Full opinion text
OPINION GOETTEL, District Judge: One of the phenomena of the last half of the Twentieth Century has been the extent to which economic battles have been waged in the courthouse rather than in the marketplace. On the basis of many thousands of pages of briefs, affidavits and exhibits, we are called upon to decide the motions and cross-motions for dismissal and/or summary judgment as to plaintiffs’ nine causes of action and the defendants’ nine counterclaims in this case which, at its core, is an antitrust action, but which includes a veritable potpourri of legal claims. Procedural Background and Jurisdiction Plaintiffs H.L. Hayden Company of New York, Inc. (“Hayden”) and Schein Dental Equipment Corp. (“Schein D.E.”) commenced this action against defendants Siemens Medical Systems, Inc. (“Siemens”), Healthco International, Inc. (“Healthco”), and Patterson Dental Co. (“Patterson”) for alleged violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and the Robinson Patman Act, 15 U.S.C. § 13(a), (c), (e) and (f). We have jurisdiction pursuant to 15 U.S.C. §§ 4,15, 22 and 26. Plaintiffs also assert pendent state claims of alleged Donnolly Act (N.Y. Gen. Bus. Law § 340) violations, interference with contractual and business relations, disparagement of business reputation, unfair competition, and prima facie tort. Defendant Siemens has counterclaimed, alleging that plaintiffs have violated section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), sections 349, 350, 350-a, 368-d, and 393 of the General Business Law of the State of New York, and common law principles prohibiting unfair competition, and have tortiously interfered with contractual relations. Furthermore, defendant Siemens claims that plaintiffs have engaged in fraud and defamation to injure Siemens. Defendant Healthco has raised a single and novel unfair competition claim against plaintiffs for “free riding.” After two years of discovery, lengthy and frequent conferences, thousands of pages of pleadings, depositions, motions, orders, memoranda decisions, affidavits and exhibits, the parties move to dismiss or for summary judgment on the claims or counterclaims asserted against them. Maintaining some semblance of order and clarity in discussing our decisions in this case is a daunting task. Liberal use of headings and subheadings will make our assignment, and hopefully the reader’s, easier. I. Facts Defendant Siemens is the American division of Siemens Aktiengesellschaft (“Siemens AG”) of West Germany, with headquarters in Iselin, New Jersey. Siemens’ principal product line in the United States is dental x-ray equipment. Its products are high quality and relatively high-priced, and Siemens fancies itself as the “Mercedes” of the dental x-ray equipment market. Although Siemens as a supplier is somewhat unique (to the extent that it truly may be the “Mercedes” of dental x-rays), the x-ray market itself is highly competitive and provides consumers with a wide range of product choices and prices. Siemens sells two types of dental x-ray equipment: (1) intraoral, which takes pictures of quadrants of the patient’s mouth; and (2) panoramic, which shows the patient's entire mouth and jaw. Both types of dental x-ray equipment are complex, consisting of hundreds of integrated circuits and computer microchips designed to produce high quality images while exposing patients to the least possible amount of radiation. The equipment is subject to regulation under the Radiation Control for Health and Safety Act of 1968, 42 U.S.C. § 263b et seq., and regulations promulgated thereunder. There is no material dispute as to the fact that assembly, installation, calibration and servicing all affect the quality and possible safety of a dental x-ray. Siemens originally marketed its dental x-ray through its own sales personnel. In 1975, in an effort to reduce costs, Siemens instituted a new “Marketing Program” under which it began to sell its products through a nationwide network of authorized, full-service dealers. “Full-service dealers” assemble, install, calibrate, and maintain dental x-ray equipment, visit dentists’ offices to maintain personal contact with dentists and their staffs, and educate customers about the equipment and its value. Providing the full range of these services obviously adds to the dealers’ costs of doing business. Since institution of its “Marketing Program,” Siemens relies on its full-service dealers to interface directly with dentists and to promote Siemens’ products. Under this plan, Siemens would honor warranties for its dental x-ray equipment only if the authorized retailer who sells the equipment also assembles, installs, calibrates and services that product. By 1982, there were 335 authorized Siemens dealer locations. Defendants Health-co and Patterson, the two largest national chains operating as full-service dealers of retail dental equipment, are also two of Siemens’ largest suppliers. In the fiscal year 1982 (October 1981 through September 1982), Healthco represented roughly 30% of Siemens’ sales to dealers and Patterson accounted for approximately 22%. Schein D.E.’s Mail Order Operation Plaintiff Hayden is a dental equipment dealer, having its principal place of business in Great Neck, New York, and serving the metropolitan New York area. In 1979, Marvin Schein (“Schein”) bought 50% of Hayden and, in 1980, he became its sole owner. Hayden, which sells various brands of dental equipment, had become a full-service dealer for Siemens in 1978. As such, Hayden not only sold Siemens’ x-ray equipment, but it also assembled, installed, calibrated, and serviced that equipment and provided instructions on use to the dentists and dental staff. After Schein bought Hayden, he founded Schein D.E. as a national mail order operation for the discount sale of dental equipment. Schein D.E., which also operates out of Great Neck, New York, sells most major brands of dental equipment. Through his control of Schein D.E. and Hayden, Schein began to sell Siemens’ equipment by mail order. As a mail order house, Schein D.E. has no sales force, service staff, or showroom. Although Schein D.E. does not assemble, install, calibrate or service the equipment it sells, it offers a toll-free number for dentists to use for their inquiries and also provides the names of independent service organizations in the dentist’s area. Given its low overhead costs, Schein D.E. is able to extend discount rates to its customers. For example, Schein D.E. sold Siemens’ products for between 20-25% less than authorized, full-service dealers. In 1981, Schein invited dental equipment manufacturers and suppliers to provide marketing information to him for inclusion in the first edition of his mail order catalog. The Schein D.E. catalog is arranged alphabetically and includes photographs, a brief description of the product, and pricing information. Dentists call Schein D.E.’s toll-free number for additional information and assistance. Schein D.E. personnel explain the different features offered by different types of dental x-ray equipment and sometimes make recommendations to dentists. Every name brand of dental equipment agreed to appear in Schein D.E.’s first catalog, which reached over 50,000 dentists in 1982. Siemens either expressly