845 (1981); I. Haas Trucking Corp. v. New York Fruit Auction Corp., 364 F.Supp. 868, 873-74 (S.D.N.Y.1973); Beckman v. Walter Kidde & Co., 316 F.Supp. 1321,1325-27 (E.D.N.Y.1970), aff'd per curiam, 451 F.2d 593 (2d Cir.1971), cert, denied, 408 U.S. 922, 92 S.Ct. 2488, 33 L.Ed.2d 333 (1971). Moreover, MacLaren Inc. was created from its parent, which wholly owns it. See Brager & Co., 429 F.Supp. at 1345; R. Givens, § 16.03, at 16-11 to -12 (discussing U.S. Department of Justice, Antitrust Division, Antitrust Guide for International Operations, Case A, at 11-14 (1977)). Here “the economic realities of their relationship” preclude finding MacLaren Ltd. and MacLaren Inc. distinct economic entities for purposes of the Sherman Act. Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 602 F.2d 1025, 1031 n. 5 (2d Cir.1979), cert, denied, 444 U.S. 917, 100 S.Ct. 232, 62 L.Ed.2d 172 (1980). A manufacturer electing to market its goods through a distributor is using the latter to supply its goods to consumers more efficiently than the manufacturer could itself. In General Electric Co. v. Bucyrus-Erie Corp., 563 F.Supp. 970, 976 (S.D.N.Y.1983), the court noted that “if no other interpretation of the facts is possible except that a controlled subsidiary, with whom a parent was alleged to have conspired, was created to be and never acted other than as agent for the parent,____no valid conspiracy claim is stated because separate entities do not exist to conspire.” The record contains no evidence that MacLaren Ltd. and MacLaren Inc. ever operated other than as a unit. Thus neither the evidence that the personnel of MacLaren Ltd. and MacLaren Inc. conferred about Reborn’s discounting policy, the complaints they had received about it, and the close proximity of Reborn to Ben’s, nor the evidence that the organizations were unhappy with the situation and discussed ways to deal with it, establish a claim warranting trial of a conspiracy between the companies to engage in the alleged unlawful behavior. B. Price-Fixing Allegations. Plaintiff maintains that MacLaren Ltd. and MacLaren Inc., (hereinafter referred to jointly as “MacLaren”) and Fine and Fine Child (hereinafter referred to jointly as “Fine Child”) conspired vertically with various retailers selling the stroller, including Wein and Ben’s (hereinafter referred to jointly as “Ben’s”), and that the various retailers conspired horizontally to maintain the resale price of the MacLaren stroller. Price-fixing conspiracies are unlawful per se. United States v. SoconyVacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 842, 84 L.Ed. 1129 (1940). 1. Vertical Price-Fixing Conspiracy. To establish its conspiracy claim, plaintiff first points to the close business and personal relationships among the defendants Wein, Fine, and MacLaren, including the frequent meetings and correspondence among them. The Second Circuit has laid down “fairly specific guidelines” in evaluating the probative value of such evidence to support an inference of conspiracy: “A mere showing of close relations or frequent meetings between the alleged conspirators ... will not sustain a plaintiff’s burden absent evidence which would permit the inference that these close ties led to an illegal agreement.” Nor does a manufacturer’s mere receipt of complaints from its wholesalers or agents who compete with the plaintiff, or its consultation with such other competing wholesalers, standing alone, support a finding of conspiracy with them. Even where a termination follows the receipt of complaints from wholesalers or agents, there is no basis for inferring the existence of concerted action, absent some other evidence of a tacit understanding or agreement with them. Finally, the mere fact that a business reason advanced by a defendant for its cut-off of a customer is undermined does not, by itself, justify the inference that the conduct was therefore the result of a conspiracy. Even if a manufacturer or supplier, acting independently, gave a false or inaccurate reason for its action, whether because of a desire to avoid controversy or some other consideration, this would not violate any legal obligation to the customer, absent proof of a conspiracy or breach of contract. H.L. Moore Drug Exchange v. Eli Lilly & Co., 662 F.2d 935, 941 (2d Cir.1981) (citations omitted), cert, denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982). Reborn accords particular significance to the receipt by MacLaren of complaints from Reborn’s competitors and to the subsequent termination by Fine Child of the Reborn account. Unquestionably, various retailers selling the stroller complained to MacLaren about Reborn’s predatory pricing. But as the Second Circuit has repeatedly held, see, e.g., id., and the Supreme Court recently confirmed, see Monsanto, — U.S. at- & n. 8, 104 S.Ct. at 1471 & n. 8, 79 L.Ed.2d at 785 & n. 8, evidence of complaints, even when followed by termination, cannot alone establish the requisite inference; “something more” is needed. Id. at-, 104 S.Ct. at 1470, 79 L.Ed.2d at 785. The Monsanto Court found this additional quantum of probative evidence in the testimony of a