the company's president and majority stockholder, to contact Robintech and Plastiline in the early part of 1977 in order to explore the possibility of representing them. The ensuing discussions, initiated entirely by Pillar, gave rise to defendants' proposed exclusive agency arrangement, and to Pillar's notice of its attendant intention to terminate its similar arrangement with plaintiff.
As discussed infra, plaintiff asserts that due to its present legal and financial status, termination of the Pillar-Precision agreement, if permitted by a judicial refusal to maintain the status quo via an injunction pendente lite, would result in certain irreparable injury to Precision. Indeed, it is plaintiff's rather stark assertion that if its arrangement with Pillar is permitted to be terminated, Precision simply will not be able to survive as an operating company -- its reorganization under Chapter XI will fail and it will be forced into bankruptcy and liquidation. Denial of the application for preliminary injunctive relief, we are urged, would be the functional equivalent of a death warrant for plaintiff.
THE SUBSTANTIVE CLAIM
Before turning specifically to the application for preliminary equitable relief now sub judice, it is appropriate to consider briefly both the nature and the imperatives of plaintiff's underlying antitrust claim.
In broad terms, plaintiff's fundamental contention in this case is that Pillar's termination of its exclusive agency agreement with Precision and impending entry into the contemplated agency/distributorship arrangement with Robintech and Plastiline constitutes a unitary course of conduct by all defendants in violation of the Sherman Act's proscriptions against agreements, combinations and conspiracies in (unreasonable) restraint of interstate trade or commerce (Section 1), and against monopolization, attempted monopolization and combinations or conspiracies to monopolize such commerce (Section 2).
Starting from the undisputed premise that substantial interstate commerce is affected by the transactions and businesses involved in the present litigation, plaintiff first contends that Pillar and Robintech/Plastiline are poised to enter into a formal agreement -- and indeed already have entered into an informal agreement, combination or conspiracy -- not to deal with and to boycott Precision, and that, in plaintiff's language, agreements among persons not to deal with another party or to boycott another party which affect interstate commerce are illegal per se under Section 1 of the Sherman Act.
Moreover, plaintiff argues, it is unreasonable per se under Section 1 to foreclose or exclude a competitor from any substantial market.
Here, it is submitted, defendants have agreed or combined to exclude Precision from the relevant product market in the Western Pennsylvania Region through an indivisible course of conduct encompassing both termination of the Pillar-Precision agreement and initiation of defendants' proposed exclusive business relationship.
Plaintiff also asserts a claim under Section 2 of the Sherman Act, which (assuming, as we do, the interstate commerce element) makes it unlawful to create, attempt to create or combine/conspire to create a monopoly in a relevant market.
In this regard, plaintiff avers that effectuation of the proposed agreement between Pillar and Robintech/Plastiline would increase to 90% defendants' share of the relevant market, defined by plaintiff as PVC industrial pipe and accessories (relevant product market) sold in the Western Pennsylvania Region (relevant geographic market).
Such a 90% market share, we recognize, would constitute monopoly power under Section 2.
On this basis, plaintiff apparently alleges each of the following:
(1) Actual monopolization
-- i.e., existing monopoly power in the relevant market, coupled with a requisite general intent to exercise that power, inferred from its acquisition via combination or as the inevitable result of defendants' business arrangements;