Full opinion text
TABLE OF CONTENTS PAGE FACTS.....................................................................................................866 I. THE PARTIES..................................................................................866 A. Plaintiff......................................................................................866 B. Defendants....................................... 867 II. THE ECONOMIC RELATIONSHIP....................................................867 III. THE SEVEN CONTRACTS AT ISSUE...............................................869 IV. THE LITIGATION____________________________________________ 870 DISCUSSION........................... 871 I. SUMMARY JUDGMENT IN COMPLEX LITIGATION__________________ 871 II. DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE CONTRACT CLAIM__________________________________________________________________872 A. The Regulations and Their Interpretations___________________ 872 B. Changed Business Practices_________________________________________________________874 1. The Contracts’ Length...........................................................874 2. The Requirements Provisions..................................................875 3. The Equipment Purchase Term...............................................875 III. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE BREACH OF CONTRACT: THE COMMON LAW UNFAIR COMPETITION: AND THE ANTI-TRUST COUNTERCLAIMS__________________________876 A. The Contract Counterclaim.__________________________________________________________876 1. The Covenant Not to Compete_______________________________________________876 2. The Oral Contract Modification_______________________________________________877 3. The Written Contract Terms__________________________________________________878 B. The Unfair Competition Counterclaim____________________________ 879 C. The Antitrust Counterclaims________________________________________________________880 1. Tying____________________________________________________________________________________880 a. Sale of the Tied Product_________________________________________________881 b. Coercion_________________________________________________________________________881 2. Exclusive Dealing__________________________________________________________________883 a. Whether An Arrangement Existed....................................883 PAGE b. A Significant Anti-Competitive Effect.................... 884~ i. The Relevant Line of Commerce_____________________ 884 ii. Significant Impact on Competition___________________ 885 3. Resale Price Maintenance............................................ 886 4. Attempted Monopolization____________________________________________ 888 a. The Relevant Product Market............................... 888 b. Dangerous Probability of Success.......................... 890 i. Logical Problems with the Market Share Data 890 ii. The Market Share Data................................. 890 iii. Other Factors Beyond Market Share — ............ 891 IV. CONCLUSION........................................................................ 892 OPINION CALEB M. WRIGHT, Senior District Judge. In this breach of contract action the defendants asserted counterclaims based on the federal antitrust laws and sundry state and common law claims. The matter is before the Court on Cross Motions for Summary Judgment. The action was brought by Plaintiff, Kellam Energy, Inc. (“Kellam”), a Virginia corporation that is a wholesale distributor of petroleum in Delaware, Maryland and Virginia. The Defendant is R.C. Nehi Bottling, Inc. (“Nehi”), a Delaware soft drink bottling corporation that operates a chain of “Super Soda” convenience stores which sell beverages, groceries and snacks, as well as gasoline. Robert M. Duncan (“Duncan”), a Delaware resident and chief executive officer of Nehi, is the other defendant. The Court denies Nehi’s Summary Judgment Motion on Kellam’s contract claim. There remains an unresolved factual question concerning whether certain contracts between the parties violated federal petroleum regulations. The Court also denies Kellam’s Motion for Summary Judgment on the contract counterclaim, holding that there exists a factual dispute as to whether Kellam breached the contracts by charging Nehi too high a price for petroleum. The Court, however, grants plaintiff’s Motion for Summary Judgment on the Unfair Competition counterclaim, because it does not state a viable common law cause of action in Delaware. The Court grants in part and denies in part plaintiff’s Motion for Summary Judgment on the four antitrust counterclaims. The Court rules that defendants’ tying counterclaim merits summary judgment because there is no evidence that the tying arrangement was forced upon Nehi. The Court also finds that the requirements contracts signed between Kellam and Nehi could not have constituted exclusive dealing, in violation of Clayton Act § 3, because no exclusive dealing arrangement existed. The Court holds that Kellam’s sales methods may have constituted resale price maintenance in violation of the Sherman Act § 1, so that summary judgment is denied on this counterclaim. Finally, the Court denies summary judgment on defendants’ attempted monopolization counterclaim. FACTS I. THE PARTIES A. Plaintiff Kellam is a regional distributor of gasoline, diesel fuel, propane gas, and home heating oil. The Company, since 1938, has sold to both retail outlets and individual consumers on the Delmarva Peninsula. The Peninsula is an isolated, rural tri-state area that includes portions of Delaware, Maryland and Virginia. Kellam also operates, on the Peninsula, a chain of convenience stores through its wholly-owned subsidiary, Shore Stop Inc. (“Shore Stop”). Both Kellam and Shore Stop are headquartered in Belle Haven, Virginia. Kellam is a wholesale gasoline jobber. That is, it purchases oil from a large refiner — Texaco—and distributes it to retailers on the Delmarva Peninsula. The Company sells gasoline through an established dealer network using, primarily, requirements contracts. Under these agreements, Kellam installs, at the retailer’s facility, underground tanks, gasoline dispensing equipment, and Texaco signs — an investment of approximately $70,000 per station. The contracts stipulate that Kellam must service this equipment and supply the retail outlet with all of its gasoline needs. In exchange for Kellam’s services, the retail dealer agrees, inter alia, that it will purchase all of its gasoline requirements to be sold at a particular location from Kellam Energy. To perform its obligations, Kellam must maintain a staff of service technicians, own a fleet of gasoline transports and operate several bulk distribution plants. In the 1960s Kellam was one of the first companies on the Peninsula to install self-service gasoline dispensing equipment. Kellam’s predecessor corporations, Shore Atlantic, Inc. and Kellam, Inc., concentrated almost exclusively on retail gas sales. In 1979, all this changed. Kellam took the decision to integrate forward into the convenience store business; Shore Stop, Inc. was incorporated to direct Kellam’s new venture. Shore Stop opened its first convenience store in Machipongo, Virginia in March, 1981, and three more Virginia outlets followed shortly thereafter. In 1982, however, Kellam seized a rare opportunity to expand