Full opinion text
MEMORANDUM OPINION (Resolving Docket Nos. 300, 301, 304, 306, 307, 308, 310 and 312) DOWD, District Judge. TABLE OF CONTENTS I. INTRODUCTION.......................................................1483 II. BACKGROUND FACTS.................................................1484 III. SUMMARY JUDGMENT STANDARD....................................1486 IV. THE MONOPOLIZATION CLAIMS......................................1487 A. The Claims and Parties...............................................1487 B. The Underlying Law.................................................1488 1. Monopolization...................................................1489 2. Attempted Monopolization.........................................1489 3. Conspiracy to Monopolize .........................................1490 C. Analysis............................................................1490 1. Plaintiffs’ Expert Testimony.......................................1490 2. The Status of Re/Max Int’l and Re/Max NE Ohio.....................1492 3. The Monopolization Claims........................................1493 a. Property Professionals v. Smythe Cramer .......................1493 b. Five Franchisees v. Realty One.................................1494 4. The Attempted Monopolization Claims..............................1495 5. The Conspiracy to Monopolize Claims...............................1495 V. PLAINTIFFS’ CONSPIRACY CLAIMS...................................1496 VI. PLAINTIFFS’ STATE LAW CLAIMS.....................................1501 A. Deceptive Trade Practices ............................................1501 1. Misrepresentation of Market Characteristics ..........................1501 2. Disparagement...................................................1502 B. Unfair Competition ..................................................1503 C. Tortious Interference With Potential Business Relations..................1503 VII. REALTY ONE’S COUNTERCLAIMS.....................................1504 A. § 1 Conspiracy to Restrain Trade......................................1504 1. The “Cooperative Commission Conspiracy” Claim ....................1504 2. The “Sham Litigation” Claim......................................1506 B. Intentional Interference With Business Relationships.....................1507 C. Unfair Competition ..................................................1508 VIII. CONCLUSION .........................................................1508 IX. RULE 54(b) CERTIFICATION...........................................1509 I. INTRODUCTION In this complex real estate antitrust ease, twelve plaintiffs allege that two real estate companies have conspired to restrain trade and monopolize segments of the commercial real estate industry in parts of Northeast Ohio. Defendants in turn have filed a series of counterclaims, and the time has come to resolve a bevy of summary judgment motions. A brief history of the pleadings is helpful in framing the case. Plaintiffs Re/Max International, Inc. (“Re/Max Int’l”) and associated franchisees, A.E.B.T.S., Ine. (“Re/Max Crossroads”) and T.M.A.T.N.B., Inc. (“Re/ Max Affinity”) filed a ten-count complaint against Defendants Realty One, Ine. (“Realty One”) and Smythe Cramer Co. (“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., Ine. (“Re/Max Results”), Joseph P. Grady, Inc. (“Re/Max Xpress Realty”), McGrew 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 No. 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, Inc. (“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 Intervening Plaintiffs’ Second and Third Amended Complaints (Docket Nos. 99 and 147), which are substantially the same as the original plaintiffs’ First and Second Amended Complaints. Plaintiffs seek private enforcement of the antitrust laws pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, due to defendants’ alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Plaintiffs also pursue pendent state law claims for violations of the Valentine Act, O.R.C. § 1331.01 et seq., and the Ohio Deceptive Trade Practices Act, O.R.C. § 4165.01 et seq.; and for unfair competition and tortious interference with potential business relations. Plaintiffs assert supplemental jurisdiction under 28 U.S.C. § 1367. Plaintiffs’ Count I alleges that the defendants conspired to restrain trade in violation of § 1 of the Sherman Act. Count II alleges that defendants conspired to monopolize in violation of § 2 of the Sherman Act. Counts III and IV, alleging § 2 violations of monopolization and attempted monopolization, respectively, are asserted against Realty One only. Counts V and VI, also alleging § 2 violations of monopolization and attempted monopolization, respectively, are asserted against Smythe Cramer only. The remaining counts are asserted against both defendants. Count VII alleges unlawful formation of trusts under Ohio’s Valentine Act. Count VIII alleges deceptive trade practices under Ohio’s Deceptive Trade Practices Act. Count IX and X, asserted under Ohio law, allege unfair competition and tortious interference with potential business relations, respectively. Realty One counterclaims against plaintiffs, alleging violation of § 1 of the Sherman Act and tortious interference with business relations and unfair competition under Ohio law. Smythe Cramer counterclaims for a declaratory judgment on the validity of various actions taken by it in this dispute. At issue are the following: Realty One’s motions for partial summary judgment on federal and state antitrust conspiracy claims (Docket No. 308), on the monopoly claims (Docket No. 310), and on all other state law claims (Docket No. 312); Smythe Cramer’s motions for partial summary judgment on the same three sets of claims (Docket Nos. 306, 307 and 304, respectively); and original plaintiffs’ and intervening plaintiffs’ motions for summary judgment on Realty One’s counterclaims (Docket Nos. 301 and 300, respectively). The matters have been fully briefed, and the Court has had the benefit of oral arguments. For reasons set forth below, Realty One’s and Smythe Cramer’s motions are granted in full. Plaintiffs’ and intervening plaintiffs’ motions with respect to the counterclaims are granted in part and denied in part. II. BACKGROUND FACTS 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 with a significant presence in Northeast Ohio. Realty One and Smythe Cramer do not franchise their way of doing business. Plaintiffs contend that ever since they entered the Northeast Ohio market, Realty One and Smythe Cramer, collectively and individually, have intentionally refused to deal with them through implementation of anticompetitive practices. Specifically, plaintiffs claim they have been the victims of a practice known in the real estate business as “adverse commission splits” (“ACS”). Commission splitting among real estate brokers and agents is not uncommon and might be summarized as follows: Prospective home buyers contact a real