Full opinion text
MEMORANDUM OPINION AND ORDER SHADUR, District Judge. American Floral Services, Inc. (“AFS”) sues Florists’ Transworld Delivery Association (“FTD”) and Teleflora, Inc. (“Teleflora”) under Clayton Act §§ 4 and 16, 15 U.S.C. §§ 15 and 26, seeking damages and injunctive relief based on claimed violations of Sherman Act § 1 et seq., 15 U.S.C. § 1 et seq. (“Section 1”). Complaint Count I charges FTD conspired with its members: 1. to discourage and prevent the use of services marketed by AFS, through adoption and enforcement of FTD Membership Rule 18(b) (“Rule 18(b)”); and 2. to fix and maintain the price of floral clearinghouse services at 6% of the gross order amount. Count II charges Teleflora conspired with its subscribers: 1. to discourage and prevent the use of services marketed by AFS, through adoption and enforcement of Teleflora Membership Obligation 2 (“Obligation 2”); and 2. to fix the price of floral clearinghouse services at 6% of the gross order amount. Finally, Count III charges FTD and Teleflora conspired with each other to discourage and prevent the use of AFS’ services and to fix the price of floral clearinghouse services. Each of FTC and Teleflora has moved for summary judgment under Fed.R.Civ.P. (“Rule”) 56 as to each count in which it is named. For the reasons stated in this memorandum opinion and order, both motions are granted in full. Facts AFS, FTD and Teleflora are the largest among a group of floral clearinghouses (“Clearinghouses”), which facilitate long-distance delivery of fresh flowers. Clearinghouse transactions are typically handled this way: 1. Someone who wants to send flowers (“Customer”) places an order with a nearby florist (“Sending Florist”). That order may be either generic (say “a dozen roses”), or “open” (say “$25 worth of flowers”) or “special” (a design—usually trademarked—illustrated in a Clearinghouse’s proprietary selection guide). 2. Using a membership directory provided by one of the Clearinghouses to which Sending Florist belongs, Sending Florist selects another florist (“Filling Florist”) capable of delivering the order in the recipient’s location. Sending Florist may telephone Filling Florist to verify the latter’s filling and delivering capability, as well as price. 3. Sending Florist transmits the order to Filling Florist, either by phone or via one of the on-line computer communication systems some Clearinghouses provide. At the time of transmittal Sending Florist identifies the Clearinghouse through which the order is to be cleared. 4. Filling Florist receives, fills and delivers the order. 5. Meanwhile Customer has paid Sending Florist for the order. Sending Florist keeps 20% of the payment as a commission and sends the rest to the Clearinghouse chosen to clear the order. That Clearinghouse remits the balance to Filling Florist, less a Clearinghouse fee for its services. AFS, FTD and Teleflora all charge a 6% fee. Those financial transactions are handled on an account basis with each Clearinghouse, and each individual florist’s net credit or debit is reflected in monthly statements much like bank statements (Meinders Dep. 107-08). 6. Some Clearinghouses (including AFS but not FTD or Teleflora) also credit Sending Florist with a so-called “rebate,” amounting to a fixed cash payment of 60 cents or more for each order sent through that Clearinghouse. That brief overview of the floral delivery system shows Clearinghouses perform numerous functions (though not all Clearinghouses provide all of them). In the main the Clearinghouse role comprises: 1. the clearinghouse-banking function itself, insuring a reliable flow of money between florists who may otherwise be strangers; 2. communications, including both provision of private on-line systems and publication of directories identifying distant florists with whom to communicate; 3. advertising, including both in-store promotion of “special” arrangements illustrated in selection guides and general promotion of the idea of sending flowers long-distance; 4. quality control, through both published standards and test orders; and 5. education, through publications and seminars for florists and floral designers. There are presently some 30 to 32 thousand florist shops in the United States (Meinders Dep. 2014). Average gross sales per florist in 1984 were $185,000 (Mitchell Dep. Ill 61). That adds up to $5 to 6 billion of annual florist business. Of that, something over $750 million (or 12 to 15%) makes up the long-distance delivery market (Meinders Dep. 73; Resnick Aff. II14). That market is divided among some 11 Clearinghouses (Maas Aff.Ex. 3), up from 5 in 1970 (Meinders Dep. 65-67). AFS, FTD and Teleflora are now the big three: Current rough market share estimates are FTD 65%, with Teleflora and AFS ranking next, and with all others representing an aggregate of perhaps 10% (See AFS App. 8B). FTD is by far the oldest Clearinghouse, founded as a nonprofit cooperative membership organization over 75 years ago (Maas Aff. ¶ 5). It is owned by its 20,800 member florists (id. 113). Teleflora was founded in 1961 and has been under the present ownership of Lynda Resnick (“Res-nick”) and her husband Stewart since 1979 (Meinders Dep. 929; Resnick Aff. 111). It has 17,322 members (Teleflora Resp. to AFS Int. 7). AFS was formed in 1970 by Herman Meinders (“Meinders”), formerly a sales manager at Florafax, another Clearinghouse (Meinders Dep. 65-66). From an initial 139 subscribing florists (id. at 943), AFS has grown to serve a membership of 17,000 (id. at 75). When AFS entered the industry in 1970, its selling point was free sending (until that time both Sending and Filling Florist had paid a share of the Clearinghouse fee) (Meinders Dep. 67). Though Sending Florist selects the Clearinghouse, AFS decided to charge the entire fee to the Filling Florist. That innovation proved popular, and by 1975 all Clearinghouses had gone to free sending (id. at 68). AFS then introduced a 2% “discount” to Sending Florists—a payment to them of 2% on each order they sent via AFS. That formula proved difficult to administer, and in 1980 AFS introduced its cash “rebate” program: fixed cash payments for each order sent via AFS (id. at 71). At present the rebate is 60 cents on each of the first 25 orders per month and $1.00 on each additional order, assuming the florist’s monthly statement is current (id. at 128). It can be seen the “rebate” is not really that but rather a sort of sales incentive payment, for under what has now become well-established industry custom, Sending Florists pay nothing to Clearinghouses. AFS’ “rebate” obviously offers Sending Florists a strong reason to select AFS. FTD and Teleflora have pursued a different promotional approach. While AFS does little or no consumer advertising (Meinders Dep. 133), both FTD and Teleflora advertise extensively—though each has a somewhat different focus. FTD advertises its servicemarks (the “Mercury” symbol and the slogan “Flowers by Wire”) as well as its trademarked special arrangements: No one in the industry advertises more (Meinders Dep. 1600). Total FTD advertising expenditure in fiscal 1984 was over $17 million (Maas Aff. U 8). As for Teleflora, beginning in 1980 it developed and began advertising its “keepsake” concept: proprietary floral containers keyed to specific holidays and having lasting value after the flowers die (Resnick Aff. ¶ 4). Teleflora designs the keepsakes and sells them