district manager that the company advised price-cutting distributors on at least two occasions that if they did not maintain the suggested retail price they would not receive adequate supplies of a new product and in evidence of coerced compliance by at least one former price-cutter. Id. This type of evidence is lacking in the present case. As Justice Powell noted in Monsanto, “[permitting an agreement to be inferred merely from the existence of complaints, or even from the fact that termination came about ‘in response to’ complaints, could deter or penalize perfectly legitimate conduct.” Id. Moreover, retailers are an important source of information for manufacturers and their agents, which the antitrust laws should not operate to foreclose. Monsanto, at-, 104 S.Ct. at 1470, 79 L.Ed.2d at 785. “In sum, ‘[t]o permit the inference of concerted action on the basis of receiving complaints alone and thus to expose the defendant to treble damage liability would both inhibit management’s exercise of independent business judgment and emasculate the terms of the statute.’ ” Id. (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 n. 2 (3d Cir.1980), cert, denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981). Reborn claims that unity of purpose among defendants is also apparent from the fact that MacLaren Ltd. published and MacLaren Inc. distributed a suggested retail price list and urged the retailers to adhere to these prices. Publication of a suggested retail price list, however, and voluntary adherence to it by plaintiff’s competitors, is insufficient to support a finding of a vertical price fixing conspiracy. Fuchs Sugars & Syrups, 602 F.2d at 1030. A manufacturer or dealer may announce the terms under which he will market his product and deal only with those customers who agree to abide by those terms. Monsanto, — U.S. at-, 104 S.Ct. at 1469-70,' 79 L.Ed.2d at 783-84 (citing United States v. Colgate Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919)). On the other hand, a manufacturer or its agent may not “enforce his announced resale prices by active coercion of those who purchase for resale, such as through threats of termination for noncompliance, whether made in combination with others or alone.” Bowen v. New York News, Inc., 522 F.2d 1242, 1254 (2d Cir.1975) (citations omitted), cert, denied, 425 U.S. 936, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976). For Reborn to avoid summary judgment on its price-fixing claim it must advance sufficient evidence to raise a genuine dispute as to whether defendants engaged in coercive activity to force adherence to its suggested retail price and plaintiff and other retailers actually adhered to that price. See Albrecht v. Herald Co., 390 U.S. 145, 149-50, 88 S.Ct. 869, 871-72, 19 L.Ed.2d 998 (1968); United States v. Parke, Davis & Co., 362 U.S. 29, 43, 80 S.Ct. 503, 511, 4 L.Ed.2d 505 (1960). “While evidence of exposition; persuasion, argument, or pressure is alone insufficient to establish coercion, threats of termination, so long as they secure adherence to the fixed price, have been deemed to trespass beyond the boundaries of Colgate, thereby triggering a finding of an illegal combination.” Yentsch v. Texaco, Inc., 630 F.2d 46, 53 (2d Cir.1980) (citations omitted); see id. at 51-55. Plaintiff has failed to raise a genuine dispute as to whether anyone adhered to the suggested price. The depositions of the various store owners reveal that several, including Ben’s, Albee’s, and Schneider’s, sold above the suggested retail price, while at least two, Hatzlacha and Darlings, sold below it. These companies represented approximately half of the MacLaren accounts in New York. Leffler 15; Kurzman 66, 68; Wein 18. Furthermore, even had most of the MacLaren accounts adhered to the suggested retail price, no significant evidence has been advanced of coercive action on MacLaren’s part. Of course, “active coercion” can take many forms. In Interphoto Corp. v. Minolta Corp., 295 F.Supp. 711, 716, 718-19 (S.D.N.Y.), aff'd, 417 F.2d 621 (2d Cir.1969), the court found the use of an elaborate surveillance system and threats of “drastic” action enough to establish an illegal coercive atmosphere. The Yentsch court “just barely” found sufficient evidence to establish the existence of an illegal combination to maintain resale prices on the basis of written and oral evidence that the manufacturer had instructed his agents to tell the dealers that if volume did not increase they were to be terminated, as well as testimony by the plaintiff that he was told to drop the price or risk replacement. 