United Wholesale Mortgage, Llc's Motion To Dismiss America's Moneyline, Inc.'s Amended Counterclaim

Case 2:22-cv-10228-LJM-EAS ECF No. 27, PageID.
401 Filed 04/19/23 Page 1 of 36
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED WHOLESALE MORTGAGE, LLC
Plaintiff/Counter-Defendant Case No. 22-cv-10228

Hon. Laurie J. Michelson
v.
AMERICA’S MONEYLINE, INC
Defendant/Counter-Plaintiff
__________________________________________________________________/
UNITED WHOLESALE MORTGAGE, LLC’S MOTION TO DISMISS

AMERICA’S MONEYLINE, INC.’S AMENDED COUNTERCLAIM
United Wholesale Mortgage, LLC (“UWM”) moves, under Fed. R. Civ. P.
12(b)(6), to dismiss America’s Moneyline, Inc.’s (“AML”) Amended
Counterclaim because it fails to state a claim for relief. In support, UWM submits
the following Brief in Support of this Motion to Dismiss.
Under Local Rule 7.1(a), there was a conference between the attorneys for
the parties in which UWM explained the nature of this Motion and its legal basis
and requested, but did not obtain, concurrence in the relief sought.
WHEREFORE, UWM respectfully requests that the Court grant this Motion
and dismiss AML’s Amended Counterclaim.
Respectfully submitted,
By: /s/ Moheeb H. Murray
Moheeb H. Murray (P63893)
Mahde Y. Abdallah (P80121)
Case 2:22-cv-10228-LJM-EAS ECF No. 27, PageID.402 Filed 04/19/23 Page 2 of 36
BUSH SEYFERTH PLLC

100 West Big Beaver Road, Suite 400
Troy, MI 48084
T/F: (248) 822-7800
[email protected]
[email protected]
Attorneys for United Wholesale Mortgage, LLC
Dated: April 19, 2023


SOUTHERN DIVISION

v.
AMERICA’S MONEYLINE, INC.
__________________________________________________________________/
UNITED WHOLESALE MORTGAGE, LLC’S BRIEF IN SUPPORT OF

ITS MOTION TO DISMISS AMERICA’S MONEYLINE, INC.’S
AMENDED COUNTERCLAIM
Table of Contents
Page(s)
I. Introduction......................................................................................................1
II. Summary of Factual Allegations .....................................................................3
A. AML Is a Mortgage Broker in a Vertical Relationship with

Wholesale Mortgage Lenders Like UWM and Rocket. ........................3
B. The Alleged “Wholesale Mortgage Lending” Market. .........................4
C. UWM Announced the Amendment to Combat Practices

Harmful to Wholesale Mortgage Brokers. ............................................4
D. Brokers and Trade Associations Engaged in a Robust

Discussion of the Amendment Following Its Announcement. .............6
E. AML’s Agreement to the Amendment and Repeated Breaches. ..........6
F. AML’s Allegations of “Anticompetitive” Effects. ...............................7
G. AML’s Prior Counterclaim and UWM’s First Motion to

Dismiss. .................................................................................................8
III. Standard of Review..........................................................................................9
IV. Argument .........................................................................................................9
A. AML’s Claims Rest on a Legally Unsustainable Assertion That

the Relevant Market Is “Wholesale Mortgage Lending.” .....................9
1. AML Has Not Plausibly Alleged That “Wholesale

Mortgage Lending” Is the Relevant Market Under the
Applicable Legal Standard of Interchangeability. ....................10
2. AML’s Allegations Demonstrate That the Actual

Relevant Market Is All Residential Mortgages. .......................12
i
B. AML Fails to State a Claim for a Per Se Illegal Group Boycott

in Violation of Section 1 of the Sherman Act (Count I). ....................15
1. AML Does Not Plead a Per Se Illegal Group Boycott

Based on a Horizontal Agreement Between UWM and Its
Competitors. ..............................................................................15
2. AML’s Allegations Do Not Demonstrate Market Power

Sufficient to Support a Per Se Violation of Section 1. .............18
C. AML Fails to State a Claim for Unreasonable Restraint of

Trade in Violation of Section 1 of the Sherman Act (Count II). ........20
D. AML Fails to State a Claim for Attempt to Monopolize in

Violation of Section 2 of the Sherman Act (Count III).......................23
E. AML’s State Antitrust Claims and Declaratory Judgment Claim