exclusively through its subscribers (id.). Though FTD also designs and markets containers, Teleflora’s emphasis on that component of its services is far heavier: Its advertising is principally focused on its keepsake promotions (id. ¶¶ 5-6). Teleflora had a multi-million dollar 1984 advertising budget (id. II7). However, keepsake orders represented only a fraction of Teleflora’s 1984 clearings (id. ¶ 14), and obviously a much smaller fraction of the total Clearinghouse market (id.) In 1968 FTD initiated a money-back guaranty policy: Customers sending orders through the FTD Clearinghouse were entitled to a refund if the flowers delivered were not of the quality and quantity ordered (Putro Aff. ¶ 10). FTD currently receives over 10,000 customer complaints annually (id. 1111). However, some unknown proportion of those complaints comes from Customers whose orders were cleared through another Clearinghouse— orders to which FTD’s guaranty understandably does not extend (id. II12). FTD adopted the first version of Rule 18(b) in 1973. It read (id. II14): Florists’ Transworld Delivery Association orders received from another member shall be filled in accordance with the rules and regulations of FTD. A member taking an FTD order who is instructed by a customer to send the order as an FTD order, shall send the order to an FTD member and the order shall be processed through the FTD Clearing House. Along with Rule 18(b) itself, FTD published an interpretation in its rulebook (Putro Aff.Ex. 11, at 2): The foundation of public confidence in the flowers-by-wire idea is the integrity of the sending and the filling florist. When a florist who holds himself out to the public as a Member of FTD violates this integrity, each of the Members of FTD is damaged by the resulting public disaffection and distrust. FTD has, through the years, received complaints from customers who believe that they have not been fairly treated by FTD Members. The honesty in business dealings of Members has been questioned by customers. Customers have complained about the failure to receive full value for local orders, FTD orders and orders placed by FTD Members through other wire services or clearing houses. The inexcusable practice of curtailment [when Sending Florist sends an order for less than the amount actually received from Customer, or when Filling Florist supplies flowers worth less than the amount transmitted (Mass Aff. ¶ 14) ] has occurred in FTD transactions and has frequently resulted in discipline to Members involved, including termination of Membership in FTD. In cases where a Member who is also a member, subscriber or user of another wire service or clearing house engages in curtailment, customers have directed criticism at FTD and FTD Members because the florist is a Member of FTD. This rule reaffirms the duty of a Member to maintain honesty in business dealings in all transactions and will subject a Member to discipline if he fails to do so. Rule 18(b)’s scope was broadened in 1975, when it was amended to provide that a Customer who orders a “Holiday Special arrangement by a name which has been trademarked by FTD” would be presumed to have requested FTD’s Clearinghouse services “unless the customer expressly instructs otherwise” (Putro Aff.Ex. 12, at 2). In 1976 Rule 18(b) was amended to provide for suspension or other discipline if an FTD member refused to accept and send an order via FTD where Customer had so instructed (Putro Aff.Ex. 13, at 2). Finally in 1982 the presumption applying to “Holiday Special” arrangements was expanded to include any order where Customer refers to an FTD trademark or to an arrangement pictured in FTD’s published guides (Putro Aff.Ex. 14, at 2). On its face Rule 18(b) does not require an FTD florist to send any FTD-identified products through the FTD Clearinghouse: Though the Rule creates certain presumptions about customer requests, it is subject to customer override. In mid-1982 FTD reworded its “interpretation” of Rule 18(b) to point out the rule does not prohibit an FTD florist from suggesting an alternative Clearinghouse to Customer and using that alternative if Customer expressly approves. Teleflora has had a related concern stemming from its keepsake program: To the extent orders for its keepsakes were not being cleared through its Clearinghouse, it felt it was not getting the Clearinghouse fees on orders its own merchandising efforts had generated. According to Resnick Dep. 50: [W]e felt we had to protect what we had spent so much money building through our national advertising and overhead, et cetera, and through a series of events it became clear that various florists were not respecting the fact that Teleflora generated orders should be sent through Teleflora clearinghouse. To deal with that perceived problem, in June 1982 Teleflora promulgated Obligation 2, as Resnick Aff. ¶ 12 says:. to prevent other clearinghouses from free riding on Teleflora’s advertising and marketing expenditures and from obtaining the clearinghouse commission on wire orders for Teleflora keepsakes____ Obligation 2 provides (Resnick Dep. Ex. 4, at 7): 2. Any florist sending or receiving a wire order that specifies an exclusive TELEFLORA holiday promotion keepsake product or bouquet from the counter selection guide, must credit the transaction to TELEFLORA’s clearinghouse. Knowingly crediting any other wire services for sales generated by TELEFLORA programs or national advertising is grounds for disciplinary action including potential dismissal from TELEFLORA. In contrast to Rule 18(b), Obligation 2 offers no choice to Selling Florist or Consumer. Further, Teleflora’s express motivation in promulgating Obligation 2 was not to promote consumer-protection measures or to implement a quality guaranty. It was rather to prevent other Clearinghouses from “free riding” on Teleflora’s marketing and advertising expenditures. During the early 1980s AFS’ rebates and aggressive sales program stimulated a sharp increase in its market share. No doubt in response to that competition, FTD and Teleflora became more aggressive in enforcing Rule 18(b) and Obligation 2, respectively. FTD Executive Vice President William A. Maas (“Maas”) observed in a December 1981 article circulated to FTD members (AFS App. 2 Doc. 19): One of the concerns which I expressed at the [district officers’] meeting is the apparent disregard of FTD Rule 18(b), which prohibits the sending of FTD orders through other wire services after having been instructed by the customer to send the order through F.T.D. We have begun a program to educate our Members on the serious repercussions involved in the violation of this rule. We will now be taking stem measures in its enforcement through test orders and by asking Members to inform Headquarters of any violations. Further, an FTD executive now employed by AFS recalls (Butler Aff. ¶ 7): Mr. Maas informed the staff at a meeting in the early fall of 1981 that he wanted to stop the inroads by AFS into FTD’s clearings and that FTD could use Rule 18(b) to accomplish this goal. Mr. Maas stated that he believed, through enforcement and promulgation of Rule 18(b), FTD could stop orders from going through AFS for the rebate. This was the first time I remember Rule 18(b) being discussed in this light at an FTD staff meeting. Neither Mr. Maas nor anyone else at the meeting mentioned quality control or consumer protection as reasons for enforcing Rule 18(b). In