UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: FICO ANTITRUST LITIGATION ) 

RELATED CASES ) 

 ) No. 1:20-CV-02114

 ) 

) Judge Edmond E. Chang 

This document relates to: ) 

 ) 

ALL ACTIONS ) 

MEMORANDUM OPINION AND ORDER

These antitrust class actions allege that Fair Isaac Company (better known in 

the industry and to consumers as FICO) and the three major credit bureaus: 

TransUnion, Equifax, and Experian (collectively called the Credit Bureaus for convenience’s sake) engaged in monopolistic behavior that caused the Plaintiffs to overpay for FICO credit scores in violation of the Sherman Act, 15 U.S.C. §§ 1, 2 (and 

pertinent accompanying provisions of the Clayton Act, 15 U.S.C. §§ 15, 26), and various state laws.1 There are two categories of plaintiffs, and they have filed separate 

complaints: (1) entities like Sky Federal Credit Union (grouped together as the Direct 

Purchasers) allege that they bought credit scores from FICO through agreements 

with FICO and the Credit Bureaus, R. 121, Direct Purchaser Consol. Compl. (DPCC) 

¶¶ 15–21;2 and (2) entities like Garner Properties & Management LLC (grouped 

1The Court has subject matter jurisdiction over Sherman Act and Clayton Act claims 

under 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims under 28 

U.S.C. § 1367. 

2Citations to the record are “R.” followed by the docket entry number and, if needed, 

a page or paragraph number. 

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together as the Indirect Purchasers) allege that they bought FICO scores not from 

FICO or a Credit Bureau, but from some intermediary company, R. 122, Indirect Purchaser Am. Compl. (IPAC) ¶¶ 21–22. The Credit Bureaus and FICO filed separate 

motions to dismiss both Complaints. See R. 135, CB Mot.; R. 138, FICO Mot. For the 

reasons discussed in this Opinion, the Court grants the motion filed by the Credit 

Bureaus and grants in part and denies in part the motion filed by FICO. 

I. Background 

Both Complaints allege that FICO overcharged for credit scores. A credit score 

is a three-digit number, typically between 300 and 850, that is supposed to convey 

the creditworthiness of a consumer based on his or her credit history. DPCC ¶¶ 1, 

34–35; IPAC ¶ 1, 35–36. Consumers can buy information on their own credit scores 

to monitor their own creditworthiness; the market for these scores is called the business-to-consumer market. Id. But the cases now before the Court are concerned with 

the so-called B2B market, or business-to-business market, in which businesses buy 

consumers’ credit scores to assess the risk of extending credit or engaging in transactions with those consumers. DPCC ¶¶ 2, 40, 42; IPAC ¶¶ 1, 3, 46. 

FICO has allegedly maintained a 90% monopoly (that is, 90% of top lenders 

rely on FICO) over the B2B credit-score market for many years. DPCC ¶¶ 2, 63; IPAC 

¶¶ 2, 77. The Plaintiffs allege that FICO has been aided by the three main Credit 

Bureaus—Experian, Equifax, and TransUnion—which collect, standardize, and distribute the credit and financial history of individuals through credit reports. DPCC 

¶¶ 3, 38–40, 56; IPAC ¶¶ 3–5, 39–41. Together, the Credit Bureaus control nearly 

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100% of the aggregate credit-related data formed by aggregating credit data collected 

from businesses. DPCC ¶ 3; IPAC ¶ 3. The Credit Bureaus allegedly acted as FICO’s 

agents and co-conspirators in negotiating sales of credit scores to businesses on terms 

that favor FICO, then distributed FICO Scores to businesses. DPCC ¶¶ 4, 8, 35, 42; 

IPAC ¶¶ 6, 12, 46. 

In 2006, the Credit Bureaus launched VantageScore—an intended competitor 

to FICO Scores. DPCC ¶ 6; IPAC ¶ 10. Like FICO Scores, VantageScore employed 

scoring codes and algorithms to translate consumer information into a credit score. 

Id. VantageScore distinguished itself through its competitive pricing and ability to 

provide a credit score for millions of people that would otherwise be unable to access 

one. DPCC ¶¶ 6–7, 79–82; IPAC ¶¶ 11, 90. That same year, FICO filed a lawsuit 

against the Credit Bureaus and VantageScore “with the intended purpose of driving 

VantageScore Solutions out of business.” DPCC ¶¶ 9, 88; IPAC ¶¶ 103–104. FICO 

alleged antitrust, trademark, false advertising, and trade secret claims. See generally 

Fair Isaac Corp. v. Experian Info. Sols., Inc., 650 F.3d 1139 (8th Cir. 2011). Specifically, FICO argued that VantageScore infringed on FICO’s trademark over credit 

score numbers in the range of 300–850 (VantageScore used a 501–900 scale). Id. at 

1147. In 2011, the Eighth Circuit ultimately affirmed a jury verdict against FICO. Id.

at 1152–53. 

 Between 2013 and 2015, FICO renewed its licensing and distribution agreements with the Credit Bureaus. FICO entered into a new contract with Experian in 

May 2013, Equifax in October 2013, and TransUnion in February 2015. DPCC ¶ 105; 

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IPAC ¶ 122. The Plaintiffs allege that these agreements contained anticompetitive 

clauses that prevented the Credit Bureaus from marketing non-FICO credit scores 

and allowed FICO to penalize customers that sought both a FICO Score and a VantageScore. DPCC ¶¶ 10, 108; IPAC ¶¶ 14, 125. According to the Plaintiffs, the Credit 

Bureaus accepted these provisions—even though the requirements would harm their 

own joint venture—on a quid pro quo basis, that is, the Credit Bureaus in turn received a beneficial clause in the agreements that would prevent competition amongst 

the Credit Bureaus. DPCC ¶¶ 102, 18, 124–27; IPAC ¶¶ 119, 125, 145–49. The allegedly anticompetitive provisions and the bureau-benefitting clause are described in 

further detail next. 

No Equivalent Products. The No Equivalent Products clause prohibits the 

Credit Bureaus from developing or distributing a non-FICO analytic “that is ‘aligned 

to the odds-to-score relationship of any Fair Isaac Analytic’ or uses more than a limited number of reason codes that ‘match’ reason codes used by any Fair Isaac Analytic.” DPCC ¶¶ 107, 109–10; IPAC ¶¶ 124, 126–27. The odds-to-score relationship 

describes the relationship between a numerical score and the risk that a consumer 

will default on a particular loan. DPCC ¶ 111; IPAC ¶ 130. “Reason codes” describe 

the rationale for why a score is not higher. See DPCC ¶¶ 36–37; IPAC ¶¶ 37–38. 

