Full opinion text
ORDER OF THE COURT CAMP, District Judge. This is a complex antitrust case consisting of Plaintiffs eighteen count Complaint and Defendant’s eleven counterclaims. The matter is presently before the Court on Defendant Siemens Medical Systems, Inc.’s (“SMS”) Motion for Summary Judgment [# 139]; Plaintiff Servicetrends, Inc.’s (“Ser-vicetrends”) Motion for Summary Judgment on Counterclaims .,[# 147]; and Plaintiffs Motion to Add Defendants [# 50]. For the following reasons, Defendant’s motion for summary judgment is GRANTED in part and DENIED in part. Plaintiffs motion for summary judgment on Defendant’s counterclaims is GRANTED. Plaintiffs motion to add Defendants is DENIED. TABLE OF CONTENTS I. Background 1049 II. Summary Judgment Standard 1050 III. Defendant’s Motion for Summary Judgment ■ 1051 A Monopolization and Attempted Monopolization 1051 1. The Evils of Monopoly Power 1052 2. The Relevant Product Markets 1054 3. Monopolistic Conduct " 1054 (a) The Essential Facilities Doctrine 1055 (b) Monopoly Leveraging 1057 (c) Price Discrimination 1057 4. Conclusion 1059 B. Tying Arrangements 1059 C. Predatory Pricing Claims 1062 D. Exclusive Dealing & Concerted Refusal to Deal 1064 1. Exclusive Dealing 1064 2. Concerted Refusal to Deal 1066 E. Disparagement and Tortious Interference 1067 1. The Legal Effect of Disparagement 1067 2. Tortious Interference ■ 1068 F. Damages 1069 IV. Plaintiffs Motion for Judgment on Counterclaims 1069 A. Supplemental Facts and Analysis 1069 1. Geographic Market 1069 2. Product Market 1070 3. Market Power 1070 4. Antitrust Injury . ' 1071 B. Defendant’s Antitrust Counterclaims 1071 1. Section 7 of the Clayton Act 1071 2. Conspiracy to Monopolize 1072 3. Monopolization and Attempt 1072 C. Defendant’s Business Tort Counterclaims 1073 1. Disparagement & Unfair Trade Practices 1073 2. Misappropriation of Confidential Info. 1073 3. Tortious Interference 1074 4. Unjust Enrichment 1076 V. Plaintiffs Motion to Add Defendants 1076 VI. Summary 1076 I. BACKGROUND Siemens Medical Systems, Inc. is the American subsidiary of the German conglomerate Siemens Aktiengesellschaft (“Siemens AG”). Siemens AG manufactures the “Lithostar,” a non-invasive medical device known as a lithotripter, which dissolves kidney stones by projecting high energy shock waves into the human body. The Lithostar is one of several brands of lithotripters available from different manufacturers. The Lithostar costs about $1.5 million, is durable and long lasting, but requires frequent maintenance and periodic replacement of parts. Defendant SMS is the exclusive distributor of the Lithostar in the United States, providing sales, service and maintenance contracts after installation. Of the total 378 lithotrip-ters currently in use in this country, 80 are Siemens Lithostars. SMS has contracts with equipment owners to service 67 or 68 Lithostars, amounting to about 85% of the total number of installed Lithostars but only 18% of the total lithotripters in the U.S. Plaintiff Servicetrends is an independent service company incorporated in July, 1992, to provide maintenance for lithotripters. The company’s sole business is servicing the Siemens Lithostar and its competitors, such as the Dornier HM-3. Servicetrends does not operate lithotripters for patient treatment. To date, Servicetrends has secured service contracts on 12 or 13 Lithostars, approximately 16% of the potential Lithostar service contracts available in the United States. Servicetrends also has 27 contracts to service the Dornier HM-3. The Lithostar is composed of numerous parts, among them the shocktube, the spark gap, and the shockwave generator. Plaintiff labels these “replacement parts.” Replacement parts are modular units made up of several components. Siemens AG is Defendant’s sole source of replacement parts, and Defendant is the sole distributor of Lithostar brand replacement parts in the United States. SMS provides replacement parts to its own service personnel for use in servicing equipment, and sells the same replacement parts to equipment owners and independent service organizations, including Service-trends. SMS services Lithostars at the modular replacement part level only and does not sell or service the individual components that make up the replacement parts. Although Lithostar parts are not interchangeable with parts produced by other li-thotripter manufacturers, components made by independent manufacturers (“OEM’s”) can be purchased separately and used to repair the Lithostar without buying Siemens’ modular replacement parts. For example, Servicetrends buys the spark gap and the shockwave generator components from OEM’s and uses these components to service a customer’s Lithostar on site. However, Servicetrends can buy the shocktube replacement part only in its modular form and only from SMS. ■ Plaintiff says that SMS forces Lithostar buyers to use SMS parts and repair services, thereby precluding Servicetrends from competing in the market for replacement parts and service contracts. In an extensive eighteen count complaint, Servicetrends alleges a wide variety of antitrust and business tort claims. Servicetrends contends that SMS engages in illegal tying arrangements, monopolization and attempted monopolization of markets for service and parts for lithotrip-ters and Lithostars, exclusive dealing, concerted refusal to deal, violations of the Lan-ham Act and the Georgia Unfair Trade Practices Act, and tortious interference. Plaintiff seeks relief as provided under the Sherman and Clayton Acts — treble damages, injunc-tive relief, and attorneys’ fees. II. SUMMARY JUDGMENT STANDARD ■ Rule 56(c), Fed.R.Civ.P., defines the standard for summary judgment: Courts should grant summary judgment when “there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law.” The general rule of summary judgment in the Eleventh Circuit states that the moving party must show the court that no genuine issue of material fact should be decided at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). “[Ujnless the movant for summary judgment meets its burden under Rule 56, the obligation of the opposing party does not arise even if no opposing evidentiary material is presented by the party opposing the motion.” Id. While all evidence and factual inferences are to be viewed in a light most favorable to the nonmoving party, Rollins v. Tech-South, Inc., 833 F.2d 1525, 1529 (11th Cir.1987); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Id. at 249, 106 S.Ct. at 2511. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party’s case. Id. at 248, 106 S.Ct. at 2510. Where neither party can prove either the affirmative or the negative of an essential element of a claim, the movant meets its burden on summary judgment by showing that the opposing party will not be able to meet its burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In Celo-tex, the Supreme Court interpreted Rule 56(c) to require the moving party to demonstrate that the nonmoving party lacks evidence to support an essential element of its claim. Thus, the movant’s burden is “discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. In either situation, only when the movant meets this burden, does the burden shift to the opposing party, who must then present evidence to establish the existence of a material issue of fact. Id. The nonmoving party must go beyond the pleadings and submit evidence in the form of affidavits, depositions, admissions and the like, to demonstrate that a genuine issue of material fact does exist. Id. Although some courts disfavor the use of summary procedures in complex antitrust cases, recent Supreme Court decisions have made it clear that summary judgment is appropriate in antitrust actions where the plaintiff fails to establish genuine issues of material fact bearing on the elements of the case. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). III. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SMS divides Plaintiffs eighteen counts into six groups and addresses them in “descending order of dispositive significance.” To assist in organizing and reviewing the extensive record, the Court will follow the same format. A. MONOPOLIZATION AND ATTEMPTED MONOPOLIZATION CLAIMS Seven counts of Plaintiffs complaint deal with allegations of monopoly and attempted monopoly: Count 5: Monopolization of the market for lithotripter and Lithostar service. Count 6: Monopolization, of the market for lithotripter and Lithostar service based on a refusal to deal. Count 8: Attempted monopolization of the market for lithotripter and Lithostar service. Count 9: Attempted monopolization of the market for lithotripter and Lithostar service based on leveraging. Count 10: Attempted monopolization of the market for lithotripter and Lithostar service based on a refusal to deal. Count 12: Monopolization of the market for lithotripter and Lithostar replacement and component parts. Count 13: Attempted monopolization of the market for lithotripter and Lithostar replacement and component parts. 1. The Evils of Monopoly Power Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize, and conspiracy to monopolize. In United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966), the Supreme Court offered what has become the standard definition of an illegal monopoly: The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. Thus, the threshold issue is whether the Defendant has monopoly, or market, power. The second requirement, often called monopoly conduct, contemplates bad acts intended to eliminate competition by means unrelated to competitive merit. Simply put, monopoly or market power is “the power to control prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956); American Key Corp. v. Cole Nat’l Corp., 762 F.2d 1569, 1581 (11th Cir.1985). The existence of monopoly power can be inferred from a firm’s dominant share of the market. Grinnell, 384 U.S. at 570, 86 S.Ct. at 1704. The key to determining market share as a proxy for monopoly power is to define the relevant product and geographic markets. See T. Harris Young & Assoc., Inc. v. Marquette Electronics, 931 F.2d 816, 823 (11th Cir.1991). The parties agree for purposes of deciding Defendant’s motion that the appropriate geographic market is the United States. Defining the relevant product market is essentially a factual question. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 994 (11th Cir.1993). The Eleventh Circuit describes the procedure as follows: “Defining a relevant product market is primarily ‘a process of describing those groups of producers which, because of the similarity of their products, have the ability — actual or potential — to take significant amounts of business away from each other.’ ” The reasonable interchangeability of use or the cross-elasticity of demand between a product and its substitutes constitutes the outer boundaries of a product market for antitrust purposes. Id. at 995 (citations omitted) (footnote omitted). Cross-elasticity of demand is a measure of the substitutability of products from a consumer’s perspective. Simply stated, the relevant product market consists of a specific product and its reasonable substitutes. The second element of the monopolization offense, monopoly conduct, is more difficult to describe. In addition to the predatory pricing practices described in Part C. below, monopolistic conduct can sometimes be found where a seller refuses to supply a competitor with a product essential to the competitor’s survival. This idea that antitrust liability can arise from a monopolist’s “refusal to deal” dates back to an early Supreme Court case, United States v. Terminal R.R. Ass’n, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810 (1912). In Terminal Railroad, a group of railroad companies gained control of a local cargo terminal and a toll bridge crossing the Mississippi River. The horizontal combination then used its control of this “essential facility” to discriminate against competitors and to profit on their own rail services. The Supreme Court held that the group’s conduct violated §§ 1 and 2 of the Sherman Act, and ordered that other railroads depending on the facilities be allowed to participate in ownership and control. See also Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945) (news information agency operating as a joint venture required to admit nonmembers on nondiscriminatory terms); Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) (public utility cannot refuse to wholesale power to smaller distribution systems). The “essential facilities” doctrine underlay a recent “refusal to deal” ease, Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). Plaintiff “Highlands” operated a mountain ski area and joined with its larger competitor “Skiing Co.” to offer vacationers a combined “all-Aspen” ski ticket. The package permitted skiers to use any of the four ski areas in Aspen and the two companies divided the revenues on the basis of relative use. Skiing Co. later decided to continue offering the combined pass only if the smaller Highlands would accept a fixed percentage of the revenues. Highlands refused and the all-Aspen ticket was discontinued. Highlands then charged Skiing Co. with monopolization based on its refusal to continue offering the combined ski package. The Supreme Court noted that “even a firm with monopoly power has no general duty to engage in a joint marketing program with a competitor.” Id. at 600, 105 S.Ct. at 2856. However, “[t]he high value that we have placed on the right to refuse to deal with other firms does not mean that the right is unqualified.” Id. The Court indicated that a lack of valid business justifications for the refusal to cooperate, and a change in business policy that did not create a gain in efficiency, was enough to uphold the monopolization verdict for Plaintiff Highlands. Id. at 605-11, 105 S.Ct. at 2859-61. Finally, there are three essential elements to a claim alleging attempted monopolization: (1) the specific intent to achieve monopoly power by predatory or exclusionary conduct; (2) actual anticompetitive conduct; and (3) a “dangerous probability of success” in defendant’s attempt to achieve monopoly power. U.S. Anchor Mfg., Inc. v. Ride Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). The intent element requires an intent to “destroy competition or build monopoly.” Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953). In many cases, intent can be inferred from the defendant’s conduct, essentially reducing the analysis to two elements. See Spectrum Sports, Inc. v. McQuillan, — U.S. -, -, 113 S.Ct. 884, 892, 122 L.Ed.2d 247 (1993) (unfair and predatory tactics may be sufficient to prove the necessary intent to monopolize); see also McGahee v. Northern Propane Gas Co., 858 F.2d 1487, 1503-04 (11th Cir.1988) (evidence of predatory conduct may support an inference of intent to monopolize). Anticompetitive conduct often cannot be evaluated independently of the “dangerous probability” of a firm’s acquiring monopoly power. Competitive behavior by a small firm with little market share may become anti-competitive conduct when committed by a company with dominant market power. “To have a dangerous probability of successfully monopolizing a market the defendant must be close to achieving monopoly power.” U.S. Anchor, 7 F.3d at 994. Thus, proving a dangerous probability of success first involves defining the relevant market and measuring market share as a proxy for monopoly power. 2. The Relevant Product Markets Plaintiff presents evidence that there are three relevant product markets in this case: (1) the market for second-generation lithotripters; (2) the market for Lithostar parts; and (3) the market for Lithostar service contracts. Deposition of Roger Noll, pp. 10, 4CM2, attached as Exhibit 10 to Plaintiffs Memorandum in Opposition [# 153]. However, the Complaint also alleges monopolization and attempted monopolization of an alleged market for all lithotripter parts and service. Defendant points out that Plaintiffs expert testified that there is no market for all lithotripters — not for sales, service or for replacement parts. Noll Depo., Defendant’s Exh. 1, pp. 74-77. Indeed, Plaintiff apparently no longer asserts the existence of a product market for all lithotripters. Having presented no evidence on the matter, the Court concludes that Plaintiff cannot meet its burden of proving the existence of monopoly power, or the dangerous probability that Defendant will achieve monopoly power, in the alleged market for all lithotripters. Accordingly, the Court GRANTS Defendant summary judgment with respect to Plaintiffs claims of monopolization and attempted monopolization of a product market consisting of all lithotripters. Plaintiff contends that SMS possesses monopoly power in each of the three product markets it describes. First, SMS dominates the market for sales of second-generation lithotripters with an 80% share of total market sales for the period October, 1989 through August, 1993. Second, SMS’ share of the Lithostar parts market was 100% until the formation of Servicetrends in 1992, and remains very substantial today. Finally, pri- or to Servicetrends’ entry, SMS held 94% of the market for Lithostar service. During the period October, 1991 through September, 1992, 79% of all Lithostar sites were under maintenance contract with SMS, and the balance were either covered by warranty or serviced on a time and materials basis. In 1993, SMS serviced 70 of the 80 Lithostars in operation. For purposes of its summary judgment motion, SMS does not contest Plaintiffs characterization of the three relevant product markets or Defendant’s monopoly power therein. The Court’s factual inquiry into defining the relevant product market, in order to determine whether Plaintiff has established the first element of a monopolization claim, can therefore be decided on the basis of Plaintiffs evidence alone. 3. Monopolistic Conduct The second element of Plaintiffs monopolization and attempt claims requires proof of anticompetitive conduct. Servicetrends alleges that SMS engages in anticompetitive conduct in three distinct ways: (a) violation of the “essential facilities” doctrine; (b) monopoly leveraging; and (c) price discrimination. (a) The “Essential Facilities” Doctrine The essential facilities doctrine makes it illegal for the holder of an “essential facility” to deny access to a competitor where there is no legitimate business reason for the refusal. See generally City of Anaheim v. Southern Cal. Edison Co., 955 F.2d 1373, 1379-80 (9th Cir.1992). Although the doctrine originated in the context of a concerted refusal to deal, see United States v. Terminal R.R. Ass’n, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810 (1912), more recent formulations by lower courts have broadened its application. In this case, Plaintiff seeks to apply the doctrine by arguing that Siemens AG’s patents on the shoektube and its component parts create a “legal monopoly” that enables it’s subsidiary SMS to price discriminate, to raise entry barriers to the Lithostar service market, and to leverage its parts monopoly into the market for Lithostar service. To establish a violation of the essential facilities doctrine, Servicetrends must prove four elements: (1) control of the essential facility by a monopolist; (2) a competitor’s inability practically or reasonably to duplicate the essential facility; (3) the denial of the use of the facility to a competitor; and (4) the feasibility of providing the facility. MCI Communications Corp. v. AT & T, 708 F.2d 1081, 1132-33 (7th Cir.1983). Plaintiff must also demonstrate that, by denying access to an essential facility, defendant caused it “severe handicap” amounting to “more than inconvenience, or even some economic loss.” See Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 569-70 (2d Cir.1990). The undisputed facts show that Siemens AG owns U.S. patents Nos. 4,697,588 and 4,878,488, covering the shoektube replacement part and its components. Jay Affidavit, Defendant’s Exh. 63; Rattner Affidavit, Defendant’s Exh. 64. Under the patent laws, Siemens AG has a seventeen-year “monopoly” on the right to manufacture, sell or license the patented device. See 35 U.S.C. §§ 101, 154, 271(d)(4). Pursuant to these rights, Siemens AG appointed its American subsidiary SMS as the exclusive distributor of the shoektube replacement part in the United States. Defendant SMS employs a “shoektube refund policy” to distribute the patented device. When a Lithostar shoektube needs replacing, Defendant’s customers return the old unit to SMS and pay the “exchange price” for a new unit. This exchange price is substantially lower than the “list price,” or what a buyer would pay without trading in a used part. SMS then sends the old unit to Siemens AG for remanufacture. If Siemens AG determines that the old part is refurbish-able, it sends SMS a credit for the value of the used part. In effect, by charging a discounted price for a new shoektube in exchange for the old repairable unit, SMS is advancing to its service contract customers the credit it later receives from its parent. Servicetrends buys shocktubes from SMS at the same nominal price as other customers, but SMS does not advance to Service-trends the offsetting trade-in credit until Siemens AG examines the used device and issues a refund. Consequently, Servicetrends bears the cost of funds for the difference between the list price and the exchange price during the interim period. See Rankin Depo., Defendant’s Exh. 7, pp. 80-81; Christensen Depo., Defendant’s Exh. 8, p. 138; DeBrock