UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

In re FICO Antitrust Litigation Case No. 20-cv-02114 

Honorable Edmond E. Chang 

Magistrate Judge M. David Weisman 

This document relates to: 

ALL ACTIONS 

FAIR ISAAC CORPORATION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION TO DISMISS THE PLAINTIFFS’ AMENDED COMPLAINTS 

Dated: December 1, 2023 Britt M. Miller 

Matthew D. Provance 

Michael A. Scodro 

MAYER BROWN LLP 

71 South Wacker Drive 

Chicago, IL 60606-4637 

(312) 782-0600 

(312) 701-7711—Facsimile 

bmiller@mayerbrown.com 

mprovance@mayerbrown.com 

mscodro@mayerbrown.com 

Counsel for Defendant 

Fair Isaac Corporation

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TABLE OF CONTENTS 

Page 

INTRODUCTION AND BACKGROUND .................................................................................. 1

ARGUMENT ................................................................................................................................. 4

I. The Amended Complaints Plead No New Facts To Support The PreviouslyDismissed Sherman Act Section 1 And Related State-Law Claims. ................................. 4

II. Plaintiffs Fail To State A Claim Based On FICO’s License Agreements. ........................ 7

A. The License Agreements Allow Distribution Of Non-FICO Credit Scores. ......... 7

1. The No Equivalent Products provision expressly allows 

competition. ............................................................................................... 7

a. The Credit Bureaus can and do market VantageScore. ................. 8

b. VantageScore can develop and sell any competing credit 

score to B2B Purchasers. ............................................................... 9

2. FICO’s Royalty Schedules do not foreclose competition. ....................... 11

a. There is no “penalty” rate for pre-qualification. .......................... 11

b. Plaintiffs fail to allege that pre-qualification represents a 

substantial portion of the alleged B2B Credit Score Market. ...... 13

3. VantageScore’s growth since 2013 independently shows that the 

license agreements have not substantially foreclosed competition. ......... 14

B. The Level Playing Field Provision Furthers Competition. .................................. 16

1. The Level Playing Field does not discourage discounting. ..................... 18

2. The Level Playing Field does not facilitate price coordination. .............. 18

III. Plaintiffs Otherwise Fail To State A Monopolization Claim. .......................................... 20

A. Any Claim Based On The Equifax Litigation Is Time-Barred. ........................... 20

B. The Alleged Disparagement Of VantageScore Is Not Actionable. ..................... 23

IV. Plaintiffs’ Derivative State-Law Claims Should Be Dismissed. ..................................... 25

CONCLUSION ............................................................................................................................ 25

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Al George, Inc. v. Envirotech Corp.,

939 F.2d 1271 (5th Cir. 1991) .................................................................................................23

Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp. LP,

592 F.3d 991 (9th Cir. 2010) ...................................................................................................13

Allied Tube & Conduit Corp. v. Indian Head, Inc.,

486 U.S. 492 (1988) .................................................................................................................25

Arnett Physician Grp., PC v. Greater LaFayette Health Servs., Inc.,

382 F. Supp. 2d 1092 (N.D. Ind. 2005) ...................................................................................24

Bank of Waunakee v. Rochester Cheese Sales, Inc.,

906 F.2d 1185 (7th Cir. 1990) ...................................................................................................6

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .................................................................................................................12

Blue Cross & Blue Shield United of Wis. V. Marshfield Clinic,

65 F.3d 1406 (7th Cir. 1995) .......................................................................................17, 18, 19

Bower v. Jones,

978 F.2d 1004 (7th Cir. 1992) ...................................................................................................6

Brown v. Visa U.S.A., Inc.,

674 F. Supp. 249 (N.D. Ill. 1987) ............................................................................................12

CDC Techs., Inc. v. IDEXX Lab’ys, Inc.,

186 F.3d 74 (2d Cir. 1999).......................................................................................................11

CDC Techs., Inc. v. IDEXX Lab’ys, Inc.,

7 F. Supp. 2d 119 (D. Conn. 1998), aff’d, 186 F.3d 74 (2d Cir. 1999) ...................................10

Chase Mfg., Inc. v. Johns Manville Corp., 

2019 WL 2866700 (D. Colo. July 3, 2019) .............................................................................14

City of Rockford v. Mallinckrodt ARD, Inc.,

360 F. Supp. 3d 730 (N.D. Ill. 2019) .........................................................................................7

Dardai v. Cook Cnty., 

1997 WL 160689 (N.D. Ill. Apr. 2, 1997) ...............................................................................22

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ii 

In re Dealer Mgmt. Sys. Antitrust Litig.,

313 F. Supp. 3d 931 (N.D. Ill. 2018) .........................................................................................9

Dos Santos v. Columbus-Cuneo-Cabrini Med. Ctr.,

684 F.2d 1346 (7th Cir. 1982) ...................................................................................................7

E-One, Inc. v. Oshkosh Truck Corp., 

2006 WL 3320441 (N.D. Ill. Nov. 13, 2006) ............................................................................8

E.I. du Pont de Nemours & Co. v. FTC,

729 F.2d 128 (2d Cir. 1984).....................................................................................................20

Ellenby Techs., Inc. v. Fireking Sec. Grp.,

533 F. Supp. 3d 656 (N.D. Ill. 2021) .........................................................................................6

Elzeftawy v. Pernix Grp., Inc.,

477 F. Supp. 3d 734 (N.D. Ill. 2020) .........................................................................................2

In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig.,

44 F.4th 959 (10th Cir. 2022) ..................................................................................9, 10, 12, 13

Feitelson v. Google Inc.,

80 F. Supp. 3d 1019 (N.D. Cal. 2015) .....................................................................................14

FTC v. Qualcomm Inc.,

969 F.3d 974 (9th Cir. 2020) ...................................................................................................13

G&G Closed Cir. Events, LLC v. Castillo,

327 F. Supp. 3d 1119 (N.D. Ill. 2018) .......................................................................................1

Gonzalez v. City of Elgin, 

2007 WL 4246899 (N.D. Ill. Nov. 28, 2007) ............................................................................6

Gumwood HP Shopping Partners, L.P. v. Simon Prop. Grp., Inc.,

221 F. Supp. 3d 1033 (N.D. Ind. 2016) ...................................................................................22

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) .................................................................................................................23

In re Humira (Adalimumab) Antitrust Litig.,

465 F. Supp. 3d 811 (N.D. Ill. 2020) .................................................................................20, 26

Kaiser Found. v. Abbott Labs., 

2009 WL 3877513 (C.D. Cal. Oct. 8, 2009) ............................................................................23

Klehr v. A.O. Smith Corp.,

521 U.S. 179 (1997) .................................................................................................................22

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iii 

MCI Commc’ns Corp. v. Am. Tel. & Tel. Co.,

708 F.2d 1081 (7th Cir. 1983) .................................................................................................13

Mercatus Grp., LLC v. Lake Forest Hosp.,

641 F.3d 834 (7th Cir. 2011) ...................................................................................................24

Methodist Health Servs. Corp. v. OSF Healthcare Sys., 

2016 WL 5817176 (C.D. Ill. Sept. 30, 2016) ..........................................................................13

Methodist Health Servs. Corp. v. OSF Healthcare Sys.,

859 F.3d 408 (7th Cir. 2017) ...............................................................................................9, 13

No Spill LLC v. Scepter Can., Inc., 

2022 WL 1078435 (D. Kan. Apr. 6, 2022) ..............................................................................18

Ocean State Physicians Health Plan, Inc. v. Blue Cross & Blue Shield of R.I.,

883 F.2d 1101 (1st Cir. 1989) ..................................................................................................17

Omega Env’t, Inc. v. Gilbarco, Inc.,

127 F.3d 1157 (9th Cir. 1997) ...........................................................................................15, 16

P & M Servs., Inc. v. Gubb, 

2008 WL 4185903 (E.D. Mich. Sept. 8, 2008), aff’d, 372 F. App’x 613 (6th 

Cir. 2010) .................................................................................................................................23

Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc.,

555 U.S. 438 (2009) .................................................................................................................17

Power Analytics Corp. v. Operation Tech., Inc., 

2017 WL 11486807 (C.D. Cal. Dec. 7, 2017) ...........................................................................9

R. J. Reynolds Tobacco Co. v. Philip Morris Inc.,

199 F. Supp. 2d 362 (M.D.N.C. 2002) ........................................................................10, 15, 16

Roland Mach. Co. v. Dresser Indus., Inc. 

