MEMORANDUM OPINION AND ORDER

PAUL W. GRIMM, District Judge.

Counterclaimants Capital One Financial Corp., Capital One Bank (USA), N.A., and Capital One, N.A. (collectively, "Capital One companies") lodged three antitrust counterclaims in this patent litigation, alleging that Plaintiffs/Counter-Defendants Intellectual Ventures I LLC and Intellectual Ventures II LLC (together, "original IV companies"), along with Intellectual Ventures Management, LLC, Invention Investment Fund I, L.P., and Invention Investment Fund II, LLC (collectively, "new IV companies") have amassed monopoly power in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, and Section 7 of the Clayton Act, 15 U.S.C. § 18. ECF No. 107 (Third Amended Counterclaim); see ECF No. 196 (public redacted version). They also filed a Third-Party Complaint against the new IV companies (referred to, collectively with the original IV companies, as "Intellectual Ventures companies"). ECF No. 228. The Third-Party Complaint includes the same three antitrust claims that the Capital One companies presented as counterclaims, with small but, as discussed below, significant additions. Id.

The original IV companies filed a Motion to Dismiss the counterclaims, and I denied the motion. July 1, 2015 Mem. Op. & Order, ECF No. 328. In doing so, I noted that, while largely reiterating their opposition to the Capital One companies' earlier motion to amend to add the antitrust counterclaims, the original IV companies raised one new argument in their motion to dismiss. Insisting that they "are separate legal entities," and that the Capital One companies' allegations of agency and alter ego are "conclusory," insufficient, and should be stricken, the original IV companies contended that the Capital One companies could not "establish the existence of a single 3,500 patent portfolio," that is, a monopoly, for purposes of stating an antitrust claim. Counter-Defs.' Mem. 9-10. The Capital One companies responded that the original IV companies' new argument "makes no sense" because "`IV use[s] its 2,000 shell companies to fraudulently conceal its acquisition and ownership of the vast majority of patents in its financial-services portfolio." Countercls.' Opp'n 5 (quoting Third Am. Countercl. ¶ 216), but they failed to explain the basis for their reference to the original IV companies as one entity.

I ordered the Capital One companies to brief the issue of whether the original IV companies "are separate companies with separate portfolios" and permitted the original IV companies to file a reply, and the motion to strike incorporated in the original IV companies' motion to dismiss remained pending. July 1, 2015 Mem. Op. & Order 3-4. It is now ripe for resolution. See ECF Nos. 225 (Counter-Defs.' Mot.), 340 (Countercls.' Br.), 362 (Counter-Defs.' Br.), 394 (Counter-Defs.' Supp.), 397 (Countercls.' Supp.). Additionally, in their brief, the original IV companies renewed their request that the Court "dismiss the Sherman Act and Clayton Act allegations because the counterclaims contain no allegations sufficient to treat the Plaintiffs' separate patent portfolios as a single portfolio that might constitute a monopoly." Counter-Defs.' Br. 6. The new IV companies also have moved to dismiss the Capital One companies' Third Party Complaint, ECF No. 296, and that motion also has been briefed fully, ECF Nos. 296-1, 305 & 316.1

The new IV companies argue for dismissal on three grounds.2 First, they, like the original IV companies, argue that the agency and alter ego allegations are not sufficient to establish a single entity with a single portfolio, insisting that the "few new conclusions" that the Third Party Complaint adds to the allegations in the Counterclaims do not cure this deficiency. Third Party Defs.' Mem. 7. Second, they assert issue preclusion, based on the finality of the judgment in Intellectual Ventures I LLC v. Capital One Financial Corp. ("Intellectual Ventures I"), No. 13-00740 AJT, 2013 WL 6682981 (E.D. Va. Dec. 18, 2013), "as a result of Capital One's abandonment of its appeal." Id. at 1. Third, they argue that claim preclusion bars the Clayton Act claim. Id. at 17. Because the Capital One companies sufficiently alleged that the Intellectual Ventures companies are one entity for antitrust litigation purposes, and neither claim nor issue preclusion bars the Third Party Complaint, I will deny the new IV companies' motion. Yet, because the allegations that the Intellectual Ventures companies are one entity do not appear in the Counterclaims, the antitrust counterclaims against the original IV companies will be dismissed without prejudice to re-pleading to include allegations (such as those appearing in the Third Party Complaint) that the Intellectual Ventures companies are the same entity.

