Full opinion text
MEMORANDUM OPINION AND ORDER GADOLA, District Judge. These two consolidated cases involve various claims made by three disgruntled franchisees against Little Caesar Enterprises, Inc. (“Little Caesar”) and various affiliate companies or subsidiaries. The first action, Little Caesar Enterprises v. Smith, No. 93-73354, is a declaratory judgment action by Little Caesar against one of its franchisees, Gary Smith and his company, for a determination of contract rights under their franchise agreement. The center of this dispute and the subject of the three motions being considered, however, is the second suit, Smith v. Little Caesar Enterprises, No. 93-74041. In the second suit, the three franchisees have brought a putative class action against Little Caesar for various antitrust violations, conversion, and for breach of their franchise agreements. Before the court are Little Caesar’s two motions for partial summary judgment and the parties’ objections to the magistrate judge’s report and recommendation on the franchisees’ motion for class certification. For the reasons stated below, the court will grant Little Caesar’s motions for partial summary judgment, accept in part and reject in part the magistrate judge’s report and recommendation, and deny the franchisees’ motion for class certification. I. Background The franchisee-plaintiffs in this action are Gary Smith, John Hennessy, and Sharon Fields. Gary Smith owns three Little Caesar stores in Florida, and Linda Smith, Brian Smith, and Smith Family Foods, Inc. are also plaintiffs in this action who are associated with Gary Smith. John Hennessy owns one store in Minneapolis, Minnesota, and Hennessy’s company, Pizza Farm, Inc. is also a plaintiff. Sharon Fields owns four stores in Tennessee. Each of Fields’ four companies affiliated with these stores are also plaintiffs: LCP of Lenoir City, Inc., LCP of East Mary-ville, Inc., LCP of Chapman Square, Inc., and LCP of Powell Place, Inc. These franchisee-plaintiffs are seeking damages and other relief on their own behalf and on behalf of a proposed class of Little Caesar franchisees from across the country. As of June 1,1994, there are a total of 536 franchisees who operate 2,867 restaurants, in addition to about 550 restaurants that opened in K-mart stores and 1,275 company-owned restaurants. Defendant Little Caesar Enterprises, Inc. is a privately owned franchisor of pizza/fast food restaurants. Defendant Blue Line Distributing, Inc. was a wholly owned subsidiary of Little Caesar until early 1994 when it merged into its parent company. Blue Line has acted as a distributor of supplies to Little Caesar franchisees. Defendant Little Caesar International, Inc. was the passive shareholder of Little Caesar until it merged with that company in early 1994. Defendant Little Caesar National Advertising Program, Inc. (“LCNAP”) is a non-profit corporation that pools and collects money from each franchisee pursuant to the franchise agreements and then uses the money to conduct national advertising campaigns. Throughout this opinion, the court will refer to the Little Caesar defendants as “Little Caesar” unless it is necessary to refer separately to one of the defendant companies. A. Plaintiffs’ Complaint In their complaint, plaintiffs allege a mixture of antitrust and contract claims. Plaintiffs’ antitrust claims are based upon allegations of price-fixing and an illegal tying arrangement. In Count I, plaintiffs seek damages and other relief pursuant to 15 U.S.C. § 1 of the Sherman Act. Plaintiffs contend that Little Caesar conspired to fix the price of supplies — food, beverages, equipment, smallwares, graphics, and logoed paper products — sold to its franchisees. Count III is an identical claim under MCLA § 445.772 of Michigan’s antitrust statute. In Count II, plaintiffs allege that Little Caesar engaged in an illegal tying arrangement in violation of the Sherman Act, by forcing franchisees to buy their supplies from Blue Line, rather than independent distributors, in order to remain as viable franchisees. The same claim is expressed in Count IV under section 445.772 of Michigan law. Plaintiffs’ three breach of contract claims are presented in Count V. In their first contract claim, plaintiffs contend that Little Caesar has breached a common provision of the standard franchise agreement that gives franchisees the freedom to set their own retail prices. Plaintiffs argue that Little Caesar conducts national advertising campaigns based upon price which force its franchisees to follow the prices set by Little Caesar in breach of the franchise agreements. In their second contract claim, plaintiffs allege that Little Caesar has breached the covenant of good faith and fair dealing by failing to pay its franchisees any rebates and discounts that it receives from suppliers. Plaintiffs’ final contract claim is that Little Caesar has also breached the franchise agreements by causing defendant LCNAP to implement advertising campaigns that are detrimental to franchisees and to misuse pooled franchisee funds for improper purposes. A similar claim is stated in Count VI, where plaintiffs allege conversion by Little Caesar and LCNAP for taking franchisee advertising funds and using them for purposes other than advertising that benefits franchisees. B. Tying Arrangement The claim upon which plaintiffs rely most heavily, as expressed in Count II, is that Little Caesar has conducted a systematic campaign, pursuant to a “master plan,” to replace independent distributors of food and other supplies to franchisees with a Little Caesar subsidiary, Blue Line, now merged into Little Caesar. Plaintiffs contend that Little Caesar has forced all franchisees to purchase food and other supplies from itself, and that Little Caesar’s conduct constitutes an illegal tying arrangement under the federal and state antitrust laws. Originally, Blue Line was only able to service franchisees located in the Midwest. Over the past twelve years, however, Blue Line/Little Caesar has expanded and now has sixteen distribution centers all over the country capable of servicing all franchisees except for certain remote areas of Idaho and North Dakota. Plaintiffs contend that Little Caesar and Blue Line had a master plan to force franchisees to cease buying their supplies from independent distributors and have them buy exclusively from Blue Line instead. As part of this scheme, plaintiffs allege that Little Caesar used its market power, selective rejection of requests for alternate suppliers, and the attractiveness of one-stop shopping to franchisees in order to take control of the distribution of supplies to its franchisees. The essence of the illegal tying claim is that in order to own a Little Caesar franchise (the tying product), franchisees are forced to buy their food and other supplies (the tied product) from Little Caesar. The price-fixing claim centers around plaintiffs’ claim that Little Caesar has conspired with others, including the independent distributors, to fix the price of supplies charged to franchisees. Under the franchise