Case: 4:18-cv-01155-JAR Doc. #: 132 Filed: 11/09/20 Page: 1 of 19 PageID #: 2174
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`MNG 2005, INC.,
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` Plaintiff,
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` vs.
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`PAYMENTECH, LLC, et al.,
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` Defendants.
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`Case No. 4:18-cv-01155-JAR
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`MEMORANDUM AND ORDER
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`This matter is before the Court on two motions to dismiss: one filed by Defendants
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`Paymentech, LLC (“Paymentech”), JPMorgan Chase Bank, N.A. (“Chase”), and Visa USA, Inc.
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`(“Visa”) (Doc. 89); and another filed by Defendant G2 Web Services, LLC. (“G2”). (Doc. 118).
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`Both motions are fully briefed and ready for disposition. This court will address the two motions
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`in one Memorandum and Order as they generally concern similar issues.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`I.
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`In its prior Memorandum and Order (Doc. 67), this Court summarized the alleged facts:
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`Plaintiff is a Missouri corporation operating an online cooking-oil business.
`In April, 2018, Plaintiff entered into a contract with Chase and Paymentech—a
`wholly-owned subsidiary of Chase—for credit card processing services (the
`“Merchant Agreement”). (Doc. 57-1).
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`Under the TERMS AND CONDITIONS of the Merchant Agreement,
`Plaintiff agreed to comply with “all applicable Payment Brand Rules in effect from
`time to time.” (Doc. 59-1 at § 1.3(a)). In addition, Plaintiff promised it would not
`“submit[] any Transaction that [it] knows or should have known to be either
`fraudulent, illegal, [or] damaging to the Payment Brand(s).” (Id. at § 1.4(n)).
`Likewise, Plaintiff authorized Chase and Paymentech to “temporarily suspend or
`delay payment to [Plaintiff] of amounts due under this Agreement,” until Plaintiff
`satisfies its obligations under the Merchant and “executes all documents reasonably
`requested by Chase [and] Paymentech.” (Id. at § 4.6(q)(i)-(ii)). Finally, Plaintiff
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`agreed that Chase and Paymentech “may terminate [the Merchant Agreement]
`immediately if . . . [Plaintiff] engages in conduct that creates or could tend to create
`harm or loss to the goodwill of any Payment Brand.” (Id. at § 10.3(i)(i)). Visa is a
`“Payment Brand.” (Id. at § 18).
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`Less than one month after entering into the Merchant Agreement, Chase
`stopped processing Plaintiff’s credit card transactions. Prior to that, Chase withheld
`more than $66,000 in payments related to purchases by Plaintiff’s customers using
`Visa cards. Chase informed Plaintiff that it had stopped processing transactions and
`would withhold the payments pursuant to Sections 4.6 and 10.3 of the Merchant
`Agreement, concluding that the transactions “tend to create harm or loss to the good
`will of the payment brand.” (Id. at ¶ 13). Chase represents that it took action after
`it was informed by Visa of potentially harmful transactions. (Doc. 57 at 3.)
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`Plaintiff filed suit in Missouri state court and obtained a temporary
`restraining order against Defendants, prohibiting them from withholding payments
`and from “making false and defamatory statements about Plaintiff that Plaintiff is
`engaged in criminal behavior.” (Doc. 1-1 at 23). Defendants removed the case to
`this Court on the basis of diversity jurisdiction and the temporary restraining order
`was dissolved by consent of the parties. (Docs. 1, 22).
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`Thereafter, Plaintiff was granted leave to file an Amended Complaint, in
`which it advanced five claims for relief:
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`Count I – Breach of Contract by Paymentech and Chase;
`Count II – Libel and Slander by Paymentech;
`Count III – Conversion by Paymentech;
`Count IV – Breach of Contract by Visa; and
`Count VI1 – Tortious Interference with Contract by Paymentech, Chase, and
`Visa. (Doc. 67 at 1-3).
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`Defendants moved to dismiss the complaint and the Court granted the motion in part,
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`dismissing Counts II, IV, and VI. (Id. at 10). Thereafter, the Court granted Paymentech’s motion
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`for reconsideration and dismissed Count III as well, finding that there is no claim for conversion
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`when the property allegedly converted is money. (Doc. 82). In the same order, the Court granted
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`Plaintiff leave to amend its complaint.
