FOURTH DIVISION March 29, 2007
1-06-0878
EDWARD SANCHEZ, Individually and on ) Appeal from the behalf of all others similarly situated,) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) ) AMERICAN EXPRESS TRAVEL RELATED ) SERVICES COMPANY, INC., ) ) Honorable ) Anthony L. Young, Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Plaintiff Edward Sanchez appeals from the circuit court's
order granting summary judgment for defendant American Express
Travel Related Services, Inc. In this court, Sanchez contends
that a genuine issue of material fact existed and, thus, the
circuit court erred in granting summary judgment. For the
reasons that follow, we affirm.
BACKGROUND
Defendant operates a currency exchange service to consumers
in branches across the United States through which defendant
converts foreign currency into United States dollars and vice
versa. Defendant charges consumers a fee to convert their
currency. 1-06-0878
The record discloses that on September 16, 2004, plaintiff
entered defendant's office at 55 West Monroe Street in Chicago,
Illinois to exchange 1,050 Mexican pesos for U.S. dollars. The
rate displayed on the office electronic board was 0.080936652
United States dollars for each Mexican peso. The board did not
disclose the exchange rate at which defendant exchanged the
currency. The financial service representative (FSR) informed
plaintiff as to the exchange rate posted on the board and
explained that plaintiff would be charged a $3 service fee for
the transaction. Plaintiff agreed to the exchange rate and the
service fee.
The FSR then processed plaintiff's transaction and provided
plaintiff with a receipt of the transaction. The receipt
disclosed that at an exchange rate of 0.080936652 United States
dollars per Mexican peso, plaintiff's 1,050 Mexican pesos yielded
him $84.98. The receipt further showed that after defendant
subtracted its $3 processing service fee, plaintiff received a
total of $81.98. The $3 service fee was listed twice on the
receipt, once as "fee" and once as "total fees." Plaintiff
reviewed this receipt before leaving defendant's office.
On December 30, 2004, plaintiff filed a complaint against
defendant in which he alleged that defendant operated a "Money
Skimming Scheme." The complaint stated:
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"In addition to profiting by charging each of
its customers a 'fee' for the Service,
American Express also profits by skimming the
difference between the exchange rate it
receives and the exchange rate it uses to
convert a customer's currency. The
difference between the two exchange rates is
a hidden, undisclosed charge it assesses to
each of its customers that use the Service
(hereafter 'the Money Skimming Scheme')."
Plaintiff argued that this alleged practice violated the Illinois
Consumer Fraud and Deceptive Business Practices Act (Act) (815
ILCS 505/1 et seq. (West 2004)). Plaintiff further asserted that
"the receipt was designed to conceal the fact that American
Express actually received a significantly higher exchange rate
for itself than the 0.080936652 United States dollars per Mexican
Peso it exchanged [plaintiff's] 1,050 Pesos for." Plaintiff
concluded that defendant received more than the $84.98 United
States dollars that it disbursed to plaintiff for his 1,050
Mexican pesos prior to the $3 service fee. Thus, plaintiff
argued that defendant received a hidden fee in addition to the $3
service fee it listed on the receipt.
Thereafter, defendant filed a motion to dismiss pursuant to
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section 2-615 of the Illinois Code of Civil Procedure (Code) (735
ILCS 5/2-615 (West 2004)) and a memorandum of law in support of
its motion on March 8, 2004. Relying on In re Mexico Money
Transfer Litigation, 267 F.3d 743 (7th 2001), defendant contended
that, as a matter of law, it was not required "to disclose the
rates at which it purchases foreign currency or its profits from
the 'spread.'" Thus, defendant argued that plaintiff could not
state a claim for fraud under the Act because it could not
establish that defendant committed a deceptive practice. In
addition, defendant argued that plaintiff could not adequately
plead proximate cause or damages.
On April 12, 2005, plaintiff filed a response to defendant's
motion to dismiss in which he argued that Covarrubias v.
Bancomer, 351 Ill. App. 3d 737 (2004), governed the outcome of
the case at bar. His contention was that according to this
court's ruling in Bancomer, defendant's failure to disclose that
it received a greater profit than the $3 service transaction fee
constituted a deceptive practice under the Act. Plaintiff also
contended that he sufficiently pled proximate cause and damages.
On May 13, 2005, the circuit court denied defendant's motion
to dismiss. Thereafter, plaintiff filed a motion for class
certification and defendant filed its response. The circuit
court never ruled on this motion, and thus it is not a matter
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before this court.