approved its inclusion in this catalog, or, once aware of its inclusion, cooperated with Schein D.E. For example, Siemens authorized its warehouse to drop-ship dental equipment directly to Schein D.E.’s customers, who were outside the New York area that Hayden covered, rather than to Hayden directly, even though Hayden was technically the customer. Furthermore, a split commission was authorized between the Siemens representative for Hayden, Lee Mergentime, and the Siemens representative in the area to which Schein D.E. had made the sale. Siemens’ Authorized Dealership Agreement On April 25, 1983, David Vitt, Siemens’ Vice President of the Dental Division in the United States, wrote all Siemens dealers, including Hayden, reaffirming Siemens’ policy that only authorized dealers and their agents sell and install Siemens’ equipment. The letter further expressed Siemens’ overall marketing and technical concerns, noting in pertinent part: You are and remain an authorized dealer for Siemens Dental Products because of your reputation as a full service dealer, capable of promoting, selling and installing Siemens Products, consistent with [the] quality associated with these Products and our trade name. Sales by you to third parties, including mail order houses, for redistribution are not allowed since Siemens has a legal obligation and a dedication to its good will to monitor sales and installation of its Products in a quality manner. That same day, Vitt also wrote Schein and requested that he remove all Siemens products from the Schein D.E. catalog. On May 3, 1983, Hayden expressed its willingness to comply with Siemens’ policy. On August 4, however, Siemens sent Hayden a letter declaring that, due to repeated transgressions (even after its assurances to the contrary, it was discovered that Hayden had filled Schein D.E. orders in June and July), Siemens would no longer accept purchase orders from Hayden. Siemens continued to supply Hayden despite the August 4th ultimatum, because Hayden represented that Schein D.E. would forward leads to Hayden, which would then do all the selling. Hayden also provided further assurances that Siemens’ equipment was being sold to dentists in the New York area, which Hayden legitimately covered, when in fact it is clear that this was yet another Hayden misrepresentation. On August 30, 1983, Siemens sent to all of its dealers a uniform “Authorized Dealership Agreement” specifying what services and other requirements Siemens considered essential. Consistent with its 1975 “Marketing Program,” the Agreement required Siemens dealers to maintain a qualified sales and service team capable of assisting customers in ordering, office design, financing, installation, and servicing. Siemens also insisted that its dealers stock spare parts, as well as installation and servicing tools, and that its dealers carry adequate products liability and risk insurance. Dealers signing the Agreement also obligated themselves to promote, install and service Siemens’ equipment. The Authorized Dealership Agreement neither imposed any requirement with respect to dealers’ pricing nor granted any dealer an exclusive territory. No reference was made directly to mail order sales. All Siemens dealers except Hayden signed the Authorized Dealership Agreement, with only minor changes. Hayden refused to sign unless Siemens substantially altered the Agreement. Siemens and Hayden negotiated over a three-month period in an effort to reach an accommodation. On October 28, Schein wrote Siemens, advising that Schein D.E. was sensitive to Siemens’ concerns and hoped something could be worked out. By late November, Siemens had determined that further negotiations were futile, and Hayden was terminated. In January of 1984, plaintiffs brought this action. II. Plaintiff’s Causes of Action Plaintiffs maintain that the 1983 Authorized Dealership Agreement was a transparent attempt by Siemens to eliminate Schein D.E. and mail order discounting. Of course, the policies underlying the Agreement ostensibly had been in place since institution of Siemens’ “Marketing Program” in 1975. Just why it had taken Siemens so long to enforce more vigorously the policy’s requirements is central to this lawsuit. Plaintiffs maintain that the April 25 letter and resulting Authorized Dealership Agreement were the products of an illegal conspiracy between Siemens and its two largest full-service dealers, Healthco and Patterson, in violation of section 1 of the Sherman Act. Siemens replies that fear of legal action, such as the lawsuit it is now forced to defend, made management uneasy about more vigorously enforcing the 1975 policy, but that a management shake-up of its Dental Division and heightened sensitivity to the corrosive effect mail order discounting was having on the ability of its full-service dealers to compete finally dictated that events must change. Plaintiffs further allege that, in violation of section 2 of the Sherman Act, Healthco and Patterson have attempted to monopolize the dental equipment retail market. Thirdly, plaintiffs allege that Healthco and Patterson have received discriminatory price breaks from Siemens in violation of the Robinson-Patman Act which also were designed to undercut Schein D.E.’s market position. Various pendent state claims also are alleged. A. Sherman Act § 1: Conspiracy in Restraint of Trade We view the section 1 claims as the core issues in dispute in this action. We begin with the fundamental premise that section 1 requires a “contract, combination, ... or conspiracy, in restraint of trade.” Generally, those contracts, combinations, or conspiracies that are formed to effectuate pricing restraints have long been considered per se illegal. Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 404-09, 31 S.Ct. 376, 383-85, 55 L.Ed. 502 (1911). Those that are created to ensure non-price restraints are treated under the rule of reason analysis. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 2561-62, 53 L.Ed.2d 568 (1977). The existence of a “contract, combination, or conspiracy” is a necessary predicate to a section 1 claim. Therefore, we need not concern ourselves with the pricing/nonpricing distinction if an illegal conspiracy is not proved. Thus, on a motion for summary judgment, establishing the basis for inferring a conspiracy is a threshold issue. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The burden is on the moving party to demonstrate the absence of a material, factual dispute. Fed.R. Civ.P. 56(e); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In a section 1 case, given the threshold nature of the conspiracy question, the moving party, in this case the defendants, must show that the facts alleging a conspiracy are “not susceptible of the interpretation” plaintiffs set forth in their complaint. First Nat’l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). If that burden is met, the non-moving party, the plaintiffs in this case, cannot simply rest on their complaint setting forth a valid cause of action under section 1. Fed.R.Civ.P. 56(e); Cities Service, 391 U.S. at 289-90, 88 S.Ct. at 1592-93. More specifically, “[t]o survive [a] motion for summary judgment, [plaintiffs] must establish that there is a genuine issue of material fact as to whether [defendants] entered into an illegal conspiracy that caused [plaintiffs] to suffer a cognizable injury.