749 F.2d 380 (7th Cir. 1984) ...........................................................................................7, 8, 16

Sanderson v. Culligan Int’l Co.,

415 F.3d 620 (7th Cir. 2005) ...................................................................................................24

Schachar v. Am. Acad. of Opthalmology, Inc.,

870 F.2d 397 (7th Cir. 1989) ...................................................................................................24

Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc.,

782 F.3d 922 (7th Cir. 2015) ...................................................................................................21

Simon & Simon, PC v. Align Tech., Inc.,

533 F. Supp. 3d 904 (N.D. Cal. 2021) .......................................................................................9

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Sterling Merch., Inc. v. Nestlé, S.A.,

656 F.3d 112 (1st Cir. 2011) ..............................................................................................14, 15

Stop & Shop Supermarket Co. v. Blue Cross & Blue Shield of R.I.,

373 F.3d 57 (1st Cir. 2004) ......................................................................................................13

In re Surescripts Antitrust Litig.,

608 F. Supp. 3d 629 (N.D. Ill. 2022) .......................................................................................13

U.S. Futures Exch., LLC v. Bd. of Trade of the City of Chi., Inc.,

346 F. Supp. 3d 1230 (N.D. Ill. 2018), aff’d 953 F.3d 995 (7th Cir. 2020) ....................7, 9, 16

United States v. Microsoft Corp.,

253 F.3d 34 (D.C. Cir. 2001) ...................................................................................................13

Valspar Corp. v. E.I. Du Pont De Nemours & Co.,

873 F.3d 185 (3d Cir. 2017).....................................................................................................19

Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP,

540 U.S. 398 (2004) .................................................................................................................12

Wakeen v. Hoffman House, Inc.,

724 F.2d 1238 (7th Cir. 1983) ...................................................................................................6

Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321 (1971) .................................................................................................................21

Statutes & Rules 

15 U.S.C. § 15b ..............................................................................................................................21

15 U.S.C. § 45 ................................................................................................................................20

Fed. R. Civ. P. 54(b) ........................................................................................................................7

Other Authorities 

Alistair Gray, Credit score row as FICO chief hits out at banks over ‘Fako’ 

rivals, FINANCIAL TIMES (Dec. 5, 2017), 

https://www.ft.com/content/2222880c-cfa5-11e7-9dbb-291a884dd8c6 .................................25

Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law:

An Analysis of Antitrust Principles & Their Application (2023) .......................................10, 22

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Press Relese, VantageScore, Usage of VantageScore Credit Scores Surges More 

than 20 percent versus the Previous Year and Over 300 percent over the Past 

Five Years (Oct. 15, 2018), 

https://www.vantagescore.com/press_releases/usage-of-vantagescore-creditscores-surges-more-than-20-percent-versus-the-previous-year-and-over-300-

percent-over-the-past-five-years/ .............................................................................................16

Press Release, VantageScore, VantageScore Solutions Announces Score Use 

Grows to More than 12 Billion (Oct. 29, 2019),

https://www.vantagescore.com/press_releases/vantagescore-solutionsannounces-score-use-grows-to-more-than-12-billion/ .............................................................16

Press Release, VantageScore, VantageScore® Credit Score Usage Up 30% in 

2022 (June 1, 2023), 

https://www.vantagescore.com/press_releases/vantagescore-credit-scoreusage-up-30-in-2022/ ...............................................................................................................16

VantageScore, 10 years, 10 milestones (June 30, 2020), 

https://www.vantagescore.com/newsletter/10-years-10-milestones-1/ ...................................15

VantageScore, FAQs: VantageScore® Credit Scores and the Mortgage Market

(2018), https://www.vantagescore.com/wp-content/uploads/2022/02/FAQsVantageScore-Credit-Scores-and-the-Mortgage-Market.pdf ..................................................15

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INTRODUCTION AND BACKGROUND 

In its prior ruling, see Mem. Op. & Order, 9/28/23, Dkt. 173 (“Order”), the Court dismissed 

Counts One through Four and Count Six of the complaints because Plaintiffs failed to plausibly 

allege either horizontal or vertical conspiracies. This Court instructed Plaintiffs to “realistically 

assess whether they can fill [this] gap [in their pleadings], bearing in mind that the Plaintiffs 

already gave it a fulsome shot in the current 300-plus-paragraph Complaints.” Order at 22. 

Plaintiffs now reassert these claims with even fewer facts alleged in support, and with only 

superficial wording changes in the relevant parts of their amended complaints. For the reasons 

cited in this Court’s initial Order, these claims should be dismissed with prejudice. 

With respect to Count Five against FICO for monopolization, the Court held that Plaintiffs 

had offered “sufficient allegations of anticompetitive effects” resulting from the “No Equivalent 

Products” and “Dynamic Royalty Schedule” provisions in FICO’s license agreements.1 Order at 

13. At that time, however, prior to the entry of an appropriate Confidentiality Order, the Court did 

not have the actual terms of those agreements before it. As this Court has recognized, “[w]hen a 

plaintiff decides to amend a complaint, she takes her chances that the opposing party will come up 

with new and better arguments in favor of dismissal.” G&G Closed Cir. Events, LLC v. Castillo, 

327 F. Supp. 3d 1119, 1134 n.15 (N.D. Ill. 2018).2 This motion now presents the Court with a copy 

of the Analytic and Data License Agreement (“ADLA”) between FICO and TransUnion, Jones 

Decl. Exs. 1-2, which the Court may consider as incorporated into the amended complaints by 

1

 The Court also allowed related state-law claims against FICO to proceed (Counts Six through 

Seven and Six through Eight in the amended complaints). Order at 24–30. 

2

 FICO maintains that Plaintiffs fail to state a claim, and their federal damages claims are barred by 

the Illinois Brick doctrine, for the additional reasons set forth in its initial motion to dismiss. FICO reserves 

all rights to challenge these aspects of Plaintiffs’ claims at later stages in the case, if necessary. 

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reference.3 The terms of the ADLA show that Plaintiffs fail to state a claim based on anything in 

these contracts. In relevant part, the terms provide as follows: 

No Equivalent Products. Section 12.5 of the ADLA, entitled “No Equivalent Products,” 

appears in Article 12, regarding “Intellectual Property.” Ex. 1 at 34-35. That section provides that 

the Credit Bureaus may not “internally develop” or “distribute” a competing credit score that “has 

an odds-to-score relationship that has been intentionally aligned to the odds-to-score relationship 

of any [FICO Score].” Id. And “intentionally aligned,” in turn, means that the credit score 

“specifically used the [FICO Score] odds-to-score relationship . . . to develop the odds-to-score 

relationship of the competing analytic[.]” Section 12.5 further provides that the Credit Bureaus 

may not internally develop or distribute a competing credit score using reason codes “that match 

more than the greater of 20% or 7 of the” reason codes used by a FICO Score. Id. at 35. 

The No Equivalent Products provision is limited in two critical respects not mentioned in 

the amended complaints. First, it does not apply to any competing credit score in existence on the 

ADLA’s effective date. Id. at 35. Second, it does nothing to limit the ability of VantageScore (or 

any other third-party competing credit score provider) to develop competing credit scores that are 

3

 The Declaration of Nathan Jones includes a copy of the ADLA as well as the 2015 Royalty 

Schedule applicable to “Pre-Qualification” FICO Score use referenced throughout Plaintiffs’ amended 

complaints. Because Plaintiffs purport to rely on these documents as grounds for their allegations and they 

are central to the claims, the Court may consider them without converting this motion to a motion for 

summary judgment. See, e.g., Elzeftawy v. Pernix Grp., Inc., 477 F. Supp. 3d 734, 758 (N.D. Ill. 2020) 

(explaining that “exhibits attached to the parties’ briefs may be considered” in evaluating a motion to 

dismiss if “‘referred to’ in the complaint and ‘central’ to the plaintiff’s claims”). FICO attaches only the 

ADLA between FICO and TransUnion to this motion, but Plaintiffs allege, and FICO does not dispute for 

purposes of this motion, that the challenged provisions in FICO’s license agreements with Experian and 

Equifax contain “the same or similar terms.” DPP Am. Compl. ¶ 114; see IPP Second Am. Compl. ¶ 125. 

As used herein, “DPP Compl.” and “IPP Am. Compl.” refer to the Direct Purchaser Plaintiffs’ 

Consolidated Class Action Complaint and the Indirect Purchaser Plaintiffs’ Amended Class Action 

Complaint, which were the operative complaints addressed in the Court’s prior Order. “DPP Am. Compl.” 

and “IPP Second Am. Compl.” refer to the Direct Purchaser Plaintiffs’ First Amended Consolidated Class 

Action Complaint (Dkt. 184) and the Indirect Purchaser Plaintiffs’ Second Amended Class Action 

Complaint (Dkt. 185), both filed on October 30, 2023. 