Dynamic Royalty Schedule. The Dynamic Royalty Schedule clause allows 

FICO to control the pricing of FICO Scores through the royalties that FICO charges 

the Credit Bureaus. DPCC ¶ 116; IPAC ¶ 136. According to TransUnion, FICO 

“abused and exploited” this provision by establishing new contract terms and royalty 

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categories. DPCC ¶ 117; IPAC ¶ 137. For example, FICO implemented a “Pre-Qualification” royalty category in 2015. DPCC¶ 118; IPAC ¶ 138. This category imposed a 

seven times penalty rate on lenders that purchased a FICO score for use in “PreQualification” along with VantageScore (or any other credit score). DPCC ¶ 119; 

IPAC ¶ 140. The Plaintiffs allege that this penalty was intended to prevent, and did 

in fact prevent, lenders from relying on additional or alternative credit scores such as 

VantageScores. DPCC ¶¶ 119, 123; IPAC ¶¶ 140, 144. 

Level Playing Field. The Plaintiffs allege that, in exchange for the Credit 

Bureaus adopting the two clauses above, FICO provided a Level Playing Field clause 

that benefitted the Credit Bureaus. DPCC ¶¶ 108, 124; IPAC ¶ 145. This provision 

prevents FICO from offering any Credit Bureau a more favorable price for distributing FICO Scores than that offered to any other Credit Bureau. Id. Because the 

Level Playing Field clause effectively prevents any fluctuations in the price of FICO 

Scores for the Credit Bureaus, the Plaintiffs allege the incentive that FICO could 

otherwise offer (more favorable pricing) to entice a new credit bureau to enter the 

market is eliminated. DPCC ¶¶ 125–127; IPAC ¶¶ 146, 147, 151. 

In November 2017, FICO brought suit against TransUnion, alleging that 

TransUnion underpaid royalties, committed copyright infringement and conversion, 

breached several written agreements, and committed false advertising related to 

VantageScore. Fair Isaac Corp. v. TransUnion, LLC (TransUnion I), 2019 WL 

1436018, at *1 (N.D. Ill. Mar. 30, 2019). In January 2018, TransUnion filed counterclaims against FICO, alleging that FICO violated Section 2 of the Sherman Act. See

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R. 38, TransUnion LLC’s Redacted Counterclaims, Fair Isaac Corp. v. TransUnion 

LLC, No. 1:17-cv-08318 (N.D. Ill. filed Feb. 12, 2018) (“TransUnion Counterclaims”). 

The district court held that TransUnion “adequately pled actual and attempted monopolization. Fair Isacc Corp. v. TransUnion, LLC (TransUnion II), 2019 WL 

1382068, at *2 (N.D. Ill. Mar. 27, 2019). Specifically, TransUnion “puts forth claims 

that, if proven, could establish that FICO’s exclusive dealing provisions are unlawful 

attempts to maintain monopoly power through exclusionary conduct.” Id. (cleaned 

up).3 The parties ultimately settled on undisclosed terms, with TransUnion entering 

into a long-term contract with FICO to distribute FICO Scores. DPCC ¶ 99; IPAC 

¶ 114. 

During the pendency of the TransUnion litigation, in April 2020, Sky Federal 

Credit Union filed a class-action complaint against FICO. R. 1. Nine other complaints 

against FICO soon followed, asserting federal and state antitrust claims. See In re 

FICO Antitrust Litig. Related Cases, 2021 WL 4478042, at *1 (N.D. Ill. Sept. 30, 

2021). In September 2021, this Court addressed how the 10 related cases should be 

consolidated and how the Plaintiffs should be apportioned. Id. at *3. The Court appointed Scott+Scott as Interim Class Counsel representing the consolidated Direct 

Purchaser Action, and also appointed Cohen Milstein Sellers & Toll PLLC as Interim 

3This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations, 

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 

18 Journal of Appellate Practice and Process 143 (2017). 

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Class Counsel representing the Indirect Purchaser Action. Id. at *6. A description of 

these plaintiff categories follows: 

Direct Purchaser Plaintiffs. Direct Purchasers are entities that directly purchased B2B credit scores from FICO and one or more Credit Bureaus, submitting 

payment to FICO, to the Credit Bureaus, or to both. DPCC ¶¶ 15–21, 42; see In re 

FICO, 2021 WL 4478042, at *2. 

Indirect Purchaser Plaintiffs. Indirect Purchasers are entities that bought 

FICO scores not from FICO or a Credit Bureau, but from an intermediary group. For 

example, Garner Properties & Management LLC, a named Indirect Purchaser Plaintiff, is a real estate brokerage and property management company that buys FICO 

scores from third-parties, which in turn buy the scores from the Credit Bureaus. IPAC 

¶¶ 21–23; see In re FICO, 2021 WL 4478042, at *2. 

In December 2021, the Direct Purchasers filed their consolidated class action 

complaint. DPCC. That same month, the Indirect Purchasers filed their amended 

class action complaint. IPAC. 

II. Legal Standard 

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only 

include “a short and plain statement of the claim showing that the pleader is entitled 

to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). The Seventh Circuit has 

explained that this rule “reflects a liberal notice pleading regime, which is intended 

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to ‘focus litigation on the merits of a claim’ rather than on technicalities that might 

keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). 

 “A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to 

state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police 

of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible 

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). These allegations 

“must be enough to raise a right to relief above the speculative level.” Twombly, 550 

U.S. at 555. The allegations that are entitled to the assumption of truth are those 

that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79. 

III. Analysis 

A. Monopolization 

 The Plaintiffs allege that FICO violated Section 2 of the Sherman Act “by maintaining its monopoly in the B2B Credit Score Market through anticompetitive agreements, meritless litigation, and false statements.” R. 147, Pls.’ Resp. at 14; see DPCC 

¶¶ 239–253 (Count 5); IPAC ¶¶ 269–285 (Count 5). In response, FICO argues: (1) the 

Plaintiffs fail to allege monopoly power in a relevant market; and (2) do not plausibly 

allege anticompetitive conduct. R. 139, FICO Br. at 10–23. 

