UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

WILDFIRE CREDIT UNION, a ) 

Michigan Credit Union, ) 

) 

P1 ainti ff, ) 

) 

vs. ) 

) 

FISERV, INC., a Wisconsin ) 

corporation, also known as ) 

FISERV SOLUTIONS, INC., ) 

) 

Defendant. ) 

) 

Case No. 1:14-cv-14359-TLL-PTM 

DEFENDANT FISERV SOLUTIONS, INC. 

ANSWER TO PLAINTIFF'S COMPLAINT AND COUNTERCLAIM 

Defendant, Fiserv Solutions, Inc. ("Defendant" or "Fiserv" I ), by and 

through its undersigned attorneys, answers the allegations of the plaintiff, Wildfire 

Credit Union ("Plaintiff' or "Wildfire"), by paragraph and asserts its affirmative 

defenses, as follows: 

Fiserv, Inc. is not a proper defendant in this action and has requested 

dismissal in a motion filed today. To the extent an answer is required from Fiserv, 

Inc., it hereby joins in the answer and affirmative defenses pleaded herein. 

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JURISDICTION AND VENUE 

Defendant admits that this is a civil action and, upon information and 

belief, admits that the matter in controversy exceeds the sum or value of $75,000, 

exclusive of interest and costs, is between citizens of different States, and this 

Court has original jurisdiction pursuant to 28 U.S.C. § 1332. Defendant admits 

that venue is appropriate in this District. Defendant denies that declaratory or 

injunctive relief is appropriate in this case. 

THE PARTIES 

1 Upon information and belief, Defendant admits the allegations 

of Paragraph 1. 

2. With respect to the allegations in Paragraph 2, Defendant denies 

that Fiserv, Inc. is "also known as" Fiserv Solutions, Inc.; admits that its 

headquarters are located in Brookfield, Wisconsin; admits that it is a corporation 

organized under the laws of the State of Wisconsin; denies the remaining 

allegations of Paragraph 2. 

FACTUAL ALLEGATIONS 

3. With respect to the allegations in Paragraph 3, Defendant 

admits that on or around October 25, 2012, a meeting between representatives of 

Fiserv and Wildfire took place; states that the meeting was to discuss a potential 

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change to Wildfire's "core" processing system to a solution provided by Fiserv 

known as "Acumen"; denies the remaining allegations of Paragraph 3. 

4. Defendant admits that on or about November 19, 2012, Fiserv 

representatives presented a demonstration of Acumen to Wildfire representatives. 

5. Defendant admits that on or about December 21, 2012, Fiserv 

representatives met with Wildfire representatives to provide an overview of the 

Acumen technology. 

6. Defendant admits that on or about January 8 and 9, 2013, Fiserv 

representatives met with Wildfire's representatives, including Wildfire's vice 

presidents and managers, and provided a "hands-on" product demonstration of 

Acumen. 

7. Defendant admits that until mid-January 2013, its discussions 

with Wildfire related to the Acumen product; denies the remaining allegations of 

Paragraph 7. 

8. Defendant admits the allegations of Paragraph 8. 

9. Defendant admits the allegations of Paragraph 9; affirmatively 

states that the referenced Bloomberg news report speaks for itself. 

10. Defendant admits the allegations in Paragraph 10, affirmatively 

states that Fiserv's website speaks for itself. 

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11. Defendant admits that after its acquisition of Open Solutions, 

Inc., which offered another "core system" product known as DNA, for various 

business and strategic reasons, Fiserv decided that it would no longer offer 

Acumen to customers in the United States and began discussing DNA with 

Wildfire; denies the remaining allegations of Paragraph 11. 

12. Defendant denies the allegations of Paragraph 12. 

13. Defendant states that it lacks knowledge or information 

sufficient to form a belief as to the truth of the allegations of Paragraph 13 with 

respect to what Wildfire thought was "important" or under what circumstances 

Wildfire would be "interested" in DNA; denies making any promise "that the 

Acumen screens would replace the DNA screens"; denies the remaining 

allegations in Paragraph 13. 

14. Defendant admits that on or about February 6, 2013, a meeting 

took place between Fiserv representatives and Wildfire representatives to discuss 

Wildfire's interest in DNA; denies the remaining allegations of Paragraph 14. 

