Filed: Apr. 02, 2009
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Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0129p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiffs-Appellants, - CBC COMPANIES, INC.; CBC INNOVIS, INC., - - - No. 08-3261 v. , > - - EQUIFAX, INC.; EQUIFAX INFORMATION Defendants-Appellees. - SERVICES LLC, - N Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 06-00654—George C. Smith, District Judge. Argued: March 5, 2009 Decided and File
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0129p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiffs-Appellants, - CBC COMPANIES, INC.; CBC INNOVIS, INC., - - - No. 08-3261 v. , > - - EQUIFAX, INC.; EQUIFAX INFORMATION Defendants-Appellees. - SERVICES LLC, - N Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 06-00654—George C. Smith, District Judge. Argued: March 5, 2009 Decided and Filed..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0129p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiffs-Appellants, -
CBC COMPANIES, INC.; CBC INNOVIS, INC.,
-
-
-
No. 08-3261
v.
,
>
-
-
EQUIFAX, INC.; EQUIFAX INFORMATION
Defendants-Appellees. -
SERVICES LLC,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 06-00654—George C. Smith, District Judge.
Argued: March 5, 2009
Decided and Filed: April 2, 2009
Before: SILER, COOK, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael J. Canter, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio,
for Appellants. Michael P. Kenny, ALSTON & BIRD, Atlanta, Georgia, for Appellees.
ON BRIEF: Michael J. Canter, Kenneth J. Rubin, James Allison Wilson, Jr., VORYS,
SATER, SEYMOUR & PEASE, Columbus, Ohio, for Appellants. Michael P. Kenny,
Gregory B. Mauldin, Teresa T. Bonder, Peter Kontio, ALSTON & BIRD, Atlanta, Georgia,
Robert Garrett Cohen, Roger P. Sugarman, KEGLER, BROWN, HILL & RITTER CO.,
Columbus, Ohio, for Appellees.
_________________
OPINION
_________________
COOK, Circuit Judge. The Federal National Mortgage Association (“Fannie Mae”)
and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) regulate the residential-
mortgage-loan industry by requiring mortgage brokers and lenders to consider a consumer’s
credit information before approving loans. Specifically, federal regulations require brokers
1
No. 08-3261 CBC Companies, Inc. et al. v. Equifax, Inc. et al. Page 2
and lenders to purchase data from each of the three nationwide consumer reporting agencies
(“NCRAs”)—Experian, Ltd., TransUnion LLC, and Equifax, Inc. Plaintiffs CBC
Companies, Inc. and CBC Innovis, Inc. (collectively, “CBC”) are resellers—companies that
purchase consumer credit information from all three NCRAs and consolidate the data into
a “tri-merged report.” As a cheaper alternative, some resellers also sell copies of tri-merged
reports, or “reissues.” CBC filed this antitrust lawsuit against Equifax, Inc. and its reseller
subsidiary, Equifax Information Services LLC (collectively, “Equifax”), after Equifax
implemented a contractual fee that CBC alleges will restrict the ability of resellers to offer
reissues. Equifax moved to dismiss the case, and CBC now appeals the district court’s grant
of that motion. Because CBC failed to allege an antitrust injury and thus lacks standing, we
affirm.
I.
After conducting business absent a contract for two years, Equifax demanded that
CBC sign an agreement (the “Reseller Agreement”) as part of a new policy that allegedly
required resellers to pay a fee—comparable to the price of an original tri-merged
report—each time a reseller sold a reissue. CBC responded by filing this lawsuit on July 31,
1
2006, citing violations of Sections 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1, 2.
Alleging that Equifax threatened to terminate its status as a reseller, CBC signed the
Reseller Agreement a few months later. After CBC filed suit, Equifax changed the fee
terms pertaining to reissues multiple times. Equifax first announced a decrease in the
fee to $1.05 per reissue, then switched to an algorithm-based penalty, and finally,
declared that an “explicit per-transaction formula” would determine a fee based on each
reseller’s volume of sales.