Depo., Plaintiffs Exh. 8, p. 324; Warlick Depo., Plaintiffs Exh. 13, p. 282. Servicetrends argues that the shoektube return policy is an exclusionary tactic not justified by SMS’ patent rights. “[W]hen SMS sells a Lithostar shoektube, SMS in effect forces every purchaser of a shoektube including Servicetrends to send its shoektube to Siemens AG in Germany for repair. This conduct is anti-competitive and a barrier to entry into the separate Lithostar service market.” Plaintiffs Memorandum in Opposition [# 155], p. 29. Plaintiff cites no authority to support its assertion that Defendant’s refund policy constitutes anticompetitive conduct. To the contrary, as a competitor, Servicetrends is not by right entitled to enjoy the “free ride” that SMS provides in the form of inventory financing for its own customers. See, e.g., Abcor Corp. v. AM Int’l Inc., 916 F.2d 924, 929-30 (4th Cir.1990) (no anticompetitive conduct' where parts manufacturer shifted inventory carrying cost to competing dealer while continuing to service own customers). In addition, Defendant SMS maintains that the shocktube refund policy has no anticom-petitive effect and produces no significant economic loss for Servicetrends. According to Defendant, the increased cost of funds to Servicetrends amounts to approximately one percent of revenues. See Shapiro Depo., Defendant’s Exh. 60, p. 127. Plaintiffs own antitrust expert says a level of 5% of revenues would indicate a significant adverse effect on Servicetrends. Noll Depo., Plaintiffs Exh. 1, p. 127. Thus, Plaintiff has produced no facts showing a competitive injury or that it suffered a significant economic loss as a result of Defendant’s shocktube return policy- Servicetrends does not explain exactly how the “essential facilities” doctrine applies to the facts in this case. Since Plaintiffs own evidence proves that SMS does not deny Servicetrends use of the patented shocktube replacement part, the Court concludes that Plaintiffs essential facilities attack is focused on Defendant’s refusal to sell the shocktube’s patented component parts. Certainly, the inability to purchase the unit’s component parts may deprive Servicetrends of the opportunity to repair a customer’s shocktube on site. Instead, the shocktube refund policy compels Plaintiff to return the worn out assembly to the manufacturer and to purchase an entire shocktube for reinstallation. Noting that Defendant’s patent permits it to sell the shocktube for a “monopoly price,” Ser-vicetrends complains that “[t]he claimed patent, however, does not give SMS the exclusive right to repair the shocktube.” Plaintiffs Memorandum in Opposition [# 155], p. 28. As a general proposition, Siemens AG’s lawful patent does give it the right to refuse to sell or license the patented device, including the component parts of the shocktube. See, e.g., SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1204 (2d Cir.1981). “No court has ever held that the antitrust laws require a patent holder to forfeit the exclusionary power inherent in his patent the instant his patent monopoly affords him monopoly power over.a relevant product market.” Id. Although certain forms of patent abuse may give rise to antitrust liability, see, e.g., Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), “where a patent has been lawfully acquired, subsequent conduct permissible under the patent laws cannot trigger any liability under the antitrust laws.” SCM Corp., 645 F.2d at 1206. In the absence of authority to the contrary, the Court finds that SMS has no legal obligation to sell patented component parts to its competitor Servicetrends. Thus, Plaintiff is likély mistaken in its assertion that Defendant does not have the exclusive right to repair the modular shock-tube. Although the Court need not decide the issue here, it appears that Defendant is entitled to a so-called monopoly in the repair of its shocktube replacement part — a monopoly power that is inherent in its right to sell or refuse to sell the patented components. Plaintiff and Defendant have access to the same “facility.” Siemens AG does not supply the individual shocktube components to its subsidiary SMS for use in servicing customers’ equipment. Instead, SMS and Servicetrends compete on equal footing in the Lithostar service market. Both have access to the shocktube replacement part and, in addition, Servicetrends purchases components of the spark gap and shockwave generator from other independent OEM’s. DeBrock Depo., Defendant’s Exh. 6, pp. 359-78. See Laurel Sand & Gravel, Inc. v. CSX Transp., Inc., 924 F.2d 539, 544-45 (4th Cir.1991) (affirming summary judgment where plaintiff “failed to show that it could not reasonably duplicate or pursue a reasonable alternative to the essential facility”). Servicetrends has captured thirteen Lithostar service customers from SMS since mid-1992, and reportedly earned $1 million in operating profits in its first year. The evidence in this case simply does not support an inference that Servicetrends has been denied access to an essential facility, or that the shocktube components are essential to competition in the Lithostar service market. (b) Monopoly Leveraging Servicetrends cites Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 275 (2d Cir.1979), to advance the proposition that a monopolist violates § 2 by using its monopoly power in one market to gain a competitive advantage in another market. Plaintiff contends that the list price versus exchange price differential and the credit policy incorporated into Defendant’s shock-tube refund program are examples of monopoly leveraging in the parts market designed to gain an advantage in the service market. Servicetrends also points to Defendant’s refusal to sell shocktube components as another example of leveraging: “In addition to the return policy, SMS also insures its ability to leverage its monopoly power in the ‘patented’ shocktube into the separate Lithostar service market by refusing to sell or make available components of the shocktube, effectively thwarting any effort to repair. The effect is that SMS not only has monopoly control and power in the parts market, but also gains and maintains monopoly control and power in the separate Lithostar service market. Plaintiffs Memorandum in Opposition [# 155], p. 30 (citation omitted). These claims are essentially identical to those already addressed. The Court has determined that neither the shocktube refund policy nor Defendant’s refusal to sell patented component parts offends antitrust law. Moreover, it is not the per se use of leverage that the Berkey Photo court condemned, but the anticompetitive conduct accompanying such use. In the absence of bad behavior, i.e., “the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor,” United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948), the court endorsed an expansive vision of legitimate monopoly conduct: [A] large firm does not violate § 2 simply by reaping the competitive rewards attributable to its efficient size, nor does an integrated business offend the Sherman Act whenever one of its departments benefits from association with a division possessing a monopoly in its own market. So long as we allow a firm to compete