see no evidence of a material breach of the May 6 agreement sufficient to avoid the effect of the releases and permit a trial.
Plaintiffs further argue that they were fraudulently induced to execute the releases, and that the releases were therefore void ab initio. The fraud alleged is the previously mentioned "plan" to suggest that creditors of MTS, Inc. sue plaintiffs, and to frustrate plaintiff's transfer of MTS's receivable to First Pennsylvania. Defendants have demonstrated that the record shows that Thomas Holt believed that "there was a conspiracy between [defendants] and the ship owners to take the ships from Waterside before the charters matured" and that before May 6 Holt "wanted to reserve the right to sue MTS and its officers for conspiracy, breach of contract, and possible fraud and conversion." (D.Exh. 49). No such reservation was made in the releases.
Similarly, Holt has testified in court that the checks purportedly assigned to First Pennsylvania were withheld beginning in late March 1977 and that "it was obvious from the very start that the two gentlemen from Marine Transport Service were attempting to break the charter agreement that we have with the owners on this vessel and another vessel." Defendant's Memorandum at 37 (quoting Notes of Testimony, May 1977 Philadelphia Court of Common Pleas). Given this state of Holt's awareness before May 6, 1977, and absolutely no evidence of any contrary reassurances from defendants, the releases must be given their full effect as to all defendants and against all plaintiffs.
He and the corporate plaintiffs are now suing defendants on account of things defendants did before May 6, and about which plaintiffs knew. Therefore, I must conclude that all the evidence of record shows that the parties intended to release one another from all claims arising out of the MTS, Inc. misadventure. There is no evidence to the contrary suggesting a triable issue of fact. F.R.C.P. 56(e).
In sum, the parties agreed to release one another from all claims, and there appears to be no sound reason not to give effect to that agreement.
2. The Antitrust Claims.
Although a general release is effective for antitrust claims, Three Rivers Motor Company, 522 F.2d at 896 n.27, summary judgment is also independently appropriate on the antitrust claims.
a. Standard of Review.
Although there is a special reluctance to grant summary judgment in an antitrust case, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962); Hamro v. Shell Oil Co., 674 F.2d 784, 786 (9th Cir. 1982), that reluctance can be overcome when it can be shown unmistakably that defendants are "entitled" to summary judgment, F.R.Civ.P. 56(c), because plaintiffs have failed "to set forth specific facts showing that there is a genuine issue for trial." F.R.Civ.P. 56(e); Boulware v. Parker, 457 F.2d 450 (3d Cir. 1972). Indeed one judge of this Court has identified an "efficiency" interest in permitting judgment on the pleadings in an antitrust case, where one party is entitled to that judgment. Cardio-Medical Associates, Ltd. et al. v. Crozer-Chester Medical Center, 536 F. Supp. 1065, [1982-1] Trade Cases P 64,614 (CCH) (E.D. Pa. 1982) (Lord, C.J.). In this case, and its related cases, see note 1, supra, there has been extensive, indeed voluminous discovery. Every conceivable witness has been deposed, and mountains of documents have been produced, photocopied, marked and filed. In fact plaintiffs have requested that I withhold my ruling on this motion until Kieron Quinn, Esq., former counsel for the Realco plaintiffs is deposed, see note 1 supra, and I have done so. I will not, however, wait until full discovery is taken of Finnowners. Summary judgment is appropriate now, and it will be entered. See Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 672 (9th Cir. 1980).
b. The Elements of Antitrust: Relevant Market, Anti-Competitive Effect, Conspiracy.
As I have noted before, this is a rule of reason case, and the summary judgment motion is an appropriate test of plaintiffs evidence of a "contract, combination . . . or conspiracy, in restraint of trade or commerce." 15 U.S.C. § 1 (1976). Once defendants can show that record evidence does not support plaintiffs' claims, the burden shifts to plaintiffs to show that their "version of the facts [would] support a legal theory which would entitle them, if accepted, to a judgment as a matter of law." Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620 (9th Cir. 1977).
(1) The Relevant Market.
Plaintiffs allege an anticompetitive effect in the market of charterers, sub-charterers, potential charterers, and sub-charterers of Roll-In Roll-Off cargo vessels ("Ro-Ro vessels") for use in the traffic between the East coast and Gulf ports of the United States and ports in the Persian Gulf.
