author: JOSEPH H. YOUNG, District Judge.

text:
    Charlotte HOROWITZ v. Thomas G. POWNALL, et al.
    Civ. No. Y-82-3011.
    United States District Court, D. Maryland.
    July 2, 1985.
    See also, D.C., 105 F.R.D. 615.
    John B. Isbister, Baltimore, Md., and Sheldon D. Camhy, New York City, for plaintiff.

      George Beall, Baltimore, Md., and Robert C. Myers, New York City, for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Presently before the Court is the defendants’ motion for summary judgment. The facts of this case have been set out in previous opinions of this Court relating to other aspects of this case and need not be restated.

By Memorandum and Order dated July 1, 1985, plaintiff’s first and second claims were dismissed because there was no longer any case or controversy as to those claims. Thus, defendants’ motion for summary judgment will be considered only as it relates to the plaintiff’s third claim which seeks relief against the re-election of management and the adoption of a “super-majority” provision at the April 28, 1983 annual meeting alleging that the proxy statement contained material omissions and misrepresentations about the Standstill Agreement.

Plaintiff concedes that her claim is moot with respect to the election of the board of directors because the election challenged in the Complaint has been superseded by subsequent elections. However, the proxy statement submitted by management in connection with the April 28, 1983 shareholders meeting also sought approval of an amendment to Martin Marietta’s articles of incorporation which would require a “supermajority” approval of certain mergers and consolidations. That amendment was approved at that meeting and remains in the articles of incorporation. Therefore, plaintiff’s claims is not moot insofar as it relates to that amendment.

Defendants seek summary judgment on this claim, contending that the alleged omissions from the April, 1983 proxy statement were not material and that the allegedly omitted information was widely disseminated in other Martin Marietta SEC filings and in the press. Because it is clear as a matter of law that the omissions which plaintiff alleges could not have been material to a vote on the “supermajority” provisions, defendants’ motion will be granted and summary judgment will be entered in defendants’ favor on the third claim.

Plaintiff has alleged that shareholders voting on the “supermajority” provision did not know (1) that the Standstill Agreement was acquired by the director defendants in exchange for valuable consideration of Martin Marietta, (2) that in exchanging Bendix shares acquired by Martin Marietta, the director defendants rejected offers by Bendix and Allied which would have resulted in the shareholders receiving a premium, (3) that suits had been filed challenging the directors’ actions, and (4) that the Standstill Agreement had been modified on September 21, 1982.

Plaintiff does not allege any misstatement or omission with respect to the charter amendment providing for the “super-majority” provisions. The proposed charter amendment and its effect were described at length in the proxy statement and a copy of the full text of the amendment was attached to it.

To violate the proxy rules, a proxy statement must make a material misrepresentation or omission relevant to some matter for which corporate authorization is being sought. The Supreme Court in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976), set the standard for materiality under Rule 14a-9:

An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote____what the standard does contemplate is a showing of a substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder.

To recover in this action, therefore, plaintiff must show that shareholders were “deprived of information necessary to evaluate and act upon” the supermajority proposals. Dan River, Inc. v. Icahn, 701 F.2d 278, 286 (4th Cir.1983). None of the omissions alleged by the plaintiff were in any way related to the vote on the proposed super-majority provisions. The Standstill Agreement was not before the shareholders for a vote, nor were the terms of the stock swap with Allied. It is inconceivable that information relating to those matters, or to pending litigation regarding those matters, would have assumed significance in the minds of reasonable shareholders deciding how to vote on the charter amendment. As the Supreme Court noted in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384, 90 S.Ct. 616, 621, 24 L.Ed.2d 593 (1970):

[The] requirement that the defect have a significant propensity to affect the voting process is found in the express terms of Rule 14a-9, and it adequately serves the purpose of ensuring that a cause of action cannot be established by proof of a defect so trivial, or so unrelated to the transaction for which approval is sought, that correction of the defect or imposition of liability would not further the interests protected by § 14(a). [emphasis added]

Here, the interests protected by § 14(a) are adequately furthered by the full and complete disclosure of all information directly relating to the charter amendment. The fact that all the details of completely unrelated transactions were not disclosed in the proxy statement does not indicate a violation of § 14(a) or Rule 14a-9.

Plaintiff suggests that the information relating to the Standstill Agreement, the stock transaction with Allied, and the pending litigation was material because it was important to the issue of management competence and integrity. Under this reasoning, any controversial action by management would automatically become relevant to any other corporate action and would require that every proxy statement concerning any proposed corporate action would have to disclose all details of every action undertaken by management, especially if that action had been challenged by one or more shareholders. The fact that some shareholders did not agree with management’s handling of the Allied transactions or the Standstill Agreement does not make every detail of those transactions material to a determination of a totally unrelated issue.

The cases plaintiff cites in support of her theory are not to the contrary. Facts relating to directors’ self-dealing or pending litigation against the corporation or its directors may be material to the issue of whether to re-elect those directors, see, e.g., Gaines v. Haughton, 645 F.2d 761 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982); Maldonado v. Flynn, 597 F.2d 789 (2d Cir.1979); Weisberg v. Coastal States Gas Corp., 609 F.2d 650 (2d Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980); or to the issue of whether to buy or tender shares, see, e.g., Berman v. Gerber Products Co., 454 F.Supp. 1310, 1322 (W.D. Mich.1978) (disclosure of alleged improper foreign payments by tender offeror important in tender offer context). In this case, the amendment for which approval was sought concerned the requirements for future merger or acquisition proposals. A reasonable shareholder was capable of fully evaluating that proposal on the basis of the information presented concerning the charter amendment. The decision to follow management’s recommendation was reasonably based on an evaluation of the proposal itself, and did not depend on an independent evaluation of the steps management had taken in dealing with the Allied-Bendix proposals in the preceding year. The omissions alleged by plaintiff were clearly immaterial to a vote on the super-majority provisions. Summary judgment in favor of the defendants is therefore appropriate.

The Court would also note that the omissions of which plaintiff complains were widely disclosed elsewhere, in the press and in Martin Marietta’s SEC filings. Plaintiff complains that a reasonable shareholder should not be required to send for SEC filings and do independent research in the press.

The only conceivable relevance of the omitted information to which plaintiff can point, howéver, is its relevance to the competence and integrity of management. Certainly, without doing any independent research, a reasonable shareholder would be aware that the actions of management in the handling of the Allied-Bendix matter had been the subject of intense scrutiny for months. In Seibert v. Sperry Rand Corp., 586 F.2d 949, 952 (2d Cir.1978), the court noted that where information concerning a company’s labor problems was widely available in the national media, there was no duty to disclose that information to shareholders voting in a board of directors election. “Although the underlying philosophy of federal securities regulation is that of full disclosure, [citation omitted], ‘there is no duty to disclose information to one who reasonably should already be aware of it’ ... As the district court held, any reasonable shareholder who was not already familiar with Stevens’ labor problems had this information reasonably available to him.” See also Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275, 282 (2d Cir.1975) (a reasonable belief that the other party already has access to the facts should excuse a defendant from disclosure which reasonably appear to be repetitive).

In this situation, any reasonable shareholder should have been aware that questions had been raised concerning management’s handling of the Allied-Bendix proposals, the Standstill Agreement, and other issues. A holding that such information was material to a vote on the supermajority provisions, and this Court has found that it was not, would not create a duty to disclose the details of the Standstill Agreement and the stock trade with Allied because that information was widely available to all shareholders through other means.

Defendants’ motion for summary judgment is therefore granted with respect to the third claim of plaintiff’s Amended Complaint.

       The September 21, 1982 modification provided that Allied's holdings in Martin Marietta would be voted in proportion to the vote of other Martin shareholders, if that action was ordered by a court. The Agreement originally provided that Allied's holdings would be voted according to the direction of management.


source: Caselaw Access Project

author: GILLIAM, District Judge.

license: Public Domain

text:
    SOUTHWEST MARINE, INC., a corporation, Plaintiff, v. CAMPBELL INDUSTRIES, a corporation, Defendants.
    Civ. No. 78-0106-G.
    United States District Court, S.D. California.
    July 2, 1985.

      David E. Lundin, Fredman, Silverberg & Lewis, Inc., San Diego, Cal., for plaintiff.
    Eugene Crew, Linda J. Margolies, Khourie & Crew, San Francisco, Cal., Counsel for defendant Triple “A” Machine Shop, Inc.
   MEMORANDUM OF OPINION AND ORDER RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S REQUESTS FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND FOR ATTORNEY’S FEES

GILLIAM, District Judge.