December 1981 an FTD test shopper placed an order for an FTD-trademarked arrangement with a branch store of Amlings Flowerland (“Amlings”), one of the nation’s “largest retail florists” (Wentland Dep. 472). Amlings sent that order via AFS, but FTD took no immediate disciplinary action (Putro Aff. If 49). Two months later FTD tested Amlings again, and again an FTD-product order was sent via AFS. Amlings’ President Paul Wentland (“Went-land”) was notified of a scheduled hearing before the FTD membership committee to look into those alleged Rule 18(b) violations, but Wentland did not respond. Amlings was fined $300 (later reduced to $100) (Putro Aff. ¶1150-52). Wentland wrote FTD saying the AFS clearings “shouldn’t have happened” and were due to employee error (Putro Aff. Ex. 22). After receiving notice of his penalty, Wentland wrote again in a less conciliatory tone, suggesting FTD had made a number of mistakes at Amlings’ expense, for which Amlings could not fine FTD (Putro Aff. Ex. 23). In May 1982 FTD tested Amlings again, pursuant to a policy of retesting florists under probation. That test found another Rule 18(b) violation (Putro Aff. If 56). Upon receiving notification from FTD, Wentland wrote back he was “appalled at the harassment” by FTD, characterizing the test as an “assault.” Further, he wrote (Putro Aff. Ex. 27 at 2): We do not, nor do our attorneys recognize the “presumptions” that are made in FTD’s rule 18(b) relating to the question of whether or not FTD “coined” arrangements can ever be sent out via another wire service. * * # * * * As florists nationwide have sought to preserve their very existence via the use of the most economical wire service (even after careful consideration of the effect that FTD’s large advertising budget has on convincing American consumers to buy more flowers), FTD has sought to retaliate and spend wasted dollars as an excuse for poor management. Twice in November 1983 FTD member florists notified FTD that Amlings had sent FTD orders to them via AFS. Those complaints were referred to Wentland for a response (Putro Aff. ¶¶ 60-62). Wentland replied Amlings was a member of at least five Clearinghouses and (Putro Aff. Ex. 35): Amlings is free to use the clearinghouse of its choice. Any attempt by any wire organization to enforce exclusive use of their particular clearing facility constitutes a per se illegal boycott under Section 1 of the Sherman Act. At that point FTD sensed Amlings’ prior claims of merely erroneous Rule 18(b) violations might have been disingenuous, and it embarked on an extensive test program of all Amlings outlets. Testing continued from December 1983 through February 1985, resulting in several fines, a one-month suspension of 7 of Amlings’ 14 stores, and a six-month suspension of 4 stores (Putro Aff. 111163-69). During the course of that testing program Wentland’s attorneys (who also represent AFS in this action) informed FTD of their view Rule 18(b) “as interpreted and applied” amounted to a per se boycott under Section 1 (Putro Aff. Ex. 38). AFS did not stand idly by while FTD and Amlings disputed the validity of Rule 18(b). Wentland sent an April 28, 1982 memorandum to his store managers and clerks (Wentland Dep. Ex. 21) (emphasis in original): We have just received word from the attorneys of American Floral Services (AFS) that FTD has no right to insist that Big Hugs, Ticklers, FTD arrangements from the FTD selection guide, and other FTD arrangements have to be sent FTD. You should send all these arrangements via AFS as you were doing before. Wentland continued to keep Meinders informed of FTD disciplinary activity against Amlings (see Wentland Dep. Exs. 67, 69), and Amlings instituted a policy of attempting to send virtually all its orders through AFS (see Wentland Dep. Exs. 21, 23). That policy necessarily affected Amlings’ Teleflora clearings as well. On December 6, 1982 Resnick had what she described as a “very unpleasant conversation” with Wentland regarding the low level of Amlings’ Teleflora clearings. She threatened to terminate Amlings’ Teleflora membership unless Amlings started to clear through Teleflora about as many orders as it received via that Clearinghouse. Resnick conducted further investigations during 1983 and became convinced Amlings not only was failing to keep sending on a parity with receiving but was also violating Obligation 2—necessarily the case in view of Amlings’ internal 100%-AFS policy (see Resnick Aff II16). Teleflora put Amlings on probation as of September 1983. Amlings responded through its attorneys, stating Teleflora’s rules violated Section 1 and threatening suit if Amlings were suspended from Teleflora (Wentland Dep. Ex. 90). Teleflora suspended Amlings in January 1984, and that suspension remains in effect (Resnick Aff. ¶ 17). Both Resnick and FTD Membership Division Director Donald Putro (“Putro”) have sworn their decisions regarding Amlings’ discipline were individual and without knowledge of actions planned by the other (Resnick Aff. ¶ 18; Putro Aff. If 64). However, FTD and Teleflora field representatives apparently did have some discussion about Amlings. FTD representative Frank Wren (“Wren”) and Teleflora representative Gary Allen (“Allen”) were “acquaintances” (Allen Aff. ¶ 5). In November or December 1983 Allen phoned Wren, and in the course of conversation Allen mentioned Teleflora had tested Amlings and was about to take disciplinary action (Wren Aff. 1110; Allen Aff. If 6). Wren may have said FTD had also tested Amlings (Allen Aff. 116), but he did not care to discuss the matter further (Wren Aff. ¶ 11). Then a few months later Allen told Wren Telefora had suspended Amlings, and Wren said FTD was still testing (Allen Aff. 116). Allen asked if FTD were considering disciplinary action, and Wren said he didn’t know (Wren Aff. II12). In neither discussion was Rule 18(b) or Obligation 2 discussed (Allen Aff. 11 8; Wren Aff. 1113), and Allen did not report his conversations with Wren to Teleflora’s home office (Allen Aff. 11 5). Aside from testing Amlings and other florists for Obligation 2 violations, Resnick sought to make her views on “pirate orders” known to the industry. In January 1983 Herb Mitchell (“Mitchell”), a management consultant employed by AFS (Mitchell Dep. I 5), published an article entitled “Order Control By Wire Service” in his monthly newsletter, Floriculture Directions (Resnick Dep. Ex. 6). Mitchell’s article argued the Sending Florist “owns” a Customer’s order and is legally entitled to send it through whatever Clearinghouse Sending Florist chooses. Mitchell advised florists to post signs and send statements saying (1) the wire service used “makes no difference in the manner in which your order is filled” and (2) unless Customer makes a specific request a Sending Florist will use the Clearinghouse of its choice (id.). Resnick responded by writing Mitchell his legal opinions were “truly erroneous” and his approach was “a disservice to the entire industry” (Resnick Dep. Ex. 7). She disputed Mitchell’s statement all wire services were alike and asked him to consider Teleflora’s entitlement to clear orders for keepsakes that brought Customers into the shop (id.). Finally, she announced she was sending copies of her letter to Meinders, Maas and FTD President William Raich (“Raich”), urging them to join her “in protesting your article as a grave disservice to the entire floral industry” (id.). Resnick received no response from Meinders, Maas or Raich, but Mitchell did reply, also copying Meinders, Maas and Raich (Mitchell Dep. II 128). Mitchell stuck to his guns and also criticized Teleflora for “replacing flower business with gift sales” (Mitchell Dep. Ex. 4). That was the end of the correspondence. AFS’ Arguments AFS makes three basic arguments: 1. On their face Rule 18(b) and Obligation 2 are per se illegal boycotts under Section 1. 