Full opinion text
MEMORANDUM AND ORDER MORAN, Chief Judge. Allegedly losing his competitive edge in the market for kosher-for-Passover foods in the Chicago area because of the defendant’s unfair and illegal trade practices, plaintiff Irwin Ashkanazy (“Ashkanazy”), owner of Ash Distributing (“Ash”), has brought this suit against rival I. Rokeach & Sons (“Rokeach”), alleging a variety of antitrust and pendent state claims. Now before this court is Rokeach’s comprehensive motion for summary judgment. For the following reasons, that motion is granted in part and denied in part. FACTS Rokeach is a New Jersey corporation that manufactures and sells kosher food products. Rokeach sells its products nationally through a system of distributors, some independent and some subsidiary. In the Chicago area, Rokeach’s products are distributed by Central Kosher Sales (“Central Kosher”), which has represented Rok-each since approximately 1982. Until July 1989, Rokeach owned 60% of the voting stock of Central Kosher and 50% of its ownership stock; Rokeach acquired the remaining interest in 1989, rendering Central Kosher a wholly owned subsidiary. Ashka-nazy is complaining of activity that dates back to 1983, but for the purposes of this motion, Rokeach has assumed that the actions of Central Kosher are attributable to Rokeach and that Rokeach competes in Chicago through Central Kosher. With respect to actions taken in the Chicago market, then, the terms “Rokeach” and “Central Kosher” are functionally interchangeable. Central Kosher distributes kosher food products to chain retail grocery stores, independent retail grocery stores, and institutions (nursing homes, schools, and camps) in the Chicago area. Ash also distributes kosher food products, but its patronage is limited in geographic scope to kosher food buyers in Illinois, Iowa, Minnesota, and Wisconsin; the bulk of its sales, however, are in the Chicago area. Ashkanazy operates his business out of rented space in a Chicago warehouse and usually delivers from his car. Ash does not distribute to retail chain stores but competes with Rokeach for the business of institutions and independent retail stores in the Chicago area. At issue in this suit are four kosher food items prepared for Passover consumption: gefilte fish in cans and glass jars, borscht, canned vegetable soups, and matzo products; together, these four items form the relevant product market, kosher-for-Passover foods. Both the plaintiff and the defendant sell a broader range of products than those represented in the market defined for purposes of this action: Rokeach also markets chicken soups, schav, shortening, honey, tomato mushroom sauce, spices, candles, silver polish, foaming cleanser, kosher soap, various Israeli products, and baked goods. Ash distributes sundry items such as housewares, school supplies, and health and beauty aids, in addition to a variety of kosher food products. Jewish dietary laws require that during Passover observant Jews eat kosher food that has been prepared with different ingredients and according to strict religious standards and rules that differ from those that govern the preparation of daily kosher foods. Although the Passover season lasts only eight days, Ashkanazy claims that kosher-for-Passover food sales account for 60% of his total business and estimates that a similar percentage of Central Kosher’s sales is attributable to kosher-for-Passover foods. Ashkanazy has defined the relevant geographic market as the area in which he competes with Rokeach: the greater Chicago area, southwestern Wisconsin, and Indiana. Rokeach does not contest this description. Nor does Rokeach, for the purposes of this motion, dispute Ashkana-zy’s characterization of separate markets for sales to retail independents (“retail independent market”) and for sales to institutions (“institutional market”). Institutional sales of kosher-for-Passover food products target primarily nursing homes, for schools are not open during the Passover season. Since late 1984, many nursing homes have purchased kosher-for-Passover foods through a group purchasing agent called Econoeare. Members of the group call orders into Econocare, which places them with the suppliers that it feels will best serve the homes. The suppliers bill the nursing homes directly, and Econo-care receives a monthly service fee from its members, who remain free to purchase directly from suppliers in addition to or instead of purchasing through Econocare. Ashkanazy’s five-count complaint asserts antitrust and state common law and statutory violations in both the institutional and the retail independent markets. In Count I, he alleges that Rokeach has, since 1983, been engaged in an attempt to monopolize the relevant markets through a variety of anticompetitive acts in violation of section 2 of the Sherman Act, 15 U.S.C. § 2 (1988); Count II asserts that Rokeach has illegally tied the sale to institutions of certain kosher-for-Passover food items to the sale of single-serve portions of margarine, known as “readies,” which are required by observant Jews during the Passover season; Count III contains a pendent state claim of intentional interference with contractual and prospective relations; Count IV sets forth claims of price discrimination in the retail independent and institutional markets in violation of section 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a) (1988), and of illegal promotional credits and services offered in violation of sections 2(d) and 2(e) of the Robinson-Patman Act, 15 U.S.C. §§ 13(d), 13(e) (1988); and in Count V, Ash alleges a cause of action for consumer fraud and deceptive practices under Illinois law, Ill.Rev.Stat. ch. 121 ¥2, para. 261 et seq. (1989). DISCUSSION Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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 rule is designed “to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Despite the sometimes contradictory evidence presented in conjunction with a motion for summary judgment, the judge must not weigh the evidence or rule in favor of the merely more persuasive position but rather must determine whether the evidence is sufficient to create “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); see also Illinois Bell Telephone Co. v. Haines & Co., 905 F.2d 1081, 1087 (7th Cir.1990), petition for cert. filed (Nov. 2, 1990). The nonmovant’s evidence must therefore be believed, and reasonable inferences must be drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. A genuine issue exists if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. at 248, 106 S.Ct. at 2510. The standard therefore mirrors the guidelines for a directed verdict, which require the judge to direct a verdict if the evidence permits only one reasonable conclusion. Id. at 250, 106 S.Ct. at 2511. With respect to issues on which the nonmovant bears the burden of proof, the movant need only point out the lack of evidence supporting the nonmovant’s position; the nonmovant then must offer affirmative evidence to create a genuine issue. See Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. The nonmovant’s evidence must present more than a “metaphysical doubt” regarding material facts, and the specific issues must be evaluated in the context of the record as a whole and with reference to the economic plausibility of the nonmovant’s claim. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). If the claim is rendered implausible by virtue of the factual context, the non-movant “must come forward with more persuasive evidence to support [his] claim than would otherwise be necessary.” Id. at 587, 106 S.Ct. at 1356. In the context of this case, an analysis of the evidence is complicated not by the plethora of evidence but by its paucity. Apparently a follow-up to an antitrust case in a different district and involving somewhat different parties and markets, this case is, comparatively speaking, a low-budget affair, with the parties working and reworking the same tidbits of evidence to support their respective positions. A. Sherman Act Section 2 Violation: Attempted Monopolization Section 2 of the Sherman Act reaches not only those firms that successfully attain monopoly status through exclusionary practices but also those that engage in exclusionary practices that would, if successful, accomplish monopolization and, although falling short, “ ‘approach so close [to successful monopolization] as to create a dangerous probability of it.’ ” Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982) (quoting American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 1127, 90 L.Ed. 1575 (1946)); W.H. Brady v. Lem Products, Inc., 659 F.Supp. 1355, 1370 (N.D.Ill.1987). To prevail on a claim of attempted monopolization, a plaintiff must prove “(1) specific intent to achieve monopoly power, (2) predatory or anticompetitive conduct directed to accomplishing this unlawful purpose, and ... (3) a dangerous probability that the attempt to monopolize will be successful.” Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1413 (7th Cir.1989). 1. Specific Intent A showing of mere intent to win the business of rivals does not satisfy the “specific intent” requirement of the attempt offense. See Great Escape, Inc. v. Union City Body Co., 791 F.2d 532, 541 (7th Cir.1986); 3 P. Areeda & D. Turner, Antitrust Law ¶ 822a, at 314-15 (1978). Rather, specific intent to monopolize implies an intent to control prices or destroy competition unreasonably. See United States v. Empire Gas Corp., 537 F.2d 296, 302 (8th Cir.1976), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572 (1977). Although consistently listed in this circuit as a separate inquiry from the anticompetitive or predatory conduct requirement, specific intent is often established by the same evidence that is used to prove exclusionary conduct. See Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980); Great Escape, 791 F.2d at 541; cf Illinois Bell, 905 F.2d at 1087. This conflation of standards is likely a reaction to the difficulty of distinguishing between statements that reveal an actual malevolent intent and statements that reflect competitive zeal; the absence of any anticom-petitive conduct might render an otherwise damning statement benign. See Lektro-Vend, 660 F.2d at 273 (“while some [of defendant’s] references might arguably support a finding of specific intent if the evidence had established the existence of predatory acts or dangerous probability, we cannot say that the district court’s finding of no specific intent was clearly erroneous in light of the plaintiffs’ failure to establish these other factors.”). Conversely, the absence of subjective evidence of intent may give rise to an inference that a defendant’s conduct was motivated by legitimate business purposes. See id. at 272. The specific intent inquiry, however, cannot be completely subsumed within the second prong of the attempt-to-monopolize test. Unlike the offense of actual monopolization, which requires only a showing of the monopolist’s intent to engage in the anticompetitive conduct, an allegation of attempt to monopolize cannot succeed unless the would-be monopolist is shown to have “a specific intent to destroy competition or build monopoly.” Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953). To permit the specific intent requirement to be satisfied by evidence of anticompetitive behavior—even anticompetitive behavior that creates a dangerous probability of monopolization—would eliminate the difference between the two intent standards. Express evidence of specific intent to monopolize, then, should not be disregarded entirely, although rarely would these statements or memoranda, standing alone, be sufficient to establish the requisite intent, for even an apparently unambiguous declaration of an intention to capture the entire market can be dismissed as “rhetoric and hyperbole.” See Schutt Athletic Co. v. Riddell, 727 F.Supp. 1220, 1230 (N.D.Ill.1989). Nevertheless, this evidence, when coupled with an anticompetitive act, may indicate a specific intent to monopolize and, although we do not here decide, may, in some circumstances, by itself establish such an intent. As evidence of Rokeach’s specific intent to monopolize, Ashkanazy directs this court to the deposition of Rabbi Morde-chai Tarkieltaub, the comptroller of Central Kosher from 1982 to 1984, taken in April 1987 during the pendency of the litigation between Mrs. Adler’s Foods Corporation and Rokeach and the B. Manischewitz Company. In that deposition, Rabbi Tarkiel-taub described several conversations that he witnessed involving Irwin Kralstein, the President and Chief Operation Officer of Rokeach and the President of Central Kosher, in which Kralstein announced that he was “going to try to eliminate him [Mr. Ashkanazy] as being a viable competitor of theirs” (Tarkieltaub Dep. at 61). In further support of his assertion that Rokeach intended to monopolize the kosher-for-Passover market, Ashkanazy offers the deposition of another employee of Central Kosher, Jack Schiff, again taken during discovery in the Mrs. Adler’s case. Schiff testified that David Eisenbach, the manager of Central Kosher during part of the period in question, “wanted the business from the largest independents in the Chicago area” and was “out point-blank to break Ash” (Schiff Dep. at 20, 165). Speaking to the institutional market, Schiff observed that Rokeach targeted fish as “a main item that [it] want[ed] to keep [Ash] out of” (id. at 9) and stated further that Central Kosher officers “constantly told me, do what you have to do to get in the nursing homes, keep them out (id. at 32). Although fairly virulent, these statements, without more, do not give rise to a reasonable conclusion that Rokeach intended to monopolize — as opposed to gain a larger share of — the relevant market, and therefore we reserve judgment on the specific intent issue until we consider the evidence of anticompetitive conduct presented by the parties. 