(Counts IV to XII) Fail in Tandem with the Federal Claims. .............25
V. Conclusion .....................................................................................................25
ii
Table of Authorities
Cases
All Care Nsg. Ser. v. High Tech Staffing Serv.,
135 F.3d 740 (11th Cir. 1998) ..............................................................................25
Am. Prof’l Testing Serv., Inc. v. Harcourt Brace Jovanovich
Legal & Prof’l Publ’ns, Inc.,
108 F.3d 1147 (9th Cir. 1997) ..............................................................................24
B & H Med., LLC v. ABP Admin., Inc.,
354 F. Supp. 2d 746 (E.D. Mich. 2005) ...............................................................14
Bailey v. Allgas, Inc.,
284 F.3d 1237 (11th Cir. 2002) ............................................................................24
Bassett v. Nat’l Coll. Athletic Ass’n,
528 F.3d 426 (6th Cir. 2008) ..................................................................................9
Betkerur v. Aultman Hosp. Ass’n,
78 F.3d 1079 (6th Cir. 1996) ................................................................................16
Blue Cross Blue Shield v. Marshfield Clinic,
65 F.3d 1406 (7th Cir. 1995) ................................................................................24
ComSpec Int’l, Inc. v. Uniface B.V.,
No. 2:20-cv-10067-TGB-EAS, 2021 WL 4169726
(E.D. Mich. Sep. 14, 2021)...................................................................................11
Conwood Co., L.P. v. U.S. Tobacco Co.,
290 F.3d 768 (6th Cir. 2002) ................................................................................24
Cty. of Tuolumne v. Sonora Cmty. Hosp.,
236 F.3d 1148 (9th Cir. 2001) ..............................................................................25
Ehredt Underground v. Commonwealth Edison,
90 F.3d 238 (7th Cir. 1996) ..................................................................................22
EnviroPak Corp. v Zenfinity Capital, LLC,
No. 4:14-CV-00754, 2015 WL 331807 (E.D. Mo. Jan. 23, 2015) ......................22
Expert Masonry, Inc. v. Boone Cnty.,
440 F.3d 336 (6th Cir. 2006) ................................................................................17
Fed. Trade Comm’n v. Ind. Fed. of Dentists,
476 U.S. 447 (1986) ...................................................................................... 16, 19
iii
Found. for Interior Design Educ. Research v. Savannah Coll. of Art Sci.,
244 F.3d 521 (6th Cir. 2001) ................................................................................11
Found. for Interior Design Educ. Research v. Savannah Coll. of Art Sci.,
73 F. Supp. 2d 829 (W.D. Mich. 1999)
aff’d, 244 F.3d 521 (6th Cir. 2001) ......................................................................13
Found. for Interior Design, 244 F.3d at 530 ...........................................................21
Hand v. Cent. Transp., Inc.,
779 F.2d 8 (6th Cir. 1985) ....................................................................................23
Hobart-Mayfield, Inc. v. Nat’l Operating Comm. on Stds. for Athletic Equip.,
48 F.4th 656 (6th Cir. 2022) .................................................................................25
In re Cardizem CD Antitrust Litig.,
105 F. Supp. 2d 618 (E.D. Mich. 2000) ........................................................ 11, 14
Ky. Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc.,
588 F.3d 908 (6th Cir. 2009) ................................................................... 10, 11, 12
Mich. Division-Monument Builders v. Mich. Cemetery Ass’n,
458 F. Supp. 2d 474 (E.D. Mich. 2006) .................................................. 10, 11, 13
Monsanto Co. v. Spray-Rite Serv. Corp.,
465 U.S. 752 (1984) .............................................................................................18
Nat’l Hockey League Players Ass’n v. Plymouth Whalers Hockey Club,
419 F.3d 462 (6th Cir. 2005) ................................................................................21
NHL Players’ Ass’n v. Plymouth Whalers Hockey Club,
325 F.3d 712 (6th Cir. 2003) ......................................................................... 10, 16
Nw. Wholesale Stationers v. Pac. Stationery,
472 U.S. 284 (1985) .............................................................................................19
NYNEX Corp. v. Discon,
525 U.S. 128 (1998) ...................................................................................... 16, 18
Okavage Grp., LLC v. United Wholesale Mortg.,
No. 3:21-CV-448, 2022 WL 17478298 (M.D. Fla. July 27, 2022) ............. passim
Paddock Pubs., Inc. v. Chicago Tribune Co.,
103 F.3d 42 (7th Cir. 1996) ..................................................................................22
PNY Techs., Inc. v. Sandisk Corp.,
No. 11-CV-04689, 2014 WL 1677521 (N.D. Cal. Apr. 25, 2014) ......................22
Pro Search Plus, LLC v. VFM Leonardo, Inc.,
No. 8:12-CV-02102, 2013 WL 3936394 (C.D. Cal. July 30, 2013) ....................22
iv
Prod. Sols. Int’l v. Aldez Containers, LLC,