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986) (footnote omitted). Accord Celotex Corp. v. Ca trett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (summary judgment proper when nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). In addition, if plaintiffs are to clear the summary judgment hurdle, they must show that there is more than merely “some metaphysical doubt as to the material facts.” Matsushita, 106 S.Ct. at 1356. Of course, direct evidence of a conspiracy is rarely available. Inferences ordinarily must be drawn and, at this stage, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). “[Ajntitrust law [, however,] limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita, 106 S.Ct. at 1357. In delineating those limits, the Matsushita Court stated: Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 [104 S.Ct. 1464, 79 L.Ed.2d 775] (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764 [104 S.Ct. at 1470]. See also Cities Service, [391 U.S.] at 280 [88 S.Ct. at 1588]. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence “that tends to exclude the possibility” that the alleged conspirators acted independently. [Monsanto,] 465 U.S., at 764 [104 S.Ct. at 1471]. Respondents in this case, in other words, must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could have harmed respondents. Matsushita, 106 S.Ct. at 1357. It is the Monsanto standard, as elucidated in Matsushita, which controls in the case at bar. We note that the Second Circuit adhered to a Monsanto-\We standard prior to the Monsanto Court’s resolution of the split that existed in the circuits on this issue. Schwimmer v. Sony Corp. of America, 677 F.2d 946, 952-53 (2d Cir.), cert. denied, 459 U.S. 1007, 103 S.Ct. 362, 74 L.Ed.2d 398 (1982); H.L. Moore Drug Exchange v. Eli Lilly & Co., 662 F.2d 935, 941 (2d Cir.1981), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982). In addition, this Circuit has been quick to embrace whatever refinements to the Monsanto standard were supplied by Matsushita. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252-53 (2d Cir.1987); International Distrib. Centers, Inc. v. Walsh Trucking Co., 812 F.2d 786, 793-95 (2d Cir.1987). In both Apex Oil and International Distribution, the court has made clear that, at a minimum, plaintiffs in the case at bar must show that the alleged “conspirators had a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement” if a reasonable inference of conspiracy is to be drawn. Apex Oil, 822 F.2d at .252; International Distribution, 812 F.2d at 793 (both quoting American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946)). On defendants’ motion for summary judgment, then, the Monsanto-Matsushita standard requires a two-pronged inquiry. First, have defendants met their burden of establishing that there does not exist a sufficient basis for inferring a material fact, to wit, the existence of a conspiracy? If so, have plaintiffs then met their burden not only of showing that an illegal conspiracy could be inferred just as easily as not, but have they introduced evidence that “tends to exclude the possibility” of independent action? We turn now to the facts, first to defendants’ evidence of independent action, and then to plaintiffs’ evidence of conspiracy. 1. Siemens’ Independent Business Reasons for Terminating Hayden The defendants maintain that Siemens acted independently in terminating Hayden. In support of this argument, Siemens has offered several business concerns which it argues justify its decision, including a desire to prevent erosion of its marketing strategy, a desire to protect its reputation in the market, and a desire to guard against the pernicious effects of “free riding.” i. Mail Order: Ineffective Marketing Siemens claims that the very concept of direct mail marketing for dental x-ray equipment is inconsistent with its “Mercedes”-quality product and detracts from its image. Further, Siemens contends that it had chosen to implement and enforce a marketing strategy that presents a high-quality product complete with manufacturer’s warranty and a full range of services. Schein D.E., on the other hand, because it was not a full-service dealer, could sell only an “unbundled” version of this product (i.e., without a manufacturer’s warranty or services). Siemens argues, in essence, that the “unbundling” changed the nature of the product and was inconsistent with its stated marketing strategy. Thus, to the extent Hayden persisted in supplying Schein D.E. with Siemens’ equipment, Hayden undermined Siemens’ strategy of marketing a warranted product through intensive and direct pre-sale, point-of-sale and post-sale client contact. ii. Siemens’ Reputation It is clear, and Siemens emphasizes, that assembly, installation, calibration and servicing affect the operating quality of the equipment. Thus, Siemens argues that enforcement of its policy to supply only full-service dealers was essential if it was to protect its reputation in the market. Siemens feared that dentists who had purchased Schein D.E.’s unwarranted, “unbundled” version of Siemens’ product would assume that problems resulting from installation by unauthorized individuals stemmed from some defect in Siemens’ equipment. It is only logical that with Siemens’ name on their product, and no Schein D.E. service staff to turn to, dentists would look to Siemens for assistance with their service problems. Indeed, to protect its reputation, Siemens felt compelled initially to perform for Schein D.E. customers the very servicing tasks that Siemens, in 1975, had opted to leave to its authorized full-service dealers. Supra note 6. In light of these problems, Siemens resolved to emphasize and enforce its policy to sell its products only to those dealers able and willing to comply with Siemens’ service policy. Moreover, installation and service affect the safety of those using the equipment. Schein’s pooh-poohing of this issue is without merit. The equipment is federally regulated, and Schein’s attempt now to minimize the safety issue contrasts starkly with its earlier statements. After this Court, in June of 1984, enjoined Schein D.E. from falsely advertising that Siemens does not honor its warranty on dental equipment sold by Schein, Schein proposed the following disclaimer: Note: A warranty is provided by Schein Dental Equipment. A Siemens’ warranty is not provided. However, pursuant to the Radiation Control for Health and Safety Act of 1968 (42 U.S.C. §§ 263b-n), Siemens must guarantee through certification that its dental x-ray equipment complies with federal performance standards. Siemens remains responsible during the life of the equipment, at no cost to the purchaser, for repair, replacement or refund in cases where required by the Act. Not only did we find that this proposed language violated our previous order, H.L. Hayden Co. v. Siemens Medical Systems, Inc., No. 84 Civ. 0306, slip op. at 7 (S.D. N.Y. Jan. 10, 1985) (mem. decision) [Available on WESTLAW, DCT database], it also demonstrates Schein’s clear understanding of safety problems related to installation and servicing of the equipment. In sum, Siemens’ position is that it acted to protect