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 David E. Weisman 

This document relates to: 

ALL ACTIONS 

FAIR ISAAC CORPORATION’S REPLY IN SUPPORT OF ITS 

MOTION TO DISMISS THE DIRECT PURCHASER PLAINTIFFS’ AND 

INDIRECT PURCHASER PLAINTIFFS’ CONSOLIDATED COMPLAINTS 

Dated: March 29, 2022 Britt M. Miller 

Matthew D. Provance 

Jed W. Glickstein 

MAYER BROWN LLP 

71 South Wacker Drive 

Chicago, IL 60606-4637 

(312) 782-0600 

(312) 701-7711—Facsimile 

bmiller@mayerbrown.com 

mprovance@mayerbrown.com 

jglickstein@mayerbrown.com 

Counsel for Defendant 

Fair Isaac Corporation

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TABLE OF CONTENTS 

Page 

INTRODUCTION ......................................................................................................................... 1

I. The Opposition Confirms That Plaintiffs Do Not State A Monopolization Claim. .......... 2

A. Plaintiffs Fail To Allege Monopoly Power In A Relevant Market. ....................... 2

B. Plaintiffs Fail To Allege Anticompetitive Conduct. .............................................. 4

1. Plaintiffs’ attempted aggregation of conduct fails. .................................... 4

2. Claims based on the Equifax litigation are untimely. ................................ 7

C. The TransUnion Decision Is Not Controlling. ...................................................... 7

II. The Opposition Confirms That Plaintiffs Do Not State A Horizontal Section 1 

Claim. ................................................................................................................................. 8

III. The Opposition Confirms That Plaintiffs Do Not State A Vertical Section 1 

Claim. ............................................................................................................................... 10

A. Plaintiffs Do Not Allege Actual Anticompetitive Effects On Price Or 

Output. ................................................................................................................. 11

1. The No Equivalent Products provision. ................................................... 11

2. The Dynamic Royalty Schedule. ............................................................. 13

3. The Level Playing Field provision. .......................................................... 15

B. Plaintiffs Ignore Facially Obvious Procompetitive Justifications. ...................... 16

1. The provisions protect FICO’s intellectual property. .............................. 16

2. The provisions discourage consumer confusion and free-riding. ............ 17

IV. The Opposition Confirms That Plaintiffs Do Not Satisfy Illinois Brick. ........................ 18

A. Plaintiffs Do Not Pay FICO Directly. .................................................................. 18

B. Plaintiffs’ Alternative Direct Purchaser Theory Fails. ........................................ 19

V. The Opposition Confirms That Plaintiffs’ State Claims Fail. .......................................... 21

CONCLUSION ............................................................................................................................ 23

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Apple, Inc. v. Pepper, 

139 S. Ct. 1514 (2019) .............................................................................................................18 

In re Asacol Antitrust Litig., 

233 F. Supp. 3d 247 (D. Mass. 2017) ........................................................................................5 

Ball Mem’l Hosp., Inc. v. Mut. Hosp. Ins., Inc., 

784 F.2d 1325 (7th Cir. 1986) ...................................................................................................6 

BanxCorp v. Bankrate, Inc., 

847 F. App’x 116 (3d Cir. 2021) .............................................................................................13

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ...................................................................................................................3 

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

65 F.3d 1406 (7th Cir. 1995) ...................................................................................................15 

Illinois ex rel. Burris v. Panhandle E. Pipe Line Co., 

935 F.2d 1469 (7th Cir. 1991) .................................................................................................22 

In re Cardizem CD Antitrust Litig., 

105 F. Supp. 2d 618 (E.D. Mich. 2000) ...................................................................................22 

CBC Companies, Inc. v. Equifax, Inc., 

561 F.3d 569 (6th Cir. 2009) ...................................................................................................13 

City of Mishawaka v. American Electric Power Co., 

616 F.2d 976 (7th Cir. 1980) .....................................................................................................5 

City of Rockford v. Mallinckrodt ARD, Inc., 

360 F. Supp. 3d 730 (N.D. Ill. 2019) .........................................................................................4

Cont’l Ore Co. v. Union Carbide & Carbon Corp., 

370 U.S. 690 (1962) ...................................................................................................................5 

In re Dealer Mgmt. Sys. Antitrust Litig., 

362 F. Supp. 3d 510 (N.D. Ill. 2019) .......................................................................................22 

In re Dicamba Herbicides Litig., 

2019 WL 1160817 (E.D. Mo. Mar. 13, 2019) .........................................................................19 

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iii 

Doe v. Grosch, 

2017 WL 3970515 (N.D. Ill. Sept. 8, 2017) ..............................................................................4 

DPWN Holdings (USA), Inc. v. United Air Lines, Inc., 

747 F. 3d 145 (2d Cir. 2014)......................................................................................................2 

Eatoni Ergonomics, Inc. v. Research In Motion Corp., 

826 F. Supp. 2d 705 (S.D.N.Y. 2011), aff’d, 486 F. App’x 186 (2d Cir. 2012) ........................5 

Fair Isaac Corp. v. TransUnion, LLC, 

2019 WL 1382068 (N.D. Ill. Mar. 27, 2019) .........................................................................7, 8 

Generac Corp. v. Caterpillar Inc., 

172 F.3d 971 (7th Cir. 1999) ...................................................................................................11 

In re Generic Pharms. Pricing Antitrust Litig., 

368 F. Supp. 3d 814 (E.D. Pa. 2019) .......................................................................................23 

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

221 F. Supp. 3d 1033 (N.D. Ind. 2016) .....................................................................................7 

Hosp. Auth. of Metro. Gov’t of Nashville v. Momenta Pharms., Inc., 

353 F. Supp. 3d 678 (M.D. Tenn. 2018) ..................................................................................22 

IDX Sys. Corp. v. Epic Sys. Corp., 

285 F.3d 581 (7th Cir. 2002) ...................................................................................................12 

Illinois Brick Co. v. Illinois, 

431 U.S. 720 (1977) .....................................................................................................18, 20, 21 

Int’l Bhd. of Teamsters, Loc. 734 Health & Welfare Tr. Fund v. 

Philip Morris Inc., 

196 F.3d 818 (7th Cir. 1999) ...................................................................................................20 

Jackson v. Marion Cnty., 

66 F.3d 151 (7th Cir. 1995) .......................................................................................................3 

Klehr v. A.O. Smith Corp., 

521 U.S. 179 (1997) ...................................................................................................................7 

Kloth v. Microsoft Corp., 

444 F.3d 312 (4th Cir. 2006) ...................................................................................................19 

Leonard v. Ala. State Bd. of Pharmacy, 

— F. Supp. 3d —, 2022 WL 736262 (M.D. Ala. Mar. 10, 2022) ...........................................13 

Loeb Industries, Inc. v. Sumitomo Corp., 

306 F.3d 469 (7th Cir. 2002) ...................................................................................................20 

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Marion Diagnostic Ctr., LLC v. Becton Dickinson & Co., 

— F.4th —, 2022 WL 818751 (7th Cir. Mar. 18, 2022) .........................................9, 10, 20, 21 

Marion Healthcare, LLC v. Becton Dickinson & Co., 

952 F.3d 832 (7th Cir. 2020) ...........................................................................................8, 9, 20 

Mercatus Group LLC v. Lake Forest Hosp., 

641 F.3d 834 (7th Cir. 2011) .....................................................................................................6 

Microsoft Corp. v. Computer Support Servs. of Carolina, Inc., 

123 F. Supp. 2d 945 (W.D.N.C. 2000) ....................................................................................13 

In re Musical Instruments & Equip. Antitrust Litig., 

798 F.3d 1186 (9th Cir. 2015) ...................................................................................................9 

New York v. Facebook, Inc., 

549 F. Supp. 3d 6 (D.D.C. 2021) ...............................................................................................5 