46 F.4th 454 (6th Cir. 2022) ...................................................................................9
PSI Repair Servs., Inc. v. Honeywell, Inc.,
104 F.3d 811 (6th Cir. 1997) ................................................................................23
Schuetz v. Banc One Mortg. Corp.,
292 F.3d 1004 (9th Cir. 2002) ..............................................................................21
Smith Wholesale Co., Inc. v. Philip Morris USA, Inc.,
219 Fed. App’x 398 (6th Cir. 2007) .............................................................. 23, 24
Solo v. United Parcel Serv. Co.,
819 F.3d 788 (6th Cir. 2016) ..................................................................................3
Spirit Airlines, Inc. v. Nw. Airlines,
431 F.3d 917 (6th Cir. 2005) ......................................................................... 14, 24
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308 (2007) ...............................................................................................5
Total Benefits Planning v. Anthem Blue Cross,
552 F.3d 430 (6th Cir. 2008) ......................................................................... 16, 17
United States v. Colgate & Co.,
250 U.S. 300 (1919) .............................................................................................18
Valley Prods. Co., Inc. v. Landmark,
128 F.3d 398 (6th Cir. 1997) ................................................................................21
Worldwide Basketball & Sport Tours, Inc. v. Nat’l Coll. Athletic Ass’n,
388 F.3d 955 (6th Cir. 2004) ................................................................... 10, 14, 20
ZF Meritor, LLC v. Eaton Corp.,
696 F.3d 254 (3d Cir. 2012) .................................................................................22
v
Statement of the Issues Presented
1. Should AML’s antitrust-based counterclaims (all counts) be dismissed
where AML failed to plausibly allege the actual relevant market?
UWM answers: Yes.
The Court should answer: Yes.
2. Should AML’s federal antitrust claims for per se illegality,
unreasonable restraint of trade, and attempted monopolization (Counts I-III) be
dismissed where AML does not allege a horizontal boycott between UWM and its
competitors, sufficient market power by UWM, any anticompetitive effect, or any
plausible risk of monopolization?
UWM answers: Yes.
3. Should AML’s state antitrust claims (Counts IV-XI) be dismissed
where all the asserted state laws follow federal antitrust law?
UWM answers: Yes.
4. Should AML’s declaratory relief claim (Count XII) be dismissed
where it seeks relief derived from the preceding antitrust claims?
UWM answers: Yes.
vi
Controlling or Most Appropriate Authority
All Care Nsg. Ser. v. High Tech Staffing Serv., 135 F.3d 740 (11th Cir. 1998)
Am. Airlines, Inc. v. Sabre, Inc., 694 F.3d 539 (5th Cir. 2012)
Cty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148 (9th Cir. 2001)
Expert Masonry, Inc. v. Boone Cnty., 440 F.3d 336 (6th Cir. 2006)
Fed. R. Civ. P. 12(b)(6)
Fed. Trade Comm’n v. Ind. Fed. of Dentists, 476 U.S. 447 (1986)
Found. for Interior Design Educ. Research v. Savannah Coll. of Art Sci., 244 F.3d
521 (6th Cir. 2001)
Hand v. Cent. Transp., Inc., 779 F.2d 8 (6th Cir. 1985)

Hobart-Mayfield, Inc. v. Nat’l Operating Comm. on Stds. for Athletic Equip., 48
F.4th 656 (6th Cir. 2022)
Ky. Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc., 588 F.3d 908
(6th Cir. 2009)
Mich. Division-Monument Builders v. Mich. Cemetery Ass’n, 458 F. Supp. 2d 474
(E.D. Mich. 2006)
NYNEX Corp. v. Discon, 525 U.S. 128 (1998)
Okavage Grp., LLC v. United Wholesale Mortg., No. 3:21-CV-448, 2022 WL