 Under Section 2 of the Sherman Act, monopoly power in a defined market must 

be sufficiently alleged for the Plaintiffs to survive a motion to dismiss. Section 2 of 

the Sherman Act makes it unlawful for anyone to “monopolize, or attempt to 

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monopolize, or combine or conspire with any other person or persons, to monopolize 

any part of the trade or commerce ....” 15 U.S.C. § 2. This section of the Sherman Act 

prohibits “the employment of unjustifiable means to gain that power” and requires 

“two elements: (1) the possession of monopoly power in the relevant market and (2) 

the willful acquisition or maintenance of that power ....” United States v. Grinnell 

Corp., 384 U.S. 563, 570–71 (1966). 

1. Relevant Market

To successfully plead the first element of a Section 2 claim, the complaint must 

adequately set forth a relevant market. “A ‘relevant market’ under the Sherman Act 

is comprised of the ‘commodities reasonably interchangeable by consumers for the 

same purposes.’” Sharif Pharmacy, Inc. v. Prime Therapeutics, LLC, 950 F.3d 911, 

916–17 (7th Cir. 2020) (quoting United States v. E. I. du Pont de Nemours & Co., 351 

U.S. 377, 395 (1956)). Put another way, a relevant market is defined “by the reasonable interchangeability of the use or the cross-elasticity of demand between the product itself and substitutes for it.” Sharif, 950 F.3d at 918 (quoting Brown Shoe Co. v. 

United States, 370 U.S. 294, 325 (1962)). “[W]here plaintiffs fail to identify any facts 

from which the court can infer that defendants had sufficient market power to have 

been able to create a monopoly, their § 2 claim may be properly dismissed.” Endsley 

v. City of Chicago, 230 F.3d 276, 282 (7th Cir. 2000). 

Here, the Plaintiffs allege FICO holds more than a 90% market share in the 

B2B Credit Score Market. Specifically, according to Michael Pung, FICO’s former 

Chief Financial Officer and Executive Vice-President, FICO has “maintained a 90-

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plus percent market share for at least ... 13 years.” DPCC ¶ 66 (emphasis in original). 

This percentage allegedly has been confirmed by FICO, which states on its “About” 

page that FICO Scores are “the most widely used credit score” and used by “90% of 

top lenders.” Id. ¶ 63. This percentage exceeds the percentage in comparable cases 

concerning market-share-based monopoly power for other Section 2 cases. See, e.g., 

Grinnell, 384 U.S. at 571 (87% market share); Am. Tobacco Co. v. United States, 328 

U.S. 781, 797 (1946) (holding that two-thirds of the market is a “substantial monopoly”); MCI Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1107 (7th Cir. 1983) 

(70% to 80% market share); Walter Kidde Portable Equip., Inc. v. Universal Sec. Instruments, Inc., 669 F. Supp. 2d 895, 902 (N.D. Ill. 2009) (holding that an alleged 65% 

market share is sufficient). 

To resist that conclusion, FICO contends that (1) the Plaintiffs’ market-share 

estimate is unsupported because there is no reliable source of market-share information; (2) the Plaintiffs have not plausibly alleged that FICO may control output or 

raise prices in the B2B market; and (3) each Credit Bureau has “substantial market 

power.” FICO Br. at 10–12. These arguments fall short because FICO asks far too 

much of the Plaintiffs’ pleadings. To be sure, “it is exceedingly difficult to prove market power, or monopoly power, directly, and the conventional way of proving power 

by showing a given share of a properly defined relevant market can present vexing 

problems as well.” Goldwasser v. Ameritech Corp., 222 F.3d 390, 397 (7th Cir. 2000). 

But the Plaintiffs easily meet their burden at the pleading stage. Not only do they 

cite FICO’s own statements trumpeting its market share, the Plaintiffs draw on 

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academic research that concludes FICO “enjoys a virtual monopoly in the credit score 

market” and, as a result, “there has been limited innovation in scoring methodology.” 

DPCC ¶ 67 (quotation omitted) (emphasis added).Given the pleading-stage standard, 

the Plaintiffs have adequately pleaded the first element of a Sherman Act Section 2 

claim by properly alleging that FICO wields monopoly power in the relevant B2B 

market. 

2. Anticompetitive Effects 

Moving on to the next element, the Plaintiffs must also allege “the willful acquisition or maintenance” of monopoly power by FICO. In defining what constitutes 

“the willful acquisition or maintenance” of monopoly power, the Seventh Circuit has 

explained that “the conduct must harm the competitive process and thereby harm 

consumers.” Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 453 (7th Cir. 2020) 

(cleaned up) (emphasis in original), cert. denied, 141 S. Ct. 2877 (2021) ; see NYNEX 

Corp. v. Discon, Inc., 525 U.S. 128, 135, (1998) (instructing that plaintiffs “must allege 

and prove harm, not just to a single competitor, but to the competitive process, i.e., 

to competition itself”). Because a Section 2 violation is “broader and less categorical 

in its definition of proscribed conduct” than a Section 1 claim, Areeda & Hovenkamp, 

Antitrust Law ¶ 777a, at 324, “a dominant firm’s conduct may be susceptible to more 

than one court-defined category of anticompetitive conduct,” Viamedia, 951 F.3d at 

453. 

 Here, the Plaintiffs first argue that the No Equivalent Products, Dynamic Royalty Schedule, and Level Playing Field clauses are anticompetitive. Pls.’ Resp. at 18–

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20. Remember that FICO entered into separate agreements with the Credit Bureaus 

between 2013 and 2015. DPCC ¶ 105. Even so, these agreements were substantively 

similar with regard to the three clauses. Id. ¶¶ 106–08. 

The Plaintiffs argue that the No Equivalent Products clause is anticompetitive 

for two reasons: (1) it prevents the Credit Bureaus from using any alternative credit 

scoring system that relies on similar analytics as FICO’s analytic (otherwise known 

as the odds-to-score relationship), DPCC ¶¶ 109–15; and (2) it prevents the Credit 

Bureaus from using any alternative credit-scoring system that uses 20% or more of 

the reason codes used by FICO’s scoring system. Id. For example, if VantageScore 

“used a 700 Score to indicate a less-than five-percent risk of credit delinquency, and 

if a 700 FICO Score also indicated the same risk of delinquency,” the No Equivalent 

Products Clause would exclude the Credit Bureaus from using VantageScore. Id.