The court has reviewed the pleadings submitted by the parties and has heard oral argument regarding defendant’s motion for summary judgment. After due deliberation, the court grants said motion for the following reasons.

PROCEDURAL STATUS OF THE CASE

This matter proceeded to jury trial in this court in November, 1980. The jury returned a verdict which stated that defendants had concertedly induced the Port District to exclude plaintiff from the graving dock, in violation of the Sherman Act, but that plaintiff was barred from recovery on pañ delicto grounds.

On plaintiffs appeal, 732 F.2d 744 the Ninth Circuit held that the pan delicto defense had not been established, because the record did not provide a legally sufficient basis for imputing Mr. Engel’s conduct to the corporation which he formed and controlled.

The case was then remanded to the trial court on May 7, 1984, to determine whether defendants were entitled to a new trial, on the grounds that the jury had been exposed to documents that were not admitted into evidence.

This court considered the issue of a new trial, and issued a written Memorandum of Decisions and Orders are Defendant’s Motions for New Trial and Summary Judgment on February 26, 1985. That decision stated that the scope of remand was limited and precluded consideration of the summary judgment motion. The motion for new trial was granted for the reasons set forth therein, that being that the documents submitted to the jury were prejudicial and that the evidence showed that the jury had relied on them for their finding.

Defendants subsequently refiled the instant motion for summary judgment. Plaintiff’s petition for writ of mandamus was denied by the Ninth Circuit on April' 29, 1985, and the summary judgment motion is now before this court for consideration.

In response to the motion for summary judgment, plaintiff filed a request for leave to file a second amended complaint and a request for attorney’s fees under the Ninth Circuit’s May 7, 1984 decision.

The dates relevant to the merits of the motions now before this court are as follows:

1978 Defendants sought summary judgment on Noerr-Pennington grounds before Judge Nielsen in this district court. The motion was denied at that time, and no written opinion was issued.
1980 Jury trial on the merits.
Nov. 1, 1982 Appeal of, the jury trial was argued before the Ninth Circuit and submitted.
Nov. 16, 1982 In re Airport Car Rental Antitrust Litigation, 693 F.2d 84 (9th Cir.1982), cert. denied, was published, declaring new and controlling principles of law affecting the instant case.
Jan. 26,1983 Petition for rehearing was denied by the Ninth Circuit in Airport (supra.)
May 7,1984 Ninth Circuit opinion was filed, reversing the jury’s findings re: pari delicto in the instant matter, and remanding to this court.

PLAINTIFF’S REQUEST FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

As ordered at the hearing on these motions, the request of plaintiff for leave to file a second amended complaint is denied.

Plaintiff sought to allege new causes of action which would survive the summary judgment motion now before the court. Allegations of fraud and active participation in a conspiracy with the Port District would survive, because case law has declared that such activity is an exception to Noerr-Pennington.

Plaintiff states in its Declaration of Counsel, David E. Lundin, that the reason they have not alleged such a cause of action up to this time is that “there was no need to present facts relating to any exception to the Noerr-Pennington doctrine”, because governmental immunity was “a fully resolved issue”.

The law as it now stands appears to make the protections of Noerr-Pennington applicable to this ease, and the cause of action upon which plaintiff has solely relied is subject to summary judgment. Plaintiff now seeks to plead itself within two exceptions which have been carved out of the Noerr-Pennington right to free speech before a governmental body.

As additional justification for not having alleged these facts earlier, plaintiff asserts that there were various, strategic and political reasons which supported that decision.

The most important consideration in the court’s determination whether to grant leave to amend under Federal Rule of Civil Procedure 15 is whether there will be any prejudice to the opposing party. Other factors to be considered are whether the motion is timely, what the reasons for delay were, whether the motion is brought in bad faith, the futility of the proposed amendment, and the motivation for bringing the motion at this particular time. Sackett v. Beaman, 399 F.2d 884 (C.A.Cal. 1968); Ozark Air Lines, Inc. v. Delta Air Lines, 63 F.R.D. 69 (D.C.Ill.1974); Dow Corning Corp. v. General Elec. Co., 461 F.Supp. 519 (D.C.N.Y.1978); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Matlack, Inc. v. Hupp Corp., 57 F.R.D. 151 (D.C.Pa.1972).

The amendment which plaintiff urges constitutes a substantial change of the underlying factual allegations. This matter has proceeded completely through one trial on the merits without mention of any fraud or active participation in a conspiracy. Plaintiff’s pleadings indicated the fact that potential allegations of fraud or conspiracy surfaced during discovery some five years ago. All discovery is long ago completed, and the evidence and memories of witnesses have surely dimmed over these seven years since the original complaint was filed. To grant plaintiff’s request would require defendants to virtually reconduct discovery in its entirety, and would work a substantial hardship on all parties at this late stage in the proceedings.

The court finds that extending leave to plaintiff to amend its complaint at this stage of the proceedings would substantially prejudice the opposing parties. The court further finds that, as set out below, plaintiff was on notice at all times herein that the law in the area of Noerr-Pennington was not settled beyond all doubt so as to necessarily preclude the assertion of the alternative theories of recovery which he now seeks to allege. Finally, the court finds that the timing of the filing of this request evidences bad faith on the part of plaintiffs, in that they appear to be attempting to prevent an anticipated adverse judgment through use of amendment of pleadings.

Finding that the interests of justice would not be served by the amendment, that the request is untimely, that the reasons for delay are without foundation or merit, that the request appears to have been brought at this time for an improper motive, and that the prejudice to defendant caused by this substantial amendment of the underlying factual basis of this litigation will be substantial, the court denies the request of plaintiff for leave to file a second amended complaint.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant seeks summary judgment on the basis of a change in existing law, contending that the ease of In re Airport Car Rental Antitrust Litigation, 693 F.2d 84 (9th Cir.1982), cert. denied, now establishes the principle that Noerr-Pennington does protect communications made to a governmental body, even though the objective of that communication was commercial and anticompetitive.

Plaintiff responds that summary judgment may not be entered at this time because it is barred by the doctrines of res judicata and “law of the case”, the issue having been decided by Judge Nielsen in 1978.

The court’s inquiry is two-tiered. The first determination is whether Airport (supra) in fact constitutes a change in the existing law. If there has been no change in existing law, then Judge Nielsen’s denial of this same motion in 1978 must be given great deference by this court, and that decision could only be overturned if it were clearly erroneous. If, on the other hand, there has been a change of law, then this court must reconsider the motion in light of that change. Plaintiff’s assertion that the law as it exists on the date of filing of the complaint should control throughout the various stages of litigation is without foundation or merit.

The court finds that Airport (supra) does constitute a change in existing law. The court in Airport undertook an extensive review of previous decisions in this circuit regarding whether or not the NoerrPennington free speech exemption from the antitrust laws protects concerted efforts to lobby public officials on issues of governmental commercial activities. That full review convinced the Ninth Circuit that previous decisions had erroneously held that governmental decisions which implemented policy, rather than formulated policy, (in other words, commercial activities of the governmental body) were not protected under Noerr-Penning ton.

Airport specifically halts the former trend of court decisions on this issue, and the stated intention of the court was to clarify and determine this rule of law. For purposes of this motion, then, there has been a change in existing law which is sufficient to require a de novo consideration of the issues and which takes this matter out from under the “due deference” standard otherwise accorded to prior decisions between the same parties.

The second inquiry, then, is whether that change of law is applicable to the facts underlying this matter.

The holding in Airport (supra) was that the distinction between implementing and formulating policy is not a distinction which sufficiently lessens the interest in free speech so as to avoid the Noerr-Pennington doctrine.

Plaintiff draws three distinctions between the facts underlying Airport and the facts currently before the court, as follows: 1) The graving dock was owned by the Navy and only leased by the Port District, whereas the governmental body in Airport actually owned the land involved. 2) This matter involves execution of a contract, whereas the Airport facts involved enactment of governmental policy not in contract form. 3) The act complained of here was not the execution of the contract, but was instead the subsequent refusal to issue a waiver to plaintiff. Under the terms of the contract, that decision was made in conjunction with current users, and was therefore not a purely governmental act.

The court finds that these distinctions are not sufficient to avoid application of the holding in Airport to these facts. The cases are substantially identical, and as to those facts which were determinative of the court’s ruling, they are the same.

