Full opinion text
TABLE OF CONTENTS I. INTRODUCTION.140 II.MOTION FOR JUDGMENT ON THE PLEADINGS FOR FAILURE TO STATE A CLAIM.143 III. DISMISSAL FOR FAILURE TO STATE A CLAIM UNDER RULE 12(b)(6).143 IV. REALTY ONE’S ANTITRUST ALLEGATIONS.144 V. ANTITRUST INJURY AND STANDING TO SUE UNDER § 4 OF THE CLAYTON ACT .145 A. Antitrust Injury: A Proper Claim.145 B. Antitrust Standing: A Proper Party.146 VI. CONSPIRACY TO RESTRAIN TRADE UNDER § 1 OF THE SHERMAN ACT.148 VII. CONSPIRACY TO MONOPOLIZE UNDER § 2 OF THE SHERMAN ACT.152 VIII. THE RECRUITMENT OF SALES AGENTS BY RE/MAX.155 TABLE OF CONTENTS IX. AGREEMENTS ON BROKER-TO-BROKER COMMISSION SPLITS.156 X. DISPARAGEMENT.159 XI. SHAM LITIGATION.159 XII. REALTY ONE’S STATE LAW CLAIMS.161 XIII. THE ANTITRUST STANDING OF RE/MAX INT’L.162 A. Antitrust Injury.162 B. Antitrust Standing .163 1. The Market for Residential Real Estate Services in Northeast Ohio.164 2. The Market for the Recruitment and Retention of Residential Real Estate Agents.169 XIV. CONCLUSION.170 MEMORANDUM OPINION DOWD, District Judge. I. INTRODUCTION Plaintiffs, Re/Max International, Inc. (“Re/ Max Int’l”) and associated franchisees, A.E.B.T.S., Inc. (“Re/Max Crossroads”), and T.M.A.T.N.B., Inc. (“Re/Max Affinity”), filed a ten-count complaint against Defendants Realty One, Inc. (“Realty One”) and Smythe, Cramer Company (“Smythe Cramer”) asserting federal subject matter jurisdiction pursuant to 28 U.S.C. § 1337. Plaintiffs amended their complaint to join four additional Re/ Max Int’l franchisees as plaintiffs — D.F.I., Inc. (“Re/Max Results”), Joseph P. Grady, Ine. (“Re/Max Xpress Realty”), MeGrew Realty, Inc. (“Re/Max Key Realty”), and Property Professionals, Inc. (“Re/Max Property Professionals”); but the substance of the complaint’s allegations remained the same (Docket 14). In addition to this initial group of seven, five more entities have since intervened as plaintiffs: Re/Max Northeast Limited Partnership (“Re/Max NE Ohio”), Zames Realty, Ine. (“Zames Realty”), Realty Properties, Inc., (“Realty Properties”), True Independence Partnership (“True Partnership”), and R.E.P., Inc. (“REP”). This second group of five has set forth its claims in the Second and Third Amended Complaints (Dockets 99 & 147). Plaintiffs seek private enforcement of the antitrust laws pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 & 26, due to Realty One’s and Smythe Cramer’s alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2. Plaintiffs also pursue pendent state law claims for violations of the Valentine Act, Ohio Revised Code § 1331.01 et seq.; the Ohio Deceptive Trade Practices Act, Ohio Rev.Code § 4165.01 et seq.; and for tortious interference with potential business relations. Plaintiffs assert supplemental jurisdiction under 28 U.S.C. § 1367. In particular, the First, Second and Third Amended Complaints assert the following similar claims: Count I, conspiracy to restrain trade in violation of § 1 of the Sherman Act against Realty One and Smythe Cramer; Count II, conspiracy to monopolize in violation of § 2 of the Sherman Act against Realty One and Smythe Cramer; Count III, unlawful monopolization under § 2 of the Sherman Act against Realty One; Count IV, unlawful attempt to monopolize under § 2 of the Sherman Act against Realty One; Count V, unlawful monopolization under § 2 of the Sherman Act against Smythe Cramer; Count VI, unlawful attempt to monopolize under § 2 of the Sherman Act against Smythe Cramer; Count VII, unlawful formation of trusts under Ohio’s Valentine Act against Realty One and Smythe Cramer; Count VIII, deceptive trade practices under Ohio’s Deceptive Trade Practices Act against Realty One and Smythe Cramer; Count IX, unfair competition under Ohio law against Realty One and Smythe Cramer; and Count X, tortious interference with potential business relations under Ohio law against Realty One and Smythe Cramer. Realty-One counterclaims against Plaintiffs for violations of Sections 1 and 2 of the Sherman Act, and for tortious interference with business relations and unfair competition under Ohio law. Smythe Cramer counterclaims against Plaintiffs for a declaratory judgment on the validity of various actions taken by it in this dispute. Plaintiffs have filed replies to those counterclaims denying their validity. Re/Max Int’l, its associated franchisees and other intervening plaintiffs claim that Realty One and Smythe Cramer have engaged in anticompetitive conduct to prevent the expansion of the “Re/Max 100% Concept” and the creation of additional Re/Max affiliates in Northeast Ohio. Re/Max Int’l is a franchisor of a real estate broker business system. Re/Max franchises have established themselves nationwide including in Northeast Ohio. Realty One and Smythe Cramer are long-established real estate brokerage firms which do significant business in Northeast Ohio. Neither Realty One nor Smythe Cramer franchise their way of doing business. Plaintiffs contend that ever since they entered in the Northeast Ohio market place, Realty One and Smythe Cramer, .collectively and individually, have refused to deal with them through the implementation of anticom-petitive practices. Plaintiffs claim that they have been the victims of unlawful punitive, adverse commission splits. The practice of “commission splitting” in the real estate business is one that has apparently gained some acceptance in the residential real estate market in Northeast Ohio and might be summarized as follows: Prospective home buyers approach a real estate broker to express an interest in buying a home. The real estate broker or his or her sales agent tells the home buyers that there will be no extra charge for his or her services in finding a suitable home under certain circumstances. At that point the broker presents the home buyers with two choices. One, as an agent or subagent of home sellers, the broker can show homes which are listed on the multiple listing service or “MLS.” If a purchase of a MLS home is made, the broker as the agent or subagent for the home sellers will receive a percentage of the buyers’ purchase price as a commission. In a case where a MLS home has been listed in the first instance with another realtor, the broker will receive a partial share of the commission, a “commission split,” which is divided between the listing realtor and the broker as the listing realtor’s subagent. The second choice is that the broker may offer to act as the buyers’ agent. As a buyers’ agent, the broker may also use the MLS system to locate suitable homes, but the broker no longer acts as an agent or subagent for the sellers. Nevertheless, as in the previous case, the buyers’ broker still expects to receive the full compensation for his or her services from a portion of the purchase price as a commission. In order to accomplish this arrangement, the buyers’ broker obtains an agreement with the sellers’ broker to receive a cut of the commission which the sellers’ broker receives from the purchase price. The sellers’ broker does not keep all of that commission percentage for himself or herself, instead the sellers’ broker gives the buyers’ broker a “split” of the commission