¶ 111. Similarly, if VantageScore used reason codes that “match[ed] 20% or more of 

the reason codes used by FICO scoring systems,” the clause would prevent the Credit 

Bureaus from distributing it. Id. 

The Plaintiffs also contend that the Dynamic Royalty Schedule clause is anticompetitive because it gives FICO the ability to control the prices of FICO Scores in 

an abusive and exploitative manner. DPCC ¶¶ 116–23. In the agreement between 

FICO and TransUnion, the clause provides that “once every twelve (12) months during the Term, Fair Isaac shall have the right to replace the Royalty Schedule by 

providing a new royalty schedule to TransUnion in writing.” Id. ¶ 116. 

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Without diving into the Level Playing Field clause (which the Court discusses 

in further detail later), the No Equivalent Provision and the Dynamic Royalty Schedule clauses together qualify as sufficient allegations of anticompetitive effects. 

FICO’s arguments to the contrary are unpersuasive. FICO contends that the No 

Equivalent Provision clause “prevent[s] licensees from copying FICO’s intellectual 

property” and is thus procompetitive. FICO Br. at 17. But at least one Circuit has 

already held that FICO’s competitors do not infringe on its purported credit score 

trademarks. See Experian, 650 F.3d at 1147. FICO further argues that the Dynamic 

Royalty Schedule clause has a legitimate business interest. This fails too. The Dynamic Royalty Schedule clause carries a stiff penalty for including a competitor’s 

credit score to consumers: in the “Pre-Qualification” context, the lender pays seven 

times the rate if a FICO score is provided in connection with a non-FICO score. Id.

¶ 119. At the pleading stage, the Plaintiffs have alleged sufficient facts to proceed to 

discovery on the nature of these clauses’ anticompetitive effects. 

In addition to the three clauses, the Plaintiffs have plausibly alleged that 

FICO’s Equifax Litigation was itself an anticompetitive act. Pls.’ Resp. at 20–21.4 In 

2006, FICO filed a lawsuit against the Credit Bureaus and VantageScore “with the 

intended purpose of driving VantageScore Solutions out of business.” DPCC ¶¶ 9, 88; 

IPAC ¶¶ 103–104. FICO alleged antitrust, trademark, false advertising, and trade 

4The Plaintiffs further allege that FICO “waged a years-long campaign to disparage 

VantageScore Solutions” by criticizing the VantageScore credit scoring system. Pls.’ Resp. at 

21. Because the Plaintiffs have already plausibly alleged FICO engaged in anticompetitive 

conduct, the Court need not resolve this claim here. 

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secret claims. See generally Fair Isaac Corp. v. Experian Info. Sols. Inc., 645 F. Supp. 

2d 734, 738 (D. Minn. 2009). The district court granted summary judgement against 

FICO on the antitrust and false advertising claims, and a jury found FICO’s purported trademark of the “300-850” FICO score range was merely descriptive. DPCC 

¶ 92. The district court, in upholding the jury’s verdict, noted that “[t]his extensive, 

expensive litigation seems to have been initiated largely in response to a perceived 

threat to Fair Isaac’s dominant position in the credit scoring industry.” Id. ¶ 93 (quoting Fair Isaac Corp. v. Experian Info. Sols., Inc., 711 F. Supp. 2d 991, 1000 (D. Minn. 

2010) (emphasis added)). The Eighth Circuit eventually upheld the jury verdict and 

the earlier summary judgment ruling, both of which went against FICO. Id. ¶ 94 (citing Fair Isaac Corp. v. Experian Info. Sols., Inc., 650 F.3d 1139 (8th Cir. 2011)). 

In response, FICO argues that the Plaintiffs’ claims are time-barred under the 

four-year antitrust statute of limitations. FICO Br. at 13–14; see 15 U.S.C. § 15b. But 

“a complaint need not anticipate and overcome affirmative defenses, such as the statute of limitations.” Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 

F.3d 922, 928 (7th Cir. 2015). The Seventh Circuit has held that a “conceivable set of 

facts, consistent with the complaint, that would defeat a statute-of-limitations defense” is sufficient at the pleading stage. Id. Here, a conceivable set of facts exists in 

this case: FICO may have “affirmatively concealed the existence of ... the anticompetitive contract provisions.” Pls.’ Resp. at 25. If true, then FICO’s actions could qualify as fraudulent concealment, which requires that the defendant affirmatively concealed an offense and the plaintiff “neither knew nor, in the exercise of due diligence, 

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could reasonably have known of the offense.” Klehr v. A.O. Smith Corp., 521 U.S. 179, 

194–95 (1997). So the limitations defense cannot be resolved at this pleading stage. 

That being said, FICO may seek leave to file an early summary judgment motion if 

discovery shows that there is no basis for the Plaintiffs’ equitable-tolling and fraudulent-concealment claims. 

The Plaintiffs also plausibly assert that the continuing-violations doctrine 

postponed the expiration of the limitations period. For the doctrine to apply, the 

Plaintiffs must challenge “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). 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. 

Finally, FICO argues that, under the Noerr-Pennington doctrine, it has immunity under the antitrust laws because it sought redress against Equifax. See FICO 

Br. at 15 (citing Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 

49, 56 (1993)). FICO contends that it has immunity because the Equifax Litigation 

was neither “groundless” nor “unreasonable.” Id. But the Plaintiffs correctly point out 

that the Noerr-Pennington doctrine does not apply to false representations made to a 

government agency during the prosecution of a trademark application. See, e.g., 

Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177 (1965). 

Given the earlier jury’s finding that FICO made a knowingly false representation 

concerning its “300-850” trademark in its PTO application, see DPCC ¶ 92; IPAC ¶ 27, 

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FICO cannot claim refuge under Noerr-Pennington immunity at the pleading stage 

(and possibly later too). For these reasons, the Plaintiffs have plausibly alleged a Section 2 violation against FICO. FICO must file answers to the Complaints by October 

23, 2023. 