not only its reputation, but its vulnerability to future products liability actions. Hi. “Free Rider’’ Effect Siemens also was concerned because its full-service dealers who comply with the Authorized Dealership Agreement, and who provide pre-sale, sale, and post-sale services, are at an obvious competitive disadvantage. Siemens received numerous dealer complaints in 1982 and 1983 that dealers had lost sales to mail order after they had done the groundwork. Although plaintiffs dispute that Schein D.E. is a “free rider,” they offer no support for these conclusory statements. On the contrary, a former employee of Hayden, who worked in mail order sales, stated that it was understood that dentists would look to full-service dealers to provide services that Schein D.E. does not, and that Schein D.E.’s employees encouraged customers to visit dealer showrooms. Hayden complains that somehow it is being singled out for unfair and illegal treatment. Hayden was the only Siemens distributor owned by the owner of a mail order house. Further, until terminated, Hayden was supplying all of the Siemens product that Schein D.E. sold. It is clear that if this practice continued unchecked, Siemens’ marketing strategy potentially would be seriously undermined. We find Siemens’ concern of “free riding” to be real and legitimate. See O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1468 (9th Cir.1986) (holding manufacturer’s concern for “free rider” effect sufficient to meet his burden, as moving party under Rule 56, of showing independent conduct). Not only are the various business justifications cited by Siemens typical in a case involving a manufacturer’s refusal to deal, but, taken together, they are manifestly reasonable and sufficient to meet defendants’ burden under Rule 56. In discussing the reasonableness of certain vertical restraints, like the Authorized Dealership Agreement at issue in the case at bar, the Supreme Court has noted: Established manufacturers can use them to induce retailers to engage in promotional activities or to provide service and repair facilities necessary to the efficient marketing of their products. Service and repair are vital for many products____ The availability and quality of such services affect a manufacturer’s goodwill and the competitiveness of his product. Because of market imperfections such as the so-called “free rider” effect, those services might not be provided by retailers in a purely competitive situation____ GTE Sylvania, 433 U.S. at 55, 97 S.Ct. at 2560. We find that a reasonable jury would consider Siemens’ business justifications to be convincing and sufficient to rebut plaintiffs’ allegations of conspiracy. Moreover, as long as Siemens independently arrived at these reasons, even if Siemens’ business judgments were wrong, inaccurate, or pretextural, “whether because of a desire to avoid controversy or some other consideration, this would not violate any legal obligation to the customer, absent proof of a conspiracy.” H.L. Moore, 662 F.2d at 941. Irrespective of the underlying motives, unilateral conduct, whatever else it may be, does not constitute a violation of section 1. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). 2. Plaintiffs’ Evidence of Concerted Action With defendants having met their burden of showing that the facts are “not susceptible of the interpretation” alleged by plaintiffs, Cities Service, 391 U.S. at 289, 88 S.Ct. at 1593, the burden now shifts to plaintiffs, who “must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” Matsushita, 106 S.Ct. at 1357 (quoting Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471). Plaintiffs’ theory is straightforward enough. Siemens, Healthco and Patterson, together vertically or in horizontal combinations thereof, allegedly conspired to drive Schein D.E. from the market. To achieve that goal, the plan purportedly focused on terminating Hayden as a distributor, thereby eliminating Schein D.E.’s only source of Siemens’ equipment. By choking off its supply, defendants might strangle Schein D.E., ultimately eliminate mail order discounting, and thereby maintain resale prices at a level that would continue to allow dealers to provide customers with a full range of services. The Authorized Dealership Agreement accomplished that purpose, plaintiffs contend, by imposing conditions on Hayden with which it could not possibly comply (mainly, the de facto prohibition on dealing with mail order houses). At its core, plaintiffs case centers on complaints registered with Siemens by its full-service dealers, including Healthco and Patterson, that something had to be done about mail order discounting. There is no dispute on this point. Indeed, Siemens concedes that its desire to guard against “free riding,” discussed supra, served as a principal motivation for enforcement of the Authorized Dealership Agreement. It is well-established, however, that dealer complaints, standing alone, are insufficient to justify an inference of an illegal section 1 conspiracy. Monsanto, 465 U.S. at 763, 104 S.Ct. at 1470. This Circuit, even prior to Monsanto, adhered to the rule that evidence of complaints alone will not satisfy plaintiffs burden on a Rule 56 motion in a section 1 case. H.L. Moore, 662 F.2d at 941. The policies underlying this rule should be obvious. Not only is it inevitable that a certain amount of information-sharing will exist between a manufacturer and its distributors, but that give-and-take is essential if a manufacturer is to maintain both its sensitivity to market conditions and its competitive edge. Judicial construction of a fictitious “Chinese wall” preventing communication between manufacturers and distributors would not only be virtually impossible to police, but it would be economically counterproductive to enforce. See Monsanto, 465 U.S. at 763-64, 104 S.Ct. at 1470-71 (discussing this issue). Thus, something more than dealer complaints are needed if plaintiffs are to survive this motion for summary judgment. At a minimum, as noted earlier, plaintiffs must show that defendants had a “unity of purpose,” a “common design or understanding,” or a “meeting of the minds.” Apex Oil, 822 F.2d at 252; International Distribution, 812 F.2d at 793. Cognizant of this burden, plaintiffs have woven a fact pattern laced with conspiratorial innuendo. Plaintiffs mark the American Dental Association’s October 1982 annual convention in Las Vegas as the starting point in the conspiracy. There is some evidence that Siemens’ Vitt told full-service dealers during a private meeting at that convention that he was “working on” the problem of mail order. That mail order was a problem for Siemens is conceded by Siemens itself, and the fact that Vitt would be “working on” one of Siemens’ problems is hardly a conspiratorial revelation. See O.S. C., 792 F.2d at 1494-95 (holding manufacturer’s promise that “something was going to be done about price erosion” insufficient to raise inference of conspiracy). Plaintiffs also note that, not surprisingly, there was a private meeting at this convention between executives of Healthco, Patterson, and D.L. Saslow Co., the third major chain. Plaintiffs allege that there was a conspiratorial discussion between these executives about eliminating a pharmaceutical