First Data Merchant Services Corporation v. SecurityMetrics, Inc.
MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 11/12/2013. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FIRST DATA MERCHANT SERVICES
CORPORATION, et al.,
Civil Action No. RDB-12-2568
This action arises out of a continuing dispute between the parties following the
settlement of litigation in the United States District Court for the District of Utah. In this
action, Plaintiff First Data Merchant Services Corporation (“FDMS”) and First Data
Corporation (“FDC”) (collectively “First Data”) assert claims against Defendant
SecurityMetrics, Inc. (“SecurityMetrics”) relating to SecurityMetrics’ alleged post-settlement
misconduct. 1 Subsequently, SecurityMetrics answered the Complaint and asserted fifteen
counterclaims sounding in various doctrines of contract, trademark, and antitrust law.
Currently pending before this Court is Plaintiffs’ Motion to Dismiss Certain of Defendant’s
Specifically, FDMS’s original Complaint alleged tortious interference with existing and prospective contractual
and business relationships (Count I), false endorsement/association in violation of the Lanham Act, 15 U.S.C. §
1125(a)(1)(A) (Count II), trademark, service mark and tradename infringement in violation of the Lanham Act, 15
U.S.C. §§ 1114(1) and 1125(a)(1)(A) (Count III), false advertising in violation of the Lanham Act 15 U.S.C. § 1125
(a)(1)(b) (Count IV) and common law unfair competition (Count V). Following a stay of this action pending final
disposition of the earlier case filed in the District of Utah and the subsequent denial of FDMS’s Preliminary
Injunction Motion filed in this Court, FDMS was permitted to amend its Complaint (ECF No. 91).
The Amended Complaint (ECF No. 92) filed by both First Data Plaintiffs seeks declaratory relief (Counts I
& IX) and alleges breach of contract (Count II), common law unfair competition (Count III), tortious interference
with existing and prospective contractual and business relationships (Count IV), injurious falsehood (Count V), as
well as violations of the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a)(1)(A) (Counts VI, VII & VIII).
Counterclaims (ECF No. 163). The Motion is fully briefed. The parties’ submissions have
been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the
reasons that follow, the Motion of First Data Merchant Services Corp. and First Data
Corporation to Dismiss Certain of Defendant’s Counterclaims (ECF No. 163) is DENIED
IN PART and GRANTED IN PART. Specifically, the Motion is denied in all respects
except for Counts Eleven and Thirteen in so far as those counts allege monopolization in
violation of § 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, and § 11-204(a)(2) of the
Commercial Law Article of the Maryland Code, Md. Code, Com. Law § 11-204(a)(2).
This Court accepts as true the facts alleged in the SecurityMetrics’ counterclaims. See
Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). As this Court has already issued a
number of written opinions and letter orders in this case, and because the pending motion
only addresses certain of SecurityMetrics’ counterclaims, the Court includes only a short
summary of the relevant allegations here.
A. The Payment Card Industry
In the payment card industry, there are a few main types of service providers. An
“issuer” issues a payment card to a consumer and bills and collects amounts due from the
consumer. Def.’s Countercls. ¶ 14. The other main service is provided on the merchant
side; “once a consumer initiates a payment card transaction by offering a card to pay a
merchant for goods or services,” an “acquirer” obtains authorization for the transaction
from the consumer’s issuer and then clears and settles the transaction so that the merchant
gets paid and the consumer’s account gets charged. Id. ¶ 15. In addition, some payment
card brands or associations operate in open networks that allow separate entities or banks to
operate as issuers and acquirers; in such open networks, “processors” help to facilitate the
communication and settlement of payment. Id. ¶¶ 16, 17. FDMS is an acquirer, id. ¶ 19,
while FDC is the payment processor for FDMS’s transactions. Id. ¶ 20.
The term “PCI” was originally as an acronym for “Payment Card Industry.” Id. ¶ 21.
Now, however, the term is also used to refer to the PCI Security Standards Council (“PCI
Council”) and the PCI Data Security Standard (“PCI Standard”) managed by the PCI
American Express, Discover, JCB, MasterCard, and Visa (collectively, “Card
Brands”) formed the PCI Council in 2006. Id. ¶ 22. The PCI Council developed the PCI
Standard. The Card Brands agreed to adopt the PCI Council’s PCI Standard as their data
security compliance requirement for all merchants. Id. ¶¶ 22, 28. Thus, the Card Brands
enforce compliance with the PCI Standard and determine the penalties for non-compliance.
Id. ¶ 23.
While the PCI standard is universal, the various Card Brands have different
requirements for demonstrating or validating compliance with the standard. Id. ¶ 28. The
category at issue in this case are “Level 4 merchants”2—those merchants with the lowest
transaction volume. Id. ¶ 30. Level 4 merchants are more numerous than higher-volume
merchants and, as such, have the most collective transactions. Id. For these lower-volume
Specifically, SecurityMetrics alleges:
For PCI Standard compliance validation purposes, Visa, MasterCard, and
Discover each divide merchants into four levels; American Express divides them
into three; and JCB divides them into two. Following the classifications used by
Visa and MasterCard, the lowest-volume merchants are commonly referred to as
“Level 4 merchants.”
Def.’s Countercl. ¶ 30. The Court adopts this terminology herein.
merchants, the PCI Council provides the Self-Assessment Questionnaire (“SAQ”). Id. ¶ 26.
The SAQ is a validation tool intended to assist merchants in self-evaluating their compliance
with the PCI Standard. Id. ¶ 26.
Within the payment card industry, there are a number of different types of PCI
compliance service vendors, including: Approved Scanning Vendors (“ASVs”), Qualified
Security Assessors (“QSAs”), Payment Application Qualified Security Assessors (“PAQSAs”), PCI Forensic Investigators (“PFIs”), and Point-to-Point Encryption assessors
(“P2PEs”). The Card Brands recognize each of those certifications. Id. ¶ 24. The PCI
Council also certifies these vendors. Id. SecurityMetrics is certified by the PCI Council as an
ASV, QSA, PA-QSA, PFI, and P2PE. Id. ¶ 25. First Data has none of those certifications.