CBC contends that by requiring resellers to pay a fee upon selling each
reissue—despite not purchasing new data—Equifax harnesses the “monopoly power”
it shares with other NCRAs in the market of providing credit data (the “Mortgage
Reseller Market”) in order to monopolize and attempt to monopolize the service of
providing consumer credit information to mortgage lenders (the “Mortgage Lender
1
The complaint at issue here is the First Amended Complaint, which CBC filed in August 2007.
No. 08-3261 CBC Companies, Inc. et al. v. Equifax, Inc. et al. Page 3
Market”) in violation of Sections 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1, 2.
Because only lenders (not brokers) have the option of purchasing reissues as opposed
to original tri-merged reports, the Mortgage Lender Market is at issue here. Concluding
that CBC’s complaint amounted to a mere contract dispute over price terms, the district
court held that CBC failed to allege any antitrust injury and lacked antitrust standing as
a result. The court dismissed the case, and CBC timely appealed.
II.
We review de novo a district court’s decision to dismiss a complaint for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6). J&R Mktg., SEP v. Gen.
Motors Corp., 549 F.3d 384, 389 (6th Cir. 2008). In our review, we accept a plaintiff’s
factual allegations as long as they “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Particularly in the antitrust
context, the Supreme Court cautions that “a district court must retain the power to insist
on some specificity in pleading before allowing a potentially massive factual controversy
to proceed.” Mich. Division-Monument Builders of N. Am. v. Mich. Cemetery Ass’n,
524
F.3d 726, 731–32 (6th Cir. 2008) (quoting
Twombly, 550 U.S. at 558).
The district court dismissed CBC’s complaint because it failed to allege any
antitrust injury—a “necessary, but not always sufficient,” component of antitrust
standing. Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 110 n.5 (1986); see
NicSand, Inc. v. 3M Co.,
507 F.3d 442, 450 (6th Cir. 2007) (en banc) (“[A]ntitrust
standing is a threshold, pleading-stage inquiry and when a complaint by its terms fails
to establish this requirement we must dismiss it as a matter of law.”). To prove antitrust
injury, the key inquiry is whether competition—not necessarily a competitor—suffered
as a result of the challenged business practice. See
NicSand, 507 F.3d at 450 (“[O]ne
competitor may not use the antitrust laws to sue a rival merely for vigorous or intensified
competition.”); see also J.B.D.L. Corp. v. Wyeth-Ayerst Labs., Inc.,
485 F.3d 880, 887
(6th Cir. 2007) (requiring an antitrust plaintiff to demonstrate that “the alleged violation
tended to reduce competition overall” and that “the plaintiff’s injury was a consequence
of the resulting diminished competition” (citation omitted)). Unless an antitrust plaintiff
No. 08-3261 CBC Companies, Inc. et al. v. Equifax, Inc. et al. Page 4
alleges an injury that arises from “an anticompetitive aspect of the practice under
scrutiny,” the complaint will not survive Rule 12(b)(6) scrutiny. See
NicSand, 507 F.3d
at 451 (quoting Atl. Richfield Co. v. USA Petroleum Co.,
495 U.S. 328, 334 (1990)).
CBC contends that it established the requisite injury for antitrust standing by alleging
that Equifax is leveraging its “monopoly power” in the Mortgage Reseller Market to
restrain competition in the Mortgage Lender Market by “imposing and threatening to
impose financial penalties on Resellers that sell Reissues, and by diminishing and
threatening to diminish the competitive advantage Reissues enjoy over [tri-merged]
reports.” This argument is meritless.
First, CBC’s complaint contains only conclusory allegations, and not facts
sufficient to support more than a speculative injury to competition. See Twombly, 550
U.S. at 555. CBC suggests that Equifax is: (1) diminishing the competitive advantage
of reissues over tri-merged reports; (2) restricting competition between its own reseller
subsidiary, Equifax Mortgage, and other resellers; and (3) increasing reissue costs and
decreasing options for mortgage lenders. In effect, CBC argues injury in the form of
“higher costs [for reissues] and loss of market share in the Mortgage Lender Market.”