2. Anticompetitive or predatory conduct a. Conduct Common to Both Markets (i) Deceptive Representations Ashkanazy alleges in his complaint that one of the techniques undertaken by Rok-each in attempting to secure a monopoly is the publication of “deceptive representations amounting to unfair acts and practices” designed to persuade Ash’s suppliers to discontinue selling to Ash (Complaint H 19(d)). Ashkanazy does not develop this allegation in his memorandum in opposition to Rokeach’s summary judgment motion, and it is apparent from the supporting documents filed by Rokeach that this argument has little substance. Although there is evidence that in 1983 David Eisenbach and Jack Kralstein of Rokeach telephoned two of Ash’s suppliers — Horowitz-Margar-eten and Season Products — to inform them that Ashkanazy was very ill (Ashkanazy Dep. at 160-164; Schiff Dep. at 51), Ashka-nazy concedes that he was in fact quite sick and that he had been advised by his physician that he had cancer and would live only six months longer (Ashkanazy Dep. at 163-66). Rokeach, then, is guilty of no deception regarding Ashkanazy’s illness; certainly Kralstein and Eisenbach could not have known that Ashkanazy would be cured through “Oriental medicine” methods of self-healing (Ashkanazy Dep. at 166). As an additional illustration of Rokeach’s alleged deceptive practices, Ashkanazy asserts, in response to an interrogatory, that “Rokeach executives told Jack Margareten that Rokeach’s sales in the Chicago were grossly overestimated” (Ashkanazy Ans. to Int. No. 17). Ashkanazy apparently touched on the same issue in his deposition, charging Rokeach with “quoting one of my suppliers that he — in my opinion exaggerated figures, which David Eisenbach later confirmed to me was overly stated” (Ash-kanazy Dep. at 160). Each of these descriptions of Rokeach’s remarks hints at deception, but this court cannot glean exactly what representations were made to whom and therefore what anticompetitive activity Ashkanazy is complaining of; there is no elaboration on these charges in Ashkanazy’s memorandum, nor is there any indication of the effects of these allegedly untoward acts. Without further explanation, we cannot consider these remarks to be evidence of anticompetitive behavior. (ii) Interference with Contractual Relations Citing again Rokeach’s efforts to publicize the news of Ashkanazy’s illness, and asserting additionally that Rokeach successfully induced two suppliers to distribute through Central Kosher in Chicago despite agreements between those suppliers and Ash that established Chicago as Ash’s exclusive territory, Ashkanazy accuses Rokeach of interfering with his contractual relations. Assuming without deciding that Rokeach did interfere with a valid exclusive territory agreement, we are not convinced that this behavior rises to the level of anti-competitive behavior. As Professors Aree-da and Turner persuasively explain, the effect of a supplier diverting some of his business from Ash to Rokeach is no different if that diversion violates a contractual agreement with Ash than if it does not; in either ease, “[t]he competitive effect, if any, results from the transfer of resources or patronage away from the rival and to the monopolist. And that is the essence of competition as long as the inducements are lawful and appropriate.” 3 P. Areeda & D. Turner, supra p. 7, H 7381, at 286. The only inducement that Ashkanazy has enumerated in support of this claim is the publication of Ashkanazy’s illness in 1983, and there is no indication that these representations were unlawful or inappropriate. (Hi) Pressure on Ash to Raise Prices In an effort to force Ash to raise prices, Ashkanazy claims in his complaint, Rok-each warned Ashkanazy that his prices were too low and threatened to put on him a “Jewish curse,” apparently a real threat to Ashkanazy in light of his religious and spiritual beliefs. Ashkanazy does not discuss this alleged Jewish curse further, but he does pursue in his memorandum the allegation that Rokeach sought to force Ash to raise his prices. The most incriminating evidence comes from Rabbi Tarkiel-taub, who testified that Kralstein and others at Rokeach “attempted to have his [Ashkanazy’s] suppliers raise his prices in order that his prices be more in line with what Central Kosher’s prices were” (Tar-kieltaub Dep. at 61). The targeted supplier, Tarkieltaub reveals, was Horowitz-Mar-gareten. With respect to direct entreaties to Ashkanazy to raise his prices, the evidence is less striking. David Eisenbach, apparently an officer with Central Kosher, asked whether he ever told Ashkanazy to raise his prices, recalled only advising Ash-kanazy that he was selling at almost below cost and that he was not making any money (Eisenbach Dep. at 46-47, 106); these statements smack less of pricing coercion than of objective business counseling. Nevertheless, the possibility raised in the Tarkieltaub deposition that Rokeach attempted to manipulate Ash’s costs implies an effort to force him to raise prices and suggests anticompetitive behavior. These anticompetitive acts, taken in conjunction with the statements that Rokeach wanted to eliminated Ash from the kosher-for-Passover foods market, may also establish a genuine issue as to specific intent to monopolize. (iv) Predatory Pricing With respect to both the institutional and the retail market, Ashkanazy alleges that Rokeach engaged in a predatory pricing scheme designed to drive Ash out of the kosher-for-Passover food market and to prevent further entry into that market (Complaint 1119(a)). Predatory pricing, as condemned by the antitrust laws, involves the “deliberate sacrifice of current revenues through lower prices for the purpose of driving rivals out of the market.” Jays Foods, Inc. v. Frito-Lay, Inc., 614 F.Supp. 1073, 1076 (N.D.Ill.1985), aff'd, 860 F.2d 1082 (7th Cir.1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1125, 103 L.Ed.2d 188 (1989). To be successful, a predatory pricing scheme must secure for the predator monopoly power to allow recoupment of losses during a sufficiently long period of monopoly pricing. See American Academic Suppliers, Inc. v. Beckley-Cardy, Inc., No. 88 C 2526, 1990 WL 16175 (N.D.Ill. Jan. 31, 1990), aff'd, 922 F.2d 1317 (7th Cir.1991). In proscribing this activity, the antitrust laws recognize that price cutting, although usually a blessing to both consumers and competition, can in some instances threaten the continued vitality of competition and ultimately lead to monopoly-level prices. Analysis in this area, then, seeks to distinguish beneficial price cutting from illicit predation; to make this determination, courts compare the price charged by the defendant with the cost of producing the product in question. As a general matter, prices that exceed the relevant cost measure will be deemed to reflect “beneficial aggressive competition” and will exonerate the defendant. A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1400 (7th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). On the other hand, below-cost pricing “may reflect a sacrifice in the hope of suppressing competition and collecting a monopoly profit later.” Id. Selecting the appropriate measure of cost so that only anticompetitive conduct is condemned, attaining accurate price and cost data, and measuring cost, however, make this inquiry quite complex. See A.A. Poultry, 881 F.2d at 1400; Northeastern Telephone Co. v. American Telephone & Telegraph Co., 651 F.2d 76, 86-90 (2d Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 654 (1982) (exploring different theories of cost measures); Henry v. Chloride, 809 F.2d 1334, 1345-46 (8th Cir.1987) (same). Mindful of these hazards, the Seventh Circuit has adopted an approach, its logic rooted in the speculative nature