Id. ¶ 25.
B. The Relationship of the Parties
First Data is a global payment processor engaged in the business of processing credit
and debit card transactions for merchants and independent sales organizations (“ISOs”) who
use First Data’s card processing services. See Def.’s Answer ¶ 15. SecurityMetrics provided
compliance services to some merchants for whom First Data provides processing services.
Def.’s Countercls. ¶ 50.
For several years, the parties worked together pursuant to a series of contracts. Def.’s
Countercls. ¶¶ 51-55. Under those agreements, “First Data promoted SecurityMetrics to its
Level 4 merchant customers as its preferred vendor for services relating to validation of
compliance with PCI Standards, and SecurityMetrics developed and utilized a protocol for
reporting validation of compliance through what is known as the “START” system. START
is not an industry standard and it is not prescribed by the PCI Council.” Id. ¶ 55. The
agreement was last renewed on January 3, 2012. Id. ¶ 57. SecurityMetrics alleges, however,
that First Data materially breached the agreement in April 2012 and then unilaterally and
prematurely terminated it in May 2012. Id. ¶ 57. Since that point, SecurityMetrics ceased
SMART reporting and began to send emails containing links to PDF reports of compliance.
Id. ¶ 58.
SecurityMetrics alleges that in June 2012 First Data began offering a service called
“PCI Rapid Comply,” which competes with the services offered by SecurityMetrics. Id. ¶ 59.
First Data imposes billing minimums on ISOs, and SecurityMetrics alleges that, when
calculating these minimums, First Data counts fees for PCI Rapid Comply towards the
required minimums, but refuses to count costs or fees paid to vendors of other PCI
compliance services. Id. ¶ 143. In addition, SecurityMetrics asserts that First Data
represented that merchants who used compliance verification vendors other than PCI Rapid
Comply would have to pay for those services in addition to the cost of PCI Rapid Comply.
Id. ¶ 112.
In May of 2012, FDMS filed suit in First Data Merchant Services Corporation v.
SecurityMetrics, Inc., Case No. 2:12-cv-495 (“Utah Action”) in the United States District Court
for the District of Utah (“Utah Court”) and moved for a temporary restraining order and
preliminary injunction requiring SecurityMetrics to resume START reporting. Id. ¶¶ 60-61.
The Utah Court denied the motion, id. ¶ 61, and the parties entered mediation, which
resulted in the signing of Terms of Settlement (“Settlement Terms”) by both parties.3 Id. ¶
The Terms of Settlement is a one page document, reading in relevant part:
C. The Presently Pending Action
In the wake of the settlement, First Data filed the presently pending action before
this Court on August 27, 2012. See Pl.’s Compl., ECF No. 1. Following a stay of this action
pending final disposition of the Utah Action and the subsequent denial of FDMS’s
Preliminary Injunction Motion filed before this Court, FDMS was permitted to amend its
Complaint (ECF No. 91). As a result, First Data filed the Amended Complaint (ECF No.
92) on March 8, 2013. SecurityMetrics answered the Complaint on August 26, 2013 and
asserted fifteen counterclaims of its own against First Data. See ECF No. 157.
SecurityMetrics’ Counterclaims include claims for Specific Performance of the First
Settlement Term (Count I), declaratory judgment with respect to third and fifth Settlement
Terms (Counts II & III), injurious falsehoods (Count IV), federal false advertising (Count
First Data Merchant Services ("FD") and SecurityMetrics, Inc. ("SM") agree to
the following essential terms of settlement:
The parties shall incorporate these terms of settlement in a final
settlement agreement, in a form and with content mutually acceptable
to both parties, which shall be executed in advance of the $5,000,000
payment set forth in these Terms of Settlement.
FD will pay SM $5,000,000 by June 8, 2012. FD shall not owe any
additional amounts to SM, regardless of whether there are existing or
The parties shall keep confidential the terms of this settlement and
those facts and circumstances forming the basis of or that relate to
allegations that were asserted by both parties in connection with this
dispute, and shall include mutual confidentiality provisions in a final
The parties shall agree to mutual non-disparagement provisions,
consistent with the relationship of competitors in a free market place, in
a final settlement agreement. SM may make any use of Merchant Data
for the purpose of selling its products and
services, but may not sell any such data to a third-party (other than the
sale of SM to a third party).
FD shall dismiss with prejudice the lawsuit it filed in Federal Court,
and the parties hereby mutually release each other from any and all
obligations and claims, known or unknown.
Def.’s Countcl. Ex. F, ECF No. 157-6.
V), federal false endorsement (Count VI), cancellation of registration (Count VII), Utah
Deceptive Trade Practices violations (Count VIII), tortious interference (Count IX), restraint
of trade under federal and Maryland law (Counts X & XII), monopolization and attempted
monopolization under federal and Maryland law (Counts XI & XIII), Maryland predatory
pricing (Count XIV), and Maryland tying (Count XV). First Data’s Motion to Dismiss
Certain of Defendant’s Counterclaims (ECF No. 163), filed on September 19, 2013, targets
only a few of these counts. Specifically, First Data seeks to dismiss the first, fifth, part of the
sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth counterclaims.
STANDARD OF REVIEW
First Data moves to dismiss SecurityMetrics’ counterclaims pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. This Court applies the same standard of review that
would be applied to a Rule 12(b)(6) motion to dismiss a complaint. Shoregood Water Co. v.
U.S. Bottling Co., No. RDB-08-2470, 2010 WL 1923992, at *1-*2 (D. Md. May 11, 2010)
(Bennett, J.) (applying normal 12(b)(6) standard of review to a motion to dismiss
counterclaims); see also Fisher v. Virginia Elec. and Power Co., 258 F. Supp. 2d 445, 447 (E.D.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading 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). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a pleading if it fails to state a claim upon which relief can be granted. The
purpose of Rule 12(b)(6) is “to test the sufficiency of [the pleading] and not to resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that [claims] in civil actions be
alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). The Supreme Court’s decision in Twombly
articulated “[t]wo working principles” that courts must employ when ruling on Rule 12(b)(6)
motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the
factual allegations contained in the pleading, legal conclusions drawn from those facts are
not afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice” to plead a claim).