its convenience store business when Banks Dairy Markets, Inc. which owned and operated a chain of seventeen convenience stores in Maryland and Delaware, filed for bankruptcy. Under a reorganization plan approved by the Bankruptcy Court, Shore Stop began operating the Banks convenience stores in 1982 and acquired Banks Dairy Markets, Inc. in 1983. As of December 31, 1984, Shore Stop owned and operated thirty-three convenience stores on the Delmarva Peninsula. Most of these stores sell gasoline. B. Defendants Defendant, Nehi, is a soft drink bottling company headquartered in Camden, Delaware. The Company owns the exclusive bottling and distribution rights for R.C. Cola, Diet Rite Cola, Orange Crush, and Hires Root Beer in Delaware and Maryland’s Eastern Shore. Nehi owns two liquor stores and a chain of sixteen beverage warehouses. Under the name “Super Soda Center”, the Company currently operates ten beverage warehouses in Delaware and leases six Super Soda Centers in Maryland. In 1984, Nehi reported approximately $10 million in sales. After initially selling a limited number of items, like soft drinks and cigarettes, the Company made a dramatic decision in 1973. Defendant, and Nehi’s president, Duncan, decided to add gasoline to the Super Soda line of products. At that time, he contacted Kellam about supplying Super Soda’s existing locations. II. THE ECONOMIC RELATIONSHIP In 1974, Kellam installed gasoline dispensing equipment at the Super Soda Center in Salisbury, Maryland, and the parties entered into the first gasoline supply contract. Between 1975 and 1982, Nehi and Kellam entered into long-term gasoline contracts for nine more Super Soda Centers. Kellam today supplies ten of the sixteen Super Soda Centers located in Delaware and on the Eastern Shore of Maryland; the Super Soda Centers are Kellam’s largest independent customer for gasoline. The events that set in motion the current litigation can be traced to two moments in time. The first was 1974 when Nehi decided to sell gas at its Super Soda outlets and entered into a contractual relationship with Kellam. The second is 1979 when Kellam decided to integrate forward into the convenience store business. The contracts that were formed between the parties form the centerpiece of the current litigation and they represent an evolving relationship between a wholesaler and a retailer. The relationship is complicated by the entry of the wholesaler as a competitor, into the same line of business as the retailer. Kellam and Nehi jockeyed for position during three periods. First is the period from 1975 to May, 1981 when Kellam and Nehi operated under, for the most part, what were arguably requirements contracts. The second period, from June, 1981 until January, 1984 can be described as a “commissioned” agent system. On January 1, 1984, a third method of distribution, the “metering system” was implemented. From 1975 until May, 1981, Nehi purchased all of its requirements for several of its stores from Kellam Energy. (Answers to Request Nos. 1-7 of Kellam’s First Request for Admissions). Upon delivery of loads of gasoline to each Super Soda Center, Nehi took title to the inventory and had thirty days to pay for the gasoline. (Duncan Dep. at 381). Nehi set the retail price for the gasoline. These contracts can be termed requirements contracts. Nehi was late in paying Kellam for gasoline, and by April 30, 1981, owed Kellam almost $500,000 for its gasoline deliveries. After some discussion as to how to erase the debt, the parties agreed to switch to a “commissioned agent” sales system — the second phase of the relationship. (Polk Kellam Aff. 1113). Under this arrangement, Kellam owned the inventory in the ground and sold directly to consumers; Nehi acted as a sales agent for Kellam and received a commission on each gallon of gasoline sold. (Duncan Dep. at 410). Kellam sold directly to consumers and it established the retail price of the gasoline. (Polk Kellam Aff. Ü14). Nehi was free to vary the posted price to the extent of its commission, and occassionally Nehi charged less than the retail price initially posted by Kellam. (Duncan Dep. at 459-461). Duncan agreed to the new system, perhaps because oil prices rose rapidly in 1981 after decontrol, and it became expensive for Super Soda to own its own inventory. (Duncan Dep. at 410; Lord Dep. at 124). The commissioned agent system began in June, 1981 and continued until January 1, 1984. In January 1984, the relationship between Nehi and Kellam entered a third stage. The parties, at Duncan’s insistence, began to operate under a “metering” system. (Duncan Dep. at 509). Under this arrangement, Kellam owns the inventory in the ground, and sells the gasoline to Nehi as it flows through the dispensing equipment into the consumer’s vehicle. Because Nehi makes the sale to the consumer, that company sets the retail price of the gasoline. (Duncan Dep. at 447, 449). Since the inception of the “metering” system, Kellam never suggested what retail price Nehi should charge for its gasoline. (Duncan Dep. at 450). Nehi used the “metering” system to divert retail trade away from Kellam’s gasoline to the Super Soda unbranded pumps. Nehi set the price of Kellam gasoline at six to seven cents above cost (Duncan Dep. at 472), whereas a lower margin is ordinarily added to the unbranded gasoline. (Duncan Dep. at 473-4). The heart of the allegations made in Nehi’s amended counterclaim is that the retail gas prices posted at Super Soda Centers were not as low as the prices charged at other outlets which were in no way affiliated with Kellam. Nehi claims that its gasoline volume was drastically reduced, and it lost sales inside of its convenience stores as a result. Nehi’s troubles were Kellam’s profits. Nehi’s assertion is that Kellam intentionally priced its gasoline at high levels in order to facilitate the expansion of its Shore Stop convenience chain into Maryland and Delaware. Kellam, according to Nehi, tried to price its dealers out of existence in order to achieve monopoly power in a market defined as convenience stores that sell gasoline. III. THE SEVEN CONTRACTS AT ISSUE While Nehi’s counterclaim focuses on the competitive relationship between the parties, Kellam’s claim emphasizes their contractual dealings. Plaintiff’s complaint put at issue seven Kellam-Nehi contracts executed between May 1, 1975 and May 28, 1982. The gravaman of the complaint is that under these requirements contracts, Nehi breached its obligation to purchase all of its gasoline from Kellam. Nehi’s defense, however, is that six of the agreements violated petroleum price regulations instituted by the federal government in 1974. The regulations proscribed certain changes in the business relationship between wholesalers and retailers; these regulations were in effect from 1974 until repealed by President Reagan in 1981. Three provisions are important to this Motion. The first provision concerns the length of the contract agreement itself. The second provision involves a prohibition Kellam imposed on Nehi that forbade Nehi from installing additional gasoline dispensing equipment and sell another supplier’s gasoline. The third provision is Kellam’s option to have Nehi purchase the gasoline dispensing equipment upon the termination of the contract. At least one of these three provisions was in each of the six contracts executed between Kellam