estate broker to express an interest in buying a home. The 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 prospective buyers with two options. First, as agent or subagent of the home seller, the broker can show homes which are listed on a computerized, comprehensive multiple listing service (“MLS”). If the prospective buyers purchase a home listed on the MLS, the broker, as agent or subagent for the sellers, will receive a percentage of the buyers’ purchase price as a commission. If completing the sale requires a cooperative transaction between two different real estate agencies, i.e., if the broker producing the buyer is affiliated with one agency and the home is listed with another agency, the broker will receive a partial share of the commission, i.e. a “commission split,” which is divided between the listing agency and the buyer-producing broker as the listing agency’s sub-agent. Alternatively, the broker may offer to act as the agent for the buyer. As a buyer’s agent, the broker may still use the MLS system to locate suitable homes, but the broker has no agency relationship with the seller. However, the buyer’s broker still expects to receive full compensation for his or her services from a commission based upon purchase price. To achieve this arrangement, the buyer’s broker reaches an agreement with the broker of the seller (the listing agency) to receive a portion of the commission which the seller’s broker receives from the purchase price. In such a case, the seller’s broker, rather than keeping the entire commission, “splits” the commission with the buyer’s broker. Re/Max franchisees emphasize the buyer’s agent aspect of the real estate business, although they act as seller’s agents as well. Realty One brokers use both systems regularly. Smythe Cramer brokers do not act as buyer’s agents. The exact split under either alternative normally is posted on the MLS system on a property-by-property basis and is often SO-SO. However, the bylaws of both NORMLS and AAMLS permit the listing agency to provide a lesser split to a specific competitor. Such lesser splits are conveyed by advance letter to the particular competitor stating that notwithstanding the percentage split listed on the MLS, that company’s agents will receive a specific reduced percentage split. In addition to the splits previously discussed, agents for most real estate companies divide their actual commission with the company with which they are associated, usually on a 50-50 basis. The company takes its half of the commission for the costs of recruitment, training, advertising, overhead, and associated expenses. However, the Re/Max system uses a different method of revenue sharing, allowing agents to keep 95 to 100 percent of their commissions while imposing flat monthly fees and costs upon the agents. Re/Max Int’l touts this system as the “100% Concept” and claims that the compensation structure awards high productivity and gives its franchisees and their agents a competitive advantage over traditional competitors. Unlike traditional real estate companies, Re/Max Int’l does not operate through branch offices. Most Re/Max offices are independently owned and operated franchises consisting of at least one broker/owner and licensed sales agents who are affiliated with the broker/owner as independent contractors. The owner/broker receives its compensation from each independent contractor via a flat monthly charge for the right to do business as a Re/Max associate. Plaintiffs contend that they are treated in an illegally anticompetitive manner in residential real estate transactions. Their complaint primarily rests on the fact that Realty One and Smythe Cramer insist on a more unfavorable commission split with Re/Max brokers than they do with most non-Re/Max brokers. Specifically, plaintiffs allege defendants a) impose the ACS upon every Re/Max franchisee acting as a seller’s agent for the listings of either defendant; b) impose the ACS on every Re/Max franchisee acting as buyer’s agent for listings of either defendant, while at the same time agreeing not to impose the ACS upon each other’s agents when acting as buyer’s agents; c) induce listing customers not to do business with Re/Max; d) through their domination of GABOR, eliminate any fair dispute resolution procedure; e) publicly disparage Re/Max with knowing false representations of fact; and f) lie to their own agents in an effort to hinder Plaintiffs’ recruitment of such agents. (Second Amended Complaint at ¶ 31; Intervening Plaintiffs’ Third Amended Complaint at ¶ 32). The record indicates that on April 3, 1987, Realty One, pursuant to the rules of CABOR, notified Re/Max brokers that when an agent associated with Re/Max produced a buyer for a residential real estate listing held by Realty One, Realty One would grant the Re/Max agent a commission split of 30% of the total commission rather than the 50% provided in most MLS cooperative transactions. Roughly six weeks later, on May 13, 1987, Smythe Cramer notified Re/Max brokers that their agents would receive a commission split of only 25% for producing buyers on listings held by Smythe Cramer. Because Realty One and Smythe Cramer together hold a large percentage of the listings on NORMLS and AAMLS, these adverse commission splits [“ACS”] affect a significant number of transactions involving Re/ Max as representatives of the buyers. As a result, plaintiffs allege, fewer agents made the decision to become Re/Max agents, thereby hindering plaintiffs’ growth. Plaintiffs allege that the nearly contemporaneous behavior of the two defendants is evidence that they had a prior agreement to impose the ACS, in violation of Section 1 of the Sherman Act which prohibits “[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. The alleged agreement between Realty One and Smythe Cramer to impose and maintain the ACS forms the heart of plaintiffs’ § 1 complaint. Realty One and Smythe Cramer deny conspiring to impose the ACS. Each states that it made an independent business decision to combat a competitor vowing to lure away their most successful agents. They assert that Re/Max franchisees were recruiting their top agents with the promise that if they join Re/Max they will receive 100% of each commission rather than the 50% they were receiving. They decided to cut the amount of commission paid to a Re/Max agent, with the end result that the agent would obtain roughly the same commission whether he or she received 100% of the commission as 'a Re/Max agent or 50% of the commission as a Realty One or Smythe Cramer agent. Plaintiffs respond that imposing the ACS would not have made business sense unless each company knew the other would do the same. They allege that if only one defendant imposed the ACS, Re/Max agents would have concentrated their efforts on selling the other broker’s listings, resulting in the imposing defendant losing market share. Plaintiffs also assert a series of