Second, a pleading must be dismissed if it does not allege “a plausible claim for
relief.” Id. at 679. Under the plausibility standard, a pleading must contain “more than
labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555.
Although the plausibility requirement does not impose a
“probability requirement,” id. at 556, “[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; see also Robertson v. Sea
Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case
against a defendant or forecast evidence sufficient to prove an element of the claim. It need only
allege facts sufficient to state elements of the claim.” (emphasis in original) (internal quotation
marks and citation omitted)). In making this assessment, a court must “draw on its judicial
experience and common sense” to determine whether the pleader has stated a plausible
claim for relief. Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its] claims across
the line from conceivable to plausible to resist dismissal.” Wag More Dogs, LLC v. Cozart, 680
F.3d 359, 365 (4th Cir. 2012) (internal quotation marks omitted).
A. First Counterclaim – Specific Performance of the First of the Terms of
SecurityMetrics seeks specific performance of the first of the Terms of Settlements
signed by First Data on May 31, 2012, which states the parties will negotiate a final
agreement with “content mutually acceptable to both parties.” SecurityMetrics alleges that
First Data proposed a draft settlement agreement on June 11, 2012 that was “represented as
acceptable to [First Data], with form and content acceptable to SecurityMetrics.” Def.’s
Countercls. ¶ 67. SecurityMetrics alleges that First Data’s refusal to execute an agreement in
the form of the June 11, 2012 draft is a breach of the first of the Settlement Terms.
In its Motion to Dismiss, First Data argues that SecurityMetrics itself rejected the
draft and, therefore, the draft was not “mutually acceptable.” In addition, First Data asserts
that Judge Shelby of the U.S. District Court for the District of Utah specifically found that
the draft that was not mutually acceptable to the parties. See Pls.’ Mem. Supp. Mot. Dismiss
Certain Countercls. (hereinafter, “Pls.’ Mot. Dismiss”), ECF No. 163, at 6. According to
First Data, Judge Shelby’s findings are the “law of the case” or appropriate for judicial
notice. Id. In opposition, SecurityMetrics argues that First Data attempts to impermissibly
introduce factual assertions inappropriate for this stage of the proceeding.
It is axiomatic that a court, when considering a motion to dismiss, may not go
beyond the complaint and any documents attached or incorporated therein. E.I. Du Pont de
Nemours v. Kolon Inds., Inc., 637 F.3d 433 (4th Cir. 2011). First Data raises factual issues not
alleged in SecurityMetrics’ Counterclaims. Accordingly, First Data’s argument fails. Nor do
the doctrines of “law of the case” or “judicial notice” support First Data, as those doctrines
do not apply to factual matters outside the complaint. See Arizona v. California, 460 U.S. 605, 618
(1983) (noting that the rule of the case doctrine applies to rules of law); Lee v. City of Los Angeles, 250
F3d 668, 690 (9th Cir. 2001) (“On a Rule 12(b)(6) motion to dismiss, when a court takes judicial
notice of another court’s opinion, it may do so not for the truth of the facts recited therein, but
for the existence of the opinion, which is not subject to reasonable dispute over its
authenticity.” (internal quotation marks omitted)).4
B. Fifth Counterclaim – Federal False Advertising
SecurityMetrics’ Fifth Counterclaim alleges that First Data has violated sections 34,
35, and 43 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, & 1125,5 by falsely stating that
merchants who use services other than PCI Rapid Comply “will have to pay for those
services in addition to paying [the] full cost for PCI Rapid Comply.” Def.’s Countercls. ¶ 112.
SecurityMetrics asserts that this statement is false because “First Data, on request, has
refunded, and will refund, amounts paid to third-party vendors by merchants who use the
services of those vendors to become compliant,” and that these statements “deter merchants
from using SecurityMetrics’ services. Def.’s Countercls. ¶¶ 113-14.
Of course, the Court’s refusal to dismiss SecurityMetrics’ First Counterclaim does not bar First Data from raising
these arguments or similar estoppel arguments on dispositive motion.
This Court will follow the common convention of referring to the individual sections of the Lanham Act rather
than the United States Code. For ease of reference, however, citations are formatted using the United States Code.
The Lanham Act prohibits commercial entities from making false statements in their
advertising. Specifically, § 43(a)(1)(B) of the Act states that:
Any person who, on or in connection with any goods or
services . . . uses in commerce any . . . false or misleading
representation of fact, which . . . , in commercial advertising or
promotion, misrepresents the nature, characteristics, qualities,
or geographic origin of his or her or another person’s goods,
services, or commercial activities, shall be liable in a civil action
by any person who believes that he or she is or is likely to be
damaged by such act.