Nexstar Broad., Inc. v. Granite Broad. Corp., 

2012 WL 2838547 (N.D. Ind. July 9, 2012) ..............................................................................7 

In re NorthShore Univ. HealthSystem Antitrust Litig., 

2018 WL 2383098 (N.D. Ill. Mar. 31, 2018) ...........................................................................18 

Novell, Inc. v. Microsoft Corp., 

731 F.3d 1064 (10th Cir. 2013) ...............................................................................................16 

Ogden v. Little Caesar Enters., Inc., 

393 F. Supp. 3d 622 (E.D. Mich. 2019) ...................................................................................11 

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

555 U.S. 438 (2009) ...................................................................................................................5 

ProCD, Inc. v. Zeidenberg, 

86 F.3d 1447 (7th Cir. 1996) ...................................................................................................12 

Rock the Vote v. Trump, 

2020 WL 6342927 (N.D. Cal. Oct. 29, 2020) ............................................................................1 

Rosenblum v. Travelbyus.com Ltd., 

299 F.3d 657 (7th Cir. 2002) .....................................................................................................2 

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 

559 U.S. 393 (2010) .................................................................................................................22 

Ticketmaster L.L.C. v. RMG Techs., Inc., 

507 F. Supp. 2d 1096 (C.D. Cal. 2007) ...................................................................................17 

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TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021) .............................................................................................................21 

United States v. Apple, Inc., 

791 F.3d 290 (2d Cir. 2015)...............................................................................................15, 20 

United States v. Microsoft Corp., 

253 F.3d 34 (D.C. Cir. 2001) .............................................................................................12, 17 

Viamedia, Inc. v. Comcast Corp., 

951 F.3d 429 (7th Cir. 2020) ...................................................................................................16 

Washington Cnty. Health Care Auth., Inc. v. Baxter Int’l Inc., 

328 F. Supp. 3d 824 (N.D. Ill. 2018) .......................................................................................10 

In re Zinc Antitrust Litig., 

155 F. Supp. 3d 337 (S.D.N.Y. 2016) ........................................................................................3 

Other Authorities 

FICO, US FICO® Score Reason Codes, https://www.fico.com/en/resourceaccess/download/3425 .............................................................................................................17 

VantageScore Solutions, 10 Years, 10 Milestones (Mar. 2016), 

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

 ...............................................1 

VantageScore Solutions, VantageScore® Credit Scores and The Mortgage 

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

 ..................................................1 

VantageScore Solutions, VantageScore Solutions Announces Score Use Grows to 

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

https://vantagescore.com/press/vantagescore-solutions-announces-score-usegrows-to-more-than-12-billion ................................................................................................12 

 

*

 This document is cited in the complaints using an alternative link, which is no longer functional: 

https://thescore.vantagescore.com/article/252/10-years-10-milestones. 

†

 This document is cited in the complaints using an alternative link, which is no longer functional: 

https://vantagescore.com/pdfs/FAQs-VantageScore-Credit-Scores-and-the-Mortgage-Market.pdf. 

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INTRODUCTION 

Plaintiffs argue that they have plausibly alleged a decades-long unlawful monopoly by 

FICO and a horizontal conspiracy formed by all Defendants in 2013 to “destroy” VantageScore, 

FICO’s primary competitor. As multiple publicly available sources cited in Plaintiffs’ own 

complaints confirm, however, competition in the alleged B2B credit scoring market has flourished 

since 2013.1 Indeed, just a week before Plaintiffs filed their Opposition (Dkt. 147), VantageScore 

tweeted the following graphic reflecting its strong growth during this period.2

 

This image perfectly illustrates why Plaintiffs cannot plausibly identify a substantial 

foreclosure of competition necessary to sustain their claims. But this failing, while sufficient to 

warrant dismissal, is hardly the only defect in Plaintiffs’ complaints. As explained below, the 

Opposition repeatedly attempts to sidestep other grounds for dismissal while failing to 

 

1

 See, e.g., VantageScore Solutions, 10 Years, 10 Milestones (Mar. 2016), https://vantagescore.com/

newsletter/10-years-10-milestones-1 (cited at DPP nn. 56, 66-68 & IPP nn. 50, 60-62) (“more than 6 billion 

VantageScore credit scores were used from July 2014 to June 2015 by more than 2000 lenders and other 

market participants,” representing “an increase in usage of more than 100 percent over the previous 12-

month period”); VantageScore Solutions, VantageScore® Credit Scores and The Mortgage Market at 9 

(2018), https://vantagescore.com/wp-content/uploads/2022/02/FAQs-VantageScore-Credit-Scores-andthe-Mortgage-Market.pdf (cited at DPP nn. 50-51, 93 & IPP nn. 46-47, 78) (“A recent report by Oliver 

Wyman estimated that VantageScore was used more than 8.5 billion times by more than 2,200 lenders 

during a twelve mo[nth] window.”). All websites were last visited on March 29, 2022.

2

 https://twitter.com/VantageScore/status/1497305915594354693 (Feb. 25, 2022); see also Rock the 

Vote v. Trump, 2020 WL 6342927, at *4 (N.D. Cal. Oct. 29, 2020) (taking judicial notice of tweets “cited 

in the government’s Motion to Dismiss as information available on publicly available websites”). 

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meaningfully dispute FICO’s arguments and taking positions that the Seventh Circuit has rejected 

in other cases. For all these reasons, Plaintiffs’ claims are implausible and should be dismissed. 

I. The Opposition Confirms That Plaintiffs Do Not State A Monopolization Claim.

A. Plaintiffs Fail To Allege Monopoly Power In A Relevant Market. 

Monopolization claims require plausible allegations that the defendant exercises monopoly 

power in the alleged relevant market. FICO’s opening brief (Dkt. 139) identified several reasons 

why Plaintiffs failed to allege monopoly power. Mem. 10-12. Plaintiffs hardly engage with these 

arguments; they simply repeat that FICO has “a 90-plus percent market share.” Opp. 4, 14-15, 16, 

18. That mantra does not establish monopoly power for at least three reasons. 

First, the refrain that FICO has a 90% “market share” has no basis in the facts pled in the 

complaints. Plaintiffs actually allege that “FICO Scores are used for 90% of all lending decisions 

in the U.S.” Mem. 11 (citing DPP ¶ 2 & IPP ¶ 2, emphasis added). The number of lending decisions 

that “use” a FICO Score does not equate to any market share of FICO Scores because, as the 

documents cited in Plaintiffs’ own complaints recognize, lenders often use multiple credit scores. 

Id. The Court is not bound to accept Plaintiffs’ characterizations when they are unsupported by the 

specific allegations in the complaint. DPWN Holdings (USA), Inc. v. United Air Lines, Inc., 747 

F. 3d 145, 151-52 (2d Cir. 2014); see also Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 

(7th Cir. 2002) (“The court is not bound to accept the pleader’s allegations as to the effect of the 

exhibit, but can independently examine the document and form its own conclusions”). 