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`Plaintiff then filed its Third Amended Complaint advancing the following claims:
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`Count I – Unfair Business Practices by Paymentech, Chase, and Visa;
`Count II – Breach of Contract by Paymentech and Chase;
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`1 Plaintiff had voluntarily dismissed Count V by this time. (Doc. 53).
`2
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`Count III – Unjust Enrichment by Paymentech and Visa. (Doc. 86).
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`Plaintiff simultaneously moved to join Visa as a necessary party, arguing that although it has no
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`direct contractual relationship with Plaintiff, Visa’s presence in the case is necessary to fully
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`address Plaintiff’s alleged injuries. (Doc. 85). Plaintiff subsequently sought leave to add another
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`new defendant, G2, arguing that Visa contracts with G2 to monitor and identify companies
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`accepting Visa payments for conduct that violates the Merchant Agreement and assists in
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`maintaining Visa’s “Terminated Merchant” list. (Doc. 103). In its motion for leave to join G2,
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`Plaintiff sought to add new claims of libel and slander against both Visa and Chase. (Id.). Plaintiff
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`proposed a Fourth Amended Complaint that asserts the following claims:
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`Count I – Unfair Business Practices by Paymentech, Chase, Visa, and G2;
`Count II – Breach of Contract by Paymentech and Chase;
`Count III – Unjust Enrichment by Paymentech and Visa.
`Count IV – Libel and Slander by Visa and Chase.2 (Doc. 104).
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`This Court granted Plaintiff’s motions to join Visa and G2 and docketed Plaintiff’s Fourth
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`Amended Complaint. (Doc. 108). The Fourth Amended Complaint (Doc. 104) is operative for
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`purposes of the instant motions to dismiss.
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`Defendants Paymentech, Chase, and Visa seek dismissal of Counts I, III, and IV (Docs.
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`89, 112), as this Court has previously denied dismissal as to Count II. (Doc. 67). G2 seeks dismissal
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`of Count I. (Doc. 118).
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`II.
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`LEGAL STANDARD
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`To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
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`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`2 Plaintiff also filed a motion to supplement this Fourth Amendment Complaint to include a claim against G2 in Count
`IV. This motion was denied. (Doc. 126).
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`3
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`A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
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`Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
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`does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
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`‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
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`the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original)
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`(citations omitted). “When ruling on a motion to dismiss [under Rule 12(b)(6)], the district court
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`must accept the allegations contained in the complaint as true and all reasonable inferences from
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`the complaint must be drawn in favor of the nonmoving party.” Young v. City of St. Charles, 244
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`F.3d 623, 627 (8th Cir. 2001).
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`III. DISCUSSION
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`A. G2’s Motion for Dismissal Pursuant to Fed. R. Civ. P. 12(b)(2)
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`G2 argues that this Court lacks personal jurisdiction over it because Missouri’s long-arm
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`statute is not satisfied and G2 does not have sufficient contacts with Missouri to satisfy due
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`process. (Doc. 119 at 3-8). “To survive a motion to dismiss for lack of personal jurisdiction, a
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`plaintiff must make a prima facie showing that personal jurisdiction exists, which is accomplished
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`by pleading sufficient facts ‘to support a reasonable inference that the defendant can be subjected
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`to jurisdiction within the state.’” K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92
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`(8th Cir. 2011) (quoting Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004)).
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`The evidence must be viewed in the light most favorable to Plaintiff, and all factual conflicts will
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`be resolved in Plaintiff’s favor when deciding if personal jurisdiction exists. Id. at 592 (citing Digi-
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`Tel Holdings, Inc. v. Proteq Telecomm. (PTE) Ltd., 89 F.3d 519, 522 (8th Cir. 1996)). “To defeat
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`a motion to dismiss for lack of personal jurisdiction, the nonmoving party need only make a prima
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`facie showing of jurisdiction.” Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir.
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`2003) (citing Falkirk Min. Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 373 (8th Cir. 1990)).3
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`Missouri’s long-arm statute permits this Court to exercise jurisdiction over G2 if the
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`present cause of action arises from (1) the transaction of any business in Missouri; (2) the making
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`of any contract in Missouri; or (3) the commission of a tortious act in Missouri. Mo. Rev. Stat. §
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`506.500(1)-(3).4 The Missouri Supreme Court has declared that the Missouri legislature’s
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`“ultimate objective [when enacting the long-arm statute] was to extend the jurisdiction of the
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`courts of this state over non-resident defendants to the extent permissible under the Due Process
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`Clause of the Fourteenth Amendment.” State v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970).