in several fields, we must expect it to seek the competitive advantages of its broad based activity.... Berkey Photo, 603 F.2d at 276. In the absence of a showing that Defendant’s conduct falls outside the scope of competition on the merits, Plaintiff cannot succeed in proving its monopolization and attempt claims. (c) Price Discrimination Servicetrends contends that SMS engages in anticompetitive conduct through price discrimination in two ways. First, Defendant’s pricing and exchange policies for the shocktube replacement part allegedly “are anti-competitive; are a result of monopoly leveraging; create a ‘price squeeze’ on Servicetrends; constitute illegal price discrimination; raise barriers to entry into the service and parts markets; and have caused antitrust injury.” Plaintiffs Memorandum in Opposition [# 155], p. 19. Second, Plaintiff contends that Defendant engages in illegal price discrimination with Med-Lab Supply Company (“Med-Lab”). Viewing all evidence and factual inferences in a light most favorable to Plaintiff, the following facts emerge as undisputed. Med-Lab is an authorized service agent for SMS in the Miami area. Noll Depo., Plaintiffs Exh. 10, pp. 176-89. By the terms of a Representation Agreement signed in June, 1989, Med-Lab acts as SMS’ sales agent for Siemens’ products, installs equipment, pays its own expenses to attend Siemens’ training sessions, provides monthly reports and customer training, performs warranty service at its own expense, and assists SMS to meet local regulatory obligations. Representation Agreement, attached as Exh. 89 to Rankin Depo., Plaintiffs Exh. 3. In exchange for performing these marketing functions, Med-Lab receives a 25% discount on parts. Agreement, cover letter; Rankin Depo., p. 387. The Representation Agreement prohibits SMS from soliciting sales orders or service business in Med-Lab’s assigned territory, unless the customer demands SMS. Agreement, p. 8, ¶ 11. Thus, Med-Lab and SMS generally do not compete within the authorized area. Med-Lab does compete with Plaintiff Servicetrends in the area’s Lithostar parts and service markets. Further, Med-Lab is not permitted to resell Siemens’ products to customers at prices lower than those quoted by SMS in the agreed territory. Agreement, p. 3, f3(m). Plaintiff cites Aspen Skiing and Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951), as authority for the legal assertion that SMS’ discount price for parts sold to Med-Lab evidences anticompetitive conduct. As discussed above, Aspen Skiing involved the termination of a joint marketing agreement in an essential facilities context. Lorain Journal concerned a newspaper that attempted to monopolize the sale of advertising by refusing to deal with local advertisers who purchased radio ads. These cases do not address the issue of price discounts provided to selected distributors and they are not pertinent here. Defendant raises Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), to validate its contention that the 25% parts discount compensates Med-Lab for services and expenditures that benefit SMS. In dictum, the Monsanto Court noted that “[t]he manufacturer often will want to ensure that its distributors earn sufficient profit to pay for programs such as hiring and training additional salesmen or demonstrating the technical features of the product, and will want to see that ‘free-riders’ do not interfere.” Id. at 762-63, 104 S.Ct. at 1470. This desire, however, does not legitimize every discount program a manufacturer may institute to ensure distributor profits. Cases challenging unlawful price discrimination practices under the RobinsonPatman Act are instructive in assessing the possible anticompetitive implications of Defendant’s discount price arrangement with Med-Lab. In Texaco Inc. v. Hasbrouck, 496 U.S. 543, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990), the Court reviewed the role of “functional discounts” granted to distributors as reimbursement for the value of their marketing functions. “Such a discount is not illegal.” Id. at 562, 110 S.Ct. at 2546; see also Americom Distrib. Corp. v. ACS Communications, Inc., 990 F.2d 223, 227 (5th Cir.1993) (“The Act allows a price differential due to savings in costs of manufacture, delivery, or sale.”). However, distributor discounts that are “completely untethered” to the manufacturer’s marginal cost savings, or merely “subterfuges to avoid the Act’s restrictions,” violate prohibitions against price discrimination. “Only to the extent that a buyer actually performs certain functions, assuming all the risks and costs involved, should he qualify for a compensating discount. The amount of the discount should be reasonably related to the expenses assumed by the buyer.” Id. 496 U.S. at 564,110 S.Ct. at 2547 (quoting In re Doubleday & Co., 52 F.T.C. 169, 209 (1955)). The burden of proof is on the plaintiff to show that functional discounts constitute illegal price discrimination. Id. at 560 & n. 18, 110 S.Ct. at 2545 & n. 18. Uneontroverted facts show that Med-Lab provides marketing functions for SMS which Servicetrends does not perform. Plaintiff offers no evidence from which a juror might reasonably conclude that the discount does not fairly reflect the value of Med-Lab’s marketing services. To the contrary, the evidence indicates that Med-Lab provides at its own expense substantial sales and support functions. In the complete absence of evidence from which an injury to competition might be inferred, the Court concludes that Defendant’s conduct with respect to the Med-Lab parts discount is not anticompeti-tive. 4. Conclusion The Court finds that there is no genuine dispute of material fact pertaining to the monopolization and attempt claims in Counts 6, 9, 10, 12, and 13. Having found no evidence of anticompetitive conduct in product markets where Defendant admits to possessing monopoly power, the Court hereby GRANTS Defendant summary judgment on Counts 6, 9, 10, 12, and 13. As discussed below in Part C., the Court DENIES summary judgment on Counts 5 and 8 insofar as they are based on predatory pricing theory. B. TYING ARRANGEMENTS Plaintiffs Complaint contains four counts founded on assertions of illegal tying arrangements: Count 1: Tying the sale of Lithostar service to the sale of Lithostar replacement parts. Count 2: Tying the sale of the modular replacement parts to the purchase of components. Count 3: Tying the sale of Lithostar service to the sale of the Lithostar lithotrip-ter. Count 4: Tying the sale of service to the sale of financing for the Lithostar litho-tripter and other lithotripters. A tying arrangement conditions the sale of one product on the purchase of another. See Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The product the purchaser wants to buy is known as the “tying product,” while the unwanted but attached product is the “tied product.” The essential antitrust concern regarding tying is that the illegal arrangements foreclose competing manufacturers from selling in the tied product market. Tying the sale of goods is expressly prohibited by § 3 of the Clayton Act, 15 U.S.C. § 14. Section 1 of the Sherman Act prohibits tying involving goods or services. The standard for distinguishing a tying violation under the Sherman and Clayton Acts was addressed in Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277 (1953), but the distinctions have blurred in the lower courts over the past forty years and are unimportant in this case. Plaintiff Service-trends brings its tying complaints under the Sherman Act. An illegal tying arrangement under Section 1 has five elements: (1) two products, i.e., a tying and a tied product; (2) evidence of actual coercion by the seller that forced the buyer to purchase the tied product; (3) sufficient market power in the seller’s tying product market to force the buyer to accept the tied product; (4) anticompeti-tive effects in the tied product market; and (5) involvement of a “not insubstantial” amount of interstate commerce in the tied product market. Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1502-03 (11th Cir.1985) (citing Yentsch v. Texaco, Inc., 630 F.2d 46, 56-57 (2d Cir.1980)). Count 1 alleges that Defendant ties the sale of Lithostar service (the tied product) to the sale of three Lithostar replacement parts: the shoektube, the shockwave generator, and the spark gap (the tying products). Plaintiffs attack focuses on the shock-tube, again arguing that the unavailability of separate component parts forces a customer to buy unwanted repair services in order to purchase a shoektube component. Servieetrends’ real complaint is that it must pay for Siemens AG’s repairs of the modular shoektube replacement part because Siemens AG will not sell the shoektube components. However, this contention is different from the allegations contained in Count 1. Count 1 alleges a tie between the market for Lithostar service and the market for Lithostar replacement parts. See Complaint, ¶ 75, 76. Plaintiff now seeks to reinterpret Count 1 to encompass a tie between service of the shoektube and the sale of shoektube components. Although Defendant admits to a product market for Lithostar service contracts, the record contains no evidence of a product market for shoektube service. A tying claim requires evidence that the seller refuses to sell the tying product unless the buyer purchases the tied product: “Where there is no tie, there is no claim.” See T. Harris Young & Assoc., Inc. v. Marquette Elec., Inc., 931 F.2d 816, 821-22 & n. 10 (11th Cir.1991). The record is clear that SMS does not refuse to sell shocktubes, spark gaps, and shockwave generators to Servieetrends even though Servieetrends does not purchase Lithostar service. De-Brock Depo., Defendant’s Exh. 6, p. 449; Noll Depo., Defendant’s Exh. 1, p. 271 (“I am not aware of a tie between parts and service”). The Court finds no evidence of a tie between Lithostar replacement parts and Lithostar service and no basis in fact or in law to sustain Plaintiffs Count 1. Count 2 alleges that purchasers of Lithostar component parts (the tying product) are forced to purchase the entire modular replacement part (the tied product). Complaint, ¶ 82. However, “a tying arrangement cannot exist unless two separate product markets have been linked.” Jefferson Parish Hosp. v. Hyde, 466 U.S. 2, 21, 104 S.Ct. 1551, 1562-63, 80 L.Ed.2d 2 (1984). In this case, there is no evidence of a product market for Lithostar component parts. Consequently, no illegal tie-in can exist and Plaintiffs Count 2 fails. Count 3 alleges that Defendant ties the sale of Siemens Lithostars (the tying product) to the sale of Lithostar service (the tied product). Complaint, ¶ 89. Specifically, Plaintiff claims that SMS’s inclusion of a one-year “warranty” in the Lithostar’s purchase price constitutes an illegal tying arrangement. The Court initially notes that Plaintiff offers no case authority suggesting that the Lithostar and its associated manufacturer’s warranty constitute two separate products. See Jefferson Parish, 466 U.S. at 19-22, 104 S.Ct. at 1562-63. Defendant has never sold the one-year Lithostar warranty separately from the equipment. Christensen Depo., Defendant’s Exh. 8, pp. 23-24. The warranty is not separately priced and its cost is included in the price of the Lithostar. In Jefferson Parish, the Supreme Court considered whether a hospital’s surgical and anesthesiological services should be regarded as two products for tying analysis purposes. The Court asked whether the two services could be meaningfully separated: “Thus, in this case no tying arrangement can exist unless there is a sufficient demand for the purchase of anesthesiological services separately from hospital services to identify a distinct product market in which it is efficient to offer [the services separately].” Jefferson Parish, 466 U.S. at 21-22, 104 S.Ct. at 1563. The evidence in this case suggests that no separate demand exists for the purchase of a one year warranty; in fact, Lithostar purchasers view the provision of the manufacturer’s warranty as essential to their decision to buy the machine. Buyers indicate that they would consider it “unusual if equipment of this nature came without some warranty.” Dills Depo., Defendant’s Exh. 55, p. 89. One doctor said that if SMS offered no warranty on its $1.5 million Lithostar, “[w]e would not buy it.” Puras-Baez Depo., Defendant’s Exh. 34, p. 33. Thus, there is no indication of consumer demand for a one-year warranty provided by anyone other than the Litho-star’s manufacturer, and no evidence that providing the warranty separately from the machine would be economically efficient. See, e.g., Klo-Zik, Co. v. General Motors Corp., 677 F.Supp. 499 (E.D.Tex.1987) (sale of truck engines with warranties included did not constitute an illegal tying arrangement). Moreover, Defendant’s Lithostar warranty lacks the necessary element of coercion. The Jefferson Parish Court referred to coercion as an independent prerequisite for a tying violation: Our cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. Jefferson Parish, 466 U.S. at 12, 104 S.Ct. at 1558; see also Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1327 (5th Cir.1976) (“it must be shown that the purchaser was coerced into purchasing an unwanted product”). Plaintiff Servicetrends has made no showing of coercion pertaining to the one-year Lithostar warranty. Thus, The Court concludes that Plaintiff has failed to come forward with specific facts demonstrating that a Lithostar and its manufacturer’s warranty are two separate products whose markets are linked through coercive means. Count 3 therefore cannot withstand summary judgment. Count 4 alleges an illegal tie between the manufacturer’s equipment financing program (the tying product) and the service market (the tied product). Servicetrends admits to lacking sufficient evidence to support this claim and does not oppose the granting of summary judgment on Count 4. In summary, the Court finds no material factual dispute concerning Plaintiffs tying claims and GRANTS Defendant summary judgment as a matter of law on Counts 1, 2, 3, and 4. C. PREDATORY PRICING CLAIMS Defendant moves for summary judgment under Section 2 of the Sherman Act with respect to Counts 7 and 11, as well as Counts 5 and 8 insofar as they are based on predatory pricing theory: Count 7: Predatory pricing in the market for Lithostar replacement