agreements, franchisees are free to buy food and other supplies from approved, independent distributors. However, franchisees are only allowed to buy a secret spice mix and special PanlPan! dough mix from Little Caesar and no other source. Plaintiffs do not challenge Little Caesar’s right to control the distribution of these two special proprietary items and they are not part of this lawsuit. Plaintiffs are, however, challenging the control of all other food and supplies. Furthermore, starting in mid-1990, all newly signed franchisees, through a provision in their franchise agreements, were not allowed to request alternate distributors of paper products that have the Little Caesar logo on them. Because Little Caesar/Blue Line is the exclusive distributor of “logoed paper products,” plaintiffs contend that franchisees are thus forced to buy such items from Little Caesar. However, plaintiffs’ tying claim is not limited to logoed paper products or agreements signed after mid-1990. Instead, plaintiffs’ claim encompasses all franchisees and all supplies necessary to run a franchise except for the special proprietary items mentioned above. This lawsuit appears to have arisen from an incident in 1992, when plaintiff Smith sought to have Ameriserv, an independent distributor of fast food supplies, approved by Little Caesar as a distributor to its franchisees. The approval process is supposed to be a determination of whether the distributor can provide supplies that meet specifications set by Little Caesar. Ultimately, Little Caesar rejected Ameriserv’s application. It appears that the rejection of Ameriserv led to the filing of this lawsuit. Since the inception of this action, however, Little Caesar has approved franchisee requests for three independent distributors — Gordons, PYA Monarch, and Schloss & Kahn — to be authorized to sell supplies to franchisees. In addition, Little Caesar contends that the rejection of Ameriserv was an isolated occurrence and that it has received only six requests over the decade before this lawsuit for approval of new independent distributors. Two of these requests were rejected and four were withdrawn. C. Breach of Contract The second main claim of plaintiffs, as expressed in a portion of Count V, is that Little Caesar has breached the franchise agreements that allow franchisees to set their own retail prices. Plaintiffs contend that Little Caesar has used national advertising campaigns that mention specific prices to force its franchisees to match those prices. Because the franchisees are forced to match the nationally advertised prices as a result of consumer expectations, plaintiffs contend that Little Caesar has breached the franchise agreement provision allowing individual franchisees to set their own retail prices. Little Caesar points out, however, that each of the national ads contain the following disclaimer: “Limited time offer at participating stores. Prices may vary.” In addition, Little Caesar relies on the fact that all three of the plaintiff-franchisees admit that on occasion they do not follow the nationally advertised prices, and instead, set higher prices or encourage alternate special deals that are more profitable. The third major area of the lawsuit, expressed in portions of Count V and VI, concerns the handling of franchisee money given to LCNAP. LCNAP is a non-profit company that collects and pools money from all of the franchisees and uses it to advertise Little Caesar pizza. In Count VI, plaintiffs contend that LCNAP and Little Caesar have converted franchisee money in the LCNAP advertising fund for purposes beneficial to Little Caesar only and not the franchisees. In addition, plaintiffs allege that Little Caesar and LCNAP have breached the franchise agreements by failing to use the LCNAP funds for the benefit of the franchisees. An example of the alleged breach includes the use of $670,000 of LCNAP funds as sponsorship money for the Detroit Drive, an arena football team owned by Mike Illitch, Little Caesar’s primary owner. As another example, $200,000 in LCNAP funds were allegedly used to pay a former Little Caesar executive to sponsor his racing boat which appeared in nationally televised racing competitions. In this memorandum opinion, the court will address two motions for partial summary judgment filed by Little Caesar in January and February of 1995. In addition, the court will consider the parties objections to the magistrate judge’s March 31,1995 report and recommendation regarding plaintiffs’ motion for class certification. In its first Rule 56(c) motion, Little Caesar is seeking a finding limiting the applicability of a 1989 licensing agreement between Little Caesar and Blue Line to certain specified logoed products. This issue is important as it impacts upon contentions made by plaintiffs in their class certification motion. Little Caesar’s second motion for partial summary judgment seeks judgment as to many, but not all, of plaintiffs’ individual claims presented in Counts IV. In his March 31, 1995 report, Magistrate Judge Stephen Pepe recommended that the court certify sixteen regional classes as to plaintiffs’ tying claim and a national class on the breach of contract claims. Both sides have filed objections to this report. In their June 1994 motion for class certification, plaintiffs did not seek class certification as to all of their claims. Instead, plaintiffs are only seeking Rule 23(b)(3) certification of Count II, the tying arrangement. In addition, plaintiffs are seeking Rule 23(b)(2) certification for injunctive and declaratory relief, of Count II, the breach of contract claims based upon the use of LCNAP funds and the national advertising campaigns as presented in Count V, and the conversion claim in Count VI. II. Standard of Review A. Summary Judgment Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted “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 judgment as a matter of law.” “A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle^] of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (citation omitted) (quoting Black’s Law Dictionary 881 (6th ed. 1979)). The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant’s favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984). The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, “the burden on the moving party may be 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861. To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986), There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmovant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted). See Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701, 1991 WL 49687 (6th Cir.1991). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant’s own pleadings. Id. B. Review of a Magistrate Judge’s Report and Recommendation Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, 28 U.S.C. § 636(b)(1)(B), and LR 72.1(d)(2) (E.D.Mich. Jan. 1,1992), the court will review the magistrate judge’s March 31, 1995 report and recommendation as well as the objections filed by the parties. Because of the nature of plaintiffs’ motion for class certification, the court will conduct a de novo review of the report and recommendation. III. Little Caesar’s First Motion for Partial Summary Judgment In its first motion for partial summary judgment, Little Caesar is asking the court to determine the scope of a 1989 licensing agreement between Little Caesar and its former subsidiary, Blue Line. This issue is important because plaintiffs have relied heavily on this document as a basis for their request for class certification. As a result, should the court construe the licensing agreement more narrowly, it may have a tangential effect upon plaintiffs’ certification motion. The June 1989 agreement gave Blue Line an exclusive license to distribute logoed products to franchisees. Little Caesar contends that this agreement only covers those items that bear a Little Caesar’s registered mark, and thus is asking this court to find that the 1989 agreement only applies to items given to a retail customer that bear a registered mark, such as logo paper items and individual packages of condiments marked with logos. This only includes only such items as bags, cups, napkins, and logo condiments used by retail customers, such as individual salad dressings. Plaintiffs, however, seek to define “logo products” much more broadly. In exchange for the license, Blue Line agreed to pay Little Caesar 1% of its gross sales of these items. After the agreement was executed in May 1989, all third-party distributors and suppliers were informed by memo that Blue Line would be the exclusive supplier of the logo items. The memos listed only the items discussed above. In the agreement itself, the following language defines the covered logo items: WHEREAS Little Caesar desires to grant an exclusive license to Blue Line to contract with third parties for the manufacture and production of certain supplies and paper products which utilize the Proprietary Marks, including without limitation, carry out bags, wrappers, dishes, napkins, cups and boxes (“Logo Products”). Little Caesar has presented evidence demonstrating that the logo items amount to only a small percentage of the purchases made by franchisees. Little Caesar has also shown that it was the consistent course of conduct of itself and Blue Line to have the agreement only apply to those few logoed items going to retail customers. Under the agreement, Blue Line is required to submit monthly reports to Little Caesar detailing the amount of sales of the logoed products so that the 1% royalty can be determined. Little Caesar has presented numerous examples of these monthly reports that confirm that only the sales of paper products and individual salad dressings bearing a registered mark are covered by the licensing agreement. In the 1989 memos sent to independent distributors and suppliers about the new licensing arrangement, Little Caesar told them that only the following items were covered: cups, lids, straws, bags, salad containers, napkins, cup carriers, dressings, and convenience packs. In essence, Little Caesar is asking the court to rule that the licensing agreement only covers items given out to customers with the Little Caesar logo on them. Plaintiffs argue that the licensing agreement covers virtually all supplies delivered in bulk to franchisees by Blue Line that have a Little Caesar logo somewhere on the packaging. Under this interpretation, the licensing agreement would apply to most supplies bought by franchisees. This is because many of the supplies purchased by franchisees are provided according to Little Caesar specifications and thus have Little Caesar logo on the bulk packaging even though the supplies were sold by an independent distributor. If plaintiffs’ interpretation is correct, then franchisees would be required to purchase much of their supplies through Blue Line, thereby seemingly establishing a tying arrangement on the basis of the national 1989 agreement that appears to be applicable to all franchisees. This is important because plaintiffs’ interpretation would strengthen their argument for class certification. In support of their interpretation of the licensing agreement, plaintiffs point to the language of the agreement that says that the license applies to “certain supplies ... including without limitation ...” Plaintiffs contend that the without limitation language means that the agreement could apply to any supplies named by Little Caesar. In addition, plaintiffs cite other documents in which Little Caesar lists specific logoed products as being covered by the licensing agreement, but also indicates that the agreement’s coverage is not limited to the list. In response, Little Caesar argues that the “without limitation” language was included so that new products given out to retail customers that bear the company’s registered mark would be covered by the agreement. This was the case when certain franchisees started to issue promotional plastic cups to its customers that had the Little Caesar logo on them, and Little Caesar informed the franchisees and their suppliers that Blue Line had the exclusive right to distribute such logoed products. In addition, Little Caesar has indicated that signs, uniforms, and lo-goed promotional items are restricted in their distribution, but that this is not a result of the 1989 licensing agreement. Plaintiffs also rely upon various statements by Little Caesar officials concerning logoed products. However, some of the statements cited by plaintiffs actually support Little Caesar’s motion. For example, in a 1992 memo from David Deal, the head of Blue Line, to Mike Illitch, Little Caesar’s primary owner, about the prospect of a new independent distributor that would compete with Blue Line, Deal said that franchisees would be less likely to contract with the new distributors because of the necessity of taking two deliveries, one from Blue Line for logoed products and one from the distributor for all other products. In addition, the president of Ameriserv, William Burgess, testified that his company had to have access to the logoed products as defined by Little Caesar in order to compete. Although these facts support plaintiffs’ contention that Little Caesar was trying to control the supplies going to its franchisees, they also support Little Caesar’s position in its motion for partial summary judgment on the issue of the scope of the term “logoed products.” Finally, plaintiffs oppose Little Caesar’s motion because they claim that Little Caesar is trying to inject merit issues into the class certification determination through this motion for partial summary judgment. Additionally, plaintiffs argue that the_ motion is improper because it seeks to determine a single, non-dispositive- issue of "fact. However, in France Stone Co., Inc. v. Charter Township of Monroe, 790 F.Supp. 707, 710 (E.D.Mich.1992), this .court, addressed asimi-larly narrow issue of particular concern to the parties that significantly advanced the progress of that litigation. In the same way, the court finds that the scope of the 1989 licensing agreement in this case is