conduct. Ashkanazy, 757 F. Supp. at 1534-35; Spectrum Sports, 506 U.S. at 457, 113 S. Ct. at 892.
A showing of specific intent to monopolize implies an intent to control prices and destroy competition. Ashkanazy, 757 F. Supp. at 1534 (citing United States v. Empire Gas Corp., 537 F.2d 296, 302 (8th Cir. 1976)). In Empire Gas Corp., the plaintiff established evidence that the defendant had cut or threatened to cut prices to prevent competitors from soliciting customers. The court held that such an attempt demonstrated an intent to obtain monopoly power. Empire Gas Corp., 537 F.2d at 302. Similar to Empire Gas Corp., Lindco alleges that in at least one known instance, Pure Asphalt has already exercised selective pricing by lowering its price to an existing Lindco customer to a level below that given to other Pure Asphalt customers and by representing that it would sell its imitation-Lindco sealant line of products to Lindco's retail customers at wholesale prices. (Comp. P 36). This allegation demonstrates an intent to control prices and destroy competition. Empire Gas Corp., 537 F.2d at 302.
D. Injury to Competition
The antitrust laws were enacted "for the protection of competition, not competitors." Brown Shoe Co. v. U.S., 370 U.S. 294, 320, 8 L. Ed. 2d 510, 82 S. Ct. 1502 (1962). Hence, an antitrust plaintiff may not merely allege that the defendant's conduct has harmed its business. Rather, it must allege that the defendant's conduct has injured competition market-wide. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1110 (7th Cir. 1984). Pure Asphalt maintains that Lindco's Amended Complaint fails because Lindco alleges inherently procompetitive conduct in the form of heightened price competition. (Mem. in Support of Motion to Dismiss p. 7).
Pure Asphalt, however, mischaracterizes Lindco as complaining of increased competition. Rather, Lindco complains that Pure Asphalt, without notice, terminated the relationship and committed other wrongful acts in order to appropriate Lindco's market share for itself and to gain monopoly power. (Comp. P 1). "If Pure Asphalt has already become, or (if not stopped) will become, the dominant supplier in the market," Lindco alleges that "there is every reason to believe that it can do more of what it has already succeeded in doing in at least one instance, namely "spot price cutting and other means to drive out competition." (Pl. Response p. 9).
Given the standard that Lindco must be granted every possible inference, it is clear that Lindco has pleaded the necessary combination of overt acts, wrongful intent, and significant probability necessary to state a cause of action for attempted monopolization under Section 2 of the Sherman Act. Proof is different than pleading, and at this point, given the strong directive that such fact-dependent cases should not be summarily dismissed, Lindco is entitled to the inferences which support its Section 2 antitrust count.
IV. LINDCO STATES A CLAIM FOR TORTIOUS INTERFERENCE WITH ECONOMIC EXPECTANCY
Pure Asphalt's motion to dismiss Count II should be denied because Lindco's Amended Complaint states a claim for tortious interference with economic expectancy under Illinois law. To plead a cause of action for a tortious interference with economic expectancy, a plaintiff must allege: (1) a reasonable expectation of entering into a valid business relationship; (2) defendant's knowledge of the expectancy; (3) defendant's intentional and malicious interference to defeat the expectancy; and (4) damages suffered as a result of the interference. Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc., 190 Ill. App. 3d 524, 527, 546 N.E.2d 33, 36, 137 Ill. Dec. 409 (2d Dist. 1989). A plaintiff must also plead facts to show interference of a business relationship with specific third parties. Id.
Lindco alleges all of the necessary elements to state a claim for tortious interference. On the basis of Lindco's efforts and expenditures, and its longstanding and dependable services, Lindco alleges that it had a legitimate expectancy of continuing business from its customers. (Comp. P 40). Second, Lindco alleges that Pure Asphalt knew of the relationships between Lindco and its customers. (Comp. P 41). Third, Lindco alleges injury, in that it was placed at a "competitive disadvantage," and that "since January 26, 1995, [Lindco] saw its sales decline by nearly two-thirds." (Comp. PP 38-39).
Finally, Lindco alleges intentional interference to defeat the expectancy. Pure Asphalt contends that Lindco "has not alleged and cannot demonstrate that Pure Asphalt, in soliciting Lindco's customers, was not acting in furtherance of its own legitimate interests." (Mem. In Support of Motion to Dismiss p. 13). However, intentional or wrongful conduct is supported by claims that the interference was accomplished, as Lindco adequately alleges, through misrepresentations and price-cutting. Ashkanazy, 757 F. Supp. at 1556. Accordingly, Lindco sufficiently alleges the necessary elements to state a cause for tortious interference with economic expectancy.
V. LINDCO FAILS TO STATE A CLAIM FOR TORTIOUS TERMINATION OF BUSINESS RELATIONSHIP
Pure Asphalt's motion to dismiss Count III should be granted because Lindco's Amended Complaint fails to state a claim for tortious termination of a business relationship. Lindco alleges that "Pure Asphalt had a duty to use good faith and fair dealing in its business relationship with Lindco" and that "Pure Asphalt intentionally and without justification or reasonable notice terminated its business relationship with Lindco." (Comp. PP 40-41).
Lindco purports to assert a claim for tortious interference based on Pure Asphalt's decision to sever its relationship with Lindco. However, in F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago, 754 F.2d 216, 221 (7th Cir. 1985), the Seventh Circuit noted that, generally, "a party cannot be liable in tort for interfering with its own contract, or even for breaching its own contract." See also Williams v. Weaver, 145 Ill. App. 3d 562, 570, 495 N.E.2d 1147, 1152-53, 99 Ill. Dec. 412 (1st Dist. 1986) (defendant could not tortiously interfere with its own business relationship with plaintiff). Lindco's allegations do not state a claim that will lie for a breach or termination of a contract or relationship between itself and Pure Asphalt.
For the foregoing reasons, it is hereby recommended that Pure Asphalt's motion to dismiss be DENIED as to COUNTS I and II, and GRANTED as to COUNT III.
United States Magistrate Judge
DATE: April 17, 1997
Any objections to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72(b); 28 U.S.C. 636(b)(1)(B); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 329 (7th Cir. 1995); The Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir. 1989).