15. On or about March 24, 2014, Fiserv representatives and 

Wildfire representatives met to discuss pricing of core processing solutions offered 

by Fiserv if Wildfire decided to change from its Symitar platform; denies the 

remaining allegations of Paragraph 15. 

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16. Defendant admits that its representatives communicated with 

Wildfire from time to time in February and March of 2013 to discuss Wildfire's 

interest in DNA; denies the remaining allegations of Paragraph 16. 

17. Defendant admits that on or around March 20, 2013, Fiserv 

representatives and Wildfire representatives, including its vice-presidents and key 

IT staff, held a meeting to discuss Wildfire's interest in DNA; denies the remaining 

allegations of Paragraph 17. 

18. Defendant admits that the March 20, 2013 meeting included a 

product demonstration and addressed a variety of subjects relating to Wildfire's 

interest in DNA; denies the remaining allegations of Paragraph 18. 

19. Defendant admits that on or about March 21, 2013, during 

meetings between Fiserv representatives and Wildfire representatives to discuss 

Wildfire's interest in DNA, the parties discussed DNAcreator; denies the 

remaining allegations of Paragraph 19. 

20. Defendant admits that on or around March 28, 2013, a meeting 

took place between Fiserv representatives and Wildfire representatives to discuss 

Wildfire's interest in DNA that involved a product demonstration of DNA and 

related products; denies the remaining allegations of Paragraph 20. 

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21. Defendant admits that Mr. Escue met with Wildfire 

representatives on multiple occasions in and around April, 2013; denies the 

remaining allegations of Paragraph 21. 

22. Defendant denies the allegations of Paragraph 22. 

23. Defendant admits that its representatives communicated with 

Wildfire representatives from time to time in April and May of 2013 to discuss 

Wildfire's interest in DNA; denies the remaining allegations of Paragraph 23. 

24. Defendant admits that it was aware that Wildfire was using the 

Symitar platform and that Defendant had a commercial interest in converting 

Symitar customers to Fiserv solutions; denies the remaining allegations of 

Paragraph 24. 

25. Defendant admits that a meeting between Fiserv representatives 

and Wildfire representatives occurred on or around June 14, 2013 at Fiserv's 

offices in Brookfield; denies the remaining allegations of Paragraph 25. 

26. Defendant admits that the June 14, 2013 meeting generally 

addressed the topics set forth in Paragraph 26, as well as others; affirmatively 

states that the text of Exhibit 5 speaks for itself; denies the remaining allegations of 

Paragraph 26. 

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27. Defendant states that the allegations of Paragraph 27 are an 

incomplete and inaccurate paraphrasing of the discussions that occurred during the 

June 14, 2013 meeting and, therefore, denies the allegations of Paragraph 27. 

28. Defendant admits that Wildfire and Fiserv representatives 

continued to communicate during June and July of 2013 with respect to Wildfire's 

interest in DNA; denies the remaining allegations of Paragraph 28. 

29. Defendant admits that Wildfire and Fiserv entered into a 

"Master Agreement" dated as of July 18, 2013; denies the remaining allegations of 

Paragraph 29. 

30. Defendant denies the allegations of Paragraph 30. 

31. Defendant denies the allegations of Paragraph 31. 

32. Defendant denies the allegations of Paragraph 32. 

33. Defendant denies the allegations of Paragraph 33. 

34. Defendant denies the allegations of Paragraph 34. 

35. Defendant admits that Neil Jones was assigned as the Project 

Manager for Wildfire's conversion; states that it lacks knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations of Paragraph 

35, and therefore denies them. 

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36. Defendant admits that a "kickoff' meeting among Fiserv 

representatives and Wildfire representatives, including Mr. Jones, took place on or 

around December 11 and 12, 2013. 

37. Defendant denies the allegations of Paragraph 37. 

38. Defendant admits that Benecke sent an email to Mr. Jones on or 

about February 3, 2014; affirmatively states that the text of Exhibit 7 speaks for 

itself; denies the remaining allegations of Paragraph 38. 

39. Defendant denies the allegations of Paragraph 39. 

40. Defendant admits that Schuiling sent an email to Mr. Jones and 

Ms. Miela on or about April 8, 2014; affirmatively states that the text of Exhibit 8 

speaks for itself; denies the remaining allegations of Paragraph 40. 

