trueEX, LLC v. MarkitSERV Ltd.

MEMORANDUM OPINION

This matter is before the Court on trueEX’s and truePTS’s (collectively, “plaintiffs”) motion for a preliminary injunction to prevent MarkitSERV Limited and MarkitSERV, LLC (collectively, “MarkitSERV”) from barring plaintiffs’ ac*709cess to certain of MarkitSERV’s technology and software.

Facts

This case centers around a business’relationship between two entities operating in the world of interest rate swaps (“IRS”), a type of financial derivative.

I. The Swaps Here at Issue

A. The Basics

The term'“derivative,” as it is used in today’s financial world, refers to a financial instrument that derives its value from the price of an underlying instrument or index. Among the different types of derivatives are swaps, instruments whereby two coun-terparties agree to exchange cash, flows on two financial instruments over a specific period of time.1 These are (1) a “reference obligation” or “underlying asset” such as a security, a bank loan, or an index, and (2) a benchmark loan, generally with an interest rate set relative to a commonly used reference rate such as the London Inter-Bank Offered Rate (“LIBOR”).2

B. Interest Rate Simps

An IRS is a particular form of swap.3 Typically, it “is a transaction between two counterparties in which one stream of future interest payments [on a notional debt obligation] is exchanged for another” such stream on the same notional amount.4 Often, the counterparties in a swap transaction are a corporation, a bank or an investor on one side (the “buy side”5) and an investment or commercial bank, or other financial institution, on the other side (the “dealer”6).7 Additionally, there are many “dealer to dealer” trades that do not involve buy-side customers.

In the most common type of IRS swap, Counterparty A pays a fixed interest rate to Counterparty B which, in return, pays a floating interest rate based on a benchmark such as LIBOR.8 For example, Counterparty A and Counterparty B enter into a five-year swap with the following terms: Counterparty A agrees to pay Counterparty B an amount equal to 6 percent per annum on a notional principal of $20 million, and Counterparty B agrees to pay Counterparty A an amount equal to one-year LIBOR plüs 1 percent per an-num on the same notional principal amount. For simplicity, let us assume the counterparties exchange payments annually on December 31, beginning in 2017 and concluding in 2021. At the end of 2017, Counterparty A will pay Counterparty B $1,200,000 (ie., $20,000,000 x 6 percent). Let us assume further that on December 31, 2016, one-year LIBOR was 5.33 percent. At the end of 2017, then, Counterparty B will pay Counterparty A $1,266,000 (ie., $20,000,000 x (5.33 percent -I- 1 percent)). Nor are “fixed for floating” IRS the only varieties. There are many others.

*710 II. The Impact of Dodd-Frank

Until the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”), IRS traded in unregulated over-the-counter (“OTC”) markets. Most IRS were traded on a bilateral, principal-to-principal basis with the ultimate counterparty being the entity with which the trade was executed. Many trades were intermediated by brokers. Dodd-Frank, however, introduced new regulatory requirements with the goal of increasing transparency in the OTC derivatives markets.

A. Swap Execution Facilities

In Dodd-Frank, Congress mandated that certain IRS trade only on platforms called swap execution facilities (“SEFs”).9 In response, many trade execution platforms sought to and did register as SEFs in order to. fill the new role created by Dodd-Frank. An SEF is a trading platform regulated by the Commodity Futures Trading Commission that provides pre-trade information (¿a, bids and offers) and an execution mechanism for swap transactions. A buy-side participant can use an SEF to transmit to multiple dealers on the platform requests for quotes of offers to sell IRS having particular terms. If the buy-side participant finds a willing dealer, the SEF provides a mechanism for the parties to execute their trade. There are three major SEFs that deal in IRS: Tra-deWeb, Bloomberg, and trueEX.10

Dodd-Frank requires that IRS that must be traded on SEFs be “cleared,” i.e., “submitted to a central counterparty clearinghouse that functions as an intermediary between buyer and seller to reconcile transactions and reduce risk.”11 In a cleared transaction, a clearinghouse steps between the counterparties — effectively becoming the buyer to the original seller and the seller to the original buyer. It processes the transaction, guarantees completion, and remains a part of the trade throughout its life cycle.12 In the United States, the major clearinghouses are CME Group and London Clearing House.

Dodd-Frank requires also that SEFs report trade pricing and volume information to swap data repositories (“SDRs”), which provide central facilities for swap data reporting and recordkeeping.13 SDRs enable market participants to see trading data for all executed trades, which promotes transparency in the market. The largest SDR in the United States is the Depository Trust and Clearing Corporation (“DTCC”).