B. Other Federal Claims 

Next, the Plaintiffs argue that the Credit Bureaus, together and individually, 

conspired with FICO to prevent competitors to FICO Scores and allowed FICO “to 

penalize VantageScore sales in exchange for greater protection against competition 

from each other.” Pls.’ Resp. at 37; DPCC ¶¶ 168–238 (Counts 1–4); IPAC ¶¶ 194–

268 (Counts 1–4). The Plaintiffs further assert that the Credit Bureaus aided FICO’s 

monopolization by conspiring through a series of agreements to prevent competition 

in the B2B Credit Score Market. See Pls.’ Resp. at 25–27; DPCC ¶¶ 254–271 (Count 

6); IPAC ¶¶ 286–303 (Count 6). In response, FICO contends that the Plaintiffs fail to 

plead either a horizontal or a vertical Section 1 claim, or a Section 2 claim for conspiracy. FICO Br. at 25–36. Similarly, the Credit Bureaus deny the conspiracy claims, 

arguing that (1) the Plaintiffs have not plausibly alleged (1) “the required ‘rim’ linking 

the Bureaus to the claimed overarching scheme,” CB Mot. at 2; (2) that each individual FICO-Credit Bureau agreement qualifies as an independent trust violation, id.; 

and (3) that the Bureaus acted with a specific intent to advance FICO’s monopoly, id.

at 3. 

Section 1 of the Sherman Antitrust Act states that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce 

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among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. 

§ 1. Some restraints to businesses are unreasonable per se because they almost always tend to restrict competition. See Ohio v. Am. Express Co., 138 S. Ct. 2274, 2283 

(2018). Restraints that are unreasonable per se usually only include restraints “imposed by agreement between competitors,” or horizontal restraints. Id. at 2283–84 

(quoting Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723 (1988)). If a restraint is not per se unreasonable, then the next question is whether it violates the 

rule of reason. Am. Express Co., 138 S. Ct. at 2284. The rule of reason may be violated 

by an agreement that has an adverse effect on competition in the relevant market. 

See Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 335 (7th Cir. 2012); see also 

Twombly, 550 U.S. at 553 (explaining that § 1 of the Sherman Act only prohibits restraints on trade “effected by a contract, combination, or conspiracy” (cleaned up)). 

The Plaintiffs first allege that FICO and the Credit Bureaus engaged in “a 

broader ‘conspiracy’ or ‘combination’ involving all Defendants to restrain trade” in 

violation of Section 1 of the Sherman Act. Pls.’ Resp. at 37. For the Plaintiffs to adequately plead this claim, they must allege that the Defendants “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Marion 

Healthcare, LLC v. Becton Dickinson & Co. (Marion I), 952 F.3d 832, 841 (7th Cir. 

2020) (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 (1984)). 

Because FICO and the Credit Bureaus operate at “different levels of the distribution 

chain,” the Plaintiffs must allege “similarly situated members of the conspiracy coordinated not only with the manufacturer, but also with each other” to allege a single 

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conspiracy. Id. at 841–42. Otherwise known as a “hub-and-spokes conspiracy,” the 

Plaintiffs must allege that “there was a central coordinating party (the ‘hub’)” and 

“each participant (along the ‘rim’) recognized that it was part of the greater arrangement.” Id. at 842. Put another way, “a hub-and-spokes conspiracy requires a rim connecting the various horizontal agreements.” Id. (cleaned up). 

 Although the Plaintiffs do not explicitly use the term “hubs-and-spokes” conspiracy, their allegations are a substantive match: they allege that FICO (the hub) 

coordinated with each Credit Bureau (the spokes) to adopt anticompetitive agreements and undermine the Credit Bureaus’ own joint venture, VantageScore, in exchange for protection against competition from each other and other potential entrants in the credit-bureau market—all in an effort to protect the FICO monopoly. 

See Pls.’ Resp. at 37; DPCC ¶¶ 168–238; IPAC ¶¶ 194–268. Lacking direct allegations 

of an express agreement between the three Credit Bureaus themselves (that is, no 

direct allegations of a rim), the Plaintiffs ask the Court to rely on circumstantial evidence to infer the Credit Bureaus’ coordinated actions. For support, the Plaintiffs 

allege that (1) the Credit Bureaus engaged in parallel conduct by agreeing to the same 

anticompetitive terms; (2) the No Equivalent Products, Dynamic Royalty Schedule, 

and Level Playing Field clauses are contrary to the Credit Bureaus’ self-interest absent some greater objective; (3) the similar timing during which the Credit Bureaus 

entered into the agreements suggest the existence of a conspiracy; (4) the market 

structure for the B2B Credit Score Market suggests a conspiracy; and (5) the Credit 

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Bureaus had the opportunity and a reason to communicate about their common 

scheme. Pls.’ Resp. at 39–49. 

To be sure, the Plaintiffs do plausibly allege certain aspects of their conspiracy 

claims. For example, as described above, the No Equivalent Products and Dynamic 

Royalty Schedule clauses do appear to be contrary to the Credit Bureaus’ self-interest, at least viewing the allegation in the Plaintiffs’ favor. See supra IIIA. And as the 

Plaintiffs correctly point out, TransUnion explicitly stated that it signed the allegedly 

anticompetitive agreement after FICO reported “that TransUnion’s two major competitors, Experian and Equifax, had already agreed to materially similar new contracts.” TransUnion Counterclaims ¶ 43; see DPCC ¶ 107; IPAC ¶ 124. This raises 

the inference that the Credit Bureaus had knowledge of the contents of each other’s 

agreements. 

 Even so, the major problem with the conspiracy claim remains the Plaintiffs’ 

inability to plausibly allege that the Credit Bureaus conspired with each other. In 

Marion I, the Seventh Circuit held that the plaintiffs (healthcare companies), which 

purchased medical devices, failed to adequately allege a conspiracy between the distributors and manufacturer of the devices, as required for a hub-and-spoke conspiracy 

claim. 952 F.3d at 842. There, the plaintiffs could not allege any facts suggesting that 

the medical-device distributors were involved in inflating prices, coordinating among 

each other, or with the manufacturer. Id. Rather, the plaintiffs only alleged that the 

distributors were members of the conspiracy “because they buy and sell the devices 

according to the terms of contracts” that were negotiated in a “crooked fashion.” Id. 