Second, even if Plaintiffs had alleged that there is a 90% “market share” for FICO Scores, 

the “market” Plaintiffs are talking about in these allegations is an unalleged market for credit 

scoring algorithms, not the alleged market for “B2B Credit Scores” that matters for purposes of 

their Section 2 claims. Mem. 11-12. Virtually all credit scores sold are created, priced, and 

delivered to end-users by the Credit Bureaus, as the complaints, the industry, and government 

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regulators all recognize. Mem. 2-5.3 Since Plaintiffs allege that the vast majority of FICO’s 

revenue comes from licensing its scoring algorithm, moreover, FICO’s allegedly high “operating 

margin” (Opp. 17) is not relevant. See Areeda & Hovenkamp, Antitrust Law ¶ 518e2 (“the ability 

to charge prices above short-run marginal cost is often not useful for establishing power in markets 

dominated by IP rights”). As in In re Zinc Antitrust Litigation—which Plaintiffs ignore—Plaintiffs 

“cite no authority for the proposition that Section 2 makes cognizable a theory that a company has 

an unlawful monopoly in a market in which it does not control price or competition” because 

conduct in one market “has some indirect impact on the prices charged in another market.” 155 

F. Supp. 3d 337, 379-80 (S.D.N.Y. 2016). 

Third, Plaintiffs fail to grapple with their own allegations that each Credit Bureau 

possesses “substantial market power.” Mem. 4 & n.5 (citing DPP and IPP allegations). This is 

incompatible with FICO’s alleged monopoly power: a monopolist cannot exist in a market where 

other firms—much less three firms—simultaneously possess “substantial market power” in that 

market. Mem. 12; see also Jackson v. Marion Cnty., 66 F.3d 151, 153 (7th Cir. 1995) (“a plaintiff 

can plead himself out of court by alleging facts which show that he has no claim”). 

Plaintiffs’ response that their own contradictory allegations of the Credit Bureaus’ market 

power can be ignored because “[t]he monopolization claim (Claim 5) is brought against [FICO] 

only” (Opp. 17) is unpersuasive. Claim Five incorporates all prior factual allegations—including 

Plaintiffs’ affirmative allegations that the Credit Bureaus possess “substantial market power.” 

 

3

 Plaintiffs argue that the Court should not look outside “the four corners of the complaint” (Opp. 

15-16) in assessing whether Plaintiffs have plausibly alleged FICO’s monopoly power. However, it is 

entirely appropriate for the Court to take judicial notice of public information and the full scope of 

documents referenced or cited to in a complaint. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 n.13 

(2007) (“the District Court was entitled to take notice of the full contents of the published articles referenced 

in the complaint, from which the truncated quotations were drawn”); Mem. 3 n.1, 6 n.16 (collecting cases). 

Plaintiffs do not challenge the authenticity of the documents FICO cites in its opening brief or contend that 

the documents are not subject to judicial notice. 

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DPP ¶ 239; IPP ¶ 229. Plaintiffs also argue that the Credit Bureaus’ alleged market power is in a 

“separate market” for “credit reports.” Opp. 18. By Plaintiffs’ own allegations, that is semantics. 

Plaintiffs allege that FICO Scores and credit reports are sold together in a “bundle” in the “B2B 

market.” DPP ¶¶ 40-42; IPP ¶¶ 46-48. Indeed, Plaintiffs even allege that FICO Scores “are defined 

as ‘a credit report that contains a FICO Score.’” Opp. 67; DPP ¶ 3; IPP ¶ 1 n.1. Plaintiffs thus 

affirmatively allege that each of the three Credit Bureaus has “substantial market power” with 

respect to the same alleged product and market in which FICO is a purported monopolist. These 

allegations are self-defeating and require dismissal of Plaintiffs’ monopolization claim. 

B. Plaintiffs Fail To Allege Anticompetitive Conduct. 

Even if Plaintiffs had plausibly alleged monopoly power, they do not plausibly allege 

anticompetitive conduct, described by one of Plaintiffs’ cases as “conduct that is in itself an 

independent violation of the antitrust laws or that has no legitimate business justification other 

than to destroy or damage competition.” City of Rockford v. Mallinckrodt ARD, Inc., 360 F. Supp. 

3d 730, 756 (N.D. Ill. 2019). Plaintiffs fail to show anticompetitive conduct through FICO’s 

negotiation of the challenged license terms for the same reasons they fail to state a Section 1 claim 

based on those terms. Mem. 16-23, 34-56; see also pp. 10-18 infra. Plaintiffs’ allegations based 

on the Equifax litigation and supposedly “disparaging” statements about VantageScore also fail. 

1. Plaintiffs’ attempted aggregation of conduct fails. 

Plaintiffs admit that their allegations about the Equifax litigation and “disparagement” of 

VantageScore are not Section 2 violations standing alone,4

 but suggest that this conduct supports 

a Section 2 claim in two ways. Neither theory is availing. 

 

4

 Plaintiffs concede that the Equifax litigation is not an independent basis for a Section 2 claim. See 

Opp. 23 (Plaintiffs “never allege that the Equifax Litigation alone states a claim for monopolization”). And 

by failing to argue that supposedly “disparaging” statements are independently actionable, Plaintiffs have 

forfeited any such claims. Doe v. Grosch, 2017 WL 3970515, at *3 (N.D. Ill. Sept. 8, 2017).

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First, Plaintiffs argue that the alleged conduct forms a “monopoly broth” that can be 

actionable even if none of the component ingredients is unlawful standing alone. Opp. 18, 20-21 

(quoting Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962), and City 

of Mishawaka v. American Electric Power Co., 616 F.2d 976, 986 (7th Cir. 1980)). This theory 

fails for two independent reasons. The first is that “monopoly broth” liability is highly dubious as 

a matter of law. The Continental Ore decision that Plaintiffs cite “does not concern unilateral 

conduct” and “does not stand for the unworkable proposition that business conduct that does not 

offend the antitrust laws may violate the Sherman Act once it is combined with other lawful 

business conduct.” Eatoni Ergonomics, Inc. v. Research In Motion Corp., 826 F. Supp. 2d 705, 

710 (S.D.N.Y. 2011), aff’d, 486 F. App’x 186 (2d Cir. 2012). Moreover, the Supreme Court has 

effectively abrogated City of Mishawaka—which considered a monopolization claim against a 

utility accused of engaging in a “price squeeze” and related exclusionary acts—by holding that 

“price-squeeze” claims are not cognizable under Section 2 and that plaintiffs cannot “alchemize 

. . . a new form of antitrust liability” by “join[ing]” one claim “that cannot succeed” with another. 

Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 438, 457 (2009). 

Even those courts that continue to entertain “monopoly broth” theories, moreover, require 

the plaintiff to show that the various conduct thrown into the pot has an overall “synergistic effect.” 

In re Asacol Antitrust Litig., 233 F. Supp. 3d 247, 261 (D. Mass. 2017); see also New York v. 

Facebook, Inc., 549 F. Supp. 3d 6, 46-47 (D.D.C. 2021) (expressing skepticism about such a 

theory, but noting at a minimum that the theory requires aggregation of arrangements that do not 

“foreclose enough of the market to affect competition” on their own, but “when evaluated together, 

did have that forbidden effect”). Yet Plaintiffs do not attempt to identify synergistic effects from 

the conduct they challenge. Nor could they. There is no synergy between a 2006 lawsuit, three 

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6 

commercial license agreements executed between 2013 and 2015, and unrelated statements that 

occurred sporadically at disparate times over a fifteen-year period. 

Second, Plaintiffs alternatively argue that FICO’s conduct unrelated to the license 

agreements is evidence of anticompetitive “intent” to “undercut” VantageScore as a competitor. 

Opp. 21, 23. But “intent to harm rivals” is “not a useful standard” in antitrust law. Ball Mem’l 

Hosp., Inc. v. Mut. Hosp. Ins., Inc., 784 F.2d 1325, 1338 (7th Cir. 1986) (cited at Mem. 10). And 

several considerations make inferring anticompetitive intent especially inappropriate here. 

As Plaintiffs do not dispute, the Equifax court found both that FICO advanced colorable 

infringement claims and that FICO showed a dangerous probability of monopolization at the outset 

of the case. The Equifax litigation thus cannot give rise to antitrust liability under NoerrPennington. Mem. 15-16. Moreover, because the underlying conduct is immune, it cannot be 

aggregated with other conduct. Such an approach “would nullify the immunity.” Mercatus Group 

LLC v. Lake Forest Hosp., 641 F.3d 834, 839 (7th Cir. 2011).5

Plaintiffs assert that “Fair Isaac does not deny that many of its statements regarding 

VantageScore were false or misleading.” Opp. 23. That is both untrue and, more importantly, 

irrelevant, because such allegations are not cognizable under the antitrust laws. Mem. 9 & 24-25. 