B. Trade Processing

After two counterparties agree upon an IRS trade that is required to be cleared, details about that trade must be reported to four entities in compliance with Dodd-Frank: the clearinghouse that clears the trade, the two counterparties to the trade, and the SDR. Completion of that reporting is a key aspect of a process known as trade processing.14 In addition to reporting IRS trades to clearinghouses and SDRs, trade processing encompasses such tasks as “matching ... buyer and seller records, *711confirming the terms of trades, allocating aggregated trades among a client’s different sub-accounts, and managing other life-cycle events such as trade amendments, assignments, and payments.”15 The large majority of IRS post-trade processing is handled by MarkitSERV.

Ill MarkitSERV

MarkitSERV is an electronic trade confirmation network for OTC derivatives.16 It provides trade processing for “OTC derivative transactions across all major asset classes, including credit, equity, foreign exchange and interest rates products, including [IRS].”17 MarkitSERV does not, however, offer trade execution services.18 Rather, parties execute OTC derivative trades on other platforms, such as SEFs, and those platforms in turn send the transaction details to MarkitSERV for trade processing.19 MarkitSERV’s clients include “asset managers, hedge funds, pension funds, fund administrators, dealers and inter-dealer brokers, prime brokers and futures commissions merchants,” as well as clearinghouses, six reporting agencies, and thirteen SEFs.20

A. Formation of MarkitSERV

MarkitSERVs predecessor, SwapsWire Limited, was formed in 2000 by a consortium of leading dealer banks as an electronic trade confirmation network for the OTC derivatives market.21 The dealers made significant investments in the network infrastructure to enable their systems to communicate with SwapsWire. In 2008, IHS Markit (“Markit”), a global information and services company, acquired SwapsWire and renamed it MarkitWire.22 In 2009, Markit and DTCC “combined MarkitWire and DTCC’s Deriv/SERV business to form a joint venture called MarkitSERV to provide OTC derivative trade processing.”23 Four years later, Markit purchased DTCC’s share of the joint venture.

B. MarkitSERV’s Dominant Market Position

MarkitSERV is the sole provider of IRS trade processing for (1) IRS transactions between dealers, (2) cleared, direct trades that are not required to be traded on SEFs, and (3) uncleared swaps (a limited category of IRS that need not be cleared).24 Together, those three categories “make up approximately 92% of the overall IRS market, based on the notional values of trades.”25

MarkitSERV concedes for this motion only that IRS trade processing is a relevant market for antitrust purposes26 Its market share is depicted in Figure 1.

*712[[Image here]]

Thé only transactions for which Markit-SERV does- not control every step of post-trade processing are trades between dealers and buy-side customers that are executed on the SEFs operated by Bloom-berg, TradeWeb, and trueEX.27 Even for trades executed on SEFs, however, most market participants rely on MarkitSERV’s trade processing method (discussed below) to ensure that their books and records are accurate and up-to-date.

C. How MarkitSERV Processes Trades

When customers choose MarkitSERV to perform trade processing, MarkitSERV “will simultaneously submit the trade to the clearinghouse for intermediation, to the two counterparties!!,] and to the SDR using an automated workflow- called ‘straight-through-processing’

[ (“STP”) ].”28 In order to process trades using STP, MarkitSERV has established direct communication lines to and application program interfaces (“APIs”)29 with its customers to facilitate “real-time updates of market participants’ books and records.” 30 STP ensui’es that market partici*713pants’ books and records “reflect current financial and risk exposures.”31 For that reason, “STP facilitation is vital to dealers and buy-side clients.”32 Over the fourteen years MarkitSERV has existed, it has set up some manner of direct connection to “hundreds of dealers and close to 2,000 buy side customers.”33

In addition to its . own trade-processing services, MarkitSERV facilitates SEFs’ trade processing through a “drop copy” workflow. For example, if a customer executes a trade on an SEF, it' in some circumstances may elect to have the SEF process that trade too. When the customer chooses -to use the SEF for trade processing, the SEF “delivers the trade details directly to the clearinghouse and SDR, and simultaneously gives (or ‘drops’) a copy of the trade to MarkitSERV, which then uses its network to redistribute the trade confirmation to the counterparties.”34 Utilizing MarkitSERV’s drop-copy service allows the SEF to process trades.executed on its platform using STP without having to invest in its own direct communication lines — at least with respect to customers that already are connected to Markit-SERV’s network.