company, but that is irrelevant to this action. Either at this meeting or at other similar gatherings, plaintiffs argue that because mail order was a “hot topic,” the defendants “must” have discussed methods to ensure its demise. Plaintiffs offer no evidence to support this bare allegation. Plaintiffs contend further that following the October meeting, Healthco and Patterson increased the pressure on Siemens to address the mail order problem. They cite letters between Siemens, its parent company, Siemens AG, and Healthco, which contain what plaintiffs characterize as veiled language meant to convey a boycott threat by the dealers as well as an invitation to conspire. Dealers refused to make routine follow-up calls on dentists who had bought their equipment from Schein D.E. or made such calls only after receiving repeated requests from Vitt, Schein, and the dentist. Dealers can and do tell potential clients that they won’t, receive follow-up calls if they use mail order. Siemens concedes that it had received dealer complaints about mail order shortly after Schein D.E. entered the market in 1981, as well as after the 1982 Las Vegas convention. Indeed, Siemens’ Vitt called and then met with Schein in June of 1982, urging that he raise prices. It appears Vitt also conveyed to Schein the impression that dealers were pressuring him and that M. Myer Cyker, President of Healthco, in particular had asked whether Siemens was giving Schein D.E. a preferential discount to enable Schein to sell at such low prices. Even if these facts are assumed to be true, little support is lent to plaintiffs’ case. First, not only are dealer complaints insufficient, standing alone, to raise an inference of conspiracy, but a manufacturer’s actions “in response to ” such complaints are also insufficient. Monsanto, 465 U.S. at 763, 104 S.Ct. at 1470 (emphasis added). Unilateral action, even if it is in response to dealer complaints, does not constitute a section 1 violation. Colgate, 250 U.S. at 307, 39 S.Ct. at 468. There must be evidence of a meeting of the minds, Apex, 822 F.2d at 252, and the Vitt-Schein meeting offers no support for that conclusion. Furthermore, as to the request to Schein to raise his prices, Schein alleges no further incidents or follow-up requests and no threats to terminate. Siemens continued to supply Schein D.E. through Hayden at that time and for some sixteen months thereafter. Plaintiffs next point to the February 1983 meeting of the Dental Dealers of America, Inc. and the Dental Manufacturers of America, Inc. in Chicago. Health-co’s Cyker addressed that convention. In his speech, Cyker offered to share with other dealers exhibits which warned dentists that “it costs you more to buy your equipment from mail order than from a Healthco dealer.” (Emphasis in originals.) Further on, Cyker blasted the industry’s manufacturers, alleging that they were “going all out with the mail order discounters, undercutting the dealers who are out doing their missionary work for them, solving problems for them in the field.” Although Cyker’s speech clearly reflects a profound disgruntlement amongst the industry’s full-service dealers with mail order discounting, the court has strained to find the conspiratorial overtones but finds none. Plaintiffs also note that at some time during the Chicago convention, Siemens’ Vitt and Peter Frechette, Patterson’s President, met for lunch, a meeting laden with conspiratorial inferences according to plaintiffs. The depositions reveal that Vitt and Frechette did discuss Patterson’s philosophies concerning distribution in the industry, but that evidence hardly transforms a legitimate business lunch between a supplier and a major distributor into a conspiratorial summit. After the Chicago meeting, Vitt corresponded with Frechette, writing that “[i]t was really good to get to know you and to hear about your philosophies concerning the distribution in the industry.” He then reassured Frechette that, “[a]s I mentioned, I will do everything in our power to offer to you the best possible market environment.” We find plaintiffs’ conclusion that this letter is evidence of a conspiracy to be fraught with speculation. Plaintiffs also make much of a Vitt meeting with a Healthco executive in Atlanta during a March 1983 industry gathering. Plaintiffs conclude that conspiratorial discussions directed toward Schein D.E.’s elimination “must” have taken place. This assumption is based presumably on the temporal proximity of the meeting with Siemens’ actions one month later notifying its dealers of its renewed commitment to an authorized dealership program. It certainly is not based on any evidence that was presented to this court. Plaintiffs also contend that there existed a quid pro quo arrangement between Siemens and Healthco. Plaintiffs maintain that Healthco’s promotion of the Lumix, its in-house x-ray equipment, had cut into Siemens’ market share. Siemens, supposedly, agreed to eliminate Hayden in return for increased efforts by Healthco to promote Siemens’ equipment. After several months of declining sales in Siemens’ equipment, plaintiffs note that Healthco showed an increase in those sales in March of 1983, just one month before Siemens sent out its letter reaffirming its authorized dealer policy. In response to this speculation, Siemens notes that Healthco had stopped paying its bill in early 1983, and that Siemens ultimately cut off deliveries to Healthco in March of that year. Plaintiffs interpret these actions as being indicative of collusion. Siemens argues that, on the contrary, these decisions demonstrate a lack of cooperation between Healthco and Siemens. We agree. Finally, plaintiffs rely on an April 5,1983 internal report issued by a Siemens technical representative. In that report, the Siemens representative relays that he was advised by a full-service dealer that dealers intended to “support totally” and “work with” two manufacturers of certain non-x-ray equipment who had decided to remove their products from the Schein D.E. catalog. The dealer’s comments are hardly surprising, and are not evidence of conspiracy. See Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 923-24 (2d Cir.1985) (distributor’s speech noting he would cease dealing with manufacturers who supplied discounters, even if known to manufacturer, was couched in generalities and inadequate to show conspiracy). The sheer number of implausible conclusions set forth by plaintiffs does not overcome their implausibility or their conclusory nature. After struggling to find a clear direction in this labyrinthian mosaic, it should seem obvious that, to sustain plaintiffs’ allegations of conspiracy, we are required to do more than draw all reasonable inferences in the plaintiffs’ behalf. We must make grand leaps of faith. We are not willing to engage in such intellectual gymnastics. Rather, we must pierce through these sham allegations and speculative assertions if the Monsanto-Matsushita standard is to retain its vitality. In fact, we find Monsanto particularly instructive in highlighting the shortcomings of plaintiffs’ case. Much like the case at bar, Monsanto involved a manufacturer’s refusal to deal with a discount dealer. Unlike the case at bar, however, the Monsanto plaintiff was able to present