The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is defendant's motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons explained below, the motion is granted.
Plaintiff Linea Internacional de Credito, S.A. ("LIC") brings
this action against Western Union Financial Services, Inc.
("Western Union"), alleging the violation of antitrust laws.
The following facts are drawn from the complaint and taken as
true for purposes of this motion. LIC provides financial services
and does business under the names "Worldwide Financial Services"
and "Worldwide Cash Card Company." Its customers are individuals
in the United States "who purchase [unspecified] goods and
services from [primarily Internet] vendors located in the
Caribbean, Central and South America."*fn1 (Complaint, ¶ 5.) These customers
require a means of paying for the goods and services purchased,
and the vendors must be able to make refunds or other payments to
the customers. According to LIC, Western Union is "the largest,
best-known, and almost exclusive provider of money wire transfer
services available to individuals in the United States." (Id.,
On June 18, 1999, LIC and Western Union entered into an
agreement pursuant to which Western Union would provide wire
transfer services to LIC's customers for a flat fee of $11.99 per
transfer of $5,000 or less. This arrangement facilitated Internet
transactions between LIC's customers and Caribbean vendors. As a
result of the agreement, LIC began to market its financial
services, gain new customers, and establish relationships with
Caribbean vendors. Within two months, LIC became one of Western
Union's largest customers.
On November 15, 1999, Western Union terminated the contract
with LIC due to "suspicious activity." LIC sought an explanation.
Western Union indicated that it had learned that some of the
Caribbean vendors were online casinos, and that transactions
between LIC's customers and these online casinos necessitated the
termination of the contract. LIC asserts that Western Union "used the gambling allegation as
a pretext to cancel the contract," calculating that "it would
make millions of dollars more if it could force [LIC's] customers
to send money to The Caribbean for the hundreds of dollars
Western Union charges individuals rather than the nominal sum of
$11.99 it had agreed to charge LIC customers for such
transactions." (Complaint, ¶ 12.) Then, according to LIC, Western
Union attempted to "eliminate all competition for the money
transfer market." (Id.) "Within days Western Union established
the Western Union Cash Card and The Western Union MasterCard
program and entered into arrangements with the same online
casinos that it alleged were engaging in `suspicious activities'
with LIC customers." (Id., ¶ 13.)
Because Western Union terminated the contract, LIC was unable
to serve its customers and could not honor relationships with
Caribbean vendors, thereby losing millions of dollars. There is
no other provider of money wire transfer services available to
LIC. The complaint also alleges that "millions of customers
located throughout the United States . . . are deprived of a low
cost alternative to the expensive wire transfer services offered
by Western Union." (Complaint, ¶ 14.)
LIC asserts that Western Union violated the Sherman Act,
15 U.S.C. § 2, and the Clayton Act, 15 U.S.C. § 15. LIC seeks treble
damages, attorney's fees and costs, and requests "[t]hat Western Union be enjoined from refusing to provide the wire transfer
services to which it agreed in the contract to LIC and its
customers and vendors." (Complaint, Prayer for Relief, at 6.)
Western Union now moves to dismiss the complaint.
The purpose of a 12(b)(6) motion to dismiss is to test the
sufficiency of the complaint, not to resolve the case on the
merits. 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356, at 294 (2d ed. 1990). When
evaluating such a motion, the court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in the plaintiff's favor. Hentosh v. Herman M. Finch
Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999);
Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir.
1997). Dismissal is appropriate only if "`it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations.'" Ledford v. Sullivan,
105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984)); Jones v. General Elec. Co.,
87 F.3d 209, 211 (7th Cir.), cert. denied, 519 U.S. 1008
Western Union first argues that LIC has no protectible legal
interest and thus cannot assert an antitrust claim as a matter of
law, citing Maltz v. Sax, 134 F.2d 2
, 5-6 (7th Cir. 1943). In
Maltz, the plaintiff manufactured and sold gambling devices
called "punchboards." He brought an action under the Sherman Act
alleging that he was the victim of an unlawful combination and
conspiracy. The district court granted defendants' motion to
dismiss on the ground that the use and sale of punchboards was
unlawful and against public policy. The Court of Appeals affirmed
the dismissal, stating:
[T]he damages claimed were for an injury to something
which the law did not recognize as a legal right.
Plaintiff's business was the making and selling of
goods which could only be used by purchasers in
furtherance of the business of gambling. Plaintiff
has no legal right in a business, the conduct of
which was gambling, for which he may obtain
protection either in an action at law, or by a suit
in equity. He had no legal rights to protect.
Therefore defendants could not invade them.
. . .
While the business of making and selling gambling
machines is not in itself gambling, it is widely held
that one who sells a gambling mechanism, useful for
no business other than gambling, may not recover the
purchase price of such gambling apparatus. More
consistent with our general public policy is a
construction of the Sherman Act, which holds that one
conducting a business inseparably connected with
gambling (such as making gambling machines) may not
recover in an action at law for injury to its
business through a competition-squeezing combination
of his competitors.
Id. (citations omitted).
Western Union argues that Maltz forecloses LIC's claims.
Maltz is distinguishable, however, because there, plaintiff's
business was "the making and selling of goods which could only
be used by purchasers in furtherance of the business of gambling"
and was "inseparably connected with gambling." Id. (emphasis
added). All that we can tell about LIC's business at this
juncture, though, is that Western Union asserted that "transactions between LIC
customers and on-line casinos necessitated the termination of the
Contract." (Complaint, ¶ 10.) It is not clear from the complaint
that plaintiff's ...