In addition, the key statements Plaintiffs identify relate to FICO’s position on contemplated FHFA 

rule changes in the mortgage market and are thus indisputably immune from antitrust liability as 

well. Mem. 25. Again, these statements cannot be aggregated with other conduct under Seventh 

Circuit law. Mercatus Group, 641 F.3d at 839.6

 

5

 Plaintiffs emphasize the Equifax jury’s determination that FICO’s “300-850” trademark was 

invalid. Opp. 22-23. But this has nothing to do with the argument FICO made in its motion to dismiss. 

FICO did not argue that Noerr-Pennington immunity applied to FICO’s trademark or to statements made 

to the Patent and Trademark Office. Rather, the immunity applies to the Equifax litigation itself. 

6

 The sole case Plaintiffs cite considering “denigrating speech” as “part of a course of conduct” cuts 

against them. Unlike in that decision, Plaintiffs identify no “coercive enforcement mechanism” that FICO 

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7 

2. Claims based on the Equifax litigation are untimely. 

Plaintiffs offer no meaningful response to FICO’s argument that the applicable limitations 

period bars any claim based on the 2006 Equifax litigation, which ended no later than 2011. 

Mem. 13-14. Plaintiffs cite no cases that permit them to recover damages for any conduct they 

proclaim to be part of a “decades-long, multi-faceted monopolistic scheme.” Opp. 24. That is 

unsurprising, for such a rule would obliterate the statute of limitations for Section 2. Courts widely 

agree that the continuing violation doctrine “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 (1997). Further, neither equitable estoppel nor equitable tolling applies to the 

2006 Equifax litigation, which was public record as soon as the case was filed. Mem. 13-14.7

C. The TransUnion Decision Is Not Controlling. 

Plaintiffs repeatedly seek refuge in Judge Coleman’s denial of FICO’s motion to dismiss 

the monopolization and attempted monopolization counterclaims in the TransUnion litigation. See, 

e.g., Opp. 2, 11, 14-15. That decision does not help Plaintiffs for three reasons. 

First, Plaintiffs’ failure to plausibly allege that FICO has monopoly power provides a new 

and independent basis for dismissal that Judge Coleman did not consider. Indeed, Plaintiffs’ 

contradictory allegation that the Credit Bureaus possess “substantial market power” in the same 

market in which FICO is a purported monopolist was never made in TransUnion. Plaintiffs are 

wrong that Judge Coleman “recognized that Fair Isaac holds a monopoly” in an alleged market for 

 

“could use . . . to back its [allegedly] derogatory statements” and eliminate competition. Nexstar Broad., 

Inc. v. Granite Broad. Corp., 2012 WL 2838547, at *7-8 (N.D. Ind. July 9, 2012). 

7

 See also Gumwood HP Shopping Partners, L.P. v. Simon Prop. Grp., Inc., 221 F. Supp. 3d 1033, 

1043 (N.D. Ind. 2016) (“in antitrust claims, new acts cannot be used to bootstrap damages that resulted 

from injuries prior to the limitations period”); Areeda & Hovenkamp, Antitrust Law ¶ 320c (“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). 

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8 

B2B credit scores. Opp. 15. Judge Coleman never addressed that element of the monopolization 

claims asserted in TransUnion. See Fair Isaac Corp. v. TransUnion, LLC, 2019 WL 1382068, at 

*2 (N.D. Ill. Mar. 27, 2019) (“FICO’s main contention is that TransUnion has not adequately pled 

any anticompetitive conduct”). 

Second, when addressing the anticompetitive-conduct element of the Section 2 claims that 

were asserted in TransUnion, Judge Coleman analyzed the alleged license agreement terms as 

“exclusive dealing” provisions. See TransUnion, 2019 WL 1382068, at *2 (“TransUnion puts forth 

claims that, if proven, could establish that FICO’s exclusive dealing provisions are unlawful”).

Plaintiffs do not attempt to defend their Section 2 claims under an exclusive-dealing theory—with 

good reason, see Mem. 33—so Judge Coleman’s analysis does not apply. 

Third, in any event, the Court is not bound to reach the same conclusion that Judge 

Coleman reached. This is a new case brought by different parties asserting different claims based 

on different allegations that affirmatively undercut their theories. Plaintiffs’ regurgitation of some 

of Transunion’s allegations does not bind the Court to adopt Judge Coleman’s ultimate decision. 

II. The Opposition Confirms That Plaintiffs Do Not State A Horizontal Section 1 Claim.

FICO’s opening brief explained that a supposed “conspiracy” between the Credit Bureaus 

and FICO to destroy the Credit Bureaus’ own joint venture is implausible on its face. Mem. 26-

27. In their response, Plaintiffs do not address any of the decisions from the Seventh Circuit and 

elsewhere that reject such theories as inherently implausible. 

FICO also explained that Plaintiffs had not pled a plausible “rim” to the alleged 

conspiracy—merely that the Credit Bureaus each independently agreed to certain terms FICO 

proposed to each Bureau. Mem. 27-30. As the Seventh Circuit held in a strikingly similar case, 

allegations that multiple distributors agreed to the same supposedly “anticompetitive contractual 

terms” are not enough to “describe a hub-and-spokes conspiracy.” Marion Healthcare, LLC v. 

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9 

Becton Dickinson & Co., 952 F.3d 832, 842-43 (7th Cir. 2020) (“Marion I”); see also In re Musical 

Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1195 (9th Cir. 2015). When that case recently 

returned to the Seventh Circuit, the court held that the allegations could not be recast as “vertical” 

conspiracies for similar reasons. Marion Diagnostic Ctr., LLC v. Becton Dickinson & Co., — F.4th 

—, 2022 WL 818751, at *9-10 (7th Cir. Mar. 18, 2022) (“Marion II”). 

Plaintiffs fail to distinguish this case from the Marion Healthcare decisions, instead 

making arguments that the Seventh Circuit has now twice rejected. Opp. 40-49. For instance, 

Plaintiffs argue that it was “contrary” to the Credit Bureaus’ individual interests to agree to the No 

Equivalent Products clause. Opp. 42-43. But virtually any bilateral negotiations between 

sophisticated businesses will result in provisions that—in isolation—are arguably contrary to one 

side’s interest. Inferring a conspiracy simply because one side agrees to terms that benefit the 

other, and vice versa, would chill vast swathes of procompetitive commercial activity, if not the 

very concept of commercial agreements. Plaintiffs also argue that the Level Playing Field 

provision provided a “powerful incentive” for the Credit Bureaus to conspire. Opp. 44. Plaintiffs 

concede, however, a straightforward unilateral reason why each Credit Bureau would want this 

provision: to ensure that the prices paid to license FICO’s algorithm were in line with the prices 

paid by its competitors. See id. (“No Credit Bureau would give Fair Isaac the power to raise royalty 

rates unilaterally unless it could be sure the other Credit Bureaus were paying similar prices.”). 

It is not sufficient to label the Level Playing Field provision a “quid pro quo.” Opp. 45. As 

Marion II recognizes, the question is not whether a particular provision could be viewed as a “quid 

pro quo,” but whether the conduct being challenged is “in line with a wide swath of rational and 

competitive business strategy unilaterally prompted by common perceptions of the market.” 

2022 WL 818751, at *9-10. If the complaint’s “allegations, taken as true, could just as easily reflect 

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innocent conduct or rational self-interest”—as is the case here—then “courts should dismiss 

antitrust conspiracy complaints for failure to state a claim.” Id. 