tendered. The amount of this split is often posted on the MLS system. The end result is that the buyers pay the retail price for a home. The sellers receive the retail price less the commission they pay their broker. And the sellers’ broker splits the commission with the buyers’ broker. In both instances, whether acting as the sellers’ broker or the buyers’ broker, the expectancy is that the real estate broker gets paid for his or her services from a percentage of the purchase price as a direct commission, or from a commission split with another broker. Re/Max franchisees emphasize the buyers’ broker aspect of the real estate business although they do act sellers’ brokers as well. Realty One brokers use both the sellers’ broker and buyers’ broker systems while Smythe Cramer brokers do not act as buyers’ brokers. Plaintiffs claim that Re/Max brokers and sales agents gain an advantage over their competitors through the Re/Max compensation structure which allows Re/Max brokers and agents to keep up to 100% of any commissions earned thereby rewarding high productivity. Plaintiffs also claim that Re/Max affiliates gain a competitive advantage through emphasis on the buyers’ broker approach to the real estate business. Plaintiffs claim that whenever they as buyers’ agents deal with Realty One and Smythe Cramer on the sale of residential real estate for which Realty One or Smythe Cramer act as the sellers’ agents, Realty One and Smythe Cramer insist on a more unfavorable commission split with Re/Max brokers than they do with non-Re/Max franchisees. As well, Re/Max Int’l claims that this practice of imposing adverse splits against those brokers who choose to affiliate with Re/Max has illegally thwarted the expansion and creation of additional Re/Max franchises. The damages which flow from the imposition of these “adverse” commission splits form the basis for this lawsuit. The Court has several motions at issue before it: Plaintiffs’ motion for judgment on the pleadings on the counterclaims of Realty One for failure to state a claim upon which relief can be granted or for summary judgment (Docket 17-1 & 17-2); Realty One’s motion for partial summary judgment against Re/Max Int’l (Docket 54); and Smythe Cramer’s motion for partial summary judgment against Re/Max Int’l (Docket 87). First, Plaintiffs move to dismiss Realty One’s first, second and third counterclaims; or in the alternative move for summary judgment on Realty One’s first counterclaim to the extent this counterclaim asserts allegations of monopolization or attempted monopolization under Section 2 of the Sherman Act (Docket 17-1 & 17-2); and to the extent this counterclaim asserts claims of conspiracy to restrain trade and monopolize under Sections 1 and 2 of the Sherman Act (Docket 81 & 108). See Fed.R.Civ.P. 12(e) & 56(e). Plaintiffs submit a supplemental memorandum in support (Docket 81), Realty One a memorandum in opposition (Docket 90), and Plaintiffs a reply (Docket 103). As well, Realty One filed a rebuttal (Docket 107), and Plaintiffs a sur-reply (Docket 110). Second, Realty One moves for partial summary judgment against -Re/Max Int’l on all counts asserted againsIVit on the grounds that Re/Max Int’l lacks antitrust standing and its claims are barred by the applicable statute of limitations (Docket 54-1 & 54r-2). Re/Max Int’l submits a memorandum in opposition (Docket 77) to which Realty One has filed a reply (Docket 91). Third, Smythe Cramer moves for partial summary judgment against Re/Max Int’l on Counts I, II, V, VI, VII, IX and X on the grounds that Re/Max Int’l lacks antitrust standing (Docket 87). Re/Max Int’l submits a memorandum in opposition (Docket 113). Smythe Cramer has filed a reply (Docket 124) to which Re/Max Int’l has filed a rebuttal (Docket 130). The Court entertained--oral argument on the pending motions on March 14,1995. See Tr. of Argument, Docket 151. Re/Max Int’l submitted supplemental affidavits in support of its position (Docket 143). As well, Re/Max Int’l (Docket 156), Realty One (Docket 154) and Smythe Cramer (Docket 157) submitted post-argument briefs. For the reasons set forth below, Plaintiffs’ motion for judgment on the pleadings for failure to state a claim is granted to the extent that Realty One’s first counterclaim asserts allegations of monopolization, attempted monopolization or conspiracy to monopolize under Section 2 of the Sherman Act; but denied to the extent that the first counterclaim alleges a conspiracy to restrain competition or to engage in sham litigation in violation of Section 1 of the Sherman Act. As well Plaintiffs’ motion to dismiss is denied as to Realty One’s second counterclaim for interference with business relations and Realty One’s third counterclaim for unfair competition under Ohio law. Plaintiffs’ alternative motion for summary judgment on Realty One’s Sherman Act Section 1 claims for conspiracy to restrain competition and Realty One’s claims of interference with business relations and unfair competition under Ohio law is denied without prejudice as premature. Likewise, Realty One’s motion for partial summary judgment against Re/Max Int’l on the statute of limitations defense is denied without prejudice as premature. Finally, Realty One’s and Smythe Cramer’s motions for partial summary judgment against Re/ Max Int’l on the issue of antitrust standing are denied to the extent that Re/Max Int’l assert a private enforcement actions under § 4 of the Clayton Act for damages flowing from the alleged injury inflicted on the market for the recruitment and retention of real estate sales agents or brokers in Northeast Ohio. Realty One’s and Smythe Cramer’s motions for partial summary judgment against Re/Max Int’l on Re/Max Int’l’s state law claims contained in Counts VIII, IX and X of the Amended Complaint are denied without prejudice as premature. II. MOTION FOR JUDGMENT ON THE PLEADINGS FOR FAILURE TO STATE A CLAIM After the pleadings are closed, a party may move to dismiss for failure to state a claim upon which relief can be granted by motion for judgment on the pleadings. Fed. R.Civ.P. 12(h)(2). Unlike a motion to dismiss which ordinarily is filed in the first instance in lieu of an answer under Rule 12(b), a motion for judgment on the pleadings comes after the pleadings are closed and after a “responsive pleading,” as defined by Rule 7(a), has been served. Whereas a plaintiff, cross-claimant or counter-claimant typically could amend his allegations pursuant to Rule 15(a) without leave of court when faced with a 12(b)(6) motion to dismiss, moving to dismiss under Rule 12(h)(2) forces the pleader to seek leave of court before he can remedy his defective allegations. Where leave of court is denied, dismissal may be granted under Rule 12(b)(6) even though the pleader has realized too late the manner in which his allegations might be remedied. Such maneuverings under Rule 12(h)(2) should be scrutinized carefully to determine whether a party has attempted to frustrate Rule 12 which requires that any of the Rule 12(b) defenses “shall be made before pleading if a further pleading is permitted.” Where, as here, a party has moved for judgment on