parts. Count 11: Predatory pricing in the markets for lithotripter service generally and for Lithostar service. In Count 7, Plaintiff charges that SMS engaged in predatory pricing “for the purpose of maintaining its monopoly” in the Lithostar replacement parts market. Complaint, ¶ 114. Count 11 is an attempt to monopolize claim, accusing SMS of predatory pricing “with the intent of destroying competition” in the service markets. Complaint, ¶ 133. Counts 5 and 8, discussed in Part A. above, allege monopolization and attempted monopolization of the lithotripter and Litho-star service market. In this case, then, predatory pricing is relevant as proof of monopolistic conduct to establish an element of monopolization and attempted monopolization — it does not relieve Plaintiff of the burden of proving at trial that Defendant has monopoly power or a “dangerous probability of success.” Predatory pricing is a term of art that describes “pricing below an appropriate measure of cost for the purpose of eliminating competition in the short run and reducing competition in the long run.” Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 117, 107 S.Ct. 484, 493, 93 L.Ed.2d 427 (1986). A predator prices its product below profit maximizing levels with the expectation of charging monopoly prices in the future when competitors are driven from the market. Predatory pricing is generally analyzed as constituting the conduct portion of an attempt to monopolize, and since intent can be inferred from conduct, evidence of predatory pricing can support an inference of specific intent. One problem courts have encountered in applying predatory pricing theory is recognizing and distinguishing those instances of legitimate price cutting that epitomize the benefits of unrestrained competition. In a case where Japanese manufacturers were accused of conspiring to charge predatory prices for televisions sold in the United States, the Supreme Court suggested that predatory pricing schemes are unlikely to succeed: [T]he success of such schemes is inherently uncertain: the short-run loss is definite, but the long-run gain depends on successfully neutralizing the competition.... Absent some assurance that the hoped-for monopoly will materialize, and that it can be sustained for a significant period of time, “[t]he predator must make a substantial investment with no assurance that it will pay off.” For this reason, there is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 589, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986) (citations omitted). The Court further noted the danger of confusing a predatory pricing scheme with the beneficial effects of increased competition: [C]utting prices in order to increase business often is the very essence of competition. Thus, mistaken inferences in cases such as this one are especially costly, because they chill the very conduct the antitrust laws are designed to protect. “[W]e must be concerned lest a rule or precedent that authorizes a search for a particular type of undesirable pricing behavior end up by discouraging legitimate price competition.” Id. at 594, 106 S.Ct. at 1360 (citations omitted). Affirming summary judgment on plaintiffs predatory pricing claims, the Court specifically noted that its observations also applied to predatory pricing by a single firm seeking monopoly power. Id. at 588, 106 S.Ct. at 1357. In McGahee v. Northern Propane Gas Co., 858 F.2d 1487 (11th Cir.1988), this circuit established the test a district court must use in evaluating a defendant’s motion for summary judgment in an antitrust claim based on predatory pricing: “[W]e hold that when an antitrust defendant moves for judgment as a matter of law, the test for predatory pricing must consider subjective evidence and should use average total cost as the cost above which no inference of predatory intent can be made.” Id. at 1496 (footnote omitted). The court spelled out the elements of the test: “Average total cost means the average of the total economic cost, which includes the necessary minimum profit.” Id. at 1503 (footnote omitted). If defendant’s prices are above short run marginal cost, plaintiff must present other evidence of predatory intent, either objective or subjective. Id. “The closer a defendant’s price is to average total cost, the stronger this other evidence must be for the plaintiff still to avoid summary judgment.” Id. Prices below short run marginal cost create a rebuttable presumption of predatory intent. Id. at 1504. In this case, Servieetrends originally based its predatory pricing claim on the assertion that SMS gave away “free” replacement parts to customers solicited by Servieetrends. Complaint, ¶ 64. Plaintiff did not submit an analysis of Defendant’s cost structure to support its charge, but relied instead on the logical certainty that “free” must mean a price below any economic measure of production cost. Servieetrends asserted that SMS provided free parts to three customers: Lithotripters, Inc.; St. Luke’s Medical Center; and Clini-cas Las Americas. See Plaintiffs Answers to Defendant’s First Interrogatories, Defendant’s Exh. 38, pp. 21-22. Defendant denied giving away free parts, explaining that the price of replacement parts is sometimes included in the total price of the service agreement. Defendant stated that it “has never sold replacement parts below cost to any of its customers, including Lithotripters, Inc., Clínicas Las Americas, and St. Luke’s Medical Center.” Defendant’s Memorandum in Support [# 143], p. 4. According to SMS, its service contracts are fully priced “to cover costs of providing such parts and service and to allow for a reasonable profit.” Id. To support its claim, Defendant offered the affidavit of Guenter Westermann, Senior Vice President responsible for pricing replacement parts, who testified: “Siemens Medical prices Lithostar replacement parts above its cost of purchasing those parts from Siemens AG.... such that it can recover its cost of buying those parts from Siemens AG and realize a reasonable rate of return.” Wester-mann Affidavit, Defendant’s Exh. 42, ¶4. Defendant also supplied testimony from each of the three named customers denying that SMS provided any parts for free. See McCumber Depo., Defendant’s Exh. 45, p. 371; Puras-Baez Depo., Defendant’s Exh. 34, p. 59; Schmidt Depo., Defendant’s Exh. 37, p. 78. Plaintiff subsequently abandoned its assertion that SMS distributed free parts to customers. Instead, Plaintiff now presents evidence that Defendant executed service contracts priced below its average total direct costs. Specifically, Servieetrends points to a 1988 SMS document that purports to calculate the “direct cost” of a Lithostar service contract: Parts: Shock wave generator.$ 14,450 High voltage supply.$ 12,000 Other parts.$ 16,000 Subtotal — Parts.$ 42,450 Labor.$ 26,970 Subtotal — Parts & Labor.$ 69,420 Shock tube.$ 53,750 Total service cost.