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`Therefore, the “critical factor in our analysis is whether the exercise of personal jurisdiction in this
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`case comports with due process.” Clune v. Alimak AB, 233 F.3d 538, 541 (8th Cir. 2000).
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`3 As G2 notes, there are unique considerations when assessing personal jurisdiction in the context of an antitrust claim
`under the Clayton As. (Doc. 119 at 11 n.4). Section 12 of the Clayton Act grants nationwide jurisdiction over corporate
`antitrust defendants provided there are sufficient minimum contacts with the United States as a whole. 15 U.S.C. §
`22; see In re Fed. Fountain, Inc., 165 F.3d 600 (8th Cir. 1999). The first clause of Section 12 outlines the venue
`requirements for corporate antitrust defendants; the second clause establishes nationwide service of process. The
`Seventh Circuit recently held that Section 12 is a “package deal,” and “to avail oneself of the privilege of nationwide
`service of process, a plaintiff must satisfy the venue provisions of Section 12’s first clause.” KM Enterprises, Inc. v.
`Global Traffic Techs., Inc., 725 F.3d 718, 730 (7th Cir. 2013). Put differently, a plaintiff cannot rely on the standard
`federal venue provision, 28 U.S.C. § 1391, while claiming nationwide personal jurisdiction under the Clayton Act.
`The Second Circuit and D.C. Circuit reached similar conclusions, while the Third Circuit and Ninth Circuit interpreted
`the statute more broadly.
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`It does not appear that the Eighth Circuit has addressed whether the venue and nationwide service provisions of Section
`12 should be read together. At least one court in the Eighth Circuit, however, appears to have reached the same
`conclusion as the Seventh Circuit. See Willis Elec. Co., Ltd. v. Polygroup Macau Ltd. (BVI), 437 F. Supp. 3d 693, 703
`(D. Minn. 2020); see also Sitzer v. Nat’l Ass’n of Realtors, Case No. 4:19-CV-00332-SRB, 2019 WL 3892873, at *2-
`3 (W.D. Mo. Aug. 19, 2019) (discussing issue but finding jurisdiction was proper under either interpretation).
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`Plaintiff has not addressed Section 12 or in any way tethered its jurisdictional claims to the Clayton Act. Plaintiff
`certainly has not argued that venue is proper under Section 12. Even construing Plaintiff’s complaint liberally, there
`is no allegation that G2 transacts business “of any substantial character” in this district, as required to establish venue
`under the Clayton Act. United States v. Scophony Corp. of Am., 333 U.S. 795, 807 (1948). Accordingly, this Court
`agrees with G2 that Plaintiff must make prima facie showing of personal jurisdiction under the traditional due process
`requirements.
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` The other methods for establishing jurisdiction under Missouri’s long-arm statute are clearly not applicable to G2.
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`The Due Process Clause of the Fourteenth Amendment requires that G2 have “minimum
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`contacts” with the forum such that the exercise of jurisdiction over it does not offend “traditional
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`notions of fair play and substantial justice.” Int’l Shoe v. Washington, 326 U.S. 310, 319 (1945).
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`G2’s contacts must be sufficiently purposeful that it “should reasonably anticipate being haled into
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`court” in this forum. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). “In
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`judging minimum contacts a court properly focuses on the relationship among the defendant, the
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`forum, and the litigation.” Calder v. Jones, 465 U.S. 783, 788 (1984).
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`In the Eighth Circuit, five factors must be considered: (1) the nature and quality of the
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`contacts with the forum state; (2) the quantity of contacts with the forum state; (3) the relation of
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`the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its
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`residents; and (5) the convenience of the parties. Land-O-Nod Co. v. Bassett Furniture Indus., Inc.,
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`708 F.2d 1338, 1340 (8th Cir. 1983). The first three factors are the most important. Austad Co. v.
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`Pennie & Edmonds, 823 F.2d 223, 226 (8th Cir. 1987).
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`In its Fourth Amended Complaint, Plaintiff generally alleges that G2 was engaged by Visa
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`to monitor transactions associated with MNG and “has undertaken activities to disrupt MNG’s
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`business . . . by targeting employees and officers of MNG and creating a profile of those individuals
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`for the purpose of justifying the deprivation of MNG’s access to credit card banking services.”