2. As construed and enforced Rule 18(b) and Obligation 2 are per se illegal boycotts under Section 1. 3. FTD and Teleflora conspired to keep Clearinghouse fees at 6% and to boycott AFS. This opinion will first discuss the conspiracy theory, which requires the most extensive treatment (though that does not suggest it is any more meritorious—it is not). This Court will then address AFS’ other contentions. FTD-Teleflora “Conspiracy” Section 1 provides: Every contract, combination ... or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal____ United States v. Standard Oil Co., 316 F.2d 884, 890 (7th Cir.1963) (citations omitted) fleshes out that concept: The substantive law of trade conspiracies requires some consciousness of commitment to a common scheme____ Unless the individuals involved understood from something that was said or done that they were, in fact, committed to raise prices, there was no violation of the Sherman Act. True enough, “smoking-gun” evidence of a trade conspiracy may be rare, and no doubt a conspiracy may be proved by circumstantial evidence (.American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S.Ct. 1125, 1138-39, 90 L.Ed. 1575 (1946)). But circumstantial evidence must still be evidence, and AFS’ “showing” is simply nonactionable innuendo. AFS relies, first of all, on the “conscious parallelism” doctrine originating in Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226-27, 59 S.Ct. 467, 474-75, 83 L.Ed. 610 (1939). There the Court held a conspiracy in restraint of trade could be inferred from an invitation to act in concert followed by parallel behavior consistent with that invitation. But as Standard Oil, 316 F.2d at 890, 896 points out, Section 1 was not violated by the parallel behavior itself—rather the parallel behavior following a “solicitation to act in concert” tended to prove the existence of a “commitment to a common scheme.” Were it otherwise, anyone who raised prices after hearing a competitor had raised prices would violate Section 1 {id. at 896). Thus recent cases (see, e.g., Quality Auto Body, Inc. v. Allstate Insurance Co., 660 F.2d 1195, 1201 (7th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982)) have emphasized that parallel behavior without more (the well-known “plus factor”) does not establish a Section 1 conspiracy. Two competitors may adhere to a “common formula” to establish prices, but that may be because each unilaterally finds the formula to be in its best interests. Such a pricing structure may just as likely reflect perfect competition as collusive anticompetitive decisions. Parallel unilaterally self-interested behavior does not violate Section 1 {id.). See also Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 259-60, 98 L.Ed. 273 (1954) (“ ‘conscious parallelism’ has not yet read conspiracy out of the Sherman Act entirely”). Even if parallel behavior has some probative force in establishing the existence of a conspiracy, it alone cannot carry the day for AFS. Weit v. Continental Illinois National Bank and Trust Co. of Chicago, 641 F.2d 457, 462 (7th Cir.1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982) (citations omitted) teaches: Plaintiffs contend that circumstantial evidence in the record—parallel rates and the opportunity to conspire—are sufficient to meet their burden under Rule 56(e). Clearly, circumstantial evidence can be sufficient to support a finding of a price-fixing conspiracy____ Parallel business behavior or “conscious parallelism” is the type of circumstantial evidence which, absent more direct evidence, will be relied on in inferring unlawful agreement____ However, when defendants come forward with denials sufficient to shift the burden under Rule 56(e), plaintiffs must come forward with some significant probative evidence which suggests that conscious parallelism is the result of an unlawful agreement____ Parallel behavior and the hope that something further can be developed at trial is not sufficient to warrant a trial on the merits____ If plaintiffs are to proceed to trial, they must be able to point to some probative evidence that parallel interest rates resulted from unlawful agreement rather than lawful business reasons. Any such showing is totally lacking here. AFS points to a number of allegedly probative incidents, but on examination each is illusory. AFS Mem. 106 asserts Resnick’s letter to Mitchell, with its copies to Maas and Raich of FTD, was “an invitation to Maas and FTD to ‘join’ in an industry wide anti-pirate order campaign.” But Resnick’s letter was not an invitation to do anything in particular: At most it was by its own terms an invitation to join in “protesting your [Mitchell’s] article” (Resnick Dep. Ex. 7, at 2). No plan of action was suggested and no demands were made—contrast the “invitation” in Interstate Circuit, 306 U.S. at 216 n. 3, 59 S.Ct. at 469-70 n. 3. And if Resnick—who by this time had discussed the Section 1 question with her counsel, as the letter shows—had any pre-existing conscious commitment to a trade conspiracy, her open copying (not only of Maas and Raich but Meinders as well) was hardly the way to go about concealing that fact. This Court is obliged to draw only reasonable inferences in AFS’ favor (Hermes, 742 F.2d at 353), and AFS cannot get blood from this dwarf turnip. AFS also charges FTD and Teleflora openly support each other’s rules against their own economic interest. That claim is based on several baseless propositions. 1. Dual Enforcement FTD Rule 18(c) (“Rule 18(c)”) requires an FTD member who also belongs to another Clearinghouse to (Putro Aff. Ex. 14, at 3): handle wire orders sent or received through such other wire service or clearing house according to the rules and regulations of such other wire service or clearing house. In like manner, a January 1982 letter from Resnick to Teleflora members stated (Res-nick Dep. Ex. 3, emphasis added): We’re certain you’re aware that Teleflora’s exclusive holiday promotions and sales-winning bouquets have helped boost sales for you. However, some florists are wiring orders for specific holiday promotions and special bouquets from the counter selection guide and crediting them to other wire services. ****** If you ever receive a wire order that specifies a Teleflora holiday promotion or bouquet from our guide crediting the transaction to another wire service, be sure to alert the sender. Oversights do happen. We feel equally strong that business generated by another wire service should be credited to that wire service. After all, fair is fair for everybody. Based on such policy statements, AFS concludes FTD and Teleflora acted to enforce each other’s “pirate order rules” contrary to their self-interest, thus tending to prove conspiracy. That is patent nonsense: Those statements are fully consistent with each Clearinghouse’s self-interest. Teleflora’s appeal for adherence to Obligation 2 really amounts to the statement “fair is fair.” It could not compel members to clear orders via its Clearinghouse