On November 14, 2005, defendant filed a motion for summary
judgment. In support, defendant attached the affidavits of Linda
Teter and Vicki Norton dated November 10, 2005, and November 11,
2005, respectively. Both Teter and Norton were employees of
defendant.
Teter averred that she was the director of service delivery
for defendant and was working on special projects until her
retirement at the end of 2005. She then stated:
"American Express charges customers that
utilize the Exchange Service a fee per
currency exchange transaction. Each
individual [travel service office] TSO
manager has the ability to decide at what
amount to set the fee. This decision is
based upon, among other things, the level of
competition from other Exchange Service
vendors in the area. Accordingly, the fees
charged by each individual TSO vary by market
and location. In setting the fee, American
Express always takes care to ensure that its
fee is competitive from a customer
perspective."
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She further explained that the transaction fee on September 16,
2004, at the Monroe Street TSO was $3, which employees were
trained to communicate to customers.
Teter then averred:
"American Express does not state what its net
'profit' is in providing the Exchange
Service. In addition, American Express does
not state to the customer what its 'cost' is
for what is sold (in this case, the cost of
the currency that it sells to customers).
The fee listed on the customer's receipt is
not identified as a 'net fee' and there is no
language on the receipt advising or
indicating to customers what American
Express's 'profit' is on any individual
transaction. Rather, American Express
accurately discloses the cost to the customer
-- that is, the retail exchange rate applied
and the fee."
Teter further explained that American Express could not
anticipate its "profit" for each individual transaction. She
stated:
"In processing each customer transaction,
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American Express does not take the currency
exchanged in an individual transaction by a
customer at a retail exchange rate and
convert such currency at a wholesale rate in
an individual transaction. Rather, American
Express buys foreign currencies in bulk at a
wholesale rate, and uses these bulk funds to
pay out the selected currency, as the
individual transactions occur. American
Express FSRs have no information regarding
the wholesale rate at which American Express
buys and sells currency in bulk, and FSRs
have no information regarding any potential
profit from any individual transaction.
Because customers do not trade currency in
these large volumes, wholesale currency rates
are not available to them."
Norton averred that her position with defendant was manager,
personal travel and financial services. In that position, she
was responsible for overall operations of owned American Express
TSOs in Illinois, including the TSO located at 55 West Monroe
Street in Chicago. She confirmed that on September 16, 2004,
plaintiff exchanged 1,050 Mexican pesos for United States dollars
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at a "buy" exchange rate of 0.080936652 United States dollars per
Mexican peso. That exchange rate yielded plaintiff $81.98 after
a $3 transaction fee was subtracted. Norton stated that the $3
fee was noted twice on plaintiff's receipt, once as a "fee" and
once as "total fees." She further explained:
"The fee is not, and was not, intended to
lead customers to believe that American
Express only makes a profit of $3 for the
Exchange Service, and American Express agents
make no such representation to customers.
Rather, the fee is clearly disclosed as a
charge separate and apart from, and in
addition to, the retail exchange rate that is
quoted to the customer and applied to the
transaction."
On November 3, 2005, the parties deposed plaintiff.
Plaintiff testified that he decided to bring this suit when he
learned that defendant "[makes] money off of the exchange, the
currency exchange." He added, "They stated one fee and there was
a bigger fee." Upon further questioning, plaintiff stated, "They
charged more for my exchange than they told me they were
charging."
Plaintiff acknowledged that he previously worked for Legal
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Helpers. During that time, he shared office space at 444 North
Wells Street in Chicago with the attorney representing him in
this case.
Plaintiff then testified that on September 16, 2004, he
sought to exchange Mexican pesos left over from a vacation for
United States dollars. Although he knew of other currency
exchanges in the city, he did not visit another foreign currency
exchange merchant prior to entering defendant's office.
Plaintiff remembered seeing an exchange rate board in the
office, but did not recall whether he saw the "buy" rate. He
also did not remember whether he asked the FSR what the exchange
rate for Mexican pesos was on that day. Despite not recalling
many of the details of the exchange, plaintiff confirmed that he
counted his money after exchanging his Mexican pesos for United
States dollars and stated it was an accurate exchange. He said
that he did not expect to receive anything other than the $81.98
he received from the FSR.