TV. trueEX’s Relationship with Markit-SERV

A. The Broker Terms Agreement

As discussed above, trueEX is an SEF for IRS trades that has been active since April 2014. In addition to trade execution, trueEX provides certain post-trade processing services to its clients. Like the other IRS SEFs, however, trueEX does not have direct communication lines to all of the entities that trade on its platform. Thus, in order to process trades using STP for clients with which it does not have a direct connection, trueEX requires electronic access to those clients’ books and records through other means.

trueEX approached MarkitSERV to solve this STP connectivity problem. In due course, the parties entered into a contract, referred to as the Broker Terms Agreement (“BTA”),35 in which Markit-SERV agreed, among other things, to provide drop-copy service to trueEX. trueEX utilizes MarkitSERV’s drop-copy workflow in a similar manner to the other SEFs, TradeWeb and Bloomberg — when two counterparties execute a trade on trueEX, trueEX submits' the trade details directly to the clearinghouse and SDR and simultaneously drops a copy of the trade to Mark-itSERV for redistribution to the counter-parties. Unlike TradeWeb and Bloomberg, however, trueEX does not give its customers a choice in terms of trade processing. In other words, 'any customer that- uses trueEX to execute its IRS- trades also must use trueEX to process those trades.36

In cases where trueEX has built a communication pipeline to and has an APÍ with a trader, trueEX does not need to rely on MarkitSERV’s network for STP.37 “Only if there is no pipeline' to the trader does [tJrueEX rely on MarkitSERV’s network to fill that gap and provide a ‘drop copy to the customer.”38

B. trueEX’s Development oftruePTS

In December 2015, trueEX announced that it was working on a new IRS trade processing business.39 trueEX’s chief exec*714utive officer, Sunil Hirani, launched this new venture — truePTS—in June 2016.40 truePTS “seeks to process trades other than, or in addition to, trades executed on the [t]rueEX SEF,” including trades that áre not permitted by law to be executed on SEFs.41 According to Mr. Hirani, “truePTS will offer the same IRS trade processing services as MarkitSERV, but at a substantially lower rate and with faster and more innovative technology.”42 Between August 2016 and April 2017, truePTS met with thirty-five different participants in IRS trading to discuss truePTS’s purpose, functionality, and competitive advantage over MarkitSERV.

truePTS now “is still in the developmental stage.”43 It is a sister company of trueEX and is “entirely supported by” it.44 trueEX provides truePTS with all of its funding, staffing, and resources. According to plaintiffs, “truePTS can and will develop its own network [for STP facilitation].” 45 But truePTS would have to rely on MarkitSERV’s drop-copy workflow to process its customers’ trades until it does. Accordingly, truePTS sought to enter into an agreement with MarkitSERV for STP facilitation on similar terms as trueEX.46 In January 2017, truePTS sent Markit-SERV a proposal outlining what such a relationship might look like.47 For the next two months, truePTS repeatedly inquired as to the status of the proposal. Although MarkitSERV informed truePTS that it was reviewing the request internally, MarkitSERV never provided a definitive response.48

C. MarkitSERV Terminates the BTA

Meanwhile, MarkitSERV concluded that trueEX “was seeking a fundamental shift in the nature of [their] relationship in order to facilitate the development of its new business,” truePTS.49 In MarkitSERV’s view, trueEX “sought to create a situation in which [t]ruePTS, acting through [t]rueEX’s relationship with MarkitSERV, could use MarkitSERV’s processing network to offer its own, competing trade processing service” — without making the financial and technical expenditures Mark-itSERV did.50 MarkitSERV feared that truePTS thus could undercut Markit-SERV’s pricing and appeal to customers by offering a lower price point.51 To prevent trueEX from “leveraging] its relationship with MarkitSERV for the benefit of its new competing business” — and, in turn, to thwart the competitive threat posed by truePTS — MarkitSERV notified trueEX that it was terminating the BTA effective May 14, 2017.52

Needless to say, plaintiffs dispute Mark-itSERV’s characterization of the events leading to the termination of the BTA. In their view, MarkitSERV’s termination was *715“a transparent effort to choke off ... competition and preserve its monopoly.”53 In any event, the parties negotiated over the next several weeks the future of their business relationship. During one of those sessions, MarkitSERV proposed new terms for its relationship with trueEX: Markit-SERV would give trueEX the option either to use trueEX’s own network for processing a trade or have the trade submitted to MarkitSERV’s “standard workflow.”54 In other words, for trades involving counter-parties with which trueEX has direct connections, trueEX would be able to process the trade. In contrast, for trades involving counterparties with which trueEX does not have direct connections, trueEX could execute the trade but MarkitSERV would be the one to process it.55 trueEX was not interested in that offer.