630 F.2d at 52-53. Here, by contrast, Reborn has failed to adduce the minimum amount of evidence which would permit a reasonable jury to find a vertical price-fixing scheme. Kurzman stated that she once received many complaints about a price cutter and asked him to try to stay within a few dollars of the suggested price, because MacLaren was trying to market a new product in America. Kurzman 65. When the owner continued to discount, no one at MacLaren took additional action. The record does contain Wallis’ deposition testimony that he was threatened by MacLaren to raise his prices or risk termination. Wallis 240. There is no other suggestion in the record that Kurzman threatened to terminate any account for discounting. Wallis’ testimony, of course, relates only to Reborn, and is wholly undercut by the fact that MacLaren continued to supply Wallis’ store for well over a year until Fine Child took over despite full knowledge of Reborn’s consistent discounting policy. The only inhouse memo relied on by plaintiff is a note from MacLaren Ltd. to MacLaren Inc. in June 1981 which states: “No solution to the Reborn situation.” Pltf.Exh. 018. From this evidence one could reasonably infer that MacLaren was displeased with its decision to sell to Reborn, but had not come up with any way to deal with the problem; one could not reasonably infer from this evidence that MacLaren conspired to threaten plaintiff or to terminate him. Finally, Kurzman concedes that at two or three different times she asked Wallis to stay near the suggested price, a policy she followed with all MacLaren accounts. But she and Hambleton firmly deny they ever threatened plaintiff. The evidence proffered by Reborn would demonstrate at most exposition, persuasion, argument, or pressure, which are alone insufficient to establish coercion. See Yentsch, 630 F.2d at 53. 2. Horizontal Price-Fixing Conspiracy. Reborn insists that a horizontal conspiracy to fix prices existed between the various retailers. As noted above, neither complaints nor complaints plus termination constitute evidence of a conspiracy. Plaintiff relies on the fact that some stores which sold the stroller adhered to the suggested retail price. The leading case for the proposition that an agreement can be inferred from commonality of conduct is Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939). There the Court found an antitrust violation despite the absence of evidence that the various retailers had agreed among themselves to abide by the demands of the manufacturer. Id. at 225-27, 59 S.Ct. at 473-74. The Court found it “enough that, knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme and participated in it.” Id. at 226, 59 S.Ct. at 474. Later, however, the Court pointed out that it had “never held that proof of parallel business behavior conclusively establishes agreement” and cautioned that “ ‘conscious parallelism’ ha[d] not yet read conspiracy out of the Sherman Act entirely.” Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 259, 98 L.Ed. 273 (1954). The problem of consciously parallel conduct and interdependent decisionmaking has continued to challenge the courts and commentators. See, e.g., First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 286-88, 88 S.Ct. 1575, 1591-92, 20 L.Ed.2d 569 (1968); 4m-book Enterprises v. Time, Inc., 612 F.2d 604, 613-18 (2d Cir.) (Friendly, J.), cert dismissed, 448 U.S. 914, 101 S.Ct. 35, 65 L.Ed.2d 1179 (1980); United States v. Phelps Dodge Industries, Inc., 589 F.Supp. 1340, 1354-1356 (S.D.N.Y.1984); L. Sullivan, Handbook of the Law of Antitrust § 122 (1977) . But the law is at least clear that “proof of consciously parallel business behavior is circumstantial evidence from which an agreement, tacit or express, can be inferred but that such evidence, without more, is insufficient unless the circumstances under which it occurred make the inference of a rational, independent choice less attractive than that of concerted action.” Ambook, 612 F.2d at 615 (quoting Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.1977) (Seitz, C.J.), cert, denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978) ). In this case, the evidence of consciously parallel conduct is weak, as the record indicates that some retailers sold at various prices above and below the suggested level. In any case, independent business considerations justified the conduct of those who adhered: it was their practice to do so when a manufacturer gave a suggested retail price, or they felt the price was reasonable, or the strollers were selling well at the price so they had no desire to raise or lower it. Plaintiff claims that the retailers’ discussions of Reborn among themselves provides additional proof of conspiracy. To support this contention plaintiff cites the testimony of Weintraub of Albee’s and Wein. The testimony reveals that Weintraub called Wein and said, “I’m being undersold,” to which Wein replied, “Me, too, but there is nothing we can do.” Wein 89-93; Weintraub 55-58. Weintraub spoke to Wein, however, because their families had been friends for forty years, and in fact both Wein and Weintraub sold above the suggested price. In sum, in this case the inference from the retailers’ actions of a rational independent choice is far more compelling than that of concerted action, making summary judgment appropriate. See Modern Home Institute, 513 F.2d at 109-14. No probative evidence has been proffered by plaintiff that would permit a finding of a horizontal price-fixing scheme. C. Alleged Territorial Division of Markets. Plaintiff alleges that MacLaren, Wein, and other retailers vertically conspired to restrict the territory in which Reborn could sell the stroller. Plaintiff claims that Kurzman’s and Hambleton’s request that he not sell from the Upper East Side store until they talked to Wein, and MacLaren’s general unwillingness to sell to any store near Ben’s, Pltf.Exh. 82, amounted to an unlawful, vertical territorial restriction, and that this restriction was enforced as part of a conspiracy to terminate Reborn. Plaintiff also alleges a horizontal conspiracy to restrict territories. 