UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

) 

IN RE: FICO ANTITRUST LITIGATION ) 

) No. 1:20-CV-2114 

) 

) Honorable Edmond E. Chang 

__________________________________________ 

PLAINTIFFS’ JOINT OPPOSITION TO EQUIFAX, INC., EXPERIAN INFORMATION 

SOLUTIONS, INC., AND TRANSUNION LLC’S MOTION TO CONSIDER 

SUPPLEMENTAL AUTHORITY 
1 

The Direct Purchaser Plaintiffs and Indirect Purchaser Plaintiffs (collectively, “Plaintiffs”) 

respectfully submit this joint brief in opposition to Equifax, Inc. (“Equifax”), Experian Information 

Solutions, Inc. (“Experian”), and TransUnion LLC’s (“Transunion”) (collectively, the “Credit 

Bureaus”) Motion to Consider Supplemental Authority (the “Motion”).1

INTRODUCTION 

The Credit Bureaus ask this Court to consider Bookends & Beginnings LLC v. 

Amazon.com, No. 1:21-cv-2584, 2022 WL 4586213 (S.D.N.Y. Sept. 29, 2022), an out-of-district, 

unpublished decision adopting the Report and Recommendation of Magistrate Judge Valerie 

Figueredo (Exhibit A to the Motion) (“Report”). Having reviewed both the Report and the District 

Court’s opinion adopting it, Plaintiffs question why the Credit Bureaus would submit to this Court 

a motion nearly a month after the decision’s release – much less why they offered what amounts 

to an unauthorized sur-reply instead of simply submitting the decision for consideration. 

Regardless of the motivations, Bookends fails to announce any new rule of law, offers no 

new insight to the arguments already briefed, and leans heavily on fact-specific shortcomings that 

shed no light on the pending motions to dismiss. Plaintiffs respectfully request that the Court deny 

the Credit Bureaus’ motion and renew their request that the Court deny the motions to dismiss in 

their entirety. 

ARGUMENT

The agreements at issue here differ materially from those in Bookends:

2

 (1) they contain 

provisions that restrict the sale of the Credit Bureaus’ VantageScore product and allow Fair Isaac 

1 The Credit Bureaus failed to confer (or request to confer) with Plaintiffs before filing their 

motion in violation of the applicable Case Procedures. 

2 Strikingly, the Credit Bureaus omit that the Report recommended dismissal only after the 

defendants provided the challenged agreements. Rpt. at 7. Plaintiffs do not have access to the 
2 

to control pricing on B2B Credit scores, against the individual interest of each Credit Bureau; 

(2) they contain a quid pro quo (i.e., the Level Playing Field provision) by Fair Isaac to the Credit 

Bureaus; and (3) they were entered into in relatively close succession at a critical time and in a 

highly concentrated market. 

First, the Credit Bureaus contend that “a party’s self-interest is not probative of conspiracy 

when that conduct is explained by the dominance of another party.” Motion at 3. Bookends does 

not support this conclusion. As the Report carefully explains, Bookends failed to allege how any 

publisher’s individual contract with Amazon was against its economic self-interest. See Report at 

16-19. Unlike Bookends, the complaints here contain detailed allegations explaining why certain 

agreements between the Credit Bureaus and Fair Isaac are against the Credit Bureaus’ self-interest, 

specifically because those provisions crippled the Credit Bureaus’ own credit-scoring product (i.e., 

VantageScore) and allowed Fair Isaac to control pricing for B2B credit scores. See, e.g., DPP 

Compl., ¶¶109, 111; IPP Compl., ¶¶126, 128.3

Moreover, in Bookends the publishers did not receive assurances from Amazon that their 

competitors had agreed or would be agreeing to provisions against their self-interest. See Report 

at 25-26. Here, the complaints allege (based on TransUnion’s own sworn admissions in another 

case) that Fair Isaac represented to TransUnion that the other two Credit Bureaus had agreed to 

similar terms before TransUnion acceded to the No Equivalent Products and Dynamic Royalty 

agreements between the Credit Bureaus and Fair Isaac, which we expect will be provided in 

discovery. 

The disclosure of the contracts in Bookends radically altered the theory of the case. While 

Bookends had previously alleged the agreements contained “most favored nation clauses,” the 

contracts demonstrated this “was simply not true.” Bookends, 2022 WL 4586213, at *1.

3 Citations refer to Direct Purchaser Plaintiffs’ Consolidated Class Action Complaint (ECF 

No. 121) (“DPP Compl.”) and Indirect Purchaser Plaintiffs’ Consolidated Class Action Complaint 

(ECF No. 122) (“IPP Compl.”). 
3 

provisions and that Fair Isaac made similar representations to the other two Credit Bureaus. See, 

e.g., DPP Compl., ¶106; IPP Compl., ¶123 

Second, the Credit Bureaus claim Bookends “rejected” the theory that “the Publishers were 

motivated to collude in order to ‘increase their potential profits[.]’” Motion at 4. That fact-bound 

conclusion is irrelevant. Here, Plaintiffs’ complaints contain detailed factual allegations of a 

motive to collude. See, e.g., DPP Compl., ¶¶124-25; IPP Compl., ¶¶145-46. The Level Playing 

Field Provision, for example, guarantees no price competition between the signing Credit Bureau 

and its competitors by preventing Fair Isaac from charging any one Credit Bureau a more favorable 

price for distributing FICO Scores, which reduces the Credit Bureau’s incentive to oppose price 

hikes and prevents Fair Isaac from coaxing new competitors into the credit-reporting market. Id. 