The decision of the Port District to enter into the contract and the decisions as to what the contract provisions would be were made after public meetings were held with an opportunity for full discussion and disclosure. Following those meetings, the matter was referred to a subcommittee for study and recommendation. The subcommittee returned with its report, and the Port District voted unanimously in open, public forum and following further discussion, to execute the contract. This procedure is inherently that of a governmental body, and the course of conduct thereby adopted by the Port District constitutes formulation and implementation of governmental policy.

The fact that the anticompetitive regulations were set out within a contract format instead of in legislative policy format is irrelevant for purposes of this determination. The contract embodies governmental policy. The fact that it is in “contract” form does not vitiate its basic nature, in view of the fact that full compliance with public forum and review requirements was accomplished by the Port District.

This alleged distinction is not sufficient to take this matter outside the purview of Airport. Putting the decision into contract form was a mere implementation of policy, and Airport specifically states that the distinction between implementation and formulation of policy is not sufficient to avoid Noerr-Pennington.

Plaintiffs objection that the land was only leased and not owned outright does not state a determinative fact critical to the holding in Airport, and therefore this difference is not sufficient to avoid its dictates.

Plaintiffs third contention, that the act complained of was not execution of the contract initially but was instead the subsequent refusal to issue a waiver of user requirements, is not sufficient to avoid application of the holding in Airport to this matter. Again, the contractual provisions were entered into by the Port District after a full and fair governmental formulation of policy, and the execution of the contract itself and subsequent acts taken under the provisions of that contract are merely implementation of that policy. Such acts are specifically sanctioned by the Ninth Circuit in Airport.

Finding that the case of Airport (supra) is controlling as to the facts at bar, defendant’s motion for summary judgment is granted.

PLAINTIFF’S REQUEST FOR ATTORNEY FEES

Plaintiff seeks attorney’s fees in this matter to date under the provisions of the Ninth Circuit’s opinion issued May 7, 1984.

In that opinion, the court stated:

“If the district court decides that a new trial is not required, Southwest Marine is immediately entitled to a determination of damages, and an award of attorney’s fees commensurate with this judgment.”

The Ninth Circuit’s statement that plaintiff should recover its attorney’s fees was expressly conditioned on this court’s finding that a new trial was not required. As set forth in this court’s Memorandum of Decisions filed February 26, 1985, a new trial was found to be required.

Absent the fulfillment of the express condition on which the Ninth Circuit’s directive was based, no attorney’s fees are due at this time to plaintiff under the dictates of the May 7, 1984 opinion.

Plaintiff’s requests for leave to file a second amended complaint and for attorney’s fees are denied. Defendant’s motion for summary judgment is granted.

IT IS SO ORDERED.


author: CACHERIS, District Judge.

text:
    Frank J. MACHOVEC, Ph.D., et al., Plaintiffs, v. COUNCIL FOR the NATIONAL REGISTER OF HEALTH SERVICE PROVIDERS IN PSYCHOLOGY, INC., et al., Defendants.
    Civ. A. No. 84-0702-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    July 2, 1985.

      David Barmak, Sherman, Meehan & Cur-tin, P.C., Washington, D.C., Randall Ogg, Fairfax, Va., for plaintiffs.
    Allen R. Snyder, Clifford D. Stromberg, Hogan & Hartson, Margaret F. Ewing, Donald N. Bersoff, Ennis, Freedman, Bersoff & Ewing, Washington, D.C., E. Waller Dudley, C. Torrence Armstrong, Booth, Prichard & Dudley, Alexandaiv, Va., Warwick R. Furr, II, Lewis, Mitchell & Moore, Vienna, Va., for defendants.
   MEMORANDUM OPINION

CACHERIS, District Judge.

This is an antitrust case in which three of the four plaintiff psychologists have been refused listing in the “National Register,” which lists the names and credentials of licensed or certified psychologists. The remaining plaintiff never applied for listing in the National Register, but alleges injury nonetheless. Defendants are the Council for the National Register of Health Service Providers in Psychology, Inc. (“Council”) and the American Psychological Association (“APA”). Plaintiffs allege that defendants have engaged in an illegal boycott and concerted refusal to deal with respect to the promotion of the National Register as a source of “qualified” psychologists in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, with relief sought under Section 4 of the Clayton Act, 15 U.S.C. § 15, and Section 16 of the Clayton Act, 15 U.S.C. § 26. This matter is before this court after the close of discovery on defendants’ Motions for Summary Judgment. For the reasons set forth below, defendants’ Motions for Summary Judgment are granted.

I.

BACKGROUND

A. Council and National Register

Council is an independent, nonprofit organization which periodically publishes and updates a book entitled the National Register which lists the names and data of licensed or certified psychologists who have met certain standards of education and training in the provision of health services. The National Register lists more than 13,500 psychologists of which more than 90% have gone through the review process and have been selected for listing in the National Register.

Defendant APA is a major national membership organization of psychologists. APA has over 50,000 members with varying psychological disciplines. As an association, the APA endeavors to “advance psychology as a science and profession, and as a means of promoting human welfare.” APA Bylaws, Article I, Saah Aff. at 1112.

Plaintiffs Drs. MacHovec, Callahan, Hausman, and Brigham are psychologists. Drs. MacHovec, Callahan, and Hausman applied for a listing in the National Register and were not accepted because they did not meet one or more of the criteria for listing. Dr. Brigham never applied for listing; however, she alleges that she would not have been accepted if she had applied because she failed to meet the criteria.

In 1974, the Council was established by the American Board of Professional Psychology at the suggestion of APA for the purpose of developing a resource to identify health service psychologists who met minimum educational and training experiences. In nearly all states licensing of psychologists is generic in nature. Generally, no distinction is made for licensing purposes between psychologists with education and training in the provision of health services and psychologists with little or no education or training in the health area (e.g., experimental psychology-animal research). Wellner Aff. at ¶ 20. Prospective patients have no way of ascertaining from the state licenses whether the psychologist is trained for health care services.

The net result of a generic license is that insurance companies, mental health agencies and other organizations found it difficult to identify psychologists qualified by training to provide health services. They often had difficulty investigating the background and training of each individual psychologist. Mundy Dep. at 130. The Council was established to help fulfill the need by developing and publishing a list of psychologists who met minimum training and educational criteria in the provision of psychological health services.

Specifically, in 1974, following deliberations and consultation with numerous members of the psychological profession, the Council formulated the following criteria:

(1) a current license or certificate by the State Board of Examiners of Psychology at the independent practice level of psychology;
(2) a doctoral degree from a regionally accredited educational institution; and
(3) two years of supervised experience in health services in psychology of which at least one year is in an organized health service training program and one year is post-doctoral.
* * * * * *
(4) applications by psychologists without a doctoral degree were accepted if the candidate:
a. had been licensed or certified as a psychologist for the independent practice of psychology by the State Board of Examiners of Psychology by January 1, 1975; and
b. had his/her graduate degree granted a minimum of six years prior to January 1, 1975; and
c. had at least six years of experience in psychology with at least two years in supervised (or equivalent) experience in health services, one of which was in an organized health service training program.

Wellner Aff. at 1123-24. The grandperson provision of criteria (4) appears to be a compromise, arguably, a characteristic of any novel venture.

In 1978, the Council clarified its degree requirement by adopting guidelines for identifying doctoral degree programs in psychology. These guidelines were developed at a 1977 National Conference on Education & Credentialing in Psychology, which was attended by over thirty psychological organizations. As a result of these endeavors, the Council specified its requisite degree to be that of a doctorate in psychology. In 1980, the Council developed additional guidelines specifying the elements of an acceptable internship in an organized health services training program in psychology.

When a psychologist applies for a listing in the National Register an independent psychologist reviewer considers the application and supporting data submitted by the applicant, such as, college transcripts, and confirmation of supervised internship and post-doctoral experiences.

Before rejection of an applicant, a person must first have been considered and found unqualified under the criteria by each of three reviewers and a senior review board. All rejected applicants are notified of the right of appeal to an Appeal Board. The Appeal Board, which is independent of the National Register’s Board of Directors, has nine members, five psychologists and four non-psychologist public members.

B. Plaintiffs as Applicants

Dr. MacHovec’s application for listing in the National Register was rejected because he attained his doctorate from the Fielding Institute, a “university without walls.” The program lacked a full-time faculty and other indicia of a recognized doctoral program in psychology. At the time Dr. MacHovec earned his degree, the Institute was not fully accredited. While maintaining a full-time job, Dr. MacHovec completed his “independent” study program in a mere twenty-three months. MacHovec Dep. at 381-82. Finally, Dr. MacHovec’s internship program at the “Alaska Psychiatric Institute” was deemed unacceptable under the National Register’s guidelines. See Wellner Aff., Attachment 3 (“Guidelines for Defining Supervised Experience In An ‘Organized Health Service Training Program’ ”).