Standard of Review

Dismissal is appropriate where a complaint "fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (citing Fed. R. Civ. P. 12(b)(6)). This means that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); see Velencia, 2012 WL 6562764, at *4. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

Issue Preclusion

The new IV companies argue that "Capital One cannot plead a violation of Section 2 of the Sherman Act or Section 7 of the Clayton Act because the relevant market on which its antitrust claims depend has been rejected as a cognizable antitrust market" by the Eastern District of Virginia in Intellectual Ventures I, 2013 WL 6682981, at *5. Third Party Defs.' Mem. 12. There, the court concluded that "Capital One's proposed market is not a `relevant market' under any recognized antitrust jurisprudence." Id. Acknowledging that this Court already "decided that res judicata (claim preclusion) was not a bar to the antitrust counterclaims," the new IV companies insist that issue preclusion is. Id. at 11-12 (emphasis added).

Collateral estoppel, or issue preclusion, bars relitigation of an issue or fact if

In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004) (emphasis added).

It is true that I considered claim preclusion, not issue preclusion, in my March 2, 2015 Memorandum Opinion, before the new IV companies were parties to this action. There, I concluded that the Eastern District of Virginia's conclusion regarding Capital One's proposed market did not preclude the Capital One companies' Counterclaims. See Intellectual Ventures I LLC v. Capital One Finance Corp., 99 F.Supp.3d 610, 616-20 (D. Md. 2015). I also considered whether the Capital One companies sufficiently pled a relevant product market. Id. at 620-24. My observations in that regard are pertinent, as the allegations of relevant market are the same in the Third Amended Counterclaim and the Third Party Complaint. Compare Third Am. Countercl. ¶ 156 with Third Party Compl. ¶ 49.

In this case, the Capital One companies claim that the 3,500 patents in the Intellectual Ventures companies' financial services portfolio constitute the relevant market. Intellectual Ventures I, 99 F. Supp. 3d at 621. Before the Virginia court, the Capital One companies claimed that "the relevant market [was] the `market for technology enabling business processes common throughout the commercial banking industry in the United States, where the relevant geographic market is nationwide.'" Intellectual Ventures I, 2013 WL 6682981, at *5 (citation to E.D. Va. record omitted). The court restated the relevant market as the Intellectual Ventures companies' "`portfolio of 3,500 or more patents,'" id., the same market alleged here.

Nonetheless, as I observed last March, the factual allegations before me are not the same as those presented in Virginia:

Intellectual Ventures I, 99 F. Supp. 3d at 622-23. Thus, the facts pled pertaining to the relevant market are not "identical to the one previously litigated," and whether the Capital One companies sufficiently pled a relevant market on the augmented facts present in the pending counterclaims was not "actually resolved in the prior proceeding." See In re Microsoft Corp. Antitrust Litig., 355 F.3d at 326. Therefore, collateral estoppel does not bar litigation of whether the Capital One companies sufficiently pled a relevant market.3 See id.

Claim Preclusion

The new IV companies alternatively argue that claim preclusion, or res judicata, bars the Clayton Act claim. Id. at 17. Res judicata "`prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.'" Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991) (quoting Peugeot Motors of Am., Inc. v. E. Auto Distribs., Inc., 892 F.2d 355, 359 (4th Cir. 1989) (quoting Brown v. Felsen, 442 U.S. 127, 131 (1979) (internal quotation marks deleted)) (emphasis added)). I already ruled in my March 2, 2015 Memorandum Opinion, with regard to the equivalent claims in the Third Amended Counterclaim, that res judicata does not bar the Capital One companies' Clayton Act claim and that they stated a claim under the Section 7 of Clayton Act. Intellectual Ventures I, 99 F. Supp. 3d at 620, 630. Specifically, I noted that the Capital One companies identified new facts that were not previously available to them. See id. at 618 ("`Capital One's proposed antitrust counterclaims derive from new conduct, including. . . acquiring more patents secretly through shell companies.'" (quoting Counterclaimants' Mem. 14)). Undeterred, the new IV companies observe that I concluded that the Capital One companies stated a claim "`at least insofar as they base their allegation on patent acquisitions other than Plaintiffs' initial financial-services patent acquisitions.'" Id. at 17-18 (quoting Intellectual Ventures I, 99 F. Supp. 3d at 630). On this basis, the new IV companies insist that res judicata is, indeed, a bar because "Capital One does not allege a single patent acquisition after the filing of its counterclaims in the Eastern District of Virginia and merely identifies Plaintiffs' prior financial-services patent acquisitions," id. at 18 (citing Third Party Compl. ¶ 108), such that "[t]here are no `new' or `far more robust factual allegations' of patent acquisition by either Plaintiffs that occurred after . . . Capital One filed its antitrust counterclaims in the Eastern District of Virginia," id.