15 U.S.C. § 1125(a)(1)(B). Thus, the Act provides a “private remedy for a commercial
plaintiff who meets the burden of proving that its commercial interests have been harmed by
a competitor’s false advertising.” Made in the USA Foundation v. Phillips Foods, Inc., 365 F.3d
278, 281 (4th Cir. 2004) (quoting Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1139 (4th
Cir. 1993)). The elements for a false advertising claim under the Lanham Act are:
(1) the defendant made a false or misleading description of fact
or representation of fact in a commercial advertisement about
his own or another's product; (2) the misrepresentation is
material, in that it is likely to influence the purchasing decision;
(3) the misrepresentation actually deceives or has the tendency
to deceive a substantial segment of its audience; (4) the
defendant placed the false or misleading statement in interstate
commerce; and (5) the plaintiff has been or is likely to be
injured as a result of the misrepresentation, either by direct
diversion of sales or by a lessening of goodwill associated with
PBM Products, LLC v. Mead Johnson & Co., 639 F.3d 111, 120 (4th Cir. 2011) (quoting Scotts
Co. v. United Industries, 315 F.3d 264, 272 (4th Cir. 2002)). With respect to the false or
misleading nature of the statement, the advertisement may be “literally false” or an “implied
falsehood” that “tend[s] to mislead or confuse consumers.” Id. (citations omitted). In the
case of literal falsehoods, a claimant need not allege nor prove evidence of consumer
deception; an implied falsehood, however, requires extrinsic evidence of confusion or
With respect to implied falsity, there is some dispute whether a failure to disclose is
actionable in the Fourth Circuit. Compare San Francisco Oven, LLC v. Fransmart, LLC, No. 05cv-700, 2005 WL 1838125 (E.D. Va. July 27, 2005) (“Under Fourth Circuit caselaw,
however, a Lanham Act cause of action requires an affirmative statement that is false or
misleading. (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1138-39 (4th Cir. 1993))) with
Am. Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411, 1440 (E.D.N.C. 1986)
(“A statement actionable under the Lanham Act may be the product of an affirmatively
misleading statement, a partially correct statement, or a failure to disclose a material fact or
facts.” (citing Skil Corp. v. Rockwell Int’l Corp., 375 F. Supp. 777, 783 n.11 (N.D. Ill. 1974))).6
Here, First Data argues that SecurityMetrics’ Fifth Counterclaim must be dismissed
because the statements alleged are literally true and that the counterclaim is impermissibly
premised upon a failure to disclose rather than a material falsehood. See Pls.’ Mot. Dismiss,
at 8. In contrast, SecurityMetrics argues that it’s counterclaim is premised upon affirmative
misstatements because First Data’s advertising states that merchants “will pay” the additional
cost and that, even if the statements are not literally false, they are sufficiently misleading and
confusing for sanction under the Lanham Act.
Def.’s Opp’n, at 19-20.
SecurityMetrics’ Counterclaim is articulable as an affirmative misstatement—i.e., that
The cases from the U.S. Court of Appeals for the Fourth Circuit contain similarly contradictory statements.
Compare P. Lorillard Co. v. Federal Trade Commission, 186 F.2d 52 (4th Cir. 1950) (“To tell less than the whole
truth is a well known method of deception.”) with Matarki, 7 F.3d at 1139 (rejecting Lanham Act claim that
defendant’s act of putting a drug on the market constituted a false statement that the defendant’s drug had received
merchants will pay for the service but that some do not because of the refund—this Court
finds that SecurityMetrics has stated a plausible claim.7
C. Sixth Counterclaim – False Endorsement
In its Sixth Counterclaim, SecurityMetrics alleges that First Data’s use of the phrase
“PCI” in the name of its “PCI Rapid Comply” service is likely to cause merchants and
others to incorrectly believe that the service is associated with or approved by the PCI
Council; accordingly, SecurityMetrics alleges that First Data has violated sections 34, 35, and
43 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, 1125.8
First Data attacks the false endorsement counterclaim on the basis of standing.
Specifically, First Data argues that, because SecurityMetrics does not own any mark
confusingly similar to First Data’s “PCI Rapid Comply” mark, SecurityMetrics has no cause
of action under § 43 of the Lanham Act.9 In opposition, SecurityMetrics asserts that it has
standing to sue because it is harmed by First Data’s use of a misleading mark. In particular,
SecurityMetrics argues that the Lanham Act provides broad protections that were enacted to
prevent the type of harm suffered by SecurityMetrics—i.e., harm caused by the use of a
misleading mark (regardless of the ownership of that mark). See Def.’s Opp’n, at 22-23.
A claim of false endorsement arises when the name, symbol, or other identifying
likeliness is “used in such a way as to deceive the public into believing that [the plaintiff]
Moreover, because SecurityMetrics has stated a claim for affirmative misstatement, this Court need not determine
the legal viability of a false advertising claim premised upon a failure to disclose. See supra note 6 & accompanying
In its Opposition brief, SecurityMetrics asserts that its Sixth Counterclaim is brought pursuant to § 43(a)(1)(A).
See Def.’s Opp’n, at 20.
First Data states that it seeks only partial dismissal of the Sixth Counterclaim; specifically, it claims to only seek
dismissal based on “misleading product designations,” not “false statements.” See Pls.’ Mot. Dismiss, at 9.
endorsed, sponsored, or approved of the defendant’s product.” Mktg. Products Mgmt., LLC v.
Healthandbeautydirect.com, Inc., 333 F. Supp. 2d 418, 430 (D. Md. 2004) (quoting v. Discovery
Communications, Inc., 200 F.Supp.2d 512, 522 (D. Md. 2002)). Notably, § 43 “goes beyond
trademark protection.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 28-29
(2003). Specifically, section 43(a)(1)(A) of the Lanham Act, which defines the scope of a
false endorsement claim, states that:
Any person who, on or in connection with any goods or
services . . . uses in commerce any word, term, name, symbol, or
device, or any combination thereof, or any false designation of
origin, false or misleading description of fact, or false or
misleading representation of fact, which . . . is likely to cause
confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with
another person, or as to the origin, sponsorship, or approval of
his or her goods, services, or commercial activities by another
person, or . . . shall be liable in a civil action by any person who
believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(A).
Thus, there are three distinct individuals involved in the
statutory analysis—(1) the user/defendant; 10 (2) the misrepresented party; 11 and (3) the
plaintiff.12 First Data asserts that the misrepresented party and the damaged party must be
one and the same, Pls.’ Mot. Dismiss, at 9, while SecurityMetrics argues that the statute does
not so require. See Def.’s Opp’n, at 22.
The “user” is the “person who, on or in connection with any goods or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin,
false or misleading description of fact, or false or misleading representation of fact . . . .” § 1125(a)(1).
The “misrepresented party” is the person whose “affiliation, connection, or association” is misappropriated by the
user. § 1125(a)(1)(A).