$123,170 See Rankin Depo., Plaintiffs Exh. 3, deposition exhibit 73. In 1992, Defendant signed a service contract with Clinicas Las Americas for $68,336. See Service Agreement, Plaintiffs Exh. 28, marked Puras deposition exhibit 65. Defendant’s District Service Manager, David Hor-gan, states that the contract price “excludes shock wave generating components, i.e., the shockhead, the shock wave generator, and the spark gap.” Horgan Affidavit, Defendant’s Exh. 46, ¶ 3. If these parts were in fact excluded, the price of the service contract would exceed SMS’ apparent direct cost. However, Mr. Horgan’s letter to Dr. Puras-Baez specifically notes that shock-tubes are excluded, but the shockwave generator and spark gap is included in the price. See Horgan Letter, Plaintiffs Exh. 28, marked Puras deposition exhibit 64. Thus, the evidence suggests that Defendant sold a service contract costing more than $69,420 to perform for proceeds of $68,335. Similarly, Plaintiff points to evidence that the direct cost of a service contract sold to St. Luke’s Hospital was $93,690, compared to a sales price of $89,000. See Plaintiffs Memorandum in Opposition [# 155], pp. 71-72 and citations therein. In addition, Defendant allegedly sold twenty-six three-year service contracts to Lithotripters, Inc. for a price of $150,000 each, compared to an estimated direct cost of $174,315. Id. at 72-73. Plaintiff also presents a 1992 SMS report entitled “Lithotripter Service Analysis” to corroborate the cost figures found in the 1988 document. See Messinger Analysis, Plaintiffs Exh. 7. The Court concludes that Plaintiff has produced unrebutted evidence showing the existence of genuine issues of material fact concerning Defendant’s alleged predatory pricing policy. Accordingly, Defendant’s motion for summary judgment on Counts 7 and 11, and on Counts 5 and 8 insofar as they are based on predatory pricing theory, is DENIED. D. EXCLUSIVE DEALING and CONCERTED REFUSAL TO DEAL Counts 14 and 15 charge violations of Section 1 of the Sherman Act: Count 14: Exclusive dealing between SMS and third parties for service of the Lithostar. Count 15: Concerted refusal to deal based on agreements between SMS and third parties prohibiting use of Servicetrends for Lithostar service. 1. Exclusive Dealing Exclusive dealing arrangements are essentially requirements contracts, whereby the buyer agrees to purchase exclusively the product of the contracting supplier. The specific antitrust concern is that exclusive dealing contracts threaten to foreclose the relevant product market to other sellers, who may be unable to find buyers for their competing goods or services. On the other hand, courts recognize that many ordinary supply contracts, motivated by legitimate business needs, inevitably foreclose some competing seller from a portion of the market. Accordingly, exclusive dealing contracts are not per se illegal. See Bob Maxfield, Inc. v. American Motors Corp., 637 F.2d 1033, 1036 (5th Cir. Unit A Feb. 1981) (“The mere existence of an exclusive dealing clause in a contract does not establish an antitrust violation.”). Instead, courts apply a “rule of reason” approach to weighing the procompetitive and anticompetitive effects of exclusive dealing arrangements. See, e.g., Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 332-35, 81 S.Ct. 623, 631-32, 5 L.Ed.2d 580 (1961) (weighing a range of factors to determine foreclosure in a competitive coal market under the Clayton Act). Beginning in July, 1990, Defendant SMS signed exclusive service contracts with Lithotripters, Inc., the general partner in a group of individual partnerships that owns and operates approximately 25 Lithostars. The machines are covered by a separate, but identical, service agreement. See Tusa Depo., Plaintiffs Exh. 23, service agreements attached as deposition exhibits 1 & 2; see also Defendant’s Exh. 79 & 80. The service contracts run for a three-year term and include parts and labor for a price of $150,000 per year. Early termination requires 90 day notice and payment of a 25% liquidated damages charge. Agreement, ¶ 9. Of the 80 Lithostars currently installed in the United States, the Lithotripters, Inc. agreements cover approximately 38% of the Lithostar service market. Servieetrends argues that the Lithotrip-ters, Inc. service agreements constitute illegal vertical restraints of trade. Defendant SMS responds that exclusive contracts for a three-year period cannot be anticompetitive, that foreclosing only 32%-38% of the relevant market is not “substantial” as a matter of law, and that Lithotripters, Inc. had legitimate business reasons for choosing SMS as its service provider. The Tampa Electric Court suggested that the length of an exclusive dealing contract is relevant to judging the substantiality of the alleged foreclosure. See Tampa Electric, 365 U.S. at 334, 81 S.Ct. at 632. After considering various additional factors, the Court held that a 20 year requirements contract between a public utility and a coal company that preempted less than 1% of the relevant market did not violate antitrust laws; see also Ferguson v. Greater Pocatello Chamber of Commerce, 848 F.2d 976, 982 (9th Cir.1988) (competitive bidding process for an exclusive six-year lease was not an illegal restraint on competition). As Tampa Electric and subsequent • cases make clear, however, the term of the exclusive contract is only one factor to consider in determining the substantiality of market foreclosure. Defendant asserts that foreclosing only 32% [or 38%] of the market for Lithostar service does not constitute a substantial foreclosure as a matter of law. See, e.g., Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 237 (1st Cir.1983) (indicating that the “limited anticompetitive effects” of a contract foreclosing up to 50% of the relevant market rendered it nonexclusionary); see also Gonzalez v. Insignares, No. C84-1261A, 1985 WL 2206 (N.D.Ga. June 27, 1985) (Tidwell, J.) (exclusive contract foreclosing at least 40% of relevant hospital market was not an unreasonable restraint). Although some minimum level of foreclosure is certainly insufficient as a matter of law, this Court is not prepared to decide that the competitive impact of foreclosing 32%-38% of a uniquely structured market consisting of 80 service sites and only two competitors is so insubstantial as to be per se legal. See Tampa Elec., 365 U.S. at 328, 81 S.Ct. at 629 (factors to weigh in determining substantiality). Defendant also argues that the exclusive agreements with Lithotripters, Inc. were not the product of anticompetitive intentions, but resulted from a pre-existing business practice that benefited both parties. The record shows that SMS executed a total of twelve multi-year service agreements with equipment owners before Servicetrends was incorporated, including six three-year agreements with Lithotripters, Inc. See Defendant’s Exh. 79. SMS also signed six multi-year contracts with other owners, three of whom are now customers of Servicetrends. See Defendant’s Exh. 80. The record contains uncontested evidence of the business justifications for Lithotrip-ters, Inc.’s decision to sign Defendant’s exclusive service contracts. Specifically, Litho-tripters, Inc. concluded that Servicetrends could not match “the commitment in resources that [SMS] has” and “the number of people, the distribution network” that SMS offered. McCumber Depo., Defendant’s Exh. 45, pp. 298-99. Lithotripters, Inc.’s president testified “[i]t was great for us,” and “I