During the deposition, plaintiff acknowledged that other
than conversations with his counsel, he had no basis for his
belief that on September 16, 2004, he paid more in connection
with his currency exchange that he had agreed to pay. He further
confirmed that other than conversations with his attorney, he had
no basis for his allegation that defendant skimmed and stole some
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of his money. Plaintiff neither decided to hire an attorney nor
felt he had to bring a lawsuit against defendant until he had
discussions with his present attorney.
Subsequently, the parties deposed Teter on January 27, 2006.
Teter disclosed that she retired four weeks prior to her
deposition. She further testified that she had been deposed
twice before due to her expertise in foreign currency. She
stated, however, that her expertise as to foreign currency buying
and selling procedures was limited to defendant's policies.
Teter then testified as to defendant's procedures for conducting
buy and sell transactions with customers. She distinguished the
transactions in that, in a buy transaction, defendant receives
foreign currency from a customer in exchange for United States
dollars. Conversely, in a sell transaction, defendant provides a
customer foreign currency in exchange for United States dollars.
Teter stated that during a buy transaction, as occurred in
the case at bar, the FSR first asks the consumer as to which
currency he wishes to exchange if not identified and how many
increments of that currency he wants to transact. The FSR then
quotes the consumer the applicable rate of exchange in effect for
that business day, the transaction or service fee, and the United
States dollar equivalent for that transaction. The FSR does not,
however, inform the customer for what amount the defendant
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purchased the currency it sells to a customer. Teter stated that
the FSRs do not know the rate at which defendant buys currency.
She further asserted that, as in other retail establishments,
even if the FSR possessed the information, he or she would not
disclose it to the customer.
With respect to an individual transaction, Teter explained
that defendant does not generate any revenue on a single "buy"
transaction other than the service fee. Rather, revenue does not
arise until defendant resells the currency on a "sell" exchange.
The revenue generated from these transactions is not calculated
for each individual transaction, but is determined on a teller
(TSO) till level for all foreign currency cash notes that would
have been sold on a given day.
Teter stated that all currencies, notes, and cash, which are
sold and bought on different days at varying exchange rates, are
lumped together. As such, certain currencies could sit in a TSO
till for a number of days before that exact currency was involved
in another transaction. Thus, a weighted cost average determines
revenue generated. Teter further testified that the constant
varying of exchange rates affects the total revenue generated.
Teter again confirmed that defendant charges a customer a
transaction fee per currency exchange. She explained that the
fee varied between defendant's offices and markets. However,
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Teter stated, "Well as I understand the process, once the fee is
changed in the express change system, then it becomes constant in
terms of how it appears on the rate board and in express change."
She further asserted that the fee became "constant" for a
particular office.
Teter also testified that, as stated in her affidavit, FSRs
are trained to disclose a transaction fee to customers. During
training, FSRs are informed that defendant purchases currency at
a lower wholesale rate than that used in transactions involving
sales of the same currency. She did not know whether FSRs are
told to inform customers of the difference in exchange rates.
Teter explained that each TSO orders foreign currency cash
notes from defendant's United States money center in Las Vegas.
The money center then receives foreign currency notes from its
England office, which is the Global Foreign Exchange, and
supplies the TSOs with their orders. Each TSO has set limits
that it must stay within on a daily basis. Teter confirmed that
the Global Foreign Exchange is responsible for purchasing
currency. In addition, the Las Vegas office buys back excess
currency cash notes from TSOs, which are then either returned to
the Global Foreign Exchange or distributed to other TSOs.
When asked as to how defendant profited from its business,
Teter stated, "Our TSOs will buy currency that they acquire via
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the Las Vegas money center. Those currencies are then marked up
a percentage and sold to retail customers." She also testified
that fees are assessed to retail customers for transactions.
Teter explained that the "percentage markups" are determined
by local market managers who are responsible for the operation of
TSOs within their given region. She stated that defendant had a
system of tiers across the United States to determine markup
rates. Each local market manager then determined the tier rate
to apply in a given market based on the local competition. Teter
stated that the tier would reflect "the spread rate on a
percentage basis."
Teter acknowledged that the retail rate at which defendant
buys currency from a customer differs from the rate at which it
sells the currency. She then confirmed that defendant's goal was
to profit from the spread rate, which is the difference between
the defendant's wholesale rate and plaintiff's retail rate.