41. Defendant denies the allegations of Paragraph 41. 

42. Defendant denies the allegations of Paragraph 42. 

43. Defendant admits that Schuiling sent an email to Mr. Jones on 

or about April 22, 2014; states that the text of Exhibit 9 speaks for itself; denies the 

remaining allegations of Paragraph 43. 

44. Defendant denies the allegations of Paragraph 44. 

45. Defendant admits that Fiserv representatives and Wildfire 

representatives had various meetings in and around April 15, 2014; denies the 

remaining allegations of Paragraph 45. 

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46. Defendant admits that Mr. Cameron met with Wildfire 

representatives on or about April 16, 2014; denies the remaining allegations of 

Paragraph 49. 

47. Defendant admits that Fiserv representatives and Wildfire 

representatives continued to meet for the purposes of performing the agreed-upon 

implementation and conversion tasks; denies the remaining allegations of 

Paragraph 47. 

48. Defendant states that it lacks knowledge or information 

sufficient to form a belief as to the truth of the allegations of Paragraph 48 and 

therefore denies same. 

49. Defendant admits that in the Spring of 2014, Erik Ristow, a 

Fiserv representative, began working with Wildfire, and that in May of 2014, Jan 

Walsh from Fiserv also began working with Wildfire; denies the remaining 

allegations of Paragraph 49. 

50. Defendant states that it lacks knowledge or information 

sufficient to form a belief as to the truth of the allegations of Paragraph 50 and 

therefore denies same. 

51. Defendant denies the allegations in Paragraph 51. 

52. Defendant denies the allegations in Paragraph 52. 

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53. Defendant admits that, in or around June 12, 2014, Benecke 

spoke with Mr. Viehler by telephone; denies the remaining allegations of 

Paragraph 53. 

54. Defendant admits that a meeting between Santo Cannone and 

Shuiling took place on or around June 16, 2014, to discuss DNAcreator; denies 

Plaintiff's characterization of the meeting; and denies the remaining allegations of 

Paragraph 54. 

55. Defendant admits that Benecke, Shuiling and Sam Boggs 

discussed DNAcreator at some point in June, 2014; denies Plaintiff s 

characterization of the conversation; states that the allegations of Paragraph 55 are 

an incomplete and inaccurate paraphrasing of the conversation and, therefore, 

denies the remaining allegations of Paragraph 55. 

56. Defendant denies the allegations of Paragraph 56. 

57. Defendant admits that, at some point in time, Mr. Escue 

suggested to Wildfire that they address any outstanding issues with Mr. Viehler; 

denies the remaining allegations of Paragraph 57. 

58. Defendant admits that a telephone conversation took place 

among Mr. Viehler, Benecke and Schuiling in late July 2014; denies the remaining 

allegations of Paragraph 58. 

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59. Defendant admits that Fiserv representatives and Wildfire 

representatives continued to meet for the purposes of performing the agreed-upon 

implementation and conversion tasks in late July and early August of 2014; denies 

the remaining allegations of Paragraph 59. 

60. Defendant admits that on or around August 14, 2014 a meeting 

took place at Wildfire's offices among Fiserv representatives and Wildfire 

representatives and that at this meeting the "executive sponsor" for Wildfire 

changed from Mr. Boggs to Mr. Cannone; denies the remaining allegations of 

Paragraph 60. 

61. Defendant denies the allegations of Paragraph 61. 

62. Defendant admits that Benecke met with Mr. Viehler on or 

about August 22, 2014; denies the remaining allegations of Paragraph 62. 

63. Defendant admits that on or about August 27, 2014 a meeting 

between Fiserv and Wildfire representatives occurred to discuss a plan for 

achieving all of the feature customizations requested by Wildfire (none of which 

were an impediment to taking DNA "live"); except as so stated, denies the 

allegations of Paragraph 63. 

64. Defendant denies the allegations of Paragraph 64. 

65. Defendant admits that Benecke contacted Mr. Viehler on or 

about September 11, 2014, and stated Wildfire's intent to terminate the Master 

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Agreement and that Benecke sent Mr. Viehler the letter attached as Exhibit 10; 

except as so stated, denies the allegations of Paragraph 65. 