and Nehi during the relevant period. Nehi claims that all of these changes violate the federally imposed petroleum regulations because they represented major changes in the manner in which Kellam conducted its business and were made during a period when such changes were prohibited. There is evidence in the record that the six contracts signed by Kellam with the Super Soda outlets differed from prior practice. For example, the four agreements entered into most immediately prior to May 15, 1973, were all for the shorter five year term. (Ap. at A1-A10). But there is also evidence that Kellam did not change its business practice in disregard of the petroleum regulations. When the Arab oil embargo and concomitant price/allocation regulations occurred in 1973 and 1974, Kellam’s expansion into self-service was still in its infancy. As gasoline prices propelled customers to the self-service pumps, the retail outlets serviced by Kellam began to demand more elaborate installations. (Lucius Kellam, Jr. Aff. ¶ 8). Kellam responded by altering its standard form contract in 1976. This contract, however, merely formalized existing supply contracts and incorporated language from earlier contract. Of the six contracts subject to summary judgment, three were executed using the old contract form and three using the new contract form. Besides these six contracts, the parties entered into four more agreements with a total of ten Super Soda outlets. From the date each contract was signed until 1983, Nehi purchased from Kellam all of the gasoline sold at the ten locations with Kellam-owned equipment. (Answers to Requests Nos. 1-7 of Kellam’s First Request for Admissions). Nehi’s purchase of gas from other dealers in 1984 started the current controversy. IV. THE LITIGATION The opening volley in this protracted conflict was launched October 9, 1984, when Kellam filed a complaint alleging that Nehi had breached seven requirements contracts that call for Kellam to supply Nehi’s Super Soda stores with gasoline. What began as a minor skirmish escalated when Nehi filed a counterclaim on November 21, 1984, alleging not only that Kellam breached the contracts in question, but that Kellam was guilty of antitrust and common law Unfair Competition violations. Since then, pitched battles have escalated into a bitter general conflagration. The battle has now reached a turning point. On March 20,1987, defendants filed a Motion for Partial Summary Judgment on the breach of contract claims brought by plaintiff. On March 23, 1987, plaintiff filed a Motion for Summary Judgment on all of defendants’ counterclaims. After hearing oral argument on April 21, 1987, the Cross-Motions for Summary Judgment are now before the Court. DISCUSSION I. SUMMARY JUDGMENT IN COMPLEX LITIGATION Before the recent Supreme Court trilogy in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 455 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), summary judgment was the object of judicial hostility and disdain. See, e.g., Bushman v. Halm, 798 F.2d 651 (3d Cir., 1986) (summary judgment is a drastic remedy that prevents a claimant from presenting his cause of action to a jury of his peers). Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), was still the Court’s leading exposition of the standard to be applied by District Courts when ruling on summary judgment motions. In Adickes, the Court held that on a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. If the evidence were capable of supporting the interpretation advanced by the non-moving party, then summary judgment must be denied. Id.; Fed.R.Civ.P. 56(e); T.A.M., Inc. v. Gulf Oil Corp., 553 F.Supp. 499, 502 (E.D.Pa.1982). In Matsushita, the Supreme Court modified the summary judgment standard previously applied to antitrust cases. The Court concluded that “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” 106 S.Ct. at 1356. The Court held that when a moving party had satisfied its burden under Rule 56(c), the non-moving party opponent must do more than simply show that there is some metaphysical doubt as to the existence of a dispute of material fact. Rather, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Using these principles, the Court stated that if in a given factual context the non-moving party’s claim is “implausible — if the claim is one that simply makes no economic sense,” then the non-moving party’s burden to come forward with persuasive evidence to support its claim is greater than what would otherwise be necessary. Id. Where economic factors strongly suggest that a defendant in an antitrust action would have no motive to join a conspiracy or would otherwise not gain by engaging in the activities alleged, then the plaintiffs’ burden to come forward with specific facts that the defendants in fact participated in the alleged illegal activity is heightened. Matsushita applies to antitrust cases where a conspiracy is alleged — such as defendants’ price fixing counterclaim in the instant action. (Amended Counterclaim 11¶ 51-57). Matsushita and the two other cases in the trilogy “transformed the law governing motions for summary judgment.” Vanyo and Scott, “The Benefit of the Burden”, Current Problems In Federal Civil Practice 175 (1986). The new summary judgment landscape is easily summarized. The moving party (if a defendant) bears the burden of pointing out the absence of evidence supporting the claimant’s theory of recovery. The burden then shifts to the non-moving party to present sufficient evidence to allow a rational jury to find in its favor by the appropriate evidentiary standard. If, however, the claimant’s theory is inherently implausible, a greater evidentiary showing is required to meet this burden. The fact that the disputed issues involve questions of motive or intent, the evidence of which is in the hands of defendants, is not sufficient to defeat the motion. The claimant must produce affirmative evidence tending to support its claim; challenges to the moving party’s credibility are not sufficient to defeat the motion. The rationale of these decisions dictates that the federal court is to weigh the competing inferences of both parties; only where those inferences favor the plaintiff will the motion be denied. II. DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE CONTRACT CLAIM In moving for partial summary judgment on the breach of contract claims, Nehi maintains that the six contracts with Rellana violated federal petroleum regulations that forbid suppliers from altering their “normal business practices” in effect on May 15, 1973. Three suspect provisions were contained in some or all of the six contracts: (1) the length of the contract— fifteen years; (2) the requirements provision that obligated Nehi to purchase all of its gasoline from Rellam; and (3) the equipment purchase term. The Court finds that Nehi has not met its burden of demonstrating the absence of any material fact as to whether these three contractual provisions in themselves constituted a violation of the petroleum regulations. A. The Regulations and Their Interpretations Oil price control regulations were promulgated pursuant to the Economic Stabilization Act of 1970 which was a dramatic presidential initiative designed to cool an overheated and inflationary economy. When the 1973 Arab oil embargo ignited a further inflationary spiral that threatened the domestic economy, Congress enacted the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 et seq. (1976) (“EPAA”). The purpose of the Act was to stem shortages of petroleum products in the face of skyrocketing oil prices. The Act sought to freeze existing supplier/purchaser relationships and price margins as of 1973. All authority vested in the President under the EPAA was delegated to the Federal Energy Administration (“FEA”). The FEA issued mandatory petroleum price and allocation regulations imposing ceiling prices on petroleum products and limiting non-petroleum costs that could be passed through to the consumer. The FEA enforced these regulations through comprehensive record keeping and administrative audits. The regulations at issue require that “suppliers will deal with purchasers of an allocated product according to normal business practices in effect during the base period [1972] for that allocated product.” 