of any predatory pricing strategy, that bypasses the price/cost analysis in many cases and focuses instead on the possibility of recoupment. See A.A. Poultry, 881 F.2d at 1401. To the extent that the market conditions are not auspicious for future recoupment, A.A. Poultry reasons, courts should not be concerned with suspicious pricing activity for two reasons: first, it can be inferred that prices are not predatory, for no rational economic actor would purposefully price at an unprofitable level if no future gain will compensate for those losses and provide a return on the “investment” of the foregone profits. See also Matsushita, 475 U.S. at 588-89, 106 S.Ct. at 1357. Moreover, even if the defendant is pricing below cost, later supracom-petitive prices will not endure if recoupment is not possible, and neither consumers nor competition will be harmed. A.A. Poultry, 881 F.2d at 1401. A.A. Poultry therefore instructs that the existence of predatory pricing, ascertained by comparing price and cost, need only be determined “if market structure makes recoupment feasible.” Id. Accordingly, we defer discussion of Ashkanazy’s allegations of predatory pricing for now, to be picked up when we explore whether Rokeach’s actions have created a dangerous possibility of successful monopolization. b. Conduct Aimed at Retail Market (i) Price-fixing scheme A horizontal agreement to control prices in violation of section 1 of the Sherman Act certainly constitutes anticompetitive behavior for the purpose of section 2. Accusing Rokeach of illegal price-fixing behavior, Ashkanazy directs this court to a Wall Street Journal article regarding a federal antitrust investigation in the kosher food industry (Ashkanazy Ex. 16). This article, however, besides being hearsay and not probative of anything, speaks in rather vague terms of “alleged antitrust violations” without ever mentioning the substance of those violations. Moreover, the article merely implies that one of Rok-each’s rivals, the B. Manischewitz Company (“Manischewitz”), is implicated in this investigation and contains no reference to Rokeach — or concerted action — whatever. It is quite a stretch, then, to infer from the article that Rokeach and Manischewitz conspired to fix prices. The record does contain, however, deposition testimony that supports Ashkanazy’s allegation. Discussing Central Kosher’s gefilte fish pricing practices, Jack Schiff revealed that during the last several months that he worked for Central Kosher, David Eisenbach told him “to drop prices no more against Manischewitz, agreement was reached with Manischewitz on prices of fish” (Schiff Dep. at 32). It appears that this statement was developed through further questioning, but Ashkanazy omits from his exhibit the ensuing testimony; nevertheless, the implication of illegal price fixing remains and is sufficient to preserve for now the issue of whether Rokeach committed any anticompetitive acts with respect to the retail market for kosher-for-Passover foods. c. Conduct Aimed at Institutional Market (i) Bribes and Secret Deals To obtain the patronage of Econocare, Ashkanazy asserts, Rokeach engaged in “a system of bribes and secret dealings” with the president of Econocare, Alan Gluck. Ashkanazy explains in his affidavit that the “secret dealings” consist of “an arrangement ... to distribute [Central Kosher’s] private label shampoo and body lotion when Econocare received orders for shampoo and body lotion from its member nursing homes” (Ashkanazy Affidavit ¶ 10). Although Ashkanazy indicates that Gluck could have purchased these goods for less elsewhere, there is no indication that the decision to distribute Central’s products was prompted by anticompetitive behavior; spurning lower-priced goods is not necessarily inconsistent with sound business judgment, and Ashkanazy has offered no additional evidence suggesting that an anti-competitive explanation of this behavior is more plausible. Cf. Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356 (“conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy” under Sherman Act section 1). Even if the arrangement were illegitimate, moreover, Ashkanazy has not explained how this “secret dealing” has created an unwarranted preference for Rokeach’s kosher-for-Passover foods on the part of Econo-care. As evidence of bribery, Ashkanazy offers four invoices documenting the delivery of complimentary or reduced-price chicken, wine, champagne, and fruit juice to Gluck’s address (Ashkanazy Ex. 21). Indeed, Gluck admitted in his deposition that he occasionally received goods that he personally ordered from Central Kosher for no charge even though he expected — and offered — to pay for them (Gluck Dep. at 81-82). The offense of commercial bribery, however, requires that the benefit be conferred upon an “employee, agent or fiduciary without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs.” Ill.Rev.Stat. ch. 38, § 29A-1 (1989). Gluck is the president and owner of Econocare, Inc. (Gluck Dep. at 4), and as such is incapable of being bribed. 3. Dangerous Probability of Success That a defendant engages in “unfair, impolite, or unethical” conduct is not enough to subject him to liability for attempt to monopolize; in addition, the plaintiff must demonstrate that this conduct creates a substantial threat of monopolization. See Indiana Grocery, 864 F.2d at 1413. Because section 2 of the Sherman Act reaches neither monopolization obtained by proper means nor exclusionary conduct that does not threaten monopolization, a violation will only be found where there is a causal link between the anticom-petitive behavior and the dangerous probability of success, cf. A.A. Poultry, 881 F.2d at 1403; Lektro-Vend, 660 F.2d at 272; that is, the specific acts alleged to be improper must make a significant contribution to the power of the defendant and the likelihood that a monopoly will emerge. See 3 P. Areeda & D. Turner, supra p. 7, ¶ 827, at 320-21. a. Dangerous Probability — Retail Market (i) Attempt to Force Ash to Raise Prices Rokeach’s possible attempt to pressure Ash into raising prices could be viewed as seeking to manipulate the price that Ash's suppliers charged and therefore potentially affecting both the retail and institutional markets. We consider first the impact that such efforts will likely have on the retail market. The only supplier targeted by Rokeach in its attempt to increase Ash’s costs, Rabbi Tarkieltaub testified, was Horowitz-Margareten, and the evidence indicates that only matzo products were implicated. To the extent that Horowitz-Margareten succumbed to Rok-each’s exhortations, there is no evidence that Ash could not purchase matzo products from another supplier at competitive prices. Nor does Ashkanazy demonstrate that increased costs associated with matzo products affected his vitality as a competitor in the kosher-for-Passover food market; because this court has no evidence of the percentage of Ash’s sales attributable to matzo products, we are unable to determine the effect that a decrease in Ash’s matzo sales would have on his position in the broader market at issue here. Ashkanazy’s claim is most significantly undercut, however, by the complete lack of evidence that any prices on Ash’s supplies were actually