not only complaints but other evidence of a conspiracy. In particular, there was direct evidence that the manufacturer used its muscle to extract minimum resale prices from its dealers, and a distributor newsletter was offered that included a blatant reference to the manufacturer’s agreement to maintain resale prices at its company-owned outlets. Monsanto, 465 U.S. at 765-66, 104 S.Ct. at 1471-72. Beyond Monsanto, we are struck by the uncanny similarities between the case at bar and Reborn Enter., Inc. v. Fine Child, Inc., 590 F.Supp. 1423 (S.D.N.Y.1984), aff'd per curiam, 754 F.2d 1072 (2d Cir.1985), one of the leading post-Monsanto cases in this Circuit involving the grant of summary judgment in a section 1 case. As here, Reborn involved a hodge-podge of alleged horizontal and vertical section 1 conspiracies. The defendant manufactured a high-quality baby stroller. Just as Siemens views its x-ray equipment as the “Mercedes” of its field, so the Reborn defendant apparently viewed its product as the “Rolls Royce” of baby strollers. Id. at 1430. For some time, the defendant had been concerned about doing business with a discounter who, like Schein D.E., did not offer follow-up repair service. The defendant, like Siemens, had long expressed concern that dealing with the discounter did not comport with its overall marketing strategy. In addition, the Reborn manufacturer received numerous complaints from its non-discount retailers, and even asked the discounter to adhere to a higher retail price list (akin to the Vitt-Schein meeting in June of 1982). Finally, after a change in management (just as there was a change in management at Siemens), the discounter was terminated. Beyond evidence of complaints, the discounter had patched together a quilt of speculation to support its section 1 claims. Just as the Reborn court found summary judgment proper in that case, id. at 1451, we find it proper here. We are assured that Rule 56, whatever its prior status in this Circuit, is not a paper tiger, Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), and its use even in a complex antitrust case should not be discouraged. Apex Oil, 822 F.2d at 252. We do not believe that plaintiffs have met their burden under Monsanto-Matsushita of introducing sufficient evidence that “tends to exclude the possibility” of independent conduct. Other than dealer complaints, the only “evidence” of a conspiracy, horizontal or vertical, is mere speculation and conjecture, and that will not suffice. See Matsushita, 106 S.Ct. at 1357 (purely equivocal evidence does not give rise to an inference of conspiracy); International Distribution, 812 F.2d at 795 (quoting Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 80 (2d Cir.1980)) (plaintiffs conclusions require “impermissible speculation” and “lack factual foundation”); Knight, 804 F.2d at 12 (relying on Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985)) (party may not rely on speculation to overcome summary judgment motion). We are mindful of the fact that summary judgment “should not be regarded as a substitute for trial,” Apex Oil, 822 F.2d at 252, but we believe there is no room for doubt on this issue. Defendants’ motions for summary judgment on the section 1 claims are granted. B. Sherman Act § 2: Attempt and Conspiracy to Monopolize We turn now to the perfunctory add-on in a section 1 refusal-to-deal case: a section 2 claim(s) against competitors of the terminated party. Section 2 of the Sherman Act prohibits monopolizing, attempting to monopolize, or conspiring to monopolize any part of interstate trade. 15 U.S.C. § 2. Plaintiffs allege that Healthco and Patterson, by seeking Hayden’s termination and Schein D.E.’s isolation, are attempting to monopolize the retail dental equipment industry. Alternatively, plaintiffs argue that Healthco and Patterson somehow have conspired to monopolize the industry. We consider the charges in turn. 1. Attempt to Monopolize An attempt to monopolize claim requires (1) a specific intent to monopolize, Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953), and (2) a “dangerous probability” of success. Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905). Accord, Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 841 (2d Cir.1980). Plaintiffs offer no substantive evidence, direct or circumstantial, which would lead to the reasonable inference that either Health-co or Patterson harbor the intent necessary to support a section 2 claim. In addition, even if specific intent could be inferred, it is demonstrably clear that neither defendant possesses the requisite market power to suggest a dangerous probability that either could assume a monopoly position in the market. The rationale underlying the dangerous probability requirement is obvious. Most businesses would like to rise to a dominant monopoly position in their market. Very few succeed. Simply having the desire without the capability poses no threat to the goals of antitrust. As the Supreme Court has noted, “The antitrust laws ... were enacted for ‘the protection of competition, not competitors.’ ” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962)) (emphasis in original). The relevant market is a national one, involving the retail sale of dental equipment. Defendant Healthco, which has its principal office in Boston, Massachusetts, owns the largest national chain of full-service retail dental equipment dealerships. Defendant Patterson, which has its principal place of business in Minneapolis, Minnesota, owns the second-largest national chain. Between them in 1981, they had over 170 store locations, with Healthco owning 90 and Patterson owning 87. In 1982, Healthco had 96 locations and Patterson 88. Neither distributor, however, independently has sufficient market power to justify the conclusion that market power, if exercised with monopolistic intent, could result in monopoly. In 1981, for example, there were a total of 303 dealer companies nationwide with 619 locations. Construing the available evidence in the light most favorable to the plaintiff, each defendant has, at a maximum, approximately 20% of the dental equipment market. There is no hard and fast rule as to what market percentage is sufficient to constitute a dangerous probability of success. Perhaps the leading case on attempted monopolization in this Circuit has found that a one-third market share was too low to infer a dangerous probability of success. Nifty Foods, 614 F.2d at 841. In Levitch v. Columbia Broadcasting System, Inc., 495 F.Supp. 649, 665 (S.D.N.Y.1980), aff'd, 697 F.2d 495 (2d Cir.1983) (per curiam), the one-third share of the market held by each of the three major television networks was found as a matter of law to be inadequate to establish such a dangerous probability that any one of the defendants would succeed in monopolizing the relevant market. We find that the 20% shares held by each of the defendants in the case at bar are insufficient to justify an inference that there is a dangerous probability that either, even if they possess the requisite specific intent, are likely to achieve monopoly power. Apparently recognizing the vulnerability of their section 2 claim, plaintiffs argue that the combined Healthco/Patterson market share approaches fifty percent, and that