of sufficient import so as to justify an examination of Little Caesar’s motion. Furthermore, the court also finds that this motion does not inject merit issues into the class certification motion, but instead clarifies an issue that the court finds to be clear from the facts and evidence presented by both sides. In this vein, the court concludes that the 1989 licensing agreement between Little Caesar and Blue Line only applies to items given to a retail customer that bear a Little Caesar’s registered mark, such as logo paper items and individual packages of logo condiments. This is the only rational interpretation of the licensing agreement given its explicit language and the long and established course of conduct demonstrated between Little Caesar and Blue Line. It also is consistent with the way Little Caesar has explained the agreement to independent distributors and suppliers. In this instance, plaintiffs have attempted to stretch the language of the agreement to apply to virtually all supplies purchased by franchisees. Such an interpretation contradicts the language of the agreement, the way the agreement has been carried out, and common sense. As a result, the court concludes that there is no genuine issue of material fact as to the interpretation of the 1989 agreement, and it will grant Little Caesar’s motion for summary judgment. IY. Little Caesar’s Second Motion to Dismiss and/or for Partial Summary Judgment In this motion, Little Caesar is seeking summary judgment and/or dismissal of the claims presented in portions of Counts I-V. A. Count I — Price-fixing In Count I, plaintiffs allege that Little Caesar conspired with independent distributors to fix prices of the supplies sold to franchisees. From 1982 until January 1988, Blue Line told independent distributors what prices to charge Little Caesar restaurants for supplies, which generally was a national price. From January 1988 until May 1988, Little Caesar established “regional pricing” whereby independent distributors were directed to charge the same prices as those charged by a Blue Line warehouse in the same or nearby region. In this way, Little Caesar argues, prices would more accurately reflect the actual freight costs of suppliers to the various regional distributors. From May 1988 until Blue Line opened a warehouse in a particular region, Blue Line suggested maximum percentage markup ranges for various categories of supplies. Little Caesar claims it began suggesting prices to independent distributors in 1982 when it was discovered that the prices charged to franchisees by distributors were too high. By suggesting maximum prices, Little Caesar allegedly hoped to protect its franchisees from unscrupulous distributors trying to gouge the unwary. In responding to the price-fixing claim, Little Caesar has focused upon the particular distributor that serviced each of the plaintiffs. Plaintiff Smith’s franchise was serviced by Continental Meats, an independent distributor, until January 1986, when Blue Line began selling supplies to Smith. Plaintiff Fields’ distributor was PYA Monarch. In February 1989, Blue Line opened a warehouse that serviced Fields’ region. When PYA Monarch withdrew from the market in July 1989, Fields switched to Blue Line. Plaintiff Hennessy has at all times purchased his supplies from Blue Line. 1. Plaintiffs Smith and Hennessy Little Caesar contends that plaintiffs Smith and Hennessy do not have a price-fixing claim because the alleged conspiracy was designed to fix the maximum prices of independent third-party distributors and not Blue Line who was the distributor serving Smith and Hennessy. Thus, Little Caesar contends that the prices charged Smith and Hennessy were not fixed. In response, plaintiffs Smith and Hennessy contend that they have standing to sue Little Caesar and Blue Line for the alleged price-fixing because Blue Line was able to set its prices at anti-competitive levels because the prices of competing distributors had been fixed at similarly high levels in accord with the conspiracy. In addition, plaintiffs contend that any co-conspirator is jointly and severally liable to a plaintiff even if that plaintiff did not deal directly with them. See Ambook Enters., Inc. v. Time, Inc., 612 F.2d 604, 620 (2d Cir.1979), cert. denied, 448 U.S. 914, 101 S.Ct. 35, 65 L.Ed.2d 1179 (1980). Little Caesar contends, however, that no evidence has been offered to show that Blue Line’s prices were set by agreement with the independent distributors. Since plaintiffs Smith and Hennessy purchased only from Blue Line, they have not been harmed by the higher prices allegedly fixed by the independent distributors. The court will grant Little Caesar’s motion for summary judgment against plaintiffs Smith and Hennessy as to the price-fixing claim. Plaintiffs Smith and Hennessy have not produced any evidence in response to the Rule 56 motion to show that they have suffered any harm as a rcsufNoiF'tKe alleged conspiracy. They have come forward with no evidence showing that-the prices they paid for supplies were even, affected by Little Caesar’s conduct. In their response brief, plaintiffs merely allege that Blue Eiñe^ prices were anti-competitive, but provide no evidence of any kind to back this conclusion. During oral argument, plaintiffs conceded that the price-fixing claim was not of great import to them and was merely—'“background” information for their tying claim. In this context, and because plaintiffs Smith and Hennessy have failed to raiifi a genuine issue of material doubt in response to Little Caesar’s motion, summary judgment is appropriate on Count I as against Smith and Hennessy. 2. Plaintiff Fields Little Caesar contends that it deserves summary judgment as to plaintiff Fields because this plaintiff has not suffered any antitrust injury from the vertical maximum suggested markup policy—the alleged price fixing—and because her claims are barred by the statute of limitations. As to antitrust injury in particular, from May 1988 until February 1989, the prices as to Fields were maximum prices only. In memos to independent distributors, Little Caesar told the distributors that the suggested prices were “maximum ranges only! Lower markup ranges would certainly be welcomed!” In fact, after the suggested prices went into effect, PYA Monarch told its customers, including Fields that the “result of this change will be savings to you.” Under these circumstances, Little Caesar contends that Fields suffered no antitrust injury when her distributor was prevented from charging her higher prices. Even if Fields suffered antitrust injury, Little Caesar contends that her claim is barred by the four year statute of limitations set in 15 U.S.C. § 15b, unless the price-fixing policy was fraudulently concealed. Fields filed her claim in September 1993, more than four years after her distributor withdrew from the market. In its brief, Little Caesar details how the pricing policies complained of were fully explained and revealed to its franchisees, including Fields. In particular, Fields learned from her sister in early 1989 from PYA