The “plaintiff” is the person who files the “civil action” because he or she “believes that he or she is likely to be
damaged” by the user’s act. § 1125(a).
Both parties agree that not every individual qualifies as a permissible false
endorsement plaintiff. For example, consumers lack standing to bring a Lanham Act claim.
See Made in the USA Foundation, 365 F.3d at 281. Moreover, plaintiffs must have some sort of
commercial or competitive interest (although the extent of that interest varies among the
various circuits of the U.S. Courts of Appeal). Id. Only a few courts, however, have directly
addressed the precise question at issue here—i.e., whether a plaintiff must have some type of
interest in the mark itself.
In support of its position, SecurityMetrics cites to Famous Horse Inc. v. 5th Avenue Photo
Inc., 624 F.3d 106 (2d Cir. 2010). In that case, the U.S. Court of Appeals for the Second
Circuit noted that “none of the various test [for determining standing under the Lanham
Act] . . . hold that only the owner of a trademark has standing.” Id. at 111 (emphasis added).
Accordingly, the Second Circuit held that a retailer had standing to sue another retailer
selling counterfeit designer jeans even though the designer—not the plaintiff retailer—
owned the mark. Id. at 115.
First Data, on the other hand, arguing that false endorsement is a form of trademark
infringement, points to Advanced Resources International, Inc. v. Tri-Star Petroleum Co., 4 F.3d 327
(4th Cir. 1993), where the Fourth Circuit purportedly “presuppose[d]” that the plaintiff must
protect “its own name or mark.” Pls.’ Mot. Dismiss, at 10. Although the language from
Advanced Resources does connect the plaintiff and the misrepresented party, the quotation is
drawn merely from a summary of other courts’ conclusions. See 4 F.3d at 334 (“Those
courts recognized a § 43(a) injury where the plaintiff’s voices, uniforms, likenesses, published
words, or names were used in such a way as to deceive the public into believing that they
endorsed, sponsored, or approved of the defendant’s product.”). Moreover, the Fourth
Circuit gave no indication that it intended to limit § 43(a) actions to only those situations
where the plaintiff could claim an ownership interest rather than a business interest. Cf. id.
(describing cases where the plaintiff and misrepresented party are one and the same as
As this Court sees no contradiction between Famous Horse and Advanced Resources
International, this Court finds Famous Horse persuasive.
Indeed, the Second Circuit’s
conclusion is the most consistent with the statutory language. Section 43(a)(1) states that a
plaintiff may be “any person who believes that he or she is or is likely to be damaged by such
act.” Thus, the only qualification relates to damage suffered. Based on the purpose of the
statue—protecting those engaged in congressionally regulated commerce against unfair
competition—courts have limited the type of damage covered—i.e, damage to commercial
or competitive interests.
See Made in the USA Foundation, 365 F.3d at 280-81.
SecurityMetrics has in fact alleged damaged to its commercial interests and its ability to stay
competitive in the marketplace. Accordingly, this Court finds that the SecurityMetrics’ lack
of an ownership or proprietary interest in the PCI term is not grounds for dismissal at this
D. Seventh Counterclaim – Cancellation of Registration
SecurityMetrics’ Seventh Counterclaim seeks to cancel First Data’s registered
trademark in “PCI Rapid Comply” pursuant to section 37 of the Lanham Act, 15 U.S.C. §
First Data also cites to National Licensing Ass’n v. Inland Joseph Fruit Co., 361 F. Supp. 2d 1244 (E.D. Wash.
2004); Kam Lee Yuen Trading Co. v. Hocean, Inc., No. 10-455 SC, 2010 WL 3155812 (N.D. Cal. Aug. 9, 2010).
The Court notes that those cases are not binding authority on this Court and finds them distinguishable based upon
the interests raised.
1119. Specifically, SecurityMetrics alleges that First Data’s mark is “likely to cause confusion
or to deceive” due to the similarity of First Data’s mark to those registered by the PCI
Council, including the mark “PCI Security Standards Council.” Def.’s Countercls. ¶ 126.
First Data argues that, because SecurityMetrics does not own any mark confusingly
similar to First Data’s “PCI Rapid Comply” mark, SecurityMetrics has no cause of action
under the Lanham Act. See Pls.’ Mot. Dismiss, at 11-12. In opposition, SecurityMetrics
asserts that it has standing to sue because it is harmed by First Data’s use of a misleading
mark. In particular, SecurityMetrics argues that the Lanham Act provides broad protections
that were enacted to prevent the type of harm suffered by SecurityMetrics—i.e., harm caused
by the use of a misleading mark (regardless of the ownership of that mark). See Def.’s
Opp’n, at 22-23.
The Lanham Act permits federal courts to order the cancellation of trademark
registrations. 15 U.S.C. § 1119. Specifically, section 14 of the Act permits a cancellation
action by “any person who believes that he is or will be damaged . . . .”14 15 U.S.C. § 1064.
However, in order to prevent frivolous litigation brought by “mere intermeddler[s],” Lipton
Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 1029 (C.C.P.A. 1982), a litigant must establish
a “real interest in the proceeding.” Int’l Order of Job’s Daughters v. Lindeburg & Co., 727 F.2d
1087, 1092 (Fed. Cir. 1984) (internal quotation marks omitted). In evaluating this standing
requirement, ownership or control of the name or mark is not dispositive. Universal Oil
Prods. Co. v. Rexall Drug & Chem. Co., 463 F.2d 1122, 124 (C.C.P.A. 1972) (“Control over the
mark or name relied upon is not determinative of standing to oppose.”); see also Jewelers
Based on the timing of the suit, certain other further requirements may be applicable. See 15 U.S.C. § 1064.
These requirements have not been raised here.