increased. However malicious Rokeach’s intent, and however vociferous its attempts to persuade Horowitz-Margareten to sell to Ash at higher prices, this behavior is not condemned by Sherman Act section 2 unless it contributes to the likelihood that Rokeach will secure a monopoly in the kosher-for-Passover food market. And if the anticompetitive activity is not successful — if Ash’s costs are not increased as a result of Rokeach’s efforts — Rokeach will be no closer to monopoly than if it kept its nose clean. There is simply no evidence in the record that Horowitz-Margareten raised its prices to Ash in response to Rokeach’s pressures. Neither party, apparently, deposed any officer of Horowitz-Margareten; Tarkieltaub’s testimony does not speak to the question of whether Rokeach’s attempts were successful; and Ashkanazy does not document, either in his deposition or in his affidavit, that Horowitz-Margareten’s matzo prices rose at any time during the relevant period. We cannot conclude, therefore, that Ash or competition in general were injured by Rokeach’s bid to raise prices. This finding extends also to Rokeach’s efforts to increase Ash’s costs with respect the institutional market. (ii) Rlegal Price Fixing Although we found the evidence of price collusion between Manischewitz and Rokeach sufficient to constitute an exclusionary act, it is too limited in scope and in duration to create a dangerous probability of monopolization. The only admissible evidence on this issue was a statement of a Central Kosher salesman indicating that an officer of Central Kosher and Rokeach instructed him in 1984 to cease dropping prices against Manischewitz in light of an agreement “on prices of fish.” Without more, this statement cannot support a conclusion that a monopoly is likely to result from a price-fixing scheme. Although Rok-each and Manischewitz together have 80 to 85% of the relevant retail market (Ashkana-zy Dep. at 109), this figure corresponds to the market for kosher-for-Passover foods (including gefilte fish, borscht, canned vegetable soups, and matzo products). By contrast, the price fixing alluded to by Schiff implicates only the retail sale of gefilte fish. Ashkanazy does not allege in his complaint or describe anywhere in its memorandum a submarket of gefilte fish, and even if such a submarket had been established, we have no figures for the combined market share of Rokeach and Manischewitz in that market. Gefilte fish, then, is merely a component of the relevant market in this case. To determine the impact of ge-filte fish price collusion on competition in the market at issue here, then, we need to know not only the shares of gefilte fish sales attributable to each of the relevant actors but also the percentage of the kosher-for-Passover food market that is attributable to gefilte fish. Moreover, there is no indication of the duration of the price fixing or even that it occurred. No one has submitted any comparative price data, so we do not know what price parallelism, if any, there may have been. A temporary intention to end a price war between competitors, for example, does not imply the sort of price coordination that would likely inhibit competition. Without evidence of the market share created by the alleged price fixing and the length of time that the rivals colluded, there is no basis to conclude that this illegal activity created a dangerous possibility of Rokeach monopolizing the kosher-for-Passover food market. (Hi) Predatory Pricing. As explained supra, analysis of a claim that the defendant engaged in predatory pricing begins with a determination of whether the relevant market structure makes recoupment of the losses endured during the period of below-cost pricing possible — that is, whether the defendant can eliminate rivals from the market and keep them out. The predatory pricing scheme asserted with respect to the retail independent market is quite confined; it spans only the Passover seasons of 1983 through 1986 and extends only to five independent retailers: Tel Aviv Supermarket, Milk Pail, Hungarian Sausage and Supermarket Company, New York Kosher, and Kosher City (Ashkanazy Ans. to Int. No. 9). The products implicated are gefilte fish, matzo products, borscht, and Passover bakery products (id). The very limited nature of the alleged predatory-pricing scheme alone seems to doom it to failure. Leaving aside the fact that the scheme involved only three of the four components of the kosher-for-Passover food market (canned vegetable soups apparently were not implicated, and Passover bakery products fall outside the purview of this action), the noncomprehensive pattern of predation could not reasonably have been thought to force competitors out of the market. Rokeach’s predatory-pricing scheme targeted five retail independent stores in the relevant geographic area; by contrast, Ash has sold to twenty-four in the same area since 1983. Even assuming Ash’s customers to complete the universe of independent stores selling kosher-for-Passover products, the number of stores included in Rokeach’s scheme appears to be insufficient to wreak the sort of economic havoc on its competitors that would drive them from the market. To the extent that Ash and Manischewitz and other potential rivals were foreclosed from the five targeted stores, nineteen stores remained for them in which they could freely compete for business. It strikes this court as highly improbable that such a limited strategy of price cutting could be expected to ruin competitors and secure a monopoly for Rok-each; rivals would therefore remain free to reenter the foreclosed part of the market as soon as Rokeach started the recoupment stage of its predatory pricing scheme. See American Academic Suppliers, at 1320-21. The structure of the retail independent market underscores the futility of the plan. In his complaint, Ashkanazy alleges Rok-each’s share of the kosher-for-Passover food retail market to be 40%, and Rokeach accepts this estimation for the purpose of this motion. Pointing to the deposition testimony of David Eisenbach, Ashkanazy amends that figure to 70%, which Rokeach persuasively contests. To be sure, in both of the cited passages Eisenbach mentioned a 70% share, but a quick examination of the testimony reveals that in neither case was Eisenbach referring to Rokeach’s share of the independent retail market in kosher-for-Passover foods; at page 18 of the deposition, Eisenbach was clearly estimating the percentage of Central Kosher’s retail sales to independent as opposed to chain stores, and at page 100, Central Kosher’s share of sales of gefilte fish to retail independents was discussed. The only proffered figure with any support in the record, then, is the 40% estimation originally asserted (see Ash-kanazy Dep. at 109). The measured percentage of Rokeach’s market share, Ashkanazy additionally asserts, understates its market power in light of the evidence of price collusion between Rokeach and Manischewitz, who Ashkana-zy claims accounts for 45 to 50% of the retail independent market (Ashkanazy. Dep. at 109). As explained supra, however, this price fixing implicates only ge-filte fish, and we are unable to assess the effect of this scheme on Rokeach’s constructive share of the kosher-for-Passover