except by threat of suspension, and after a while such suspensions would be self-defeating. Its only practical real-world means of obtaining effective compliance was to convince florists it “deserved” to clear orders generated by its advertising and promotion. How would that appeal to fairness sound if Teleflora insisted on clearing FTD’s trademarked products as well? FTD’s entire appeal through Rule 18(b) was to honest dealing and customer choice. It too could not expect much compliance with its rule if it suggested florists should switch AFS or Teleflora orders to FTD where they had legitimately been sent through those Clearinghouses. So long as alternative Clearinghouses are available to a given florist, threats of fines and suspension could easily be viewed as less effective means of attracting loyalty than an appeal to integrity—an appeal that incidentally imposed no economic burdens, for nothing suggests either FTD or Teleflora in fact disciplined members for violating the other’s “pirate order” rule. In sum, there is no evidence FTD and Teleflora agreed to enforce each other’s rules, and there is no evidence either referred to the other’s rules for any reason other than its own self-interest. AFS’ Mem. 106 assertion that Resnick’s letter to Mitchell “expressly informed William Maas of FTD that Teleflora was working in concert with FTD” is simply absurd (see n. 18). 2. Sharing of Enforcement Information AFS Mem. 107 points to various documents—again mostly unauthenticated—tending to show some florists reported AFS pirate orders to both FTD and Teleflora. In some other industries (or some other circumstances), that situation might perhaps suggest conspiracy, but here, where florists may and do join any number of Clearinghouses, a great deal of competitive information must inevitably gain general currency. FTD will tell something to Florist A, and Florist A will repeat it to his or her Teleflora representative. Florist B, a member of FTD and Teleflora, will tell both Clearinghouses about pirate orders received via AFS, believing that exchange of information will serve his or her own interests. None of that tends to prove an FTD-Teleflora conspiracy, and AFS’ documents show nothing more. See Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 1470, 79 L.Ed.2d 775 (1984) (distributors’ complaints to manufacturers about price-cutters are “natural” and “unavoidable”; they “arise in the normal course of business and do not indicate illegal concerted action”). FTD and Teleflora cannot be held to account for what some of their members do. 3. Amlings AFS also points to FTD’s and Teleflora’s allegedly “parallel” disciplinary actions against Amlings, urging a conspiracy may be inferred from evidence of the Wren-Alien conversations in which some competitive information was shared. Once again AFS’ position does not survive analysis. In the first place, the behavior at issue cannot realistically be called “parallel.” FTD began its testing in late 1981 and continued testing in response to the evidently hostile message conveyed by Went-land’s letters. And FTD still counts Amlings among its members. On the other hand, Teleflora’s problems with Amlings date from Resnick’s December, 1982 conversation with Wentland (perceived by Res-nick, at least, as “very unpleasant” (Went-land Dep. Ex. 88)). They were apparently motivated at least as much by Amlings’ violation of Obligation 1—which has no FTD parallel—as by Obligation 2 violations. Teleflora thus terminated Amlings a little more than a year after the Resnick-Wentland conversation, while FTD continues (after more than four years of arm-wrestling) with Amlings among its members. Aside from that obvious lack of parallelism, the evidence of the Wren-Allen discussions does not support a reasonable inference of “consciousness.” Those discussions may fairly be described as chit-chat among industry acquaintances in the field. Both Wren and Allen firmly deny they discussed Rule 18(b), Obligation 2 or any common strategy of enforcement. In the face of that, AFS offers only its fantasy of what might have taken place. From the course of events it is clear each of FTD and Teleflora had embarked on its disciplinary activity well before the Wren-Alien conversations, each for its own reasons. Further, there is no evidence such information as passed between Wren and Allen ever made its way back to those with authority to do something with it. 4. Resnick-Maas “Agreement” AFS’ most irresponsible claim is of a personal meeting between Resnick and Maas to discuss parallel enforcement of Rule 18(b) and Obligation 2. That claim is based solely on Wentland’s Dep. 556-58: Q. You testified this morning that you had lunch with Mr. Maas in the fall of 1982, is that right? A. Yes. Q. And he mentioned that he had just been with Lynda Resnick, is that right? A. Yes. Q. Did he tell you where? A. No. Q. Did he tell you how long they met? A. Excuse me, he might have told me where, but I don’t recall. Q. Did he tell you for how long a time they met? A. No. Q. Did he tell you the occasion of their meeting, whether it was some particular seminar or where it was? A. He probably did, but I don’t recall. Q. Did he tell you how long they talked? A. I don’t recall. Q. You do recall that he said there was discussion about containers, is that right? A. Yes. Q. Did he tell you anything else about the conversation with Lynda Res-nick other than that there was conversation about containers? A. He may have, Joel, I don’t recall. ****** Q. Since then, you have assumed that they must also have talked about their membership obligations and rules and so on, is that right? A. Since then, I assume that they would have talked about their membership rules. Q. But you have no basis whatever for that assumption? A. Up until the initiation of the lawsuit, I would say, yes, I probably assumed that. Q. But that’s not based on any factual information that you have? A. Not that I can recall at this time. Earlier Wentland had told Meinders of that conversation with Maas. Meinders Dep. 508-07 says: A. I recall that he said Maas and Resnick spoke to each other, and I think he might have said, “I imagine they talked about 18(b) and Teleflora’s rules.” Q. You think he may have said, “I imagine they talked about 18(b) and Teleflora’s rules”? A. I think that’s a true statement, yes, sir. Q. Did he tell you that Maas told him that Maas and Resnick had discussed Rule 18(b)? A. No, he did not, as I said. Q. And did he tell you that Maas told him that Maas and Resnick had discussed Teleflora’s rules? A. I think the key was always that he imagined. I don’t think he ever came out and said that they did. I can’t recall—or, I couldn’t swear one way or the other. Neither Maas nor Resnick denies they met—once—in a restaurant parking lot during a florists’ convention. Both assert they were “introduced” and quickly separated, and both say there was no discussion of membership rules or enforcement or any business (Resnick Aff. II10; Maas Aff. 1140). AFS’ attempt to weave a web of conspiracy from Wentland’s deposition testimony is truly ludicrous. Wentland’s recollection is weak (to say the least), and he is prepared to swear to no more than an “assumption”—“not based on any factual information”—that Rule 18(b) and Obligation 2 were discussed. His “assumption” is not admissible evidence (the standard under Rule 56(e)), and Rule 56 does not call on this Court to draw