So, while the Credit Bureaus might have been interested in agreeing to this provision to enlarge 

their own profits, really, the Level Playing Field provision is a promise by Fair Isaac to restrict 

benefits given to each Credit Bureau’s competitors. 

The Bookends Report also explains why the publishers were motivated to raise their prices 

without a conspiracy: Given that each publisher sells “book titles” that have “completely distinct” 

demand, a single publisher raising prices would not necessarily suffer “a competitive 

disadvantage.” Report at 20. The same is not true here. A FICO Score is calculated following 

the same algorithm regardless of which Credit Bureau sells the score. See DPP Compl., ¶¶3, 44; 

IPP Compl., ¶¶3, 48. 

Third, additional factors not present in Bookends favor a finding of conspiracy: 

 VantageScore Solutions is a joint venture by the Credit Bureaus. This 

establishes not just the opportunity to communicate, but the reason and means to 

discuss their agreements with Fair Isaac. DPP Compl., ¶6; IPP Compl., ¶10. 

Bookends did not allege any similar relationship among the Publishers. See Report 

at 22-27. 
4 

 The Timing of the Agreements. Fair Isaac signed the agreements with the Credit 

Bureaus around the time VantageScore Solutions was poised to become a serious 

competitor and in fairly rapid succession. DPP Compl., ¶¶104, 142; IPP Compl., 

¶¶121, 163. Bookends lacked similar allegations. 

 Highly Concentrated Market Structure. Whereas the plaintiff in Bookends

shouldered the burden of proving a conspiracy among five Publishers, Report at 1, 

this case concerns the dominant Credit Bureaus, which essentially have a triopoly 

in the relevant market. DPP Compl., ¶57; IPP Compl., ¶69. 

CONCLUSION 

Plaintiffs respectfully request that the Court deny the Credit Bureaus’ Motion. 

Dated: November 2, 2022 Respectfully submitted, 

s/ Steven F. Molo 

Steven F. Molo 

MOLOLAMKEN LLP 

300 N. LaSalle Street, Suite 5350 

Chicago, IL 60654 

Telephone: 312-450-6700 

Facsimile: 312-450-6701 

smolo@mololamken.com 

Lauren M. Weinstein 

MOLOLAMKEN LLP 

600 New Hampshire Avenue, N.W., Suite 500 

Washington, DC 20037 

Telephone: 202-556-2000 

Facsimile: 202-556-2001 

lweinstein@mololamken.com 

Liaison Counsel 

. 

 s/ Joseph P. Guglielmo 

Joseph P. Guglielmo (N.D. Ill. 2759819) 

Michelle E. Conston (admitted pro hac vice) 

SCOTT+SCOTT ATTORNEYS AT LAW LLP 

The Helmsley Building 

230 Park Avenue, 17th Floor 

New York, NY 10169 

Telephone: 212-223-6444 

Facsimile: 212-223-6334 

jguglielmo@scott-scott.com 

mconston@scott-scott.com 

Christopher M. Burke (admitted pro hac vice) 

SCOTT+SCOTT ATTORNEYS AT LAW LLP 

600 W. Broadway, Suite 3300 

San Diego, CA 92101 

Telephone: 619-233-4565 

Facsimile: 619-233-0508 

cburke@scott-scott.com 

Interim Lead Class Counsel for Direct 

Purchaser Plaintiffs

By /s/Garrett D. Blanchfield 

Garrett D. Blanchfield 

REINHARDT WENDORF & BLANCHFIELD 

Garrett D. Blanchfield (Pro Hac Vice) 

Brant D. Penney (Pro Hac Vice) 

Roberta A. Yard (Pro Hac Vice forthcoming) 
5 

332 Minnesota Street, Suite W-1050 

St. Paul, MN 55101 

Tel: (651) 287-2100 

Fax: (651) 287-2103 

g.blanchfield@rwblawfirm.com 

b.penney@rwblawfirm.com 

r.yard@rwblawfirm.com 

SPECTOR ROSEMAN & KODROFF, P.C. 

Jeffrey J. Corrigan (Pro Hac Vice) 

William G. Caldes (Pro Hac Vice) 

Icee N. Etheridge (Pro Hac Vice forthcoming) 

2001 Market Street, Suite 3420 

Philadelphia, PA 19103 

Tel: (215) 496-0300 

Fax: (215) 496-6611 

JCorriganf@srkattorneys.com 

BCaldes@srkattorneys.com 

IEtheridge@srkattorneys.com 

Interim Co-Lead Counsel for Indirect Purchaser Plaintiffs 
6 

CERTIFICATE OF SERVICE 

I, Joseph P. Guglielmo, hereby certify that on November 2, 2022, I caused a true and correct 

copy of the foregoing to be filed and served electronically via the Court’s CM/ECF system. 

 s/ Joseph P. Guglielmo 

Joseph P. Guglielmo