Dr. Hausman’s application was denied because her doctorate degree was in Human Development, and not psychology. The Human Development degree was offered by the Institute for Child Studies of the Department of Education at the University of Maryland. In addition, Dr. Hausman’s application was rejected because in her internship she acted as a “Coordinator” of services and not as a supervised educational intern.

Dr. Callahan, who held a doctorate in psychology, was similarly rejected because she completed only a specialized, narrow training experience in the therapeutic procedure of “psychodrama” at St. Elizabeth’s Hospital. St. Elizabeth’s did have an APA approved internship in clinical psychology, however, her application for admittance into the second year of the clinical internship was rejected by the program’s director.

Finally, Dr. Brigham never applied for listing in the National Register, arguing that she would have been rejected because her degree from the University of Michigan was in Counseling and Guidance, not psychology. After working in the counseling and guidance field, she later attempted to become recognized as a psychologist and health service provider.

C. Plaintiffs’ Injuries

According to the plaintiffs’ Complaint, the alleged antitrust injuries can be summarized as follows:

(1) ineligibility for licensure;
(2) loss of employment opportunities;
(3) loss of referrals;
(4) loss of third-party reimbursement for patients;
(5) loss of reputation and professional standing; and
(6) loss of unspecified professional privileges and competitive advantages.

1. Licensure

State licensing boards regulate the licensing of psychologists, and the Council has never challenged the state board’s authority. Here, all four plaintiffs are licensed to practice psychology. Likewise, plaintiffs have not shown any state which requires listing in the National Register as a condition for licensure or any state which has denied licensure because of non-listing.

2. Employment

Given the plaintiffs’ deposition testimony, there is no evidence of lost employment opportunities because of non-listing in the National Register.

3. Referrals

Plaintiffs are unable to specify a single referral lost because of non-listing. See, e.g., MacHovec Dep. at 250 (unaware of any instance in which prospective patient or referral was lost because of non-listing). Indeed, the plaintiffs testified in depositions that they have successful psychological practices which are based predominately upon referrals from other professionals. Similarly, beyond the bare allegations of lost referrals, plaintiffs suggest two circumstances which support their contentions, namely, termination of referrals from Dr. Jean Ladkin and exclusion from the District of Columbia Psychological Association (“DCPA”) “referral service.”

Dr. Hausman has alleged that Dr. Lad-kin ceased making referrals to her because Hausman was not listed in the National Register. However, Dr. Ladkin has stated “[t]hat [non-listing] has not deterred me from recommending and referring patients to Dr. Hausman and will not deter me from doing so in the future.” Ladkin Aff. at 11 6.

Drs. Hausman, Brigham, and Callahan rely upon the exclusion from the DCPA referral service as evidence of lost referrals. Prior to January, 1984, they were denied listing in the referral service because the DCPA required listing in the National Register as a prerequisite for inclusion in the referral service. Notwithstanding the non-listing in the referral service, the events which occurred after Drs. Hausman, Brigham and Callahan were included in the service are highly instructive. For the period of January, 1984, to October, 1984, all three were unable to specify any DCPA referral which resulted in a patient and concomitant fees.

4. Third-Party Reimbursement

No evidence has been adduced that third parties use the National Register in such a way as to exclude non-listed psychologists from relevant markets or hamper their ability to practice psychology. Charles E. Mundy, Jr., Manager of Federal Employees Health Insurance Program Office, Aetna Life and Casualty Co. (“Aetna”), testified on deposition that Aetna uses the National Register as one source to identify qualified psychologists, but it is not the sole source. Mundy Dep. at 12. Richard J. Luehrs, Executive Director of Operations for Blue Cross/Blue Shield Federal Employee Program, testified that Blue Cross/Blue Shield does not use the National Register as the sole basis in determining which psychologists are covered providers. Luehrs Dep. at 64, 68. Similarly, CHAMPUS does not use listing in the National Register as an essential criteria for reimbursement. See 32 C.F.R. § 119.10 (1984) (“clinical psychologist” defined).

Indeed, not one of the plaintiffs’ clients has been denied reimbursement by any third-party payor, public or private, because of plaintiffs’ non-listing in the National Register.

5. Professional Standing

It is urged that plaintiffs have suffered injury to their professional reputation and standing from non-listing in the National Register. At the same time, however, the factual basis for that claim must be judged in light of the following facts:

—colleagues have not questioned the professional reputation of plaintiffs because of non-listing;
—plaintiffs have never been denied professional credentials or employment because of non-listing, e.g., hospital privileges;
—potential patients and employers have never inquired of the plaintiffs about the non-listing; and
—plaintiffs have never been denied membership in professional organizations.

6. Competitive Advantage

Plaintiffs contend that by virtue of the listing of health care providers in the National Register, providers are not required to document their qualifications to insurance companies. In contrast, plaintiffs must document their qualifications with various independent insurers. Nonetheless, plaintiffs’ supporting documentation is only required for the first claim, that is, once the determination is made, plaintiffs are then thereafter eligible for reimbursement. See, e.g., Mundy Dep. at 141; see Callahan Dep. at 281-82; 592; Plaintiffs’ Summary Judgment Motion Exh. No. 38 at 2. Finally, plaintiffs assert that many employers require or prefer listing in the National Register. Thus, plaintiffs are allegedly denied employment opportunities.

II. LAW

A. Standard for Summary Judgment

The threshold inquiry is whether this is an appropriate case for the entry of summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be granted when

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any of material fact and that the moving party is entitled to a judgment as a matter of law.

Furthermore, under Rule 56(e), “[wjhen a motion for summary judgment is made ... an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” See Human Resources Institute of Norfolk, Inc. v. Blue Cross of Virginia, 484 F.Supp. 520, 529 (E.D.Va.1980) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)).

Admittedly, the Supreme Court has cautioned that “summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles____” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 704, 89 S.Ct. 1391, 1393, 22 L.Ed.2d 658 (1969). However, Rule 56 is not to be

“read out of antitrust cases” or that every person who files an antitrust case is entitled to “get to a jury on the basis of the allegations of [his] complaint[s], coupled with the hope that something can be developed at trial in the way of evidence to support those allegations,____”

Morrison v. Nissan Motor Co., Ltd., 601 F.2d 139, 142 (4th Cir.1979) (quoting First National Bank, 391 U.S. at 289-90, 88 S.Ct. at 1592-93); Terry’s Floor Fashions, Inc. v. Burlington Industries, Inc., 763 F.2d 604, 610 (4th Cir.1985) (“Summary judgment clearly remains, however, an appropriate procedure in antitrust litigation.”). As the Court instructed in First National Bank, without proof of “significant probative evidence tending to support the complaint,” this case may be resolved by a motion for summary judgment. 391 U.S. at 290, 88 S.Ct. at 1593; Terry’s Floor Fashions, at 610 (summary judgment dependent upon the. particular facts of the case); Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1502 (11th Cir.1985) (plaintiffs carry the burden to show “significant probative evidence of the existence of genuine issues of fact”). However, the evidence must be reviewed in the light most favorable to the plaintiffs. Adickes v. S.H. Kress and Co., 398 U.S. 144,157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

B. Section 4 of the Clayton Act: Antitrust Injury

Section 4 of the Clayton Act authorizes a private cause of action for treble damages by “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws----” 15 U.S.C. § 15 (emphasis added). Such an action requires plaintiffs to prove an injury of “the type the antitrust laws were intended to 'forestall.” Blue Shield of Virginia v. McCready, 457 U.S. 465, 486, 102 S.Ct. 2540, 2552, 73 L.Ed.2d 149 (1982) (Rehnquist, J., dissenting), citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 487-88, 97 S.Ct. 690, 696-97, 50 L.Ed.2d 701 (1977). Similarly, in affirming summary judgment below, the Fourth Circuit Court of Appeals noted in Stearns v. Genrad, Inc., 752 F.2d 942, 945 (4th Cir.1984), that “[a] violation of the antitrust laws is not compensible unless the violation has occasioned an antitrust injury.” See Shumate & Co., Inc. v. National Association of Securities Dealers, Inc., 509 F.2d 147, 152 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 97 (1975) (“injury is the sine qua non for stating a[n] [antitrust] cause of action”).

