Full opinion text
MEMORANDUM OPINION MICHAEL, District Judge. This case comes to the court pursuant to 28 U.S.C. § 636(b)(1) on objections to United States Magistrate Judge B. Waugh Crigler’s Reports and Recommendations, the first issued on September 19, 1995, and the second issued on September 19, 1996, in the above-captioned cases. Also, before the court is a motion to amend one of the complaints, filed on October 18, 1996. Because the three above-captioned cases are closely related, the court will resolve all outstanding issues in a single opinion. I. MOTION TO AMEND COMPLAINT Plaintiff Virginia Vermieulite, LTD. (“WL”) moves the court to permit it to amend its First Amended Complaint. Defendant W.R. Grace & Co.-Conn. (“Grace”) does not object; Defendant The Historic Green Springs, Inc. (“HGSI”), however, opposes the motion to amend, if only tepidly so. See Transcript of January 31, 1997 Hearing at 6-7. Fed.R.Civ.P. 15(a) directs that “leave [to amend a complaint] shall be freely given when justice so requires.” According to its own statement Grace will suffer no prejudice from the amendment. As will become clear from the discussion below, neither will HGSI be prejudiced by an amendment. Meanwhile, VVL’s amendment removes allegations that no longer hold true and adds relevant allegations not made in its earlier complaints. The court sees no reason — given Grace’s acquiescence — to analyze the ease on an outdated complaint. Therefore, the court will grant VVL’s motion to amend. II. BACKGROUND The court is presented with the novel argument that the federal antitrust laws require nullification of a donation to a nonprofit preservation organization. Attacking the donation are the donor’s business competitor and two landowners who entered into a contract with the donor. The subject of the donation and the substance around which these peculiar cases revolve is a substance called vermieulite. “Vermieulite is a unique mineral in that it is fireproof and rapidly expands approximately ten-fold in volume when heated to produce a low-density material. Vermieulite has valuable uses throughout the United States in fire safety, energy conservation, construction, environmental products, food processing and horticulture. Vermieulite also has promising new applications including detoxification of water and soil, nuclear waste containment and removal, and industrial spill containment and cleanup.” Second Amended and Supplemental Complaint (“Second Amended Complaint”) ¶ 10, Virginia Vermiculite, Ltd. v. WR Grace & Co.-Conn., No. 95-0015-C (October 18, 1996). Vermieulite is obtained through mining; after it is removed from the ground, it must be taken to a processing plant (relatively close to the mining site) and separated from the rock, dirt, and clay in which it is embedded. Id. ¶ 11. In the United States, vermieulite is currently mined in South Carolina and Virginia, the only two states where substantial vermieulite reserves are known to exist, other than Montana, whose deposits are believed to be contaminated. Id. ¶¶ 16, 17. A significant portion of vermieulite is also obtained from South Africa; for instance, in 1992, approximately eighteen percent of all vermieulite sold in the United States was imported from South Africa. Id. ¶ 19. In the past, however, foreign exporters of vermieulite have not responded to fluctuations in vermieulite price in the United States. Id. ¶ 21. WL, a Virginia limited partnership, mines and sells vermieulite; hence, it is a consumer of vermieulite mining rights and a producer of vermieulite concentrates. Id. ¶ 63. It has been involved in vermieulite mining in Louisa County, Virginia since 1976. Id. ¶¶4, 13. WL sells a substantial percentage of all vermieulite sold in the United States; in 1992, its share of the market was approximately twenty-three percent of all sales. Id. ¶ 19. Its only formidable domestic competitor is Grace, a Connecticut corporation; in 1992, Grace owned more than eighty percent of vermieulite mining rights (in Louisa County, Virginia and South Carolina) and was responsible for approximately fifty-seven percent of all vermieulite sold in the United States. Id. ¶¶ 5, 19, 26. Until 1990, Grace mined vermieulite in South Carolina and Montana only, even though it owned vermiculite mining rights in Louisa County; after 1990, Grace abandoned the mines in Montana, apparently because of the contamination, but continued mining in South Carolina. Id. ¶¶ 14, 15, 17. In 1991, Grace invited WL to make an offer to purchase all of Grace’s holdings in Louisa County. Id. ¶¶23. WL submitted an offer, which Grace rejected. Id. ¶24. Instead of making a counter-offer, Grace donated its holdings to a nonprofit Virginia corporation, HGSI. Id. ¶¶ 6, 25, 37, 38, 43, 44, 51, 53. Grace’s “compensation” for the donation came from the Internal Revenue Service in the form of a hefty tax deduction. Id. ¶ 25. For HGSI, the benefit of the donation exceeded the simple pecuniary gain of land and mining rights. Since the early 1970s, HGSI’s stated purpose has been to halt all vermiculite mining and other land development that adversely impacts land (values) in Louisa County, Virginia. Id. ¶¶ 29, 32, 33, 34, 35. Indeed, for some twenty years, HGSI has fought to acquire vermiculite mining rights and has “conducted a campaign” against Grace to persuade Grace to surrender its mining rights in Louisa County to HGSI. Id. ¶ 36. HGSI’s corporate charter announces its purpose as follows: [HGSI] is organized for charitable and educational purposes: to maintain and protect the beautiful and historic Green Springs area[, a designated national historic landmark] as an important heritage for the State of Virginia and her people, without pecuniary gain or profit to its members or to any private individual and not to engage in a regular business of a kind ordinarily carried on for profit. Its purposes shall include historical and ecological research and education; the development of a community land-use plan to eliminate blight and prevent future deterioration; rendering assistance to like oriented organizations (historical and environmental). Id. ¶¶ 29, 30. Grace’s first donation to HGSI, made in 1992, was accompanied by restrictive covenants imposed to “run with the land and be binding upon [HGSI] and upon all persons, firms, partnerships, corporations, limited liability companies, and all other legal entities of any type owning all or any part of the Real Estate.” Id. ¶43. The covenant further directed that HGSI “agrees for itself and all of its successors in title or interest, and its assigns, that the Restrictive Covenants shall run with the land.” Id. The Restrictive Covenants prohibited any part of the land ever to “be used or operated for the purpose of Mining or Mineral Production,” id., without regard to the possibility of successful reclamation. Id. As a result of an unsuccessful suit HGSI brought to prevent mining by WL — which owned mining rights to a property adjoining one of the 1992 conveyances to HGSI — the restrictive covenants were found by a Virginia state court to have breached the implied covenant of good faith. Id. ¶¶ 44-49. After the state court ruling invalidated these restrictive covenants, Grace made another donation to HGSI in 1994, this time without a recorded restriction on mining. Id. ¶¶ 49, 51. The restrictions contained in the 1992 