1. Vertical Territorial Restriction. While nonprice restrictions furthering a price-fixing scheme designed to keep a supplier’s product out of the hands of a discounter are judged under per se analysis, vertical, concerted actions on non-price restrictions are judged under the rule of reason and violate section 1 only if the action is anticompetitive in purpose or effect. Continental T. V, Inc. v. GTE Sylvania Inc., 433 U.S. 36, 57-59, 97 S.Ct. 2549, 2561-2562, 53 L.Ed.2d 568 (1977); Monsanto, — U.S. at-n. 6, 104 S.Ct. at 1468 n. 6, 79 L.Ed.2d at 783 n. 6; Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir.) (en banc), cert, denied, 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978). Because no price-fixing scheme could be proved in this case, the alleged territorial restrictions must be evaluated under the rule of reason. In Sylvania, the defendant manufacturer restricted the store locations from which a retailer could sell his merchandise. The Supreme Court held that before condemning such a scheme it was necessary to examine whether justifiable business reasons existed to support it. One such reason is a manufacturer’s desire to encourage and reward a particular dealer who provides exceptional service and repair, and thus enhances product reputation. Absent territorial allocations, dealers in a given area might be unwilling to provide appropriate levels of service for fear of “free riders.” Sylvania, 433 U.S. at 55, 97 S.Ct. at 2560. If profit opportunities are denied dealers in a given territory, they might refuse to incur expenses necessary to permit the manufacturer to compete effectively against its interbrand rivals. The “free rider” problem is highly relevant in the present controversy. Reborn often was unable to repair the strollers it sold, and as a result consumers brought MacLaren strollers purchased at Reborn to Wein for repair. Wein provided excellent repair service and MacLaren sought to maintain its good relationship with Wein so he would continue to do so. MacLaren’s request that Wallis not sell from the Upper East Side therefore was motivated by the legitimate business reason of continuing a strong business relationship with a favored account. Under Sylvania, the “restriction” sought by MacLaren was lawful. “[T]he agreement necessary to establish a section 1 violation ... may be found to exist in a territorial restraint case if the defendant, by his own coercive actions, has put together a system of territorial restraints to which his customers or distributors adhere.” Jacobson & Co. v. Armstrong Cork Co., 433 F.Supp. 1210, 1213 n. 17 (S.D.N.Y.) (Weinfeld, J.), aff'd, 548 F.2d 438 (2d Cir.1977). However, “[i]f the decision to terminate was solely based on legitimate business reasons such as ... [plaintiff’s] excessive and unjustified complaints, and its deteriorating relationship with [defendant], then [plaintiff’s] claim must be dismissed.”. Id. at 1214. Reborn claims its termination was influenced by improper motives, particularly MacLaren’s desire to protect Wein against competition from plaintiff in the Upper East Side. To prove this it relies upon the assurances Wein was given by MacLaren personnel, before MacLaren sold to plaintiff, that no other store in the Upper East Side would get the stroller; on Hambleton and Kurzman’s request that Wallis hold off selling the stroller from the Upper East Side until they could talk to Wein; on MaeLaren’s practice of referring requests for strollers from the United States to Ben’s; and on memoranda reflecting MacLaren’s reluctance to sell to any other store in the Upper East Side. Approximately two weeks passed from the time MacLaren sent its first shipment to plaintiff until Reborn began to sell from its Upper East Side store. Wallis himself testified that Hambleton told him to go ahead and sell from there. Wallis 215. Defendants took'no action against Wallis for his decision, but rather continued to deliver the strollers he ordered. Whatever MacLaren did to aid Ben’s, or said to Wein, the fact is that no territorial restriction was implemented by MacLaren when Wallis went ahead and sold from the area of concern. This evidence could not establish any agreement between MacLaren and Ben’s. See Jacobson, 433 F.Supp. at 1214. The MacLaren defendants contend it was Fine’s and not their decision to terminate Reborn. Even assuming, however, that MacLaren was somehow involved in the decision to terminate Reborn, that decision was based upon plaintiff’s repeated and vituperative complaints to defendants and the bad relationship to which this led. After the misdelivery incident, followed by Wallis’ threats of lawsuits, his taping of phone conversations, his