10 C.F.R. 210.62 (1982). Other parts of the regulations then go on to define what constitutes a “normal business practice.” Suppliers, for example, may not extend “any preference or sales treatment” which has the effect of frustrating the purposes of the regulations — the purpose being the maintenance of “normal” business practice. The regulations also condemn any practice that imposes a price higher than is “customarily imposed,” stating specifically that such practices include “tie-in agreements.” The courts interpret the provisions of 10 C.F.R. 210.62 in two important respects. First, a modification of a “normal business practice” would have violated § 210.62(a) only “if the result had constituted a circumvention or frustration of its purposes or other regulations.” McWhirter Distributing Co. v. Texaco, Inc., 668 F.2d 511, 523 (Temp.Emer.Ct.App.1981). The purpose of the EPAA was “to prevent price gouging or price discrimination which might otherwise occur on the basis of current shortages.” Conf.Rep. No. 628, 93d Cong., 1st. Sess., reprinted in [1973] U.S. Code Cong. & Ad.News 2582, 2688, 2702 (1973). Regulations promulgated under the Act which purport to control more than the price charged for gasoline or the allocation of that product are beyond the scope of the agency authority. Atlantic Richfield Co. v. Zarb, 532 F.2d 1363, 1370 (Temp.Emer.Ct.App.1976); Shell Oil Corp. v. Federal Energy Administration, 527 F.2d 1243, 1246 (Temp.Emer.Ct.App.1975). Department of Energy rulings on the regulations establish the principle that in order to be actionable, the change in a “normal business practice” must involve either an attempt to get higher gasoline prices or a discrimination in supply. The case law provides secondly that, in judging what constitutes “normal business practices”, the courts should be guided by the conduct of the parties, not simply the contracts signed between the two parties. That the contracts should govern was specifically rejected by a district court interpreting the scope of 10 C.F.R. § 210.62: Citgo has argued that the only evidence of normal business practices [as defined by 10 C.F.R. 210.62] is the leases themselves, and that the normal business practice is to enter into leases teminable without cause or reason. The Court believes, however, that the actual and practical normal business practices of Citgo must be examined, for if Citgo has customarily not exercised its rights under service station leases, then that may constitute the normal business practice. Guyer v. Cities Service Co., 381 F.Supp. 7, 13 (E.D.Wis.1974). In the case at bar, all the evidence taken together suggests that there is a material issue of fact as to whether Kellam pursued its normal business practice. B. Changed Business Practices Nehi does not assert that Kellam actually charged Nehi higher prices for gasoline than allowed by regulation. This Nehi could not do because the Department of Energy audited Kellam regularly and found no violations. (Polk Kellam Aff. ¶ 4). Instead, defendants assert that during the regulatory period, Kellam changed three business practices in violation of 10 C.F.R. 210.62. These will be considered seriatim. 1. The Contracts’ Length Nehi claims that Kellam violated the regulations because the six contracts all contained fifteen year terms — these terms are longer than the contracts Kellam entered into during 1972 with other retailers. (Defendants’ Opening Brief at 20-21). But defendants cite no case to suggest that merely increasing the length of the contract constitutes a violation of the applicable regulations. If anything, common sense dictates that a longer term contract is in keeping with the spirit of the regulations which was to freeze the relationship between suppliers and retailers and ensure that retailers were assured an adequate supply of gasoline. Simply changing the length of a contract does not necessarily constitute a deviation from normal business practices. There is evidence on the record that rebuts Nehi’s contentions about what the normal length of Kellam’s supply contracts. Kellam always assessed each potential installation on its own merits, taking into account the size of the equipment investment, the likelihood that the retail outlet would stay in business and the estimated volume of gasoline. (Lucius Kellam Aff. If 9). The requirements language had no effect on the price Kellam charged Nehi for gasoline. These prices were subject to the price regulations and could only be increased in accordance with the cost based formula contained in the regulations. Nor did the exclusive dealing provision in any way permit Kellam to restrict the amount of gas that it was obligated to sell to Nehi. See Shell Oil, 527 F.2d at 1246. Where Kellam was to make a “top-of-the-line” equipment investment, the company always insisted upon a long term contract, whether of ten or of fifteen years. Contracts of long length are required if the company is to assume the risk of making a substantial investment in purchasing and installing underground tanks and equipment. Kellam has contracts of many different lengths. Kellam preferred a fifteen year contract for the Super Soda Centers because the locations involved were of questionable economic viability and the investments were considered unusually risky. (Lucius Kellam Aff. fl 10). The investment was particularly risky because Kellam installed, at Nehi’s insistence, top-of-the-line equipment. Although Kellam did not want to make these investments because they were considered too much of a cash outlay, Kellam went ahead anyway. (Floyd Dep. at 477). Because Duncan wanted a top-of-the-line investment at a questionable location, Lucius Kellam decided that a long-term contract of fifteen years was necessary for Kellam to undertake the risk. (Lucius Kellam Aff. ¶ 10). Duncan never objected to a fifteen year term. (Kellam Aff. Ml 10 and 11). Finally, because top-of-the-line gas installations were increasing rapidly in price, Kellam felt that it needed additional years in its long-term contracts to recoup the increased costs. (Lucius Kellam Aff. Ml 8 and 9). Under the reasoning of Guyer, 381 F.Supp. at 13, the court may look beyond the language of the contract to determine what is a normal business practice for purposes of 10 C.F.R. 210.62. Use of a fifteen year term rather than a ten year term is not an alteration of a business practice that would have violated 10 C.F.R. 210.62. If anything, the increase in contract length to fifteen years was a benefit to Nehi because gasoline was in short supply during that period and the contract guaranteed defendants a steady source of supply. (Lucius Kellam, Jr. Aff. ¶ 10). 