conveyances were subsequently narrowed by the parties to prohibit only vermiculite mining as opposed to all mining. Id. ¶¶ 53, 55. As a consequence of the 1992 and 1994 transactions, WL brought suit against Grace and HGSI on February 21, 1995. At the Magistrate’s request, on May 31, 1995, WL filed its First Amended Complaint. Because the court has granted WL’s motion to amend this complaint, now before the court is VVL’s Second Amended Complaint. WL believes it has been injured both as a consumer (of mining rights) and a producer (of vermiculite concentrate) by the contract between Grace and HGSI, which WL claims to have resulted in the suppression of eighty percent of the vermiculite supply in Louisa County and forty percent of the vermiculite supply in the United States. Id. ¶¶ 59, 60. According to WL, the contract (whether explicit or implicit) prohibiting all future mining of vermiculite unreasonably burdens trade through its restraint of the “vermiculite mining rights market” in Louisa County and South Carolina and the “vermiculite concentrates market” in the United States. Id. ¶¶68, 76, 79, 90, 93, 101. WL complains that the contract between Grace and HGSI, in which they agree (expressly or implicitly) that no vermiculite mining will ever be performed, hinders it (or other potentially interested parties) from acquiring vermiculite mining rights, mining vermiculite, and selling vermiculite. Id. ¶70. The donation, WL asserts, was an exclusionary act employed by Grace to achieve (or attempt to achieve) monopoly power in the vermiculite concentrates market in the United States. Id. ¶ 76. WL claims that as a consequence its business has depreciated in value and it has suffered increased costs and lost profits. Id. at p. 20. As a remedy, WL seeks damages for past and future harm and equitable relief entailing a rescission of the conveyances and divestiture of the interests from Grace. Count I alleges a violation of the Sherman Antitrust Act, 15 U.S.C. § 1 (unlawful combination or conspiracy in restraint of trade) by Grace and HGSI; Count II and III allege a violation of the Sherman Antitrust Act, 15 U.S.C. § 2 (monopolization and attempted monopolization) by Grace only; Count IV alleges a violation of the Sherman Antitrust Act, 15 U.S.C. § 2 (conspiracy to monopolize) by Grace and HGSI; Count V alleges a violation of the Virginia Antitrust Act, §§ 59.1-9.1 et seq. (antitrust violations that mirror federal law) by Grace and HGSI; and Count VI alleges a violation of Va.Code § 18.2-499 (conspiracy to injure another in trade, business, or profession) by Grace and HGSI. The Magistrate Judge issued a Report and Recommendation on September 19, 1995, recommending dismissal of Counts I, II, and III pursuant to Fed.R.Civ.P. 12(b)(6); the Magistrate declined to exercise jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c) and recommended that they be dismissed without prejudice. Objections followed. On December 28, 1995, upon motion by WL, proceedings in the case were stayed so that WL could determine the status of certain conveyances to HGSI. On motion of both parties, the stay was lifted on November 1,1996, and WL filed a motion to amend and supplement the First Amended Complaint with a Second Amended Complaint (which the court herein granted). The objections to the Magistrate’s September 19, 1995 Report and Recommendation are now before the court. This, however, does not end the saga of Grace under fire. On March 12, 1996, two additional, virtually identical, complaints were filed against Grace, one by WL alone, Virginia Vermiculite, LTD., v. W.R. Grace & Co.-Conn., Civil Action No. 96-0012-C (“Peers 7”), and the other by Plaintiffs WL, M.F. Peers, Jr., and Norma Peers, M.F. Peers, Jr., Norma Peers, and Virginia Vermiculite, LTD., Civil Action No. 96-0013-C (“Peers IT’). Because the two Peers cases involve the same facts, parties, and legal issues, the cases were later consolidated. See Order of September 16, 1996, by United States Magistrate Judge B. Waugh Crigler. Accordingly, the court will refer to the cases collectively as the Peers cases, and, unless otherwise indicated, the court’s reasoning and holding will have similar application to both eases. Alfred D. Peers and Elizabeth D. Peers (“Peers I”) and M.F. Peers, Jr. and Norma Peers (“Peers II”) are, respectively, spouses who reside in Virginia (collectively “Peers”). Complaint (“Peers I Complaint”) ¶ 9, Virginia Vermiculite, Ltd. v. WR. Grace & Co., No. 96-0012-C (March 12, 1996); Complaint (“Peers II Complaint”) ¶ 7, M.F. Peers, Jr., Norma Peers, and Virginia Vermiculite, Ltd. v. W.R. Grace & Co., No. 96-0013-C (March 12, 1996). In the early 1970s, the Peers conveyed land containing vermiculite deposits to Grace. Peers I Complaint ¶¶ 9, 10; Peers II Complaint ¶¶ 10, 11. Part of the consideration for the conveyances was the right to receive royalties for each ton of vermiculite mined from the land, if Grace, solely in its discretion, chose to mine. Peers I Complaint ¶¶ 11, 25; Peers II Complaint ¶¶ 12, 26. In 1992, Grace donated, the conveyances it received from the Peers to HGSI along with its other vermieulite holdings. Peers I Complaint 115; Peers II Complaint ¶ 15. Consequently, the Peers lost any possibility of receiving royalties, a loss for which they have received no compensation. Peers I Complaint ¶¶ 18, 19; Peers II Complaint ¶¶ 19, 20. The Peers I assigned 100% of their interest in their claims against Grace to WL, and the Peers II assigned to WL a 65% interest in their claims against Grace. Peers I Complaint ¶ 20; Peers II Complaint ¶ 21. Essentially, the Peers claim they have been injured because the conveyances by Grace deprive them of the benefit of the bargain they struck with Grace. The Peers seek damages, attorney’s fees, and costs. In both complaints, Count I alleges unjust enrichment; Count II alleges breach of contractual duty to exercise discretion in good faith; Count III alleges a breach of contractual duty to pay royalties (on a “constructive mining” theory); Count TV alleges waste; Count V alleges conversion; and Count VI alleges a violation of the Sherman Antitrust Act, 15 U.S.C. § 1 (unlawful combination or conspiracy in restraint of trade). On September 19, 1996, the Magistrate Judge recommended that Count VT be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) on the same grounds as those stated in his Report and Recommendation issued a year earlier. The Magistrate recommended dismissing without prejudice the remaining counts (claims pursuant to Virginia state law), declining to exercise jurisdiction under 28 U.S.C. § 1367(c). The parties filed objections, currently before the court. III. DISPOSITION OF CASES For reasons different from those relied upon by the Magistrate, the court holds that all of the Peers’ claims against Grace must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6), including the state law claims, which the court will address, pursuant to 28 U.S.C. § 1367(a). Again, for different reasons than those of the Magistrate, the court holds that Count I of VVL’s complaint must be dismissed; pursuant to § 1367(a), the court will exercise jurisdiction over VVL’s state law claims and dismiss Count V, except insofar as Count V alleges unlawful monopolization, an unlawful attempt to monopolize, or conspiracy to monopolize against Grace (but not HGSI). The court will dismiss Count VI insofar as it applies to HGSI, but not insofar as it applies to Grace. Hence, HGSI must be dismissed as a defendant in this case; Grace remains in the case brought by WL under Count II (monopolization), Count HI (attempted monopolization), Count TV (conspiracy to monopolize), Count V (state law antitrust claims alleging monopolization, attempted monopolization, and conspiracy to monopolize), and Count VI (state law civil conspiracy claim). Because, with respect to the Section 1 claims, the Peers advance arguments and allegations largely identical in pertinent part to those of VVL, the court’s disposition of VVL’s Section 1 claim will apply equally to the Peers’ Section 1 claims. IV. STANDARD UNDER FED. R. CIV. P. 12(b)(6) Under Rule 12(b)(6) of the Federal Rules of Civil Procedure “failure to state a claim upon which relief can be granted” provides grounds for dismissal. For purposes of a Rule 12(b)(6) motion, all factual allegations in the plaintiff’s complaint must be accepted as true. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir.1994). The plaintiffs complaint ought not be dismissed unless it is apparent that the plaintiff “would not be entitled to relief under any facts which could be proved in support of [his] elaim[s].” Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In determining whether to dismiss a claim under the Sherman Antitrust Act under Rule 12(b)(6), “allegations covering all the elements that comprise the theory for relief’ must be stated. United States v. Employing Plasterers Ass’n, 347 U.S. 186, 189, 74 S.Ct. 452, 454, 98 L.Ed. 618 (1954); Miller & Smith, 14 F.3d at 220 (quoting Municipal Utilities Bd. of Albertville v. Alabama Power Co., 934 F.2d 1493, 1501 (11th Cir.1991) (“A plaintiff must plead sufficient facts so that each element of the alleged antitrust violation can be identified.”)). If the plaintiff has not alleged the facts necessary to support his claim, such facts will not be assumed by the court to exist. Miller & Smith, 14 F.3d at 221. y. SECTION 1 CLAIMS A. APPLICABILITY OF SECTION 1 TO HGSI The threshold question in this case is whether Section 1 of the Sherman Antitrust Act can be used as a tool against HGSI, or whether these “facts have been forced into an antitrust mold to achieve federal jurisdiction.” Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 559 (7th Cir.1980). 1. LEGAL STANDARD UNDER SECTION 1 AS IT APPLIES TO NONPROFIT ORGANIZATIONS Section 1 of the Sherman Antitrust Act provides, in pertinent part, as follows: Every contract, combination, ... or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal. 15 U.S.C. § 1. Section 1 of the Sherman Antitrust Act carries a smaller stick than this expansive language would suggest. Contrary to its simplistically all-encompassing directive, not every contract, combination, or conspiracy that restrains trade violates the Act. See National Collegiate Athletic Ass’n v. Board of Regents of University of Oklahoma, 468 U.S. 85, 98, 104 S.Ct. 2948, 2958-59, 82 L.Ed.2d 70 (1984). Since most business contracts can be said to restrain trade, few would be safe were the plain language of the Act to be taken at its word. See Standard Oil Co. v. United States, 221 U.S. 1, 60, 31 S.Ct. 502, 516, 55 L.Ed. 619 (1911) (stating that the language is “broad enough to embrace every conceivable contract ... in the whole field of human activity”). Therefore, even if one believes, with Justice Scalia, that legislative history should not aid, let alone displace, interpretation of clear statutory language, the Sherman Antitrust Act forces its students to glean meaning from congressional debates. See National Organization for Women [“NOW”] v. Scheidler, 968 F.2d 612, 617 (7th Cir.1992) (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977); Apex Hosiery Co. v. Leader, 310 U.S. 469, 489, 60 S.Ct. 982, 989-90, 84 L.Ed. 1311 (1940)), revd on other grounds, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). Although there has been substantial dispute among commentators as to the appropriate meaning to be derived from the legislative history of the Act, few would disagree about the Act’s core purpose. See Einer Richard Elhauge, The Scope of Antitrust Process, 104 Harv. L.Rev. 667, 697-98 (1991) (citing different theories of scholars); Herbert Hovenkamp, Antitrust’s Protected Classes, 88 Mich. L.Rev. 1, 21-24 (1989) (same); Scheidler, 968 F.2d at 621. The central evil that the Act sought to conquer was the combination of corporate giants or trusts, conspiring to hinder competition in order to raise prices and reap supracompetitive profits to the detriment of consumers (and competition). See 1 Earl W. Kintner, The Legislative History of the Federal Antitrust Laws and Related Statutes (1978) (quoting legislative debates); Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213 n. 7, 79 S.Ct. 705, 709 n. 7, 3 L.Ed.2d 741 (1959) (“The [Supreme Court has] ... recognized that the Act is aimed primarily at combinations having commercial objectives and is applied only to a very limited extent to organizations ... which have other objectives.”); Apex Hosiery, 310 U.S. at 493, 60 S.Ct. at 992 (same). Despite their apparent distance from “Big Business,” nonprofit organizations have been brought within the scope of the Act. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (invalidating minimum fee schedule for legal services published by nonprofit professional organization). Nonprofit organizations, however, have been awarded a limited immunity from antitrust liability: if their activities are “noncommercial,” nonprofit organizations can escape the reach of the Act. Compare United States v. Brown University, 5 F.3d 658, 665-66 (3d Cir.1993) (holding that Section 1 of the Act applies to a group of universities that agree to abide by common rules governing disbursement of financial aid with departure from rules punishable by sanctions) (citing Goldfarb, 421 U.S. at 787-88, 95 S.Ct. at 2013-14), with Scheidler, 968 F.2d at 617-23 (holding that “organizations espousing social causes,” such as violent antiabortion protestors, fell beyond the scope of the Act), and Missouri v. National Organization for Women [“NOW”], 620 F.2d 1301, 1304-05 (8th Cir.1980) (holding that NOW’S boycott against all states that had failed to ratify the Equal Rights Amendment could not be redressed by the Sherman Antitrust Act, despite the boycott’s economic impact). “Benign” intent (e.g., concern for public welfare) alone will not excuse a nonprofit organization engaged in commercial activity from entering into an otherwise illicit agreement. See, e.g., FTC v. Superior Court Trial Lawyers, 493 U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990) (rejecting claim that challenged agreement was necessary to induce better lawyers to represent indigents); FTC v. Indiana Federation of Dentists, 476 U.S. 447, 463, 106 S.Ct. 2009, 2020, 90 L.Ed.2d 445 (1986) (rejecting claim that challenged agreement was necessary for quality dental care); National Society of Professional Engineers v. United States, 435 U.S. 679, 695, 98 S.Ct. 1355, 1367, 55 L.Ed.2d 637 (1978) (rejecting claim that challenged agreement was necessary to insure public safety). But the Act does not control the conduct of an eleemosynary organization pursuing primarily political or social objectives, from which it does