claims lying in § 2 of the Sherman Act, which prohibits monopolizations, attempts to monopolize and conspiracies to monopolize. They allege that the defendants conspired to monopolize certain geographic markets for real estate brokerage services and for recruitment and retention of real estate agents. They further allege that each defendant individually monopolized and/or attempted to monopolize certain geographic areas in northeast Ohio. Defendants deny all wrongdoing. Realty One asserts a counterclaim alleging that Re/ Max Int’l as franchisor, Re/Max NE Ohio as subfranchisor, and associated franchisees conspired to restrain trade and destroy competition in the business of listing and selling real estate in Northeast Ohio. Realty One alleges that the conspirators agreed upon the compensation that Re/Max brokers would pay other brokers for cooperative transactions in an effort to raise and stabilize the price of real estate broker services in a per se unlawful manner. Realty One further alleges that the conspirators have instituted a continuing strategy of meritless judicial proceedings against Realty One and have incited a series of government investigations without probable cause. The Court already has discussed at length the underlying issues and law in an opinion which addressed earlier motions to dismiss and for partial summary judgment on certain claims. Re/Max Int’l v. Realty One, Inc., 900 F.Supp. 132 (N.D.Ohio 1995). III. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. When considering a motion for summary judgment, “the inferences to be drawn from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories, and admissions] must be viewed in the light most favorable to the party opposing the motion.” U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). See, e.g., U.S. v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir.1985) and eases cited therein. The Court’s favorable treatment of facts and inferences, however, does not relieve the nonmoving party of the responsibility “to go beyond the pleadings” to oppose an otherwise properly supported motion for summary judgment under Rule 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party satisfies his or her burden to show an absence of evidence to support the nonmoving party’s case, Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53, the party in opposition “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Although the showing required of the nonmoving party by Rule 56 does not go so far as to require that all opposition evidence be in a form admissible at trial, the rule does require the nonmoving party who has the burden of proof at trial to oppose a proper summary judgment motion “by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves____” Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553. General averments or conelusory allegations of an affidavit, however, do not create specific fact disputes for summary judgment purposes. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990). Furthermore, unsworn statements and affidavits composed of hearsay and non-expert opinion evidence, “do not satisfy Rule 56(e) and must be disregarded.” See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir.1991) (quoting State Mutual Life Assurance Co. v. Deer Creek Park, 612 F.2d 259, 264 (6th Cir.1979) and citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 1609 n. 17, 26 L.Ed.2d 142 (1970)). Nor may a party “create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts ... earlier deposition testimony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984)). On a motion for summary judgment, the Court will consider “[ojnly disputes over facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. Non-material facts will not be considered. Neither will the judge attempt to weigh the material evidence or determine its truth. Anderson v. Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510-11. The judge’s sole function will be to determine whether there is a genuine issue for trial such that “there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Id. (citations omitted). Where the nonmoving party “has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53 (equating the standard for a directed verdict under Rule 50(a) with the summary judgment standard of Rule 56). If the evidence is “merely colorable,” or is “not significantly probative,” the Court may decide the legal issue and grant summary judgment. Anderson v. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citing Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam) and First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)). “ ‘The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’ ” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989) (quoting Anderson v. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2510). In sum, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, 477 U.S. at 250, 106 S.Ct. at 2511. TV. THE MONOPOLIZATION CLAIMS A The Claims and Parties A starting point in an extended monopolization analysis involving multiple parties and claims is articulating which plaintiffs are asserting which claims. In Count II of the complaint, all plaintiffs assert a claim against both defendants for conspiracy to monopolize relevant markets in violation of § 2 of the Sherman Act, 15 U.S.C. § 2. Counts III and IV are asserted by franchisor Re/Max Inti, subfranchisor Re/Max NE Ohio, and franchisees Re/Max Affinity, Zames Realty, Realty Properties, True Partnership and REP against Realty One only. Count III is a claim of monopolization in violation of § 2. Count IV is a claim of attempted monopolization in violation of § 2. Counts V and VI are asserted by franchisor Re/Max Inti, subfranchisor Re/Max NE Ohio, and franchisee Re/Max Property Professionals against Smythe Cramer only. Count V is a claim of monopolization in violation of § 2. Count VI is a claim of attempted monopolization in violation of § 2. B. The Underlying Law Section 2 of the Sherman Act, 15 U.S.C. § 2, imposes liability upon “[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire to monopolize any part of the trade or commerce among the several states ...” Because a claim of monopoly can only be brought in a specific market, the first step in asserting any § 2 claim is defining the relevant market. See Potters Med. Ctr. v. City Hasp. Ass’n, 800 F.2d 568, 574 (6th Cir.1986). A relevant market has two dimensions: a product market and a geographic market. • Smith v. Northern Mich. Hosps., Inc., 703 F.2d 942, 954 (6th Cir.1983). The burden is on the plaintiff both to establish the relevant market and to prove it is realistically in the relevant markets it postulates. See Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 917 F.2d 1413, 1423 (6th Cir. 1990), cert. denied, 502 U.S. 899, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991). The product market includes products which are reasonably interchangeable by consumers for the same purpose or have a high cross elasticity of demand. See United States v. E.I. duPont de Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264 (1956). Cross elasticity focuses on “the extent to which customers will change their consumption of one product in response to a price change in another.” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 469, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992). The geographic market consists of the area of effective competition. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 893 (10th Cir.1991). A party has monopoly power if it has the ability to control prices or exclude competition in a relevant market. duPont, 351 U.S. at 391, 76 S.Ct. at 1004-05; Richter Concrete Corp. v. Hilltop Concrete Corp., 691 F.2d 818, 826 (6th Cir.1982); Tarrant Service Agency, Inc. v. American Standard, Inc., 12 F.3d 609 (6th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2709, 129 L.Ed.2d 836 (1994). Accordingly, the focus of a § 2 claim is on the damage to competition, not to individual competitors. With that in mind, the Sixth Circuit has warned that § 2 “must be used with the greatest caution” so as not to hinder “competitive zeal.” Langenderfer, 917 F.2d at 1422, 1423. As Langenderfer stated: Competition is a ruthless process. A firm that reduces costs and expands sales injures rivals — sometimes fatally. The firm that slashes costs the most captures the greatest sales and inflicts the greatest injury. The deeper the injury to rivals, the greater the potential benefit. These injuries to rivals are by-products of vigorous competition, and the antitrust laws are not balm for rivals’ wounds. Id. at 1422 (quoting Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1328 (7th Cir.1986)). See also United States v. Aluminum Co. of America, 148 F.2d 416, 430 (2d Cir.1945) (Hand, J.) (“The successful competitor, having been urged to compete, must not be turned upon when he wins.”). The focus, therefore, is on whether plaintiffs have raised a genuine issue of material fact that defendants’ alleged conduct has harmed consumers and competition. Plaintiffs assert three different causes of action under § 2: 1) monopolization, 2) attempted monopolization, and 3) conspiracy to monopolize. Each has separate elements and merits individual attention. 1. Monopolization The offense of monopolization under § 2 has two elements: 1) the possession of monopoly power in the relevant market, and 2) the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966). A determination of monopoly power is closely tied to the defendant’s market share. While a high percentage of market share does not necessarily indicate a firm’s capacity to achieve a monopoly, Richter, 691 F.2d at 826, a low percentage of market share can be fatal to a claim of monopoly for the simple reason that a party with only a fraction of the market cannot “control prices or exclude competition.” See duPont, 351 U.S. at 391, 76 S.Ct. at 1005. There is no hard and fast rule as to what percentage of market share is required to establish a monopoly. However, no party can cite a Sixth Circuit case holding that a defendant with less than 50% of the market has monopoly power. Indeed, two cases from the Northern District of Ohio stated that control of less than 50% of the relevant market is by itself sufficient evidence that monopoly power does not exist. Mowery v. Standard Oil Co. of Ohio, 463 F.Supp. 762, 771 (N.D.Ohio 1976), aff'd without opinion, 590 F.2d 335 (6th Cir.1978); Lynch Business Machines, Inc. v. A.B. Dick Co., 594 F.Supp. 59 (N.D.Ohio 1984). The Sixth Circuit has gone so far as to state that a market share of 75% to 80% “should be regarded as a starting point” in determining whether a party has a monopoly. Byars v. Bluff City News Co., Inc., 609 F.2d 843, 850 (6th Cir.1979). Although the “starting point” in Byars is a bit high compared to other eases, the Court finds reasonable and well-supported another Sixth Circuit case which stated, “There is substantial merit in a presumption that market shares below 50 or 60 percent do not constitute monopoly power.” Langenderfer, 917 F.2d at 1443 (quoting Areeda & Hovenkamp, Antitrust Law, § 518.3 (1988 Supp.)). Market share alone is not sufficient to establish monopoly power. Factors such as competitiveness of the market, number and strength of competitors, market trends and the presence or absence of significant barriers to entering the market also are useful in determining whether a defendant has monopolized a market. See Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 894 (10th Cir.1991). Even if monopoly power can be established, a plaintiff still bears the burden of showing that such power is acquired or maintained willfully rather than as a consequence of superior product, business skill or historic accident. Grinnell, 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04. “This notion has usually been expressed by saying that size does not determine guilt; that there must be some exclusion of competitors; that the growth must be something else than natural or normal; that there must be a wrongful intent, or some other specific intent, or that some unduly coercive means must be used.” United States v. Aluminum, Co. of America, 148 F.2d 416 (2d Cir.1945) (Hand, J.) (quotations omitted). The distinction between legal, shrewd competition and illegal, willful monopolization may be blurred at times. The plaintiff bears the “stiff burden” of showing that the challenged conduct is more than “unfair, impolite or unethical,” Langenderfer, 917 F.2d at 1422, and actually is intended to create or maintain a monopoly. 2. Attempted Monopolization The elements of attempted monopolization axe 1) anticompetitive conduct; 2) specific intent to monopolize; and 3) a dangerous probability of success. Langenderfer, 917 F.2d at 1431 (citing Lorain Journal v. United States, 342 U.S. 143, 153, 72 S.Ct. 181, 186, 96 L.Ed. 162 (1951)). Anticompetitive conduct is “conduct designed to destroy competition, not just to eliminate a competitor.” Richter, 691 F.2d at 823. Specific intent requires proof that a defendant aimed “to destroy competition or build monopoly.” Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953). Merely showing that defendant desired to increase market share does not satisfy this standard. See United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610, 612 n. 1, 97 S.Ct. 861, 863 n. 1, 51 L.Ed.2d 80 (1977). The presence of a dangerous probability of success is closely linked to a defendant’s market share. Establishing that the defendant has a significant share of the market is an essential part of an attempted monopolization claim. “In order to be found liable for attempted monopolization, a firm must possess market strength that approaches monopoly power — the ability to control prices and exclude competition.” Richter, 691 F.2d at 826. A corollary to this principle is that anticompetitive acts by firms without a dangerous probability of successfully monopolizing the market are beyond the reach of § 2. See ABA Antitrust Section, Antitrust Law Developments (2d ed. 1984) at 141 — 42 and cases cited therein. 