17478298 (M.D. Fla. July 27, 2022)
Prod. Sols. Int’l v. Aldez Containers, LLC, 46 F.4th 454 (6th Cir. 2022)
Smith Wholesale Co., Inc. v. Philip Morris USA, Inc., 219 Fed. App’x 398 (6th Cir.
2007)
Spirit Airlines, Inc. v. Nw. Airlines, 431 F.3d 917 (6th Cir. 2005)
Total Benefits Planning v. Anthem Blue Cross, 552 F.3d 430 (6th Cir. 2008)
Worldwide Basketball & Sport Tours, Inc. v. Nat’l Coll. Athletic Ass’n, 388 F.3d
955 (6th Cir. 2004)
vii
I. Introduction
This is not an antitrust case. This case is about one mortgage broker that
repeatedly breached the terms of its broker agreement and is now grasping for any
rationale to evade liability. One well-reasoned ruling has already rejected these
same antitrust claims. See Okavage Grp., LLC v. United Wholesale Mortg., No.
3:21-CV-448, 2022 WL 17478298 (M.D. Fla. July 27, 2022), attached as Exhibit
A. The claims lack any legal merit and should be dismissed.
Plaintiff/Counter-Defendant United Wholesale Mortgage, LLC (“UWM”) is
a wholesale mortgage lender. It works with and is committed to the vibrant, pro-
consumer network of independent wholesale mortgage brokers. To that end, UWM
announced its “All-In Initiative” on March 4, 2021, stating that it would end its
relationship with brokers originating loans with Rocket Pro TPO (“Rocket”) and
Fairway Mortgage (“Fairway”). UWM believes Rocket and Fairway have eroded
the mortgage broker channel by converting brokers’ customers from wholesale
lines to retail lines, thereby cutting out the brokers.
UWM asked Defendant/Counter-Plaintiff America’s Moneyline, Inc.
(“AML”) to agree to an Addendum and amended Broker Agreement (the
“Amendment”), committing not to originate loans with Rocket and Fairway. The
Amendment (which AML falsely calls an “Ultimatum” and “boycott”) did not
require AML to originate loans with UWM. It was terminable at any time, with or
1
without cause, and AML could originate mortgages with Rocket or Fairway
immediately upon notice of termination. AML alleges it agreed to the Amendment
reluctantly and later terminated it. Now, faced with legal action because it closed
numerous loans with Rocket in breach of the Amendment while it was in effect,
AML seeks to rewrite its bargain by asserting facially defective antitrust claims.
But antitrust law is not a shield for contractual breach or a pen for courts to
rewrite contracts on terms preferred by the breaching party. UWM is free to choose
the terms on which it conducts business, and brokers like AML are free to accept
or reject those terms. AML accepted UWM’s terms, breached, and now attacks
UWM for refusing to write the exact terms into its Amendment that AML prefers.
AML’s Amended Counterclaim (“Am. Cl.”) is invalid and should be dismissed.
First, all of AML’s claims rest on a legally unsustainable premise—that
there is a separate wholesale mortgage lending market or sub-market distinct from
the market for all residential mortgage loans. There is not, and AML’s failure to
plausibly allege the actual relevant market is fatal to each of its claims.
Second, AML’s federal antitrust claims for per se illegality, unreasonable
restraint of trade, and attempted monopolization (Counts I through III) fail to state
a claim because, among other defects: AML does not allege a horizontal boycott
between UWM and its competitors; AML does not allege sufficient market power
by UWM; AML does not plausibly allege any anticompetitive effect; and AML
2
does not allege any plausible risk of monopolization.
Third, AML’s state antitrust claims (Counts IV through XI) and declaratory
relief claim (Count XII) fail to state a claim because they mirror or are derivative
of the deficient federal antitrust claims and fail for the same reasons.
II. Summary of Factual Allegations
A. AML Is a Mortgage Broker in a Vertical Relationship with