Monarch that it would like to charge lower prices, but was prevented from doing so by Little Caesar’s pricing policies. In order to establish fraudulent concealment in order to defeat the bar posed by a statute of limitations, plaintiff Fields must show the following: (1) Wrongful affirmative concealment; (2) Failure to discover within the limitations period; and (3) Due diligence until discovery. Pinney Dock & Trans. Co. v. Penn Central Corp., 838 F.2d 1445, 1465 (6th Cir.1988), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). Under the circumstances presented here, Little Caesar contends that plaintiff Fields cannot establish fraudulent concealment of the alleged price-fixing conspiracy. In response to the motion as to this claim, plaintiffs have not presented a spirited or meaningful defense, and it appears that plaintiffs are concentrating on their tying claim to the exclusion of the price-fixing claim, admitting during oral argument the price-fixing claim was not “central” to their case. Under these circumstances, the court will grant Little Caesar’s motion for summary judgment against plaintiff Fields as to Count I.It is apparent that Fields was made fully aware of the pricing policy instituted as to her distributor at least as early as the beginning of 1989. As a result, her September 1993 complaint alleging price-fixing was filed beyond the period allowed by the statute of limitations. In addition, Fields has failed to present any evidence showing that she suffered any antitrust injury as a result of the alleged conspiracy. Thus, plaintiff Fields has failed to present sufficient evidence to defeat Little Caesar’s motion concerning the price-fixing claim. B. Count II — Tying Arrangement As discussed earlier, plaintiffs contend that Little Caesar has forced them to buy their food and other supplies from Blue Line in order to continue in their business as franchisees. Plaintiffs contend that this conduct is an illegal tying arrangement and a violation of the Sherman Act, 15 U.S.C. § 1. The essential elements of a tying claim under the Sherman Act are as follows: 1. there must be a tying arrangement between two distinct products; 2. the seller must have sufficient economic power in the tying market to restrain appreciably competition in the tied product market; and 3.the amount of commerce affected must not be insubstantial. Virtual Maintenance, Inc. v. Prime Computer Inc., 11 F.3d 660, 664 n. 6 (6th Cir.1993), cert. dismissed, — U.S. -, 114 S.Ct. 2700, 129 L.Ed.2d 829 (1994); see Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 613-14, 73 S.Ct. 872, 883, 97 L.Ed. 1277 (1953). In addition, “coercion is an implicit requirement for an unlawful tie-in agreement.” Earl W. Kintner & Joseph P. Bauer, 2 Federal Antitrust Law § 10.59, at 250 (1980, Supp.1995). In this instance, plaintiffs claim that in order to have a Little Caesar franchise (the tying product), franchisees are forced to buy their food and supplies (the tied product) from Little Caesar/Blue Line. 1. All Plaintiffs Little Caesar is seeking summary judgment on the tying claims based upon its contention that no tying arrangement existed, and that the existence of “forcing” or actual coercion of the individual franchisees is a required element of the claim. Little Caesar admits that this portion of its motion does not apply to any of the claims asserted by plaintiff Smith after his request to approve Ameriserv as an independent distributor was made in April 1992. Little Caesar concedes that plaintiff Smith has a triable issue of fact as to whether the denial of the request to approve Ameriserv was reasonable and proper. In addition, Little Caesar indicates that its motion assumes it has market power and that the franchise and its supplies are distinct products. Little Caesar indicates that future motions will address these issues. The basis of this portion of Little Caesar’s motion is its contention that the plaintiffs, other than Smith, cannot show that they have been forced to purchase the tied product (food and other supplies) from Little Caesar/Blue Line. Little Caesar argues that in order to establish a tying claim plaintiffs must point to a particular contractual provision that binds their ability to choose independent distributors. Alternatively, Little Caesar claims that plaintiffs could establish a tying claim by showing that they objected in some way to Little Caesar/Blue Line as their distributor or that plaintiffs knew that a request for approval of an alternate distributor was futile. In essence, Little Caesar contends that plaintiffs must show some sort of forcing or coercion as an essential element of a tying arrangement. In Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 12, 104 S.Ct. 1551, 1558, 80 L.Ed.2d 2 (1984), the Supreme Court stated that [o]ur 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. When such “forcing” is present, competition on the merits for the tied item is restrained and the Sherman Act is violated. Id. (emphasis added). Under the Supreme Court’s decision and subsequent lower court interpretation, antitrust plaintiffs must demonstrate that they have been forced to purchase the tied product. As one leading commentator indicated as early as 1980 and even before Jefferson Parish, “[a] growing trend is to require a strict individual demonstration of coercion.” Bauer & Kintner, supra, at 250. Such forcing can be demonstrated by an explicit contractual provision or provisions, individual evidence of coercion, or an admission by a defendant. The Sixth Circuit cases relied upon by plaintiffs show support, rather than opposition, to this method of proof in tying cases. See Virtual Maintenance Inc. v. Prime Computer, Inc., 957 F.2d 1318, 1324 (6th Cir.1992) (extreme price differential meant that all rational buyers were forced to accept tied product), vacated on other grounds, — U.S. -, 113 S.Ct. 314, 121 L.Ed.2d 235 (1992); Bell v. Cherokee Aviation Corp., 660 F.2d 1123, 1131 (6th Cir.1981) (defendant admitted to tying arrangement based upon provisions of lease and sub-lease). As Little Caesar points out, each of the franchise agreements at issue specifically allows the plaintiffs the ability to seek approval of independent distributors to provide them with supplies. In Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 712 (11th Cir.1984), the court stated that “[a]n approved source requirement is not, alone, illegal. Only if a franchisee is coerced into purchasing products from a company in which the franchisor has a financial interest does an illegal tie exist.” The question then is whether Little Caesar unreasonably refused to grant approval of an independent distributor or whether plaintiffs were aware that the approval process was futile. In this case, plaintiffs concede that they do not claim that they knew that the approval process was futile. Plaintiff Smith claims that a tie-in has existed since 1982, and he claims damages since September 1989, four years prior to the filing of this lawsuit and within the statute of limitations. However, Smith only sought approval of an