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intentionally aligned to FICO’s odds-to-score relationship or that copy its reason codes and license 

or distribute them to lenders directly. See id. at 34 (“development by VantageScore Solutions, LLC 

or other third parties shall not be deemed to be internal development” by a Credit Bureau). 

Accordingly, looking at its actual terms, the No Equivalent Products provision does not support 

Plaintiffs’ claim that it “had the effect of eliminating or drastically reducing the competitive threat 

posed by VantageScore.”4 

Dynamic Royalty Schedule. In exchange for its license to generate and distribute FICO 

Scores using FICO’s proprietary software, each Credit Bureau pays FICO royalties set forth in a 

Royalty Schedule. Ex. 1 at 22 (§ 9.1). And pursuant to Section 9.2, entitled “Dynamic Royalty 

Schedule,” FICO has the right to “replace the Royalty Schedule” with a new one every 12 months 

during the term of the agreement, id., a periodic right to revise royalty rates enjoyed by any 

company that licenses its intellectual property. 

In 2015, FICO introduced a royalty category, “Pre-Qualification,” which applies when a 

lender (1) uses a FICO Score to qualify a consumer for a credit offer, in connection with (2) the 

online disclosure of credit data or a credit score directly to the consumer. Ex. 2 (fn. i).5 In that 

instance, the contractual royalty that FICO may charge the Credit Bureaus is . Id. Contrary 

to what Plaintiffs contend, there is no “seven times penalty rate” for FICO Scores used for prequalification when “the lender . . . provides a VantageScore (or any other credit score) to the 

consumer ‘in connection with’ the ‘Pre-Qualification,’” which can be “avoided” only if FICO 

Scores are used for both the pre-qualification decision and the consumer disclosure.6 Such a term 

appears nowhere in the Royalty Schedule or ADLA. In fact, the Royalty Schedule makes clear that 

4

 DPP Am. Compl. ¶ 125; IPP Second Am. Compl. ¶ 139. 

5

 See also DPP Am. Compl. ¶ 128; IPP Second Am. Compl. ¶ 142. 

6

 DPP Am. Compl. ¶¶ 129–30; IPP Second Am. Compl. ¶¶ 144–45. 

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FICO Scores used by lenders for pre-qualification may not be disclosed to consumers at all. See 

id. (“[FICO] Scores calculated for Pre-Qualification may not be disclosed to the consumer.”). Any 

disclosure of FICO Scores to consumers in connection with the pre-qualification use case must 

occur pursuant to a separate, and additional, licensing arrangement. 

As a result, neither the purpose nor the effect of this pricing structure is to “dissuade lenders 

from providing [consumers with] competing credit scores, such as VantageScore.”7 The prequalification royalty (which the Credit Bureaus, not the lenders, pay) is always avoided if lenders 

use another credit score, such as VantageScore, both to determine consumers’ eligibility for a prequalified credit offer and as the basis for the consumer disclosure. In that scenario, FICO receives 

no royalty payments from the Credit Bureaus at all. 

Finally, Plaintiffs reprise claims based on the Equifax litigation that FICO filed in 2006 

and on allegedly disparaging remarks that FICO made to the market about VantageScore.8 The 

law precludes both theories. The Equifax litigation began and ended well outside the limitations 

period for these suits, and neither fraudulent concealment nor the continuing-violation doctrine 

applies to the theories Plaintiffs plead. And it is well-settled that allegedly disparaging remarks 

about a competitor do not violate the antitrust laws. 

Accordingly, the amended complaints should be dismissed in their entirety. 

ARGUMENT 

I. The Amended Complaints Plead No New Facts To Support The Previously-Dismissed 

Sherman Act Section 1 And Related State-Law Claims. 

This Court dismissed claims in Plaintiffs’ original complaints that were based on 

allegations that Defendants entered into agreements—which Plaintiffs labeled “conspiracies”—to 

7

 DPP Am. Compl. ¶ 129; IPP Second Am. Compl. ¶ 144. 

8

 DPP Am. Compl. ¶¶ 87–100, 146–53; IPP Second Am. Compl. ¶¶ 102–14, 163–70. 

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prevent competition with FICO Scores.9 In various counts, Plaintiffs claimed that those agreements 

violated Section 1 of the Sherman Act and derivative state laws.10 But the Court held that Plaintiffs 

failed to plausibly allege either an anticompetitive horizontal agreement among all Defendants or 

vertical agreements between FICO and each Credit Bureau. Order at 20-22. While the Court 

dismissed these claims without prejudice, it admonished Plaintiffs to reassert them only if they 

could “fill the gap” in their deficient factual allegations. Id. at 22. 

Plaintiffs have ignored that admonition. Their amended complaints allege fewer facts to 

support their previously-dismissed claims. Instead, Plaintiffs slightly reframe the same factual 

allegations by cutting phrases like “per se violations” and substituting the word “agreements” for 

“conspiracies.”11 The following paragraphs from Direct Purchasers’ amended complaint, shown 

in redline against the prior version, illustrate the purely cosmetic nature of the changes. 

9

 See DPP Compl. ¶¶ 170–249, ¶¶ 274–306; IPP Am. Compl. ¶¶ 208–367. 

10

 DPP Compl. ¶¶ 170–249, ¶¶ 274–306; IPP Am. Compl. ¶¶ 208–367. 

11

 Compare, e.g., DPP Compl. ¶ 8, with DPP Am. Compl. ¶ 8; DPP Compl. ¶¶ 10, 84, 101, 103, 117, 

with DPP Am. Compl. ¶¶ 10, 84, 101, 104, 125; IPP Am. Compl. ¶¶ 12, 14–15, 100, 118–19, 135, with IPP 

Second Am. Compl ¶¶ 12, 14–15, 99, 117-18, 139; DPP Compl. ¶ 173, with DPP Am. Compl ¶ 186. 

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Such changes fail to add any facts that attempt to “fill the gap” identified by the Court. Rather, 

Plaintiffs’ amendments “merely restate[ ] the same facts using different language.” Bower v. Jones, 

978 F.2d 1004, 1008 (7th Cir. 1992) (denying in part leave to amend as futile; quoting Wakeen v. 

Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir. 1983)). That does not suffice. 

At best, these minor tweaks in phrasing are meant to show that Plaintiffs now seek to rely 

exclusively on a rule-of-reason theory for their Section 1 claims. But Plaintiffs asserted that theory 

(alongside their per se claim) in their prior complaints as well.12 Defendants moved to dismiss 

Plaintiffs’ rule-of-reason claim,13 Plaintiffs responded to those arguments, and this Court rejected 

Plaintiffs’ Section 1 claims under both the per se and rule-of-reason standards. See Order at 17. 

Absent any new factual allegations—and Plaintiffs offer none—there is no basis for the Court to 

revisit that decision now.14 See Gonzalez v. City of Elgin, 2007 WL 4246899, at *3, (N.D. Ill. Nov. 

12

 See, e.g., DPP Compl. ¶ 172 (“In the alternative, these agreements violate Sections 1 and 3 of the 

Sherman Act . . . under a Rule of Reason Analysis.”); IPP Am. Compl. ¶ 210 (same). 

13

 See, e.g., FICO Br. (Dkt. 139) at 31-33. 

14

 Rather, if Plaintiffs believed the Court misapprehended their rule-of-reason theory, or how the 

alleged facts supported that theory, they should have moved for reconsideration of the Order under Fed. R. 

Civ. P. 54(b). See Ellenby Techs., Inc. v. Fireking Sec. Grp., 533 F. Supp. 3d 656, 659 (N.D. Ill. 2021) (“A 

motion for reconsideration is proper where the court ‘has patently misunderstood a party[.]’” (quoting Bank 

of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990))). They did not, nor can 

they do so now under the guise of an amended complaint that simply restates dismissed claims without 

adding any new supporting factual allegations. 

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28, 2007) (“[L]eave to amend . . . is not a means by which a plaintiff can get around prior rulings 

in an action and rehash resolved legal issues with each new complaint.”). Accordingly, Plaintiffs’ 

Section 1 claims, and analogous state-law claims, should be dismissed. 

II. Plaintiffs Fail To State A Claim Based On FICO’s License Agreements. 

Plaintiffs’ Section 1 and Section 2 claims also fail because the terms of FICO’s license 

agreements—which are now properly before the Court—do not violate the antitrust laws. 