refusal to repair strollers, Reborn’s predatory pricing, and his tying up the phone lines at MacLaren Inc. to learn the identity of the new distributor, he and the various defendants had increasingly abrasive discussions. Wallis’ behavior, however much he may have believed his position justifiable, itself provided the MacLaren defendants a legitimate business reason for their decision to terminate Reborn as a retail distributor of the stroller. Fine or Fine Child likewise had legitimate business concerns that would justify a decision to refuse to sell strollers to Reborn. Fine appears to have been particularly concerned that Reborn was a maternity store. Furthermore, Wallis concedes that he attacked Fine on the phone and threatened to sue him, which gave Fine good reason to refuse to deal with such a customer. A businessman’s churlish behavior should not be permitted to become an asset, enabling him to bootstrap himself onto an antitrust claim by having a reasonable businessman’s refusal to deal with him be regarded as evidence of an illegal conspiracy. Finally, MacLaren or Fine could legitimately try to give Wein exclusivity on the Upper East Side by expressing reluctance or even refusing to sell to other stores in that area. A manufacturer can establish a system of exclusive distributorships without violating section 1 of the Sherman Act: Such a voluntary choice presumptively establishes ... that the system is a more efficient method of distributing [the manufacturer’s] product. Even if he is irrational or mistaken, the fact that he has created a monopoly or near monopoly for one or more distributors is not “monopolizing” conduct on his part, for it has no exclusionary effects on his actual or potential rivals. Areeda & Turner, ¶ 734d, at 262. 2. Horizontal Territorial Restriction. A horizontal market allocation occurs when competitors on the same level agree only to sell within certain territories. In United States v. Topeo Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972), the Supreme Court reiterated that these types of arrangements are per se unlawful. Except for the lamentations of Weintraub and Wein, however, who on one occasion complained to each other that they were being undersold, the record contains not a shred of evidence that the retailers selling the MacLaren stroller ever had anything to do with one another. This is a frivolous claim. D. Alleged Boycott. Reborn alleges a series of horizontal and vertical concerted refusals to deal which appear to exhaust the possible combinations of characters. Notwithstanding the Second Circuit’s warning that in boycott cases “[i]t is important to distinguish between ‘horizontal’ ... and ‘vertical’ restraints,” Oreck Corp. v. Whirlpool Corp., 579 F.2d at 131, it is unnecessary here to parse each of the overlapping allegations. In effect, Reborn contends that MacLaren, Fine Child, and various retailers engaged in a complex conspiracy similar to that of the manufacturers, distributors, and retailer alleged in Klor’s, Inc. v. Broadway Hale Stores, Inc., 359 U.S. 207, 212-14, 79 S.Ct. 705, 709-10, 3 L.Ed.2d 741 (1959), to which the Supreme Court applied a per se analysis. See 359 U.S. at 212-14, 79 S.Ct. at 709-10; Oreck Corp. v. Whirlpool Corp., 579 F.2d at 131. Reborn cannot avoid summary judgment on these contentions, however, because it has not raised a material issue of fact as to any of the enumerated conspiracies. Summary judgment is also compelled on the vertical conspiracies, which are examined under the rule of reason, for Reborn has failed to adduce evidence which would put at issue the business justifications for defendants’ conduct. As applied to MacLaren plaintiff’s claim has no merit, because in fact MacLaren did not refuse to deal with Reborn, but took Reborn on as an account. MacLaren Inc. stopped doing business with Reborn in November 1981, when Fine Child became the new distributor, and at the time MacLaren Inc. stopped dealing with all its other accounts. MacLaren’s present decision not to do business with Reborn because they are involved in litigation is a unilateral decision, protected under Colgate. Moreover, a desire to avoid burdensome litigation would constitute a legitimate business reason for refusing to deal. See House of Materials, Inc. v. Simplicity Pattern Co., 298 F.2d 867, 871 (2d Cir. 1962); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 889-90 (9th Cir.1982), cert, denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). Reborn’s horizontal boycott claim is similarly unsupported. In a conventional horizontal boycott, traders at one level seek to protect themselves from competition from others by taking concerted action aimed at depriving the excluded retailer from a trade relationship the retailer needs to compete effectively at that level. See Klor’s, 359 U.S. at 212-14, 79 S.Ct. at 709-10. No evidence exists of concerted action among the various retailers to protect themselves from Reborn, and there is no indication that they took action to “induce” MacLaren or Fine to stop selling to Reborn. No reasonable jury could possibly infer that a horizontal boycott ex