In addition, Plaintiffs toss out several supposed “plus factors,” including allegedly parallel 

timing, market structure, and opportunity to coordinate, that Plaintiffs say make a conspiracy 

explanation more likely. Opp. 46-49. These factors are drawn largely from inapposite cases about 

alleged cartel price-fixing and have no probative value in the licensing context. But even so, the 

factors do not plausibly suggest a conspiracy here. 

Most obviously, the alleged conduct at issue—the negotiation of each Credit Bureau’s 

license agreement—was separated by nearly two years and therefore not parallel as a matter of 

law. See Mem. 28-29. Moreover, “while market structure can provide some evidence of an 

unlawful agreement, it (even combined with parallel conduct) cannot sustain plaintiffs’ complaint 

all on its own.” Washington Cnty. Health Care Auth., Inc. v. Baxter Int’l Inc., 328 F. Supp. 3d 824, 

841 (N.D. Ill. 2018). Finally, the fact that the Credit Bureaus participated in the VantageScore joint 

venture and various other trade organizations does not suggest a conspiracy, let alone the one 

alleged here. See id. at 843 (“in virtually every industry,” trade organizations “are ubiquitous and 

serve numerous legitimate and pro-competitive purposes.”). It is not remotely plausible that the 

Credit Bureaus would use the “opportunity” presented by their joint venture to hatch a conspiracy 

aimed at the joint venture’s destruction. 

III. The Opposition Confirms That Plaintiffs Do Not State A Vertical Section 1 Claim.

Without a plausible horizontal agreement, Plaintiffs are left challenging each of the three 

vertical licensing agreements as individually anticompetitive under Section 1 (as explained above, 

these individual agreements also form the faulty basis of the Section 2 claim). Plaintiffs attempted 

to allege in their complaints that the license agreements were per se illegal even absent a horizontal 

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conspiracy. Now, however, Plaintiffs appropriately concede that the individual agreements must 

be evaluated independently under the rule of reason. Opp. 27-28; Mem. 30-31. 

A. Plaintiffs Do Not Allege Actual Anticompetitive Effects On Price Or Output. 

To assert a vertical Section 1 claim, Plaintiffs must plausibly plead that each of the 

challenged license agreements had “substantial anticompetitive effects” in a relevant market. 

Ogden v. Little Caesar Enters., Inc., 393 F. Supp. 3d 622, 636 (E.D. Mich. 2019) (quoting Ohio v. 

American Express, 138 S. Ct. 2274, 2284 (2018)). Plaintiffs, however, do not allege any facts 

demonstrating that price, output, choice, or any other aspect of competition has been meaningfully 

harmed. As in Generac Corp. v. Caterpillar Inc., “no credible story of lowered output or increased 

price can be told on the basis of [the challenged] provisions.” 172 F.3d 971, 978 (7th Cir. 1999). 

This alone warrants dismissal of Plaintiffs’ Section 2 and vertical Section 1 claims.8

1. The No Equivalent Products provision. 

Plaintiffs argue that the No Equivalent Products provision has anticompetitive effects 

because it “effectively deprives customers of access” to competing credit scoring products “that 

they most desire.” Opp. 29-30. But that is not a plausible characterization of the provision’s effect. 

It is undisputed that VantageScore is free to develop competing scoring algorithms, the Credit 

Bureaus are free to distribute them even while acting as FICO’s authorized distributor, and 

Plaintiffs and thousands of other lenders are free to use VantageScore (and do so). The Credit 

Bureaus are merely prohibited from distributing competing credit scores that intentionally copy 

certain distinctive aspects of FICO Scores—their odds-to-score relationship and reason codes. 

Mem. 17-18. The Seventh Circuit has expressly approved of ancillary contractual restrictions that 

 

8

 Plaintiffs call Generac inapposite because the agreement supposedly left the distributor 

(Caterpillar) “free to sell or license” other products than the ones covered by the agreement. Opp. 36 n.12. 

But the same is true of FICO’s license agreements, which leave the Credit Bureaus free to license or 

distribute other credit scores that do not copy key elements of FICO Scores. 

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protect intellectual property or trade secrets, see id., even if the restriction “may compel rivals . . . 

to do more work to develop software independently.” IDX Sys. Corp. v. Epic Sys. Corp., 285 F.3d 

581, 585 (7th Cir. 2002). “[T]rade-secret law is compatible with antitrust law,” as are “contracts 

protecting intellectual property that, though not demonstrably a trade secret, is commercially 

valuable.” Id.; see also ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1455 (7th Cir. 1996) (licenses 

that facilitate distribution of intellectual property are procompetitive).9

Plaintiffs’ argument that restraints can be anticompetitive even if they do not “completely 

eliminate” competition (Opp. 30-31) misses the mark. As Plaintiffs admit, the question is whether 

the “challenged practices bar a substantial number of rivals or severely restrict the market’s 

ambit.” Opp. 31 (citing United States v. Dentsply Int’l, Inc., 399 F.3d 181, 191 (3d Cir. 2015)) 

(emphasis added). Plaintiffs allege no facts showing that the No Equivalent Products provision has 

plausibly prevented or even slowed competition from VantageScore and other credit scoring 

models. And Plaintiffs simply ignore VantageScore’s explosive growth since the first license 

agreement was executed in 2013—which VantageScore itself called “a testament to an 

increasingly competitive marketplace for credit scores.”10 This renders any claims that the 

agreements have “effectively bar[red]” the sale of competing products (Opp. 29) wholly 

implausible. See Mem. 19-20. 

 

9

 Plaintiffs have no convincing response to these cases. The Opposition does not address ProCD at 

all. Plaintiffs claim that IDX did not address federal antitrust laws, Opp. 36 n.12, but the decision cites an 

antitrust case—United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001)—to explain that even alleged 

monopolists may prevent others from “spong[ing] off [their] intellectual property.” 285 F.3d at 585. 

Plaintiffs also state that IDX “nowhere holds that a company may seek to prohibit a competitor from 

distributing a product developed through independent effort.” Opp. 36 n.12. But that is not what the No 

Equivalent Products provision allegedly does. It is undisputed that the Credit Bureaus are free to and do 

distribute products, including VantageScore, that compete directly against FICO Scores. 

10 VantageScore Solutions, VantageScore Solutions Announces Score Use Grows to More than 12 

Billion (Oct. 29, 2019), https://vantagescore.com/press/vantagescore-solutions-announces-score-usegrows-to-more-than-12-billion (cited at Mem. 19 n.47). 

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2. The Dynamic Royalty Schedule. 

Plaintiffs next argue that the Dynamic Royalty Schedule is anticompetitive because it 

supposedly created a “mechanism” to charge lenders “supracompetitive prices.” Opp. 31-32. But 

Plaintiffs allege hardly any price increases after 2013, let alone supracompetitive ones. The only 

relevant allegations are an analyst’s report stating that FICO increased the standard royalty for 

mortgage use-cases in 2018 by $0.04, which the report indicates was the first increase in 25 years, 

and that FICO made unspecified royalty increases for auto and credit card use-cases in 2019 and 

2020. Opp. 17 (citing DPP ¶ 142 & IPP ¶ 163). An IP holder has “the right to determine the fees 

it will charge its own licensees.” Microsoft Corp. v. Computer Support Servs. of Carolina, Inc., 

123 F. Supp. 2d 945, 951 (W.D.N.C. 2000). For this reason, “price increases, without more, do not 

constitute supracompetitive pricing.” BanxCorp v. Bankrate, Inc., 847 F. App’x 116, 120 (3d Cir. 