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So too here. The Plaintiffs principally argue that the Credit Bureaus engaged in a 

conspiracy on a quid pro quo basis: they would receive the beneficial Level Playing 

Field provision in exchange for adopting the anticompetitive No Equivalent Products 

and Dynamic Royalty Schedule clauses. But the premise that the Level Playing Field 

clause protected the Credit Bureaus from each other is flawed. In effect, the Level 

Playing Field clause forbids FICO from charging “any Credit Bureau a price that is 

lower than the price it charges any other Credit Bureau.” DPCC ¶ 124. In other 

words, it is a “most favored nations”-type clause, which “are 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.” Blue Cross & Blue Shield United of Wis. 

v. Marshfield Clinic, 65 F.3d 1406, 1415 (7th Cir. 1995), as amended on denial of reh’g

(Oct. 13, 1995). The Seventh Circuit has held that most-favored-nations clauses are 

“not price-fixing.” Id.; see Associated Milk Dealers, Inc. v. Milk Drivers Union, Loc. 

753, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 422 F.2d 

546, 554 (7th Cir. 1970) (requiring “proof of predatory purpose as a prerequisite to 

finding that a most favored nation clause violates the antitrust laws”). 

 The Plaintiffs have not adequately alleged that the Credit Bureaus adopted 

the Level Playing field with a predatory purpose. First, the Level Playing Field clause 

was agreed to before FICO filed the lawsuit against TransUnion in 2017. FICO entered a new contract with the Credit Bureaus containing the three clauses between 

2013 and 2015. DPCC ¶ 105, IPAC ¶ 122. The allegation that the Credit Bureaus 

conspired with FICO in exchange for protection from competition, only to be sued by 

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FICO shortly after their agreement, is implausible (even giving the Plaintiffs the benefit of reasonable inferences). Second, the Plaintiffs’ claims about protection from an 

outside competitor ring hollow. The Complaints do not allege that a new credit bureau 

was likely to emerge anyway, or that FICO took any steps to directly threaten the 

Credit Bureaus with helping new entrants. Third, the Credit Bureaus took significant 

measures to invest and to support VantageScores as a “competitively priced, highly 

predictive” alternative to FICO Scores. DPCC ¶¶ 6–7, 71–84, 88–94; IPAC ¶¶ 10, 87, 

103–09. The face of the Complaints does not plausibly allege that the Credit Bureaus 

would sabotage their own joint venture to receive some protection from the wispy 

specter of external competition. In fact, the most recent litigation involving TransUnion suggests the opposite—that the Credit Bureaus are emboldened to resist any 

pressure that FICO might try to exert on them. 

Lacking a plausible allegation of a rim connecting the alleged conspiring Credit 

Bureaus, the Plaintiffs alternatively allege that FICO engaged in individual, vertical 

conspiracies with each Credit Bureau “in restraint of trade or commerce.” Pls.’ Resp. 

at 27. Yet the same rationale for rejecting the rimmed-conspiracy claim with all three 

Credit Bureaus applies to each single-bureau-conspiracy claim. Because the Level 

Playing Field provision is not plausibly a sufficient incentive for Credit Bureaus to 

conspire together, it is also not a sufficient incentive for each Credit Bureau to conspire separately with FICO. Put another way, the Plaintiffs are unable to adequately 

allege that the Level Playing Field was so lucrative for each Credit Bureau that they 

served to advance FICO’s monopoly power. For example, shortly after the decision in 

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Marion I, the Seventh Circuit held that the plaintiff-healthcare companies’ allegations of two vertical conspiracies were also “simply not plausible.” Marion Diagnostic 

Ctr., LLC v. Becton Dickinson & Co. (Marion II), 29 F.4th 337, 350 (7th Cir. 2022). 

There, the plaintiffs could not adequately allege that the vertical conspiracies “could 

plausibly influence the prices that the [plaintiffs] pay for the Products.” Id. 

Similarly, the Plaintiffs here also fail to adequately plead a claim for conspiracy to monopolize in violation of Section 2 of the Sherman Act. See Pls.’ Resp. at 25. 

A crucial element of a Section 2 conspiracy claim is “the existence of specific intent to 

monopolize.” Great Escape, Inc. v. Union City Body Co., 791 F.2d 532, 540–41 (7th 

Cir. 1986). For the reasons explained earlier, the Plaintiffs have not adequately alleged the existence of specific intent. In fact, “the mere intention to exclude competition and to expand one’s own business is not sufficient” for Section 2 purposes. Id. 

In sum, then, the Plaintiffs’ conspiracy claims against FICO and the Credit 

Bureaus are dismissed. For now, the dismissal is without prejudice given that the 

pleadings have faced only a first dismissal motion. But the Plaintiffs should realistically assess whether they can fill the gap in an amended pleading, bearing in mind 

that the Plaintiffs already gave it a fulsome shot in the current 300-plus-paragraph 

Complaints. If the Plaintiffs really believe that they can, then they must file their 

amended complaints by October 30, 2023.5 

5This deadline is intentionally set for after FICO’s answer deadline so that an answer 

is in place as discovery gets going with FICO. 

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C. Illinois Brick

The Court next addresses whether Illinois Brick Co. v. Illinois, 431 U.S. 720 

(1977), bars the Direct Purchaser Plaintiffs’ federal claims. According to FICO, “all 

Plaintiffs[] are at best indirect purchasers.” FICO Br. at 36. In Illinois Brick, the Supreme Court reaffirmed the distinction between “direct” and “indirect” purchasers in 

antitrust actions. 431 U.S. at 737–38. Aiming to prevent duplicative recovery, the 

Supreme Court held that only direct purchasers would be allowed to recover antitrust 

damages resulting from an overcharge by the defendant. Id. at 747. Allowing indirect 

purchasers to claim antitrust damages would pose the risk that the defendant would 

pay multiple times for the same conduct, and would threaten to mire antitrust litigation in nigh-impossible valuations of the damages allegedly suffered by each indirect 

purchaser. Id. at 746-47. In other words, “if manufacturer A sells to retailer B, and 

retailer B sells to consumer C, then C may not sue A. But B may sue A if A is an 

antitrust violator.” Apple Inc. v. Pepper, 139 S. Ct. 1514, 1521 (2019). This doctrine 

has been applied in a variety of antitrust contexts. See, e.g., Kansas v. Utilicorp 

United Inc., 497 U.S. 199, 208 (1990) (applying the doctrine to regulated public utilities). 