Teter further testified that the words "total fees," as used
in plaintiff's transaction, "reflect the total amount of fees
that this particular customer paid to [defendant] for the
transactions that are listed in express change." She confirmed
that plaintiff paid a "total fee" of $3 for his transaction. She
also again stated that defendant did not generate any other
revenue from its individual transaction with plaintiff. That
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said, defendant may have generated revenue in addition to the $3
fee if it sold the pesos it bought from plaintiff at a later date
for a better rate. Teter stated, "I would hope that we would
generate additional revenue over and above the $3 on this 1,050
pesos that were sold to us on the 16th of September. That would
be my hope."
Thereafter, on March 21, 2006, the circuit court granted
defendant's motion for summary judgment following the parties'
respective arguments. In granting summary judgment, the circuit
court stated:
"Counsel, when I ruled on the Motion to
Dismiss, I denied the Motion to Dismiss
because I can only grant such a motion on the
face of the Complaint where there was no set
of facts that the plaintiff could prove that
would allow them to recover. And if you
could introduce evidence that somehow
portrayed this $3 fee as the absolute net
fee, then of course, you could recover.
But since the Motion to Dismiss, you
have taken discovery. The plaintiff's
deposition has been taken, and the plaintiff
is unable to characterize this fee as the net
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fee or point to any misrepresentation made by
American Express. You have also been unable
to establish that had the plaintiff
transacted business elsewhere, there would
have been a different result. So I am going
to grant the Motion for Summary Judgment."
Plaintiff now appeals.
ANALYSIS
This court reviews a circuit court's order granting summary
judgment de novo. Novakovic v. Samutin, 354 Ill. App. 3d 660,
666 (2004). Summary judgment is appropriate where the
"pleadings, depositions, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2004).
The trial court must construe the record against the moving party
and may only grant summary judgment where the record shows that
the movant's right to relief is clear and free from doubt.
Samutin, 354 Ill. App. 3d at 666. That said, the moving party is
entitled to judgment as a matter of law where the nonmoving party
fails to make a sufficient showing of an essential element of the
case where the nonmoving party bore the burden of proof. Swisher
v. Janes, 239 Ill. App. 3d 786, 794 (1992).
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In this case, plaintiff alleged that defendant violated the
Illinois Consumer Fraud and Deceptive Business Practices Act
(Act) (815 ILCS 505/1 et seq. (West 2004)) by misrepresenting the
profit that it generated from the September 16, 2004, transaction
in which plaintiff exchanged Mexican pesos for United States
dollars. The Act is a "regulatory and remedial statute intended
to protect consumers, borrowers, and business people against
fraud, unfair methods of competition, and other unfair and
deceptive business practices." Johnson v. Matrix Financial
Services Corp., 354 Ill. App. 3d 684, 690 (2004). To establish a
claim under the Act, plaintiff had to show that defendant
committed a deceptive act or practice, that defendant intended
for plaintiff to rely on the deception, and that the deception
occurred in the course of conduct involving trade or commerce.
Johnson, 354 Ill. App. 3d at 690. The Act defines a deceptive
act in pertinent part as
"the use or employment of any deception,
fraud, false pretense, false promise,
misrepresentation or the concealment,
suppression or omission of any material fact,
with intent that others rely upon the
concealment, suppression or omission of such
material fact *** in the conduct of any trade
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or commerce." 815 ILCS 505/2 (West 2004).
The Act is to be liberally construed in order to effectuate its
purpose. Johnson, 354 Ill. App.3d at 690.
Here, the circuit court held that plaintiff failed to
establish his claim under the Act where he "was unable to
characterize [the $3 service fee] as the net fee or point to any
misrepresentation made by American Express." The court further
determined that plaintiff failed to show damages. We agree.
As he did in the court below, plaintiff bases his entire
argument in this court on Covarrubias v. Bancomer, 351 Ill. App.
3d 737 (2004). In Bancomer, the plaintiff utilized the services
of the defendant monetary transfer service to send the equivalent
of $100 to a relative in Mexico for a $12 fee. The transaction
receipt showed a $12 "Net Sale Fee" and stated that at a "Sure
Money Exchange Rate" of 9.71 pesos to the United States dollar,
the plaintiff's relative received 971 pesos. The receipt also
had a line that provided, "Current Interbank Exchg Rate: 0."