the 50% aggregate meets the dangerous probability threshold. Leaving aside the fact that twenty and twenty do not equal fifty, there is no authority for accumulating market shares in a section 2 attempt case. In Levitch, the defendants, the three major television networks, cumulatively had the entire market, but that never was mentioned as a material consideration in the decision. Levitch, 495 F.Supp. at 665. The concept of combining market shares also was rejected by Judge Lasker in Consolidated Terminal Systems, Inc. v. ITT World Communications, Inc., 535 F.Supp. 225, 228-29 (S.D.N.Y.1982) (emphasis in original), where he held: [Plaintiffs] allegations that [defendants] account for between 98 and 100 percent of the market assumes that the defendants’ combined market power is the relevant datum. That approach, however, might be termed tautological____ Rather, in order to sustain a charge of monopolization or attempted monopolization, a plaintiff must allege the necessary market domination of a particular defendant. The section 2 offense of attempted monopolization is directed at unilateral conduct, and plaintiffs’ theory of combining market shares must fail for that reason. 2. Conspiracy to Monopolize Alternatively, plaintiffs allege that Healthco and Patterson conspired to monopolize the dental equipment retail market in violation of section 2. We note from the outset our considerable discomfort with this claim. The notion that two competitors could conspire to monopolize is, seemingly, antithetical. Two competitors could conspire to oligopolize, which would constitute an illegal section 1 conspiracy in restraint of trade, but it would not constitute an offense under a literal reading of section 2. Despite our misgivings, the leading Supreme Court case involving a section 2 conspiracy concerned the combination of horizontal competitors. American Tobacco, 328 U.S. at 783, 66 S.Ct. at 1126 (defendants, convicted of a section 2 conspiracy, comprised the three major tobacco companies). In granting certiorari, however, the Court limited its review to whether the exclusion of competitors is a necessary element of monopolizing under section 2. Id. at 784, 66 S.Ct. at 1126-27. The discreet question of who must combine to constitute a conspiracy under section 2 was not squarely addressed by the Court in American Tobacco or, apparently, in any other case to date. Cf. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 708-09, 82 S.Ct. 1404, 1415-16, 8 L.Ed.2d 777 (1962) (holding jury charge of conspiracy monopoly between competitors did not preclude charge as to unilateral monopoly, but no suggestion that conspiracy charge itself, as between competitors, was inappropriate). That singular issue, and section 2 conspiracies generally, appear to have received scant attention from the courts and commentators. 2 E. Kintner, Federal Antitrust Law § 14.1, at 433-34 (1980). See generally id. §§ 14.-1-14.7 (discussing conspiracy to monopolize); 3 P. Areeda & D. Turner, Antitrust Law 1111839-62 (1978) (discussing applicability of section 2 in shared monopoly context and suggesting limits on its extension in private antitrust actions). In addition, there is not universal agreement on the legal standards to be applied in a section 2 conspiracy case. The principal issue in dispute between the circuits is whether a dangerous probability of success is required of a section 2 conspiracy, as it is of a section 2 attempt offense. There have been conflicting decisions on the matter in this Circuit, although the most recent decision to address the issue has held that dangerous probability is not a requirement for establishing a section 2 conspiracy. International Distribution, 812 F.2d at 795 n. 8. That decision states the section 2 conspiracy standard for this Circuit thusly: “The elements of a conspiracy to monopolize are ‘(1) proof of a concerted action deliberately entered into with the specific intent to achieve an unlawful monopoly, and (2) the commission of an overt act in furtherance of the conspiracy.’ ” Id. at 795 (quoting Paralegal Inst., Inc. v. American Bar Ass’n, 475 F.Supp. 1123, 1132 (E.D.N.Y.1979), aff'd. 622 F.2d 575 (2d Cir.1980) (mem. decision)). Plaintiffs focus on this standard, and the fact that dangerous probability of success is not required, as all-important. That focus is misplaced. We find that plaintiffs’ section 2 conspiracy claim fails for at least two reasons. First, whatever the proper legal standard, it is clear that “§§ 1 and 2 of the Sherman Act require proof of conspiracies which are reciprocally distinguishable from and independent of each other although the objects of the conspiracies may partially overlap.” American Tobacco, 328 U.S. at 788, 66 S.Ct. at 1129. When the costume is stripped away, plaintiffs’ claim is really their section 1 charge against Healthco and Patterson masquerading under the guise of section 2. As such, it does not meet the American Tobacco requirement of “reciprocal distinguishability.” Second, it is clear both from the language of section 2 and from the International Distribution Court’s interpretation of it that, like section 1, the existence of a conspiracy is a threshold issue in a section 2 conspiracy claim. Plaintiffs offer no additional facts of substance to support their assertion that a section 2 conspiracy exists. They rely on the same speculation and conjecture that proved fatal to their section 1 conspiracy claims, and it is no less subversive here. Defendants’ motion for summary judgment on each of the section 2 claims is granted. C. Robinson-Patman Act: The Price Discrimination Claims One of the principal motivations behind passage of the Robinson-Patman Act in 1936 was the inability of the Clayton Act to protect small businesses in “secondary line” cases, such as here, where large “chain store” buyers are theoretically able to extract or receive price differentials from suppliers due to their ability to sell large volumes of goods. FTC v. Morton Salt Co., 334 U.S. 37, 49, 68 S.Ct. 822, 829, 92 L.Ed. 1196 (1948). See also 3 E. Kintner & J. Bauer, Federal Antitrust Law §§ 19.1 & 19.2 (1983) (reviewing history of Robinson-Patman Act). Robinson-Patman was designed to level the playing field and ensure that success in the market was based on business acumen and skill rather than on discriminatory breaks derived from the belief that bigger was necessarily better. Despite controversy surrounding the law’s application in the fifty years since its enactment, it remains essentially intact. Plaintiffs’ third cause of action asserts various violations of section 2 of the Clayton Act, as amended by the Robinson-Pat-man Act (codified as amended at 15 U.S.C. § 13). Plaintiffs maintain that Siemens provided Healthco and Patterson with price breaks not available to other purchasers in violation of section 2(a). Plaintiffs further allege that Siemens provided Healthco and Patterson with commissions or brokerage fees in violation of section 2(c), and discriminatorily furnished services or facilities in violation of section 2(e). Finally, plaintiffs contend that Healthco and Patterson either knew of or induced the price discrimination in violation of section 2(f). Plaintiffs seek treble damages for injuries allegedly caused by these violations