not receive pecuniary gain. See Herbert Hovenkamp, Federal Antitrust Policy § 5.4e (1994) [hereinafter Hovenkamp, Antitrust Policy]; Herbert Hovenkamp, Economics and Federal Antitrust Law § 10.2 (1985) [hereinafter Hovenkamp, Antitrust Law]. Aside from sound policy considerations suggesting the wisdom of carving out a special exception for nonprofit organizations engaged in noncommercial transactions, the exemption finds support in the legislative history of the Act and subsequent case law. As the courts in Missouri v. NOW and Scheidler have detailed, the only congressional debates addressing the issue indicate that the Act was not intended to govern activities by noncommercial entities with noncommercial objectives. In the late 1800s, liquor saloons were the focus of the same type of vitriolic attack to which abortion clinics have fallen prey today. See Scheidler, 968 F.2d at 618-20 (citing legislative history and historical sources and describing the remarkable similarities between the invasions suffered by abortion climes and liquor saloons). Participants in the temperance movement often employed violent tactics to drive establishments legally serving alcohol out of business. Id. Reduction (by destruction) of liquor supply was one method used to achieve their goal. Id. An important opponent of the Act, Senator George, worried that the antitrust laws would be brought to bear against “purely moral and defensive” agreements; he criticized the Act for potentially bringing “within [its] terms ... any number of persons belonging to or joining a temperance society whose object [was] to compel retailers of intoxicating liquors to give up their business.” 1 Kintner, supra, at 77-79 (quoting 20 Cong. Rec. 1458-59 (1889)). Responding to speculation that concerted agreement to destroy the liquor business could possibly fall within the Act, Senator Sherman (the Act’s sponsor), stated as follows: ... I do not see any reason for [including within the Act’s reach] temperance societies any more than churches or school-houses or any other kind of moral or educational associations that may be organized. Such an association is not in any sense a combination or arrangement made to interfere with interstate commerce. ... You might as well include churches and Sunday schools. Id. at 250-52 (quoting 21 Cong. Rec. 2658-59 (1890)). Relying upon this legislative history, the court in Scheidler concluded that the Act “was intended to prevent business competitors from making restraining arrangements for their own economic advantage.” 968 F.2d at 621. But “an industry faced with violent opposition from some segment of the public” could not seek refuge in the antitrust laws. Id. at 622. For instance, the Seventh Circuit rejected the possibility that Earth First!, an environmental group that vandalizes equipment belonging to nuclear power and logging companies, could be sued by its victims for antitrust violations. Id. Thus, the court in Scheidler held that the furious, concerted attacks staged by anti-abortion groups against abortion clinics were not governed by Section 1 even if these groups “rais[ed] prices [of abortions] by increasing costs [to abortion clinics].” Id. at 623. In a footnote, the court indicated that competitors would be subject to the antitrust laws for like conduct. Id. at 623 n. 13. Turning to more halcyon times, the court in Marjorie Webster Jr. College v. Middle States Association of Colleges and Secondary Schools, 432 F.2d 650 (D.C.Cir.1970), dispensed quickly with arguments that federal antitrust laws barred the decision of a nonprofit educational association to deny accreditation to a proprietary junior college because, pursuant to its policy, accreditation was extended only to nonprofit institutions. The Sherman Antitrust Act, the court explained, was not “tailored ... for the non-commercial aspects of the liberal arts and the learned professions.” 432 F.2d at 654 (internal quotations, citations, and footnotes omitted). In contrast to a situation where “accreditation [was] denied any institution purchasing textbooks from a supplier who did not provide special discounts for association members,” id. at 655 n. 21, the defendant was not compensated (monetarily) for its accreditation services; the defendant’s objectives were thus noncommercial and not actionable under the Sherman Antitrust Act despite “an incidental restraint on trade,” id. at 654, i.e., a setback to proprietary colleges in their efforts to recruit students. The Ninth Circuit appeared rather insulted at the suggestion by one nonprofit animal shelter society, Dedication and Everlasting Love to Animals (“DELTA”), that another similar organization, Humane Society of the United States (“Humane Society”), was guilty of violating the antitrust laws through its solicitation of donations. DELTA v. Humane Society of the United States, Inc., 50 F.3d 710 (9th Cir.1995) (alleging violations of Sections 1 and 2 of the Sherman Antitrust Act). Comparing the case to a hypothetical where “ ‘two philanthropists ... ‘divide the market’ by agreeing that one would care for the homeless on the east side of town while the other did so on the west side,’” the Ninth Circuit rejected the notion that a charitable organization “competing” with another in the “market” for public contributions could be brought within the scope of the antitrust laws. Id. at 714 (quoting Phillip Areeda & Herbert Hovenkamp, Antitrust Law ¶ 232.2 (1989 & Supp.1993)). This was simply not “commerce” within the meaning of the Sherman Antitrust Act, the Ninth Circuit concluded, and the gain derived by the Humane Society “[f]rom its donations, ... [in the form of] reputation, prestige, [and] money for its officers” did not transform its fundraising, even if “self-serving,” into a commercial transaction. 50 F.3d at 714. These cases and the Act’s legislative history suggest that to the extent the Act “sets up a code of ethics,” Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 140, 81 S.Ct. 523, 531, 5 L.Ed.2d 464 (1961), the code does not govern the country; it governs commerce. The purpose of the Act is to ensure that competition reigns supreme in the business world. But the Sherman Antitrust Act makes no value judgment that competition in the business world should be elevated over pursuit of noncommercial social or political objectives by noncommercial social or political organizations. 