A. The License Agreements Allow Distribution Of Non-FICO Credit Scores. 

Plaintiffs allege that the “No Equivalent Products” and “Dynamic Royalty Schedule” 

provisions in the license agreements foreclose competition in the alleged “B2B Credit Score 

Market.”15 To survive a motion to dismiss, however, Plaintiffs must plausibly plead that the 

agreements “result[] in a substantial foreclosure of competition,” Dos Santos v. Columbus-CuneoCabrini Med. Ctr., 684 F.2d 1346, 1352 (7th Cir. 1982), meaning the agreements must “keep at 

least one significant competitor of [FICO] from doing business” in the relevant market,16 Roland 

Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 394 (7th Cir. 1984). That competitor, according 

to Plaintiffs, is VantageScore.17 But the actual terms of the No Equivalent Products and Dynamic 

Royalty Schedule provisions show that VantageScore has not been excluded, practically or 

otherwise, from any market. 

1. The No Equivalent Products provision expressly allows competition. 

Plaintiffs assert that the No Equivalent Products provision effectively keeps VantageScore 

15

 See DPP Am. Compl. ¶¶ 122, 130; IPP Second Am. Compl. ¶¶ 132, 145. 

16

 This standard applies to both the Section 1 and Section 2 claims. See U.S. Futures Exch., LLC v. 

Bd. of Trade of the City of Chi., Inc., 346 F. Supp. 3d 1230, 1263 (N.D. Ill. 2018), aff’d 953 F.3d 995 (7th 

Cir. 2020); see also City of Rockford v. Mallinckrodt ARD, Inc., 360 F. Supp. 3d 730, 756 (N.D. Ill. 2019) 

(noting that exclusive-dealing claims under Sections 1 and 2 based on the alleged exclusionary nature of 

vertical distribution agreements “are analyzed in much the same way” (citation omitted)). 

17

 DPP Am. Compl. ¶¶ 12, 125, 193; IPP Second Am. Compl. ¶¶ 139, 211. 

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from competing.18 In reality, however, that provision both (a) allows the Credit Bureaus to sell 

VantageScore credit scores to B2B Purchasers, and (b) allows VantageScore to develop competing 

credit scores—even those that copy FICO’s own—and sell them to B2B Purchasers directly. 

a. The Credit Bureaus can and do market VantageScore. 

The No Equivalent Products provision prevents the Credit Bureaus from developing or 

distributing credit scores that: (i) are “intentionally aligned to the odds-to-score relationship” used 

to create a FICO Score; or (ii) copy more than 20% (or seven) of a FICO Score’s reason codes and 

descriptions. Ex. 1 at 34–35. No existing VantageScore credit score fell within these restrictions. 

Nor, for that matter, did any other competing credit score in the Credit Bureaus’ inventory. The 

ADLA says this specifically. The No Equivalent Products provision states that it does not apply to 

“(i) VantageScore 3.0 []or (ii) any analytic publicly announced and commercialized by Trans 

Union prior to the Effective Date.” Id. at 35. The No Equivalent Products provision thus permits 

the Credit Bureaus to sell all existing VantageScore products alongside FICO’s. 

It is implausible that the No Equivalent Products provision keeps “a significant competitor” 

out of the market when the only one Plaintiffs identify has not been excluded. Roland Mach. Co., 

749 F.2d at 394; see E-One, Inc. v. Oshkosh Truck Corp., 2006 WL 3320441, at *3 n.3 (N.D. Ill. 

Nov. 13, 2006) (dismissing state-law substantial-foreclosure claim when supposedly excluded 

competitor “is still a market participant”). Indeed, contract terms that allow the Credit Bureaus to 

continue marketing VantageScore products (along with “any analytic” they are already selling) 

exclude nothing. Ex. 1 at 35. And without plausibly alleging exclusivity, much less any substantial 

foreclosure of competition, the No Equivalent Products provision is “not plausible exclusive 

dealing.” In re Dealer Mgmt. Sys. Antitrust Litig., 313 F. Supp. 3d 931, 957 (N.D. Ill. 2018); see 

18

 DPP Am. Compl. ¶¶ 125, 193; IPP Second Am. Compl. ¶¶ 139, 211. 

Case: 1:20-cv-02114 Document #: 222 Filed: 12/01/23 Page 15 of 34 PageID #:4653
9 

U.S. Futures Exch., LLC, 346 F. Supp. 3d at 1264 (rejecting exclusive-dealing challenge to 

agreement that “did not in fact exclude [the competitor] from the [relevant] market” (citing 

Methodist Health Servs. Corp. v. OSF Healthcare Sys., 859 F.3d 408, 410 (7th Cir. 2017))). 

In fact, the amended complaints admit that the Credit Bureaus continue to sell 

VantageScore credit scores. Plaintiffs allege that VantageScore “licenses [its credit scores] to the 

three Credit Bureau Defendants, which may incorporate VantageScores in their credit reports.”19

There is nothing plausibly exclusive about license agreements that allow the Credit Bureaus to 

continue dealing with FICO’s competitors. See Power Analytics Corp. v. Operation Tech., Inc., 

2017 WL 11486807, at *14 (C.D. Cal. Dec. 7, 2017) (dismissing claims that strategic partnership 

agreement constituted exclusive dealing when defendant remained free to “enter[] into similar 

strategic partnerships with Plaintiff and other suppliers”). 

b. VantageScore can develop and sell any competing credit score 

to B2B Purchasers. 

Plaintiffs’ allegations also fail because the No Equivalent Products provision expressly 

permits VantageScore and others to develop competing credit scores—even ones that copy FICO’s 

odds-to-score relationship and reason codes—and sell them to B2B Purchasers. 

When “competitors can reach the ultimate consumers of the product by employing existing 

or potential alternative channels of distribution, it is unclear whether [exclusive dealing 

arrangements] foreclose from competition any part of the relevant market.” Simon & Simon, PC 

v. Align Tech., Inc., 533 F. Supp. 3d 904, 916 (N.D. Cal. 2021) (emphasis added) (quoting Omega 

Env’t, Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1164 (9th Cir. 1997)); see In re EpiPen (Epinephrine 

Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., 44 F.4th 959, 986 (10th Cir. 2022) (“In re 

EpiPen Antitrust Litig.”) (explaining why potential for alternative distribution methods prevents 

19

 DPP Am. Compl. ¶ 71; see IPP Second Am. Compl. ¶ 87. 

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10 

firms from charging prices above the competitive level). The court in CDC Technologies, Inc. v. 

IDEXX Laboratories, Inc. thus concluded that an exclusive-dealing agreement between a 

manufacturer and its distributors did not foreclose competition given the “numerous alternatives 

on which [the plaintiff] can, and did, rely to pursue direct sales to the customers.” 7 F. Supp. 2d 

119, 122 (D. Conn. 1998), aff’d, 186 F.3d 74 (2d Cir. 1999). Similarly, the court in R. J. Reynolds 

Tobacco Co. v. Philip Morris Inc. held that contracts purportedly limiting competitors from 

marketing their products in stores did not substantially foreclose competition because competitors 

still had “non-retail marketing opportunities to communicate with [consumers].” 199 F. Supp. 2d 

362, 393 (M.D.N.C. 2002), aff’d, 67 F. App’x 810 (4th Cir. 2003); see Phillip E. Areeda & Herbert 

Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles & Their Application ¶ 1802f n.69 

(2023) (collecting cases). 

The same is true here. VantageScore is free to develop and sell any competing credit score 

to end users, including B2B Purchasers. Although the No Equivalent Products provision prevents 

the Credit Bureaus from “internally develop[ing]” duplicates of FICO’s products, it states that 

“development by VantageScore Solutions, LLC or other third parties shall not be deemed to be 

internal development.” Ex. 1 at 34.20

Further, the amended complaints actually allege that FICO “directly sells FICO Scores to 

creditors and other businesses—bypassing the Credit Bureaus . . . when it does so.”21 Indeed, 

several of the Direct Purchaser Plaintiffs say they have “purchased B2B credit scores from Fair 

Isaac.”22 In that same vein, Plaintiffs contend that FICO has “direct sales relationships” with “all 

20

 Of course, developing a credit score that is “intentionally aligned” with a FICO Score odds-to-score 

relationship or which copies FICO Score reason codes may well violate FICO’s intellectual property rights. 

But what matters for purposes of Plaintiffs’ antitrust claims is that FICO’s license agreements do not 

prohibit VantageScore or any other credit score provider from engaging in that conduct. 

21

 DPP Am. Compl. ¶ 5; IPP Second Am. Compl. ¶ 7. 

22

 DPP Am. Compl. ¶¶ 15–19. 

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11 

of the major institutions” that buy credit scores.23 If FICO allegedly does so, then VantageScore 

could too, free of any alleged restraints imposed by the No Equivalent Products provision. 

VantageScore’s ability to develop “competing analytic[s]” and sell them to “the ultimate 

consumer” belies Plaintiffs’ assertion that the No Equivalent Products provision keeps it from 

competing effectively in the alleged B2B Credit Score Market. Ex. 1 at 34–35; R. J. Reynolds 

Tobacco Co., 199 F. Supp. 2d at 393 (quoting CDC Techs., Inc., 186 F.3d at 80). 