Wholesale Mortgage Lenders Like UWM and Rocket.
AML is a mortgage broker. It executed a Broker Agreement with UWM on
April 14, 2020. Am. Cl. at ¶¶ 5, 63, ECF No. 24, PageID.348, 365; Agmt., ECF
No. 1-1, PageID.11-18.1 AML alleges it also has a business relationship with
Rocket and unspecified “other wholesale lenders” (it does not allege a relationship
with Fairway). Id. ¶¶ 65, 67, PageID.365-66. UWM is a wholesale residential
mortgage lender, as are the wholesale divisions of Rocket and Fairway. Id. ¶¶ 11,
16, 25-27, PageID.349-50, 354. Unlike UWM, Rocket and Fairway also have retail
mortgage lending divisions. Id. ¶¶ 26-27, PageID.354. The relationship between
mortgage brokers like AML and wholesale mortgage lenders like UWM is vertical:
brokers act as commercial intermediaries between consumers and wholesale
lenders. Id. ¶¶ 5, 16, 18, 20, PageID.348, 350-52.
1
This Court may consider the Broker Agreement and Amendment on a motion to
dismiss because they are incorporated into the Amended Counterclaim. See Solo v.
United Parcel Serv. Co., 819 F.3d 788, 794 (6th Cir. 2016).
3
B. The Alleged “Wholesale Mortgage Lending” Market.
AML attempts to define “wholesale mortgage lending” as the “relevant
market” or “submarket” and asserts that retail lending is a separate submarket. Id.
¶¶ 3, 15, 23-24, PageID.347, 350, 353-54. The primary difference between
wholesale and retail lending is that wholesale lenders do not work directly with
consumers and offer mortgage loans through mortgage brokers, while retail lenders
deal directly with consumers. Id. ¶¶ 16-22, PageID.350-53. AML asserts that
wholesale mortgage lending entails distinct customers, separate industry
recognition, specialized vendors, lack of direct marketing, and better savings to
customers. Id. ¶ 23, PageID.353.
AML alleges that UWM is the largest wholesale mortgage lender with an
approximate 54% share of the “wholesale market,” up from 34% in 2020. Id. ¶¶
25, 92, PageID.354, 372. AML alleges that UWM “boasts” of having more than
12,000 mortgage brokers under contract, purportedly representing more than 60%
of domestic brokers. Id. ¶ 25, PageID.354. AML asserts that UWM has
“dominance” of wholesale lending due to advantages of scale, volume, and control
of its margins. Id. ¶¶ 92-100, PageID.372-75. AML also asserts there are “barriers
to entry” into wholesale lending. Id. ¶ 101, PageID.375.
C. UWM Announced the Amendment to Combat Practices Harmful

to Wholesale Mortgage Brokers.
AML asserts claims based on UWM’s March 4, 2021 announcement by its
4
President and CEO, Mat Ishbia, that UWM was amending its Broker Agreement to
require a representation and warranty that mortgage brokers who submit loans to
UWM will not also submit loans to Rocket or Fairway. Id. ¶ 37, PageID.357. Some
brokers, including AML, were asked to sign an Addendum and Amendment. Id. ¶¶
38, 69-73, PageID.357-58, 366-67. UWM had the contractual right to amend the
Broker Agreement, and a broker’s submission of any mortgage loan application to
UWM after the date of the Amendment constitutes acceptance. Agmt. § 7.08,
PageID.17.
The Amended Counterclaim incorporates Mr. Ishbia’s announcement and
interviews. Am. Cl. ¶¶ 37, 39, 42, 51, 55-60, PageID.357-59, 362-64; see also
Transcript of Mar. 4, 2021 Announcement, attached as Exhibit B.2 Mr. Ishbia
stated that one purpose of the Amendment was, “[w]e don’t need to fund Fairway
[] or Rocket [] to try to put brokers out of business.” Am. Cl. ¶ 39, PageID.358. He
explained UWM’s view that Rocket and Fairway were “out there hurting the
wholesale channel” by “soliciting loan officers,” “talking negatively about
brokers,” “going after real estate agents,” “trying to cut the loan officers,” and
“solicit[ing] your past clients.” Ex. B at 12:14-16:11. Mr. Ishbia said there would
be “no hard feelings” for those who declined the Amendment, and brokers could
2
The Court may consider Mr. Ishbia’s comments because they are incorporated
into the Amended Counterclaim. See Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).
5
“close out your loans” and “take care of consumers [e]ven if you [] decline[.]” Id.
at 15:10-18. He noted there were “73 other lenders,” and brokers would “have
options” with or without the “two [lenders] that are out there hurting the
channel[.]”Id. at 16:9-18.
D. Brokers and Trade Associations Engaged in a Robust Discussion