independent distributor as an alternative to Blue Line in April or May of 1992. At that time, Smith sought Little Caesar’s approval of Ameriserv as a distributor. Under these circumstances, Little Caesar is seeking summary judgment against Smith as to any damages pursuant to a tying claim suffered before he sought approval of the alternate distributor. Little Caesar contends that it was only when Smith objected to Blue Line and sought Ameriserv that it became clear that he was being forced to buy the tied product. Little Caesar’s position is strengthened by the fact that in 1988 Smith was part of a large group of franchisees who considered purchasing supplies from a competitor of Blue Line. However, after a series of meetings, Smith’s concerns were addressed and he decided to stay with Blue Line. On this basis, Little Caesar contends that Smith cannot claim that he was forced to do anything since he agreed to stay with Blue Line of his own free will. Thus, Little Caesar alleges that Smith experienced none of the forcing symptomatic of a tying arrangement until April 1992 when he sought approval of an independent distributor. Little Caesar applies similar logic to the claims of plaintiffs Fields and Hennessy. In Hennessy’s case, he has never sought an alternate distributor. Fields also has never sought approval of another distributor and was only aware of the single rejection of Ameriserv as an alternative distributor for Smith. Under these facts, Little Caesar argues that none of the plaintiffs, except for Smith after April 1992, has objected to the status of Blue Line as the sole distributor of supplies and can thus demonstrate that it was forced to purchase supplies from Little Caesar/Blue Line. Little Caesar cites Klo-Zik Co. v. General Motors Corp., 677 F.Supp. 499, 506 (E.D.Tex.1987) and Dubuque Communications Corp. v. American Broadcasting Companies, 432 F.Supp. 543, 546 (N.D.Ill.1977), aff'd, 547 F.2d 1170 (7th Cir.1976), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977) for the proposition that in order to prove a tying claim, plaintiffs must produce “evidence that the undesired condition was imposed over plaintiffs objection, or at the explicit refusal of the defendant to do otherwise. When a condition is accepted without objection, the element of coercion becomes totally speculative.” Dubuque, 432 F.Supp. at 546. Similarly, in Klo-Zik, the court stated that “If two products are sold together, there must be evidence that the buyer objected to the package, that the buyer was only interested in one of the two products or that the tied product was forced upon him.” Klo-Zik, 677 F.Supp. at 506. Where the tying arrangement is admitted or where the arrangement is imposed as part of a contract, there is no further need to demonstrate the forcing element. Because of the very nature of a binding contract, coercion and forcing can be implied since the victim of the tying arrangement has no other choice but to comply with the arrangement or face litigation to enforce the contract. “All courts agree, [however], that absent contractual tie-in provisions, actual coercion must be demonstrated.” Bauer & Kintner, supra, at 252. Of the three plaintiffs currently before the court, only Smith has signed a franchise agreement that arguably contains an explicit tying arrangement. As a result, since no express contractual tie is present in this case as to plaintiffs Fields and Hennessy and because they have not sought approval or otherwise objected to Blue Line as their distributor, Little Caesar contends that summary judgment is proper. As to plaintiff Smith, however, one of his three franchise agreements was signed after mid-1990, and thus includes a limitation on the approval of independent distributors as to the supply of logoed products. As a result, Smith may have a tying claim for the purposes of this motion based upon an express contractual tie. Thus, there is no further need to show forcing or some other coercive element in order to establish his claim. Consequently, plaintiff Smith could have a tying claim as it relates to his one franchise governed by the mid-1990 agreement. As to plaintiffs Hennessy and Fields, however, the court "will grant Little Caesar’s motion for summary judgment on the tying claim as to these two plaintiffs. Within the applicable time period, neither one requested approval of an independent distributor or were subject to an explicit contractual tie-in as part of the franchise agreements by which they were bound. Furthermore, these plaintiffs cannot show that had they made a request for an alternate distributor, it would have been futile. As a result, there is no indication that either Fields or Hennessy was forced to continue purchasing supplies through Little Caesar/Blue Line. Any claim by plaintiff Fields based upon PYA Monarch’s exit from the market is addressed in the section below. 2. Plaintiff Fields Little Caesar contends that any tying claim relating to the independent distributor PYA Monarch, which serviced plaintiff Fields’ franchises, is barred by the statute of limitations. Prior to February 1989, plaintiff Fields’ franchises purchased their supplies from an independent, third-party distributor, PYA Monarch. In February 1989, Blue Line opened a warehouse in Atlanta that serviced the region in which Fields’ franchise is located. Following Blue Line’s entry into the market, Fields continued to purchase from PYA Monarch until it withdrew from the market in July 1989 and stopped selling supplies to Fields’ franchises. Fields then began purchasing her supplies from Blue Line. Little Caesar contends that Fields may claim that her purchases from Blue Line, beginning when PYA Monarch withdrew from the market, were a tie-in because of actions that Little Caesar allegedly took against PYA Monarch. Little Caesar argues that assuming for the purposes of this motion that such a tie-in resulted, any such claim by Fields would be barred by the four year antitrust statute of limitations. See 15 U.S.C. § 15b. As indicated earlier, this ease was filed in September 1993, so the unlawful conduct must have occurred after September 1989, in order for Fields’ claim not to be barred. Little Caesar argues that since PYA Monarch withdrew from the market more than four years before this lawsuit commenced, the claim is barred unless the “continuing violation” doctrine applies. According to the Sixth Circuit, a “continuing [antitrust] violation [is] one in which the plaintiffs interests are repeatedly invaded.” This circuit has refined the Zenith standard to the point that it now can be expressed as two discrete rules. First, “[w]hen a continuing antitrust violation is alleged, a cause of action accrues each time a plaintiff is injured by an act of the defendants.” Second, “in the context of a continuing conspiracy, the statute of limitations runs from the commission of the act that causes the plaintiffs damage.” Thus, “even when a plaintiff alleges a continuing violation, an overt act by the defendant is required to restart the statute of limitations and the statute runs from the last