2021); see also Leonard v. Ala. State Bd. of Pharmacy, — F. Supp. 3d —, 2022 WL 736262, at *8 

(M.D. Ala. Mar. 10, 2022) (dismissing claims for failure to allege “the ‘baseline’ competitive level 

against which the Court must judge” a defendant’s actions); Mem. 34-35.11

Apart from their general and insufficient allegations about FICO’s royalty prices, Plaintiffs 

contend that FICO harmed competition by using the Dynamic Royalty Schedule to impose a “PreQualification” royalty category, which Plaintiffs call a “penalty rate for a FICO Score if a lender 

also provides its consumer with a rival’s credit score (i.e., VantageScore) in pre-qualification 

decisions.” Opp. 31. Plaintiffs notably do not allege what proportion of the alleged “B2B” credit 

scoring market consists of pre-qualification decisions, nor do they explain how the supposed 

 

11 Plaintiffs also fail to address FICO’s argument (at Mem. 35) that “federal regulations are the more 

likely basis” for FICO’s royalty pricing related to mortgage use-cases, and “not any specifically 

anticompetitive conduct.” CBC Companies, Inc. v. Equifax, Inc., 561 F.3d 569, 573 (6th Cir. 2009). 

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“penalty rate” for this use case has substantially hampered VantageScore’s growth in this narrow 

segment of the alleged market, much less in the market at large. 

Plaintiffs also demonstrate that they either do not understand their own allegations about 

the Pre-Qualification royalty category or are intentionally misrepresenting it. Plaintiffs assert that 

the royalty rate “require[s] consumers to pay more to see both FICO Scores and VantageScores” 

disclosed to them side-by-side. Opp. 36 n.11. To begin, the Pre-Qualification royalty category 

establishes what the Credit Bureaus pay to license FICO’s algorithm, not what lenders or 

consumers pay for FICO Scores or other credit scores.12 Moreover, Plaintiffs allege that the 

purported “penalty” rate applies when Credit Bureaus supply a FICO Score for the lender to use 

in making its credit offer decision but the lender “provides a VantageScore (or any other credit 

score) to the consumer ‘in connection’ with the ‘Pre-Qualification[.]’” DPP ¶ 120; IPP ¶¶ 139-40. 

Thus, the rate applies when lenders use FICO Scores behind the scenes to make lending decisions 

but disclose a different score to consumers when communicating that decision—directly raising 

the concern that consumers may become confused about which score was used for their lender’s 

pre-qualification decision. FICO has a legitimate interest in discouraging this type of confusion in 

the marketplace and possible harm to its brand equity. Mem. 20-21; see also pp. 17-18 infra. 

Plaintiffs also argue that the Pre-Qualification royalty “require[s] purchasers to pay more 

to provide a competing scoring analytic that actually helps ‘more borrowers to obtain fairer 

pricing’ from lenders.” Opp. 36 n.11. Plaintiffs forget that if Credit Bureaus believe a competing 

scoring analytic allows “more borrowers to obtain fairer pricing,” they are free to offer that score 

to lenders for pre-qualification decisions, and lenders are free to disclose that score to consumers 

 

12 Plaintiffs make this mistake at several other points in their Opposition. See, e.g., Opp. 17 (stating 

that the Dynamic Royalty Schedule allows FICO to charge rates “directly to lenders”), 31, 34, 40 (similar). 

As Plaintiffs elsewhere acknowledge, however, the alleged Dynamic Royalty Schedule allows FICO to set 

the “royalty rates” that the “Credit Bureaus were paying.” Opp. 44 (emphasis added). 

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if they wish. It is therefore no help to allege that the Pre-Qualification royalty is “so steep that no 

buyer is willing to pay it,” Opp. 53, as the “buyers” can simply choose to supply other credit scores 

instead of FICO Scores in connection with pre-qualification use-cases. That is the very essence of 

competition, not a plausible allegation of its substantial foreclosure. 

3. The Level Playing Field provision. 

Plaintiffs’ last attempt to show an anticompetitive effect from the license agreement rests 

on the Level Playing Field provision. Plaintiffs do not dispute that these provisions are akin to 

“most favored nations” (“MFN”) clauses that normally lower prices and reflect “the sort of conduct 

that the antitrust laws seek to encourage.” Blue Cross & Blue Shield United of Wis. v. Marshfield 

Clinic, 65 F.3d 1406, 1415 (7th Cir. 1995). Plaintiffs merely say that, under the “right 

circumstances,” such provisions might be anticompetitive. Opp. 36-37 (quoting United States v. 

Apple, Inc., 791 F.3d 290 (2d Cir. 2015)).13 This is insufficient because Plaintiffs do not allege any 

facts demonstrating that the alleged Level Playing Field provisions were anticompetitive here. For 

instance, Plaintiffs do not allege that the provision actually resulted in fewer discounts to the Credit 

Bureaus, or that any prospective entrants into the market actually were stymied because the Level 

Playing Field provision prevented them from negotiating better pricing than the Credit Bureaus. 

Mem. 22. And Plaintiffs simply ignore FICO’s argument that the Level Playing Field provision 

does not eliminate the Credit Bureaus’ incentive to negotiate with FICO for discounts because they 

benefit from a lower royalty rate regardless of whether similar rates could be offered to their 

competitors. Id. Plaintiffs’ Level Playing Field allegations thus never cross the threshold from 

theoretical and speculative to actually plausible, as required to withstand a motion to dismiss. 

 

13 In Apple, the Second Circuit found that MFNs were evidence of horizontal agreement because 

“multiple competitors sign[ed] vertical agreements that would be against their own interests were they 

acting independently.” Id. at 320. But Plaintiffs themselves have explained why each Credit Bureau had a 

legitimate, unilateral interest in negotiating a Level Playing Field provision. See p. 9 supra. 

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B. Plaintiffs Ignore Facially Obvious Procompetitive Justifications. 

Plaintiffs’ failure to allege plausible anticompetitive effects is further underscored by the 

licensing terms’ facially procompetitive justifications. Plaintiffs attempt to sidestep these aspects 

of the challenged restrictions by calling them “factual” disputes and citing Viamedia, Inc. v. 

Comcast Corp., 951 F.3d 429 (7th Cir. 2020). Opp. 28-29, 34. But Viamedia does not apply here. 

In Viamedia, the defendant’s exclusionary practices were “not in dispute,” 951 F.3d at 462, and 

the court expressly distinguished the case from Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 

(10th Cir. 2013), where the defendant, like FICO, “was the sole owner of the intellectual property 

it had made available to independent software vendors.” Viamedia, 951 F.3d at 465. 

1. The provisions protect FICO’s intellectual property. 

Plaintiffs pretend that FICO has only “vaguely gesture[d]” towards how the No Equivalent 

Products provision protects its intellectual property. Opp. 35. In fact, FICO specifically addressed 

this issue in its opening brief. See Mem. 17-19. Plaintiffs ignore FICO’s arguments. 

Plaintiffs concede that credit scoring models are dynamic and evolve in response to 

changing economic conditions. See Mem. 18 & n.41. Therefore, aligning a competing score’s 

odds-to-score relationship to FICO’s odds-to-score relationship requires either reverse engineering 

FICO’s model or continually generating large numbers of FICO Scores to calibrate the competing 

model’s output as the FICO model’s odds-to-score relationship changes. Mem. 18. Plaintiffs do 

not attempt to explain how another score developer could design a model that is intentionally 

aligned to the FICO Score’s odds-to-score relationship without doing one or the other, either of 

which would misappropriate FICO’s intellectual property. Nor do Plaintiffs deny that the Credit 

Bureaus have unique access to and ability to misappropriate FICO’s intellectual property by virtue 

of the very license agreements at issue. 