the pleadings a short eight days after it has filed its reply to the original counterclaim, due consideration should be given to a later-filed motion seeking leave to amend. In this case the Court has struck a balance between the provisions of Rule 12(b) and 12(h)(2) by allowing Realty One the opportunity to amend its counterclaims. Thus framed, “[wjhere the Rule 12(b)(6) defense is raised by a Rule 12(c) motion for judgment on the pleadings, [the court] must apply the standard for a.Rule 12(b)(6) motion-” Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987). III. DISMISSAL FOR FAILURE TO STATE A CLAIM UNDER RULE 12(b)(6) “A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hi- shon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted)). When a complaint is challenged under Rule 12(b)(6) its allegations should be construed favorably to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); and its factual allegations, as “construed as to do substantial justice,” Fed.R.Civ.P. 8(f), must be accepted as true. See United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Hishon, 467 U.S. at 73, 104 S.Ct. at 2232-33; Conley, 355 U.S. at 48, 78 S.Ct. at 103. See also Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976) (“take as true the material facts alleged”). Except for “two specific instances” as provided by Rule 9(b) for fraud and mistake, “notice pleading” under Rule 8(a) does not require greater particularity. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, -, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (allegations of municipal liability under 42 U.S.C. § 1983). The sufficiency of a complaint, however, is a question of law, Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir.1987), and the court “need not accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987) (citations omitted). IV. REALTY ONE’S ANTITRUST ALLEGATIONS Realty One alleges that Re/Max Int’l, its independent regional directors, franchisees, subfranchisees, and their respective sales associates, as constituting the largest residential real estate brokerage system in the United States, targeted the Northern Ohio metropolitan area with a conspiracy designed to destroy local competition in the business of listing and selling real estate. (Am.Coun-terel. ¶¶ 1, 2, 5 & 6). Realty One claims that this conspiracy, which is designed to “weaken, destroy and eliminate existing and potential competition, including Realty One, and to monopolize trade and commerce in the brokerage of residential real estate for targeted metropolitan markets in the United States ...,” violates Sections 1 and 2 of the Sherman Act. (Am.Counterel. ¶ 7). Realty One contends that Re/Max and its franchise system possess monopoly power or a dangerous potential for achieving monopoly power in those metropolitan residential real estate markets which they target. (Am.Counterel. ¶ 7). According to Realty One, the members of the conspiracy accomplish the destruction of local competition by “lur[ing] top producing sales agents away from established local brokers with deceptive and misleading claims, while collectively discouraging Re/Max brokers from recruiting sales agents from each other.” (Am.Counterel. ¶ 9). The inducement comes from a collective agreement among the conspirators that all Re/Max brokers pay their respective sales agents 95% to 100% of the brokerage commissions for transactions in which those sales agents participate. (Am.Counterel. ¶¶ 13 & 15). This recruitment apparently has deprived Realty One of the competitive value that Realty One has invested in those sales agents as well as the customer lists, contacts and confidential business practices to which those sales agents were privy. (Am.Counterel. ¶ 9). Realty One alleges that to gain market dominance the conspirators disparage local brokers, disparage new or part-time sales associates associated with local brokers, and interfere with listing contracts. (Am.Counterel. ¶¶10 & 11). As well, Realty One alleges that the conspirators collectively agreed upon the compensation that Re/Max brokers would pay other brokers for cooperative transactions. (Am.Counterel. ¶ 12). According to Realty One the collective agreements on these broker-to-broker commission splits raise and stabilize the price of real estate broker services in a per se unlawful manner. (Am.Counterel. ¶ 14). Finally, Realty One alleges that the conspirators, in order to achieve their plan for market dominance, have agreed to, and have then instituted, an uninterrupted program of meritless judicial proceedings against Realty One; and have incited a series of groundless government investigations without probable cause. (Am.Countercl. ¶¶ 17 & 18). All of this, according to Realty One, has injured and hindered it in its ability to recruit and retain “successful” sales agents. Realty One adds damage claims for lost proprietary information, lost brokerage commission profits, lost resources from defending baseless litigation and plaintiff-induced investigations, and lost reputation and goodwill. (Am.Countercl. ¶ 19). V. ANTITRUST INJURY AND STANDING TO SUE UNDER § 4 OF THE CLAYTON ACT Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2, are broadly worded statutes designed to counter restraints of trade and monopolistic practices; but are actionable by private individuals only through Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 & 26. Section 4 of the Clayton Act allows private enforcement of the antitrust laws through a treble damages action by “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws[.]” 15 U.S.C. § 15. Those who do not qualify for Clayton Act standing may not bring a private damage action for antitrust violations. Cf. Kansas v. Utilicorp United Inc., 497 U.S. 199, 204, 110 S.Ct. 2807, 2810-11, 111 L.Ed.2d 169 (1990); id. at 219, 110 S.Ct. at 2818 (White, J., dissenting) (stating that it was inappropriate for the majority to deny plaintiff “standing to sue under § 4 of the Clayton Act”). Moreover, “[a] showing of antitrust injury is necessary, but not always sufficient, to establish standing under § 4 [of the Clayton Act].” Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 110 n. 5, 107 S.Ct. 484, 489 n. 5, 93 L.Ed.2d 427 (1986) (citing Page, The Scope of Liability for Antitrust Violations, 37 Stan.L.Rev. 1445, 1483-85 (1985)). Where the parties challenge standing at the pleading stage, the court “must examine the allegations contained in the complaint” to determine first whether the plaintiff has presented a proper claim for antitrust injury before asking whether the plaintiff is the proper party to bring suit. Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1448-49 (11th Cir.1991) (citing in part Austin v. Blue Cross & Blue-Shield of Ala., 903 F.2d 1385, 1387 (11th Cir.1990) (motion to dismiss) and citing Cargill, supra). Courts should not confuse antitrust injury with antitrust standing because although the two concepts share a common ingredient, an inquiry into antitrust injury “is more limited than one to determine whether the plaintiff has standing.” Axis, S.p.A. v. Micafil, Inc., 870 F.2d 1105, 1110-11 (6th Cir.) (citations omitted), cert. denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 49 (1989). A. Antitrust Injury: A Proper Claim. In order to state a claim for “antitrust injury,” a private plaintiff must sue for injury that “is of the type the antitrust laws were intended to prevent and that flows from that which makes defendant’s acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). An “injury, although causally related to an antitrust violation, nevertheless will not qualify as ‘antitrust injury’ unless it is attributable to an anticompetitive aspect of the practice under scrutiny... Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 110 S.Ct. 1884, 1889, 109 L.Ed.2d 333 (1990) (summarizing Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109-10, 107 S.Ct. 484, 488-89, 93 L.Ed.2d 427 (1986)). The antitrust injury requirement “ensures that the harm claimed by the plaintiff corresponds to the rationale for finding a violation of the antitrust laws in the first place, and it prevents losses that stem from competition from supporting suits by private plaintiffs for either damages or equitable relief.” Atlantic Richfield, 495 U.S. at 342, 110 S.Ct. at 1893-94. In short, a private plaintiff can recover on an antitrust claim only for a loss which “stems from a competition -reducing aspect or effect of the defendant’s behavior.” Id. at 344, 110 S.Ct. at 1894. “For instance, an efficient firm may capture unsatisfied customers from an inefficient rival, whose own ability to compete may suffer as a result. This is the rule of the marketplace and is precisely the sort of competition that promotes the consumer interests that the Sherman Act aims to foster.” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767, 104 S.Ct. 2731, 2739-0, 81 L.Ed.2d 628 (1984) (footnote omitted). As the Sixth Circuit has stated: Anticompetitive conduct is conduct designed to destroy competition, not just to eliminate a competitor. Lively legal competition will result in the efficient and shred businessman routing the inefficient and imprudent from the field. The antitrust laws must be administered in such a way that they do not restrain such vigorous competition in order to protect inefficient competitors. Richter Concrete Corp. v. Hilltop Concrete Corp., 691 F.2d 818, 823 (6th Cir.1982). B. Antitrust Standing: A Proper Party. A challenge to the “standing” of a party is primarily a challenge to the limited jurisdiction of federal courts “to decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Generally, parties have “standing” to have their disputes adjudicated in federal court pursuant to the constraints of the “case and controversy” requirement of Article III, Section 2 of the United States Constitution, only if those parties allege and then establish an “injury in fact,” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982), which is not “abstract,” “conjectural,” or “hypothetical,” but rather, “distinct and palpable.” Allen v. Wright, 468 U.S. 737, 751-52, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). Although standing “subsumes a blend of constitutional requirements and prudential considerations,” Valley Forge, 454 U.S. at 471, 102 S.Ct. at 758, prudential considerations are not considered if Congress creates statutory standing that it intends to extend to the full limits of Article III. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1121, 71 L.Ed.2d 214 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. 9, 99 S.Ct. 1601, 1609 n. 9, 60 L.Ed.2d 66 (1979). In the case of the antitrust laws, the Supreme Court has interpreted the Clayton Act to limit statutory standing to parties fewer than would be allowed by full extent of Article III. Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 534-46 & 535 n. 31, 103 S.Ct. 897, 906-13 & 907 n. 31, 74 L.Ed.2d 723 (1983) (identifying judge made rules limiting persons entitled to sue under § 4 of the Clayton Act). See also Hawaii v. Standard Oil Co., 405 U.S. 251, 263 n. 14, 92 S.Ct. 885, 892 n. 14, 31 L.Ed.2d 184 (1972). In particular, when analyzing whether a plaintiff falls within that class of persons who have standing to sue under Section 4 of the Clayton Act, the court considers several factors that are to be balanced, with no single factor being conclusive. Peck v. General Motors Corp., 894 F.2d 844, 846 (6th Cir.1990) (citing Province v. Cleveland Publishing Co., 787 F.2d 1047, 1051 (6th Cir.1986)). The court considers: “(1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation.” Bodie-Rickett & Assocs. v. Mars, Inc., 957 F.2d 287 (6th Cir.1992) (quoting Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983) and citing Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)). Furthermore, given the relevance of the connection between a plaintiff and an alleged antitrust violation to the standing inquiry, the Court must appreciate the elements of the alleged violation before any standing analysis would be complete. Cf. Greater Rockford Energy & Technology Corp. v. Shell Oil Co., 998 F.2d 391, 395 n. 7 (7th Cir.1993) (noting that there is “some logic” to the interpretation that “a plaintiff may not have ‘standing’ unless he can satisfy each requirement of the' § 4 action — antitrust violation, antitrust injury and proximate cause” — but for purposes of clarity treating antitrust injury as a separate proposition), cert. denied, — U.S.-, 114 S.Ct. 1054, 127 L.Ed.2d 375 (1994). In its Amended Counterclaim, Realty One alleges that “Re/Max International, Inc.” and “its independent franchisees and subfranchisees, including the plaintiffs” engaged in a conspiracy to restrain competition and to monopolize in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2. The Court finds that the Amended Counterclaim gives fair notice only of illegal antitrust conspiracies. Compare Realty One’s Mem.Opp’n at 7 & 19 (Docket 90) with id. at 8. To the extent that other antitrust claims might lead to a different result in the non-conspiracy context, the Court finds that such claims were abandoned with Realty One’s amendment and have not been plead in the latest pleading in accordance with the requirements of Federal Rule of Civil Procedure 8. VI. CONSPIRACY TO RESTRAIN TRADE UNDER § 1 OF THE SHERMAN ACT Section 1 of the Sherman Act, 15 U.S.C. § 1, applies to any “contract, combination ..., or conspiracy” between two or more persons to restrain trade in interstate commerce. Only unreasonable restraints, however, constitute unlawful conduct under § 1. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). As such, market conduct generally is analyzed under a “rule of reason” to determine whether “the restraint imposed is such as merely regulates and perhaps thereby promotes competition, or whether it is such as may suppress or even destroy competition.” Chicago Bd. of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). Significantly, “[c]ourts have discerned two major types of antitrust conspiracies to restrain trade: horizontal and vertical. Horizontal conspiracies involve agreements among competitors at the same level of competition to restrain trade.... Vertical conspiracies, on the other hand, involve agreements between competitors at different levels of competition to restrain trade....” Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir.1988) (citing Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir.), cert. denied, 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978)). “Certain agreements, such as horizontal price fixing and market allocation, are thought so inherently anti-competitive that each is illegal per se without inquiry into the harm it has actually caused.” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984) (citing Northern Pacific R.R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958)). Most other agreements, however, “hold the promise of increasing a firm’s efficiency and enabling it to compete more effectively.” Id. These other agreements such as joint ventures and various vertical agreements are judged under a “rule of reason” which entails “[1] an inquiry into market power and [2] market structure designed to assess the combination’s actual effect.” Id. (citing in part Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977)). See also Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985) (discussing circumstances when the per se rule does not apply in the horizontal context). The rule of reason inquiry “focuses directly on the challenged restraint’s impact on competitive conditions.” National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 688, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637 (1978). “Since different antitrust principles apply depending on whether a given restraint of trade is either horizontal or vertical, classification is thus critically important.” Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 806 (6th Cir.1988). “The essential elements of a violation of Section 1 of the Sherman Act are: 1) a contract, combination or conspiracy; 2) affecting interstate commerce; 3) which imposes an ‘unreasonable’ restraint on trade.” White & White, Inc. v. American Hosp. Supply Corp., 723 F.2d 495, 504 (6th Cir.1983) (citing Richter Concrete Corp. v. Hilltop Concrete Corp., 691 F.2d 818, 827 (6th Cir.1982) and Davis-Watkins v. Service Merchandise, 686 F.2d 1190, 1195-96 (6th Cir.1982)). When the effect on interstate commerce is not an issue and a per se rule does not apply, the Sixth Circuit requires a more in-depth inquiry into the allegations of unreasonable restraint of trade. To establish a [rule-of-reason] claim under section 1, the plaintiff must establish that the defendants contracted, combined or conspired among each other, that the combination or conspiracy produced adverse, anti-eompetitive effects within relevant product and geographic markets, that the objects of and conduct pursuant to that contract or conspiracy were illegal and that the plaintiff was injured as a proximate result of that conspiracy. Davis-Watkins Co. v. Service Merchandise, 686 F.2d 1190, 1195-96 (6th Cir.1982) (explanatory text added) (following the four-element test formulated in Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 147 (3d Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1715, 72 L.Ed.2d 137 (1982)). Accord Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir.1988); Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715, 722 (3d Cir.1991); Consultants & Designers, Inc. v. Butler Serv. Group, Inc., 720 F.2d 1553, 1562 (11th Cir.1983). Of course it has been recited that “ ‘[i]n essence plaintiffs must demonstrate that the alleged ... conspiracy had either an unlawful purpose or an anticompetitive effect.’” Stratmore v. Goodhody, 866 F.2d 189, 191 (6th Cir.1989) (citing Continental Cablevision of Ohio, Inc. v. American Elec. Power Co., 715 F.2d 1115, 1118 (6th Cir.1983) and United States v. United States Gypsum Co., 438 U.S. 422, 436 n. 13, 98 S.Ct. 2864, 2873 n. 13, 57 L.Ed.2d 854 (1978)). But the significance of this dictum appears to vary depending on the context in which it is employed. Certainly, it does not change the explicit rule-of-reason analysis repeatedly stated in National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978) that the rule of reason “focuses directly on the challenged restraint’s impact on competitive conditions;” id. at 688, 98 S.Ct. at 1363 (emphasis added); or that unreasonableness under either a per se rule or a rule of reason “is confined to a consideration of impact on competitive conditions.” Id. at 690, 98 S.Ct. at 1365 (emphasis added). Thus commentators have stated that despite such statements that proof of a § 1 violation may be made by proof of either an unlawful purpose or an anticompetitive effect, “there is a question as to whether an anticompetitive intent, standing alone, establishes an unreasonable restraint of trade under the rule of reason.... The .Second Circuit has indicated that it ‘doubts’ that anticompetitive purpose or effect ‘is a disjunctive rule’ and stated that ‘it is difficult to conceive of a viable private action for damages under section 1 if some unreasonable restraint has not been effected.’ Borger v. Yamaha Int’l Corp., 625 F.2d 390, 397 & n. 4 (2d Cir.1980).” James R. Loftis, et al., Antitrust Law Developments 20-21 (2d ed. 1984) (other footnotes omitted). Indeed, the very requirement of antitrust “injury” would appear to be circumvented if proof of § 1 rule-of-reason case could be made on the existence of unlawful intent alone. Cf. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344, 110 S.Ct. 1884, 1894, 109 L.Ed.2d 333 (1990) (“The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.”) (second emphasis added). See also Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., — U.S. - , -, 113 S.Ct. 2578, 2589, 125 L.Ed.2d 168 (1993) (“Even an act of pure malice by one business competitor against another does not, without more, state a claim under the antitrust laws.”). Thus, where a rule-of-reason case is presented in the Sixth Circuit, a showing of “adverse anticompetitive effects” or, in the appropriate case, “facts which radiate a potential for future harm” to competition, is required. Compare Davis-Watkins, 686 F.2d at 1195 & 1202; Richter, 691 F.2d at 827 (“For a restraint to be unreasonable, it must have an anticompeti-tive effect.”) (citing Smith v. Pro Football, Inc., 593 F.2d 1173, 1183 (D.C.Cir.1978)) with Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 622, 73 S.Ct. 872, 887-88, 97 L.Ed. 1277 (1953). See also FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 460, 106 S.Ct. 2009, 2019, 90 L.Ed.2d 445 (1986) (where agreements are not per se violations, the court analyzes whether the action “has the potential for genuine adverse effects on competition,” which usually involves an inquiry “into market definition and market power.”). It follows that insufficient allegations of anticompetitive effect will justify the dismissal of a § 1 antitrust claim. See Crane & Shovel, 854 F.2d at 805 (citing with approval Havoco of Am., Ltd. v. Shell Oil Co., 626 F.2d 549, 557 (7th Cir.1980)). Anticompetitive effect or impact does not exist in a vacuum, however. “An anticompet-itive or procompetitive effect must be judged in relation to a market, for it is in that conceptual space that competition takes place.” Consultants & Designers, 720 F.2d at 1562. Thus, “[t]he starting point in. a rule of reason case is to identify the relevant product and geographic markets. See W.C. Holmes, 1988 Antitrust Law Handbook, § 1.04[2], at 148-50. The relevant market is used to gauge market power, which in turn indicates the potential anticompetitive effect of a challenged restraint.” Stratmore v. Goodbody, 866 F.2d 189, 194 (6th Cir.1989). See also Fleer Corp., 658 F.2d at 148 n. 18 (“The definition of a relevant product market is a necessary element of either a section 1 or 2 violation.”) (citation omitted). As well, “[a] defendant must have market power before its conduct can be shown to have an adverse effect on competition,” Hand v. Central Transp., Inc., 779 F.2d 8, 11 (6th Cir.1985) (citing Davis-Watkins, 686 F.2d at 1202), although “proof of actual detrimental effects can obviate the need to prove the defendant’s market power [in a rule-of-reason case].” Lie v. St. Joseph Hosp. of Mount Clemens, Mich., 964 F.2d 567, 570 (6th Cir.1992) (internal quotations and citations omitted) (explanatory text added). It is important to remember that § 1 of the Sherman Act does not proscribe conduct that is “wholly unilateral.” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984) (citing Albrecht v. Herald Co., 390 U.S. 145, 149, 88 S.Ct. 869, 871, 19 L.Ed.2d 998 (1968)). “Even where a single firm’s restraints directly affect prices and have the same economic effect as concerted action might have, there can be no liability under § 1 in the absence of agreement.” Fisher v. City of Berkeley, 475 U.S. 260, 266, 106 S.Ct. 1045, 1049, 89 L.Ed.2d 206 (1986). Merely because a single firm or its divisions or wholly-owned subsidiaries engage in unreasonable restraints of trade, does not make those restraints actionable under § 1. As the Supreme Court explained, “[b]ecause the Sherman Act does not prohibit unreasonable restraints of trade as such—but only restraints effected by a contract, combination, or conspiracy—it leaves untouched a single firm’s anticompetitive conduct (short of threatened monopolization) that may be indistinguishable in economic effect from the conduct of two firms subject to § 1 liability.” Copperweld, 467 U.S. at 775, 104 S.Ct. at 2743—44. Furthermore, the Supreme Court has held that “[a] § 1 agreement may be found when ‘the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.’ ” Copperweld, 467 U.S. at 771, 104 S.Ct. at 2742 (quoting American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946)). “[T]he antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective.’” Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1470-71, 79 L.Ed.2d 775 (1984) (citation omitted). The existence of an agreement must be proved and where there is no direct evidence of an explicit agreement, antitrust law limits the range of permissible inferences in cases based on circumstantial evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Such circumstantial evidence must reasonably “tend[ ] to exclude the possibility” that the alleged conspirators acted independently. Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471. Finally, there can be an unlawful antitrust conspiracy based on an agreement alone. The Supreme Court has stated that “the essence of any violation of § 1 is the illegal agreement itself—rather than the overt acts performed in furtherance of it....” Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991) (citing United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910)). Contrary to the general rule that there must be allegations, and later proof, of an overt act taken in furtherance of an agreement before that agreement may be said to have matured into an unlawful conspiracy, the Sherman Act follows the early common law rule in that “it does not make the doing of any act other than the act of conspiring a condition of liability.” Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 782, 57 L.Ed. 1232 (1913). Accord United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225 n. 59 & 252, 60 S.Ct. 811, 846 n. 59 & 857-58, 84 L.Ed. 1129 (1940). Compare United States v. Shabani, — U.S. -, -, 115 S.Ct. 382, 384-86, 130 L.Ed.2d 225 (1994) (government need not prove the commission of any overt acts in furtherance of an unlawful drug conspiracy under 21 U.S.C. § 846 as the criminal agreement itself is the actus reus) with Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.1985) (defining the elements of a conspiracy in the civil rights context to include an overt act) and 42 U.S.C. § 1985(3) (outlawing acts causing injury in a conspiracy to deprive civil rights). YII. CONSPIRACY TO MONOPOLIZE UNDER § 2 OF THE SHERMAN ACT Section 2 of the Sherman Act deals with monopolistic practices and, where a conspiracy is alleged, § 2 reaches beyond unilateral activity to impose liability on concerted acts. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767 n. 13, 104 S.Ct. 2731, 2739 n. 13, 81 L.Ed.2d 628 (1984); 15 U.S.C. § 2. “[Sections] 1 and 2 of the Sherman Act require proof of conspiracies which are reciprocally distinguishable from and independent of each other although the objects of the conspiracies may partially overlap.” American Tobacco Co. v. United States, 328 U.S. 781, 788, 66 S.Ct. 1125, 1129, 90 L.Ed. 1575 (1946) (citing United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226, 60 S.Ct. 811, 846, 84 L.Ed. 1129 (1940)). But see R. Posner, Antitrust Law: An Economic Perspective 216 (1976) (“As for conspiracy to monopolize, any such conspiracy is also, a conspiracy in restraint of trade, which violates section 1”). Although “those things which are condemned by § 2 are in large measure merely the end products of conduct which violates § 1[,] Standard Oil Co. v. United States, 221 U.S. 1, 61 [31 S.Ct. 502, 516, 55 L.Ed. 619 (1911),] ... that is not always true.” United States v. Griffith, 334 U.S. 100, 106, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). Because § 2 reaches monopolies, attempts to monopolize, as well as conspiracies to monopolize, “it is ... monopoly power, whether lawfully or unlawfully acquired, [that] may itself constitute an evil and stand condemned under § 2 evn though it remains unexercised.” Griffith, 334 U.S. at 106-07, 68 S.Ct. at 945. “So also a conspiracy to monopolize violates § 2 even though monopoly power was never acquired.” Griffith, 334 U.S. at 107 n. 9, 68 S.Ct. at 945 n. 9 (citing American Tobacco Co. v. United States, 328 U.S. 781, 789, 66 S.Ct. 1125, 1129, 90 L.Ed. 1575 (1946)). Significantly, “[t]he [§ 2] offenses of monopolization, attempt to monopolize, and conspiracy to monopolize are distinct and require different proofs.” Potters Medical Ctr. v. City Hosp. Ass’n, 800 F.2d 568, 574 (6th Cir.1986). Monopolization and attempted monopolization may be established by virtue of unilateral acts alone, but conspiracy to monopolize requires proof of concerted activity. Id. Where a conspiracy to monopolize is alleged, plaintiff must “prove both an existence of conspiracy and specific intent to monopolize.” Richter Concrete Corp. v. Hilltop Concrete Corp., 691 F.2d 818, 827 (6th