2. LEGAL STANDARD GOVERNING NONPROFITS AS IT APPLIES TO HGSI Having laid out what the court believes to be controlling law, it will now consider whether WL can sue HGSI under Section 1. The following facts are drawn from WL’s complaint. Although WL has alleged that HGSI is motivated by the desire to protect its land values from plummeting, the complaint makes clear that concern with property values is tangential to HGSI’s primary objective. HGSI, first and foremost, concerns itself with preserving national landmarks, mainly for (nonpecuniary) aesthetic, historic, and environmental reasons. HGSI has never been interested in mining or selling vermiculite for profit; it is uninterested in profiting from the purchase or sale of vermiculite mining rights. To be sure, HGSI has a stake in the market for vermiculite and vermiculite mining rights. HGSI wishes to restrict the production of vermiculite and it hopes to acquire vermiculite mining rights. But HGSI does not desire to suppress supply and dominate the vermiculite milling rights market in the same way that a for-profit coloration competing for vermiculite or vermiculite mining rights would. The goal of HGSI and a hypothetical competitor are alike only in the most superficial way. Whereas the latter strives to achieve the goal for business purposes — to raise price and to increase its profits — HGSI makes no profit from its acquisition of vermiculite mining rights and is indifferent to the going price of vermiculite concentrates. This is not to say that HGSI’s efforts to suppress the supply of vermiculite (or vermiculite mining rights) cannot detrimentally affect competition. Ignoring for the moment potential substitutes for vermiculite (as well as other relevant characteristics of the market), it can be readily assumed, at this stage of the analysis, that a constriction of a finite supply of vermiculite may drive up the price of that resource. The same can be said for vermiculite mining rights. But the Sherman Antitrust Act does not redress all anticompetitive effects; little doubt exists that attacks perpetrated upon liquor saloons and abortion clinics had an unhealthy impact on competition as well, but neither Congress nor the Seventh Circuit believed that this anticompetitive effect should lead to antitrust liability. If one overlooks the surface differences, HGSI fits comfortably into the mold of the anti-abortion agitators and the temperance activists. All wish to extinguish a class of producers: those dealing in abortions, liquor, and vermiculite. See Scheidler, 968 F.2d at 622 (emphasizing that the antiabortion protestors targeted all abortion clinics). None profit financially from reducing the supply and increasing the price of their targets — their goal — achieved by a sustained campaign against, as the case may be, abortionists, saloonists, or vermiculite producers. None is alleged to have market power (i.e., “the ability to .... increase ... profits by reducing output and charging more than a competitive price,” Hovenkamp, supra, Antitrust Law § 3.1). The objective of each is properly classified as political or social. Accordingly, the court finds that, like the participants in the temperance movement and anti-abortion movement, HGSI is not engaged in commercial activities and should not be exposed to antitrust liability. 3. YVL’S OPPOSING ARGUMENTS WL makes sundry arguments, many of which are certainly accurate, but nonetheless do not help its cause. Initially, WL emphasizes that nonprofit organizations are entitled to no blanket exemption from the Sherman Antitrust Act. The court readily agrees. Next, WL contends that HGSI’s “good” intentions will not shield it from liability under Section 1. This too is true, but incomplete. Although “malign,” anticompetitive intent is not a prerequisite to a Section 1 claim, intent or objective is relevant in determining whether a nonprofit organization’s activities are commercial in nature. Marjorie Webster, 432 F.2d at 654 (emphasizing the noncommercial objectives of the nonprofit educational association accused of violating antitrust laws, but noting that lack of predatory intent will not save an activity that otherwise falls within the scope of the Act); Association for Intercollegiate Athletics for Women v. N.C.A.A., 735 F.2d 577, 584 n. 8 (D.C.Cir.1984) (per curiam) (“We acknowledge that some practices by non-profit organizations may produce anticompetitive effects but still be essential to the organization’s achieving its legitimate noncommercial objectives. In such case, we do not foreclose the possibility that achieving the essential noncommercial objective may justify some anticompetitive impact.”) (citations omitted). As discussed above, the facts alleged in WL’s complaint do not permit the court to arrive at any conclusion but that HGSI’s objectives are noncommercial. Citing Brown, 5 F.3d at 668, WL urges that nonprofit organizations, regardless of the aspirations expressed in their charters, are capable of trafficking in commerce. Nothing in Brown is inconsistent with the court’s discussion here. Contrasting its case from Marjorie Webster, where accreditation brought the defendant no monetary gain, the court in Brown held that a university does not merely engage in charity when it “discount[s] the price of educational services for needy students ... [in exchange for] tangible benefits.” Id. at 666. After it determined that financial aid constituted a part of the tuition price, the court found that the defendant university “immuniz[ed] itself ... from competition” in abiding by an agreement with other universities to disburse financial aid only on the basis of need. Id. Such circumstances are missing from this case. Like the defendant in Marjorie Webster, HGSI does not derive pecuniary gain from suppressing vermiculite mining; to the extent that its land values are enhanced by a cessation of mining, this benefit is merely incidental to its overriding goal of preserving land for nonpecuniary reasons. Secondary benefits such as this redound to most, if not all, charitable organizations and quintessentially noncommercial institutions. Marriage entered into for love may yield far more concrete treasures. Accepting the presence of such benefits as evidence of commercial activity would easily bring virtually any transaction within the scope of the Sherman Antitrust Act. See DELTA 50 F.3d at 714 (noting that self-serving efforts to enhance reputation, prestige, and remuneration to officers do not necessarily qualify an activity as commercial in nature). This is exactly the result the court wishes to avoid. The only argument left to WL boils down to the truism that this case is of first impression. WL remarks that none of the cases upon which HGSI relies involve an allegation that a nonprofit organization conspired with a business competitor. WL is correct; the unique circumstances in this case, to this court’s knowledge never encountered by any other court, force one to reason by analogy. At first blush, WL’s insistence that the presence of a business competitor, Grace, allegedly acting in concert with HGSI, distinguishes this case from Scheidler (and, by implication, the temperance movement) seems persuasive. A second glance, however, casts doubt on the importance of Grace’s involvement. WL’s argument leads the court to the following hypotheticals. If the participants in the temperance movement, instead of hammering away at liquor saloons, accepted donated saloons on the condition that liquor would never again be served on their premises, would this violate Section 1? Alternatively, if the anti-abortion protestors renounced assaults upon abortion clinics, and instead accepted donated clinics with the agreement that abortions would never be performed on their premises, would this violate the antitrust laws? If the answer to these questions were yes, the message to HGSI would surely be that it transform itself into a version of Earth First! and strive toward its preservation goals with more (physical) vigor. Competition would not be advanced by such a perverse incentive. On the other hand, if HGSI did not succumb to violence to avoid an antitrust lawsuit, it would have few options available to it in furthering its goal of halting vermiculite mining. Politely badgering the producers of vermiculite, if