Sanchez v. American Express Travel Related Services Company

FOURTH DIVISION
March 29, 2007

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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.
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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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