In assessing plaintiffs’ position

[i]t must be borne in mind ... there are three essential elements in every private anti-trust action: ... (1) a violation of the anti-trust law, (2) a direct injury to the plaintiff from such violations, and (3) damages sustained by the plaintiff. It follows, therefore, that a mere finding of violation does not result in liability ... [T]he crux of the action is injury, individual injury.

Windham v. American Brands, Inc., 565 F.2d 59, 65-66 (4th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978) (footnote omitted). The upshot of these decisions is that plaintiffs must prove “ 'with a fair degree of certainty’ ” that the non-listing in the National Register resulted in antitrust injury. McClure v. Undersea Industries, Inc., 671 F.2d 1287, 1289 (11th Cir.1982), cert. denied, 460 U.S. 1037, 103 S.Ct. 1427, 75 L.Ed.2d 788 (1983) (quoting Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 20 (5th Cir.), cert. dismissed, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974)). Of course, with the denial of class certification, the focus is on plaintiffs’ alleged antitrust injuries.

Here, regarding the issue of injury, plaintiffs have, as summarized earlier, alleged the following:

(1) ineligibility for licensure;
(2) loss of employment opportunities;
(3) loss of referrals;
(4) loss of third-party reimbursement for patients;
(5) loss of reputation and professional standing; and
(6) loss of unspecified professional privileges and competitive advantages.

However, these allegations simply do not wash when the plaintiffs’ own deposition testimony is perused. Generally, plaintiffs have adduced no evidence to show that they have been injured in their business or property as a result of not being listed by the Council in the National Register. Cf. Computer Identics Corp. v. Southern Pacific Co., 756 F.2d 200, 204 (1st Cir.1985) (“promotion of one’s own product and the criticism of the product of another is not in and of itself illegitimate business conduct”).

It is undisputed that plaintiffs have not been denied state licenses as psychologists, indeed, all plaintiffs are licensed in various jurisdictions. Similarly, the evidence is unequivocal that plaintiffs have never been denied third-party insurance reimbursement (See, e.g., Brigham Dep. at 287) or professional privileges, e.g., hospital privileges. See, e.g., MacHovec Dep. 258-60. Moreover, the initial paperwork, wherein plaintiffs are required to demonstrate their qualifications for insurance reimbursement, places plaintiffs in a de minimis, if at all, competitive disadvantage. See United States v. Topeo Associates, Inc., 405 U.S. 596, 606, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972) (“Insignificant” restraints on competition are not prohibited.).

Finally, for similar reasons, the record is devoid of evidence to support the allegations of lost referrals and employment opportunities. As the record reflects, plaintiffs have successful psychological practices. See, e.g., MacHovec Dep. at 99-106 (In addition to his full-time position, his private practice has grown from 52 hours in 1982 to 391 hours for the first ten months of 1984). Beyond this, plaintiffs Hausman, Brigham, and Callahan rely on the “potential” referrals lost due to their exclusion from the DCPA referral service. However, since listing in January, 1984, and ending in October, 1984, the referral service has not generated a single patient for the plaintiffs. In light of this evidence, the allegations of lost referrals are speculative and overstated. Kreuzer v. American Academy of Periodontology, 735 F.2d 1479, 1495 (D.C.Cir.1984) (“significant evidence,” “something more than naked assertions and broad generalities” must be shown to defeat motions for summary judgment) (citations omitted).

Similarly, the argument of lost employment is again unavailing. To begin with, plaintiffs’ deposition testimony clearly demonstrate that plaintiffs have not been denied employment because of non-listing. See, e.g., Brigham Dep. at 286-87. At the same time, however, plaintiffs allege injury because a few employers require listing in the National Register as a necessary qualification for employment. See Plaintiffs’ Summary Judgment Motion Exh. No. 64. Standing alone, of course, it is insufficient to show antitrust injury. Like the remaining qualifications, the prospective employer has deemed it advisable to hire psychologists who satisfy the criteria for listing. In this sense, eligibility for listing in the National Register obviates the need to set forth a detailed list of similar qualifications. However, be it listing or eligibility for listing, it is apparent that the prospective employer has shown a preference in the market place as to the desirability of a candidate with specific psychological training and experience. National Collegiate Athletic Association v. Board of Regents of University of Oklahoma, — U.S.—, 104 S.Ct. 2948, 2964, 82 L.Ed.2d 70 (1984) (market responsive to consumer preference). We cannot distinguish these circumstances from any other prospective employer-employee relationship, and without proof that the National Register itself has occasioned an antitrust injury, this claim is mere conjecture.

Accordingly, under this record, this court is unable to parse the requisite antitrust injury for a Clayton Act § 4 private cause of action. Cf. Amey, Inc., 758 F.2d at 1503 (“In the absence of conduct causing a restraint of trade ..., an individual has unfettered discretion in deciding with whom he will do business.”) (citations omitted). Thus, summary judgment is appropriate. See Stearns, 752 F.2d at 945-46 (summary judgment appropriate absent any injury).

C. Section 16 of the Clayton Act: Injunctive Relief

Plaintiffs have sought additional relief under Section 16 of the Clayton Act which provides for a private cause of action for injunctive relief to “[a]ny person, firm, corporation, or association ... against threatened loss or damage by a violation of the antitrust laws____” 15 U.S.C. § 26. The focus of § 16 is the “threatened loss or damage” resulting from the antitrust violation. Weiss v. York Hospital, 745 F.2d 786, 829 (3rd Cir.1984), petition for cert. filed, — U.S. —, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985). Specifically, to be entitied to injunctive relief, plaintiffs “need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur” that proximately resulted from defendants’ putative antitrust violations. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969); see ABA Antitrust Section, Antitrust Law Developments (2d ed. 1984) at 404 and cases cited therein at n. 164.

In assaying the legal sufficiency of the alleged “significant threat of injury,” we are persuaded by plaintiffs’ inability to cite to any contemporaneous damages from which a reasonable inference of future damages could be drawn. Given plaintiffs’ licensure, eligibility for insurance reimbursement, successful private practices, and professional credentials, there is good reason to conclude that a § 16 “significant threat” has not been shown.

D. Section 1 of the Sherman Act-Conspiracy

Section 1 of the Sherman Act requires proof of a “contract, combination, ... or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. In addition to proof of a conspiracy, plaintiffs must show:

(1) that the conspiracy produced adverse, anti-competitive effects within the relevant product and geographic market;
(2) that the objects of and conduct pursuant to the conspiracy were illegal; and
(3) that the plaintiff was injured as a proximate result of the conspiracy.

Terry’s Floor Fashions, at 610 n. 10, citing Davis-Watkins Co. v. Service Merchandise, 686 F.2d 1190, 1195-96 (6th Cir. 1982), cert. denied, — U.S. —, 104 S.Ct. 1718, 80 L.Ed.2d 190 (1984). As the Court of Appeals for the Fourth Circuit observed in Terry’s Floor Fashions, “[c]oncerted action is the essence of a Section 1 claim.” at 610-611. Indeed, the same Court noted “the well-settled rule that Section 1 does not proscribe independent action.” Id. at 611, citing Monsanto Co. v. Spray-Rite Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984).

Plaintiffs must prove that each defendant had a “conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co., 104 S.Ct. at 1473 (quoting Edward J. Sweeney & Sons, Inc., v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981)); American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946) (“a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement”). At the same time, however, “direct proof of an express agreement is not required” and plaintiffs may rely on circumstantial evidence, such as inferences gleaned from the alleged co-conspirators behavior. Terry’s Floor Fashions, at 611 (quoting Edward J. Sweeney & Sons, Inc., 637 F.2d at 111). The parties agree that under the foregoing parameters, plaintiffs must show evidence of either an agreement, common scheme, control or coercion exercised to achieve an unlawful objective. See, e.g., Kreuzer, 735 F.2d 1479 (D.C.Cir. 1984); Hester v. Martindale-Hubbell, Inc., 659 F.2d 433 (4th Cir.1981), cert. denied, 455 U.S. 981,102 S.Ct. 1489, 71 L.Ed.2d 691 (1982); Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476 (4th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981). However, as the Supreme Court recognized in Maple Flooring Manufacturers Association v. United States, 268 U.S. 563, 584, 45 S.Ct. 578, 585, 69 L.Ed. 1093 (1925), the mere exchange of information is insufficient to prove a conspiracy. See, e.g., Kreuzer, 735 F.2d at 1487.

Plaintiffs offer three salient areas of proof in support of their conspiracy allegation, namely, the National Register was established at the direction of the APA, members of the Council were (and are) APA officials and the APA has promoted the National Register as a source of “qualified psychologists.”