2. The Requirements Provision Nehi also suggests that the provisions in six of the contracts requiring Nehi to purchase all of its gasoline from Kellam was a change in a normal business practice. Nehi alleges that it was not a normal Kellam practice during the base period of 1972 to require retailers to purchase all of their gasoline from Kellam. To prove this proposition, Nehi relies on the language of the contract. But there is ample evidence in the record to suggest that Kellam’s normal business practice prior to 1972, and afterward, was to require the dealers to whom it provided gasoline dispensing equipment free of charge to purchase from Kellam all gasoline sold at the location under contract. Defendant Duncan’s own testimony establishes that he understood his contractual obligation was to purchase all gasoline sold at the first Super Soda Center in Salisbury from Kellam. (Duncan Dep. at 377). Duncan further acknowledges that he believed all terms and conditions of the subsequent contracts to be the same as the intial one. (Duncan Dep. at 399-400). Floyd confirmed Duncan’s testimony by acknowledging that he told Duncan that Nehi would be obligated to purchase all gasoline sold at this Super Soda Center from Kellam. Duncan specifically agreed to this condition. (Floyd Dep. at 512-13). Kellam representatives made it a practice of informing retailers with whom the company contracted that they were entering into a requirements arrangement. (Lucius Kellam Aff. ¶ 7). The regulation prohibiting changes in the gasoline suppliers’ “normal business practices” applies to the practices that the supplier actually employed during the base period, not what its contracts state. Guy-er, 381 F.Supp. at 13. The 1976 change in Kellam’s contract form, therefore, did not violate 10 C.F.R. 210.62 because it did not alter Kellam’s established practice of treating its gasoline supply contracts as requirements arrangements. 3. The Equipment Purchase Term To prove a violation of the petroleum price regulations, Nehi claims that “Kellam changed the price of the equipment to be purchased under the contract option from one based on depreciated value to one based on replacement cost, plus the cost of installation.” (Opening brief at 6-7) The flaw in this argument is that the operative contract term does not speak of replacement costs. The contract states: Any equipment attached to the realty, such as underground equipment, shall, if Kellam so desires, be purchased by Buyer from Kellam at the then current price for similar equipment, taking into consideration the cost of installing such equipment____ Arguably, the phrase “at the then current price for similar equipment” means the market value of tanks of the same age and in the same condition — not replacement cost. (Polk Kellam Affidavit ¶ 17). Defendants have not established that Kellam changed its business practice from one in which equipment could be repurchased at depreciated cost to one based on full replacement cost for new equipment. For the foregoing reasons, Defendants Motion for Partial Summary Judgment on the six contracts claims is denied. The plaintiff's breach of contract action as to all contracts at issue between the parties survives and will be heard at trial. III. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE BREACH OF CONTRACT; THE COMMON LAW UNFAIR COMPETITION; AND THE ANTI-TRUST COUNTERCLAIMS A. The Contract Counterclaim Count I of Nehi’s Amended Counterclaim alleges that Kellam breached the seven requirements contracts between the parties. Three different breaches are alleged: (1) Kellam breached an implied contractual obligation not to compete with Nehi; (2) Kellam breached an alleged oral agreement to keep Nehi “competitive” which Nehi interpreted to mean that Nehi would be charged prices as low or lower than those received by any other retail gasoline outlet; and (3) Kellam breached the written pricing terms of the requirements contracts. Summary Judgment is denied on the last two alleged breaches. 1. The Covenant Not to Compete Although not clear from the Amended Counterclaim or from the briefs, the Court believes that Nehi’s position is that somehow the Court should read into the Nehi-Kellam contracts an implied covenant that Kellam will not, through its Shore Stop Outlets, compete with Nehi. A contractual term, however, is not lightly implied, and will only be inserted if the drafters would have directed their attention to it. Gould v. American Hawaiian Steamship Co., 331 F.Supp. 981, 990 (D.Del.1971). See also Danby v. Osteopathic Hospital As’n., 101 A.2d 308, 313 (Del.Ch.l953).(“A promise will not be read into a contract unless it arises by necessary implication from the provisions thereof.”). A covenant not to compete is perhaps the most disfavored in the law because its effect “is to create a limited geographic monopoly. As such, it is a restraint on trade and will be enforced by the court only if the covenant is positively expressed. Even then, it will be narrowly construed.” Howard D. Johnson Co. v. Parkside Development Corp., 169 Ind.App. 379, 348 N.E.2d 656, 660 (1976). See also C. Pappas Co., Inc. v. E.J. Gallo Winery, 610 F.Supp. 662, 667 (E.D.Cal.1985), aff'd., 801 F.2d 399 (9th Cir.1986). Delaware courts rarely recognize covenants not to compete. In Rogers v. Jones, 150 A.2d 327 (Del.Ch.1959), a landlord sought to enjoin one of its tenants from opening a business identical to the one the tenant operated on the landlord’s property. The court dismissed the suit, stating: “admittedly, there is no provision in the lease prohibiting defendant from opening up a business similar to that which was leased to defendant. Such restraints are not readily implied.” Id. at 328. See also Galluci v. Shue, 182 A.2d 656 (Del.Ch.1962); Dickey v. Holiday Inns of America, Inc., 226 So.2d 406 (Fla.App.1969) (the court would not imply a covenant not to compete between a Holiday Inn, as a franchisor, and one of its franchisees). There is no evidence on the record that either Nehi or Duncan or Kellam had any intention of arranging a covenant not to compete. Nehi has the burden of proving that both parties intended such a covenant and would have assented to the provision had it come up. See Martin v. Star Publishing Co., 126 A.2d 238, 244 (Del.Sup.Ct.1956). Nehi offers no cases to support its theory of an implied covenant not to compete. The one case it cites, Antoine v. F.J. Boutell Driveaway Co., Inc., 351 F.Supp. 1271 (D.Del.1972) spoke only of covenants generally in the context of a fact pattern involvng an implied covenant of reasonable use. Id. at 1275. In concluding that a court generally may imply such a covenant — without addressing the more rigorous standard for implication of a covenant not to compete — the court held that a covenant could be found “in the light of the surrounding circumstances.” Id. Even if this were regarded as the law, there is nothing in the record to suggest that the parties intended by the surrounding circumstances not to compete. Accordingly, the Motion for Summary Judgment on the contract counterclaim regarding a covenant not to compete is granted. 