effective, would be dangerous — a disgruntled competitor could petition a court of law for relief. And yet, as WL concedes, HGSI’s desire to preserve land (for the sake of beauty, history, and environment) is a legitimate social objective. As has been emphasized by two somewhat different commentators, the Ninth Circuit and author David Foster Wallace, “[n]ot every aspect of life in the United States is to be reduced to ... a single-minded vision of the ubiquity of commerce.” DELTA, 50 F.3d at 714 (expressing disturbance at the prospect of federal antitrust laws that impinge upon “everything from ... church fair[s] to ... solicitation of voluntary blood donors ... [to] engagements] or marriage[s]”). On a more entertaining note, David Foster Wallace, in Ms novel Infinite Jest, envisions a mad commercialization of America, leading to “ecological gerrymandering” and an unwelcome donation of our fatally-polluted Northeastern states (the “toxically convex addition”) to Canada. The court is convinced that the Sherman Antitrust Act neither intended to invade the sphere of courtships and picnics nor to prevent organizations such as HGSI from battling against a perceived dysutopia where America is ecologically .gerrymandered and Canada is compelled to receive America’s unwanted toxically convex addition. Again, the core purpose of the Act is “to protect consumers from monopoly prices, and not to serve as a comprehensive code to regulate and police all kinds and types of interruptions and obstructions to the flow of trade.” Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 806, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939 (1945). Consequently, the court holds that, on the facts of this case, the Sherman Antitrust Act does not apply to HGSI. 4. EXISTENCE OF AGREEMENT BETWEEN HGSI AND GRACE WL urges that even if “HGSI’s motives ... excuse it from liability, they would not excuse Grace.” WL’s Objections of October 2, 1995 (citing Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968)). WL’s premise is mistaken: HGSI’s motives do not excuse HGSI from liability; the nature of the transaction, elucidated by an examination of motives, removes HGSI from the reach of the Sherman Antitrust Act. Nonetheless, the court agrees that simply because HGSI cannot be held liable under Section 1 does not mean that Grace too escapes liability. Section 1 liability only attaches to concerted action, which requirés “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). Graces takes the position that this definition requires anticompetitive intent or an overlap in motives between the conspiring parties. Given the present state of the law, the court cannot accept Grace’s argument that anticompetitive intent or similar objectives on the part of both parties must exist before a conspiracy can be formed under Section 1. To demonstrate the point with a dramatic ease, the Supreme Court has speculated in heretofore dormant dictum that a carrier who lost customers to a lower-priced competing carrier could allege that a conspiracy within the meaning of Section 1 existed between the newspaper which hired the competing carrier and the lost customers. See Albrecht v. Herald Co., 390 U.S. 145, 150 n. 6, 88 S.Ct. 869, 872 n. 6, 19 L.Ed.2d 998 (1968). One need not go this far; indeed, one ought not, for neither lower courts nor the Supreme Court have been faithful to Albrechts extreme. Other case law, relying upon more commonly invoked principles than potential consumer liability, makes plain, albeit with less pungency than Albrechts infamous dictum, that no overlap in motive is required. For instance, in Isaksen v. Vermont Castings, Inc., 825 F.2d 1158 (7th Cir.1987) (Posner, J.), the plaintiff, a dealer, claimed that the defendant, a supplier, had forced him, with threats and harassment, to raise retail prices on the stoves he sold. Judge Posner, speaking for the Seventh Circuit, observed that “[t]he fact that [an antitrust plaintiff] may have been coerced into agreeing is of no moment; an agreement procured by threats is still an agreement for purposes of [S]ection 1.” Id. at 1163 (citing Albrecht and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960)). Of course, in yielding to the supplier, the dealer’s motive was neither anticompetitive nor the same as that of the supplier; rather, he wished only to avoid the harassment and threats to which he had been subject. Grace is led astray by the language in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), emphasizing the need for ‘“a conscious commitment to a common scheme designed to achieve an unlawful objective.’” Id. at 764, 104 S.Ct. at 1471 (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980)). Monsanto dealt only with the question of how much proof must be adduced to show concerted (as opposed to unilateral) action; the Supreme Court held that “an antitrust plaintiff ... [must do more than] show [ ] that a manufacturer terminated a price-cutting distributor in response to or following complaints by other distributors [to establish agreement within the meaning of Section 1].” 465 U.S. at 759, 104 S.Ct. at 1468. The language upon which Grace relies focuses on commonality and conscious agreement mainly to ensure that two independent actors — the manufacturer and the distributor — do not get ensnared in Section 1 liability simply because there is some slight evidence that their acts are connected or because a manufacturer announces a policy and the distributor complies (see United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919)). Monsanto does not purport to adjudicate the issues of the parties’ intent, other than to assure that they have agreed to a certain course of conduct. In this ease, there is no issue of proof; this is a Rule 12(b)(6) motion, and WL has adequately alleged an agreement within the meaning of Section 1 between HGSI and Grace. This agreement is embodied in the restrictive covenants or the alleged implied agreement entered into by HGSI and Grace, in which they decide that there will be no mining on the conveyed properties. That HGSI had no anticompetitive intent or commercial objective does not factor into the analysis. Therefore Grace cannot “free ride” on HGSI’s defense to avoid Section 1 liability. Even so, Grace has another defense available to it, by which it can escape Section 1. B. ANTITRUST INJURY AND THE REQUIREMENT OF PROXIMATE CAUSE 1. LEGAL STANDARD UNDER SECTION 1 To establish a violation under Section 1 of the Sherman Antitrust Act, an antitrust plaintiff must demonstrate that (1) at least two persons entered into an agreement, and (2) the agreement unreasonably restrains trade. Miller & Smith, 14 F.3d at 220 (citing Oksanen v. Page Memorial Hosp., 945 F.2d 696, 702 (4th Cir.1991)). Ultimately, the plaintiff must show “ ‘that the conspiracy produced adverse, anticompetitive effects within the relevant product and geographic market.’” Advanced Health-Care Serv. v. Radford Community Hospital, 910 F.2d 139, 144 (4th Cir.1990) (quoting Terry’s Floor Fashions v. Burlington Indus., 763 F.2d 604, 610 n. 10 (4th Cir.1985)). Sections 4 and 16 of the Clayton Act, 15 U.S.C. § 15 (providing for treble damages), § 26 (providing for injunctive relief) confer standing upon a private party to enforce the antitrust laws. As a prerequisite to suit, a private party, such as WL, must establish actual or threatened “antitrust injury,” the former under Section 4, and the latter under Section 16. See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111, 113, 107 S.Ct. 484, 489-90, 491, 93 L.Ed.2d 427 (1986) (holding that the “antitrust injury” requirement applies to Section 16 as well as Section 4 claims). An antitrust injury is an “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Brunswick, 429 U.S. at 489, 97 S.Ct. at 697. “To establish an antitrust injury, a plaintiff must show not only that the injury is of the type intended to be protected by the antitrust laws, but that the violation was [or will be] ‘the cause-in-fact of the injury: that ‘but for’ the violation, the injury would not [or will not] have occurred.’ ” O.K. Sand & Gravel, Inc. v. Martin Marietta Technologies, Inc., 36 F.3d 565, 573 (7th Cir. 1994) (quoting Greater Rockford Energy & Technology v. Shell Oil, 998 F.2d 391, 394—96 (7th Cir.1993)); see Advance Health-Care, 910 F.2d at 149 (“[A] plaintiff must show a reasonably probable causal link between the antitrust violation and a business loss of the sort the antitrust laws were designed to prevent.”) (citing, inter alia; Cargill). In Martin Marietta, the plaintiff and the defendant, competing sand and gravel companies, entered into an agreement establishing the defendant as the exclusive sand sales agent for the plaintiff. Suspecting that the defendant was selling its sand at unauthorized discounts, the plaintiff terminated the agreement with the defendant and, some months later, contracted with another company to sell its sand. Subsequently, the plaintiff brought suit, and the defendant counterclaimed, alleging that the plaintiffs agreement with the other company violated antitrust laws. The Seventh Circuit held that the defendant had failed to satisfy the causation requirement, because there had been no showing that any injury to the defendant (termination of the agreement between itself and the plaintiff) had been caused by the plaintiffs new agreement. 36 F.3d at 573-74 (stating that there must be showing that “ ‘violation was a material element of, and substantial factor in, producing the injury’ ”) (quoting Greater Rockford Energy, 998 F.2d at 401). Without showing proximate cause, the defendant could not proceed on its claims, even if the challenged agreement was violative of the Sherman Antitrust Act. 36 F.3d at 572-74. 2. REQUIREMENT OF PROXIMATE CAUSE APPLIED TO YVL’S ALLEGED INJURY The court is mindful that, unlike in Martin Marietta, the force of Rule 12(b)(6) tips the balance strongly in favor of WL. Nevertheless, the court believes that even under the lenient standard dictated by Rule 12(b)(6), WL cannot proceed on its Section 1 claim against Grace and HGSI because its complaint contains no allegation that without the allegedly illegal restraint, injury to WL would have been avoided. Worse yet (for WL), everything in its complaint points to the opposite conclusion: that the alleged restraint was entirely superfluous. It must not be forgotten that the alleged restraint under attack is not the mere donation from Grace to HGSI; rather, the restraint that WL claims violates Section 1 is the agreement that the conveyances comprising the donation never be mined for vermiculite. The restrictive covenants most baldly illustrate the alleged restraint, but the alleged implicit agreement never to permit vermiculite mining also qualifies. The incurable defect in WL’s complaint comes from a glaring omission: nowhere does WL allege, nor could it, that “but for” the express or implied agreement between Grace and HGSI, HGSI or its successor would otherwise allow vermiculite mining. As Grace succinctly stated during oral argument, WL does not even allege such a probability or a slim possibility. Transcript of January 31,1997 Hearing at 41-43. Perhaps the absence of this allegation could be forgiven in a different complaint; but certain allegations in WL’s complaint so sharply contradict any scenario in which HGSI — if only freed of the agreement with Grace — would permit vermiculite mining that there can be no colorable claim that the agreement with Grace has any effect on HGSI’s position against vermiculite mining. As counsel for WL lamented during oral argument, “[WL] can’t contradict [its] own allegations [in its complaint].” Id. at 17. The court can understand counsel’s chagrin, for to state a claim under Section 1, WL would have to abandon the facts pled in the complaint. WL explains that “[s]ince the early 1970’s, one of HGSI’s avowed goals has been and continues to be to eliminate all vermiculite mining throughout Louisa County____ For over 20 years, HGSI conducted a campaign to obtain from Grace all of its mining rights and other property interests in Louisa County.” Second Amended Complaint ¶¶ 36, 37. This set of facts cannot be squared with the contention (not made in WL’s complaint) that without an implicit or explicit agreement burdening HGSI, it would entertain suggestions that vermiculite mining be commenced on the donated conveyances. HGSI, according to the complaint, has held an unwavering commitment to halt all vermiculite mining for over two decades; WL’s complaint leaves no room for an inference that this commitment is brought about by, or even affected by, an agreement with Grace, for the agreement did nothing more than secure a promise from HGSI to keep doing what it intended all along to do. One does not extract a concession from a caged bird, freed only on the condition that it will fly away when the door swings open. WL’s counsel weakly argues that “if HGSI were to believe that mining could be conducted in a way ... that would be consistent with historic preservation ... [because of reclamation, it is] not going to be able to allow that [because of the agreement with Grace].” Transcript of January 31, 1997 Hearing at 17-18. Counsel forgets that he has already conceded that this “is not HGSI’s position today ... [and that he] understand[s] it hasn’t been [HGSI’s] position for the last 20 years.” Id. at 17. Nor does anything in WL’s complaint foreshadow a change. The ease law instructs that “a complaint should not be dismissed ‘merely because the court doubts that the plaintiff will ultimately prevail; so long as a plaintiff colorably states facts which, if proven, would entitle him to relief, the motion to dismiss should not be granted.’ ” Advance Health-Care, 910 F.2d at 145 n. 8 (quoting Adams v. Bain, 697 F.2d 1213, 1216 (4th Cir.1982)). If WL proves the facts stated in its complaint, it could not prevail, because the court concludes that, as a matter of law, the facts demonstrate that the allegedly unreasonable restraint on trade is not the proximate cause of any threatened or actual injury to WL. Consequently, all Section 1 claims against Grace (and HGSI) must be dismissed on this ground alone. VI. SECTION 2 CLAIMS Though this is bound to be of little consolation to Grace, the court is persuaded that economic reality probably supports its position with respect to the Section 2 claims against it. Nonetheless, the posture of this case prevents the court from taking up Grace’s invitation to look past the allegations in WL’s complaint. With the arguments Grace offers the court, it essentially hopes to make thé court forget that this is a Rule 12(b)(6) motion (time is surely on Grace’s side); Grace’s arguments are of the sort that can only succeed forty-four rules down the line (on a motion for summary judgment pursuant to Fed.R.Civ.P. 56). The court repeats the admonition from the Fourth Circuit: conviction by the court that the plaintiff will not succeed on his claim does not justify dismissal under Rule 12(b)(6) when the plaintiff has colorably stated the allegations necessary to his cause of action. Advance Health-Hare, 910 F.2d at 145 n. 8 (quoting Bain, 697 F.2d at 1216). Further, the court notes that it is not at liberty at this stage of the analysis quietly to overlook certain Supreme Court precedent of arguably dubious economic validity (as various appellate courts have done at subsequent stages of litigation). See Advance Health-Care, 910 F.2d at 148 n. 16; Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 379 (7th Cir.1986) (Posner, J.). A. LEGAL STANDARD UNDER SECTION 2 Section 2 of the Sherman Antitrust Act prohibits any “person ..'