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Plaintiffs’ assertion that FICO “did not invent and does not own” the idea of reason codes 

(Opp. 36) is a strawman. The No Equivalent Products provision does not prevent the Credit 

Bureaus from distributing competing scores that use reason codes. The No Equivalent Products 

provision merely protects the particular arrangement and classification of reason codes that FICO 

has created for its own credit scores. FICO’s unique classification qualifies for protection under 

intellectual property laws. Mem. 18-19 (citing Am. Dental Ass’n v. Delta Dental Plans Ass’n, 

126 F.3d 977, 978-79 (7th Cir. 1997)). Plaintiffs also erroneously state that FICO’s reason codes 

are not “fixed” in a “tangible medium.” Opp. 35. Plaintiffs need only review their own complaints, 

which cite a “Fair Isaac . . . webpage that sets forth [FICO’s] various ‘reason codes.’”14 

Plaintiffs finally assert that “merely holding some protectable intellectual property would 

not confer on Fair Isaac ‘an absolute and unfettered right’ to impose whatever licensing terms ‘it 

wishes.’” Opp. 35 (quoting Microsoft, 253 F.3d at 63). That is another strawman. FICO does not 

argue that owning intellectual property gives it an absolute right to foreclose competition, nor has 

it done so. Instead, as explained above, the alleged restrictions in FICO’s license agreements are 

tied to specific, legitimate, and procompetitive interests in preventing copying of FICO’s 

intellectual property, and leave ample room for competition. 

2. The provisions discourage consumer confusion and free-riding. 

As FICO explained, the alleged Pre-Qualification royalty serves two facially legitimate 

interests: preventing consumer confusion regarding different credit scores—a problem the 

Consumer Financial Protection Bureau has recognized—and fairly compensating FICO in the 

event FICO’s algorithm is used to build a competing score’s brand equity. Mem. 20-21, 33. 

 

14 FICO, US FICO® Score Reason Codes, https://www.fico.com/en/resource-access/download/3425 

(cited at DPP n.7 & IPP n.7). This document includes a notice at the bottom of several pages: “© 2013 Fair 

Isaac Corporation. All rights reserved.” See also Ticketmaster L.L.C. v. RMG Techs., Inc., 507 F. Supp. 2d 

1096, 1104 (C.D. Cal. 2007) (a website is a “tangible medium of expression”). 

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Plaintiffs do not dispute the potential for consumer confusion or explain why it is 

anticompetitive for FICO to seek fair compensation when another credit score is presented to the 

consumer as the supposed basis for a pre-qualification decision made using a FICO Score. 

Plaintiffs respond that FICO could alternatively (a) categorically forbid the disclosure of 

VantageScore credit scores in this scenario or (b) “insist upon clarifying disclosures.” Opp. 36 

n.11. But the first alternative is more restrictive, and the second is entirely speculative—what sort 

of disclosures? would the Bureaus agree? how would FICO monitor compliance?—and would not 

address the free-riding problem in any event. See Mem. 21. 

IV. The Opposition Confirms That Plaintiffs Do Not Satisfy Illinois Brick.

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), bars Plaintiffs’ federal damages claims, 

providing a separate basis to dismiss those claims regardless of their underlying plausibility. As 

FICO has explained, all Plaintiffs—including the self-proclaimed “Direct Purchaser Plaintiffs” 

(“DPPs”)—are at best indirect purchasers from FICO and thus cannot recover damages under 

federal law. Mem. 36-39. The Opposition makes clear that Illinois Brick applies. 

A. Plaintiffs Do Not Pay FICO Directly. 

The parties agree that the “key element” under Illinois Brick is whether the plaintiff made 

direct payments to the defendant. Opp. 58-59; Mem. 37-38. For example, this Court has found it 

dispositive that an intermediary, not the plaintiff, was “the entity actually sending money to 

NorthShore for payment.” In re NorthShore Univ. HealthSystem Antitrust Litig., 2018 WL 

2383098, at *7 (N.D. Ill. Mar. 31, 2018). And in Apple, Inc. v. Pepper, it was dispositive that the 

plaintiffs “pay the alleged overcharge directly to Apple” in “[t]he absence of an intermediary.” 

139 S. Ct. 1514, 1521 (2019). Despite agreeing on the legal framework, however, no DPP alleges 

that it pays FICO directly “in the absence of an intermediary.” Id. Indeed, Plaintiffs admit that two 

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DPPs purchase credit scores from a Credit Bureau only, while the other DPPs purchase “from Fair 

Isaac and at least one Credit Bureau.” Opp. 58 n.20 (emphasis added).

Rather than clearly identifying who they pay for FICO Scores, Plaintiffs engage in 

misdirection by asserting that some DPPs purchase FICO Scores from a Credit Bureau and FICO 

together. Plaintiffs never explain what this means. They also contend that some purchasers have 

language in their contracts with the Credit Bureaus that authorize payments “to either the Credit 

Bureau or Fair Isaac.” Opp. 59 (emphasis in original). But the DPPs do not claim that they have 

such language in their own contracts, and they argue that “[t]he party with whom the purchaser 

contracts is not necessarily the entity that receives payment.” Id. Thus, this convoluted argument 

cannot obscure the fatal flaw in the complaints: the failure to allege facts showing that FICO was 

the entity that receives payment directly from any Plaintiff. 

Plaintiffs also claim that determining which entity they paid “cannot be resolved on a 

motion to dismiss.” Opp. 59. But Plaintiffs do not need discovery to allege who the DPPs pay 

directly for FICO Scores, a fact that is clearly within their own knowledge. Further, FICO cited 

two cases showing that courts routinely resolve Illinois Brick questions on the pleadings. Kloth v. 

Microsoft Corp., 444 F.3d 312 (4th Cir. 2006); In re Dicamba Herbicides Litig., 2019 WL 1160817 

(E.D. Mo. Mar. 13, 2019) (cited at Mem. 38). In both of these cases, the plaintiffs alleged that they 

were direct purchasers from an upstream defendant because that defendant allegedly “maintain[ed] 

a financial relationship with end-users,” but the courts granted the motion to dismiss. Kloth, 444 

F.3d at 321-23; see also Dicamba, 2019 WL 1160817, at *2-3. Plaintiffs do not address either 

decision, let alone explain why the result in this case should be different. 

B. Plaintiffs’ Alternative Direct Purchaser Theory Fails. 

Plaintiffs also argue that they should be considered direct purchasers even if they do not 

make direct payments to FICO because the Credit Bureaus only license the algorithm from FICO, 

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making Plaintiffs the “first purchasers” of FICO Scores. Opp. 60-61.15 This argument also fails. 

There is no requirement that a downstream purchaser must purchase the same product as the direct 

purchaser in order to trigger Illinois Brick. In Illinois Brick itself, the plaintiffs were indirect 

purchasers even though they did not purchase concrete blocks sold by the defendants, but buildings 

of which the concrete blocks were an incorporated component. 431 U.S. at 726. 

Plaintiffs claim that Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469 (7th Cir. 2002), 

supports their “first purchaser” theory, but Loeb does no such thing. Opp. 60. First, unlike in Loeb, 

there are no allegations of a conspiracy to “directly . . . manipulate” prices in the supposed market 

where Plaintiffs are purchasers. 306 F.3d at 482. Second, Loeb discussed “first purchasers” in the 

context of proximate causation, not Illinois Brick. Id. at 492. These two doctrines are “analytically 

distinct.” Int’l Bhd. of Teamsters, Loc. 734 Health & Welfare Tr. Fund v. Philip Morris Inc., 

196 F.3d 818, 828 (7th Cir. 1999). Further, the Seventh Circuit has rejected the argument that Loeb 

shows that “a plaintiff has standing simply if it buys products at market prices affected by the 

defendants’ conduct, even if that conduct occurred in a separate market,” as this “would eviscerate 

Illinois Brick’s direct-purchaser rule because plaintiffs could always argue that an upstream 

conspirator’s conduct resulted in higher prices downstream.” Marion II, 2022 WL 818751, at *6.16

Finally, as FICO has explained, the “conspiracy exception” to Illinois Brick does not apply 

because Plaintiffs have not pled a plausible conspiracy of any sort. Mem. 39; see also pp. 8-10 

supra. Plaintiffs argue that the exception applies “regardless of whether there is one conspiracy or 

 

15 Plaintiffs thus admit one of the grounds for dismissing their Section 2 claims—that FICO’s 

purported “monopoly power” exists in a separate market for credit scoring algorithms in which Plaintiffs 

do not themselves participate. Mem. 11-12; see also pp. 2-3 supra. 16 Plaintiffs assert that it would be good policy if they could sue FICO for damages, Opp. 61, but that 

is legally irrelevant. “Illinois Brick is a bright-line rule allocating the right to sue to direct purchasers alone, 

not a rule that requires analysis of competing policy justifications in each case.” Marion I, 952 F.3d at 840; 

see also Apple, 139 S. Ct. at 1524 (“there is no reason to ask whether the rationales of Illinois Brick ‘apply 

with equal force’ in every individual case”). 