 Here, the remaining Plaintiffs are direct purchasers. The Seventh Circuit addressed this issue in Blue Cross & Blue Shield, holding that a direct payment from a 

plaintiff to the defendant was the key element in deeming the plaintiff as the direct 

purchaser. See 65 F.3d at 1414. There, the insurer (yet another Blue Cross entity) 

sued a 21-office, physician-owned clinic that allegedly wielded monopoly power in 

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northern Wisconsin. Id. at 1408–09. The insureds (that is, the patients) received services on a fee-for-service basis, and Blue Cross paid the clinic “directly the portion of 

the fee that Blue Cross has agreed with its insureds to cover.” Id. at 1414 (emphasis 

added). So too here. The Plaintiffs allege that the Direct Purchasers agreed to contracts that state they shall “pay the Credit Bureaus/Fair Isaac fees’ for those products.” DPPC ¶ 42. In response, FICO asserts that no Direct Purchaser “alleges that 

it pays FICO directly ‘in the absence of an intermediary.’” R. 149, FICO Reply at 18 

(quoting Apple, 139 S. Ct. at 1521. But FICO demands too much at the pleading stage. 

Generally, under Illinois Brick and Apple, the Plaintiffs can sue FICO and seek to 

recover damages as direct purchasers of FICO Scores but cannot (under federal law) 

claim damages stemming from an “overcharge” passed down a chain of distribution. 

Apple, 139 S. Ct. at 1525. Neither may the Plaintiffs allege that they have “[t]he right 

to sue middlemen that joined the conspiracy,” Paper Sys. Inc. v. Nippon Paper Indus. 

Co., 281 F.3d 629, 631–32 (7th Cir. 2002), because claims against the Credit Bureaus 

have been dismissed. Although the Plaintiffs do not explicitly allege that every payment goes from the Plaintiffs to FICO, the Plaintiffs have plausibly alleged that payments can be made directly to either the Credit Bureau or FICO in their Complaint. 

Therefore, Illinois Brick does not bar the Direct Purchasers from suing FICO. 

D. State Law Claims 

Finally, the Plaintiffs bring suit under a variety of state antitrust laws. DPCC 

¶¶ 272–321 (Counts 7 and 8); IPAC ¶¶ 304–67 (Counts 7–9). As a preliminary matter, 

because the alleged conduct that forms the basis for the state law claims as asserted 

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against the Credit Bureaus is the same as the conduct that fails to plausibly set forth 

a conspiracy with FICO, all of the state law claims against the Credit Bureaus fail on 

that basis too. Again, the Plaintiffs may reallege state law claims in any amended 

complaint if the Plaintiffs genuinely believe that those can be fixed too. As a second 

preliminary matter, any of the defense’s arguments about state law antitrust claims 

against FICO that are parallel to the federal antitrust claim against FICO are rejected for the same reasons, as explained above. But the Defendants make a litany of 

other arguments addressing the remaining claims. See FICO Br. at 39–45. The Court 

addresses each argument in turn. 

Article III Standing. FICO contends that the Plaintiffs do not have Article III 

standing in 25 States “where no Plaintiff does business.” FICO Br. at 44–45. The 

Court rejects this argument. As the Court held in Freeman v. MAM USA Corporation, 

the whole point of a class action is to represent the interests of class members, as 

opposed to just the “representative’s own interests.” 528 F. Supp. 3d 849, 859 (N.D. 

Ill. 2021) (emphasis in original). The logical extent of FICO’s claim that a plaintiff 

can only raise claims under her own State’s laws would lead to no multi-state or nationwide class being certified absent a representative from every state. Id. No Supreme Court or Seventh Circuit precedent supports that outcome. To be sure, as noted 

in Freeman, the propriety of certifying a multi-state-law class action must be scrutinized very closely. Id. But a Rule 23 certification obstacle is not the same as an Article 

III standing deficiency. The key is that the Plaintiffs have standing to assert their 

own state law claims, which is enough. 

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Intrastate nexus. FICO next contends that the Plaintiffs’ allegations are inadequate to assert claims under state law6 that require a specific nexus between FICO’s 

conduct and intrastate commerce. FICO Br. at 41. But the Plaintiffs have adequately 

alleged in their Complaints that “Defendants’ conduct ... had a substantial effect on 

the intrastate commerce of the states listed in counts Seven and Eight of [the] Complaint[s].” DPCC ¶ 32; IPAC ¶ 34. Because the Plaintiffs allege that FICO engaged in 

anticompetitive conduct that affected commerce in the States at issue, they readily 

pass the intrastate commerce requirement at the pleading stage. 

Class Actions. FICO argues that certain States7 prohibit class-action antitrust 

claims filed by indirect purchasers. FICO Br. at 41–42. First, as discussed above, the 

Direct Purchasers are exempted from that argument because the Plaintiffs have plausibly alleged that they paid FICO directly in their contracts. Second, because the 

Court has dismissed the conspiracy claims, those arguments are no longer relevant. 

Finally, although these States may prohibit class actions in state court, the Plaintiffs 

brought their claims in federal court. In re Dealer Mgmt. Sys. Antitrust Litig., 362 F. 

Supp. 3d 510, 553 (N.D. Ill. 2019) (rejecting antitrust defendants’ claim that plaintiffs 

are precluded from pursuing a class action under consumer protection statutes of 

various states). 

6Specifically, District of Columbia, California, Massachusetts, Mississippi, Nevada, 

New Hampshire, New York, North Carolina, South Dakota, Tennessee, West Virginia, and 

Wisconsin. See FICO Br. at 41. 

7Specifically, Arkansas, Illinois, Montana, and South Carolina. 

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Tangibility. FICO argues that credit scores are intangible services barred by 

Tennessee’s antitrust statute. FICO Br. at 42. This contention fails. FICO provides 

no support for the notion that credit scores qualify as an intangible service. Even if 

they were, the Plaintiffs correctly respond that the credit scores at issue are included 

within a credit report, which serve as a tangible good. Pls.’ Resp. at 67. So, FICO’s 

credit scores are not exempt from Tennessee antitrust laws. 