3. Conspiracy to Monopolize Elements of a claim for conspiracy to monopolize are 1) the existence of a combination or conspiracy; and 2) specific intent to monopolize. Richter, 691 F.2d at 826. Both elements may be established by either direct or indirect proof. See American Tobacco Co. v. U.S., 328 U.S. 781, 809-10, 66 S.Ct. 1125, 1138-39, 90 L.Ed. 1575 (1946). Proof of a dangerous probability of success is not necessary to establish a conspiracy claim. However, where the defendants’ actions are ambiguous and could be motivated by factors other than an attempt to monopolize, the likelihood of success is a factor in determining whether the defendants had the requisite specific intent to monopolize. 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). See also Bailey’s, Inc. v. Windsor America, Inc., 948 F.2d 1018 (6th Cir.1991) (“wildly improbable” that defendant’s actions were motivated by intent to monopolize when it held less than 10% of the relevant market share). C. Analysis After extensive review, the Court determines that plaintiffs’ claims for monopolization, attempted monopolization and conspiracy to monopolize do not raise genuine issues of material fact. Therefore, the Court grants summary judgment to defendants on all § 2 claims. Plaintiffs’ claims suffer from two equally serious flaws, either of which would support a grant of summary judgment. First, the claims rest upon plaintiffs’ expert’s statistics and conclusions which are not supported by a credible economic or demographic foundation. Second, even if the statistical claims were accepted in full, they do not raise genuine issues of material fact sufficient to meet the “stiff burden,” Langenderfer, 917 F.2d at 1422, imposed upon plaintiffs to establish a § 2 claim. 1. Plaintiffs’Expert Testimony Plaintiffs’ expert, economist Dr. Donald Martin, identified two product markets: the market for residential real estate brokerage services and the market for recruiting and retention of “experienced and successful” sales agents. He defined Northeast Ohio as having 161 geographic markets, corresponding to the 161 “municipalities, townships and local areas” identified by the Northeast Ohio Multiple Listing Service (NORMLS). He justified his narrow delineation of the geographic markets on his observation that real estate companies usually set up offices in individualized areas and that local familiarity is essential to being a successful sales agent. He noted further that “the geographic market in which agents conduct most of their business is very local” (Martin Report at 24) and that a Federal Trade Commission survey indicated that 70% of agent-assisted sales came from residential property sellers living within five miles of the agents’ offices. Dr. Martin defined defendants’ market shares in each of the 161 geographic markets as their respective percentages of the total dollar volume of residential sales of NORMLS listings from January 1, 1993, through August 4, 1995. He identified 21 markets in which Smythe Cramer had a market share of at least 40% and 34 markets in which Realty One had a market share of at least 40%. According to Dr. Martin, Realty One and Smythe Cramer have monopoly power in any market in which one of them had at least a 39% market share and the next largest competitor had a share at least 10 percentage points fewer. (Depo. of Martin at 365-66). This particular definition of market power was created by Dr. Martin, who had never published or previously used such a definition and could provide no economic or peer review literature to back it up. (Id. at 780-85). Based upon Dr. Martin’s report and deposition testimony, Plaintiffs have not met their burden of defining the relevant geographic market. While it may be true that the residential real estate industry is essentially a local business, the rote adoption of the 161 geographic areas used by NORMLS for statistical purposes does not satisfy Plaintiffs’ responsibility to identify geographic markets which correspond to commercial realities of the industry and are economically significant. Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). By choosing to justify his geographic market definition with broad generalizations that “the geographic market in which agents conduct most of their business is very local” (Martin Report at 24), Dr. Martin fails to offer evidence that the particular geographic areas he defines are true independent markets. Dr. Martin lacked any meaningful knowledge about the population, geographical size, commercial activity or demographic statistics of the 161 geographic markets he defined. The markets ranged from tiny suburbs with population of less than 1,000 to cities the size of Lorain (pop. 71,000). Moreover, there is no evidence in the record that home sellers or buyers obtain real estate brokerage services exclusively or even largely from brokers within their specific NORMLS geographic area. Nor is there evidence that brokers within the named geographic areas do not compete with outside brokers for the sale of homes within other geographic areas. Some geographically connected suburbs are substantially similar in size, demographics and home values. There is no reasonable explanation why they should be separated into distinct geographic submarkets. Even if the Court were to accept the arbitrary classification of northeast Ohio into 161 geographic markets for residential real estate services, Dr. Martin’s statistics are skewed. First, he derived his market share from the percentage of the dollar value of homes sold rather than from a percentage of homes actually sold. Second, his statistics cover a 32-month period from 1993 to 1995, while this lawsuit is based upon and seeks damages from events dating back to 1987. Third, he derived his percentages solely from the sales of homes posted on NORMLS. Such an approach ignores the fact that a significant amount of residential real estate transactions are conducted each year without the use of the multiple listing service. The percentages therefore cannot be said to reliably reflect the defendants’ true market share. Dr. Martin’s attempt to establish the same 161 geographic areas as the relevant geographic markets for recruiting and retaining real estate agents fails for the same reasons. There is no evidence that the brokers who recruit agents restrict their searches to Dr. Martin’s particularized geographic communities. In sum, Plaintiffs have failed to adequately define a relevant geographic market to support their monopolization claims. This is fatal to the claims. In the interest of thoroughness, however, the Court does not rest its conclusion merely on the infirmities of the market definition. Even if the Court