of the Amendment Following Its Announcement.
AML alleges that Mr. Ishbia’s announcement took place in public view and
drew widespread reactions. It cites numerous supportive public comments by
brokers, such as “We are ALL IN,” “unstoppable together,” “Let’s go!” and
descriptions of brokers as “family,” and also describes instances of brokers
encouraging one another to sign the Addendum. Am. Cl. ¶¶ 40-44, 49-50, 52-53,
PageID.358-62. Despite these many examples of brokers’ enthusiasm, AML insists
the Amendment is “coercion” reflecting UWM’s “market power.” Id. ¶¶ 61-62,
100, PageID.364-65, 374-75. AML alleges that other brokers expressed opposition
to the Amendment and asserted opinions that it was anticompetitive. Id. ¶¶ 110-
111, 114-115, PageID.378-80. AML alleges split views by trade associations
reacting to the announcement. Id. ¶¶ 45-48, 112-113, PageID.360-61, 379-80.3
E. AML’s Agreement to the Amendment and Repeated Breaches.

AML alleges it sought to persuade UWM not to ask AML to sign the
3
AML alleges that trade associations “have provided significant vehicles for
communication and agreement between the mortgage brokers with regard to the
boycott,” but provides no examples. Am. Cl. ¶ 48, PageID.361.
6
Amendment, but UWM insisted. Id. ¶¶ 69-80, 84-88, PageID.366-72. AML states
that it ultimately executed the Amendment, then changed its mind and stated it was
terminating its relationship with UWM. Id. ¶¶ 81-82, PageID.369. AML closed
numerous loans with Rocket while the Amendment was in force. Id. ¶¶ 83, 89-91,
PageID.369-70, 372. UWM gave notice of AML’s breach and filed this suit. Id. ¶¶
89-91, PageID.372.
AML was always free to accept or decline the Amendment. Id. ¶¶ 81-82,
PageID.369; Ex. B at 15:10–15:18. AML alleges that the Amendment imposes “a
draconian and anticompetitive penalty” of $5,000 per loan for breach. Am. Cl. ¶¶
72-73, PageID.367. But any broker contracting with UWM, including AML, could
terminate the Amendment “for any reason, with or without cause, breach or other
justification, upon seven (7) days prior written notice[.]” Agmt. §§ 7.05, 7.06,
PageID.16-17. A notice of termination immediately releases the broker from its
commitment not to submit loans to Rocket or Fairway. See Amendment § 3.05,
ECF No. 1-2, PageID.28.
F. AML’s Allegations of “Anticompetitive” Effects.
AML alleges that UWM’s so-called “boycott” was “highly successful,”
because the majority of brokers presented with the Addendum agreed and UWM’s
market share has grown. Am. Cl. ¶¶ 54-62, PageID.362-65. AML asserts various
“anticompetitive effects” and “injury and damages to AML.” Id. ¶¶ 104-121,
7
PageID.376-83. It asserts increased costs for its mortgage loans and operations. Id.
¶ 104, PageID.376-77. It alleges that brokers agreeing to the Amendment cannot
originate loans with Rocket or Fairway, while those refusing cannot originate loans
with UWM. Id. ¶¶ 104, 108, PageID.376-78. AML alleges this has harmed brokers
through reduced competition.4 Id. ¶¶ 105-109, PageID.377-78. AML alleges that
UWM’s actions have also increased market concentration. Id. ¶¶ 116-117,
PageID.380-81. AML asserts it has been injured through lost access to loans, lost
business, lost revenue, and less fair lending. Id. ¶¶ 13, 28, 32, 76, 83, 93, 118, 120-
121, PageID.349-50, 355-56, 368-70, 373, 381-83.
G. AML’s Prior Counterclaim and UWM’s First Motion to Dismiss.
UWM filed its Complaint on February 3, 2022. ECF No. 1. AML filed its
Counterclaim on February 25, 2022, asserting claims for fraud, promissory
estoppel, and declaratory judgment that the Amendment and its damages provision
are invalid and unenforceable under federal antitrust law and Michigan public
policy. ECF No. 7. UWM moved to dismiss the Counterclaim, and AML opposed
dismissal. ECF Nos. 11, 12, 13. The Court granted UWM’s motion in part on
December 22, 2022, holding that the fraud and promissory estoppel counts failed
to state a claim, but finding the declaratory count could proceed to the extent it
4
Of course, many lenders (like major retail banks) have ceased working with
mortgage brokers altogether and offer mortgages only through their own captive
loan officer employees. AML does not allege these practices are anticompetitive.
8
seeks a declaration that the Amendment is anticompetitive under antitrust law.
ECF No. 14. Nearly three months later, AML filed its Amended Counterclaim,
expanding its one declaratory judgment count to twelve antitrust counts. ECF No.
24.
III. Standard of Review
To survive a Rule 12(b)(6) motion, AML must “state a claim for relief that is
‘plausible on its face.’” Prod. Sols. Int’l v. Aldez Containers, LLC, 46 F.4th 454,
458 (6th Cir. 2022).5 The Court “may consider the Complaint and any exhibits
attached thereto,” as well as “exhibits … referred to in the Complaint and …
central to the claims contained therein.” Bassett v. Nat’l Coll. Athletic Ass’n, 528
F.3d 426, 430 (6th Cir. 2008).
IV. Argument
A. AML’s Claims Rest on a Legally Unsustainable Assertion That