far-fetched inferences without evidentiary support {Box v. A & P Tea Co., 772 F.2d 1372, 1378 (7th Cir.1985) (affiant’s “conjecture” and “speculation” do not suffice to withstand a properly-supported summary judgment motion)). In summary, AFS has not met the showing Weit demands. There is no probative (or admissible) evidence to support the conspiracy charge. All activities of FTD and Teleflora—even to the limited extent they might arguably be viewed as parallel— were fully consistent with individual self-interest. Independent action—even if it might be shown to harm competition—does not violate Section 1 {Quality Auto Body, 660 F.2d at 1201). Thus AFS’ Count III cannot survive the FTD and Teleflora summary judgment motions. Rule 18(b) and Obligation 2 With the asserted existence of joint action between FTD and Teleflora ruled out, this opinion turns to AFS’ claim that Rule 18(b) and Obligation 2, as individually promulgated and enforced, constitute “boycotts” under Section 1. On that score the litigants’ positions mirror the time-honored pattern in antitrust cases: 1. AFS labels the “boycotts” “horizontal” and says they are per se illegal. 2. Each of FTD and Teleflora says its rule is “vertical” and must be analyzed under the rule of reason. Before that dispute is addressed, one preliminary matter deserves attention. FTD says Rule 18(b) is really no restraint at all, for on its face it would allow a florist to use AFS (or any other Clearinghouse) 100% of the time, so long as Customers expressly approve. AFS counters in several ways: 1. Sending Florists assertedly find it burdensome to explain the existence of Clearinghouse options to Customers (Meinders Dep. 680-81), especially because floral sales staff may not be adequately trained to give the explanation (id. at 684). 2. In any case Sending Florist “owns” the order and has the right to send it as he or she sees fit (id.). Customers’ only concern is the recipient’s satisfaction with the order as delivered (id. at 689). 3. FTD’s Customer-choice rule is a “sham,” because it is actually enforced by FTD to require FTD clearing of FTD-trademarked products and generic items misleadingly claimed by FTD as its own (see Schlesier Aff.). This Court need not decide whether to accept any of those claims as valid (each reflects at least some shakiness). It will be remembered the current version of the interpretation of Rule 18(b), which specifically articulates Selling Florist’s right to inform Customers of their ability to designate a Clearinghouse other than FTD, is a 1982 modification. To treat with AFS’ claim for damages based on past conduct, this Court must deal with the earlier interpretation of the Rule as well. And on that earlier version, it might arguably be a question of fact whether a Customer’s right to designate a Clearinghouse—absent the Customer’s having been advised of that right—was illusory. Accordingly, to avoid having to parse the different versions, this Court will make an arguendo assumption most favorable to AFS (though not called for by the Rule’s language): that Rule 18(b) would instead require all orders for FTD-source-identified products to be cleared through FTD. For current purposes, therefore, it will be unnecessary to indulge any separate analysis of Rule 18(b) and Obligation 2 (termed collectively, then, the “Pirate Order Rules”). Instead the pro-AFS assumption will be made that each Pirate Order Rule is intended to protect the business generated by the Clearinghouse promulgating the Rule. If Obligation 2 is legal on its face, plainly that is so a fortiori as to Rule 18(b). 1. Horizontal Boycott? In standard antitrust parlance, a “horizontal” restriction is one between competing sellers, while a “vertical” restriction is one between firms in different stages of the chain of distribution (Valley Liquors, Inc. v. Renfield Importers, Ltd., 678 F.2d 742, 744 (7th Cir.1982)). Boycotts are “concerted refusals] to deal” (Quality Auto Body, 660 F.2d at 1206). AFS claims the Pirate Order Rules are used to enforce a horizontal boycott of AFS’ Clearinghouse. But AFS’ explanation of the asserted horizontal nature of the restraint is sketchy at best. National Collegiate Athletic Association [“NCAA ”] v. Board of Regents of the University of Oklahoma, 468 U.S. 85, 104 S.Ct. 2948, 2959, 82 L.Ed.2d 70 (1984) defined a horizontal restraint as: an agreement among competitors on the way in which they will compete with one another. If all florists agreed to sell a dozen roses for $25, that would be a classical horizontal restraint to prevent price competition. If all florists agreed to sell a maximum of a dozen roses per week, that would be a horizontal limit on output, which would tend to raise the price of roses. Horizontal restrictions are almost always considered per se illegal under Section 1 because there is a very high probability they are anticompetitive (NCAA, 104 S.Ct. at 2960). Thus AFS would like to shoehorn the Pirate Order Rules into the horizontal model if at all possible. AFS relies on a trio of cases: Associated Press [“AP”] v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); and United States v. General Motors Corp. [“GM”], 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). But a brief review of those cases demonstrates that though their facts are superficially relevant here, each really involves a different economic phenomenon from that presented by this case. In AP an association of newspapers had established by-laws prohibiting distribution of AP news to non-member newspapers and allowing a competing newspaper a virtual veto right over admission of new members (326 U.S. at 10-11, 65 S.Ct. at 1419-420). Those by-laws, which allowed competing newspapers to starve out non-members from news essential to be competitive (thus restricting the output of news), were held to violate Section 1 because they permitted competitors to cut down their own competition—a horizontal restriction (id. at 15, 65 S.Ct. at 1422). Silver struck down a rule of the New York Stock Exchange (“NYSE”), an association of brokers, that prohibited direct telephone connections with non-member brokers. As in AP, the information furnished on NYSE wires was held an essential part of the brokerage business—without it, a broker could not effectively compete with other brokers (373 U.S. at 348, 83 S.Ct. at 1252). And also as in AP, the effect of the NYSE rule was to give some brokers a leg up on competing brokers at the same level of operations—a classic horizontal boycott (id.). In GM an association of Chevrolet dealers enlisted GM’s support to impose economic sanctions on Chevrolet dealers who sold cars to discount brokers. Once again the object of the restriction (imposed by GM at the behest of the full-price dealers, 384 U.S. at 133, 86 S.Ct. at 1324) was to disadvantage some dealers to the benefit of their competitors. Though in GM the actual restriction came from the manufacturer and was not an association by-law, the effect was not to advantage GM over its competitors but to help some Chevrolet dealers in their competitive campaign against other Chevrolet dealers, with the purpose of eliminating discounting competitors. Each of FTD and Teleflora has done something quite different. Their respective Pirate Order Rules control the business relationships between florist and Clearinghouse. There is no association, of “ins” whose rules deny critical products to their “out” competitors. Thus