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`(Doc. 104 at ¶¶ 21-23). Plaintiff has not submitted any supporting exhibits, affidavits, or other
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`evidence in support of its claim of personal jurisdiction.
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`Examining the three most critical factors, it is apparent that this Court lacks personal
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`jurisdiction over G2. The nature and quality of G2’s contacts with the state of Missouri are
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`extremely minimal, as Plaintiff only alleges that G2 monitored Plaintiff’s financial activity. G2
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`does not have employees in Missouri, never contacted Plaintiff, and does not appear to have taken
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`any action whatsoever directly targeted at Missouri. Plaintiff argues that “Defendants Visa, Chase
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`and Paymentech are engaged in substantial business” in Missouri, and “the quality of the contact
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`should be measured by the pervasive impact of G2’s actions on its principals.” (Doc. 129 at 3).
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`Plaintiff has this exactly backwards; while the actions of an agent may support personal
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`jurisdiction over the principal, the actions of a principal cannot be used to support personal
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`jurisdiction over an agent. See Move Merch, LLC v. Amaru/AWA Merch., Inc., Case No. 4:14-CV-
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`878 CAS, 2015 WL 927468, at *4 (E.D. Mo. Mar. 4, 2015).
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`The quantity of G2’s contacts is also limited. The Court recognizes, as Plaintiff argues, that
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`physical presence in the forum is not technically necessary to establish jurisdiction. See Burger
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`King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (“Jurisdiction . . . may not be avoided merely
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`because the defendant did not physically enter the forum State.”). G2, however, has no apparent
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`virtual contact with the forum except for its monitoring of transactions which may or may not
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`occur in Missouri. Applicable Eighth Circuit precedent regarding the existence of personal
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`jurisdiction over individual credit-monitoring activities is relevant to this issue, as G2 essentially
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`provides corporate-level monitoring and reports suspicious activity. In Aylward v. Fleet Bank, the
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`Eighth Circuit held that the defendant bank’s communication of derogatory credit references
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`regarding plaintiff, a Missouri resident, was not sufficient to establish personal jurisdiction. 122
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`F.3d 616 (8th Cir. 1997). No personal jurisdiction existed despite the bank having more contacts
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`with Missouri than G2 has here. G2’s communications regarding suspicious financial activity
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`involving Plaintiff, a Missouri corporation, do not constitute meaningful contact with Missouri.
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`The third factor – relation of the cause of action to the contacts – requires that a distinction
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`be drawn between general and specific jurisdiction. Because there is no reasonable argument that
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`G2 may be subjected to this forum’s general jurisdiction, which requires continuous and systematic
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`contacts, this Court only considers whether specific jurisdiction is warranted. Specific jurisdiction
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`exists “when a defendant has purposefully directed its activities to the forum state, and the cause
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`of action relates to those activities.” Speraneo v. Zeus Tech., Inc., Case No. 4:12-CV-00578-JAR,
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`2012 WL 2885592, at *2 (E.D. Mo. July 13, 2012) (internal citation omitted); see also Goodyear
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`Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (“Specific jurisdiction . . .
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`depends on an affiliation between the forum and the underlying controversy, principally, activity
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`or an occurrence that takes place in the forum State and is therefore subject to the State’s
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`regulation.”) (internal quotation omitted).
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`Plaintiff relies heavily on the proposition that this cause of action relates closely to G2’s
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`activities in the forum state. It deserves mention, however, that Plaintiff’s only claim against G2
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`is an antitrust injury stemming from Visa’s alleged control over the credit card market. There is
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`no allegation that the action directly leading to this injury – G2 informing Visa of suspicious
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`activity by Plaintiff – occurred in Missouri. G2’s contracts and interactions with the other
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`Defendants all occurred outside Missouri yet form the primary basis for Plaintiff’s claims against
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`G2. Critically, it is G2’s “contacts with the forum state which are of importance in determining the
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`propriety of personal jurisdiction, not [G2’s] contacts with a resident of the forum state.” Rand &
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`Son Const. Co. v. Thaxton Elec. Co., Inc., Case No. 04-0794-CV-W-GAF, 2005 WL 1801714, at
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`*2 (W.D. Mo. July 28, 2005) (citing Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co.,
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`558 F.2d 450, 455 n.6 (8th Cir. 1977)). Merely monitoring the financial activities of a Missouri
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`corporation is not sufficient to establish personal jurisdiction when all other relevant conduct has
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`taken place outside this forum.