To begin with, the Council was created by the American Board of Professional Psychology (“ABPP”), an independent organization not affiliated with the APA. Wellner Dep. at 25-26; Wellner Aff. at ¶ 4. Although the ABPP acted upon the request of the APA, the ABPP was free to reject the request, indeed, it cannot be concluded that the APA established the National Register. Moreover, the evidence is clear that the APA has had no hand in the election of the initial and subsequent Board of Directors. Saah Aff. at 1121; Zimet Dep. at 51; Wellner Dep. at 25-26.

It is undisputed that some members of the Council’s Board of Directors were (and are) APA officials. Notwithstanding the contacts with the APA, plaintiffs must prove “concerted action,” not mere guilt by association. Indeed, it seems reasonable and plausible that the APA with over 50,-000 members and fellows, fewer than 14,-500 of whom are listed in the National Register, would deem it prudent and consistent with its professional responsibility to have representation on the Board. Saah Aff. at 1119; Kreuzer, 735 F.2d at 1488 (“explanation [by defendants] is plausible and more logical than a theory of concerted action”). In contrast, many of the APA’s Chief Officers are licensed psychologists, but are not listed in the National Register. Saah Aff. at ¶ 20. Moreover, professional involvement in the governance of multiple organizations is arguably quite common in the learned professions.

Contrary to the suggestion by plaintiffs that the consultation between the Council and the APA raises an inference of a conspiracy, this court, like the court in Kreuzer,

will not infer a conspiracy to violate the antitrust laws based on a showing of regular contact between two independent professional associations on general matters of mutual interest and concern. This is the very, purpose and nature of professional associations and this court will erect no barriers to accomplishment of this absent much more substantial evidence of a conspiracy to restrain trade than'that adduced here.

735 F.2d at 1488-89. Similarly, the District Court in Virginia Academy of Clinical Psychologists, while noting the close cooperation between Blue Shield of Virginia and the Neuropsychiatric Society of Virginia (“NSV”), concluded:

Though prior inquiry, consultation, and negotiation clearly took place, no contract was entered into, no combination formed, and no conspiracy existed. Section 1 of the Sherman Act does not prohibit a business entity which needs information and advice from obtaining information and advice from other knowledgeable business entities. The operation of a medical insurance plan would be, for all practical purposes, impossible of [sic] consultation and cooperation with provider groups were barred.

624 F.2d at 479 (quoting Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 469 F.Supp. 552, 559 (E.D.Va.1979)). For similar reasons, the Fourth Circuit affirmed the District Court’s ruling noting no control had been shown and “[i]t was not illegal for NSV ... to make recommendations aimed at persuading Blue Shield to adopt its proposal ... absent some form of coercion.” Virginia Academy of Clinical Psychologists, 624 F.2d at 483. Here, as in Kreuzer and Virginia Academy of Clinical Psychologists, plaintiffs have failed to establish that the APA members controlled or were able to coerce the Council into an agreement to achieve the alleged concerted refusal to deal and boycott.

Finally, plaintiffs rely on the APA’s “promotion” of the National Register as evidence of the alleged conspiracy. It is true that the APA has made favorable references to the National Register as a source of psychologists in the health care services, however, there is no evidence to suggest that the APA promoted the National Register as the primary source of qualified psychologists. See, e.g., Saah Aff. Exh. B [“Psychotherapy and Psychologists” pamphlet]. More importantly, there is no proof that the APA’s “promotion” of the National Register was of such a quantum that the APA could have wielded control over the National Register. Here, the Fourth Circuit’s opinion in Martindale-Hubbell is instructive. If the American Bar Association’s certification of “reputable” law lists or legal directories and Martindale-Hubbell’s compliance with the ABA procedure “lies beyond the pale of even the most liberal extension of the concept of concerted activity,” we are hard pressed to find it here. 659 F.2d at 436. Indeed, “[plaintiff’s conclusion or speculation as to existence of a conspiracy, without more, is not sufficient to establish a Section 1 violation.” Terry’s Floor Fashions, at — (quoting Terry’s Floor Fashions, Inc. v. Burlington Industries, 568 F.Supp. 205, 210 (E.D.N.C.1983)). Thus, the essential element that animates today’s ruling is that the defendants acted independently and in keeping with their professional obligations to consult with other associations in matters of mutual concern and interest.

E. Restraint of Trade: Per Se v. Rule of Reason

Again, assuming, arguendo, the existence of the foregoing elements of a Section 1 of the Sherman Act cause of action, § 1 proscribes only unreasonable restraints of trade. National Collegiate Athletic Ass’n., — U.S. —, 104 S.Ct. at 2959. For this court to assess the restraint of trade, plaintiffs must render proof of the “anti-competitive effects within the relevant product and geographic market.” Terry’s Floor Fashions, at 610 n. 10. The issue that remains is whether the putative anti-competitive practices are judged under a per se or rule of reason analysis. National Society of Professional Engineers v. United States, 435 U.S. 679, 691-92, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1981).

Specifically, plaintiffs have alleged a group boycott and concerted refusal to deal, which would, if found, dictate a per se analysis. See, e.g., Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed.2d 358 (1961); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). Not unexpectedly, defendants claim that the National Register should be judged under a rule of reason analysis. See, e.g., Kreuzer, 735 F.2d at 1492.

Whether a particular activity falls within a per se or rule of reason analysis is hardly clear. As the Supreme Court candidly confessed in Northwest Wholesale Stationers, Inc. v. Pacific Stationery and Printing Co., “ ‘[t]here is more confusion about the scope and operation of the per se rule against group boycotts than in reference to any other aspect of the per se doctrine.’ ” — U.S. —, —, 105 S.Ct. 2613, 2619, 86 L.Ed.2d 202 (1985) (quoting L. Sullivan, Law of Antitrust, 229-30 (1977)). The Court went on to state:

A plaintiff seeking application of the per se rule must present a threshold case that the challenged activity falls into a category likely to have predominately anticompetitive effects. The mere allegation of a concerted refusal to deal does not suffice because not all concerted refusals to deal are predominately anticompetitive.

Id. at —, 105 S.Ct. at 2621 (emphasis added). After citing the authority in which a per se approach had been applied, the Court summarized the per se categories to include the following:

In these cases, the boycott often cut off access to a supply, facility, or market necessary to enable the boycotted firm to compete ..., and frequently the boycotting firms possessed a dominant position in the relevant market____ In addition, the practices were generally not justified by plausible arguments that were intended to enhance overall efficiency and make markets more competitive____ Although a concerted refusal to deal need not necessarily possess all of these traits to merit per se treatment, not every cooperative activity involving a restraint or exclusion will share with the per se forbidden boycotts the likelihood of predominately anticompetitive consequences.

Id. at —, 105 S.Ct. at 2619 (citations omitted).

After examining the foregoing conclusions and the applicable criteria, this Court’s determination is relatively easy. It is beyond peradventure that the defendants’ acts have not “cut off access” to the health care services market. Plaintiffs have received and in all likelihood will continue to receive third-party insurance reimbursement and referrals from colleagues.

Although plaintiffs’ failure to define the relevant market becomes problematical, the Fourth Circuit in Virginia Academy of Clinical Psychologists observed that “psychologists and psychiatrists do compete; indeed it is susceptible to judicial notice.” 624 F.2d at 485. In addition, the relevant market would, arguably, include counselors, psychotherapists, state licensed (non-listed) psychologists, and psychiatric social workers. To be sure, all 13,500 psychologists listed in the National Register do not compete in the same local market. Given the competition among the providers of psychological services, it can not be concluded, and nor has the plaintiffs proven, that defendants “possessed a dominant position in the relevant market” or had “the ability to raise prices above those that would be charged in a competitive market.” National Collegiate Athletic Ass’n., — U.S. —, 104 S.Ct. at 2965 n. 38; Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 1566 n. 16, 80 L.Ed.2d 2 (1984); Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Ass’n., Inc., 672 F.2d 1280, 1287 (7th Cir.1982) (“[Mjembership restrictions by trade organizations not possessed of significant economic or operational leverage are more appropriately evaluated according to the standards of the rule of reason.”).