During another meeting, according to Mr. Hirani, MarkitSERV’s chief executive officer, Brad Levy, assured trueEX that it would not cut off trueEX’s STP connectivity on May 14, 2017, the date the termination of the BTA was to go into effect.56 However, it became clear on May 5, 2017, that MarkitSERV would agree to provide trueEX STP connectivity only on a day-by-day basis.57 According to Mr. Hirani, “Mr. Levy made it clear that MarkitSERV would not rescind its termination of the” BTA.58

After the parties were unable to reach a new agreement, MarkitSERV, on May 8, 2017, “advised approximately 19 customers that [it was] terminating [its] relationship with [t]rueEX as of May 15”59 — which, according to Mr. Hirani, “sow[ed] confusion and uncertainty” among trueEX’s clients about the possible loss of STP connectivity.60

D. Threatened Impact of Termination on Plaintiffs

1. trueEX

true EX asserts that it “cannot survive as a business without connectivity to MarkitSERV’s network.”61 It claims that any dealer or buy-side client that uses MarkitSERV for STP will leave the trueEX platform if trueEX loses the ability to send drop-copy reports to Markit-SERV. Moreover, it contends, “the loss of drop-copy would ... cause the dealers that provide liquidity to the trueEX platform to abandon trueEX .... An exodus of dealers would drain all liquidity from trueEX. And without that liquidity, trueEX simply could not function as a trading platform.” 62 According to Mr. Hirani, “[existing dealers have already indicated that they are rethinking their relationship with trueEX.”63

*716The actual extent of trueEX’s reliance on MarkitSERV for STP facilitation is hotly contested by the parties. According to MarkitSERV, “only 20 customers — twelve dealers and eight buy side customers used MarkitSERVs trade processing network for [t]rueEX-executed trades in 2017.[64] And only 21 customers — Í3. dealers and 8 buy side firms — did,so in 2016 .65 Based on data reported for 2016, Markit-SERV estimates that 58 percent of the notional value of all trueEX trades in U.S. dollar-denominated IRS bypassed Markit-SERV entirely. In MarkitSERVs view, then, the data demonstrate that trueEX “conducted a significant portion of [its] business in 2016 without any MarkitSERV involvement, [which] contradicts [t]rueEX’s position that MarkitSERV services ‘nearly every transaction in the IRS market.’ ”66

Additionally, MarkitSERV asserts that “[i]n insisting that it is dependent on MarkitSERVs network, [t]rueEX both understates the investment MarkitSERV has made in building its communications network and overstates the burden [trueEX] faces in building connectivity to the remaining dealers for whom it uses Markit-SERV’s drop copy function.”67 Markit-SERV or its predecessors allegedly “have spent hundreds of millions of dollars to install, maintain and update” its communications network.68 As for completing connectivity, MarkitSERV contends that if trueEX were to “build connections to the 10 dealers for whom it currently relies upon MarkitSERV for drop copy services, its network would cover all of its dealer customers and 90% of its buy side customers.”69 In MarkitSERVs experience, it claims, the process of onboarding customers and setting up a direct communication line to the customer’s facility “takes approximately eight to twelve weeks.”70 Thus, in a matter of weeks, MarkitSERV suggests, trueEX could “completely displace MarkitSERV from the [t]rueEX ecosystem.” 71

trueEX claims that MarkitSERV “misrepresents and understates the importance of drop-copy to trueEX’s business.”72 According to trueEX, it presently has

“105 clients that have agreements in place to trade on trueEX’s platform: 24 dealers and 81 buy-side clients. With respect to dealers:

“a. Of the 24 dealers that have signed up with trueEX, all but three, or 88%, require Markit-SERV connectivity for transactions in at least one currency.

“b. Of those 24 dealers, 22 have been ‘onboarded’ to the trueEX platform, and 14 have traded in 2017. All- but three of those 14 dealers, or 79%, have engaged in trades ■ that required a drop-copy to MarkitSERVs network.

“With respect to ' trueEX’s buy-side clients:

“a. Of the 81 buy-side participants who have signed up with trueEX, 41, or 51%, require MarkitSERV *717connectivity for transactions in at least one currency.