the Pirate Order Rules do not function like the bylaws in AP and Silver, nor were they enacted by FTD or Teleflora in furtherance of their members’ schemes to restrict competition among florists, as in GM. To the contrary, what evidence there is suggests most members would—like Amlings—prefer not to have the Pirate Order Rules. What a member Sending Florist would no doubt prefer is to have access both to (1) the product lines developed by FTD and Teleflora (thus being able to deliver a wider range of attractive choices to Customers) and (2) whatever consumer identification the FTD and Teleflora trademark and servicemark advertising may have created, while at the same time basing the Sending Florist’s Clearinghouse choice on price considerations alone (thus taking advantage of the AFS “rebate”). Clearly the Pirate Order Rules are restrictions placed by FTD and Teleflora on the activity of their member florists. Such restrictions between one level of an industry and another are “vertical” (Valley Liquors, 678 F.2d at 744). FTD and Teleflora distribute products (containers, keepsakes and trademarked or otherwise source-identified flower arrangements) and services (communications facilities, Clearinghouse functions and promotion) to florists, and in classic vertical fashion they have placed certain restrictions on those florists if they are to continue to deal. That is not to say application of the “vertical” label means there can be no anti-competitive effect. Vertical agreements are still agreements, and if they restrain trade within the meaning of Section 1 they are illegal. But AFS cannot resort to the quick kill of per se condemnation here. Vertical agreements are typically subject to rule-of-reason analysis. 2. Rule of Reason Per se condemnation of restraints under Section 1 applies when there is a “likelihood of predominantly anticompetitive consequences” (Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., — U.S. —, 105 S.Ct. 2613, 2620, 86 L.Ed.2d 202 (1985)). But as Continental T. V, Inc. v. GTE Sylvania Inc., 433 U.S. 36, 54, 97 S.Ct. 2549, 2559, 53 L.Ed.2d 568 (1977) put the standard: Vertical restrictions promote interbrand competition by allowing the manufacturer to achieve certain efficiencies in the distribution of his products. These “redeeming virtues” are implicit in every decision sustaining vertical restrictions under the rule of reason. Thus (id. at 59, 97 S.Ct. at 2562) per se condemnation is inappropriate to vertical-restriction cases, and a rule-of-reason inquiry must be employed. Under rule-of-reason analysis the essential question is (National Society of Professional Engineers v. United States, 435 U.S. 679, 691, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978)): whether the challenged agreement is one that promotes competition or one that suppresses competition. FTD and Teleflora argue the Pirate Order Rules promote competition by eliminating AFS as a “free rider” on their promotions and advertising efforts. That argument, thus put, may be crude but (with refinements) has compelling force. Production of goods or services usually requires the investment of capital. Entrepreneurs invest capital with the expectation they will reap a benefit from that investment. If an entrepreneur invests capital and a competitor reaps the benefit, there will be little incentive to invest more capital, and there will be less production. In brief, that is the “ ‘free rider’ effect” (Continental T.V., 433 U.S. at 55, 97 S.Ct. at 2560). Section 1 does not require competitors to share the rewards of “entrepreneurial risk-taking” (Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Association, Inc., 672 F.2d 1280, 1288 (7th Cir.1982)). To a certain degree free riding is attendant to most advertising investments, at least where the advertising is designed as much to get consumers interested in the product or service itself as in the advertiser’s own brand. That is especially true where the product is novel, obscure or poorly understood. For example, many banks advertise the virtues of IRA accounts each year at tax time, and those advertisements may well prompt customers to open such accounts at non-advertising banks where they already have an established relationship. But that does not mean the advertising banks have a right to interfere with the business of the non-advertising banks to claim deposits “rightfully theirs.” And by the same token, FTD and Teleflora have no right to prevent such purely collateral benefits of their advertising from rubbing off on AFS, their competitor. To that extent AFS is correct in arguing prevention of the free-rider effect will not support a restriction on interbrand competition under the rule of reason. What the parties gloss over, though, is that AFS is not the “free rider” in this case in the usual sense. Instead, Sending Florists who steer clearings away from FTD and Teleflora so they may receive the rebate are the ones who benefit from FTD and Teleflora advertising most directly (see n. 27). To the extent advertising and product promotion educate consumers about floral sending and create a general demand for floral Clearinghouse services, that indirect benefit may legitimately be reaped by the florists who sell those products and services. Sending Florists “free ride” (and AFS then benefits from their free riding) only if the Sending Florists decide to double dip by using the FTD or Teleflora floral designs or containers while at the same time collecting the AFS rebate. Viewed properly from that perspective, the Pirate Order Rules are not imperroissible restrictions on interbrand free riding. Instead they are legitimate agreements ancillary to the cooperative agreements between florists and FTD or Teleflora. Polk Bros. Inc. v. Forest City Enterprises, Inc., 776 F.2d 185,188-89 (7th Cir.1985) teaches: Cooperation is the basis of productivity. It is necessary for people to cooperate in some respects before they may compete in others, and cooperation facilitates efficient production. See [Monsanto, 104 S.Ct. at 1470]. Joint ventures, mergers, systems of distribution—all these and more require extensive cooperation, and all are assessed under a Rule of Reason that focuses on market power and the ability of the cooperators to raise price by restricting output. * * * * * * A court must distinguish between “naked” restraints, those in which the restriction on competition is unaccompanied by new production or products, and “ancillary” restraints, those that are a part of a larger endeavor whose success they promote. See NCAA, supra. If two people meet one day and decide not to compete, the restraint is “naked”; it does nothing but suppress competition. If A hires B as a salesman and passes customer lists to B, then B’s reciprocal covenant not to compete with A is “ancillary.” At the time A and B strike their bargain, the enterprise (viewed as a whole) expands output and competition by putting B to work. The covenant not to compete means that A may trust B with broader responsibilities, the better to compete against third parties. Covenants of this type are evaluated under the Rule of Reason as ancillary restraints, and unless they bring a large market share under a single firm’s control they are lawful. See United States v. Addyston Pipe & Steel Co., 85 F. 271, 280-83 (6th Cir.1898) (Taft, J.), aff’d, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). In Polk Bros. two