Likewise, defendants have offered “plausible arguments” that would justify the National Register through enhancement of market efficiency and competition. For example, the Supreme Court has long held that the dissemination of information to consumers has a presumptively pro-competitive effect on the market. Maple Flooring Mfrs.’ Ass’n., 268 U.S. at 582-83, 45 S.Ct. at 586; Cement Mfrs.’ Protective Ass’n v. United States, 268 U.S. 588, 604, 45 S.Ct. 586, 591, 69 L.Ed. 1104 (1925). Here, the National Register serves just such a function. With the inherent limitations of state generic licensure of psychologists, namely, clinical, counseling, school, and industrial/organizational psychologists are similarly licensed, the National Register fills a void by identifying psychologists that have specific training and experience in health care services. See, e.g., Wellner Dep. at 113-14. The National Register affords consumers, including health plans and fellow mental health providers, access to accurate information which may form the basis of independent decision making in the marketplace. Reiter v. Sonotone Corp., 442 U.S. 330, 343, 99 S.Ct. 2326, 2333, 60 L.Ed.2d 931 (1979) (“Congress designed the Sherman Act as a consumer welfare prescription”); see Safecard Services, Inc. v. Dow Jones & Co., Inc., 537 F.Supp. 1137, 1146 (E.D.Va.1982), aff’d, 705 F.2d 445 (4th Cir.), cert. denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111 (1983) (“[I]t is an article of national faith that on balance the free flow of truth and reasoned opinion enhances competition”) (emphasis original).

Under these circumstances, plaintiffs’ per se argument is clearly unpersuasive. It is undeniable that plaintiffs have failed to make the threshold showing of “predominately anticompetitive effects.” Northwest Wholesale Stationers, — U.S. at —, 105 S.Ct. at 2621. This is hardly a case of a paradigmatic group boycott or concerted refusal to deal in which price and output are restrained. Indeed, as more fully explicated below, there is no evidence that either have been effected by the publication of the National Register. This court may only invoke per se rules, with the presumption of anticompetitive effects, “when surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination of the challenged conduct.” National Collegiate Athletic Ass’n., — U.S. —, 104 S.Ct. at 2962 (footnote omitted). Accordingly, when, as in this case, the “likelihood of anticompetitive conduct” is de minimis, a rule of reason analysis is dictated. See, e.g., Kreuzer, 735 F.2d at 1492; Virginia Academy of Clinical Psychologists, 624 F.2d at 484; Ratino v. Medical Services of District of Columbia (Blue Shield), 718 F.2d 1260, 1271-72 (4th Cir.1983).

Having established that a rule of reason analysis is applicable, it is then employed “to form a judgment about the competitive significance of the restraint.” National Society of Professional Engineers, 435 U.S. at 692, 98 S.Ct. ac 1365. Any injury, however, is “confined to a consideration of impact on competitive conditions.” Id. at 690, 98 S.Ct. at 1364; National Collegiate Athletic Ass’n., — U.S. —, 104 S.Ct. at 2962 (“Under the Sherman Act the criterion to be used in judging the validity of a restraint on trade is its impact on competition.”) (footnote omitted); Terry’s Floor Fashions, at 610 n. 100.

Having already decided that plaintiffs have not incurred antitrust injury and that the rule of reason is applicable, the sole issue that remains is whether defendants’ conduct resulted in anticompetitive consequences in the mental health services market. In assessing the competitive impact and for the sake of brevity, this court adopts its previous findings as applicable, e.g., plaintiffs and other non-listed psychologists have open access to third-party insurance reimbursement. The corollary of this court’s finding is that the National Register is not anticompetitive, indeed, it may enhance marketwide competition. Northwest Wholesale Stationers, — U.S. at —, 105 S.Ct. at 2619 (“enhance overall efficiency and make markets more competitive”).

Under the Federal Employees Health Benefits Program, 5 U.S.C. § 8901, et seq. (1967 & Supp.1985), and CHAMPUS, 10 U.S.C. §§ 1071-1092 (1983 & Supp.1985), an insured is entitled to reimbursement for services provided by “clinical psychologists.” Whether a mental health service provider is a “clinical psychologist,” is left to the determination of insurance companies, such as Blue Cross/Blue Shield and Aetna. Eligibility determinations necessitated an individual analysis of “professional data forms” submitted by each prospective psychologist provider. See, e.g., Mundy Dep. at 131, 141. As a practical matter, because of the costs and time' associated with the process, Blue Cross/Blue Shield and Aetna opted to use the National Register as a non-exclusive source of information in making some eligibility determinations. See, e.g., Luehrs Dep. at 27-28.

Thus, there is good reason to believe that the National Register enhances efficiency by expediting the adjudication of claims while not impeding the non-listed psychologist’s access to the insurance market. Luehrs Dep. at 23.

Finally, the same study reflects that the National Register has expanded the existing pool of eligible psychologists by approximately 3.8%. Mundy Dep., Plaintiffs’ Exh. 170. The grandperson provision of the National Register criteria, in effect, added psychologists to the competitive pool who prior to the inception of the Register were ineligible for insurance payment. Id. In addition, with listing in the National Register, counseling and school psychologists have been put in parity with clinical psychologists as recognized providers of mental health services. Saah Aff. at 11 30. In short, the evidence suggests that the National Register has increased the eligible pool of “clinical psychologists,” and hence is pro-competitive.

V. Conclusion

The National Register serves the public interest in efficiently disseminating information to the marketplace with respect to the training and experience of health care providers. The actions taken by the Council and the APA do not constitute a group boycott or concerted refusal to deal. Plaintiffs’ allegations and “proof” have not even remotely approached the watershed tests of the applicable authority. Accordingly, Summary Judgment is granted in favor of defendants Council and APA.

An appropriate Order shall issue.

      . Plaintiffs attempted to bring a class action suit; however, on December 3, 1984, Judge R.L. Williams of this court denied their Motion for Class Certification.

      . A psychologist admitted under the "grandperson” clause of criteria (4) was generally required to satisfy the first three criteria.

      . Similar guidelines have been adopted by the American Association of State Psychology Boards, American Board of Professional Psychology, APA, and the Council for Graduate Departments in Psychology. Wellner Aff. at ¶ 27.

      . In the case of Dr. Brigham, a request or demand is not necessary to establish an antitrust injury when, as here, the request would be futile. Ostrofe v. H.S. Crocker Co., Inc., 740 F.2d 739, 743-44 (9th Cir.1984), petition for cert. filed, — U.S. —, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985) cert. dismissed, 53 U.S.L.W. 3620 (U.S. Feb. 26, 1985).

      . The following testimony from Dr. Hausman's deposition is illustrative of this finding:
      (Q) Have you ever been turned down for any employment whatsoever because of your not being listed in the National Register?
      (A) No.
      Dep. at 322.

      . The National Register states in its preface, "The List is not, nor does it claim to be inclusive of all psychologists who meet the criteria. It is not designed to, nor does it purport to, evaluate the quality or competence of persons listed or the services provided by anyone listed or not listed in the Register.” See Wellner Dep. at 601.

      . Personal injuries such as injury to reputation or standing are not cognizable under antitrust laws. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979). Beyond this, the record reflects that plaintiffs are members of the APA and have received, except for listing in the National Register, every credential for which they have applied. See, e.g., Hausman Dep. at 51, 53; Brigham Dep. at 179-80.

      . For example, the evidence suggests a significant dispute between the Council and the APA with respect to the proper procedure in arriving at a definition of a “doctorate degree in psychology.” See, e.g., Kilburg Dep. at 56-70, 78-80, 370.

      . At arriving at this conclusion, we are persuaded by the deposition testimony of various insurance company representatives. For example, the following colloquy is telling.
      Q Did you intend plans implementing [Federal Employee Program] to use the National Register as a sole basis for determining eligibility?
      A No. I think I say that in that memo.
      Q Did you ever tell anyone from any of the plans across the country to use the National Register as the sole basis for eligibility?
      A No. In fact, we never told them to use it. We told them that it was available. We never told them .that they had to use it.
      Q To your knowledge, did any of the plans use the National Register as the sole basis for determining eligibility to be a provider?
      A Not to my knowledge.
      Q Did you in your capacity ever hear of a psychologist being denied reimbursement under the Blue Cross FEP because he or she was not listed in the National Register?
      A No.
      Luehrs Dep. at 68.