2. FICO’s Royalty Schedules do not foreclose competition. 

Plaintiffs next challenge the license agreements’ Dynamic Royalty Schedule provision. 

FICO uses it, they allege, to charge a “penalty” when a lender relies on a FICO Score to pre-qualify 

a consumer for a credit offer but then shows the consumer a different, non-FICO score.24 Again, 

however, the actual terms in the agreements contradict Plaintiffs’ theory. 

a. There is no “penalty” rate for pre-qualification. 

FICO charges a Credit Bureau a different contractual royalty amount depending on how 

the lender uses a FICO Score. See Ex. 2. As relevant here, the ADLA’s 2015 Royalty Schedule 

establishes a royalty of for FICO Scores that lenders use to pre-qualify consumers for credit 

offers “in connection with the online disclosure of credit data or a credit score to the consumer[.]” 

Ex. 2 at 2-3 (fn. i); supra at 3–4. The rate applies whenever lenders make an online disclosure 

of credit data or a credit score to the consumer in connection with pre-qualification, not only when 

the credit score disclosed by lenders to the consumer is a competing credit score, such as 

VantageScore. Thus, there is no “seven times penalty rate” for disclosing a non-FICO credit score 

23

 DPP Am. Compl. ¶ 46; IPP Second Am. Compl. ¶ 50. 

24

 DPP Am. Compl. ¶¶ 128–29; IPP Second Am. Compl. ¶¶ 142–44. Although Plaintiffs suggest the 

“lender” directly licenses the credit score from FICO for pre-qualification use case, this is incorrect. In fact, 

the Credit Bureaus pay the royalties. See Ex. 2 at 1. 

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to consumers in connection with pre-qualification.25 

Contrary to the amended complaints, therefore, licensing “exclusively FICO Scores” for 

use by lenders for both the pre-qualification decision and consumer disclosure does not allow the 

Credit Bureaus to avoid paying the royalty rate.26 In fact, FICO Scores “calculated for PreQualification may not be disclosed to the consumer” at all, so the royalty cannot possibly operate 

to pressure lenders into using FICO Scores exclusively for pre-qualification. Ex. 2 at 3 (emphasis 

added).27 And of course, if lenders use VantageScore credit scores—or any other competing credit 

score—to pre-qualify consumers, then FICO receives nothing under the license agreements. Thus, 

VantageScore “need only offer a better product or a better deal” to compete with FICO in 

connection with pre-qualification use cases. In re EpiPen Antitrust Litig., 44 F.4th at 989 (citation 

omitted); see Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407

(2004) (distinguishing anticompetitive conduct “from growth or development as a consequence of 

a superior product” (citation omitted)). 

Indeed, even if Plaintiffs had plausibly alleged that FICO charges a lower royalty when 

Credit Bureaus license FICO Scores for both pre-qualification and consumer disclosure, there is 

nothing anticompetitive about that. The “existence of volume or package pricing does not support 

antitrust liability.” MCI Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1130 (7th Cir. 

1983); see FTC v. Qualcomm Inc., 969 F.3d 974, 1003 (9th Cir. 2020) (emphasizing that “volume 

25

 DPP Am. Compl. ¶ 129; IPP Second Am. Compl. ¶ 144. 

26

 DPP Am. Compl. ¶ 130 (emphasis omitted); see IPP Second Am. Compl. ¶ 145. 

27

 Plaintiffs vaguely suggest that Credit Bureaus may separately license FICO Scores that are 

authorized for consumer disclosures and “combine[d]” with FICO Scores used for pre-qualification. DPP 

Am. Compl. ¶ 130; IPP Second Am. Compl. ¶ 145. But Plaintiffs make no factual allegations about what 

these products are, how much they cost, or what role they play in the alleged market. That is not enough to 

“nudge[] their claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007); see Brown v. Visa U.S.A., Inc., 674 F. Supp. 249, 252 (N.D. Ill. 1987) (“Allegations as to 

a hypothetical anticompetitive effect are not enough to sustain this complaint.”). 

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discount contracts are legal under antitrust law” (citation omitted)). The reason is simple: they 

exclude no one from the market. See Qualcomm Inc., 969 F.3d at 1003–04. Here, for example, the 

Credit Bureaus could “choose at any[ ]time to forego the [alleged] discount” and instead use 

VantageScore credit scores or credit scores offered by another provider. Allied Orthopedic 

Appliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991, 997 (9th Cir. 2010). 

b. Plaintiffs fail to allege that pre-qualification represents a 

substantial portion of the alleged B2B Credit Score Market. 

In the alternative, Plaintiffs fail to state a claim arising from the supposed pre-qualification 

“penalty” on the independent ground that they do not allege what portion of the alleged B2B Credit 

Score Market relates to pre-qualification score use. As a general rule, plaintiffs must “make an 

initial showing of foreclosure from competing in at least 30 to 40 percent of a market to proceed 

with a claim” under Section 1. Methodist Health Servs. Corp. v. OSF Healthcare Sys., 2016 WL 

5817176, at *8 (C.D. Ill. Sept. 30, 2016) (citing Stop & Shop Supermarket Co. v. Blue Cross & 

Blue Shield of R.I., 373 F.3d 57, 68 (1st Cir. 2004)), aff’d, 859 F.3d 408 (7th Cir. 2017). Indeed, 

in Section 1 cases courts often require foreclosure of 40 to 50 percent or more.28 See, e.g., In re 

EpiPen Antitrust Litig., 44 F.4th at 988; United States v. Microsoft Corp., 253 F.3d 34, 70 (D.C. 

Cir. 2001). And although this court has yet to establish a bright-line cutoff, “extensive allegations 

regarding the foreclosure” are typically required when the agreement covers a smaller fraction of 

the alleged market. In re Surescripts Antitrust Litig., 608 F. Supp. 3d 629, 655 (N.D. Ill. 2022). 

Plaintiffs fall well short of these thresholds. Plaintiffs fail to allege any facts showing the 

volume of commerce related to pre-qualification credit score licensing or what share of the broader 

alleged B2B Credit Score Market relates to pre-qualification. A complaint without “facts regarding 

28

 Courts have held that foreclosure of less than 40% may suffice “in certain circumstances” in Section 

2 cases. See, e.g., Microsoft Corp., 253 F.3d at 70. But regardless, the plaintiff still “must both define the 

relevant market and prove the degree of foreclosure.” Id. at 69. Plaintiffs’ allegations fail to do so here. 

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the size of the allegedly foreclosed . . . markets or how much of the . . . market is involved in the 

[alleged] exclusive[-]dealing agreements” does not suffice to state a claim. Chase Mfg., Inc. v. 

Johns Manville Corp., 2019 WL 2866700, at *7 (D. Colo. July 3, 2019). 

This fatal pleading deficiency is exacerbated by the fact that the so-called “penalty” applies 

only to a subset of pre-qualification use cases—namely, those that occur “in connection with the 

online disclosure of credit data or a credit score to the consumer.” Ex. 2 at 3. The material question, 

then, is what share of the alleged B2B Credit Score Market involves both licensing of a credit 

score for pre-qualification and online disclosure of that (or another) credit score to the consumer. 

And having failed to allege facts needed to answer the first part of the question, Plaintiffs 

necessarily fail to allege facts needed to answer the second. They contend merely that “[c]ertain 

B2B Purchasers” may disclose credit scores to consumers when soliciting loan applications.29

Absent any allegations about how many B2B Purchasers follow this practice, the amended 

complaints support no plausible inference that pre-qualification royalty rates affect any appreciable 

proportion of the alleged B2B Credit Score Market. See, e.g., Feitelson v. Google Inc., 80 F. Supp. 

3d 1019, 1031–32 (N.D. Cal. 2015) (plaintiffs failed to plausibly explain why licenses “that 

admittedly only cover a subset of Android devices” substantially foreclosed competition “in the 

market for general handheld [Internet] search”). This failure alone “make[s] dismissal easy.” 

Sterling Merch., Inc. v. Nestlé, S.A., 656 F.3d 112, 124 (1st Cir. 2011) (citation omitted). 

3. VantageScore’s growth since 2013 independently shows that the license 

agreements have not substantially foreclosed competition. 

VantageScore’s sustained success in the market since 2013 provides yet another alternative 

basis to dismiss Plaintiffs’ claims based on the existence of purported exclusionary terms in 

FICO’s license agreements. Sustained growth of a competitor’s market share “precludes a finding 

29

 DPP Am. Compl. ¶ 128; see IPP Second Am. Compl. ¶ 143. 