“b. Of those' 81 buy-side clients, there are 71 that have been on-boarded to the trueEX platform, and 22 that have traded on the trueEX platform in 2017. Nine of those 22 clients, or 41%, have engaged in trades that required a drop-copy to MarkitSERV’s network.”73

Thus, in trueEX’s yiew, the data strongly support the conclusion that trueEX cannot survive without drop-copy service because the majority of its clients rely on Markit-SERV for STP. Mr. Hirani asserts too that even if some percentage of its buy-side clients do not use MarkitSERV for STP,

“[grading on a SEF that does not have the ability to provide drop-copy functionality for trades to MarkitSERV’s network is a non-starter for an enormous number of entities that trade IRS, including virtually the entire community of dealers (one of which [is] on at least one side of every trade). Regardless of whether it needs MarkitSERV’s STP to maintain its own books and records, no rational buy-side participant would choose to trade on a SEF that is completely cut off from the vast majority of the IRS market, and therefore lacks the liquidity and efficiency that participants expect and demand from a SEF,”74

As for MarkitSERV’s suggestion that trueEX can simply finish building out fits STP network, trueEX maintains that “establishing STP connectivity with a client is a complex and burdensome process,”75 In trueEX’s experience, it claims, the process “on average takes 17 months per participant” — quite a bit longer than Markit-SERV suggests.76 Thus, it would be unrealistic to think trueEX could “flip a switch and build an STP network connecting its entire client base ... in a matter of weeks.”77

2. truePTS

The threat to truePTS is far simpler. Mr. Hirani contends that “MarkitSERV’s refusal to provide STP connectivity to truePTS will kill truePTS before it gets off the ground.”78 If trueEX shuts down, truePTS will fail as well because it “relies on trueEX for all of its staffing, support, and funding.”79

V. The Present Litigation

■ Plaintiffs filed this action in response to MarkitSERV’s May 8 announcement. trueEX and truePTS each assert claims for monopolization and attempted monopolization under Section 2. of the Sherman Act, while trueEX alone asserts also. a claim for promissory estoppel under New York law.80 The Court has set an expedited schedule for the matter, with a trial on the merits to take place in March 2018.

Pursuant to a standstill agreement the parties entered into on May 10, 2017, the effective date of the BTA is tolled until July 24, 2017.81 Once the agreement is *718terminated, however, MarkitSERV will be free to cut off trueEX’s access to its STP network. Plaintiffs have moved the Court for a preliminary injunction that would preserve the status quo — i.e., the BTA would remain in effect until trial. Plaintiffs contend that, without the Court’s intervention, trueEX will go out of business before it has its day in court, a harm for which it could not adequately be compensated. And without trueEX’s support, truePTS “will die on the vine before it can become a viable business.”82

Discussion

Section 16 of the Clayton Act provides that a party may obtain injunctive relief “against threatened loss or damage by a violation of the antitrust laws.”83 For a preliminary injunction to issue, the mov-ant must establish “(1) ‘irreparable harm’; (2) ‘either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party; and (3) ‘that a preliminary injunction is in the public interest.’ ”84

I. Likelihood of Success on the Merits

A. The Monopolization Claim85

Section 2 of the Sherman Act provides that it is unlawful to “monopolize, or attempt to monopolize ... any part of the trade or commerce among the several States, or with foreign nations.”86 “[T]his offense requires, in addition to the possession of monopoly power in the relevant market, ‘the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.’ ”87 Importantly, “the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.”88 “[A]nticompetitive conduct is ‘conduct without a legitimate business purpose that makes sense only because it eliminates competition.’ ”89

For purposes of this motion, Markit-SERV concedes that IRS post-trade processing is a relevant market and that it has monopoly power in that market.90 Accordingly, the Court turns to the question of whether plaintiffs are likely to prevail on their claim that MarkitSERV engaged in anticompetitive conduct to maintain that monopoly power. Specifically, plaintiffs as*719sert that MarkitSERV violated Section 2 in two ways: (1) it refused to deal with them and (2) it denied them access to an essential facility — i. e., MarkitSERVs STP network.

1. Refusal to Deal

“[A]s a general matter, the Sherman Act ‘does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’”91 However, “[t]he high value that we have placed on the right to refuse to deal with other firms does not mean that the right is unqualified.”92 “Under certain circumstances, a refusal to cooperate with rivals can constitute anticompetitive conduct and violate § 2.”93 The Supreme Court, though, has been “very cautious in recognizing such exceptions [to the right to refuse to deal], because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying anticompeti-tive conduct by a single firm.”94 The Second Circuit has characterized that caution as meaning that “the sole exception to the broad right of a firm to refuse to deal with its competitors comes into play only when a monopolist seeks to terminate a prior (voluntary) course of dealing with a competitor.” 95

That exception is rooted in two Supreme Court cases: Aspen Skiing Co. v. Aspen Highlands Skiing Corp. and Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP. In Trinko, the Supreme Court summarized Aspen Skiing, which it called the “leading case for § 2 liability based on refusal to cooperate with a rival,” as follows:

“The Aspen ski area consisted of four mountain areas. The defendant, who owned three of those areas, and the plaintiff, who owned the fourth, had cooperated for years in the issuance of a joint, multiple-day, all-area ski ticket. After repeatedly demanding an increased share of the proceeds, the defendant canceled the joint ticket. The plaintiff, concerned that skiers would bypass its mountain without some joint offering, tried a variety of increasingly desperate measures to re-create the joint ticket, even to the point of in effect offering to buy the defendant’s tickets at retail price. The defendant refused even that. We upheld a jury verdict for the plaintiff, reasoning that ‘[t]he jury may well have concluded that [the defendant] elected to forgo these short-run benefits because it was more interested in reduc-' ing competition ... over the long run by harming its smaller competitor.’ ”96

The Trinko Court noted, however, that “Aspen Skiing is at or near the outer boundary of § 2 liability.” 97

While Trinko “does not purport to set out a ‘test,’ it usefully highlights the distinctions that made Aspen Skiing the rare case in which a refusal to deal amounted to a prohibited act of unilateral monopolization.” 98 First, the monopolist and plaintiff-*720competitor in Aspen Skiing had a preexisting “voluntary (and thus presumably profitable) course of dealing.”99 Second, the prior course of dealing had “originated in a competitive market and had persisted for several years.”100 Third, the monopolist’s termination of the prior course of dealing “suggested a willingness to forsake short-t¿rm profits to achieve an anticom-petitive end.”101 Finally, “the'defendant’s unwillingness to renew the ticket even if compensated at retail price revealed a distinctly anticompetitive bent.”102 Taken together, these facts led the jury to conclude that the defendant’s refusal to deal with its rival was “irrational but for its anticompet-itive effect.”103 The question for this Court to decide is whether the present case fits “within the limited exception recognized in Aspen Skiing.”104

At the outset, it is plain that truePTS on the present record is unlikely to succeed on its refusal to deal claim because it never has had any .business relationship with MarkitSERV. trueEX, however, stands in different shoes. Several key features of Aspen Skiing are present in its relationship with MarkitSERV.105

As in Aspen Skiing, MarkitSERV voluntarily has dealt with trueEX for several years. MarkitSERV nevertheless contends that “it is unlikely [it] made a profit at. all after- factoring the time and investment costs associated with providing drop copy service for [t]rueEX trades.”106 Markit-SERV admits, however, that it has not done a “comprehensive calculation of the cost ... of providing drop copy services to [t]rueEX.”107 Without more, the Court declines to credit MarkitSERV’s speculation. Hence, despite MarkitSERV’s quibble about the profitability for it of that relationship, the Court finds that it has .been profitable for MarkitSERV to at least some extent, else it would not have continued the relationship.108 Moreover, trueEX *721offered MarkitSERV additional money to continue to provide the same services it had been providing under the BTA, but MarkitSERV “dismissed that proposal- out of hand” and claimed that the termination “ha[d] nothing to do with economics.’ ”109 This Court finds, for purposes of this motion, that MarkitSERV was motivated,at least in material part by a desire to foreclose a competitive challenge to its dominant market position. This is not to say, however, that trueEX is in a position identical in all respécts to that of the Aspen Skiing plaintiff. Three distinctions stand out at first blush.

First, in Aspen Skiing, the joint ski ticket initially was introduced “when three independent companies operated three different ski mountains” and “continued to provide a desirable option for skiers when the market was enlarged to four mountains." 110 It was only after the defendant acquired monopoly power — and no'longer needed cooperation of its rival in' order to compete — that it decided to terminate the popular joint ticket.111 The Supreme Court, found significance in the fact that the parties’ cooperative relationship originated in a competitive market because the defendant’s, decision to discontinue the popular joint ticket once it reached a dominant position — but not sooner — suggested an intention to exclude the plaintiff from the Aspen market “on some basis other than efficiency.”112

Here, in contrast to Aspen Skiing, the relationship between MarkitSERV and trueEX did not “originate in a competitive market.”113 Rather, it began at a time when MarkitSERV was, and always had been, the dominant player in the market. MarkitSERV had no need to cooperate with trueEX or any, other SEF in order to compete in IRS post-trade processing.