overt act.” For statute of limitations purposes, therefore, the focus is on the timing of the causes of injury, i.e., the defendant’s overt acts, as opposed to the effects of the overt acts. Peck v. General Motors Corp., 894 F.2d 844, 849 (6th Cir.1990) (citations omitted). In Peck, even'though the plaintiff had suffered some injury within the last four years, the court dismissed his claim under the statute of limitations because there was no new overt act. See Fontana Aviation, Inc. v. Baldinelli 575 F.2d 1194 (6th Cir.1978) (claim accrued when company pulled out of the market), cert. denied, 439 U.S. 911, 99 S.Ct. 281, 58 L.Ed.2d 257 (1978); Barnosky Oils, Inc. v. Union Oil Co., 665 F.2d 74, 82 (6th Cir.1981) (claim accrued when boycott first occurred, not while it continued to be in force). Little Caesar contends that because no overt act has been directed at plaintiff Fields in the last four years, any claim she may have based upon the pullout of PYA Monarch from the market is barred by the statute of limitations. In response, plaintiffs allege that Little Caesar fraudulently concealed its conduct against Fields and that its conduct was not limited to the elimination of PYA Monarch from the market. As to fraudulent concealment, plaintiffs rely upon the 1989 licensing agreement which they claim was kept hidden from them, such that Fields could not have filed her claim due to this concealment. Plaintiffs also claim that Little Caesar committed numerous overt acts, other than the elimination of PYA Monarch from the market, after September 1989 as part of its effort to control the distribution of supplies. Plaintiffs contend that Little Caesar refused to approve other distributors in other parts of the country, used the licensing agreement to foreclose competition, and sent letters to franchisees, suppliers, and distributors enforcing the tying agreement. The court finds, however, that any tying claim by plaintiff Fields based upon the elimination of PYA Monarch from the market is barred by the statute of limitations. Conduct by Little Caesar directed towards eliminating PYA Monarch from the relevant market could serve as the basis of a tying claim, but this conduct occurred more than four years before this suit was filed. None of the new overt acts complained of by plaintiffs in the past four years appear to relate to plaintiff Fields and her franchise. Plaintiffs refer generally to many incidents cited in their various briefs, but fail to point out specific incidents applicable to Fields. In addition, there have been so few refusals to approve independent distributors, and Fields was only aware of the refusal relating to Ameri-serv, that plaintiffs cannot argue that the process was made futile in the past four years. Furthermore, under Fields’ franchise agreement she could ask for approval of a distributor of any products and was not limited as to logoed products. Also, Fields never asked Little Caesar to approve a new distributor in the past four years. Any refusal of such a request would have been a new overt act by Little Caesar. However, since Fields made no such request, her tying claim is barred. C. Counts III-IV — State Antitrust Law Little Caesar is also seeking summary judgment on the state antitrust claims for the same reasons advanced in support of its motion for summary judgment on the federal claims. Since Michigan antitrust law is identical to federal law and follows the federal precedents, the decision as to Counts I and II will govern the success of Counts III and IV. Pursuant to MCLA § 445.784(2), in construing Michigan antitrust law, “the courts shall give due deference to interpretations given by the federal courts to comparable antitrust statutes.” As a result, there is no practical difference between the federal and state claims and the court reaches the same conclusions as to Counts III and IV as it did with respect to Counts I and II. D. Count V — Breach of Contract and National Price Advertising Each franchise agreement provides that “[t]he final decision as to all matters of pricing ... shall be made solely by [the] Franchise owner.” Plaintiffs claim that Little Caesar breached this provision by conducting a national advertising campaign based upon “price point advertising.” The campaigns consist of a series of short run promotions of particular items that are pervasively advertised nationally at a specific price in the ads. In its motion, Little Caesar contends that it has not breached the pricing provision of the franchise agreements, and that plaintiffs have always had the freedom to set their own retail prices. Little Caesar has presented evidence showing that many franchisees do not sell the promoted products at the nationally advertised price, and that it in no way punishes franchisees who do not follow the advertised prices. In fact, each of the three plaintiffs in this case have admitted charging prices that are higher than those that are nationally advertised, or that they have deviated from the national promotions in some other manner. In addition, each of the national ads contain the following disclaimer: “Limited time offer at participating stores. Prices may vary.” In response to this portion of Little Caesar’s motion, plaintiffs contend that Little Caesar required its franchisees to abide by its pricing decisions by first creating tremendous customer expectation through pervasive price advertising, and second, by then intimidating franchisees willing to upset customer expectations and deviate from the national price. Since 1989, Little Caesar has advertised based upon price through LCNAP. Franchisees are required to contribute up to 4% of their gross revenue to LCNAP for advertising purposes. The advertising monies amount to $50-$60,000,000 annually and are managed by Little Caesar employees. Plaintiffs point to a 1988 letter sent to Little Caesar by its advertising agency stating that the “use of a specific price in the national network creative would force all markets to run a common price and could compromise LCE’s competitive value and/or profit margins in particular markets.” In addition, plaintiffs point to various complaints by franchisees about the use of price point advertising. Not only do plaintiffs contend that the advertising policies took away their pricing freedom, they also claim that Little Caesar threatened franchisees who failed to follow the nationally advertised prices. In support of this contention, however, plaintiffs have only produced one letter by a Little Caesar employee to a non-plaintiff franchisee who was not following the nationally advertised prices. In the September 1991 letter, Little Caesar told the franchisee that his “practice of altering the pricing on the national promotions to accommodate what your group believes to be ‘above the average costs to operate’ is not acceptable. You need to understand that the continuation of this practice will affect the future of your group’s relationship with Little Caesar.” However, all three of the plaintiffs admit having no knowledge of this letter until it appeared during this