2. The Oral Contract Modification In its Amended Counterclaim, Nehi contends that Kellam breached the contracts between the two parties because Kellam made an oral agreement to keep Nehi “competitive” which Nehi interpreted to mean that Nehi would be charged prices as low or lower than those received by any other retail gasoline outlet. Nehi claims that Kellam breached this agreement. This problem of interpretation arises because the term of the contract regarding what price Kellam will charge Nehi for the gasoline it delivers is ambiguous. The contracts for the seven Super Soda Stores leave open the price terms, stating only that Kellam will provide gas to Nehi at the same price as that provided to other Kellam buyers "in the same classification” as Nehi at the time and place of delivery. During the negotiations proceeding the signing of the contracts for the Salisbury Super Soda Center, Allen Floyd and Lucius Kellam, Jr., officers of Kellam, promised to keep Duncan and Nehi “competitive.” (Duncan Dep. at 371). Duncan interpreted that statement to mean that Nehi would be charged gasoline prices as low or lower than those charged on the spot market by any other supplier, regardless of Kellam’s cost of product. (Duncan Dep., at 372). Nehi contends that Kellam breached this oral pricing agreement because, since April, 1982, other gasoline retailers have had lower street prices than those posted at the Super Soda Centers. (Duncan Dep. at 475, 478; Amended Counterclaim ¶ 41(b)(iv)). All seven contracts signed by the parties state explicitly that the contracts constitute the “entire” understanding or agreement between the parties. (Ap. at A13-A24). Ordinarily, the parol evidence rule should bar evidence which would vary or alter the written terms of a contract. See 6 Del.C. § 2-202. Nehi counters, however, that parol evidence should be allowed because the pricing terms of the contracts are left open and must be supplemented pursuant to the open price provisions of the Uniform Commercial Code as set forth in 6 Del.C. § 2-305. But not every contract which does not specify an exact price is subject to modification under § 2-305. When the contracts stipulate that the price will be set according to a particular standard, Section 2-305 has no role to play and parol evidence will be excluded. In T.A.M., Inc. v. Gulf Oil Corp., 553 F.Supp. 499, 509 (E.D.Pa.1982), Judge Pollack crafted an exception that specifically excludes parol evidence when two commercial parties contract, with an open price term, in good faith. Pollack’s exception concerns precisely the type of petroleum contracts at issue in this litigation. His reasoning was that subsection 2 of Section 2-805 of the U.C.C. allows for two parties to a contract to agree that a price be fixed by the seller in good faith. Id. at 509. The contracts at issue here are such agreements. They allow the seller, Kellam, to supply Nehi with gasoline at a price established by Kellam from time to time “for buyers in the same classification” as Nehi. This provision is almost exactly identical to the petroleum sales contract in Gulf Oil where the contract stipulated that the seller deliver at the “seller’s price in effect at the time and for the place of delivery.” Id. at 509. But even though this case is quite similar to Gulf Oil, there is one critical difference which will allow the Court to consider parol evidence. In dicta in Gulf Oil, Judge Pollack noted that “the plaintiffs have not alleged that the prices they were asked to pay differed from those demanded of other Gulf dealers____” Id. at 509. Pollack suggested that if a plaintiff alleged that it was charged prices higher than those asked of other retailers, this may indicate bad faith, and the court may consider parol evidence on the question of the open term of the contract. Id. Here, unlike in Gulf Oil, Nehi specifically alleges that the prices they were asked to pay differed from the prices that Kellam demanded of other convenience store operators. (Amended Counterclaim 1146 and 111141(b)(iv) and 41(c)). Moreover, there is evidence on the record that Kellam gave rebates to other convenience stores, once the commission sales system was in place, effectively offering lower price terms to retailers other than Nehi. (Floyd Dep. at 90-93; Floyd Exhs. 4, 5, 12, 18). There is no evidence here, as there was in Gulf Oil, that the retailers acceded to open price terms that favored third parties. Gulf Oil at 509-510. Duncan complained almost immediately of the system, and began to install other equipment. (Duncan Dep. at 475, 478). The Court will employ U.C.C. section 2-305, the so called “gap filler” provision, to hold that because the contracts lack specific price terms, they are not a complete statement of the parties’ respective rights and duties. Therefore, the Court will reform the contract under 6 Del.C. § 2-305 and will allow the parties to present parol evidence about what the open price term of the contract means. Specifically, the trier of fact will have to determine whether Kellam had a contractual obligation to guarantee Nehi lower gasoline prices than any other retail outlet in Nehi’s market area. This, in turn, will hinge on a factual determination as to what Kellam meant when it promised to keep Nehi “competitive.” 3. The Written Contract Terms Nehi also contends that Kellam breached the written terms of paragraph three of the contracts between the two parties. This paragraph is an open price term that obligates Kellam to sell to Nehi petroleum at “the price established from time to time by [Kellam] for buyers in the same classification as [Nehi] in effect at the time and place of delivery to [Nehi].” This question is purely one of fact as to whether Nehi received the same price terms as other dealers in the same classification. This is a different question from that posed by consideration of the written contract as modified by Kellam’s promise to keep Nehi competitive. Here, the trier of fact may find that Kellam breached its contract if Kellam sold petroleum to Nehi at a higher price than that offered in only one convenience store in the relevant market. To prove a breach of the written contract, however, Nehi must demonstrate that Kellam charged Nehi a higher price than it charged buyers in the same classification as Nehi. Although this is a more elaborate inquiry, Nehi has produced some evidence that buyers in the same classification received a lower price than Nehi did. For example, the record contains evidence that Kellam offered price rebates and commission discounts to other convenience stores. (Floyd Dep. at 90-93; Floyd Exs. 4, 5,12,18). There is sufficient evidence in the record such that the Court cannot grant summary judgment on the contract claims. The Court will grant summary judgment on the Contract Counterclaim insofar as it suggests that Kellam breached an implied covenant not to compete. But the Court denies summary judgment on the Contract Counterclaim as a whole, and will allow Nehi to prove at trial that Kellam either breached the written terms of the contract or breached an oral modification thereto. B. The Unfair Competition Counterclaim Count II of the Amended Counterclaim alleges that Kellam engaged in “Unfair Competition” with Nehi. (Amended Counterclaim ¶ 48). This Count fails to state a claim because the actions complained of by defendants are outside the scope of Delaware’s Unfair Competition Law. Unfair