credit card agreement, they may nevertheless elect not to accept the Texaco credit cards for purchases. Thus, there exists no tie-in whatsoever.
As this Court has found, Texaco has simply amended its credit card agreement to increase the cost of processing invoices from $ 36 per year to 3 percent of the face value of the invoices. This is not a sale of a tying product because it is in no way conditioned on Texaco dealers being required to process credit card invoices with Texaco. As this Court has found, one can become a Texaco dealer without executing the Texaco credit card agreement and Texaco dealers are not required by any agreement with Texaco to process Texaco credit cards through Texaco unless they decide to do so. The Court recognizes, however, that for most Texaco dealers, it is economically beneficial to honor Texaco credit cards and process them for collection through Texaco. Nevertheless, there is no evidence in this record supporting coercion as is required by law to show a tie-in. See American Manufacturers Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 446 F.2d 1131, 1137 (2d Cir. 1971), cert. denied, 404 U.S. 1063, 92 S. Ct. 737, 30 L. Ed. 2d 752 (1972); Belliston v. Texaco, Inc., 455 F.2d 175, 186 (10th Cir.), cert. denied, 408 U.S. 928, 92 S. Ct. 2494, 33 L. Ed. 2d 341 (1972). What the Texaco dealers are contending in effect is that they want to accept Texaco credit cards but instead of paying the 3 percent fee, they would prefer to have the cost of processing the credit card for collection included in the tankwagon price as had been done prior to November 1, 1981.
The Texaco dealers have failed to present credible evidence that they have been coerced into accepting the 3 percent processing fee. The fact that Texaco has agreed to process Texaco credit cards for a 3 percent fee while most financial institutions in the business of processing credit card invoices are charging 2.5 percent to 5.0 percent cannot be interpreted as coercion. As the Third Circuit observed in Ungar v. Dunkin Donuts of America, Inc., 531 F.2d 1211 (3d Cir. 1976), cert. denied, 429 U.S. 823, 97 S. Ct. 74, 50 L. Ed. 2d 84 (1976), the seller with market power in one market must use that power as a lever to force acceptance of his product in another market before a tie-in can be found to exist. "If the product in the second market would be accepted anyway, because of its own merit, then, of course, no leverage is involved...." Id. at 1218.
The Texaco dealers place some reliance on Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 89 S. Ct. 1252, 22 L. Ed. 2d 495 (1969). Fortner held that a company could be possessed of sufficient market power with respect to a tying product even though that company does not possess a monopoly or dominant position in the market for the tying product. However, the Supreme Court in Fortner premises all its discussion concerning tie-ins that are violative of Section 1 on the condition that the plaintiff must first prove a "tie-in." As this Court has heretofore determined, the evidence in this case does not support a finding that the credit arrangement at issue is a tie-in, since the Texaco dealers are not required to enter into the credit card agreement, are not required to accept Texaco credit cards, and may process for collection bank and other credit cards through any institution of their choosing. Furthermore, Fortner focused on the requirements that must be satisfied if a plaintiff is to show a per se violation of Section 1. The Texaco dealers have not contended that any action of Texaco in this case constituted a per se violation.
The Sherman Act and the Public Interest
In evaluating the Section 1 claims advanced by the Texaco dealers, the intent and purpose of the Sherman Act must be considered. As heretofore pointed out, the Sherman Act was enacted by Congress to preserve competition as a protection for the consuming public. Brown Shoe Co. v. United States, supra. During this century, although there have been some changes in the legal interpretations of some portions of the antitrust laws, the Supreme Court has consistently held that
The fundamental purpose of the Sherman Act was to secure equality of opportunity and to protect the public against evils commonly incident to destruction of competition through monopolies and combinations in restraint of trade.