66. Defendant denies the allegations of Paragraph 66. 

67. Defendant denies the allegations of Paragraph 67. 

68. Defendant denies the allegations of Paragraph 68. 

69. Defendant denies the allegations of Paragraph 69. 

70. Defendant admits that Mr. Vielehr and others met with Benecke 

and Schuiling on or about September 18, 2014; states that the allegations of 

Paragraph 70 are an incomplete and inaccurate paraphrasing of the discussions that 

occurred during the September 18, 2014 meeting and, therefore, denies the 

remaining allegations of Paragraph 70. 

71. Defendant denies the allegations of Paragraph 71. 

72. Defendant denies the allegations of Paragraph 72. 

73. Defendant admits that Wildfire requested that Defendant 

terminate the Master Agreement and refund all fees paid by Wildfire; denies that 

Wildfire is entitled to termination, a refund or any other remedies from Defendant, 

contractual or otherwise. 

74. Defendant denies the allegations of Paragraph 74 

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COUNT I 

DECLARATORY RELIEF 

75. Defendant incorporates by reference as though fully set forth 

herein its answers to Paragraphs 1-74 of the Complaint. 

76. Defendant denies the allegations of Paragraph 76. 

77. Defendant denies the allegations of Paragraph 77. 

78. Defendant denies the allegations of Paragraph 78. 

79. Defendant denies the allegations of Paragraph 79. 

80. Defendant states that it lacks knowledge of Wildfire's "wishes" 

and denies the allegations of Paragraph 80. 

81. Defendant denies that Plaintiff is entitled to the relief it requests 

in Paragraph 81. 

COUNT II 

FRAUDULENT MISREPRESENTATION 

82. Defendant incorporates by reference as though fully set forth 

herein its answers to Paragraphs 1-81 of the Complaint. 

83. Defendant denies the allegations of Paragraph 83. 

84. Defendant denies the allegations of Paragraph 84. 

85. Defendant denies the allegations of Paragraph 85. 

86. Defendant denies the allegations of Paragraph 86. 

87. Defendant denies the allegations of Paragraph 87. 

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COUNT III 

NEGLIGENT REPRESENTATION 

88. Defendant incorporates by reference as though fully set forth 

herein its answers to Paragraphs 1-87 of the Complaint. 

89. Defendant incorporates by reference as though fully set forth 

herein its answers to Plaintiff's Factual Allegations and denies the allegations of 

Paragraph 89. 

90. Defendant denies the allegations of Paragraph 90. 

91. Defendant denies the allegations of Paragraph 91. 

92. Defendant denies the allegations of Paragraph 92. 

93. Defendant denies the allegations of Paragraph 93. 

94. Defendant denies the allegations of Paragraph 94. 

COUNT IV 

SILENT FRAUD 

95. Defendant incorporates by reference as though fully set forth 

herein its answers to Paragraphs 1-94 of the Complaint. 

96. Defendant denies the allegations of Paragraph 96. 

97. Defendant denies the allegations of Paragraph 97. 

98. Defendant denies the allegations of Paragraph 98. 

99. Defendant denies the allegations of Paragraph 99. 

100. Defendant denies the allegations of Paragraph 100. 

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101. Defendant denies the allegations of Paragraph 101. 

COUNT V 

BREACH OF CONTRACT 

102. Defendant incorporates by reference as though fully set forth 

herein its answers to Paragraphs 1-101 of the Complaint. 

103. Defendant incorporates by reference as though fully set forth 

herein its answers to Plaintiff s Factual Allegations. Defendant admits that 

Wildfire entered into the Master Agreement and affirmatively states that the 

Master Agreement's terms and attached schedules speak for themselves and denies 

Plaintiff's characterizations of the Master Agreement and its Schedules to the 

extent those characterizations are inconsistent with their plain terms. 

104. Defendant denies the allegations of Paragraph 104. 

105. Defendant denies the allegations of Paragraph 105. 

106. Defendant denies the allegations of Paragraph 106. 

107. Defendant denies the allegations of Paragraph 107. 

GENERAL DENIAL 

Unless specifically admitted herein, Defendant denies each and every 

allegation contained in the Complaint and demands strict proof thereof. 