But CBC’s complaint fails to allege key facts to substantiate an antitrust
injury—that is, that competition in the Mortgage Lender Market decreased due to
Equifax’s Reseller Agreement. Although the complaint contends that “CBC Innovis and
other Resellers are the principal victims of Equifax’s unlawful actions,” CBC never
identifies any of these other resellers, and never establishes whether any of these
resellers signed a contract similar to the Reseller Agreement. See Total Benefits
Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437 (6th Cir.
2008) (“Without an explanation of the other insurance companies involved, and their
products and services, the court cannot determine the boundaries of the relevant product
market and must dismiss the case for failure to state a claim.”). Moreover, although
CBC filed its amended complaint in August 2007, several months after signing the
Reseller Agreement, the complaint fails to allege any specific increases in costs for its
reissues or lost market sales in the Mortgage Lender Market. CBC’s complaint offers
No. 08-3261 CBC Companies, Inc. et al. v. Equifax, Inc. et al. Page 5
generalized allegations of antitrust injury, but the Supreme Court requires more than
“naked assertion[s]” to establish antitrust standing. See
NicSand, 507 F.3d at 451
(quoting
Twombly, 550 U.S. at 557). As the Twombly Court pronounced, “a naked
assertion . . . gets the complaint close to stating a claim, but without some further factual
enhancement it stops short of the line between possibility and
plausibility.” 550 U.S. at
557.
Second, the facts alleged in CBC’s complaint suggest that CBC’s fundamental
frustration is with the price terms of the Reseller Agreement, rather than specific
anticompetitive behavior. Summarizing its own complaint, CBC argues that because it
“pleaded that Equifax’s unilaterally imposed contractual restrictions impair resellers’
ability to compete and that Equifax is the only source of a necessary input, the Amended
Complaint presents triable issues of fact.” Essentially, CBC disagrees with the price
terms of the contract that Equifax proposed and CBC later signed. But even where a
business carries a significant portion of the market share, antitrust law is not a
negotiating tool for a plaintiff seeking better contract terms. See Verizon Commc’ns Inc.
v. Law Offices of Curtis V. Trinko, L.L.P., 540 U.S. 398, 408 (2004); Arthur S.
Langenderfer, Inc. v. S.E. Johnson Co.,
917 F.2d 1413, 1428 (6th Cir. 1990) (“‘Section
2 of the Sherman Act does not give [plaintiffs] the exclusive right to dictate the terms
on which they will deal,’ nor does it require [the defendant] to accede to every demand
of [the plaintiffs].”) (quoting Trace X Chem., Inc. v. Canadian Indus., Ltd.,
738 F.2d
261, 266–67 (8th Cir. 1984)).
Third, to the extent that CBC alleges an impact on the Mortgage Lender Market,
the federal regulations are the more likely basis for any putative injury, and not any
specifically anticompetitive conduct on the part of Equifax. No cognizable antitrust
injury exists where the alleged injury is a “byproduct of the regulatory scheme” or
federal law rather than of the defendant’s business practices. RSA Media, Inc. v. AK
Media Group, Inc., 260 F.3d 10, 13, 15 (1st Cir. 2001); see Standfacts Credit Servs. v.
Experian Info. Solutions, Inc., 294 F. App’x 271, 272 (9th Cir. 2008) (holding that even
where the NCRA defendants held “monopoly power in the wholesale market,” plaintiff
No. 08-3261 CBC Companies, Inc. et al. v. Equifax, Inc. et al. Page 6
resellers could not succeed on their antitrust claims where the monopoly power derived
from federal requirements and not anticompetitive conduct). The district court properly
concluded that CBC’s complaint failed to allege facts sufficient to support an antitrust
injury, and thus rightly dismissed the complaint for failure to establish antitrust standing.
III.
We affirm the district court’s decision dismissing CBC’s complaint.