were to accept for the sake of argument that 1) Dr. Martin had adequately defined the geographic markets and 2) that the market shares he attributes to defendants were valid, the monopolization claims still would fail as a matter of law. 2. The Status of Re/Max Int’l and Re/ Max NE Ohio In its May 10, 1995, memorandum opinion, the Court held that Re/Max Int’l lacked standing to assert claims for “damages flowing from the alleged injury inflicted on the market for residential real estate services in Northeast Ohio.” Re/Max Int’l, 900 F.Supp. 132, 169 (N.D.Ohio 1995). The Court’s extensive analysis concluded that Re/ Max Int’l failed to demonstrate that its claims related to this market fell within the area of congressional concern to entitle it to bring a private enforcement action. Id. The Court reasoned, inter alia, that as a franchisor which did not even have a license to compete in the market for residential real estate services, Re/Max Int’l was neither a direct victim of alleged anticompetitive conduct, nor was its asserted injury “inextricably intertwined” with the injury allegedly sought to be inflicted upon that market. Id. at 167. The Court went on to hold that Re/Max Int’l did have standing to assert a claim in the market for recruiting and retention of real estate agents and brokers. Id. at 170. The Court’s holding applies equally to Re/Max NE Ohio, a subfranchisor which, like Re/Max Int’l, does not compete in the market for residential real estate services. Re/Max Int’l and Re/Max NE Ohio insist that despite the Court’s prior ruling, they can assert claims for damages flowing from alleged anticompetitive conduct in the market for residential real estate brokerage services. They now offer a “leveraging” theory that defendants’ conduct in that market injures them in the market for recruiting and retaining real estate agents and brokers. The Court believes its May 10 ruling was clear: it denied Re/Max Int’l “standing ... to complain of harms resulting from antitrust injuries to the market for residential real estate services in Northeast Ohio.” The Court does not know any other way to say it: Re/Max Int’l (and Re/Max NE Ohio) cannot assert claims based on alleged anticompetitive acts in the market for residential real estate brokerage services. To allow the leveraging claim would render the Court’s prior ruling meaningless. This leaves Re/Max Int’l and Re/Max NE Ohio solely with claims for damages in the market for recruiting and retaining agents and brokers, and they failed to produce evidence establishing that Realty One or Smythe Cramer monopolized, attempted to monopolize or conspired to monopolize that market. In sum, because Re/Max Int’l and Re/Max NE Ohio lack standing to assert claims based on damages flowing Irom injuries allegedly inflicted on the market for residential real estate brokerage services, and because they have no evidence to support claims based on injuries allegedly inflicted on the market for recruiting and retention of agents and brokers, their § 2 claims fail completely. All that remains of the § 2 counts are the claims of the plaintiff franchisees against the two defendants. 3. The Monopolization Claims a. Property Professionals v. Smythe Cramer Property Professionals is located in Hudson and does business in both Hudson and Aurora. According to Dr. Martin’s statistics, Smythe Cramer has market shares of 39.1% in Hudson and 46.2% in Aurora.' Property Professionals claims that these market shares, in the context of the “unique nature” of the real estate industry, establish that Smythe Cramer enjoyed market power in those communities. (Response Memorandum, Docket No. 334, at 24). The “unique nature” of the real estate industry purportedly derives from the vertical relationships established among competitors via cooperative transactions. These relationships allegedly permit Smythe Cramer to use its relatively large share in the Hudson and Aurora markets to control prices and exclude competition. For example, Property Professionals alleges that Smythe Cramer imposes adverse commission splits on brokers attempting to offer discount commissions, a practice that deters competitors from reducing prices and causes prices to stay above competitive levels. Property Professionals’ argument that the “unique characteristics” of the real estate industry permit a finding of a monopoly ignores the fact that other characteristics of the industry make the establishment of a monopoly far more difficult. For example, anyone who passes a state licensing test can enter the field, and the overhead required to establish an office is minimal compared to that of most other industries. The sheer volume of real estate companies and offices is indicative of the relative ease of entry into the field. Recognizing the uphill battle it faces to establish the existence of a monopoly in light of Smythe Cramer’s market shares, Property Professionals argues that there is no per se rule that a certain percentage of market share is necessary to establish a monopoly. While this is true, Property Professionals cites no Sixth Circuit authority finding a monopoly in a market in which the defendant had less than a 50% market share. To the contrary, there is ample authority establishing at least a clear presumption that market shares below 50% to 60% do not constitute a monopoly. The evidence in this case does not overcome that presumption. Monopoly power is the power to “control prices or exclude competition.” duPont, 361 U.S. at 391. While Smythe Cramer can control its own prices and set its rates on commission splits, there is no evidence that its policies have controlled market prices or excluded competition. If Smythe Cramer were successfully controlling prices, one would expect to see higher overall commission rates in areas in which Smythe Cramer has a monopoly than in areas in which it lacks a monopoly. No such evidence has been presented. Excluding competition requires more than adopting policies which tend to harm specific competitors. Indeed, after years of alleged anticompetitive activity, Smythe Cramer still possesses well under half the market share in both communities, and there is no evidence of a steadily increasing market share for Smythe Cramer as a result of its policies. In sum, Property Professionals has failed to show that Smythe Cramer has monopoly power in Hudson or Aurora. Therefore, its claim of monopolization fails. b. Five Franchisees v. Realty One Plaintiffs allege that Realty One has willfully acquired and maintained monopoly power in the market for sale of residential real estate in twelve western Cleveland suburbs: Bay Village, Westlake, North Olmsted, Lakewood, Fairview Park, Avon, Avon Lake, Sheffield, Sheffield Lake, Amherst, Lorain and Elyria. (Plaintiffs’ Second Amended Complaint at ¶ 57; intervening plaintiffs’ Third Amended Complaint at ¶ 58). Plaintiffs’ response to Realty One’s summary judgment motion fails