Although that fact distinguishes this case from Aspen Skiing, it is not legally significant, at least on the present record. The genesis of the cooperative relationship at- issue in a refusal to 'deal, case — ie., whether it originated in a competitive or monopolistic market — has evidentiary significance, if at all, only where it has probative value-with respect to the existence or absence of anticompetitive’motives. That is to say, in general, a new monopolist’s termination of a cooperative relationship that originated in a competitive market-is more likely to suggest anticompetitive motives than a'iong-time monopolist’s termination of a relationship that arose in a monopolistic market. But where, as here, evidence shows that the monopolist was motivated at least in material part by anticompetitive desirós, any countervailing inference the Court might have drawn from’ the fact that the cooperative relationship originated in a monopolistic market would be improbable.

Second, whereas the' monopolist’s termination of the joint ski- ticket in Aspen Skiing suggested a willingness to sacrifice short-term profits, MarkitSERV’s termination of the BTA is more equivocal on the present record. To be sure, MarkitSERV stands to lose the fees trueEX pays for drop-copy service. But it perhaps stands also to gain business from trueEX customers that might migrate away from trueEX and to MarkitSERV for trade processing because of its STP network.114 In other words, MarkitSERV’s decision to terminate the BTA may be consistent also with *722“a desire to maximize the company’s immediate and overall profits.”115 But the record on this point remains to be developed.

Third, unlike the monopolist in Aspen Skiing, MarkitSERV asserts that it had at least one legitimate business reason for discontinuing the provision of drop-copy service to trueEX — preventing trueEX from permitting truePTS to access Markit-SERV’s network without MarkitSERV’s permission.116 It characterizes its action as being motivated by a desire to protect itself from “free-riding,” which in proper circumstances may be an appropriate motive.117 But the term “free-riding” fundamentally is a pejorative characterization that is applied to one’s helping one’s self to a service provided by another without paying for it. In the circumstances here, it presupposes that the BTA — pursuant to which MarkitSERV has been providing services, including the drop-copy service, to trueEX for several years — forecloses trueEX from providing that access to its sister company, truePTS. If the BTA does not do so, then MarkitSERV’s claim that trueEX is facilitating truePTS’s “free-riding” on MarkitSERV’s network is empty rhetoric, as trueEX pays for that service. So the Court turns to that issue.

During the argument of the motion, the Court asked counsel for MarkitSERV to identify the provision or provisions of the BTA that limit what trueEX may do with its access to the MarkitSERV network. Although counsel directed the Court’s attention to certain defined terms in the BTA, none answered the question definitively.118 Thus, the BTA, even viewed in the light most favorable to MarkitSERV, is not clear on this point.119

When a contract is ambiguous, the Court may consider extrinsic evidence to aid in its interpretation.120 There is some evidence of record that ultimately may support MarkitSERV’s interpretation. The fact that truePTS sought repeatedly to contract with MarkitSERV for STP facilitation on terms similar to trueEX suggests that plaintiffs, or at least some of their personnel, understood the BTA as providing network access only to trueEX. trueEX did not dispute MarkitSERVs characterization of the BTA during the hearing. Nevertheless, the interpretation of the BTA ultimately is a question of fact for trial. Moreover, as Aspen Skiing recognized, so too is the question whether MarkitSERV’s purported business justification for terminating trueEX was legitimate, i.e., economically rational. In sum, the question whether MarketSERV can justify its termination of trueEX as a legitimate response to threatened “free-riding” on its network presents serious questions that are fair grounds for litigation.

While it is debatable on this record whether trueEX has shown that it is likely *723to succeed on the merits at' trial, trueEX has sustained its burden of raising serious questions going to the merits that provide fair grounds for litigation. ■ On the one hand, trueEX presented evidence from which a factfinder could infer that Markit-SERV terminated the BTA for anticom-petitive purposes. On the other hand, MarkitSERV adduced evidence that its decision may have furthered a legitimate business purpose. “Although this issue cannot be finally decided until discovery is completed and the court has the benefit of a full factual presentation,” trueEX has satisfied its burden at this preliminary stage.121

The foregoing is sufficient to resolve the likelihood-of-success prong of the preliminary injunction standard. Nevertheless, prudence suggests that the Court rule also on plaintiffs’ likelihood of success on their other antitrust and quasi-contractual claims.