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`Because the three most important factors for assessing the presence of personal jurisdiction
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`all indicate such jurisdiction is lacking, exercising personal jurisdiction over G2 would offend
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`traditional notions of fair play and substantial justice. Resolving all facts in Plaintiff’s favor, this
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`Court still cannot make a reasonable inference that personal jurisdiction exists. Accordingly, this
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`Court will order dismissal of G2 from this case.
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`B. Count I – Unfair Business Practices (Chase, Paymentech, Visa, and G2)5
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`In Count I of its Fourth Amended Complaint, Plaintiff argues that Visa’s involvement in
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`the payment processing and banking industries is so vast and significant that its Terminated
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`Merchant list is tantamount to a blacklist of companies with which no bank or payment processor
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`will do business. (Doc. 104 ¶¶ 34-38). Count I seeks damages against all Defendants “under
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`Section 4 of the Clayton Act; and 15 U.S.C. § 15 for violations of the Sherman Act; and for its
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`unlawful actions stated herein.” (Id. at ¶ 58). Defendants assert that Count I “contains a
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`hodgepodge of muddled references to unspecified business torts, breaches of contract, and no-
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`specific antitrust terminology.” (Doc. 90 at 6).
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`Ambiguous Claims
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`Defendants first argue that Plaintiff’s complaint cites only § 4 of the Clayton Act, creating
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`a private right of action, and 15 U.S.C. § 15 of the Sherman Act, which simply codifies § 4 of the
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`Clayton Act, and therefore fails to adequately identify whether Count I alleges a violation of the
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`Sherman Act, the Clayton Act, or the Robinson–Patman Act, let alone the specific section under
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`which the claim is brought. (Doc. 90 at 6; Doc. 119 at 12). Because each act proscribes different
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`conduct, Defendants argue that the failure to specify the statutory source for Count I is fatal. (Doc.
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`90 at 6-7; Doc. 119 at 12-13). Sections 1 and 2 of the Sherman Act have unique requirements, yet
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`Plaintiff cites precedent applicable to each section without noting the distinction.
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`5 Because this Court cannot exercise personal jurisdiction over G2, Count I as against G2 is dismissed.
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`The Court agrees that the ambiguity of Plaintiff’s Fourth Amended Complaint makes it
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`difficult to discern which specific “unjust business practices” Plaintiff alleges. The Court does not
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`believe, however, that this ambiguity alone necessarily compels dismissal at this early stage.
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`Plaintiff’s response to the motion to dismiss, arguing that the “Defendants acted together” pursuant
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`to an “agreement,” at least suggests that Plaintiff is claiming concerted action under § 1 of the
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`Sherman Act. (Doc. 97 at ¶¶ 6-9).6
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`Lack of Antitrust Injury
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`Defendants argue that Plaintiff’s alleged injuries do not amount to an antitrust injury. (Doc.
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`90 at 6 (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)); Doc. 119
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`at 14-15 (citing In re Canadian Import Antitrust Litig., 470 F.3d 785, 791 (8th Cir. 2006)). An
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`antitrust injury is required to establish antitrust standing, and its requirements “go beyond injury
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`in fact.” Midwest Commc’ns v. Minnesota Twins, Inc., 779 F.2d 444, 449 (8th Cir. 1985). Plaintiff
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`must prove the existence of an “injury of the type the antitrust laws were intended to prevent and
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`that flows from that which makes defendants’ acts unlawful. The injury should reflect the
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`anticompetitive effect either of the violation or of anticompetitive acts made possible by the
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`violation.” Brunswick, 429 U.S. at 489. Plaintiff must have been “the target of the anticompetitive
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`activity, ‘not one who has merely suffered indirect, secondary, or remote injury.’” Lovett v.
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`General Motor Corp., 975 F.2d 518, 520-21 (8th Cir. 1992) (quoting Midwestern Waffles, Inc. v.
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`Waffle House, Inc., 734 F.2d 705, 710 (11th Cir. 1984) (per curiam)).
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`6 In Plaintiff’s response to G2’s motion to dismiss, Plaintiff also cites the applicable test for § 2 of the Sherman Act.
`(Doc. 129 at 8). See United States v. Grinnell Corp., 384 U.S. 563 (1966). G2 correctly notes that Plaintiff’s filings
`also “contain references to language commonly used in reference to typical Section 1 and Section 2 claims.” (Doc.