Vigilance Committee v. Ullenberg Corp., 823 F.2d 490, 493 (Fed. Cir. 1987) (“There is no
question that a trade association, having a real interest in the outcome of the proceedings,
may maintain an opposition without proprietary rights in a mark or without asserting that it
has a right or has an interest in using the alleged mark sought to be registered by an
applicant. This is true irrespective of the grounds upon which the opposer relies in asserting
the nonregistrability of [the] applicant’s mark.”).15
Here, SecurityMetrics does not assert any ownership interest in the mark.
Nevertheless, SecurityMetrics alleges that the registration of “PCI Rapid Comply” is “likely
to cause confusion or to deceive” and, in fact, has already caused such harm. Def.’s
Countercls. ¶¶ 126-27. Thus, SecurityMetrics has standing to seek cancellation of the mark
as an entity believing it will be damaged. See 15 U.S.C. § 1064.
are sufficiently pled to avoid dismissal at this stage of the proceeding.
E. Tenth & Twelfth Counterclaims – Restraint of Trade
SecurityMetrics also alleges that First Data has engaged in conduct that restrains trade
in violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and § 11-204(a)(1) of the
Commercial Law Article of the Maryland Code. SecurityMetrics alleges, “[o]n information
and belief,” that First Data has a number of contracts with various independent sales
In its Motion to Dismiss, First Data cites to several district court opinions for the proposition that standing to
maintain a cancellation action requires a commercial or economic interest in the disputed mark. See Pl.’s Mem.
Supp. Mot. Dismiss Certain Countercl., at 12 (citing to Akhenaten v. Najee, LLC, 544 F. Supp. 2d 320, 332
(S.D.N.Y. 2008); Gen. Healthcare Ltd. v. Qashat, 254 F. Supp. 2d 193, 204 (D. Mass. 2003); Fed. Treasury Enter.
Sojuzplodoimport v. Spirits Int’l B.V., 2011 WL 4005321, at *6-8 (S.D.N.Y. Sept. 1, 2011); Yurman Design Inc. v.
Chaindom Enters., Inc., 2000 WL 897141, at *4 (S.D.N.Y. July 5, 2000)). This Court does not find those cases to
be persuasive in the discussion here. In particular, none of the cited cases are from the Fourth Circuit or this Court.
Instead, the Federal Circuit (and its predecessor, the United States Court of Customs and Patent Appeals), which
reviews the decisions of the Trademark Trial and Appeal Board, is the more persuasive authority.
organizations (“ISOs”)16 that tie the cost of processing services to First Data’s PCI Rapid
Comply program by counting the costs of PCI Rapid Comply towards the ISOs billing
minimums but refusing to count the fees paid to other vendors. Def.’s Countercls. ¶ 143.
Moreover, because ISOs have “de facto control over their merchants’ selection of PCI
compliance vendors,” SecurityMetrics argues that First Data has incentivized the use of First
Data’s PCI Rapid Comply service in order to restrain commerce.
Id. ¶¶ 148-49.
Additionally, SecurityMetrics alleges that “First Data has market power in the payment card
transaction market, including without limitation the market for acquirer and processor
services,” id. ¶ 145, and that First Data has restrained trade and creates “a dangerous
probability that [First Data] will have further success in restraining trade, as intended, by
entering into its contracts with ISOs,” id. ¶ 146 and “by incentivizing ISOs to use their
control to have their merchants use PCI Rapid Comply.” Id. ¶ 150.
Section 1 of the Sherman Antitrust Act 17 prohibits contracts, combinations, or
conspiracies that restrain interstate commerce. 15 U.S.C. § 1 (“Every contract, combination
in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be illegal.”).18 The elements of a claim
under § 1 are “(1) a contract, combination, or conspiracy; (2) that imposed an unreasonable
restraint of trade.” Dickson v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002).
As indicated supra, ISOs are “third-party sales organizations that associate with acquirers and payment processors
to find, open, aggregate, and manage merchant processing accounts.” Def.’s Countercl. ¶ 90.
Following the convention laid out above, this Court will refer to sections of the Sherman Antitrust Act in-text but
will cite to the United States Code.
Similarly, § 11-204(a)(1) of the Commercial Law Article of the Maryland Code states that “[a] person may not . . .
[b]y contract, combination, or conspiracy with one or more other persons, unreasonably restrain trade or commerce.”
In construing this provision, the courts are to be “guided by the interpretation given by the federal courts to the
various federal statutes dealing with the same or similar matters.” Md. Code, Commercial Law, § 11-202(a)(2).
SecurityMetrics’ Counterclaims, however, are tying claims, which receive slightly
different treatment under § 1 of the Sherman Antitrust Act.
arrangements arise when a party agrees “to sell one product [(the “tying product”)] but only
on the condition that the buyer also purchases a different (or tied) product . . . .” N. Pac. Ry.
Co. v. United States, 356 U.S. 1, 5, 78 S. Ct. 514, 518, 2 L. Ed. 2d 545 (1958); see also Jefferson
Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12 91984) (“The essential characteristic of an
invalid tying arrangement lies in the seller’s exploitation of its control over the tying product
to force the buyer into the purchase of a tied product that the buyer . . . might have
preferred to purchase elsewhere on different terms.”). Some tying arrangements—those
deemed to “pose an unacceptable risk of stifling competition”—are per se unreasonable:
To establish a per se tying claim under section 1, a plaintiff must
prove (1) the existence of two separate products, (2) an
agreement conditioning purchase of the tying product upon
purchase of the tied product (or at least upon an agreement not
to purchase the tied product from another party), (3) the seller's
possession of sufficient economic power in the tying product
market to restrain competition in the tied product market, and
(4) a not insubstantial impact on interstate commerce. See
generally Jefferson Parish, 466 U.S. at 12–16, 18–21, 104 S. Ct. at
Service & Training, Inc. v. Data General Corp., 963 F.2d 680, 683 (4th Cir. 1992) (footnotes
One of First Data’s main contentions is that SecurityMetrics has not adequately
alleged the second element—i.e., the conditioning (or tying) of the purchase of one product
on the other. See, e.g., Pl.’s Reply, ECF No 178, at 11-12. However, SecurityMetrics alleges
that First Data requires ISOs to count fees paid for PCI Rapid Comply (but not fees for
services provided by other compliance service providers) towards the ISO billing minimums.
