The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff and counter-defendant Euramca Ecosystems, Inc.
("Euramca") sued Roediger Pittsburgh, Inc., Roediger
Anlagenbau GmbH & Co., Wilhelm Roediger GmbH & Co., Roediger
AG, Techtransfer GmbH & Co., Pierre Ch. Frossard, Hans G.
Konstandt and Walter Roediger,*fn1 alleging violations of
section 1 of the Sherman Act, 15 U.S.C. § 1, sections 2(a),
2(e) of the Robinson-Patman Act, 15 U.S.C. § 13(a) and 13(e),
and § 3 of the Clayton Act, 15 U.S.C. § 14, as well as pendent
non-federal claims for breach of contract, breach of fiduciary
duty, quantum meruit and interference with contractual
relations. Defendant Roediger Pittsburgh filed a counterclaim
against Euramca, seeking judgment on a loan dated June 30,
1980, and alleging the breach of another agreement between the
parties. Jurisdiction for Euramca's claims is asserted pursuant
to sections 4 and 16 of the Clayton Act, 15 U.S.C. § 15 and
Presently before the Court is defendants' motion for partial
summary judgment with respect to Counts I, III and IV.*fn2
For reasons set forth below, defendants' motion is granted in
part and denied in part.*fn3
In 1977, Euramca and Roediger AG entered into an agreement
granting Euramca exclusive representation and distributorship
in North America of "the Roediger program" for five years.
Roediger Anlagenbau manufactures waste water decontamination
equipment in West Germany, and Euramca has alleged that
Techtransfer GmbH, Roediger AG and Wilhelm Roediger GmbH
provide support services to Roediger Anlagenbau. The
relationship between the parties ended in May of 1981. Euramca
claims that defendants engaged in a variety of unlawful
conduct during the course of the parties' relationship, which
is set forth in greater detail below.
The Seventh Circuit has observed that "[w]ith the ever
increasing burden upon the judiciary, persuasive reasons exist
for the utilization of summary judgment procedure whenever
appropriate." Kirk v. Home Indemnity Co., 431 F.2d 554, 560
(7th Cir. 1970). The basic purpose of the summary judgment
procedure is to allow the Court to determine whether there are
any factual disputes which require resolution by trial. "[The]
party moving for summary judgment has the burden of clearly
establishing the non-existence of any genuine issue of fact
that is material to a judgment in his favor." Cedillo v.
International Association of Bridge & Structural Iron Workers,
Local Union No. 1, 603 F.2d 7, 10 (7th Cir. 1979). Any doubts
as to the existence of material issues of fact must be resolved
against the moving party. Moutoux v. Gulling Auto Electric,
Inc., 295 F.2d 573, 576 (7th Cir. 1961). However, while the
non-moving party is entitled to all reasonable inferences that
can be made in its favor from the evidence presented, United
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994,
8 L.Ed.2d 176 (1962), it must affirmatively set forth specific
facts by affidavit or otherwise demonstrate the existence of
issues which must be decided at trial. First National Bank of
Arizona v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct.
1575, 1592-93, 20 L.Ed.2d 569 (1968).
Euramca claims in Count I that defendants demanded that it
accept different price terms, prices and credit terms than
those offered to defendants' other customers. Defendants also
allegedly sold, leased, discounted or contracted to sell their
product to others on condition that they refrain from dealing
with Euramca and engaged in vertical price fixing. This
conduct, according to Euramca, constitutes a conspiracy in
restraint of trade, in violation of section 1 of the Sherman
Act, 15 U.S.C. § 1,*fn4 and also violates §§ 2(a) and 2(e) of
the Robinson-Patman Act, 15 U.S.C. § 13(a) and 13(e), and § 3
of the Clayton Act, 15 U.S.C. § 14. Defendants have made a
variety of arguments in support of their motion for summary
judgment with respect to Count I, to which we now turn.
Defendants' claims that the functional integration of all of
the Roediger companies, which are asserted to be commonly
owned in whole or part by Walter and Hanns Roediger, precludes
a finding of an antitrust conspiracy among them. Moreover,
they claim that there is no evidence that defendants' alleged
conduct caused an actual or probable anticompetitive effect.
Intra-enterprise conspiracy raises a number of difficult
issues. It is settled that two separately incorporated
subsidiaries within the same corporate family can conspire in
restraint of trade. Kiefer-Stewart Co. v. Joseph E. Seagram &
Sons, Inc., 340 U.S. 211, 215, 71 S.Ct. 259, 261, 95 L.Ed. 219
(1951). According to the Seventh Circuit, each case must be
decided on its particular facts, taking into account
the extent of the integration of ownership,
whether the two corporations have separate
managerial staffs . . . the extent to which
significant efficiencies would be sacrificed if
they were required to act as two firms, their
history, whether they functioned as separate
firms before being partially integrated, and
finally, the extent to which they may, acting as
one, wield market power which they would not
possess if viewed as separate firms.
Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 726 (7th Cir.
1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d
601 (1980). The ultimate question is whether there is enough
separation between the two entities to treat them under the law
as two independent actors, and the answer is usually to be
found in empirical evidence which is amenable to development at
trial. Independence Tube Corp. v. Copperweld Corp.,
691 F.2d 310, 318 (7th Cir. 1982), cert. granted, ___ U.S. ___, 103
S.Ct. 3109, 77 L.Ed.2d 1365 (1983).
However, in this case, such empirical evidence may not be
required at trial. Defendants point to a portion of Euramca's
complaint, which ...