`119 at 14).
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`Plaintiff appears to allege two forms of antitrust injury. First, Plaintiff claims that
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`Defendants’ conduct favors large retailers in a way that effectively eliminates any competition
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`from smaller sellers. While Plaintiff was blacklisted for selling CBD and hemp products, Visa
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`allegedly continues to process payments for “the sale of hemp and CBD products” sold by “Costco,
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`Amazon, Nieman March, Sephora, Walmart, and dozens of other larger merchant retailers, but
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`does not make a determination that their sale of CBD related oils and/or products constitute brand
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`damaging behavior.” (Doc. 104 at ¶ 47).
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`If true, the intentional and systematic exercise of Visa’s contractual right to remove small
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`retailers from its payment system to benefit large merchants may retrain competition in a way that
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`“has a substantial anticompetitive effect that harms consumers in the relevant market.” Ohio v.
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`Am. Express Co., 138 S. Ct. 2274, 2283 (2018). But Plaintiff has not pleaded sufficient factual
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`content from which this Court can reasonably infer that Visa is intentionally and systematically
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`eliminating small vendors to benefit its larger customers. See Iqbal, 556 U.S. at 678. Plaintiff’s
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`claim amounts to nothing more than a bare allegation that Plaintiff, one particular small seller, has
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`been placed on the Terminated Merchant list.7
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`The Court agrees with Defendants that, at most, Plaintiff alleges an injury to its own
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`business. Even if Visa continues to process the sale of similar products by larger companies, its
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`refusal to do so for MNG—a single small retailer—is not evidence of market-wide anticompetitive
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`behavior. As the Eighth Circuit has explained, “a plaintiff may be targeted and found to have not
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`suffered an injury that is cognizable under the antitrust laws.” Fair Isaac Corp. v. Experian Info.
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`7 The Court is mindful that there is some overlap here between the question of whether antitrust injury exists and the
`merits of Plaintiff’s claims. See generally Ronald W. Davis, Standing on Shaky Ground: The Strangely Elusive
`Doctrine of Antitrust Injury, 70 ANTITRUST L.J. 697, 775 (2003) (describing cases in which courts have confused
`issues of antitrust injury and underlying merits of claim). While Plaintiff’s argument regarding exclusion of small
`businesses could theoretically constitute an antitrust injury, Plaintiff has plead no factual content whatsoever
`suggesting Defendants had any sort of agreement to exclude or penalize small businesses. Whether interpreted as a
`failure to allege antitrust injury or failure to state a plausible claim for relief, dismissal of this claim is warranted.
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`Sols., Inc., 650 F.3d 1139, 1145 (8th Cir. 2011). Plaintiff’s alleged injury does not flow from
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`conduct that is plausibly claimed as unlawful under the antitrust laws.
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`Second, Plaintiff argues that Visa’s market power is so vast that placing a company on its
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`Terminated Merchant list effectively bankrupts the company because it is unable to transact with
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`any major bank or credit card processor. (Id. at ¶¶ 51-55). “[A] mere causal connection between
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`an antitrust violation and harm to [Plaintiff] cannot be the basis for antitrust compensation unless
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`the injury is directly related to the harm the antitrust laws were designed to protect.” Lovett, 975
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`F.2d at 520 (internal quotation omitted). Plaintiff essentially argues that Visa is extremely large
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`and powerful, so its refusal to do business with Plaintiff is particularly damaging. This injury is
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`not directly related to the harm the antitrust laws were designed to prevent, as there is no indication
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`that Visa’s behavior towards Plaintiff was in any way anti-competitive. Accordingly, Plaintiff has
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`not plead factual content allowing this Court to draw a reasonable inference that Plaintiff suffered
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`an antitrust injury.