2. Essential Facilities

Plaintiffs contend that MarMt-SERV’s STP network is a facility essential to competition in the IRS post-trade processing market and that MarkitSERV’s denial of access to it violates Section 2. To bring a successful Section 2 essential facilities claim, a plaintiff must prove: “(1) control of the essential facility by a monopolist; (2) a competitor’s inability practically or reasonably to duplicate the essential facility; (3) the 'denial of the use of the facility to a competitor; and (4) the feasibility of providing the facility.”122 ■

Here, plaintiffs contend that (1) Mark-itSERV “has éxclusive control over the drop-copy STP function, which is essential to any SEF seeking to provide IRS trade processing services”; (2) “it is impossible for trueEX and truePTS to ‘practically or reasonably duplicate the provision of connectivity' to MarkitSERV clients” because “[duplicating Markit-SERV’s STP infrastructure would require a massive investment of time and money, m'aking it impractical (and unprofitable) from a business standpoint”; (3) “Markit-SERV is acting to deny trueEX and truePTS access to and use of this essential facility”; and (4) “past practice demonstrates that it is feasible for Markit-SERV to provide STP connectivity.”123

As an initial matter, the continued viability of the essential facilities doctrine has been called into question in recent years.124 A plaintiff seeking to recover on an essential facility claim “must show more than inconvenience, or even some economic loss; [it] must show that an alternative to the facility is not feasible.”125

The fact that trueEX has built direct connections to or otherwise managéd to process trades for three of its fourteen active dealers and thirteen of its twenty-two active buy-side clients seriously under*724mines its claim that MarkitSERV’s STP network is essential. Indeed, for the first quarter of 2017, roughly forty percent of trueEX trades bypassed MarkitSERV entirely, meaning that trueEX successfully processed those trades without relying on MarkitSERV’s STP network.126 As for truePTS, plaintiffs admit that it “can and will develop its own network” if it has an opportunity to get off the ground.127 To be sure, it will take time and money for truePTS to do so. Nevertheless, in view of their admission, plaintiffs cannot credibly claim'' that “it is impossible for ,,. truePTS to ‘practically or reasonably* duplicate” MarkitSERV’s network in due course.128

Moreover, trueEX has not adequately shown for purposes of this claim that it was denied access to MarkitSERV’s STP network, “[T]he indispensable requirement for invoking the [essential facilities] doctrine is the unavailability of access to the ‘essential facilities’; where access exists, the doctrine serves ho purpose.”129 It is undisputed that MarkitSERV offered trueEX access to its STP network via its so-called standard workflow. Under Mark-itSERV’s proposal, trueEX would have retained the ability to process IRS trades involving parties with which it has a direct connection (or parties that do not require STP) and, where it does not, MarkitSERV would have processed the trade on its network. .In other words, MarkitSERV’s proposal, had it been. accepted, would have given trueEX access to MarkitSERV’s STP network and allowed trueEX to continue to, compete in- the IRS trade processing market. “Because reasonable access to the essential facility exist[ed] — even if not in a way that [wa]s conducive to [trueEX’s] existing business model — [trueEX] cannot establish an essential facilities claim.”130

B. Promissory Estoppel

“In New York, promissory es-toppel has three elements: ‘a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained by the party asserting the estoppel by reason of the reliance.’”131 trueEX claims that (1) MarkitSERV “unambiguously promised” not to cut off drop-copy functionality after terminating the BTA, (2) it reasonably relied on MarkitSERV’s assurance because the parties had worked cooperatively for over five years, and (3) it was injured as a result of being lulled into not bringing suit for three days because MarkitSERV in that time issued a notice of termination to trueEX’s clients that caused those clients to be concerned about potential disruption of service. The Court is not persuaded that trueEX is likely to succeed on this claim for two reasons.

First, an essential element of a promis? sory estoppel claim is that the promisee— *725here, trueEX — “substantially] change[d]” its position “in reasonable reliance upon the promise.”132 trueEX fails entirely to show how this requirement is satisfied.

Second, trueEX’s showing with respect to injury is inadequate. It contends that but for MarkitSERV’s promise it “would have sought judicial relief sooner, seeking to enjoin MarkitSERV from further pursuing termination of the [BTA],”133 But despite the three-day delay, trueEX has done just that, and there is nothing to suggest that the short .delay prejudiced trueEX in any way. In fact, the parties have entered into a standstill agreement that preserves the status quo until July 24, 2017, thereby ensuring MarkitSERV does not “further pursu[e] termination” of its relationship with trueEX. While -trueEX contends also that it was injured by MarkitSERV’s termination notice; it does not claim that any of its clients actually abandoned it as a result, especially once they learned of the parties’ standstill agreement.134 In other words, there is no evidence that its clients’ fears translated into any identifiable trueEX loss.

II. Balance of Hardships135

When balancing the hardships, “the issue is whether [the movants] would suffer decidedly greater harm from an erroneous denial of an injunction than the defendants would suffer from an erroneous grant.”136

In this case, the risk to Markit-SERV of an erroneous injunction is slight. True, issuance of a preliminary injunction would require MarkitSERV to assis