litigation. Finally, plaintiffs also contend that the disclaimers presented in each advertisement are not sufficient. They complain that they are not audible on TV ads, and that a Michigan regulation holds that the phrase “available at participating stores” is inadequate since it is merely a general disclaimer. See Mich.Admin. Code R 14.208(1). In reply, Little Caesar points out that the franchisee who was threatened is not one of the plaintiffs, none of the plaintiffs have received similar letters even though they all have deviated from national prices, and plaintiffs have presented no evidence to show that they had knowledge of the September 1991 letter. As a result, Little Caesar contends that the September 1991 letter is irrelevant. In addition, plaintiffs have failed to show how the Michigan regulation applies, how it creates private rights in contract suits, or how it applies to Little Caesar’s specific disclaimer which uses language which is different from that cited in the regulations. The court finds that Little Caesar has not breached the provision of plaintiffs’ franchise agreements giving them the freedom to set retail prices. As Little Caesar has demonstrated, plaintiffs are free of any contractual restrictions requiring them to follow the nationally advertised prices. Each advertisement contains a proper disclaimer that indicates that not all franchises may follow the advertised price. Most importantly, plaintiffs have presented no evidence to show that they have been coerced in any way by Little Caesar to follow the national prices. In fact, all three admit to charging higher prices and to deviating from the national promotions. Plaintiffs have not submitted competent evidence showing that their freedom to set retail prices was restricted by anything other than their own business judgment. As a result, plaintiffs have not shown that Little Caesar has acted in breach of the franchise agreements. Under the franchise agreements, although franchisees are free to set their own retail prices, they also have ceded all authority as to decisions concerning national advertisements to Little Caesar. As a result, plaintiffs cannot now complain that Little Caesar is breaching the agreement when it is simply exercising authority given to it under the franchise agreements themselves. This authority was bargained for by the parties, and it appears to be part of the overall scheme established by the franchise agreements, a scheme that in the case of these three plaintiffs has continued to allow individual franchisees the freedom to ultimately set their own price. As plaintiffs readily admit, many franchisees eagerly support national advertisements based upon price, pointing to this program as the basis for their success. As is demonstrated by this suit, however, some franchisees are unhappy with the way in which Little Caesar has exercised its authority under the advertising provisions of the franchise agreements. To the court, there appears to be no dispute that such unhappiness merely amounts to dissatisfaction over the bargain received as part of the contract. Such unhappiness does not amount to a breach of contract when there is no dispute that plaintiffs still retain the freedom guaranteed in the franchise agreements. As a consequence, the court will grant Little Caesar’s motion for summary judgment on this portion of the breach of contract claim. E. Count V — Breach of Contract and Supplier Rebates Plaintiffs also claim breach of contract based upon their allegation that Little Caesar has failed to credit them with rebates, discounts, and bonuses paid by vendors to Blue Line as purportedly required by the franchise agreements and/or the implied covenant of good faith and fair dealing. Little Caesar is seeking summary judgment as to these claims on the basis that it is not required to make such credits under the franchise agreements, and that the implied covenant is not applicable to the circumstances of this particular claim. However, Little Caesar is not seeking judgment on that portion of Count V relating to Hormel advertising allowance claims. In support of its motion, Little Caesar cites the relevant franchise agreements which make no provision for crediting the accounts of franchisees with vendor rebates or discounts. In addition, Little Caesar contends that the implied covenant is inapplicable in this case because “Michigan courts will recognize an action for breach of an implied covenant of good faith and fair dealing where a ‘party to a contract makes the manner of its performance a matter of its own discretion.’ ” ParaData Computer Networks, Inc. v. Telebit Corp., 830 F.Supp. 1001, 1005 (E.D.Mich.1993) (citing Burkhardt v. City Nat’l Bank, 57 Mich.App. 649, 652, 226 N.W.2d 678 (1975)). In this instance, Little Caesar argues that no provision of the franchise agreement is of a discretionary nature so as to implicate the implied covenant of good faith. Little Caesar specifically excludes from its motion any claim involving advertising allowance payments made by Hormel to Blue Line for including Hormel logo in ads paid for by LCNAP. Little Caesar states that it believes its franchisees received full credit and will resolve this issue by settlement or further motion. In response to this portion of Little Caesar’s motion, plaintiffs only discuss the Hormel issue and unrelated LCNAP issues that Little Caesar explicitly exempted from the scope of its motion. As a result, the court finds that Little Caesar deserves summary judgment on the portion of Count V pertaining to the covenant of good faith and fair dealing and/or to the payment of supplier rebates other than the claim specifically excluded from this motion regarding the Hormel advertising allowance. Plaintiffs have not raised instances other than the Hormel situation that implicate a breach of contract claim in response to Little Caesar’s motion as to this portion of Count V. As a result, since there is no dispute between the parties and plaintiffs have not presented any evidence to the contrary, the court will grant Little Caesar’s motion for summary judgment as it relates to any breach of contract claim for failure to pay supplier rebates or discounts, except as delineated above. Y. Plaintiffs’ Motion for Class Certification In their motion for class certification, plaintiffs have requested Rule 23(b)(2) — (3) certification of a class of Little Caesar franchisees under the following claims: 1. Rule 23(b)(3) — Count II — illegal tying arrangement. 2. Rule 23(b)(2) — (for injunctive and declaratory relief) — Count Il-illegal tying arrangement. 3. Rule 23(b)(2) — (for injunctive declaratory relief) — Count V — breach of contract based upon national price advertising. 4. Rule 23(b)(2) — (for injunctive and declaratory relief) — Counts V & VI— misappropriation of LCNAP funds in breach of the contract and conversion of LCNAP funds. Under Rule 23(a) of the Federal Rules of Civil Procedure, the following prerequisites must be satisfied before an action can proceed as a class action: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or def