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AFFIRMATIVE DEFENSES 

Without accepting the burden of proof for any issue for which the 

Defendant does not have the burden as a matter of law, the Defendant sets forth the 

following additional defenses: 

1. The Complaint fails to state a claim upon which relief may be 

granted. 

2. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the express terms of the parties' Master Agreement. 

3. Plaintiff is not entitled to relief because it did not provide 

Defendant with written notice of the alleged material breach or an opportunity to 

cure as required by the parties' Master Agreement. 

4. Plaintiff is not entitled to relief, in whole or in part, because 

Plaintiff did not plead the material terms of the Master Agreement. 

5. Plaintiff s claims are barred, in whole or in part, by its own 

material breaches of the Master Agreement, including, but not limited to, breach of 

the implied covenant of good faith and fair dealing. As such, Defendant was 

excused from any further performance under the Master Agreement. Moreover, 

the Defendant, at all times, performed as required by the Master Agreement. 

6. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of waiver. 

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7. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of consent and acquiescence. 

8. Upon information and belief, Plaintiff has failed to mitigate any 

actual damages it alleges to have incurred. 

9. Plaintiff has not alleged or sustained any actual damages which 

were caused by the Defendant or for which the Defendant is liable. 

10. In the alternative, any actual damages that the Plaintiff may 

have incurred are the result of acts or omissions by individuals or entities other 

than the Defendant and for which the Defendant is not legally responsible. 

11. The conduct of the Defendant that the Plaintiff complains of 

was not the proximate cause of the Plaintiff s alleged losses. 

12. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of unjust enrichment. 

13. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of unclean hands. 

14. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the parol evidence rule. 

15. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of laches. 

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16. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of equitable estoppel. 

17. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of ratification. 

18. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrines of recoupment and setoff. 

19. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of contributory negligence. 

20. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of assumption of risk. 

21. At all times, Defendant acted in good faith and with clean 

hands. 

22. All or portions of any harm allegedly suffered by the Plaintiff is 

attributable to causes other than any alleged conduct, acts or omissions of the 

Defendant. 

23. The Defendant did not know, and could not have known 

through the exercise of reasonable care, that any representations or omissions 

allegedly made to the Plaintiff in connection with DNA and the Master Agreement 

were materially false or misleading, or were misleading by reason of omitting to 

state any material fact. 

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24. The Plaintiff's claims of fraud against the Defendant are barred 

because the Plaintiff did not specifically and reasonably rely on any statements, 

representations or omissions by the Defendant. 

25. The Plaintiff's claims of fraud against the Defendant are barred 

because the Defendant owed no duty to the Plaintiff. 

26. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of in pari delicto. 

27. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the doctrine of last clear chance. 

28. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the economic loss doctrine. 

29. Some or all of the claims against the Defendant are barred, in 

whole or in part, by the gist of the action doctrine. 

30. Defendant reserves the right to amend this Answer to assert 

such other affirmative defenses as may become apparent through discovery or 

otherwise. 

COUNTERCLAIM 

Defendant Fiserv Solutions, Inc. ("Fiserv"), by its undersigned 

counsel, files this counterclaim against Plaintiff Wildfire Credit Union ("Wildfire") 

and alleges as follows: 

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PARTIES 

1. Wildfire is a Michigan credit union and maintains its principal 

place of business at 6640 Bay Road, Saginaw, Michigan. Among other things, 

Wildfire provides financial services to its members. 

2. Fiserv Solutions, Inc. is a corporation organized and existing 

under the laws of the State of Wisconsin and maintains its headquarters at 255 

Fiserv Drive, Brookfield, Wisconsin. Fiserv is a global leader in financial services 

technology, providing, among other things, account processing systems, electronic 

payment processing, products and services, interne and mobile banking systems 

and related solutions to a wide variety of financial institutions, including credit 

unions. 

JURISDICTION 

3. This is a civil action over which this Court has original 

jurisdiction under 28 U.S.C. § 1332, in that the matter in controversy exceeds the 

sum or value of $75,000, exclusive of interest and costs, and is between citizens of 

different States. 

FACTUAL ALLEGATIONS 

4. In October, 2012, Wildfire and Fiserv first met to discuss a 

potential change to Wildfire's core processing system from software provided by 

Symitar to solutions provided by Fiserv. A core system is the basic technology 

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platform that a financial institution uses to perform and deliver banking services to 

its customers. 