the Relevant Market Is “Wholesale Mortgage Lending.”
All of AML’s federal and state antitrust claims depend upon the same
facially defective premise that “wholesale mortgage lending” is a distinct market or
submarket from all residential mortgage loans. See Am. Cl. ¶¶ 15-35, PageID.350-
57. Each antitrust claim requires AML to plead the relevant market in which the
putative violations occurred. If AML “lacks the ability to define the relevant
market,” no antitrust claim can proceed. Ky. Speedway, LLC v. Nat’l Ass’n of Stock
5
Throughout, unless otherwise noted, all emphasis and alterations are added, and
all internal quotation marks, citations, and footnotes are omitted.
9
Car Auto Racing, Inc., 588 F.3d 908, 919 (6th Cir. 2009) (collecting cases).
“Failure to identify a relevant market is a proper ground for dismissing a Sherman
Act claim.” NHL Players’ Ass’n v. Plymouth Whalers Hockey Club, 325 F.3d 712,
719-20 (6th Cir. 2003). AML asserts but has not plausibly alleged that wholesale
mortgage lending is a separate market or sub-market.
1. AML Has Not Plausibly Alleged That “Wholesale Mortgage

Lending” Is the Relevant Market Under the Applicable Legal
Standard of Interchangeability.
Defining the relevant market entails “the articulation of a legal test which is
then applied to the factual circumstances of each case.” Worldwide Basketball &
Sport Tours, Inc. v. Nat’l Coll. Athletic Ass’n, 388 F.3d 955, 959-60 (6th Cir.
2004) (emphases in original). This is “a matter of law” for the Court to decide. Id.
If a plaintiff fails to adequately plead the relevant market, the Court should dismiss
the claim as facially insufficient. See Mich. Division-Monument Builders v. Mich.
Cemetery Ass’n, 458 F. Supp. 2d 474, 482 (E.D. Mich. 2006) (holding that
“whether a relevant market has been identified … may be determined as a matter
of law” and dismissing antitrust claims for failure to properly allege the relevant
market). AML bears the burden of pleading its asserted relevant market. Ky.
Speedway, 588 F.3d at 916.
AML must satisfy the test of interchangeability to plead its asserted relevant
market, meaning the market must include all interchangeable offerings. “To
10
determine th[e] relevant market, ‘no more definite rule can be declared than that
commodities reasonably interchangeable by consumers for the same purposes
make up that part of the trade or commerce, monopolization of which may be
illegal.” Id. “Reasonable interchangeability” is “[t]he essential test for ascertaining
the relevant product market.” Id. at 917. The test considers “(1) product uses
(whether substitute products can perform the same function) and/or (2) consumer
response (also known as cross-elasticity), defined as consumer sensitivity to price
levels at which they elect substitutes for the defendant’s product or service.” Id.
Relevant markets “are to be judged from the consumers’ perspective.” In re
Cardizem CD Antitrust Litig., 105 F. Supp. 2d 618, 680 (E.D. Mich. 2000).
Here, AML has not even acknowledged the interchangeability test, much
less attempted to plead the relevant market from the consumers’ perspective.
Because the Amended Counterclaim “contains no allegations whatsoever relating
to the rule of interchangeability or to substitute products,” it fails to plead a
relevant market and should be dismissed on that basis alone. Builders, 458 F. Supp.
2d at 483; see also Found. for Interior Design Educ. Research v. Savannah Coll. of
Art Sci., 244 F.3d 521, 530 (6th Cir. 2001) (affirming dismissal of antitrust claims
where market definition was not supported by factual allegations); ComSpec Int’l,
Inc. v. Uniface B.V., No. 2:20-cv-10067-TGB-EAS, 2021 WL 4169726, at *1
(E.D. Mich. Sep. 14, 2021) (dismissing antitrust claims where plaintiff “fails to
11
include any products which are reasonably interchangeable”).
In particular, AML pleads no facts plausibly demonstrating why wholesale
and retail residential mortgages are not reasonably interchangeable from the
consumers’ perspective. A retail mortgage certainly “perform[s] the same
function” as a wholesale mortgage, and the two mortgages are unavoidably cross-
elastic where a consumer can readily switch from one to the other. Ky. Speedway,
588 F.3d at 917. Thus, under the “essential test for ascertaining the relevant
product market,” wholesale mortgage lending is not plausibly separate. Id.
2. AML’s Allegations Demonstrate That the Actual Relevant