Def.’s Countercls. ¶ 143. Thus, SecurityMetrics alleges that First Data’s billing structure ties
its processing services and compliance services. Accordingly, SecurityMetrics has plausibly
alleged a tying arrangement.
First Data also argues that SecurityMetrics failed to define the applicable market or
First Data’s power within that market as required for the third element of a tying claim. See
Pls.’ Mot. Dismiss, at 15-16. Specifically, First Data protests that SecurityMetrics has failed
to identify a relevant product or service market or a relevant geographical market. Id. at 1617. SecurityMetric’s Counterclaims, however, identify the relevant products (processing and
compliance services) and the relevant geographical market (Maryland and interstate and
international commerce). See Def.’s Countercls. ¶¶144, 160; cf. E.I. Du Pont de Nemours v.
Kolon Inds., Inc., 637 F.3d 435 (4th Cir. 2011) (“Because market definition is a deeply factintensive inquiry, courts hesitate to grant motions to dismiss for failure to plead a relevant
product market.” (quoting Todd v. Exxon Corp., 275 F.3d 191, 199 (2d Cir. 2001))).
Moreover, SecurityMetrics has alleged that “First Data has market power in the payment
card transaction market, including without limitation the market for acquirer and processor
services.” Def.’s Countercls. ¶ 145.
In addition, First Data argues that the Tenth and Twelfth Counterclaims fail because
SecurityMetrics has merely alleged an express contract and not an agreement to restrain
trade. See Pls.’ Mot. Dismiss, at 20-21. SecurityMetrics has alleged, however, that First
Data’s billing practices create a combination between First Data and ISOs, thereby causing
merchants to pay for First Data’s PCI Rapid Comply service. Accord Systemcare, Inc. v. Wang
Laboratories Corp., 117 F.3d 1137, 1145 (10th Cir. 1997) (“[A] contract between a buyer and
seller satisfies the concerted action element of section 1 of the Sherman Antitrust Act where
the seller coerces a buyer's acquiescence in a tying arrangement imposed by the seller.”).
First Data next protests the combination of FDMS and its corporate parent FDC.
Early in its Counterclaims, SecurityMetrics distinguishes FDMS as the acquirer and FDC as
the processor in its operations. Def.’s Countercls. ¶¶ 19-20. As SecurityMetrics’ antitrust
Counterclaims involve those two entities’ activities in those roles, the use of the collective
term “First Data” is not inappropriate here.
First Data’s next argument pertains to purportedly insufficient allegations regarding
market-wide harm to competition.
Specifically, First Data argues that mere injury to
SecurityMetrics is insufficient because there is no allegation of actual adverse effect to
competition in the market. Pls.’ Mot. Dismiss, at 18-19. Indeed, “[t]he elimination of a
single competitor, standing alone, does not prove [the] anticompetitive effect.” Military Servs.
Realty, Inc. v. Realty Consultants of Va., 823 F.2d 829, 832 (4th Cir. 1987). Nevertheless, at this
stage of the proceeding, SecurityMetrics has alleged anticompetitive injury by alleging actions
that restrain trade and discourage the use of competing products. Def.’s Countercls. ¶¶ 14650.
F. Eleventh & Thirteenth Counterclaims – Monopolization and Attempted
Similarly, SecurityMetrics alleges that First Data’s pricing with respect to processing
services and PCI Rapid Comply violates § 2 of the Sherman Antitrust Act, 15 U.S.C. § 2.
First Data opposes the claims on the same basic grounds as those raised under the Tenth
and Twelfth Counterclaims.
Section 2 of the Sherman Antitrust Act states that “[e]very person who shall
monopolize, or attempt to monopolize, or combine or conspire with any other person . . . to
monopolize any part of the trade or commerce” has violated the Act and is subject to
penalties. 15 U.S.C. § 2.19 A monopolization claim under § 2 of the Sherman Antitrust Act
requires a claimant to demonstrate two elements: (1) “the possession of monopoly power in
the relevant market; and (2) “the willful acquisition or maintenance of that power as
distinguished from growth or development as a consequence of a superior product, business
acumen, or historic accident.” Verizon Communications Inc. v. Law Offices of Curst V. Trinko,
LLP, 540 U.S. 398, 408 (2004).
First Data reiterates its market power argument with respect to the monopolization
claim; specifically, First Data argues that monopolization requires control of 70% to 100%
of the relevant market under Fourth Circuit law and that, as such, SecurityMetrics’
monopolization counts fails. Indeed, although SecurityMetrics has alleged market power for
purposes of a tying agreement, its allegations fall short of what is required for monopoly
power pursuant to a § 2 monopolization claim. Cf. R. J. Reynolds Tobacco Co. v. Philip Morris
Inc., 199 F. Supp. 2d 362, 394 (M.D.N.C. 2002), aff'd sub nom. RJ Reynolds Tobacco Co. v.
Philip Morris USA, Inc., 67 F. App'x 810 (4th Cir. 2003), (“[M]onopoly power is a higher
degree of power than market power.”); E.I. Du Pont De Nemours, 637 F.3d at 451 (noting that
Similarly, § 11-204(a)(2) of the Commercial Law Article of the Maryland Code provides:
A person may not . . . Monopolize, attempt to monopolize, or combine or
conspire with one or more other persons to monopolize any part of the trade or
commerce within the State, for the purpose of excluding competition or of
controlling, fixing, or maintaining prices in trade or commerce.