Defendants dispute the geographical limitation of this market, but argue that even if the court accepts the relevant market as defined by plaintiffs, defendants are still entitled to summary judgment.
I agree, and therefore need not decide whether or not the relevant market as defined by plaintiffs is too narrow as a matter of law.
(2) Anti-competitive Effect.
Plaintiffs allege that in 1977 there were three companies "servicing the Middle East with Ro-Ro vessels from the East coast," Plaintiffs' Memorandum at 17, and that defendants actions "eliminating Worldwide and Gloucester from operating increased the concentration in the relevant market." Id.
The evidence of record is flatly to the contrary. Worldwide and Gloucester each chartered only one ship. When the charters were lifted, the ships were operated by new charterers in the same Gulf Coast to Middle East trade routes.
Thus, assuming that plaintiffs' allegations are true, and that defendants conspired to remove the Finn-Amer and the Finn-Builder from Worldwide and Gloucester, a new charterer appeared on the scene and the ships were operated as before.
Accordingly as a matter of law, I must conclude that there was no effect on competition whatsoever, much less a "substantially adverse effect." United States v. Arnold Schwinn & Co., 388 U.S. 365, 375, 18 L. Ed. 2d 1249, 87 S. Ct. 1856 (1967). The only change in the market was that two corporations appear to have been replaced quite readily by one -- a change of form rather than substance, because those two corporations were in fact owned by one person, Thomas J. Holt. Realco, 513 F. Supp. at 437.
The immediate entrance of a new competitor into the relevant market, as it is defined by plaintiffs, suggests two things. First, the relevant market definition is improperly narrow. Second, there are insubstantial barriers to entry to this relevant market. Judging by the rapidity with which Gloucester and Worldwide were replaced by Concordia, operating the same ships, I must conclude that as a matter of law the change in concentration, if any, in the relevant market had an inconsequential effect. See United States v. United Shoe Mach. Corp., 110 F. Supp. 295 (D.Mass. 1953) aff'd per curiam 347 U.S. 521, 74 S. Ct. 699, 98 L. Ed. 910 (1954); L. Sullivan, Handbook of The Laws of Antitrust 77 (1977). Where it is alleged that there are three competitors in a market, each with an unstated market share, and the evidence shows that the two allegedly injured competitors were immediately replaced by a new competitor who carried out precisely the same business as the injured competitors, and there is no other evidence adduced, there can be no triable issue of anti-competitive effect. Cf. United States v. Falstaff Brewing Corp., 410 U.S. 526, 531-32, 35 L. Ed. 2d 475, 93 S. Ct. 1096 (1973).
Defendants argue, finally, that the antitrust counts fail because there is inadequate record evidence of a "contract, combination . . . or conspiracy." Defendants argue that at most plaintiffs have alleged "conscious parallelism," see Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F.2d 205, 208 (3d Cir. 1980). Plaintiffs assert that the following acts are circumstantial evidence of agreement: (1) Semack and Kavula withheld freight funds assigned to First Pennsylvania; (2) the Finnowners lifted the charters on April 26, 1977 and May 6, 1977, See note 8 supra. (3) Semack, Castelbuono (Semack's lawyer) and the Finns met on April 28, 1977, and during the meeting they discussed the possibility of Semack and Kavula taking over the charters for the Finn-Amer and the Finn-Builder; (Semack and Kavula did not take over the charters); (4) Castelbuono and Semack gave the Finnish defendants "an April 26 draft of the May 2 agreement thereby telegraphing to the Finns the fact that Worldwide and Gloucester had financial problems" Plaintiffs' Memorandum at 19; and, (5) Defendants, some or all of them, suggested that creditors of MTS, Inc. sue the plaintiffs.
Defendants argue that there is no evidence of an agreement among Semack, Kavula and the Finnowners to cause the Finn-Amer and Finn-Builder charters to be lifted. It is evidence of that agreement which is lacking in this case. As one commentator has stated, this evidence is critical.
The concrete question often litigated is whether there is sufficient evidence of an agreement to be submitted to a jury or to sustain a jury finding [of agreement]. Some litigants and courts seem to think that they can answer that question without first defining the nature of the agreement that amounts to a statutory contract, combination or conspiracy. It is sometimes said that an admitted fact X does not compel a finding of agreement but is sufficient for such a finding by a jury . . . . It will often turn out that the connection between X and any conclusion is entirely speculative.