5. After nine months of discussion, product demonstrations and 

negotiations, Wildfire and Fiserv negotiated and executed a "Master Agreement," 

which is dated July 18, 2013. The Master Agreement was negotiated between 

sophisticated commercial parties at arms-length, is controlled by Delaware law, is 

a fully integrated agreement, and is enforceable. Both Wildfire and Fiserv were 

represented by able counsel in the negotiation of the Master Agreement. 

6. The Master Agreement and its Exhibits, Schedules, 

Attachments and Appendices set forth the obligations of Wildfire and Fiserv. 

Pursuant to the Master Agreement, Fiserv agreed to provide to Wildfire certain 

services and products in connection with the implementation of a core processing 

system product known as DNA and complementary software products. Pursuant to 

the Master Agreement, among other things, Wildfire agreed to pay certain license 

and maintenance fees. 

7. Under the terms of the Master Agreement, Wildfire also agreed 

to pay early termination fees if Wildfire terminated the DNA portions of the 

Master Agreement (or certain other products and services thereunder) before the 

contractually-agreed term expired. (DNA Software Schedule to the Software 

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Products Exhibit ("DNA Software Schedule"), § 1(h)(i); Software Products Exhibit 

to the Master Agreement ("Software Products Exhibit"), § 11(a).) 

8. The Master Agreement also provides for a contract term for 

Maintenance Services related to the DNA software, ending seven years after 

Wildfire went "live" with DNA. (DNA Software Schedule, § 3(a).) 

9. After executing the Master Agreement, the parties began the 

implementation and conversion process, during which Fiserv trained Wildfire on 

how to use DNA and related programming tools, and the parties used DNA in a 

testing mode in an effort to customize its applications to Wildfire's unique 

institutional needs. 

10. In a letter dated September 11, 2014, before Wildfire went 

"live" with DNA, Wildfire's President and Chief Executive Officer, Tim Benecke, 

notified Fiserv that it was disengaging from the DNA conversion project and 

demanded a full refund of fees paid to Fiserv for DNA. (A copy of this letter is 

attached as Exhibit 10 to Wildfire's Complaint.) 

11. On October 7, 2014, Wildfire again demanded termination in 

writing, contending that Fiserv had materially breached the Master Agreement 

because the conversion of Wildfire to DNA "cannot successfully occur within the 

timeline which Fiserv promised, and in the manner which Fiserv promised." 

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Fiserv denies these contentions, and despite them, Wildfire has yet to point to any 

express obligations in the Master Agreement that Fiserv failed to satisfy. 

12. Wildfire had no right to terminate the DNA portions of the 

Master Agreement (or certain other products and services thereunder) when it did, 

before the end of the seven-year contractual term, other than in accordance with 

the terms of the Master Agreement, which required payment by Wildfire of an 

early termination fee. (DNA Software Schedule, § 1(h)(i); see also Software 

Products Exhibit, § 11(a).) 

13. Due to Wildfire's early termination of the DNA portions of the 

Master Agreement and pursuant to its terms requiring payment of an early 

termination fee by Wildfire, on November 19, 2014, Fiserv issued an invoice to 

Wildfire for the early termination fees relating to DNA, which Wildfire has refused 

to pay. Wildfire has also refused to pay an October, 2014 invoice issued by Fiserv 

for Wildfire's first year of Maintenance Services for DNA. 

14. Wildfire's refusal to pay the DNA early termination fee, and 

the invoice for the first year of Maintenance Services related to DNA, along with 

its failure to pay the early termination fee related to other complementary products 

and services, are in direct contravention of the Master Agreement. 

15. Wildfire's early termination of the DNA portions of the Master 

Agreement and its refusal to pay the DNA early termination fee, and the invoice 

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for the first year of Maintenance Services related to DNA, along with its failure to 

pay the early termination fee related to other complementary products and services, 

have damaged Fiserv in those same amounts, plus any further amounts proven at 

trial. 

CLAIM FOR RELIEF 

BREACH OF CONTRACT 

16. Fiserv alleges and incorporates the allegations of Paragraphs 1 - 

15 of this Counterclaim as though fully set forth herein. 

