v. Rockefeller Center, 458 F. Supp. 72, 78 (SDNY 1978).
It is accordingly most doubtful that by accepting the owners' offer to become their supplier, SPI could have caused the owners to violate any agreement with Star.
Since there is no documentary support for Star's contention that SPI caused the owners to violate any agreements with Star, the only remaining basis for Star's claim would appear to be that an unwritten exclusivity commitment was implicit in the agreements which were signed. Such an argument must overcome several hurdles.
Star's agreements are prepared on partially printed and partially typewritten forms containing blanks for details to be filled in. They were not prepared on the spot during an uncounselled individual negotiation. It is implausible that sophisticated parties engaged in contracting with multiple trading partners would ignore the deafening silence of their pre-prepared agreements with respect to such a significant matter as whether an exclusive dealing obligation was being requested.
An agreement of such magnitude would ordinarily be in writing when reached by sophisticated parties. See authorities cited, Durable, Inc. v. Twin County Grocers, 839 F. Supp. 257 (SDNY 1993). While Star relies on alleged industry custom, none of its affidavits set forth details concerning such a custom, or why it would take the form of an alleged implied exclusivity agreement rather than a written commitment.
Turning to the tortious interference claim, were an exclusive dealing agreement barring the owners from purchasing except from Star or Texaco to be implied, and to have been violated because of deliberate interference by SPI, it would still be necessary for Star to show that the interference was improper. Competition between suppliers in the marketplace is one of the values considered in determining whether interference is permissible provided a party breaching a contract is willing to accept any liability brought about,
leaving any contractual issues to be resolved between the contracting parties. See Restatement (Second) of Torts § 767 (1979).
In addition to inherent limitations of the tort interference with contract, the question of whether an exclusive arrangement barring the owners from buying fuel except from Star would be consistent with public policy under federal and state law must be considered prior to finding liability for such interference. See Shelley v. Kraemer, 344 U.S. 1, 73 S. Ct. 1, 97 L. Ed. 3 (1948).
Long-term requirements contracts are not per se vulnerable under the Sherman Act (15 USC 1), but are subject to analysis under the Rule of Reason. See Tampa Electric Co v. Nashville Coal Co, 365 U.S. 320, 5 L. Ed. 2d 580, 81 S. Ct. 623 (1961). The Rule of Reason calls for a quick look to determine whether any significant anticompetitive risks are created, and if so whether countervailing procompetitive benefits appear to be present. FTC v. Indiana Federation of Dentists, 476 U.S. 447, 106 S. Ct. 2009, 90 L. Ed. 2d 445 (1986); Pitofsky, "Discussion," 52 Antitrust L.J. 699, 615 (ABA 1983). While the alleged exclusive arrangement at issue here may by itself have minor effects in the relevant market, Rule of Reason analysis takes into account the impact of a practice in the aggregate upon the marketplace, taking into account its nature and prevalence. See Summit Health v. Pinhas, 500 U.S. 322, 114 L. Ed. 2d 366, 111 S. Ct. 1842 (1991).
In view of the considerations outlined above, only some of most of which have been addressed by the parties, summary judgment cannot be granted to either party at this time. The motions of both parties are denied without prejudice.
Dated: White Plains, N.Y.
February 1, 1995
/s/ Harold Bar, Jr., USDJ for
VINCENT L. BRODERICK, U.S.D.J.