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that exclusive dealing is an entry barrier of any significance.” Omega Env’t, 127 F.3d at 1164. For 

example, the Ninth Circuit rejected an exclusive-dealing claim in light of the “actual entry and 

expansion” of a competitor whose market share increased from about 6% to 8% despite the 

defendant’s allegedly anticompetitive conduct. Id. Similarly, the court in R.J. Reynolds Tobacco 

Co. concluded that the defendant’s exclusive-dealing arrangement did not substantially foreclose 

competition when competitors “successfully introduced new products,” increased “revenues, 

profits, and cash reserves,” or “gain[ed] market share.” 199 F. Supp. 2d at 391; see Sterling Merch., 

Inc., 656 F.3d at 124 (finding no harm to competition when plaintiff’s “own market share has 

increased during the relevant . . . period”). 

Likewise, VantageScore’s business has grown rapidly since 2013, when FICO entered into 

the first of the challenged license agreements.30 According to material Plaintiffs cite in their 

amended complaints, lenders and others used over six billion VantageScore credit scores during a 

12-month period in 2014 and 2015, “an increase in usage of more than 100 percent over the 

previous 12-month period.”31 By 2017, usage surpassed 8.5 billion in a 12-month period.32 Indeed, 

VantageScore reports that its usage increased by more than 300% between 2013 and 2018. 33 These 

30

 See DPP Am. Compl. ¶ 101; IPP Second Am. Compl. ¶ 117. 

31

 VantageScore, 10 years, 10 milestones (June 30, 2020), 

https://www.vantagescore.com/newsletter/10-years-10-milestones-1/ (cited in DPP Am. Compl. ¶ 88 n.56 

& IPP Second Am. Compl. ¶ 103 n.49). 

32

 VantageScore, FAQs: VantageScore® Credit Scores and the Mortgage Market, at 9 (2018), 

https://www.vantagescore.com/wp-content/uploads/2022/02/FAQs-VantageScore-Credit-Scores-and-theMortgage-Market.pdf (cited in DPP Am. Compl. ¶ 82 n.50 & IPP Second Am. Compl. ¶ 97 n.45). 

33

 Press Release, VantageScore, Usage of VantageScore Credit Scores Surges More than 20 percent 

versus the Previous Year and Over 300 percent over the Past Five Years (Oct. 15, 2018), 

https://www.vantagescore.com/press_releases/usage-of-vantagescore-credit-scores-surges-more-than-20-

percent-versus-the-previous-year-and-over-300-percent-over-the-past-five-years/. Since 2018, moreover, 

VantageScore has reported growth rates at or above 20% over multiple 12-month periods. Press Release, 

VantageScore, VantageScore Solutions Announces Score Use Grows to More than 12 Billion (Oct. 29, 

2019), https://www.vantagescore.com/press_releases/vantagescore-solutions-announces-score-use-growsto-more-than-12-billion/; Press Release, VantageScore, VantageScore® Credit Score Usage Up 30% in 

2022 (June 1, 2023), https://www.vantagescore.com/press_releases/vantagescore-credit-score-usage-up30-in-2022/. 

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growth rates well exceed the minimum needed to defeat a claim challenging agreement terms as 

purportedly exclusionary. See Omega Env’t, 127 F.3d at 1164 (33% increase in market share). 

Meanwhile, VantageScore continues to release new products. See R.J. Reynolds Tobacco Co., 199 

F. Supp. 2d at 391. In 2017, it introduced VantageScore 4.0, successor to the latest version on the 

market when the license agreements were signed.34 

Acknowledging that VantageScore “has achieved some limited success,” Plaintiffs insist 

it would have done even better without the license agreements in place.35 These allegations are 

speculative, at best. But even crediting them as true and putting aside the other, independent bases 

to dismiss Plaintiffs’ claims, reduced growth is not enough to state a plausible antitrust claim. See 

Roland Mach. Co., 749 F.2d at 394. An alleged exclusionary agreement that causes a competitor 

to “expand more slowly than it would otherwise have done, and at somewhat higher cost,” does 

not qualify as having a “substantial anticompetitive effect.” Id. So even if some terms in the license 

agreements allegedly had some incidental effect on VantageScore’s growth, this does nothing to 

save Plaintiffs’ theory from failing on this alternative ground as well. See U.S. Futures Exch., LLC, 

346 F. Supp. 3d at 1264 (any lesser standard would be “in tension with Seventh Circuit law”). 

B. The Level Playing Field Provision Furthers Competition. 

Plaintiffs continue to allege that the Level Playing Field provision suppresses price 

competition between the Credit Bureaus.36 But the Court previously held that Plaintiffs failed to 

state such a claim based on this provision, which operates like a most-favored-nation clause, 

because they had “not adequately alleged that the Credit Bureaus adopted [the provision] with a 

predatory purpose.” Order at 20. The Court recognized that most-favored-nation clauses “are 

34

 See DPP Am. Compl. ¶ 153; IPP Second Am. Compl. ¶ 167; see also Ex. 1 at 35. 

35

 DPP Am. Compl. ¶ 82; IPP Second Am. Compl. ¶ 97; see DPP Am. Compl. ¶ 122; IPP Second 

Am. Compl. ¶ 132. 

36

 See DPP Am. Compl. ¶¶ 134–45, 249; IPP Second Am. Compl. ¶¶ 149–62, 269. 

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standard devices by which buyers try to bargain for low prices, by getting the seller to agree to 

treat them as favorably as any of their other customers.” Id. (quoting Blue Cross & Blue Shield 

United of Wis. v. Marshfield Clinic, 65 F.3d 1406, 1415 (7th Cir. 1995)). And pursuing low prices 

is “the sort of conduct that the antitrust laws seek to encourage.” Blue Cross & Blue Shield United 

of Wis., 65 F.3d at 1415; see Pac. Bell Tel. Co., 555 U.S. at 451 (“mistaken inferences” in 

challenges to low prices “are especially costly, because they chill the very conduct the antitrust 

laws are designed to protect” (quotation marks omitted)). In light of these procompetitive benefits, 

this Court held that entering into most-favored-nation clauses is “not price-fixing.” Order at 20 

(quoting Blue Cross & Blue Shield United of Wis., 65 F.3d at 1415); see Ocean State Physicians 

Health Plan, Inc. v. Blue Cross & Blue Shield of R.I., 883 F.2d 1101, 1110 (1st Cir. 1989) (“a 

policy of insisting on a supplier’s lowest [non-predatory] price . . . tends to further competition on 

the merits and, as a matter of law, is not exclusionary”). 

The Court also rejected Plaintiffs’ theory that the Level Playing Field protects the Credit 

Bureaus “from an outside competitor” by effectively discouraging FICO from offering discounts 

to a new market entrant. Order at 21. Those allegations “ring hollow,” the Court held, because 

Plaintiffs failed to “allege that a new credit bureau was likely to emerge anyway[.]” Id. 

The amended complaints offer nothing new. Plaintiffs neither identify a new competitor to 

the Credit Bureaus that is likely to emerge nor explain how the Level Playing Field provision 

differs from a garden-variety most-favored-nations clause.37 So now, as before, the provision 

offers no basis for sustaining Plaintiffs’ claims. Order at 20–21; see also No Spill LLC v. Scepter 

Can., Inc., 2022 WL 1078435, at *7 (D. Kan. Apr. 6, 2022) (alleged “existence of a most-favored37

 Compare, e.g., DPP Am. Compl. ¶ 134, with DPP Compl. ¶ 126, and IPP Second Am. Compl. 

¶ 149, with IPP Am. Compl. ¶ 145. In fact, Direct Purchasers have scaled back on their allegations 

concerning the Level Playing Field, now abandoning their claim that it was used to prevent competition 

from a new market entrant. Compare DPP Am. Compl. 136, with DPP Compl. ¶ 127. 

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nation clause in which [a company] has agreed not to license its intellectual property at lower rates 

to others” was “insufficient to establish . . . anticompetitive harm”). 

1. The Level Playing Field does not discourage discounting. 

Plaintiffs once again theorize that the Level Playing Field could lead to higher credit score 

prices by discouraging FICO from offering discounts to any Credit Bureau because that would 

mean extending the benefit to all three.38 But that allegation is facially implausible, particularly 

next to Plaintiffs’ claim that the Level Playing Field is “demonstrably important” to the Credit 

Bureaus.39 Plaintiffs offer no explanation, much less a plausible one, for why the Credit Bureaus 

would demand the Level Playing Field provision if it had the effect of raising their royalty prices. 