retailers agreed to build a store in which they would share space. For the most part their product lines were complementary, and the new store would be a boon to local consumers (776 F.2d at 189-90). But the agreement to cooperate could not go forward unless Polk Bros. got assurances the other store would not compete with it in certain key product lines. Otherwise it would not have been worthwhile for Polk Bros. to cooperate (id. at 190): It is easy to see why. Polk spent substantial sums in advertising to attract customers to its stores, where it displayed and demonstrated the appliances. It might be tempting for another retailer to take a free ride on these efforts. Once Polk had persuaded a customer to purchase a color TV, its next door neighbor might try to lure the customer away by quoting a lower price. It could afford to do this if, for example, it simply kept the TV sets in boxes and let Polk bear the costs of sales personnel and demonstrations. Polk would not continue doing the work while its neighbor took the sales. It would do less demonstrating and promotion, to the detriment of consumers who valued the information. The Supreme Court has recognized that the control of free riding is a legitimate objective of a system of distribution. See Monsanto, supra, 104 S.Ct. at 1469-70; Continental TV., supra, 433 U.S. at 55-57 [97 S.Ct. at 2560-561].... Similar analysis applies to the agreements between florists and FTD or Teleflora. Cooperation between florists and Clearinghouses is beneficial to the consumer: It enables florists to offer products and services consumers desire. Advertising and product development partly serve to increase consumer awareness of floral sending and of the fact choices are indeed available. That promotes interbrand competition to offer better services and more attractive products. But each of FTD (on the pro-AFS assumption already explained) and Teleflora obviously is not prepared to enter into such cooperative agreements with florists, as to the FTD and Teleflora source-identified components of those Clearinghouses’ business, if the florists do not also agree to patronize the producing Clearinghouse so the latter can derive the economic benefit of that business. Now that the appropriate mode of analysis has been established, the next step in the rule-of-reason approach is to assess market power. Polk Bros. 776 F.2d at 189 tells us an ancillary restraint is lawful unless it brings a “large market share under a single firm’s control.” “Market power” is usually a very difficult concept to define, and it is especially so in this case. Obviously such power has something to do with market share, and recent cases (see, e.g., Will v. Comprehensive Accounting Corp., 776 F.2d 665, 672 (7th Cir.1985)) have treated firms with less than 30% market share as presumptively lacking market power. That would give Teleflora a clean bill of health, because its total share of the Clearinghouse market is far below that even by AFS’ unofficial estimate (AFS App. 8B Ex. 1). As for FTD, AFS has done no more than allege its share of the total clearings market is between 60 and 70% (Mitchell Dep. I 53; AFS App. 8B Ex. I). And Rule 18(b) does not apply to FTD’s whole market share: At most, only clearings of FTD-identified arrangements and containers are affected. On that score, AFS’ expert Mitchell estimated (Dep.Ex. 3, at 2) the whole “holiday specials” market (where “both FTD and Teleflora are concentrating their efforts”) at “less than 20% of the wire service business.” Clearly FTD’s ability to dominate the industry through market share is far weaker than would be implied by the 60-70% figure AFS offers. FTD does not seriously dispute its total market share is “in the 60-percent range” (FTD Stmt. Material Facts Not in Dispute H 19). But except for AFS’ claim that its own rather spectacular growth rate (from a 3.82% market share in 1980 to 10.71% in 1984, AFS App. 8B Ex. 1) has slowed in the last year or so (AFS Stmt, of Genuine Issues of Dispute 111158-60), AFS has not met its burden of showing any evidence of FTD’s market power. After all, market share is at best a proxy for market power, and a rough one at that. What really counts is the ability of a producer to control output and obtain “supracompetitive prices” (NCAA, 104 S.Ct. at 2966). In those terms the ready availability of substitutes in the market undercuts market power (id. at 2967). If a seller offers “a unique product that competitors are not able to offer,” it can have market power (Jefferson Parish, 104 S.Ct. at 1560-61). But AFS urges that Clearinghouse services (viewed narrowly, in AFS’ view, as “banking” services) are freely fungible, and the record clearly shows competitors are able to get into the business on a very small outlay: Meinders’ own initial investment in AFS was only $500 (Meinders Dep. 942). Carik, a Clearinghouse started by a former AFS executive in 1983, already had over $6 million in clearings in 1984 (AFS App. 8B Ex. 1). Six Clearinghouses began business in the past five years (Maas Dep. Ex. 3, at 2). That torpedoes any notion FTD has the kind of market power capable of condemning the otherwise reasonable Rule 18(b) under the rule-of-reason analysis. AFS has shown no “barrier to entry that prevents competition” (Will, 776 F.2d at 672). Without such a barrier, there is no market power (id.). Without market power, the rule-of-reason analysis establishes vertical restraints are valid as a matter of law (id. at 671). AFS has produced nothing more than ominous rumblings to contradict the obvious demonstration from the record that barriers to entry in the floral Clearinghouse market do not exist. Thus Rule 18(b), like Obligation 2, must pass a rule-of-reason analysis. There is an alternative legal characterization of Rule 18(b)—likely a more accurate one on the assumption (the best possible one for AFS) that Rule 18(b) is the practical equivalent of Obligation 2. Teleflora’s restriction is esentially a tie-in, conditioning the sale of a Teleflora-source-indicated item upon the use of Teleflora’s Clearinghouse. Any Sending Florist who wants to sell a Teleflora keepsake must tie that sale to the purchase of Teleflora’s Clearinghouse services. If FTD’s Rule 18(b), despite its stated freedom of choice based on Customer’s informed direction to Sending Florist, were viewed as equally restrictive to Obligation 2, the approach of the tying cases would thus come into play. Will was in fact a tying case, and the analysis of market power undertaken by our Court of Appeals there was identical to its Polk Bros. analysis and is generally applicable to all vertical-restraint cases. Such an analysis would also turn on the existence of market power in the tying commodity (FTD-source-designated products), and the result here would be the same. See Jefferson Parish, 104 S.Ct. at 1566. From any perspective, then, Rule 18(b) is unexceptionable in antitrust rule-of-reason terms, and AFS must fail. Conclusion There are no genuine issues of material fact, and each of FTD (as to Counts I and III) and Teleflora (as to Counts II and III) is entitled to a judgment as a matter of law. This action is dismissed with prejudice. Appendix 1 Current Text and Accompanying Interpretation of FTD Rule 18(b) (b) Florists’ Transworld Delivery Association orders received from another Member shall be filled only in accordance with the rules and regulations of FTD. A Member who takes an