A few months after the transaction, the plaintiff filed a
complaint in which he alleged that the defendant violated the Act
because it had paid considerably less than $100 for the 971 pesos
it provided the plaintiff's relative. As such, he argued that
the defendant deceptively labeled the transaction as providing a
"net sale fee" of $12 when the defendant also earned a profit by
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obtaining the 971 pesos it provided the plaintiff's relative for
less than $100. The circuit court dismissed the plaintiff's
claim based on its conclusion that the defendant was not under a
duty to disclose that its 9.71 exchange rate included a profit.
Bancomer, 351 Ill. App. 3d at 738-39. On appeal, however, the
reviewing court reversed the circuit court and held that the
plaintiff did state a cause of action under the Act. Bancomer,
351 Ill. App. 3d at 742.
Although we acknowledge the factual similarities between
Bancomer and the case at bar, we find plaintiff's reliance on
Bancomer to be unpersuasive. First, we observe that the Bancomer
court's analysis relied heavily on Martin v. Heinold Commodities,
Inc., 163 Ill. 2d 33 (1994), and Bernhauser v. Glen Ellyn Dodge,
Inc., 288 Ill. App. 3d 984 (1997). We find those cases
distinguishable.
In Martin, 163 Ill. 2d at 51, the plaintiff purchased
commodity options contracts through the defendant, Heinold
Commodities, Inc. Following a London Commodity Option (LCO)
transaction, the defendant labeled a commission as a foreign
service fee in its summary disclosure statement to plaintiff.
The court concluded that the plaintiff was thus led to believe
that the "fee" was an additional cost that the defendant incurred
and paid to a third party in LCO transactions. Martin, 163 Ill.
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2d at 51. Despite the defendant's protestations that the
labeling complied with the Commodity Futures Trading Commission's
regulations found in the Code of Federal Regulations (CFR), and
thus served as a defense to a violation of the Act, our supreme
court held that the defendant not only violated the CFR but
affirmed the lower courts' rulings that the defendant had
violated the Act. Martin, 163 Ill. 2d at 51-53. In so holding,
our supreme court explained, "However, we simply note that
Heinold's deception was not in failing to disclose the exact
amount of its compensation, but in failing to disclose that the
foreign service fee was a commission, from which it would derive
compensation." (Emphasis in original) Martin, 163 Ill. 2d at
52.
In Bernhauser, 288 Ill. App. 3d at 986-87, plaintiffs
brought separate lawsuits against defendant car dealers in which
plaintiffs alleged that the respective defendants placed the fees
for extended-service contracts under the heading "Amounts Paid to
Others for You" in their respective retail installment contracts
(RIC), and thus represented the extended-service contract fees as
"pass through charges." The records showed, however, that the
defendants merely paid administrative fees to third parties and
pocketed the balance of the extended-service contract fee. That
said, the respective circuit courts dismissed plaintiffs' claims
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pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West
1994)) where the courts found that the Truth in Lending Act (15
U.S.C. § 1601 et. seq. (1994)) permitted the nondisclosure of
where the extended-service contract money was going. Bernhauser,
288 Ill. App. 3d at 987-88.
On appeal, however, the reviewing court reversed the circuit
courts' rulings in a consolidated ruling after determining that
the plaintiffs stated a prima facie case under the Act.
Bernhauser, 288 Ill. App. 3d at 991. In so ruling, the court
determined that the defendants' practice did not comply with the
Truth in Lending Act and Regulation Z (12 C.F.R. § 226 (1979)).
Bernhauser, 288 Ill. App. 3d at 992.
As such, the defendants in Martin and Bernhauser mislabeled
fees on receipts as payments to third parties when those fees
were all or in part profits retained by the defendants. Bancomer
did not entail the mislabeling of a profit as a fee but, rather,
involved the defendant's failure to reveal that it received a
better exchange rate when it bought Mexican pesos than the
plaintiff received when he transferred $100 to Mexico for the
Mexican pesos his relative received. Consequently, it is
questionable whether the holdings in Martin and Bernhauser
provide support for the holding in Bancomer.
More significantly, we recognize the procedural differences
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between Bancomer and the case at bar. In Bancomer, the reviewing
court reversed the circuit court's order granting the defendant's
motion to dismiss pursuant to section 2-615 of the Code (735 ILCS
5/2-615 (West 2004)). Bancomer, 351 Ill. App. 3d at 742.