. from monopolizing], or attempting] to monopolize, or combining] or conspiring] with any other person or persons, to monopolize any part of the trade or commerce among the several States....” 15 U.S.C. § 2. Under Section 2, unlike Section 1, unilateral conduct is actionable. WL charges Grace with monopolization, attempted monopolization, and conspiring to monopolize; HGSI stands accused only of conspiring to monopolize. To state a claim of monopolization, a private antitrust plaintiff must allege “possession of monopoly power in the relevant market,” “willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident,” Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n. 19, 105 S.Ct. 2847, 2854 n. 19, 86 L.Ed.2d 467 (1985) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966)), and causal antitrust injury. Advanced Health-Care, 910 F.2d at 147. To state a claim of attempted monopolization, the plaintiff must allege “a specific intent to monopolize a relevant market, predatory or anticompetitive acts, and a dangerous probability of successful monopolization.” Id. To state a claim of conspiracy to monopolize the plaintiff must allege a conspiracy, an overt act committed in furtherance of the conspiracy, a substantial effect on commerce, and specific intent to monopolize. United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947). B. ARGUMENTS OF GRACE AND HGSI With respect to the monopolization claim, Grace makes the following arguments in support of its motion to dismiss. First, Grace maintains that its market share cannot support a finding of market power because its share is too small and, at that, declining. Second, Grace insists that it had no duty to sell its holdings to WL and therefore cannot be guilty of a Section 2 violation for failing to do so. Third, Grace offers that its legitimate business reason — a considerable tax deduction — relieves it from any supposed duty it had to deal with WL. Fourth, Grace disputes the presence of causal antitrust injury. In opposing the attempted monopolization claim, Grace adds the argument that its offer to sell the donated properties to WL negates anticompetitive intent. Addressing the conspiracy to monopolize claim, Grace repeats the argument it made on the Section 1 claim against it: HGSI and Grace did not share a common intent and consequently did not agree within the meaning of Section 2. Finally, Grace contends that laches bars WL from requesting divestiture of the transferred properties. HGSI continues to rely on its previous argument: that, as a nonprofit organization whose activities are noncommercial, it is not subject to the antitrust laws. Although it challenges all other elements, Grace appears to concede, and the court finds, that WL has sufficiently alleged an overt act (for the conspiracy to monopolize claim) and a substantial effect on commerce (for the conspiracy to monopolize claim). C. ECONOMIC BACKGROUND To address defendants’ arguments, a brief overview of economics is in order. For a Section 2 claim, two concepts must be understood: market or monopoly power and relevant market. As discussed above, market power is “the ability to ... increase ... profits by reducing output and charging more than a competitive price.” Hovenkamp, supra, Antitrust Law § 3.1. Monopoly power is a high dosage of market power. Id. § 5.2. Although various factors are important in determining whether a firm has monopoly power (such as entry barriers, economies of scale, concentration), often the analysis turns on market share — generally, the higher the market share the easier is the plaintiffs case. Id. Usually, courts require a threshold showing of 60-70% before they will infer monopoly power from market share. See William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L.Rev. 937, 951 (1981) (discussing the role of elasticity of demand — responsiveness of quantity demanded to a one percentage change in price — and elasticity of supply — responsiveness of quantity supplied to a one percentage change in price). Depending on other factors, however, a market share as low as 40% might suffice. Id. (explaining that when demand and supply for a product are highly inelastic, a firm with only a 40% market share might be able profitably to charge double the competitive price). “A relevant market [or the relevant geographic and product market] is the smallest market for which the elasticity of demand and supply are sufficiently low that a firm with 100% of that market could profitably reduce output and increase its price substantially.” Hovenkamp, supra, Antitrust Law § 3.2. To understand the definition without the economist’s jargon, imagine a Virginia producer of pickled watermelon which reduces output, raises price, and manages to reap a profit. If no producer from outside Virginia, lured by the supraeompetitive price, provides consumers with out-of-state pickled watermelon, and no consumers, responding to the price increase, rush outside Virginia to obtain their delicacy, a relevant “geographic market” has been established. If no consumers switch from pickled watermelon to a comparable delicacy, such as pickled peaches, and no producers abandon production of a comparable good in favor of pickled watermelon, a relevant “product market” has been established. D. SECTION 2 LAW AND ECONOMICS APPLIED TO THIS CASE 1. MARKET SHARE IN THE RELEVANT MARKET Grace admits — wisely so — that for purposes of Rule 12(b)(6) it is stuck with WL’s definition of product market (vermiculite concentrates), which disregards the existence of possibly close or virtually interchangeable substitutes for vermieulite concentrates. Similarly, under the strictures of 12(b)(6) Grace cannot contest WL’s assertion that foreign producers of vermieulite are nonresponsive to price fluctuations in the United States (the geographic market). Given these facts, it is at least plausible to assume that demand for vermieulite is largely inelastic (because consumers need vermiculite and there are no good substitutes) and that elasticity of supply is also low (because foreign producers are nonresponsive to price increases and domestic producers cannot shift production toward vermieulite, which is essentially unavailable to them). Under this scenario, the quantity demanded by customers remains such that when output is reduced and price is increased (to a supracompetitive level), Grace profits and no would-be comp