Competition is “a convenient name for the doctrine that no one should be allowed to sell his goods as those of another.” William A. Rogers, Ltd. v. Majestic Products Corp., 23 F.2d 219, 220 (D.Del.1927). This tort was recognized at common law in Delaware until 1965 when the Delaware General Assembly enacted the Deceptive Trade Practices Act, 6 Del.C. §§ 2251 to 2536. This statute codified the common law of Unfair Competition. Young v. Joyce, 351 A.2d 857, 859 (Del.Sup.Ct.1975); Griffith v. Brown P. Thawley, Inc., slip op. No. 81C-Mr-9 (Del.Super.Ct.1983). Section Two of the statute prohibits twelve specifically enumerated trade practices. To the extent Nehi’s counterclaim states an allegation based on this statute, it must be dismissed because Nehi signed a stipulation to the effect that none of these practices is at issue in the instant litigation. (Duncan Dep. at 677). Nehi counters that their Unfair Competition count is a common law action that survives the statute. They point to language contained in another part of the Deceptive Trade Practices Statute: “(c) This section does not affect trade practices otherwise actionable at common law or under other statutes of this State.” 6 Del.C. But Nehi has failed to cite a case suggesting that the common law tort of Unfair Competition survived the statute. And even if Nehi did, the Court does not have to reach that question. Instead, the Court finds that Nehi has not alleged or offered proof of any set of facts that could make out a claim for Unfair Competition. Although the tort of “Unfair Competition” encompasses many practices, at common law these practices were limited. At least one court squarely holds that common-law Unfair Competition must be grounded in either deception or appropriation of the exclusive property of the plaintiff. Societe Comptoir De L’Industrie Cotonniere Etablissements Boussac v. Alexander’s Dep’t. Stores, Inc., 299 F.2d 33 (2d Cir.1962). False marketing, appropriation of ideas, purloining of trade secrets, commercial bribery, intimidation, and harrassment all comprised Unfair Competition at common law. J.O. vanKalinowski, 1 Anti-trust Laws And Trade Regulation, § 1.03[3] (1986). See also Lumley v. Gye, 118 Eng. Rep. 749 (1853); Bowen v. Hall, 6 Q.B.D. 333 (1881). But see Prosser, Torts 981 (3d ed. 1964). None of these violations were alleged, nor are there any facts on the record to prove them. Summary judgment is granted on defendants’ Unfair Competition counterclaim. C. The Antitrust Counterclaims 1. Tying Count IV of the Amended Counterclaim alleges that the requirements contracts constitute illegal tying arrangements. A tying arrangement is one in which the availability of one item (the “tying” item) is conditioned upon purchase or rental of another item (the “tied” item). Like other agreements in restraint of trade, these arrangements may be subject to antitrust scrutiny under the broad Sherman Act rule of reason. Nehi asserts that it was forced to accept Kellam owned dispensing equipment in order to purchase Kellam’s gasoline. (Amended Counterclaim, II60). Gasoline dispensing equipment is alleged to be the “tied” or “forced” product. (Fenili Dep. at 143-44; Lane Dep. at 279). Wholesale gasoline is asserted to be the “tying” or “dominant product”. (Fenili Dep. at 143; Lane Dep. at 278). Nehi contends that the alleged tying arrangements violate Section 3 of the Clayton Act and Section 1 of the Sherman Act. (Amended Counterclaim, 1161). Tying restrictions are generally challenged using a rule of presumptive illegality fashioned under the Sherman Act Section 1 and the Clayton Act Section 3. While the rule is one of presumed illegality, it is commonly — and misleadingly — referred to as the “per se” tying standard. The per se test was recently reaffirmed by the Supreme Court in Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984) (four justices would have supplanted the per se analysis with a rule of reason standard). The per se standard requires proof of four elements: (1) that the purportedly tied and tying items entail “separate product markets”; (2) that the availability of the tying item has been “conditioned” upon purchase or rental of the tied item; (3) that the party imposing the tie has sufficient “economic power” in the tying product market (gas) to “appreciably restrain free competition” in the tied market (gas pumps); and (4) that a “not insubstantial” amount of commerce in the tied item is affected by the arrangement. See Jefferson Parrish, id.; United States Steel Corp. v. Fortner Enterprise, Inc., 429 U.S. 610, 617-19, 97 S.Ct. 861, 866-67, 51 L.Ed.2d 80 (1977). Even assuming that all four elements are met, the defendants may still justify the restriction by proving its overall competitive reasonableness; hence, making the per se test different from true standards of per se illegality and more like one of presumed illegality. See Susser v. Carvel Corp., 332 F.2d 505, 520 (2d Cir.1964), cert. dismissed, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284 (1965). The Court finds that Nehi cannot prove all four elements of its tying counterclaim, and therefore will grant summary judgment. The parties do not contest that the purportedly tied and tying items — gas and gas pumps — entail separate product markets. But, Nehi has failed to make an inference either that it was coerced to purchase the tied item or that it was even sold the item. a. Sale of the Tied Product As a precondition to a tying claim, the buyer must actually purchase or lease the unwanted product. Grandstaff v. Mobil Oil Corp., 1979-1 Trade Cas. (CCH) ¶ 62,421 at 76,538 (E.D.Ca.1978). Merely accepting something provided for free does not constitute an impermissible tie-in. Directory Sales Management Corp. v. The Ohio Bell Telephone Co., 1986-2 Trade Cas. (CCH) ¶ 67,250 at 61,289-90 (N.D.Oh. 1986). See Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1327 (5th Cir.1976). Nothing in the record indicates that Nehi either leased or bought any gasoline dispensing equipment from Kellam. The contracts between Kellam and Nehi expressly provide that Kellam “agrees to loan” to Nehi the gasoline pumping equipment, with an option to have Nehi purchase the equipment from Kellam at the end of the contract. (Ap. at A10-A20). Nehi paid no money for the equipment, nor did it ever possess legal title, dominion or control over the goods. Nehi alternatively maintains that because the contracts contain an option to sell the underground tanks at the end of the contract term, there is actually a sale of the tied product. (Answering Brief at 102). But the purchase of the tied product must be made contemporaneously with the sale of the tying product. Prior sales or prospective' purchases are insufficient to give rise to an actionable tying arrangement. A.I. Root v. Computer Dynamics, Inc., 806 F.2d 673 (6th Cir.1986); Fox Motors, Inc. v. Mazda Distributors (Gulf), Inc., 806 F.2d 953, 958 (10th Cir.1986). Nehi also suggests that the equipment loan was actually a lease because Kellam calculated a rate of return on its investment. (Floyd Dep. at 155-157). But no evidence supports the inference that somehow Kellam established a rate of return on the gasoline pumps loaned to Nehi. The deposition testimony offered by a Kellam officer, Allen Floyd, establishes only that there may have been some documents indicating that the gas pump equipment