17. Fiserv and Wildfire were parties to the Master Agreement, 

which imposed certain contractual duties and obligations on Wildfire. 

18. Prior to termination by Wildfire, Fiserv had performed its 

obligations under the Master Agreement. 

19. Wildfire breached the Master Agreement by, among other 

things, terminating the Master Agreement and certain products and services 

thereunder before the contractually-agreed term, which was seven years after 

Wildfire went live with the DNA software, without making payment to Fiserv of 

the DNA early termination fee, an invoice for the first year of DNA Maintenance 

Services, and the other early termination fee related to other complementary 

products and services, to which Fiserv was entitled under the terms of the Master 

Agreement. 

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20. By virtue of the Master Agreement and the resulting contractual 

relationship between Fiserv and Wildfire, Wildfire owed Fiserv a duty of good 

faith and fair dealing. 

21. As a result of Wildfire's actions and omissions, Wildfire 

breached the express requirements of the Master Agreement. Wildfire's actions 

and omissions further constituted a breach of the duty of good faith and fair 

dealing. 

22. As a direct and proximate result of Wildfire's breach of the 

Master Agreement, and further breach of the duty of good faith and fair dealing, 

Fiserv has been damaged in the amounts related to the early termination fee and 

the first year of DNA Maintenance Services, and the other early termination fee 

related to other complementary products and services, in an amount to be 

determined, to which Fiserv was entitled under the terms of the Master Agreement, 

plus any further amounts proven at trial, including attorneys' fees as provided in 

Section 11(h) of the Master Agreement. 

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Case 1:14-cv-14359-TLL-PTM ECF No. 10 filed 01/19/15 PageID.244 Page 25 of 27
RELIEF REQUESTED 

WHEREFORE, Fiserv respectfully requests that the Court enter 

judgment in its favor and against Wildfire in an amount to be proven at trial, plus 

pre-judgment interest and attorneys' fees per the terms of the Master Agreement, 

and that the Court award such other and further relief as this Court may deem just 

and proper. 

Dated: January 13, 2015 Respectfully submitted, 

/s/ Vanessa L. Miller 

Vanessa L. Miller (P67794) 

FOLEY & LARDNER LLP 

500 Woodward Avenue, Suite 2700 

Detroit, MI 48226 

Telephone: 313.234.7100 

Fax: 313.234.2800 

vmiller@foley.com 

Attorney for Fiserv Solutions, Inc. 

Andrew J. Wronski 

Elizabeth A. N. Haas 

Kate E. Gehl 

FOLEY & LARDNER LLP 

777 East Wisconsin Avenue 

Milwaukee, WI 53202-5306 

Telephone: 414.271.2400 

Fax No. 414.297.4900 

awronski@foley.com 

ehaas@foley.corn 

kgehl@foley.com 

Applications for Admission Pending 

Attorneys for Fiserv Solutions, Inc. 

26 

4817-9628-6752.4 

Case 1:14-cv-14359-TLL-PTM ECF No. 10 filed 01/19/15 PageID.245 Page 26 of 27
CERTIFICATE OF SERVICE

I hereby certify that on January 13, 2015, the foregoing Answer, Affirmative

Defenses and Counterclaim of Fiserv Solutions, Inc. was served upon Cindy

Rhodes Victor, Michael A. Kus and Jeffrey S. Horowitz at Ryan & Associates,

PLLC, 2851 High Meadow Circle, Suite 120, Auburn Hills, MI 48326 via e-mail

and first class mail, postage fully prepaid.

I also hereby certify that on January 19, 2015 the foregoing Answer,

Affirmative Defenses and Counterclaim of Fiserv Solutions, Inc., and this

Certificate of Service have been filed electronically and are available for

downloading and viewing from the Court’s ECF system. Notice of this filing will

be sent by email to all parties by operation of the Court’s ECF system.

/s/ Vanessa L. Miller

Vanessa L. Miller

500 Woodward Avenue, Suite 2700

Detroit, MI 48226

Telephone: 313.234.7100

Fax: 313.234.2800

vmiller@foley.com

Case 1:14-cv-14359-TLL-PTM ECF No. 10 filed 01/19/15 PageID.246 Page 27 of 27