In any event, this Court has already rejected the claim that the Level Playing Field offers the Credit 

Bureaus protection against competition from a new market entrant, and the amended complaints 

offer nothing new on this score. Moreover, the Seventh Circuit has also rejected the “ingenious 

but perverse argument” that most-favored-nation clauses effectively “put a floor underneath [a 

seller’s] prices” by disincentivizing discounts that “automatically” benefit other customers. Blue 

Shield & Blue Cross United of Wis., 65 F.3d at 1415. 

2. The Level Playing Field does not facilitate price coordination. 

Plaintiffs also now attempt to characterize the Level Playing Field provision as an 

information-exchange mechanism.40 But this theory also fails. 

Again, demanding the lowest available price is “the sort of conduct that the antitrust laws 

seek to encourage.” Blue Cross & Blue Shield United of Wis., 65 F.3d at 1415. That is why mostfavored-nation clauses are “not price-fixing,” even though they necessarily result in the indirect 

38

 DPP Am. Compl. ¶ 140; IPP Second Am. Compl. ¶ 155. 

39

 DPP Am. Compl. ¶ 139; IPP Second Am. Compl. ¶ 153. 

40

 See DPP Am. Compl. ¶¶ 137–38, 140; IPP Second Am. Compl. ¶¶ 150–51, 155. 

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19 

exchange of some price information. Order at 20 (quoting Blue Cross & Blue Shield United of 

Wis., 65 F.3d at 1415). Further, the license agreements include protections against the Credit 

Bureaus using information they might infer about competitors’ upstream costs (the royalty rates 

charged by FICO) to “reduce price competition for the services they provide” downstream to 

lenders and other end users.41 Under the ADLA, TransUnion must designate someone who “is not 

involved in determining downstream pricing” to receive royalty information related to the other 

Credit Bureaus pursuant to the Level Playing Field provision. Ex. 1 at 30. The royalty rates are 

also provided “on a ‘blinded basis,’ with all identification of the Equivalent CRA removed.” Ex. 

1 at 29. By preventing Credit Bureaus from knowing which competitor is subject to which pricing 

terms, this anonymization further safeguards independent pricing. See Valspar Corp. v. E.I. Du 

Pont De Nemours & Co., 873 F.3d 185, 198–99 (3d Cir. 2017) (describing “aggregated and 

blinded” data about “sales, production, and inventory” as “innocuous” when compared to the sort 

of price information that might raise antitrust concerns). Plaintiffs fail even to acknowledge these 

safeguards, much less address them, in their amended complaints. 

Nor does it matter that the Level Playing Field provision might, in theory, lead the Credit 

Bureaus to charge similar prices.42 In E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d 128 (2d 

Cir. 1984), the question was whether most-favored-nation clauses between manufacturers and their 

customers constituted an unfair trade practice under Section 5 of the Federal Trade Commission 

Act43 because (combined with other practices) they “had the effect, by removing some of the 

uncertainties about price determination, of substantially lessening competition by facilitating price 

parallelism at non-competitive levels.” Id. at 130. The answer was no. See id. at 141–42. There, as 

41

 DPP Am. Compl. ¶¶ 138; see IPP Second Am. Compl. ¶¶ 151. 

42

 See DPP Am. Compl. ¶ 138; IPP Second Am. Compl. ¶ 151. 

43

 15 U.S.C. § 45. That provision is at least as expansive as Sections 1 and 2 of the Sherman Act. See

In re Humira (Adalimumab) Antitrust Litig., 465 F. Supp. 3d 811, 847 (N.D. Ill. 2020). 

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20 

here, the manufacturers used most-favored-nation clauses “for legitimate business reasons.” Id. at 

140. And legitimate business practices are not “unfair” just because “they have the effect of 

facilitating conscious price parallelism and interdependence.” Id. Likewise, Plaintiffs’ speculation 

about the Level Playing Field’s potential effects does not change the fact that it is a “standard 

device[]” that, as this Court recognized, helps the Credit Bureaus appropriately “bargain for low 

prices.” Order at 20 (quoting Blue Cross & Blue Shield United of Wis., 65 F.3d at 1415). 

III. Plaintiffs Otherwise Fail To State A Monopolization Claim. 

As in their original complaints, Plaintiffs allege two other ways in which FICO maintained 

a purported “monopoly” in the alleged B2B Credit Score Market: (1) by pursuing the 2006 Equifax

litigation, and (2) by making “disparaging” public statements about VantageScore. Neither theory 

supports a monopolization claim independent of the license agreements. 

A. Any Claim Based On The Equifax Litigation Is Time-Barred. 

Plaintiffs allege that FICO engaged in anticompetitive conduct by bringing the Equifax 

litigation in 2006.44 But once again, Plaintiffs allege that this litigation injured them only by 

“inhibit[ing]” VantageScore’s growth during its “first few years.”45

FICO’s first motion to dismiss argued that any claim based on the Equifax litigation is 

time-barred because antitrust claims are subject to a four-year statute of limitations that begins 

“when a defendant commits an act that injures a plaintiff’s business.” Zenith Radio Corp. v. 

Hazeltine Research, Inc., 401 U.S. 321, 338 (1971); 15 U.S.C. § 15b. Plaintiffs still fail to offer 

any justification for waiting nine years after the Equifax litigation concluded in 2011 to raise their 

antitrust claim based on it. And while the Court held that two of Plaintiffs’ allegations might toll 

the limitations period—(1) that FICO’s conduct could constitute fraudulent concealment, and (2) 

44

 DPP Am. Compl. ¶ 87; IPP Second Am. Compl. ¶ 13. 

45

 DPP Am. Compl. ¶ 94; IPP Second Am. Compl. ¶ 109. 

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that the continuing-violation doctrine postponed expiration of the limitations period—these 

allegations relate to the license agreements, not the Equifax litigation. 

First, the Court reasoned that Plaintiffs must plead merely a “conceivable set of facts, 

consistent with the complaint, that would defeat a statute-of-limitations defense.” Order at 14 

(quoting Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th 

Cir. 2015)). And the Court held that such a conceivable set of facts exists here—namely, that FICO 

“affirmatively concealed the existence of . . . the anticompetitive contract provisions.” Id. (cleaned 

up). This was a reference to Plaintiffs’ allegations that terms in FICO’s license agreements were 

anticompetitive. But for the reasons explained in Part II, supra at 7–20, those allegations fail; 

accordingly, they cannot support a claim for fraudulent concealment. 

In any event, even if Plaintiffs’ allegations concerning the license agreements were 

sufficient to state a monopolization claim (and again, they are not), Plaintiffs’ claims based on the 

2006 Equifax litigation still would be time-barred. Plaintiffs do not allege that the agreements 

somehow concealed the earlier litigation, nor could they. The Equifax case was public information 

as soon as it was filed. Nor could later events involving the agreements somehow allow Plaintiffs 

to recover for injuries allegedly arising from that litigation. 

Second, the Court held that the continuing-violation doctrine tolled the limitations period: 

“Although the Equifax Litigation ended in 2011, the Plaintiffs have plausibly alleged the 

anticompetitive restrictions in the agreements between the Credit Bureaus and FICO continue to 

this day.” Order at 15 (emphasis added). Thus, the Court again rested its holding on the license 

agreements, which are not actionable for the reasons discussed above. 

But even if Plaintiffs had stated a claim arising from the license agreements, they could not 

use the continuing-violation doctrine to state a timely claim based on the Equifax litigation. “[T]he 

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commission of a separate new overt act generally does not permit the plaintiff to recover for the 

injury caused by old overt acts outside the limitations period.” Klehr v. A.O. Smith Corp., 521 U.S. 

179, 189–90 (1997) (emphasis added) (collecting cases); see also Gumwood HP Shopping 

Partners, L.P. v. Simon Prop. Grp., Inc., 221 F. Supp. 3d 1033, 1043 (N.D. Ind. 2016) (“[N]ew 

acts cannot be used to bootstrap damages that resulted from injuries prior to the limitations 

period.”); Areeda & Hovenkamp, Antitrust Law ¶ 320c7 (“the plaintiff’s damage claim will be 

limited to those acts of the cartel that both damaged the plaintiff and occurred within the four years 

prior to the suit” (emphasis added)). Further, there is no doubt portions of a claim that fall outside 

the applicable limitations period may be dismissed to streamline discovery and narrow the disputed 

issues in the case. See Dardai v. Cook Cnty., 1997 WL 160689, at *6 (N.D. Ill. Apr. 2, 1997). 