Cir.1982) (citing Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 153 (3d Cir. 1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1715, 72 L.Ed.2d 137 (1982)). See also Lewis v. Pennington, 400 F.2d 806, 811 (6th Cir.) (“a specific intent to accomplish an unlawful result is necessary where monopoly power has not been obtained and the charge is an attempt or conspiracy to monopolize”), cert. denied, 393 U.S. 983, 89 S.Ct. 450, 21 L.Ed.2d 444 (1968). Proof of specific intent to monopolize “may be shown by direct evidence or inferred from anticompetitive acts.” Richter Concrete Corp. v. Hilltop Concrete Corp., 691 F.2d 818, 826 (6th Cir.1982) (applying the same specific intent requirement for claims of attempted monopolization to claims of conspiracy to monopolize). To prove a conspiracy to monopolize “it [is] not necessary to show power and intent to exclude all competitors, or to show a conspiracy to exclude all competitors,” because § 2 prohibits efforts to “monopolize any part of the trade or commerce among the several states.... ” American Tobacco Co., 328 U.S. at 789, 66 S.Ct. at 1129. Nor need an antitrust plaintiff who alleges a conspiracy to monopolize demonstrate defendant’s dangerous probability of success as would be the case if an attempted monopolization claim were brought. International Distribution Ctrs., Inc. v. Walsh Trucking Co., Inc., 812 F.2d 786, 795-96 n. 8 (2d Cir.1987). Instead, a § 2 conspiracy claim “ ‘is a different offense from the crime that is the object of the conspiracy/” and defendants might be convicted “of conspiracy to monopolize without ever having acquired the power to carry out the object of the conspiracy, i.e., to exclude actual and potential competitors from the [relevant market].” American Tobacco Co., 328 U.S. at 789, 66 S.Ct. at 1129 (explanatory text added) (citations omitted). Although market power need not be shown for a conspiracy claim, such power is relevant -to whether a particular defendant possessed a specific intent to monopolize. See Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 926-27 (9th Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). Courts have held, moreover, that “the mere intention to exclude competition and to expand one’s own business is not sufficient to show a specific intent to monopolize” because “[a]ll lawful competition aims to defeat and drive out competitors.” Great Escape, Inc. v. Union City Body Co., 791 F.2d 532, 541 (7th Cir.1986) (citing Pacific Eng’g & Prod. Co. v. Kerr-McGee Corp., 551 F.2d 790, 795 (10th Cir.), cert. denied, 434 U.S. 879, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977)). Under this view the specific intent inquiry focuses on “predatory conduct” which is “conduct that is in itself an independent violation of the antitrust laws or that has no legitimate business justification other than to destroy or damage competition.” Great Escape, 791 F.2d at 541 (citations omitted). See also Association for Intercollegiate Athletics for Women v. NCAA, 735 F.2d 577, 585 & n. 11, 586 n. 13 (D.C.Cir.1984) (holding that the specific intent to monopolize “refers to a purpose to acquire monopoly power by driving one’s rival from the market by exclusionary or predatory means” and applying that specific intent test to plaintiffs claims of attempted monopolization and conspiracy to monopolize). Some courts have opined, however, that since “[s]pecific intent to monopolize is the heart of a conspiracy charge, ... a plaintiff is not required to prove what is the ‘relevant market.’ ” Salco Corp. v. General Motors Corp., 517 F.2d 567, 576 (10th Cir.1975) (following United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2d Cir.1961)). Other courts have maintained that “a minimal showing must nonetheless be made as to the product and geographic context of the alleged conspiracy.” Alexander v. National Farmers Org., 687 F.2d 1173, 1181-82 & 1193 (8th Cir.1982), cert. denied, 461 U.S. 937, 103 S.Ct. 2108, 77 L.Ed.2d 313 (1983). Another view is “that relevant market should be considered a necessary element of Section 2 conspiracy claims, at least in civil cases.” Alexander, 687 F.2d at 1182 (citing Von Kalinowski, 3 Antitrust Laws and Trade Regulation § 9.02[4] (1982)). In United States v. Yellow Cab Co., 332 U.S. 218, 226, 67 S.Ct. 1560, 1564-65, 91 L.Ed. 2010 (1947) the Supreme Court addressed the sufficiency of a complaint alleging a conspiracy to monopolize under § 2 and intimated that the market represented by the victims of the conspiracy was relevant. In another case, however, the Supreme Case summarized its analysis of the conspiracy to monopolize action presented in Story Parchment Co. v. Paterson Co., 282 U.S. 555, 560, 51 S.Ct. 248, 249-50, 75 L.Ed. 544 (1931) as one in which allegations of combination and conspiracy to monopolize were proven “and the scope of the market was not in issue.” See United States v. du Pont de Nemours & Co., 351 U.S. 377, 395 n. 23, 76 S.Ct. 994, 1007 n. 23, 100 L.Ed. 1264 (1956). Given these disparate precedents, the question of whether the plaintiff is required to prove the relevant market for a conspiracy to monopolize claim demands closer scrutiny. In Yellow Cab the Supreme Court held that a failure by plaintiff to allege defendants’ monopoly power or to allege “[i]ts relative position in the field of taxicab production [had] no necessary relation to the ability of the [defendants] to conspire to monopolize or restrain ... an appreciable segment of interstate cab sales. An allegation that such a segment has been or may be monopolized or restrained is sufficient.” 332 U.S. at 226, 67 S.Ct. at 1564-65. It is this passage dealing with the interstate commerce requirements of a conspiracy to monopolize claim that the court in United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2d Cir.1961) found dispositive of its view that proof of a relevant market was unnecessary to a § 2 conspiracy. Significantly, however, the Supreme Court went on to add that there was no doubt that the combinations and conspiracies alleged in the Yellow Cab ease were banned by the Sherman Act because those combinations or conspiracies “exclud[ed] all cab manufacturers other than CCM from that part of the market represented by the cab operating companies under their control_” 332 U.S. at 226, 67 S.Ct. at 1565. It would appear, therefore, that apart from jurisdictional allegations going to a conspiracy’s affect on an appreciable segment of interstate commerce, allegations of the specific intent required for a conspiracy to monopolize claim would make sense only if one could demonstrate a specific intent to achieve monopoly power in a relevant market. The case of Story Parchment is not to the contrary as in that ease too there was sufficient proof to indicate that defendants combined and conspired to continue their “substantial monopoly of the interstate trade in parchment paper.” 