Yet, as the new IV companies noted, the Third Party Complaint alleges patent acquisitions as late as 2012, which certainly is later than "Plaintiffs' initial financial-services patent acquisitions," even if it predates the October 2013 counterclaims in Virginia. In any event, my discussion of the required allegations of later patent acquisitions pertained to stating a claim, not res judicata. See Intellectual Ventures I, 99 F. Supp. 3d at 630 (citing United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 597 (1957)). Moreover, as the new IV companies acknowledge, "Capital One alleges that `IV began revealing its ownership of such patents incrementally in 2013 and 2014," starting around the summer of 2013." Id. at 19 (citing Third Am. Compl. ¶ 109). This is the pivotal fact for res judicata purposes, a fact that extends beyond the October 2013 date of the Virginia counterclaims. With this allegation, it is plausible that the Capital One companies learned information not previously available, namely, the full extent of the Intellectual Ventures companies' patent ownership, after they filed their counterclaims in the Virginia suit in October 2013. See Third Am. Compl. ¶ 109. Their lateracquired knowledge could be the facts necessary to push the quantity of the Intellectual Ventures companies' patents over the line to a Section 7 violation. See Intellectual Ventures I, 99 F. Supp. 3d at 630 ("[I]t may be that Plaintiffs' first 10, or 100, or 1,000 patent acquisitions did not violate § 7. But, at some point, the acquisitions, as alleged, created a monopoly and crossed the line to actionable under § 7."); E. I. du Pont de Nemours & Co., 353 U.S. at 597 (stating that the Clayton Act "seeks to prohibit and make unlawful certain trade practices . . . and thus, by making these practices illegal, to arrest the creation of monopolies" at "any time when the acquisition threatens to ripen into a prohibited effect").

Certainly, it is curious that the Capital One companies alleged a 3,500-patent portfolio in the Virginia litigation, see E.D. Va. Countercl. ¶ 89, ECF No. 296-2, and a 3,500-patent portfolio in their Third Party Complaint at ¶ 108. Consequently, it does not appear that the Capital One companies included their later-acquired factual knowledge in their pleading in this case. Yet, the details regarding the facts that the Capital One companies have alleged (if the alleged facts themselves are otherwise sufficient to state a plausible claim) are better left to discovery than to a motion to dismiss, where the question of factual sufficiency must be examined in light of the requirements of notice pleading. If discovery reveals flaws in the Capital One companies' antitrust theory, summary judgment will allow them to be explored. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (holding that "stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest that [the elements of the cause of action exist]"; noting that there is no "probability requirement at the pleading stage," as the notice pleading requirements "simply call[] for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the elements]"). Thus, the earlier counterclaim is not a bar to the Clayton Act claim in the Third Party Complaint. See Meekins, 946 F.2d at 1057.

Allegations that the Intellectual Ventures Companies Are a Single Entity

Monopolization under Section 2 of the Sherman Act involves "`independent activity by a single entity,'" as opposed to "a concerted effort by more than one entity to fix prices or otherwise restrain trade," for which § 1 of the Sherman Act applies. See Va. Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 281 (4th Cir. 2002) (quoting Fisher v. Berkeley, 475 U.S. 260, 266 (1986)). Likewise, Section 7 of the Clayton Act limits the acquisitions of a single entity, stating that "[n]o person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital . . . where. . . the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." 15 U.S.C. § 18 (emphasis added). Without pleading that the Intellectual Ventures companies are the same entity, the Capital One companies cannot state a claim against the Intellectual Ventures companies under Section 2 or Section 7. See id.

"Any anticompetitive activities of corporations and their wholly owned subsidiaries meriting antitrust remedies may be policed adequately without resort to an intra-enterprise conspiracy doctrine. . . . [T]he enterprise is fully subject to § 2 of the Sherman Act . . . ." Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 777 (1984). And, "[w]hen the parent controls, directs, or encourages the subsidiary's anticompetitive conduct, the parent engages in sufficient independent conduct to be held directly liable as a single enterprise with the subsidiary under the Sherman Act." Nobody in Particular Presents, Inc. v. Clear Channel Commc'ns, Inc., 311 F.Supp.2d 1048, 1070 (D. Colo. 2004); see also Copperweld, 467 U.S. at 770-71 ("[T]here can be little doubt that the operations of a corporate enterprise organized into divisions must be judged as the conduct of a single actor. . . . Antitrust liability should not depend on whether a corporate subunit is organized as an unincorporated division or a wholly owned subsidiary." (discussing § 1 of the Sherman Act and the insusceptibility of a parent and its wholly owned subsidiary to antitrust liability for conspiracy under § 1)). Thus, the Capital One companies' antitrust counterclaims and third party claims are sufficient if they allege that one Intellectual Ventures company is a parent company, controlling or directing the anticompetitive conduct of the other Intellectual Ventures companies. See Copperweld, 467 U.S. at 770-71, 777; Nobody in Particular, 311 F. Supp. 2d at 1070.