was amortized over a certain number of years. But there are no documents to support this vague assertion. Moreover, to establish that the equipment lease was actually a loan, Nehi must prove that the price of gasoline secretly included an equipment rental fee. Directory Sales Management, 1986-2 Trade Cas. (CCH) at 61,289. All the evidence on the record refutes any such notion. Kellam’s representatives testified that its gasoline prices were set in accordance with the retail market. This resulted in Kellam never having an established margin between its buying price and its selling price. (Polk Kellam Dep. at 106). Occasionally, Kellam would earn no margin or even negative margins (losses) on gasoline sold through its equipment. (Polk Kellam Dep. at 106, 231-32). Without any established minimum, there can be no inference of secret rental payments; Nehi cannot support the inference of a sale or lease of the gasoline equipment. b. Coercion The record also indicates that Nehi cannot establish the second element of a tying claim — that the availability of the tying item has been “conditioned” upon purchase or rental of the tied item. The Courts interpret this requirement to mean that the buyer was coerced into purchasing the tied item. In Ungar v. Dunkin Donuts of America, Inc., 531 F.2d 1211, 1218 (3d Cir.1976), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), the Third Circuit held that in order to establish an illegal tie, it is not enough to show that the seller has sufficient economic power and that the two products were purchased together. A customer alleging an illegal tie-in must prove that he was coerced into buying the tied product. Nehi suggests that Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978 eliminated proof of coercion as an essential element of a tying claim. But a close reading of Bogosian and subsequent Supreme Court precedent indicates that the case did not repudiate the coercion requirement. A recent Third Circuit case emphasized that “a tying arrangement requires a seller with sufficient economic power in the tying product to coerce the buyer into also buying an unwanted tied product.” Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 162 (3d Cir.1984), citing Ungar. All Bogosian held was is that a prima facie case of coercion is established when a contract expressly conditions the sale of one product on the purchase of another. 561 F.2d at 452. The contracts do not state that in order to get Kellam gasoline, Nehi must use Kellam equipment. Nehi is free to pump Kellam gas through its own or someone else’s dispensing equipment; Nehi only is obligated to purchase all gasoline sold at certain Super Soda Centers from Kellam. Even Bogosian’s narrow holding is no longer valid after the Supreme Court reconsideration of per se tying agreements in Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). The Court there suggested that direct proof of coercion is essential to maintain an action for an illegal tie-in. “Our cases have concluded that the essential characteristics of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force them into the purchase of a tied product” suggested the Court. “When such ‘forcing’ is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated.” Id. at 12-13, 104 S.Ct. at 1558. This language led the Bogosian District Court to conclude that the Supreme Court had probably overruled the Third Circuit’s holding that direct proof of coercion is unnecessary in certain limited circumstances. Bogosian v. Gulf Oil Corp., 596 F.Supp. 62, 76 (E.D.Pa.1984). There is no evidence on the record that Kellam refused to sell gasoline unless Nehi consented to the installation of Kellam-owned equipment. Nor is there any evidence that Nehi would have preferred to outlay its own capital to purchase its own tanks and gasoline dispensing equipment. The only evidence on the record suggests that Nehi was amenable to the use of Kellam equipment because it did not have to undertake an investment. For example, defendant Duncan recalls that prior to his initial meetings with Kellam officers — Allen Floyd and Lucius Kellam, Jr. — one of his acquaintances in the business suggested that Duncan try Kellam Energy for his initial foray into the gasoline business because they would readily put in installations. Duncan stated that “[i]t was agreed at the end of that meeting that we would proceed with the installation.” (Duncan Dep. at 231 and 371). Soon after, Duncan approached Kellam for a contract at another location. At the second meeting, it appeared that Nehi, not Kellam, was aggressively pursuing a contractual arrangement whereby Kellam would install its equipment. “[T]hey [Kellam] were more acquiescent to install additional locations at any of our stores, under the same conditions and terms____” (Duncan Dep. at 398-99). There is no evidence that the tied product — gas pumps — was either sold or leased to Nehi or that Nehi was coerced into accepted the tied product. Nehi’s tying counterclaim makes little common sense. The corrosive impact of a tying arrangement is that it restrains competition in the market for the tied product. Susser v. Carvel Corp., 332 F.2d at 511. The customer who purchases the products linked together is injured because he either pays too much for the “tied” product or receives inferior goods. Pogue v. International Industries, Inc., 524 F.2d 342, 344 (6th Cir.1975). It appears improbable to this Court that an actionable tie-in exists when a customer receives goods of admittedly superior quality without having to make any up-front investment. It is equally improbable to believe that a buyer would have to be “forced” to accept such an arrangement. It is this forcing that renders tie-in arrangements subject to antitrust scrutiny. And the Supreme Court has cautioned against entertaining claims that are based on no “plausible” or “rational economic motive.” Matsushita, 106 S.Ct. at 1360. This is precisely such a claim and therefore summary judgment will be granted. 2. Exclusive Dealing Count V of the Amended Counterclaim alleges that the exclusive dealing provision of each requirements contract between Nehi and Kellam violates Section 3 of the Clayton Act. 15 U.S.C. § 14 (1976). (Amended Counterclaim 1164). Each contract obligates Nehi to purchase from Kellam all petroleum products sold at that particular Super Soda Center. In return, Kellam supplied the outlets and loaned Nehi the necessary gasoline dispensing equipment. Between the time the first contract was signed in May, 1975 and March, 1983 all gasoline sold at the seven Super Soda Centers was actually purchased from Kellam. (Defendants’ Answer to Requests Nos. 1-7 of Plaintiff’s First Request for Admissions). a. Whether An Arrangement Existed The first inquiry in an exclusive dealing claim is whether an actionable exclusive dealing arrangement existed between the parties. T.A.M., Inc. v. Gulf Oil Corp,, 553 F.Supp. at 504, quoting Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 at 327, 335, 81 S.Ct. 623 at 628, 632, 5 L.Ed.2d 580. “An exclusive dealing arrangement is one in which the seller will only deal with the buyer if the buyer agrees to purchase all of its requirements from the seller.” Satellite Financial Planning Corp. v. First National Bank of Wilmington, 643 F.Supp. 449, 452 (D.Del.1986), citing Standard Oil Co. v. United States, 337 U.S. 293, 296, 69 S.Ct. 1051,