food market without additional evidence. Recouping losses associated with predatory pricing, moreover, requires that a predator be able to charge monopoly prices for an extended period of time following the period of below-cost pricing. The allegation of price fixing refers only to 1984; there is no corroborating evidence of deliberate parallel pricing, whether persisting through the pendency of the predatory-pricing scheme (1983-1986) or continuing after its conclusion (1987 to present). Such data, we note, would not have been unduly difficult to compile — Ashkanazy needed only to compare Ash’s gefilte fish prices with Manis-chewitz’s from 1984 to present. Evidence of price coordination in 1984, if it existed, has no bearing on the possibility of recouping losses associated with a predatory-pricing scheme that continued until 1986. For the purpose of this inquiry, therefore, we conclude that Rokeach’s share of the relevant market is 40%. Rokeach’s share therefore exceeds the 30% mark that has frequently been pronounced insufficient as a matter of law to confer market power. See A.A. Poultry, 881 F.2d at 1403 (citing cases). But even higher market shares may not trigger antitrust concern if mitigating factors, such as low entry barriers, are present. See Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1335 (7th Cir.1986); Empire Gas, 537 F.2d at 305; Schutt Athletic, 727 F.Supp. at 1231. Assuming arguendo that Ash, the smallest of Rokeach’s rivals in the retail independent market with 15% of the market, could reasonably be expected to be forced out as a result of the predatory pricing scheme, monopoly pricing would not be sustainable. Manischewitz, a national concern with a 45 to 50% share of the Chicago area retail independent market, competes with Rok-each in both the retail independent and the retail chain markets, and even if it were forced to leave the independent market because of Rokeach’s below cost prices, it would remain a potential competitor in that market and would grasp the opportunity of supracompetitive prices to regain its market position. In addition to Manischewitz’s commanding presence as an enforcer of a competitive pricing structure, there is no indication that high entry barriers would prevent new rivals from entering the market to compete with Rokeach. In attempting to create an issue of fact on the question of entry barriers, Ashkanazy borrows from the Mrs. Adler’s litigation Professor Mueller’s report attesting to high barriers to entry in the gefilte fish and matzo markets. Relying only on this evidence, Ashkanazy ignores two of the four products that are included in the relevant market. More significantly, this report, geared in part to the particular requirements of the Mrs. Adler’s case, speaks to barriers of entry that may frustrate potential producers of matzo meal and gefilte fish. By contrast, a viable rival in this case could fashion itself after Ash and would require only a supplier, warehouse space, a telephone, and a car to compete {see Ashkanazy Dep. at 22-23). A potential competitor, then, does not need to build new productive assets or accumulate a significant amount of initial capital to enter the market; even alone in the market, then, Rokeach’s control over prices would be seriously restricted. See Ball Memorial Hospital, 784 F.2d at 1335; C.A.T. Industrial Disposal, Inc. v. Browning-Ferris Industries, 884 F.2d 209, 211 (5th Cir.1989). Rokeach’s pattern of below-cost pricing, Ashkanazy alleges, lasted from 1983 to 1986. Three to four years of suffering losses would require a substantial period of supracompetitive prices to permit recoupment, see American Academic Suppliers, at 1320-21, affording potential rivals a significant window of opportunity for entrance and rendering the success of Rokeach’s scheme highly unlikely. The predatory pricing scheme that Ashkanazy alleges had been completed for nearly three years at the time this motion was filed. Although Sherman Act section 2’s proscription of attempt to monopolize penalizes the attempt itself and does not require that a monopoly in fact ensue, subsequent market performance, while not conclusive, is useful in evaluating the defendant’s “capacity to monopolize at the time of the supposed attempts.” Lektro-Vend, 660 F.2d at 271. Indeed, in A.A. Poultry, the Seventh Circuit appears to explore not only whether recoupment was possible but also whether it in fact occurred. See 881 F.2d at 1403-04 (concluding that “no rational jury could have found that recoupment took place, could have taken place, or conceivably could take place in the future”). We therefore turn to an evaluation of the retail independent market structure during the period of alleged re-coupment, 1987 to present. We note initially that Ashkanazy has offered no evidence suggesting that Rokeach now has a larger market share than it did before it undertook the predatory pricing scheme or that pre-1983 competitors have been eliminated from the market. The market share figures (40% Rokeach, 45-50% Manischewitz, and 15% Ash) are provided without any temporal indication and are not compared with other figures corresponding to earlier or later dates. Without updated calculations, we must assume that the market shares of the main actors in the retail independent market have remained constant. In particular, Ashkanazy himself, while complaining of improper behavior, appears to be no less hearty a competitor now than he was before 1983. He claims in his affidavit that his unit sales have decreased by 50%, but there is no indication that this decline represents an eroding market position; Ashkanazy does not provide corresponding information about the growth of unit sales market wide. Indeed, there is no indication that Ash’s market share has declined or that he now sells to fewer independent stores than he did pre-1983. Ash’s profits on kosher foods have remained fairly constant since 1980 despite his assertion that in 1983-88 he realized a profit of 2% each year, a return 10% lower than the “normal” level (Ashkanazy. Aff. ¶ 16). Ashkanazy’s claim of a 12% normal net profit is not credible in light of Rok-each’s calculations, which are based on Ashkanazy’s tax returns and his claim that approximately 50% of his profits are attributable to kosher food sales. Thus in 1980, Ashkanazy realized $4732 on $191,-150 of kosher sales, resulting in a net profit of 2.4%. Similar calculations yield a 1.8% return in both 1981 and 1982. That Ash is a less viable competitor today than he was before Rokeach instituted its predatory-pricing scheme, then, is not supported by the record. Nor is Ashkanazy’s evidence that Rok-each is now recouping losses by supracom-petitive pricing believable. Ashkanazy bases its argument on several charts documenting the price increases from 1983 to 1987 on various sizes of gefilte fish; the percentage increase is then compared to the 1989 World Almanac’s report of the Consumer Price Index annual percentage change for food items. The numbers provided by Ashkanazy are incapable of demonstrating supracompetitive pricing, however, because they are not compared to the costs associated with producing the gefilte fish for those years. We cannot simply infer that the cost increases were average and that any