Allegations. FICO argues that the Plaintiffs must allege more than violations 

of antitrust laws or that FICO charged supracompetitive services in select States.8

FICO Br. at 47. This argument too is incorrect. The Plaintiffs’ claims are sufficient 

under each of the challenged state statutes. Because the Plaintiffs plead that FICO 

maintains a nationwide monopoly that harms the Plaintiffs in the States at issue, 

this suffices to plead an injury under their antitrust laws. See e.g., Sandee’s Catering 

v. Agri Stats, Inc., 2020 WL 6273477, at *7 (N.D. Ill. Oct. 26, 2020) (holding that the 

plaintiff pleaded sufficient allegations under state antitrust laws); Pls.’ Resp. at 68 

(citing cases). 

Particularity. FICO contends that the Plaintiffs fail to plead specific allegations of fraud or deception under Florida’s and South Dakota’s consumer-protection 

laws. FICO Br. at 42. That is incorrect. The Plaintiffs have sufficiently pleaded violations of those state laws: the Plaintiffs allege that FICO engaged in anticompetitive 

conduct on a nationwide basis, including in Florida and South Dakota. As the 

8Specifically, Arkansas, New Mexico, Rhode Island, South Dakota, and West Virginia. 

FICO Br. at 42. 

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Plaintiffs rightly point out, their claims are based on antitrust violations under the 

Sherman Act, not on fraud, and need not satisfy Rule 9(b)’s particularity requirements. See Sandee’s Catering, 2020 WL 6273477, at *10. Moreover, the Seventh Circuit has made clear that “[p]laintiffs need only plead facts, not legal theories, in their 

complaints.” Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 701 (7th 

Cir. 2014) (cleaned up). 

Market definition. FICO also argues that certain States9 exclude antitrust 

claims for items purchased primarily for business or commercial purposes, which include the B2B market. FICO Br. at 43. The Plaintiffs have the better argument. Hawaii and Montana statutes do not require a non-business purpose. See Haw. Rev. 

Stat. Ann. § 480-13(a); Mont. Code Ann. § 30-14-222. For Rhode Island or Missouri, 

the Plaintiffs’ allegations are based on transactions that qualify as consumer transactions. See R.I. Gen. Laws § 6-13.1-5.2(a); Mo. Ann. Stat. § 407.025(1). This is not a 

defect in the state law claims. 

Bargaining disparity. FICO argues that the Plaintiffs have not sufficiently alleged a level of “grossly unequal bargaining power,” as required by New Mexico law. 

FICO Br. at 43. This is incorrect. A plaintiff properly states a claim under New Mexico 

law by pleading that the defendant either acted in a way that “(1) [took] advantage 

of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair 

degree; or (2) result[ed] in a gross disparity between the value received by a person 

9Specifically, Hawaii, Missouri, Montana, and Rhode Island. FICO Br. at 43. 

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and the price paid.” N.M. Stat. § 57-12-2(E). Here, the Plaintiffs’ allegations suffice, 

given the alleged exercise of monopoly power. See In re Dealer Mgmt., 362 F. Supp. 

3d at 557 (citing cases). 

Unconscionability. FICO argues that certain States10 require the Plaintiffs to 

allege a degree of unconscionability or egregious circumstances, which are absent in 

the Complaints. FICO Br. at 43. The Plaintiffs have the better argument again. The 

Plaintiffs may plead deceptive acts under the Arkansas and D.C. statutes. Ark. Code 

Ann. § 4-88-107(a); D.C. Code § 28-3904. Moreover, the Plaintiffs do sufficiently plead 

unconscionability to pass these bars, given the exercise of monopoly power alleged 

here. DPCC ¶¶ 308, 310; IPAC ¶¶ 341(b), 343(f). 

Statute of limitations. FICO contend that Oregon’s one-year statute of limitations renders the Plaintiffs’ allegations untimely. FICO Br. at 43. But that argument 

fails too. First, as previously noted, the Seventh Circuit has held that “a complaint 

need not anticipate and overcome affirmative defenses, such as the statute of limitations.” Sidney, 782 F.3d at 928. Moreover, the Defendants’ acts plausibly qualify as a 

continuing violation, which extends the statute of limitations under Oregon law. See 

Colquitt v. Mfrs. & Traders Tr. Co., 144 F. Supp. 3d 1219, 1228 (D. Or. 2015). For 

now, the Plaintiffs’ claims are not barred by the Oregon statute. 

Indirect purchaser. FICO argues that certain states11 bar indirect purchasers. 

FICO Br. at 43–44. The Indirect Purchaser Plaintiffs have already withdrawn their 

10Specifically, Arkansas, District of Columbia, and North Carolina. FICO Br. at 43. 

11Specifically, Massachusetts, Missouri, and Rhode Island. FICO Br. at 43–44. 

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claim under Massachusetts law, Mass. G. L. c. 93(A). See IPAC ¶ 346. The Defendants’ remaining arguments are not persuasive—other federal courts have allowed indirect purchaser claims under the state statutes at issue. See In re Broiler Chicken 

Antitrust Litig., 290 F. Supp. 3d 772, 821 (N.D. Ill. 2017) (citing cases). 

Unjust Enrichment. FICO argues that the Plaintiffs’ unjust-enrichment claims 

fail. FICO Br. at 44. But the Indirect Purchaser Plaintiffs have properly alleged their 

unjust enrichment claims, mimicking the typically required elements of those state 

law claims. IPAC ¶¶ 363–67. Consequently, they are not barred by the state laws at 

issue. 

IV. Conclusion 

The Court grants the Credit Bureaus’ motion to dismiss in its entirety (all federal and state claims). As noted earlier, the Plaintiffs may file amended complaints 

by October 30, 2023, if there really is a fix for the problems identified in the Opinion. 

With regard to FICO’s motion to dismiss, the Court grants the motion as to Counts 1 

through 4, and Count 6, in both Complaints, but denies the motion as to Count 5 (the 

Section 2 claim against FICO only) and the state law claims against FICO. FICO 

must file answers to the Complaints by October 23, 2023. Rule 26(a)(1) disclosures 

shall be made by November 13, 2023. The parties shall file a joint status 

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report proposing other discovery, certification-motion, and dispositive-motions deadlines on October 16, 2023. The status hearing of September 29, 2023, is reset to October 20, 2023, at 8:30 a.m. (but to track the case only, no appearance is required). 

 ENTERED: 

 s/Edmond E. Chang 

 Honorable Edmond E. Chang 

 United States District Judge 

DATE: September 28, 2023

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