Conversely, the case at bar involves a circuit court's order
granting summary judgment (735 ILCS 5/2-1005 (West 2004)) after
an earlier denial of defendant's motion to dismiss. Thus, the
circuit court here possessed a more developed record of the
parties' transaction when making its ruling. This court also has
the benefit of this developed record.
Teter's and Norton's affidavits, coupled with Teter's and
plaintiff's depositions, show that upon plaintiff's entrance into
defendant's office, the electronic exchange rate board displayed
an exchange rate of 0.080936652 United States dollars per Mexican
peso. The FSR informed plaintiff of this exchange rate and also
revealed that defendant charged a $3 fee per transaction. The
FSR then conducted the transaction only after plaintiff agreed to
the exchange rate and service fee. Upon completion of the
transaction, plaintiff received a receipt which noted the $3
transaction fee as "fees" and "total fees" and did not object.
In addition, Teter disclosed that defendant receives a
better exchange rate when its Global Foreign Exchange office in
England purchases currency than a customer receives on an
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individual transaction due to the fact that defendant receives a
wholesale rate as opposed to a customer retail rate. Teter
further admitted that defendant clearly hoped to obtain
additional revenue from its customer transactions.
Thus, unlike Bancomer, the record shows that defendant at
bar did not represent the transaction fee as a "net sale fee" nor
did it imply that the interbank exchange rate was zero.
Nonetheless, despite the language used on the receipt, we find
that defendant's profit-seeking behavior should have been evident
to plaintiff. The Seventh Circuit recognized this economic
reality in In re Mexico Money Transfer Litigation, 267 F.3d 743
(7th Cir. 2001), a case which the Bancomer court declined to
follow without much explanation.
In In re Mexico Money Transfer Litigation, the plaintiffs
filed a class action complaint in which they alleged that the
defendants MoneyGram and Western Union failed to disclose that
they generated profits in addition to the transaction fees they
charged for currency transfers based on the different exchange
rate they received as compared to a customer. Although the
parties settled out of court, some plaintiff class members opted
out of the agreement and challenged it in court. Following the
district court's affirmation of the award, the objectors
appealed. On appeal, the Seventh Circuit not only found the
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settlement adequate but commented:
"No state or federal law requires either
currency exchanges or wire-transfer firms to
disclose the interbank rate at which they buy
specie, as opposed to the retail rate at
which they sell currency (and the retail
price is invariably disclosed). That is why
the plaintiffs have been driven to make
generic fraud claims. But since when is
failure to disclose the precise difference
between wholesale and retail prices for any
commodity 'fraud'?" In re Mexico Money
Transfer Litigation, 267 F.3d at 749.
The Seventh Circuit then stated:
"Money is just a commodity in an
international market. [Citation.] Pesos are
for sale-at one price for those who buy in
bulk (parcels of $5 million or more) and at
another, higher price for those who buy at
retail and must compensate the middlemen for
the expense of holding an inventory,
providing retail outlets, keeping records,
ensuring that the recipient is the one
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designated by the sender, and so on. Neiman
Marcus does not tell customers what it paid
for the clothes they buy, nor need an auto
dealer reveal rebates and incentives it
receives to sell cars. This is true in
financial markets no less than markets for
physical goods." In re Mexico Money Transfer
Litigation, 267 F.3d at 749.
We find In re Mexico Money Transfer Litigation instructive.
Defendant at bar, much like a retailer in any other industry,
failed to disclose to plaintiff that it purchased a commodity at
a wholesale rate, which it then sold to the plaintiff at a
marked-up retail rate. Despite plaintiff's protestations, we do
not find that such behavior constitutes a deceptive act. To
conclude otherwise would discriminate against defendant simply
based on the commodity - currency - that it buys and sells. As
such, we conclude that plaintiff cannot establish that defendant
committed a deceptive act by labeling the $3 service fee as
"total fees" on plaintiff's receipt.
Moreover, even if plaintiff presented a question of fact as
to the existence of a deceptive act, we find that he failed to
demonstrate that he suffered any damages. Plaintiff argues that
the damages he incurred should be measured as the difference
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between the rate which defendant paid plaintiff for his pesos and
the rate defendant received when defendant subsequently sold
those same pesos. As previously discussed, plaintiff had no
access to the wholesale rate which defendant received as a result
of selling the pesos in very large quantities, as explained in In
re Mexico Money Transfer Litigation, 267 F.3d at 749.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
circuit court.
Affirmed.
NEVILLE and MURPHY, JJ., concur.
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