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`Section 1 of the Sherman Act
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`While this Court has found that Plaintiff did not suffer an antitrust injury, there are other
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`deficiencies in the Fourth Amended Complaint that merit consideration. Section 1 of the Sherman
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`Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in
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`restraint of trade or commerce among the several States.” 15 U.S.C. § 1. “[Section 1 of the Sherman
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`Act] does not reach conduct that is wholly unilateral.” Copperweld Corp. v. Indep. Tube Corp.,
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`467 U.S. 752, 767-68 (1984). The Supreme Court has also interpreted § 1 “to outlaw only
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`unreasonable restraints.” Am. Express Co., 138 S. Ct. at 2283 (quoting State Oil Co. v. Khan, 522
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`U.S. 3, 10 (1997)). Where there is no affirmative agreement between competitors to restrict
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`competition or decrease output, Plaintiff must prove the existence of a market restraint that violates
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`Case: 4:18-cv-01155-JAR Doc. #: 132 Filed: 11/09/20 Page: 13 of 19 PageID #: 2186
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`the “rule of reason.” Id. at 2284. “The rule of reason requires courts to conduct a fact-specific
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`assessment of ‘market power and market structure . . . to assess the [restraint]’s actual effect’ on
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`competition.” Id. (quoting Copperweld Corp., 467 U.S. at 768).
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`This Court finds that Plaintiff has failed to allege facts establishing concerted action under
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`§ 1 of the Sherman Act. Such claims require evidence of conspiracy or agreement, and the Supreme
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`Court has made clear that “a bare assertion of a conspiracy will not suffice.” Twombly, 550 U.S.
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`at 566. Having carefully reviewed Plaintiff’s Fourth Amended Complaint, the only potential
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`allegations of conspiracy are those stating “Visa’s actions triggered Chase and G2 to target MNG”
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`and the relevant actions “were taken by Visa, collectively with Paymentech, Chase and G2.” (Doc.
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`104 at ¶¶ 40, 57). Drawing all inferences in Plaintiff’s favor, these allegations are not sufficiently
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`specific to allow this Court to draw a reasonable inference that Defendants have violated § 1 of
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`the Sherman Act.
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`Section 2 of the Sherman Act
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`A violation of § 2 of the Sherman Act typically requires (1) the possession of monopoly
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`power in the given market and (2) the willful acquisition or maintenance of that power. United
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`States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). In addition to the ambiguity as to Plaintiff’s
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`antitrust claims generally, there is ambiguity as to the type of monopoly claim Plaintiff brings.
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`There can be violations under § 2 of the Sherman Act for monopolization, attempted
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`monopolization, and conspiracy to monopolize. See Process Controls Intern., Inc. v. Emerson
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`Process Mgmt., 753 F. Supp. 2d 912, 924 (E.D. Mo. 2010).
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`Because Plaintiff claims that Chase, Paymentech, and G2 are all agents utilized to enforce
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`Visa’s monopoly power (Doc. 129 at 8), this Court will assume that Plaintiff is alleging a
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`conspiracy to monopolize.8 The elements of such a claim are (1) the existence of a conspiracy, (2)
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`an overt act in furtherance of the conspiracy, and (3) specific intent to monopolize. Baxley-
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`DeLamar Monuments, Inc. v. Am. Cemetery Ass’n, 843 F.2d 1154, 1157 (8th Cir. 1988). As
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`discussed above, Plaintiff has failed to sufficiently allege a conspiracy between the parties and
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`therefore cannot make out a § 2 claim. There is simply no plausible allegation within the Fourth
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`Amended Complaint that the Defendants’ actions, even if particularly damaging due to Visa’s
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`market power, were taken in furtherance of a conspiracy or with a specific intent to monopolize.
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`This Court is mindful of its obligation to be “reasonably aggressive in weeding out
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`meritless antitrust claims at the pleading stage” given “the unusually high cost of discovery in
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`antitrust cases” and “limited success of judicial supervision in checking discovery abuses.”
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`Insulate SB, Inc. v. Advanced Finishing Sys., Inc., 797 F.3d 538, 543 (8th Cir. 2015) (internal
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`quotations omitted). Plaintiff has made an ambiguous antitrust claim which primarily relies on
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`conclusory allegations of anticompetitive conspiracy and monopoly. Plaintiff has failed to
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`adequately allege antitrust injury or state a plausible claim for relief under the Sherman Act. Under
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`the standard established by Twombly, dismissal of Count I is appropriate.
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`C. Count III – Unjust Enrichment (Paymentech and Visa)
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`In Count III, Plaintiff alleges that Paymentech improperly withheld $66,000 from Plaintiff
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`and gave the money to Visa based on an improper determination that Plaintiff was engaged in
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`illegal sales. (Doc. 104 at ¶¶ 67-69). Paymentech and Visa argue that the Court should dismiss
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`8 The Court notes Defendants’ argument that Plaintiff failed to properly define the market. (Doc. 90 at 10; Doc. 119
`at 14). The market definition requirements are more lenient, howe