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three.” Opp. 55. But if indirect purchasers could sue under a “conspiracy exception” anytime there 

is a vertical agreement with a distributor, Illinois Brick would be largely meaningless. The 

“exception” would swallow the rule. Accordingly, even assuming that Plaintiffs had plausibly 

alleged that the vertical license agreements allowed FICO to charge supracompetive prices—they 

have not—Plaintiffs still could not recover for those indirect harms under Illinois Brick. 

V. The Opposition Confirms That Plaintiffs’ State Claims Fail. 

Plaintiffs concede that their state claims are ultimately dependent on their federal antitrust 

claims. Mem. 39-40; Opp. 64. The state claims also fail for additional, independent reasons.17

Out-of-state claims. Plaintiffs do not dispute that they must establish standing for each 

claim they bring, and they admit that no named plaintiff does business in the 25 states whose laws 

are invoked in the complaints. Mem. 44-45. Plaintiffs argue that this does not matter because the 

Court does not need to assess standing for “absent class members.” Opp. 63. But FICO’s argument 

is about Plaintiffs’ standing to bring these claims (or lack thereof). Plaintiffs also argue that 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), is inapposite because it “merely addressed 

what types of injuries are concrete monetary injuries for standing purposes under Article III.” 

Opp. 64. But the Seventh Circuit recently cited Ramirez to remind courts that plaintiffs “cannot 

‘piggy-back on the injuries of the unnamed class members’” to establish standing, Marion II, 2022 

WL 818751, at *6, as Plaintiffs attempt to do here for their out-of-state claims. 

No state nexus. Plaintiffs do not dispute that the antitrust and consumer protection laws of 

several states require a specific nexus between Defendants’ alleged conduct and intrastate 

commerce. Mem. 41. Instead, they dispute whether the nexus must be something more than a 

purported increase in the prices paid by residents of a state. Opp. 64-65. The distinction is largely 

 

17 Because this reply is limited to 23 pages, Dkt. 127, FICO addresses only the principal issues related 

to the state claims. For the remaining issues, FICO respectfully rests on its opening brief. Mem. 40-45. 

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semantic, because Plaintiffs’ complaints offer no more than conclusory averments that state 

commerce was “substantially affected.” Even the authorities on which Plaintiffs rely recognize 

that when pleading an intrastate nexus, “boilerplate allegations are insufficient.” Hosp. Auth. of 

Metro. Gov’t of Nashville v. Momenta Pharms., Inc., 353 F. Supp. 3d 678, 695 (M.D. Tenn. 2018). 

No class actions. FICO has explained that Justice Stevens’s concurrence in Shady Grove 

Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), is the narrowest and 

thus controlling opinion, and that under this framework the Illinois and other state claim-specific 

class action bars are intertwined with substantive considerations and enforceable in federal court. 

Plaintiffs do not attempt to show why the plurality opinion is narrower or controlling. Instead, 

Plaintiffs merely cite a decision that declined to decide this question. See In re Dealer Mgmt. Sys. 

Antitrust Litig., 362 F. Supp. 3d 510, 553 n.23 (N.D. Ill. 2019).18 Plaintiffs also cite cases that did 

not apply class action bars, Opp. 66, but those cases are not persuasive. They disregard both the 

controlling Shady Grove concurrence and Illinois ex rel. Burris v. Panhandle E. Pipe Line Co., 

935 F.2d 1469, 1480 (7th Cir. 1991), which makes clear that the claim-specific class-action bars 

are intertwined with substantive considerations. See Mem. 41-42. 

No unjust enrichment. Plaintiffs argue that they can bring stand-alone unjust enrichment 

claims “in the alternative” to their federal claims. Opp. 73 & n.35. But in the cases Plaintiffs cite, 

the unjust enrichment claims “depend[ed] upon allegations and proof” that were separate from the 

“allegations and proof of the elements necessary for [their] antitrust claims.” In re Cardizem CD 

Antitrust Litig., 105 F. Supp. 2d 618, 669 (E.D. Mich. 2000). Here, the only purportedly “unlawful” 

conduct is the alleged violation of antitrust law. Nor can Plaintiffs bring “parasitic” claims based 

 

18 In the Dealer Management Systems case, moreover, the defendant did not “identif[y] any authority 

for concluding that the class action bars at issue” satisfied Justice Steven’s analysis. 362 F. Supp. 3d at 553. 

By contrast, FICO cited several cases applying the bars at the motion to dismiss stage. See Mem. 42 n.94. 

Case: 1:20-cv-02114 Document #: 149 Filed: 03/29/22 Page 28 of 30 PageID #:3305
23 

on state law, because Plaintiffs’ state claims are themselves derivative of their federal claims. 

Finally, Plaintiffs argue that they can simply “set forth the facts that support their claims.” Opp. 75. 

But because unjust enrichment law is not the same in every jurisdiction, Mem. 44, it is not possible 

to determine if plaintiffs alleged such facts here. 

No business market. Plaintiffs claim that they purchase FICO Scores “primarily for 

personal, family, or household purposes.” Opp. 70. That is absurd. Plaintiffs’ claims are based on 

the alleged business-to-business market, which Plaintiffs expressly distinguish from the alleged 

“business-to-consumer” market for credit scores. DPP ¶ 1; IPP ¶ 1. In the case Plaintiffs rely on, 

the court determined that a class of individual patients and third-party payers who made purchases 

“for the personal purposes of” the patients satisfied the “consumer” requirement. In re Generic 

Pharms. Pricing Antitrust Litig., 368 F. Supp. 3d 814, 847 (E.D. Pa. 2019). But Plaintiffs are not 

third-party payers, and they do not purchase credit scores on behalf of individuals, but for their 

own use, such as deciding whether and on what terms to extend credit. DPP ¶ 3; IPP ¶¶ 56-58. 

CONCLUSION 

 The Court should dismiss Plaintiffs’ complaints. 

Dated: March 29, 2022 Respectfully submitted, 

/s/ Britt M. Miller 

Britt M. Miller 

Matthew D. Provance 

Jed W. Glickstein 

MAYER BROWN LLP 

71 South Wacker Drive 

Chicago, IL 60606-4637 

(312) 782-0600 

bmiller@mayerbrown.com 

mprovance@mayerbrown.com 

jglickstein@mayerbrown.com 

Counsel for Defendant 

Fair Isaac Corporation 

Case: 1:20-cv-02114 Document #: 149 Filed: 03/29/22 Page 29 of 30 PageID #:3306
CERTIFICATE OF SERVICE 

I hereby certify that on March 29, 2022, I caused a true and correct copy of the foregoing 

document to be filed electronically. Notice of the filing will be sent to all counsel of record by 

operation of the Court’s electronic filing system. 

Dated: March 29, 2022 By: /s/ Britt M. Miller 

Attorney for Fair Isaac Corporation 

Case: 1:20-cv-02114 Document #: 149 Filed: 03/29/22 Page 30 of 30 PageID #:3307