282 U.S. at 560, 51 S.Ct. at 249. Although perhaps a showing of the relevant market in a § 2 conspiracy need not be as rigorous as that required under § 1, a conspiracy to monopolize claim at least should “require a minimal showing of product and geographic context—upon what and where the alleged conspiracy is focused—to ensure that a claim is not based upon some abstract showing of unlawful intent.” Alexander, 687 F.2d at 1182. Compare also Bowen v. New York News, Inc., 522 F.2d 1242, 1258 (2d Cir.1975) (“An essential element of such a conspiracy is an intent to monopolize in the designated segment or commerce. ), cert. dented, 425 U.S. 936, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976). With the doctrines of antitrust injury and antitrust standing and the contours of § 1 and § 2 conspiracy claims outlined, the Court can now turn to the sufficiency of Realty One’s allegations set forth in its Amended Counterclaims. VIII. THE RECRUITMENT OF SALES AGENTS BY RE/MAX Realty One complains initially that Re/Max Int’l and its franchisees conspired to recruit sales agents in the business of listing and selling residential real estate in the Northern Ohio area by requiring that all Re/Max brokers pay their respective sales agents 95% to 100% of the brokerage commissions for transactions in which those sales agents participated. (Am. Countercl. ¶¶5, 9, 13 & 15). Realty One alleges that as a competitor of Re/Max brokers it is an employer of sales agents and Plaintiffs collectively discourage Re/Max brokers from recruiting sales agents from each other. (Am Countercl. ¶ 9). Realty One states that Plaintiffs’ recruitment and disparagement of non-Re/Max sales agents injures Realty One in its ability to recruit and retain “successful” sales agents and deprives Realty One of the competitive value it has invested in those agents. (Am.Countercl. 1Í1Í 9, 10, 11 & 19). This conspiracy thereby weakens competition and monopolizes trade and commerce in the brokerage of residential real estate in the Northern Ohio area. (Am.Countercl. ¶¶ 5 & 7). First, the harm claimed by Realty One from Plaintiffs’ alleged agreement to discourage Re/Max brokers from recruiting sales agents from each other fails to allege any antitrust injury for which Realty One could claim Clayton Act standing. Realty One and Re/Max brokers are buyers, or consumers if you will, of the labor skills of sales agents. As competitors they create the demand for what the sales agents supply. If one accepts Realty One’s allegation that Re/ Max brokers do not recruit from each other, then this circumstance would simply decrease the overall demand for sales agents in the relevant market. Assuming let us say 100 brokers in a market in which each broker could recruit sales agents from other brokers, each broker would have to compete against 99 other brokers to hire a sales agent. In a case where the sales agent is already employed by a Re/Max broker, however, a Realty One broker would not have to compete against other Re/Max brokers for that sales agent’s services because Re/Max brokers have apparently agreed not to recruit from each other. If there are for the sake of argument 20 Re/Max brokers in the market, the Realty One broker would have to compete only against the other 79 non-Re/Max brokers, plus the one Re/Max broker with whom the sales agent is currently employed, to hire that sales agent. The field reduces from 99 potential competitors to 80 competitors. Less buyers vie for the same supply of services and the demand for those services decreases. Decreased demand for sales agent services translates into a lower price where the supply of sales agents remains relatively stable. Therefore, the alleged agreement between Re/Max brokers not to recruit other Re/Max sales agents actually benefits Realty One under the circumstances alleged in its Amended Counterclaim. See Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 336-37, 110 S.Ct. 1884, 1890, 109 L.Ed.2d 333 (1990) (“Respondent was benefited rather than harmed if petitioner’s pricing policies restricted ARCO sales to a few large deal-ers_”); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986) (“these alleged conspiracies could not have caused respondents to suffer an ‘antitrust injury,’ because they actually tended to benefit respondents”) (citations omitted). Instead of alleging that it has been disadvantaged by the competition-reducing effect of the alleged Re/Max no-recruitment agreement, Realty One has alleged a benefit. Realty One complains of an instance where Plaintiffs have allegedly agreed to lessen competition, but that lessening of competition has worked to its benefit not to its injury. As well, Realty One would not be the proper party to complain of the anticompeti-tive effects of the alleged Re/Max no-reeruitment agreement because the sales agents are the ones primarily harmed by the agreement and have more than enough incentive to bring a suit on their own behalf. As the Supreme Court stated, “[t]he existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party ... to perform the office of a private attorney general.” Associated Gen. Contractors, 459 U.S. at 542, 108 S.Ct. at 911 (footnote omitted). Second, Realty One’s complaint that Plaintiffs engage in deceptive and anticompetitive recruitment of sales agents by collectively agreeing to pay a significantly greater commission split than has been heretofore been paid to sales agents in Northern Ohio alleges no antitrust injury either. As stated above, Realty One and Re/Max brokers are in competition as buyers for the services supplied by sales agents. Generally, in a bidding war for services, there is nothing anticompetitive about being the highest bidder. As has been often repeated: “The successful competitor, having been urged to compete, must not be turned upon when he wins.” United States v. Aluminum Co. of Am., 148 F.2d 416, 430 (2d Cir.1945). Realty One does not allege why they could not bid for the sales agents in the same manner that Re/Max brokers do, nor are there allegations to support that Re/Max has attempted to “corner” the market on sales agents or has attempted to employ its compensation plan as a method of “predatory” pricing. See Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. at 116, 107 S.Ct. at 492 (nonpredatory price competition as reflected by prices that are below market price or even below the costs of a firm’s rivals is not an activity forbidden by the antitrust law, although selling below one’s own cost as well as that of your rivals’ to gain a monopolistic advantage is predatory). If Re/Max has a competitive advantage in the market for sales agents, Realty One has not alleged injury flowing from that which makes such a competitive advantage unlawful. Realty One’s allegations regarding the recruitment by Plaintiffs of sales agents are dismissed for failure to state a claim for which relief can be granted under the antitrust laws. IX. AGREEMENTS ON BROKER-TO-BROKER COMMISSION SPLITS Realty One’s next substantial allegation is that Plaintiffs have conspired to set the compensation that Re/Max brokers pay other brokers for cooperative transactions in order to raise and stabilize the price of real estate broker services in a per se unlawful manner! (Am. Countercl. ¶ 12 & 14). Essentially, Realty One alleges that Re/Max Int’l and the other Re/Max franchisees have entered into a conspiracy to regulate how they deal with brokers outside of