price increase above the average level for all food items reflects a monopoly. Production of kosher-for-Passover food is characterized by many idiosyncra-cies regarding the raw materials, the labor force, and the manufacturing process; a slight change in the supply of any of these production ingredients can have a significant impact on the cost of manufacturing. It strikes this court as unfathomable, moreover, that recoupment could now be taking place, for Manischewitz and Ash are still competing in the retail independent market. Indeed, in a May 1987 deposition, Ashkanazy testified that he had no plans to expand his business because his overhead would surpass his profits and he would realize no gain (Ashkanazy Dep. at 33). Certainly if retail independent prices were at supracompetitive levels, Ashkanazy would not hesitate to increase his sales to the full extent possible. Our review of the record leads us to conclude that Ashkanazy has been unsuccessful in his bid to create a genuine issue of fact on the question of whether recoupment took place, could have taken place or possibly will take place, and, accordingly, our analysis of the predatory pricing claim need not go any further. Because the remaining acts that we found to be plausibly anticompetitive unquestionably could not create a dangerous possibility of monopolization, we grant Rokeach’s summary judgment motion with respect to Ashkanazy’s claim that Rokeach attempted to monopolize the retail independent market, b. Institutional Market (i) Predatory Pricing With respect to the institutional market, Ashkanazy has again, in his answer to Rokeach’s interrogatories, limited the scope of Rokeach’s alleged predatory pricing. Rokeach practiced below-cost pricing, Ashkanazy claims, with respect to “Passover institutional items which Rok-each purchased and even picked up from Plaintiff” (Ashkanazy Ans. to Int. No. 11). These products were sold below cost to “[¡Institutions such as Sheridan Gardens Nursing Homes, Ambassador Nursing Home, [and] Buckingham Nursing Home” (id.). There is no durational limitation, however, and although only three nursing homes are explicitly mentioned, the list is clearly not meant to be exhaustive; the “institutions such as” language suggests that the named homes are merely illustrative. Ashkanazy’s description of the products implicated by the predatory pricing scheme, however, is not capable of an expansive interpretation and is fatal to his predatory pricing claim. Nowhere in Ashkanazy’s complaint, memorandum, or exhibits, does he quantify the percentage of Rokeach’s sales that involve products purchased from Ash; yet those products represent the extent of the alleged predatory pricing in the institutional market. Indeed, Ashkanazy’s absolute silence on this issue, both on the buying end (no indication that Rokeach bought any products from Ash) and on the selling end (Ashkanazy never mentions Rokeach as a customer) suggests that these sales are extremely insignificant. The complete lack of evidence regarding the significance of these products to Rok-each’s overall sales to institutions prevents us from determining whether the predatory pricing scheme could eliminate Ash as a competitor and permit the recoupment of losses. Even if products purchased from Ash constituted a significant part of Rok-each's sales to institutions, Ashkanazy’s response to the interrogatory asserts that Rokeach resold these products at a 10 to 15% markup. Whether or not the prices on these goods were exceeded by costs, these sales would never successfully eliminate Ash as a competitor because the prices are necessarily set at levels above the cost at which Ash can profitably sell. We recognize that Rokeach’s market share is quite high — Ashkanazy has alleged a 75 to 80% market share attributable to Rokeach, with Ash accounting for the remaining 20%, and Rokeach does not contest these figures — and that entry barriers may exist in light of the presence of Econocare, a group purchasing agent servicing institutions in the relevant market. But these factors are not relevant if Rokeach cannot secure a monopoly in the institutional market, see Indiana Grocery, 864 F.2d at 1415, and it is unquestionably implausible that the limited predatory pricing scheme at issue here could gain for Rokeach a larger piece of the market than it currently has. Despite the perplexing nature of Ashkana-zy’s description of the predatory pricing scheme in the institutional market, this court is bound by it. Accordingly, we are compelled to conclude that Ashkanazy has failed to meet his burden of producing evidence of the economic plausibility of the asserted predatory pricing in the institutional market. B. Robinson-Patman Act Violations In making out a claim against Rok-each on Robinson-Patman grounds, Ashka-nazy alleges violations of section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, which prohibits direct discrimination in the price of like goods sold to different purchasers, as well as of sections 2(d) and (e), which forbid indirect price discrimination in the form of promotional payments or allowances. Section 2(a) provides, in relevant part: It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce ... and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.... 15 U.S.C. § 13(a) (1988). Disgruntled competitors both of the discriminator-defendant and of his favored buyers may challenge price discrimination under this provision. Ashkanazy is apparently asserting his section 2(a) claim in his capacity as a competitor of Rokeach — a claim of “primary-line injury” — for there is no indication in the complaint or in subsequent filings that Ash uses Rokeach as a supplier (although there is a suggestion that Rokeach may purchase some goods from Ash). Where a primary-line injury is alleged, a plaintiff makes out a prima facie case of a violation if he can show (1) that section 2(a)’s three “in commerce” tests are satisfied; (2) that he is in competition with the defendant; (3) that different prices were charged to different customers for the same goods; and (4) that there is “a reasonable possibility that [this discrimination] may harm competition.” Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 434-35, 103 S.Ct. 1282, 1288, 75 L.Ed.2d 174 (1983). Rokeach urges dismissal of Ashkanazy’s Robinson-Patman claim on the grounds that Ashka-nazy cannot establish the first and fourth of these requirements. 1. The “in Commerce” Requirement As a jurisdictional matter, section 2(a) is triggered only upon the satisfaction of three different “in commerce” tests: “first, the discriminator must be ‘in commerce’; second, the challenged discrimination must occur ‘in the course of such commerce’; and third, ‘either or any of the purchases involved in such discrimination [must be] in commerce.’ ” Mayer Paving & Asphalt Co. v. General Dynamics Corp., 486 F.2d 763, 766 (7th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 899, 39 L.Ed.2d 102 (1974). The third of these inquiries encompasses the first two, see 1 P. Areeda and D. Turner, Antitrust Law ¶ 233c, at 248 (1978); cf. Mayer Paving, 486 F.2d at 766, and therefore it comes as little surprise that Rokeach focuses exclusively on the third test in its motion for summary judgment. The purview of section 2(a)’s “in commerce” provision is much narrower in scope than the Sherman Act’s jurisdictional requirement, which is satisfied whenever interstate commerce is affected. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974) (rejecting the “nexus to commerce” standard for section 2(a) of the Robinson-Patman Act). By contrast, section 2(a) applies only if “at least one of the two transactions which, when compared, generate a discrimination” crosses a state line. F. Rowe, Price Discrimination Under the Robinson-Patman Act 79 (1962). Where, as here, the plaintiff-victim is a competitor of the defendant-discriminator — so-called “primary-line injury” cases — an interstate sale in either the victim’s market or in the market where the defendant is allegedly charging lower prices will satisfy the jurisdictional requirement. See 1 P. Areeda & D. Turner, supra, ¶ 233c, at 249; Moore v. Mead’s Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 (1954) (jurisdiction found despite the intrastate nature of the sales in the victim's market where “the beneficiary is an interstate business; the treasury used to finance the warfare is drawn from interstate, as well as local, sources ...; and the prices on the interstate sales ... are kept high while the local prices are lowered”). The nature of the victim’s sales in primary-line injury cases, therefore, is irrelevant; a plaintiff may allege a section 2(a) violation even if his business transactions are limited to intrastate sales. See Moore’s, 348 U.S. at 119, 75 S.Ct. at 150. It appears that Rokeach’s products are sold out of New Jersey while the discriminatory sales of which Ashkanazy is complaining involved purchases made in Illinois. Rokeach claims, however, that its goods “come to rest in Illinois, a mark-up is added, and then they are sold” (Defendant’s Memorandum at 17); without developing the theory, Rokeach is apparently arguing that the allegedly discriminatory sales originated in Illinois because the products are stored there temporarily. But mere local storage of goods that originate out of state does not necessarily interrupt the “economic continuity” of the interstate transaction, Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 877, 879 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983), and therefore does not nullify the interstate nature of those sales. See Standard Oil v. Federal Trade Comm’n, 340 U.S. 231, 237-38, 71 S.Ct. 240, 243-44, 95 L.Ed. 239 (1951) (despite temporary local storage of gasoline in Michigan, the “flow of the stream of commerce” surged continuously from Indiana to Detroit); Bargain Car Wash, Inc. v. Standard Oil Co., 466 F.2d 1163, 1166 (7th Cir.1972). Nor is it relevant, on this motion for summary judgment, that the goods are distributed in Chicago not by Rokeach itself but by a distributing subsidiary, Central Kosher. Although Rokeach did not own all of Central Kosher’s stock at the time of the alleged violations, Rokeach has accepted responsibility for Central Kosher’s actions for the purposes of this motion, admitting provisionally that “the actions of Central Kosher are attributable to Rokeach, and that Rokeach competes in Chicago through Central Kosher” (Defendant’s Memorandum at 4 n. 2). Even without this concession on the part of Rokeach, however, its bifurcated sales system would not necessarily remove the sales from commerce. Only if the goods are ultimately sold by “franchised distributors or bona fide independent subsidiaries” can Robinson-Patman jurisdiction be avoided. See F. Rowe, supra p. 1546, at 81; Hiram Walker, Inc. v. A & S Tropical, Inc., 407 F.2d 4, 9 (5th Cir.), cert. denied, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969). If it can be shown that the parent actively controls the subsidiary, the subsidiary’s sales will be imputed to the parent, see Acme Refrigeration, Inc. v. Whirlpool Corp., 785 F.2d 1240, 1243 (5th Cir.), cert. denied, 479 U.S. 848, 107 S.Ct. 171, 93 L.Ed.2d 108 (1986), and the intervention of the distributing subsidiary will not interrupt the flow of commerce. To assess the independence of the subsidiary, a question of fact, courts look to how much control the parent exerts over the subsidiary’s pricing and marketing decisions. See Zoslaw, 693 F.2d at 880; Taggart v. Rutledge, 657 F.Supp. 1420, 1439 (D.Mont.1987), aff'd, 852 F.2d 1290 (9th Cir.1988). The evidence before this court—and especially the deposition of Rabbi Mordechai Tarkieltaub, Central Kosher’s Comptroller between 1982 and 1984 — certainly documents a sufficient factual dispute on the issue of independence to prevent us from ruling on it at this time. 2. The Injury to Competition Requirement In the Seventh Circuit’s most recent pronouncement on price discrimination, Judge Easterbrook, rejecting the argument that the standard for injury to competition under the Robinson-Patman Act is coextensive with the standard for liability for predatory pricing under the Sherman Act, held that lower federal courts must follow the approach of the Supreme Court’s Utah Pie opinion in assessing whether the discrimination at issue poses a sufficient threat to competition. See A.A. Poultry, 881 F.2d at 1404-05 (invoking Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967)). A.A. Poultry, however, fails to articulate clearly the precise Utah Pie mandate that must be obeyed; Judge Easterbrook writes merely that “Utah Pie holds that the Robinson-Patman Act condemns at least some primary-line price discrimination that the Sherman Act permits.” 881 F.2d at 1405. Beyond that statement, he simply refers to factors on which the Utah Pie Court relied in determining that the jury in that case had been justified in finding illegal price discrimination. See 881 F.2d at 1404 (“price discrimination in an oligopolistic market contributing to the erosion of price levels may violate the statute”) (emphasis added); id. at 1406 (“Utah Pie ... recited that ‘predatory intent’ coupled with ‘unreasonably low prices’ may be the basis of liability”) (emphasis added); id. (“Utah Pie held that the firm taking the lead in reducing prices may be liable on account of a ‘drastically declining price structure’ in a ‘highly competitive’ market”) (emphasis added); id. (“a few references in Utah Pie imply that the relation between price and cost matters” (citations omitted)). Utah Pie does not give any of these factors dispositive weight, however, and certainly does not form around them a rigid test to assess the effects on competition. See The Supreme Court, 1966 Term — Leading Cases, 81 Harv.L.Rev. 112, 242 (1967). To apply the holding of Utah Pie, then, we must examine exactly what that case requires. After canvassing the evidence of illegal price discrimination adduced with respect to each of the three defendants, the Utah Pie Court discussed in more general terms the scope of activity that Congress intended to deter in passing the Robinson-Pat-man Act. 386 U.S. at 702-03, 87 S.Ct. at 1335-36. In categorical terms, the Court observed that cases involving blatant predatory price discrimination “present courts with no difficulty, for such pricing is clearly within the heart of the proscription of the Act.” 386 U.S. at 702, 87 S.Ct. at 1335. Predatory intent, the Court continued, “might bear on the likel