These authorities preclude application of the continuing-violation doctrine to Plaintiffs’ 

allegations concerning the Equifax litigation. Plaintiffs allege that FICO was “[r]ebuffed by the 

courts in its attempt to snuff out VantageScore in its infancy,” and therefore in “2013 or 2015” it 

“elected to take another approach”—“enter[ing] into new or renewed agreements that contained 

new provisions designed to restrict the competitive reach of VantageScore.”46 The license 

agreements thus constituted a “separate new overt act,” and Plaintiffs cannot use that separate act 

to recover for injuries allegedly arising from the Equifax litigation. 

Nor, finally, could the Equifax litigation itself constitute a “continuing antitrust 

violation.”47 The continuing-violation doctrine applies only where a plaintiff challenges “not just 

one incident of [unlawful] conduct . . . but an unlawful practice that continues into the limitations 

period.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982). And Plaintiffs do not, and 

cannot, allege that the Equifax litigation, which ended in 2011, was a “practice” continuing into 

46

 DPP Am. Compl. ¶¶ 101-02 (emphasis added); IPP Second Am. Compl. ¶¶ 117-18 (same). 

47

 DPP Am. Compl. ¶ 94; IPP Second Am. Compl. ¶ 109. 

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the limitations period. See Al George, Inc. v. Envirotech Corp., 939 F.2d 1271, 1274-75 (5th Cir. 

1991) (claim for anticompetitive litigation accrues when suit is filed and does not continue 

thereafter); P & M Servs., Inc. v. Gubb, 2008 WL 4185903, at *5-7 (E.D. Mich. Sept. 8, 2008) 

(similar), aff’d, 372 F. App’x 613 (6th Cir. 2010). Nor do Plaintiffs allege that the effects of the 

litigation continued into the limitations period—and even if they did, the claim still would be 

untimely. See Kaiser Found. v. Abbott Labs., 2009 WL 3877513, at *7 (C.D. Cal. Oct. 8, 2009) 

(“mere[ly] charging . . . a monopoly price” following allegedly anticompetitive litigation does not 

toll the statute of limitations (citation omitted)).

B. The Alleged Disparagement Of VantageScore Is Not Actionable. 

Plaintiffs again attempt to plead a monopolization claim based on allegations that FICO 

engaged in an “aggressive public relations” campaign against VantageScore, which Plaintiffs 

claim has harmed VantageScore’s competitive standing.48 Plaintiffs object principally to 

statements by FICO and others that VantageScore credit scores are not FICO Scores. But these 

statements are accurate and appropriate given the likelihood of confusion over the existence of 

different credit scores and distinctions between them.49 Likewise, Plaintiffs cite FICO blog posts 

about FICO’s minimum scoring criteria, which report on research concerning the minimum 

amount of credit data needed to generate a reliable FICO Score.50 These statements do not even 

mention VantageScore and thus cannot constitute disparagement. 

In any event, allegations that one market participant has disparaged another are contrary to 

the very purposes of antitrust law. See Arnett Physician Grp., PC v. Greater LaFayette Health 

Servs., Inc., 382 F. Supp. 2d 1092, 1096 (N.D. Ind. 2005) (“Public expressions of opinion about 

48

 DPP Am. Compl. ¶¶ 146-55; IPP Second Am. Compl. ¶¶ 16, 163-70. 

49

 DPP Am. Compl. ¶¶ 147-48; IPP Second Am. Compl. ¶¶ 163-64. 

50

 DPP Am. Compl. ¶ 150; IPP Second Am. Compl. ¶ 165. 

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competitors’ plans cannot provide the basis for an antitrust claim and such conduct is clearly 

lawful.”). “What producers say about each others’ goods in an effort to sway consumers is 

competition in action. Some other law may require judicial intervention in order to increase the 

portion of truth in advertising; the Sherman Act does not.” Sanderson v. Culligan Int’l Co., 415 

F.3d 620, 624 (7th Cir. 2005). “[G]enuine anticompetitive effects of false and misleading 

statements about a competitor are minimal, at best.” Mercatus Grp., LLC v. Lake Forest Hosp., 

641 F.3d 834, 852 (7th Cir. 2011). Accordingly, “claims based on one competitor’s disparagement 

of another should presumptively be ignored.” Id. (internal quotations omitted). 

This is so even where, unlike here, a defendant’s public statements are allegedly “false or 

misleading or incomplete or just plain mistaken,” for there “the remedy is not antitrust litigation 

but more speech—the marketplace of ideas.” Schachar v. Am. Acad. of Opthalmology, Inc., 870 

F.2d 397, 400 (7th Cir. 1989). Indeed, the amended complaints acknowledge the robust debate in 

the marketplace. For instance, the article Plaintiffs cite as the basis for their disparagement claim 

quotes statements by VantageScore and TransUnion that “[t]housands of lenders use VantageScore 

credit scores in their businesses,” and that VantageScore was “used by more than 2,400 lenders” 

and “yields the most consistent results.”51 Elsewhere, Plaintiffs rely on blog posts and reports from 

2018 and 2019 touting the supposed advantages of VantageScore, noting that “many of the most 

sophisticated secondary market participants use the VantageScore model to help evaluate and 

monitor risk.”52 And to the extent VantageScore believes it can accurately score additional 

consumers using its own models, VantageScore is free to (and does) say so to the market.53

51

 Alistair Gray, Credit score row as FICO chief hits out at banks over ‘Fako’ rivals, FINANCIAL 

TIMES (Dec. 5, 2017), https://www.ft.com/content/2222880c-cfa5-11e7-9dbb-291a884dd8c6 (cited at 

DPP Am. Compl. ¶ 147 n.111). 

52

 DPP Am. Compl. ¶ 83; IPP Second Am. Compl. ¶ 98. 

53

 DPP Am. Compl. ¶¶ 82-83; IPP Second Am. Compl. ¶¶ 97-98. 

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Lastly, Plaintiffs attack alleged statements by FICO in connection with the FHFA’s 

consideration of rule changes to permit the use of non-FICO credit scores for mortgage loans 

underwritten by Fannie Mae and Freddie Mac. Plaintiffs complain that Fair Isaac “fought hard” 

against changes to these rules, stating that FICO was “not owned by the credit bureaus” and that 

FICO believed its score was superior to others.54 But “[a] publicity campaign directed at the 

general public, seeking legislation or executive action, enjoys antitrust immunity.” Allied Tube & 

Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500 (1988). That is true “even when the 

campaign employs unethical and deceptive methods,” id., and Plaintiffs allege nothing of the sort 

here. In fact, they admit that the FHFA decided to allow VantageScore to submit its models for 

validation and potential approval.55 FICO’s statements cannot have harmed competition if the 

agency ultimately decided to consider the use of competing credit scores. 

IV. Plaintiffs’ Derivative State-Law Claims Should Be Dismissed. 

Because the amended complaints fail to plead a viable federal antitrust claim against FICO, 

the related state-law claims must be dismissed as well. See In re Humira (Adalimumab) Antitrust 

Litig., 465 F. Supp. 3d 811, 847 (N.D. Ill. 2020). Indeed, in its prior Order (at 24–25) the Court 

reached this conclusion for the state-law claims asserted against the Credit Bureaus. 

CONCLUSION 

For the foregoing reasons, Plaintiffs’ complaints should be dismissed in their entirety, and 

because Plaintiffs have amended their complaints before, dismissal should be with prejudice. 

54

 DPP Am. Compl. ¶¶ 149, 154; IPP Second Am. Compl. ¶¶ 164, 168. 

55

 DPP Am. Compl. ¶ 154; IPP Second Am. Compl. ¶ 168. 

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26 

Dated: December 1, 2023 Respectfully submitted, 

/s/ Britt M. Miller 

Britt M. Miller 

Matthew D. Provance 

Michael A. Scodro 

MAYER BROWN LLP 

71 South Wacker Drive 

Chicago, IL 60606-4637 

(312) 782-0600 

bmiller@mayerbrown.com 

mprovance@mayerbrown.com 

mscodro@mayerbrown.com 

Counsel for Defendant 

Fair Isaac Corporation 

Case: 1:20-cv-02114 Document #: 222 Filed: 12/01/23 Page 33 of 34 PageID #:4671
CERTIFICATE OF SERVICE 

I, Matthew D. Provance, an attorney, hereby certify that on December 1, 2023, I caused a 

true and correct copy of the foregoing FAIR ISAAC CORPORATION’S MEMORANDUM IN 

SUPPORT OF ITS MOTION TO DISMISS THE PLAINTIFFS’ AMENDED 

COMPLAINTS to be filed and served electronically via the court’s CM/ECF system. Notice of 

this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system 

or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic 

Filing. Parties may access this filing through the court’s CM/ECF system. 

/s/ Matthew D. Provance

Matthew D. Provance 

MAYER BROWN LLP 

71 South Wacker Drive 

Chicago, IL 60606 

(312) 782-0600 

mprovance@mayerbrown.com 

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