      . In an Aetna Report dated November 15, 1977, Mr. Mundy found that a "significant savings in terms of credentials review” would result from the use of the Register. Mundy Dep., Plaintiffs’ Exh. 170.


author: EGINTON, District Judge.

text:
    UNITED STATES of America v. Mike RODRIGUEZ, Jr., William Donlan, Anthony Vessichio, Jose Cordero, Fernando Diosa, Maria Saida Bermudez, Leonel Gomez, Michael A. Rodriguez, Sr., Anthony Lanziero, and Israel Arce.
    No. CR B 84-61.
    United States District Court, D. Connecticut.
    July 3, 1985.
    Holly Fitzsimmons, Linda K. Lager, James T. Cowdery, Bridgeport, Conn., for Government.
    Hugh F. Keefe, New Haven, Conn., J. Daniel Sagarin, Milford, Conn., Charles Hanken, Bridgeport, Conn., Morris I. 01-mer, William Dow, III, New Haven, Conn., Frank Antollino, East Haven, Conn., Richard Reeve, Richard N. Palmer, Hartford, Conn., Ira Grudberg, Jonathan Einhorn, New Haven, Conn., for defendants.
   RULING ON MOTION TO REOPEN AND RECONSIDER

EGINTON, District Judge.

Defendants William Donlan, Anthony Yessichio, Michael A. Rodriguez, Sr., Mike Rodriguez, Jr., and Fernando Diosa are charged with conspiracy to possess cocaine with the intent to distribute. The court granted the defendants’ motion to suppress all intercepted wire and oral communications and evidence derived from such communications, in a ruling filed on June 20, 1985 (“Ruling”), 612 F.Supp. 718.

The government now moves the court to reopen and reconsider its suppression ruling. The court has RECONSIDERED its ruling, and ADHERES to its earlier decision, for the reasons set forth below. The court has examined the government’s offer of proof, and concludes that the evidence which the government seeks to introduce would not alter the legal bases of the court’s suppression ruling. Accordingly, the government’s motion for additional evidentiary hearings is DENIED.

The wiretap evidence of this case was suppressed because the court found that the government violated the sealing and delivery provisions of 18 U.S.C. 2518(8)(a). The court based its decision on several findings of fact and conclusions of law. The government now moves to introduce evidence concerning two factual issues: (1) the supervising Assistant United States Attorney’s extensive preparation for another trial during the period of the sealing delay, and (2) the security procedures used to protect the tapes against tampering.

The Government’s Preparatioin for Another Trial

The supervising Assistant United States Attorney (“AUSA”), Holly Fitzsimmons, has submitted an affidavit describing all her activities during the two week period of delay, from September 5 to September 14, 1984. The court will address the relevant portions of the affidavit.

The affidavit states that the wiretap “ended unexpectedly on September 4, 1984.” The court finds this to be factually incorrect. The order authorizing the wiretap provided for an interception of only 30 days. Government Exhibit (“Gov.Ex.”) 1A. As the wiretap began on August 6, 1984, it was due to end no later than September 5. The September 4th ending therefore could not have been “unexpected.”

The affidavit also describes two things which Fitzsimmons “thought needed to be done before we could appear” for the judicial sealing of the tapes. Fitzsimmons affidavit (“AUSA aff.”) par. 13. These two items were writing a final report to the issuing judge, and arranging for a qualified lay translator to transcribe back-up copies of the tapes.

The wiretap statute, 18 U.S.C. 2518(8)(a), does not require any reports to be filed before tapes may be judicially sealed. Instead, it requires that the sealing take place “[¡Immediately upon the expiration of the period of the [wiretap] order____” Additionally, the court notes that the original tapes were not needed for the translator’s transcriptions. Ruling at 19-20.

The court does not find that the statute justifies a delay in sealing in order to complete a judicial report or arrange for a translator.

The principal reason for the government’s failure to seal the tapes from September 5 to September 14, according to the affidavit, was that Fitzsimmons’ time was taken in preparing for a multiple defendant criminal trial which commenced on September 17.

The court notes that there has been no claim that the September 17 date was set on short notice. And as earlier discussed, the September 4 end of the wiretap was expected by the government. The scheduling difficulties which arose could not have come as a surprise.

The rationale of the court’s suppression ruling would not be affected by proof of Fitzsimmons’ extensive preparation for her September 17 trial. The suppression ruling noted that a second AUSA, Linda Lager, finally arranged for and attended the judicial sealing. The court concluded that “Lager’s substitution points out that there was never a cause for delay.” Ruling at 39.

Fitzsimmons’ affidavit describes Lager’s scheduling conflicts during the delay period. Yet the affidavit also states that an AUSA from another office handled an arraignment on the case, when it was necessary. AUSA aff. par. 18. The court notes the testimony of the government’s sole witness, that it is acceptable practice for a Drug Enforcement Administration (“DEA”) agent to turn to any AUSA if the supervising AUSA on a matter, such as Fitzsimmons, is not available. Transcript of January 31, 1984 (“Tr. II”) 193-94.

In assessing Fitzsimmons’ affidavit, the court relies on the cautionary dicta of United, States v. Vazquez, 605 F.2d 1269 (2d Cir.1979), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979).

However, in law as in life, today’s satisfactory explanation may very well be tomorrow’s lame excuse. As the federal and state case law in this area grows, the failure to foresee and, where possible, prevent sealing delays becomes less justifiable, as law enforcement officials must be expected to learn from their own experiences and those of others. The wiretap statute imposes a duty on the judiciary as well as on the prosecutor.

Id. at 1280.

The court adheres to its initial conclusion that Lager, or another AUSA, could have substituted for Fitzsimmons and accompanied the DEA agent at the judicial sealing, if Fitzsimmons’ schedule did not permit her to attend.

Fitzsimmons’ affidavit notwithstanding, the circumstances of this ease show that the delay was caused by the government’s failure to act with the diligence required by Vazquez, 605 F.2d at 1279. Fitzsimmons’ trial preparation cannot excuse the 14 day delay. See United States v. Angelini, 565 F.2d 469, 472 (7th Cir.1977) (“a satisfactory explanation is one in which the Government shows that it acted with dispatch and all reasonable diligence to meet the sealing requirement”).

Security of the Tapes

The government’s explanation for its delay is not the only factor to be addressed when considering a claim made under section 2518. Under United States v. McGrath, 622 F.2d 36, 42 (2d Cir.1980), the court must also examine the length of the delay, evidence of tampering, the time required to prepare the tapes for sealing, and whether the defendants were prejudiced by the delay.

The suppression decision concluded that the 2 week delay at issue was so serious that it required a scrupulous examination of the government’s explanation. Ruling at 40, see also Ruling at 36-37; Vazquez, 605 F.2d at 1278 (a sealing after 1 or 2 weeks is not “immediate,” as required by the wiretap statute). Nor did the court find that the delay was mitigated by time needed to prepare the tapes, for no duplication or administrative processing was required. Ruling at 40.

Significantly, the court found that the sealing delay did not prejudice the accused in their defense. The court also found that the immediate heat sealing and other precautions taken by DEA agent Barry P. Abbott virtually ensured the tapes that he sealed against tampering. Ruling at 42.

The court noted, however, that Abbott sealed only about 5 of the 26 tapes at issue. The rest were in the custody of Agent Jane Giandana. The government presented no evidence during the suppression hearings as to the procedures followed by Giandana. The court therefore could not find that the 21 tapes in Giandana’s custody were “adequately protected against tampering.” Ruling at 42.

Agent Giandana has now submitted an affidavit which indicates that her security procedures offered the same protection as those of Agent Abbott’s. Nonetheless, even if the court were to find that all the tapes were virtually ensured against tampering, the rationale of its suppression decision would not change.

The Second Circuit has consistently held that “section 2518 was not intended to bar use of wiretaps only when the defendant can show prejudice or present evidence of tampering or other governmental bad faith.” McGrath, 622 F.2d at 43, see also United States v. Gigante, 538 F.2d 502, 505 (2d Cir.1976) (to demand a showing of tampering “would vitiate the Congressional purpose in requiring judicial supervision of the sealing process”).

In addition, the Second Circuit has repeatedly ruled that “unilateral ‘sealing’ of the tapes by the investigators themselves, outside the presence of the court ... [does] not substitute for the presence of a ‘seal provided for by this subsection’ ” [emphasis in original] [citations omitted], Vazquez, 605 F.2d at 1278 n. 20. See also Gigante, 538 F.2d at 506 (government sealing procedure was inadequate because it was not “provided for by this subsection,” as 18 U.S.C. 2518(8)(a) requires [emphasis in original]).

This court must balance the security of the tapes against the explanation offered for the government’s delay. McGrath, 622 F.2d at 42-43. Having done so, the court adheres to its initial ruling, and concludes that the absence of tampering or prejudice to the defendants does not outweigh the government’s lack of diligence, and the length of the delay. Ruling at 42.