pursuant to section 4 of the Clayton Act (codified as amended at 15 U.S.C. § 15). There is considerable question as to whether plaintiffs have made out a prima facie claim under any of the asserted sections of Robinson-Patman. We need not, however, reach this issue. Instead, we find that plaintiffs do not have standing to bring a Robinson-Patman claim for damages under section 4 of the Clayton Act. The Supreme Court has made clear that when a private party sues for treble damages under section 4, it must show, in addition to a Robinson-Patman violation, “actual injury attributable to something the antitrust laws were designed to protect.” J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 562, 101 S.Ct. 1923, 1927, 68 L.Ed.2d 442 (1981) (emphasis added). Thus, “even if there has been a violation of the Robinson-Patman Act, [the plaintiff] is not excused from its burden of proving antitrust injury and damages.” Id. at 568, 101 S.Ct. at 1930. The plaintiffs need not prove that the alleged violations were the sole cause of injury, Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n. 9, 89 S.Ct. 1562, 1571 n. 9, 23 L.Ed.2d 129 (1969), but they must show some actual injury with a causal nexus to the alleged violations. Uniroyal, Inc. v. Jetco Auto Service, Inc., 461 F.Supp. 350, 356 (S.D.N.Y.1978) (citing Jacobi v. Bache & Co., 377 F.Supp. 86, 93 (S.D.N.Y.1974), aff'd, 520 F.2d 1231 (2d Cir.1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 784, 46 L.Ed.2d 642 (1976)). Plaintiffs have not met this burden. Overall, it is apparent that, even assuming price discrimination, the alleged violations have not affected Schein D.E.’s generally “robust” economic health. Supra note 11. More particularly, there are only three cases in which plaintiffs claim a sale was actually lost because a competing dealer (in this case Patterson) offered a lower price, ostensibly the result of a price break from Siemens in violation of section 2(a). The evidence presented, however, makes it clear that in two of the instances price was not a material consideration in the dentists’ decisions. In one, the manufacturer’s warranty was an important consideration. In the other, a volume discount was given. A third instance rests solely upon a letter and not an affidavit. The plaintiffs, as may be expected, argue that it is difficult to obtain such proof, and that the Court should accept a degree of uncertainty because of the difficulty in ascertaining business damages. However, it is quite different to accept a degree of uncertainty in proof of amount from accepting uncertainty of the existence of any damage whatsoever. The plaintiffs have proved no injury in fact and, under these circumstances, the third cause of action must be dismissed. D. Plaintiffs’ State Claims Plaintiffs assert a variety of pendent state claims. Having dismissed the federal claims in this suit, the question of our continuing jurisdiction arises. . It appears that diversity jurisdiction would lie in this case. Alternatively, we use our discretion to exert pendent jurisdiction here both because there is substantial overlap between the federal and state claims and in considerations of “judicial economy, convenience, and fairness to litigants.” Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir.1986) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966)). 1. Donnelly Act Claim The plaintiffs’ fourth cause of action is based on the Donnelly Act, N.Y. Gen. Bus. Law § 340, the state counterpart to the federal Sherman Act. Analysis under section 340 closely parallels that done under the Sherman Act. Optivision, Inc. v. Syracuse Shopping Center Assoc., 472 F.Supp. 665, 680-81 (N.D.N.Y.1979). For substantially the same reasons we granted defendants’ motions for summary judgment on the Sherman Act claims, we grant defendants’ motion on the Donnelly Act claim as well. Plaintiffs protest that although Sherman Act and Donnelly Act analyses are similar, the Donnelly Act may be broader in sweep and, thus, its Donnelly Act claim is distinguishable. Associates Capital Services Corp. v. Fairway Private Cars, Inc., 590 F.Supp. 10, 13 (E.D.N.Y.1982); State v. Mobil Oil Corp., 38 N.Y.2d 460, 465, 381 N.Y. S.2d 426, 428, 344 N.E.2d 357, 359 (1976). This argument is of no avail. Whatever differences may exist, section 340, similar to section 1 of the Sherman Act, requires evidence of a “contract, agreement, arrangement, or combination.” This is a threshold issue. Just as we earlier concluded that plaintiffs have offered no evidence which, taken as a whole, would allow us to draw a reasonable inference that there existed any illegal combination or conspiracy under the Sherman Act, so do we hold that there exists no evidence that would allow a similar inference to be drawn under the Donnelly Act. 2. Tortious Interference with Contractual Relations and/or Business Relations The fifth and sixth causes of action, which are brought only by Hayden, allege that Healthco and Patterson tortiously interfered with the Hayden-Siemens contractual relationship and tortiously interfered with the Hayden-Siemens business relationship. The evidence is quite clear that Siemens’ termination of Hayden resulted from Hayden’s refusal to sign Siemens’ Authorized Dealership Agreement. There is no evidence that would allow us to infer that Healthco or Patterson were consulted or involved in that decision. Certainly we are not free to impute to Health-co or Patterson conduct independently pursued by Siemens. Accordingly, defendants’ motions for summary judgment on these claims are granted as well. 3. Unfair Competition The seventh cause of action is a claim of unfair competition. Plaintiffs argue that the tortious interference by Healthco and Patterson, discussed in the preceding section, and the disparagement of Schein D.E. by Siemens and Healthco, discussed in the next section, each fall under the additional rubric of unfair competition. Holding as we do that there has been no tortious interference or disparagement, it follows that there has not been unfair competition. Summary judgment on this claim is granted. 4- Disparagement The eighth claim sounds in trade libel. No specific libels are set forth in the complaint. There is, therefore, a failure to allege with sufficient particularity the falsehoods in question. Sadowy v. SONY Corp. of America, 496 F.Supp. 1071, 1079 (S.D.N.Y.1980). Moreover, in the voluminous papers on the motion, the plaintiffs allude to only a few vague disparagements attributable to plaintiffs Siemens and Healthco, and these generally involve assertions to third parties that the manufacturer’s warranty would not accompany Siemens’ equipment sold by Schein D.E. These statements, which among other factors are true on their face, are not sufficient to sustain a trade libel claim in New York. See generally Harwood Pharmacal Co. v. National Broadcasting Co., 9 N.Y.2d 460, 214 N.Y.S.2d 725, 174 N.E.2d 602 (1961); Drug Research Corp. v. Curtis Publishing Co., 7 N.Y.2d 435, 199 N.Y.S.2d 33, 166 N.E.2d 319 (1960) (discussing New York trade libel law). Defendants’ motion for summary judgment on the eighth claim is granted. 5. Prima Facie Tort Plaintiffs’ ninth, and final, claim is a prima facie tort claim, relying on Board of Education of Farmingdale Union Fre