Md. Code, Com. Law § 11-204(a)(2). As noted supra, the interpretation of the Maryland antitrust statute is to be
“guided by the interpretation given by the federal courts to the various federal statutes dealing with the same or
similar matters.” Md. Code, Commercial Law, § 11-202(a)(2).
monopolization was adequately pled where the claimant specifically alleged that, inter alia, (1)
numerous barriers to entry into the market existed; (2) the alleged monopolist had long
dominated the market; and (3) that the alleged monopolist controlled over 70% of the
With respect to attempted monopolization, however, SecurityMetrics has satisfied its
burden at this stage. An attempted monopolization claim requires a claimant to show: “(1)
the use of anticompetitive conduct; (2) with specific intent to monopolize; and (3) a
dangerous probability of success.” E.I. Du Pont de Nemours v. Kolon Inds., Inc., 637 F.3d 435
(4th Cir. 2011).
SecurityMetrics argues that it has alleged specific acts in furtherance of
monopolization; specifically, SecurityMetrics points to First Data’s alleged tying and
predatory pricing allegations. 20 SecurityMetrics has also alleged that First Data “willfully
acquired and willfully maintained its market power.” Def.’s Countercls. ¶ 157.
In addition, SecurityMetrics has adequately demonstrated the third element—a
dangerous probability of success.
While market share is particularly relevant to the
dangerous probability of success, the element may also be demonstrated by allegations of
barriers to entry into the market or “unjustified exclusionary conduct.” Rescue Phone, Inc. v.
Enforcement Tech. Group, Inc., No. 1:07-cv-58, 2007 WL 2045514, at *4 (E.D. Va. July 9, 2007).
Moreover, the relevance of this third element “is tempered by evidence of the other two
In addition, SecurityMetrics argues that its allegations with respect to the bundled discounts provided to ISOs, the
use of allegedly “baseless” litigation, and the use of a “misinformation campaign” to convince ISOs that
SecurityMetrics cannot use merchant data for selling its products or services are all also sufficient to support its
attempted monopolization claim. Def.’s Opp’n, at 42-46.
elements of the claim.” M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981
F.2d 160, 168 (4th Cir. 1992).
As noted above, SecurityMetrics has alleged anticompetitive acts, and those specific
allegations are bolstered by conduct alleged elsewhere in the Counterclaims. For example,
SecurityMetrics alleges a refusal to abide by the Settlement Terms and accept SecurityMetrics
compliance reporting, Def.’s Countercls. ¶ 85, and various false statements intended to
mislead SecurityMetrics’ customers. See, e.g., Def.’s Countercls. ¶¶97-99. In light of this
alleged exclusionary conduct, SecurityMetrics has adequately alleged a dangerous probability
of success, “albeit the failure to allege market share weakens the claim considerably.” Rescue
Phone, Inc. v. Enforcement Tech. Grp., Inc., No. 2:07-cv-58, 2007 WL 2045514 (E.D. Va. July 9,
Accordingly, this Court finds that SecurityMetrics has adequately pled attempted
monopolization, but has failed to state a claim for monopolization. Thus, SecurityMetrics
Eleventh and Thirteenth Counterclaims will be dismissed to the extent that they allege
monopolization pursuant to § 2 of the Sherman Antitrust Act and § 11-204(a)(2) of the
Commercial Law Article of the Maryland Code.
G. Fourteenth Counterclaim – Maryland Predatory Pricing
SecurityMetrics argues that “First Data’s discount on various processing-related
services for ISOs that abandon SecurityMetrics for PCI Rapid Comply” constituted illegal
predatory pricing under Maryland law. Def.’s Countercls. ¶ 167. Section 11-204(a)(3)
provides that a person may not:
Directly or indirectly discriminate in price among purchasers of
commodities or services of like grade and quality, if the effects
of the discrimination may:
(i) Substantially lessen competition;
(ii) Tend to create a monopoly in any line of trade or
(iii) Injure, destroy, or prevent competition with any
person who grants or knowingly receives the benefit of
the discrimination or with customers of either of them;
Md. Code, Com. Law § 11-204(a)(3). First Data’s Motion does not directly address the
counterclaim, but instead relies upon the same arguments raised for the various federal
claims. SecurityMetrics, however, has alleged that First Data’s actions would substantially
lessen competition in general and injures and prevents competition with First Data. Thus, it
has stated a claim for predatory pricing under Maryland law.
H. Fifteenth Counterclaim – Maryland Tying
Finally, SecurityMetrics alleges that “First Data’s tying of ISO pricing for processingrelated services to each ISO’s displacement of SecurityMetrics by PCI Rapid Comply . . .
may substantially lessen competition for, and tend to create a monopoly over, compliance,
validation, and reporting services to Level 4 merchants relating to the PCI Standard, within
Maryland—in violation of Maryland Commercial Law Code § 11-204(a)(6), subdivisions (i)
and (ii).” Section 11-204(a)(6) provides that a person may not:
Lease or make a sale or contract for the sale of a patented or
unpatented commodity or service for use, consumption,
enjoyment, or resale, or set a price charged for the commodity
or service or discount from or rebate on the price, on the
condition, agreement, or understanding that the lessee or
purchaser will not use or deal in the commodity or service of a
competitor of the lessor or seller, if the effect of the lease, sale,
or contract for sale or the condition, agreement, or
(i) Substantially lessen competition; or
(ii) Tend to create a monopoly in any line of trade or
Md. Code, Com. Law § 11-204(a)(6). First Data does not present any new argument to
address this claim but again merely asserts that its arguments with respect to the federal
claims are sufficient to warrant dismissal of the state claims as well. As this Court finds
those arguments inadequate to support dismissal at this stage of the proceeding under
federal law, this Court sees no reason to dismiss SecurityMetrics’ Fifteenth Counterclaim.
For the reasons stated above, the Motion of First Data Merchant Services Corp. and
First Data Corporation to Dismiss Certain of Defendant’s Counterclaims (ECF No. 163) is
DENIED IN PART and GRANTED IN PART. Specifically, the Motion is denied in all
respects except for Counts Eleven and Thirteen in so far as those counts allege
monopolization in violation of § 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, and § 11204(a)(2) of the Commercial Law Article of the Maryland Code, Md. Code, Com. Law § 11204(a)(2).
A separate Order follows.
November 12, 2013
Richard D. Bennett
United States District Judge
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