to point out which franchisees do business in these communities. Such a showing is vital to establishing whether the individual franchisees are harmed by Realty One’s alleged monopoly in a specific community. Plaintiffs did not dispute Realty One’s contention that only three franchisees maintained an office in or adjacent to those twelve geographic areas: Re/Max Affinity in West-lake, Realty Properties in Westlake and True Partnership in Bay Village. A party cannot assert a monopolization claim without proving it realistically is in the market it postulates. Langenderfer, 917 F.2d at 1423. Franchisees Zames Realty and REP have not shown they are in the markets alleged to be .monopolized by Realty One. Their claims are thus without merit. Still to be considered are plaintiffs’ claims that Realty One monopolized the Westlake and Bay Village markets. According to Dr. Martin’s statistics based on dollar value of NORMLS listings, Realty One’s market share is 48% in Westlake and 50.6% in Bay Village. Those percentages are not sufficient to rebut the presumption of no monopoly, particularly when there are no statistics indicating whether Realty One’s market share increased after initiating the alleged anticompetitive activity and there is no evidence that there were true entry barriers to the real estate industry. Accordingly, the monopoly claims of all five franchisees fail. A The Attempted Monopolization Claims The attempted monopolization claims of Property Professionals against Smythe Cramer and the five franchisees against Realty One suffer from the same infirmity: they fail to establish that the defendants had either a specific intent to monopolize or a dangerous probability of success. Construing the evidence favorably toward the plaintiffs, the ACS could be interpreted as an effort to drive the plaintiffs out of business. However, monopolization is the destroying of competition, not the destroying of a competitor. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953). Evidence of targeting a single competitor for destruction, without more, is not evidence of an attempt to destroy competition, particularly in a marketplace featuring a significant number of competitors. This is particularly true because plaintiffs have failed to establish that either Smythe Cramer or Realty One has a dangerous probability of success in achieving monopolization. The alleged anticompetitive acts began in 1987 and continue to this day. Yet plaintiffs fail to present evidence showing whether the market share of defendants has grown since 1987. Finally, the relative ease of entry into the real estate field, evidenced by the presence of large numbers of real estate companies in most communities, further refutes any inference that Smythe Cramer or Realty One has a dangerous probability of achieving monopolization. The defendants’ predominance in certain communities is not tantamount to monopolization or near-monopolization. 5. The Conspiracy to Monopolize Claims Plaintiffs’ failure to establish the specific intent element necessary for an attempted monopolization claim is likewise fatal to their conspiracy to monopolize claims. Essentially' the plaintiffs ask the Court to infer the specific intent to establish a § 2 violation from variations on a single business practice — the imposition of adverse splits on competitors. Without more, and given the fact that there may be legitimate business reasons for such action, plaintiffs fail to establish that defendants specifically intended to establish monopolies. The conspiracy claim suffers from a second infirmity as well. A § '2 claim of conspiracy requires an agreement to monopolize. Plaintiffs have not raised a genuine issue that any purported agreement by the two competitors would have been made to enhance the alleged monopolization goals of either defendant. Thus no plaintiff has raised a genuine issue of material fact to support claims of monopolization, attempted monopolization or conspiracy to monopolize. Defendants’ motions for summary judgment are granted with respect to all monopoly claims (Counts II, III, IV, V and VI). V. PLAINTIFFS’CONSPIRACY CLAIMS Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, applies to any “contract, combination ..., or conspiracy” between two or more persons to unreasonably restrain trade in interstate commerce. Similarly, Ohio’s Valentine Act, O.R.C. § 1331.01 et seq., prohibits trusts, which are defined as “a combination of capital, skill or acts by two or more persons ... to create or carry out restrictions in trade or commerce.” Plaintiffs allege that defendants conspired to restrain plaintiffs’ competition in the Northeast Ohio marketplace in violation of both § 1 of the Sherman Act and § 1331.02 of the Valentine Act. Although the federal and state statutes are worded slightly differently, the goals are the same. Both condemn combinations having for their purpose restraints on trade or commerce. Ohio courts interpret the Valentine Act in light of federal judicial construction of § 1, citing federal Sherman Act cases to support Valentine Act holdings. See, e.g., C.K & J.K., Inc. v. Fairview Shopping Ctr. Corp., 63 Ohio St.2d 201, 204, 407 N.E.2d 507 (1980). Consequently, an analysis based upon the Sherman Act will encompass the Ohio claims as well. See Richter Concrete Corp. v. Hilltop Basic Resources, 547 F.Supp. 893, 920 (S.D.Ohio 1981), aff'd, 691 F.2d 818 (6th Cir.1982) (plaintiffs failure to prove its claims under Sherman Act constitutes a failure to prove the claim under the Valentine Act). To establish a § 1 violation, a plaintiff must establish 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). There are two standards for evaluating whether a restraint of trade is unreasonable: the rule of reason and the per se rule. See, e.g., Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 342, 110 S.Ct. 1884, 1893-94, 109 L.Ed.2d 333 (1990); Federal Trade Commission v. Indiana Federation of Dentists, 476 U.S. 447, 458, 106 S.Ct. 2009, 2017-18, 90 L.Ed.2d 445 (1986). Under the rule of reason, the plaintiff bears the burden of establishing the challenged activity’s unreasonable effect on competition. Under the per se rule, the challenged activity’s unreasonableness is presumed. The nature of the restraint determines which rule will be applied. Atlantic Richfield Co., 495 U.S. at 342, 110 S.Ct. at 1893-94. In the instant case, plaintiff allege that Realty One and Smythe Cramer, as horizontal competitors in the marketplace, have conspired to set the prices they pay to Re/Max franchisees for cooperative transactions. A horizontal conspiracy to fix prices is a type of restraint which falls under the per se standard. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984). Therefore, assuming plaintiffs could prove a conspiracy to set prices, they would not have to prove further the unreasonable impact on commerce such conspiracy would have. It is critical to establish that there has been a contract, combination or conspiracy between separate entities. Unilateral conduct, even if it unreasonably restrains trade, does not violate § 1. Nurse Midwifery Associates v. Hibbett, 918 F.2d 605, 611 (6th Cir.1990), cert. denied, 502 U.S. 952, 112 S.Ct. 406, 116 L.Ed.2d 355 (1991) (citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984)). Unilateral conduct is governed by § 2 of the Sherman Act and is unlawful only when it threatens actual monopolization. Copperweld Corp., 467 U.S. at 768, 104 S.Ct. at 2740. To support a claim of antitrust conspiracy, a plaintiff must present evidence that the defendants “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984). A plaintiff lacking direct evidence may use circumstantial evidence to infer the existence of a conspiracy through business behavior indicating “a unity of purpose or common design and understanding, or a meeting of the minds in an unlawful arrangement.” Nurse Midwifery, 918 F.2d at 616 (quoting American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946)). However, “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The mere fact that a group of defendants’ conduct is consistent with an illegal conspiracy does not support an inference of antitrust conspiracy. Id.; Nurse Midwifery, 918 F.2d at 616. To survive summary judgment, a plaintiff must present evidence that “tends to exclude the possibility that the alleged conspirators acted independently.” Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S.Ct. 1348,1356, 89 L.Ed.2d 538 (1986) (quoting Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471). In other words, the nonmoving party “must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action.” Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356-57. Based upon Monsanto and Matsushita, the Sixth Circuit has adopted a two-part inquiry to determine whether circumstantial evidence can support an inference of conspiracy: 1) is the plaintiffs evidence of conspiracy ambiguous, i.e., is it as consistent with the defendants’ permissible independent interests as with an illegal conspiracy, and if so, 2) is there any evidence that tends to exclude the possibility that the defendants were pursuing these independent interests? Riverview Investments v. Ottawa Community Imp., 899 F.2d 474, 483 (6th Cir.), cert. denied, 498 U.S. 855, 111 S.Ct. 151, 112 L.Ed.2d 117 (1990). Examples of evidence which could “tend to exclude the possibility” of independent conduct include actions contrary to a defendant’s economic self-interest, product uniformity, exchange of price information, opportunity to meet, a large number of communications and a common motive to conspire. Wallace v. Bank of Bartlett, 55 F.3d 1166, 1168 (6th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 709, 133 L.Ed.2d 664 (1996). The presence of one or more of these “plus factors” helps raise an inference that the activities of two or more defendants was concerted. See id. Yet it is important to note that the presence of one or more of these “plus factors,” in and of itself, is not sufficient to preclude judgment as a matter of law. In Wallace, plaintiffs alleged that a group of banks conspired to keep fees for writing checks on insufficient funds artificially high. The Sixth Circuit noted that plaintiffs offered as circumstantial evidence “plus factors” such as exchange of price information and common motive to conspire. However, the appeals court, in affirming the district court’s grant of summary judgment, noted that the banks provided legitimate business reasons for the presence of those factors, and plaintiffs failed to establish that the circumstantial evidence tended to exclude the possibility of independent conduct. Wallace, 55 F.3d at 1169-70. In Nurse Midwifery, midwives alleged that a doctor and a hospital conspired to deny the midwives hospital privileges. The district court found two “plus factors” present: the defendants had both a motive and an opportunity to conspire. However, the court further found that the defendants’ alleged conduct was equally consistent with defendants’ stated and legitimate reason for the denial. The district court’s granting of summary judgment was affirmed by the Sixth Circuit, which noted that plaintiffs did not explain how their circumstantial evidence tended to exclude the possibility that the privileges were denied for legitimate reasons. Nurse Midwifery, 918 F.2d at 617. In Riverview, a real estate developer alleged a community development corporation’s refusal to issue industrial revenue bonds was the product of an illegal agreement among its members to restrain commerce. After a jury awarded $350,000 to the developer, the court entered judgment notwithstanding the verdict in favor of the defendants. The Sixth Circuit noted that some of the defendants had a common motive to conspire and all of them had opportunities to meet. However, those factors, in the context of the case, did not tend to exclude the possibility of independent conduct: “All may be consistent with conspiratorial conduct but ... proving that conduct is consistent with a conspiracy is not sufficient to allow an inference of conspiracy absent some evidence which tends to exclude the possibility that conduct is independent.” Riverview, 899 F.2d at 485 (emphasis in original). The appeals court thus affirmed the grant of j.n.o.v. Thus the Sixth Circuit precedent counsels that the mere presence of “plus factors” is not enough to survive a summary judgment challenge unless those plus , factors tend to exclude the possibility of independent conduct. In light of Matsushita, Monsanto and Sixth Circuit precedent, summary judgment is often appropriate even in complex antitrust § 1 cases because of the “limits [on] the range of permissible inferences from ambiguous evidence.” Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356. Plaintiffs thus face the burden of establishing a genuine issue of material fact of a conspiracy either by 1) direct evidence, or 2) circumstantial evidence which tends to exclude the possibility that Realty One and Smythe Cramer acted alone in imposing the ACS. If they rely on circumstantial evidence, they “must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action.” Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356-57. This is consistent with Sixth Circuit summary judgment principles which state that the nonmoving parly must present sufficient evidence for a jury to return a verdict for that party. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). Plaintiffs argue that the circumstantial evidence includes a number of Wallace “plus factors” which support an inference of conspiracy. Chief among such factors is the purported parallel pricing of Realty One and Smythe Cramer in imposing a similar ACS within six weeks of each other in 1987. Parallel pricing is not enough in itself to raise an inference of conspiracy. However, plaintiffs argue there wer