of an attempt to monopolize or monopolization.
To prove monopolization or an attempt to monopolize under section 2, a plaintiff must demonstrate: (a) possession of monopoly power or a dangerous probability of the acquisition of such power, and (b) a specific intent to monopolize or willful acquisition or maintenance or monopoly power. United States v. Grinnell Corporation, 384 U.S. 563, 570-571, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); Pennsylvania Dental Association v. Medical Service Association of Pennsylvania, 745 F.2d 248, 260 (3rd Cir. 1984), cert. denied, 471 U.S. 1016, 85 L. Ed. 2d 303, 105 S. Ct. 2021 (1985). "In proving specific intent, a mere intention to prevail over rivals or improve market position is insufficient. Even an intent to perform acts that can be objectively viewed as tending toward the acquisition of monopoly power is insufficient, unless it also appears that the acts were not 'predominantly motivated by legitimate business aims.'" Pennsylvania, 745 F.2d at 260 (citations omitted).
The access provisions were instituted by PNB in 1979, at the outset of the MAC system. They were and are intended to structure PNB's distribution of network services, to provide a return to PNB for its prior and continuing activities in developing, maintaining and promoting the MAC network, and to prevent free riding by competitors on PNB's efforts. Such purposes are legitimate business aims under the antitrust laws. See e.g. The Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 97 L. Ed. 1277, 73 S. Ct. 872 (1953). Additionally, since the restrictions were in effect since the inception of the MAC network, it cannot be said that they were put in effect to "unreasonably restrain interbrand competition."
MAC entered the New Jersey market in 1980. At that time, it had zero percent of the market, and no ATMs in New Jersey were operated by financial institutions affiliated with MAC. The MAC contracts contained the same restrictive language prohibiting banks from accessing more than MAC cards in a MAC ATM. Therefore, it cannot be reasonably argued that the restrictive language was monopolistic in intent. The restriction is merely part and parcel of an obviously successful, comprehensive marketing strategy.
Because plaintiff has failed to make the showing of actual antitrust injury as required by § 16 of the Clayton Act, it does not have standing to bring this lawsuit. Therefore, we need not decide the issue of whether the merger violated the Sherman Act. Whatever harm may or may not occur to TREASURER by reason of the consolidation of MAC and CashStream is simply insufficient to state a claim of injury cognizable under the antitrust laws. Accordingly, plaintiff's application for a preliminary injunction is DENIED and defendant's motion for dismissal must be GRANTED.
An appropriate order will be entered.
THIS MATTER coming on before the Court on plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction and Cross Motions by the defendants to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6), and the Court having rendered a written Opinion of even date herewith,
IT IS on this 11th day of March, 1988,
ORDERED, that the application of plaintiff, The TREASURER, Inc. for a Temporary Restraining Order and Preliminary Injunction is hereby DENIED, and
ORDERED, that the Motion of defendants to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., be and the same is hereby GRANTED.