Considering first the Third Party Complaint, it describes the Intellectual Ventures companies' corporate structure sufficiently to withstand dismissal. Specifically, the Capital One companies allege that Intellectual Ventures Management, LLC "`through some complicated set of LLCs and limited partnerships' manages IV I," and "[t]he same is true of Intellectual Ventures Management LLC's control of IV II." Third Party Compl. ¶ 11 (quoting Myhrvold Dep.). Nathan Myhrvold, CEO for Intellectual Ventures, also testified that "that IV I `is an entity that we set up primarily to be the plaintiff for lawsuits,'" and `it basically holds the patent assets to be filed in patent lawsuits.'" Id. (quoting Myhrvold Dep.). Moreover, the Third Party Complaint explicitly states that "Intellectual Ventures Management, LLC controls all IV entities," and provides a chart to "summarize[] Intellectual Ventures' corporate structure," in which all Intellectual Ventures entities, directly or indirectly, report to Intellectual Ventures Management, LLC. Id. ¶ 12. These allegations suffice at the pleading stage to allege that Intellectual Ventures Management, LLC is the parent company, the other Intellectual Ventures companies are subsidiaries, and the parent company controls the subsidiaries. See Nobody in Particular, 311 F. Supp. 2d at 1070. Therefore, this is not a basis for dismissal of the third party claims. See Fed. R. Civ. P. 12(b)(6); Velencia, 2012 WL 6562764, at *4.

The outcome is different with regard to the Counterclaims, however. The Capital One companies insist that, for purposes of pleading monopolization, they "only had to allege that the entities are commonly owned and controlled," and the original IV companies "do[] not dispute that Capital One has met that requirement." Countercls.' Br. 1; see id. at 7. Yet, the original IV companies do dispute this. They contend:

Counter-Defs.' Br. 2. Moreover, the Capital One companies continue to assert that the alter ego and agency allegations, see Third Am. Countercl. ¶¶ 10-12, are "irrelevant to whether Capital One adequately pled monopolization, attempted monopolization, and unlawful asset acquisition by the IV entities." Countercls.' Br. 1. Therefore, I will not consider them in assessing the sufficiency of the claims. The original IV companies' Motion to Strike IS DENIED AS MOOT.

Yet, even were I to consider (in the interest of justice under Fed. R. Civ. P. 1) the alter ego and agency allegations that original IV companies ask me to disregard, there is no reference in the Counterclaims to a parent company or subsidiaries. The allegations of management and control, present in the Third Party Complaint, are nowhere to be found. Rather, Paragraphs 11-13 only allege "agency relationships," with the original IV companies acting "solely as the agent of" and "mere vessels for" the new IV companies, and with their "actions . . . imputed" to the new IV companies. Third Am. Countercl. ¶¶ 11-13. Unlike in the Third Party Complaint, they do not allege that one of the new IV companies is the parent company that controls all of the other Intellectual Ventures companies. Compare Third Party Compl. ¶¶ 11-12, with Third Am. Countercl. ¶¶ 11-13. Consequently, the Capital One companies have not alleged "`independent activity by a single entity.'" See Va. Vermiculite, 307 F.3d at 281 (citing Fisher, 475 U.S. at 266); Copperweld, 467 U.S. at 777; Nobody in Particular, 311 F. Supp. 2d at 1070. Therefore, they have failed to state a claim for a Section 2 violation. See Va. Vermiculite, 307 F.3d at 281; Sun Dun, Inc. of Wash. v. Coca-Cola Co., 740 F.Supp. 381, 391-92 (D. Md. 1990) (dismissing Section 2 claim based on allegations that "two or more competitors conspire[d] to create a market environment in which competition and market entry is improperly restricted, but in which market power continues to be shared among these otherwise unrelated entities"). Nor have they stated an antitrust claim under the Clayton Act. See 15 U.S.C. § 18; see also Copperweld, 467 U.S. at 770-71. Therefore, the antitrust counterclaims against the original IV companies will be dismissed without prejudice to re-pleading to include allegations (such as those determined to be sufficient in the Third Party Complaint) that the original IV companies are the same entity. See Fed. R. Civ. P. 12(b)(6); Velencia, 2012 WL 6562764, at *4.

Given that I have determined that the third party claims against the new IV companies do state antitrust claims under both the Sherman and Clayton Acts, I have little doubt that the Capital One companies will state a plausible counterclaim sufficiently by including the additional allegations of the third party claims in an amended counterclaim. While the original IV companies will have an opportunity to file an amended answer, it would be unwise for them to look at this as an opportunity to seek leave to file another motion to dismiss. The time has come to move forward with discovery.

To that effect, the parties will meet and confer to discuss the current pretrial schedule and to discuss a discovery plan. If having a Rule 16 conference with me would be helpful, counsel should let me know and I will schedule one.

ORDER

Accordingly, it is, this 14th day of January, 2016, hereby ORDERED that