Market Is All Residential Mortgages.
AML’s own allegations further show that wholesale and retail mortgages are
reasonably interchangeable and part of the same market of all residential
mortgages. AML’s allegations differentiate wholesale and retail mortgages
primarily on the basis of who interfaces with the consumer: brokers or the lender
directly. Am. Cl. ¶¶ 16-17, PageID.350-51. But as AML admits, from a consumer
perspective, what is needed is a mortgage, not a wholesale or retail mortgage
specifically. Id. ¶ 16, PageID.350-51 (“There is no substitute for mortgage lending
for most consumers, who need to borrow money to be able to afford to buy a
house[.]”) (emphasis added).
Indeed, AML acknowledges that Rocket and Fairway are both “whole-tail”
lenders, that is, they lend both wholesale and retail loans, confirming their cross-
12
elasticity. Id. ¶¶ 26-27, 47, PageID.354-355, 360-61. AML also cites industry
sources confirming that wholesale and retail lending are viewed as one market.
AML cites the J.D. Power 2022 Mortgage Servicers Satisfaction study, which
ranks wholesale lenders like UWM and retail lenders like Bank of America and
Chase in one unified set of rankings. Id. ¶ 28.C, PageID.355.6 AML also cites the
Ascent rankings, which evaluate wholesale and retail lenders side-by-side. Am. Cl.
¶ 29.A, PageID.355.7
AML’s attempt to exclude retail mortgages from the relevant market when
its own allegations demonstrate their interchangeability is fatal to its claims.
Because AML “alleges a proposed relevant market that clearly does not encompass
all interchangeable substitute products even when all factual inferences are granted
in [its] favor, the relevant market is legally insufficient, and a motion to dismiss
may be granted.” Builders, 458 F. Supp. 2d at 482. See also Found. for Interior
Design Educ. Research v. Savannah Coll. of Art Sci., 73 F. Supp. 2d 829, 837-38
(W.D. Mich. 1999) (rejecting plaintiff’s proposed “relevant market” definition and
dismissing plaintiff’s claims as inconsistent with its “own pleadings and
arguments”), aff’d, 244 F.3d 521 (6th Cir. 2001).
6
See J.D. Power, Mortgage Servicer Satisfaction Study, Profiled Brands, available
at https://www.jdpower.com/business/mortgage-servicer-satisfaction-
study#profiled-brands (last accessed Apr. 2, 2023).
7
See Christy Bieber, The Ascent, “Best Mortgage Lenders of April 2023,”
available at https://www.fool.com/the-ascent/mortgages/best-mortgage-
lenders/#offer_list_ (last accessed Apr. 2, 2023).
13
AML’s efforts to divert the inquiry to a “submarket” is likewise unavailing.
Am. Cl. ¶¶ 3, 23, 133, 147, 168, 174, PageID.347, 353-54, 385, 387, 390-91. The
assertion of a submarket does not do away with the essential test of
interchangeability; it “merely provides several new factors” for the inquiry.
Basketball, 388 F.3d at 962; see also Spirit Airlines, Inc. v. Nw. Airlines, 431 F.3d
917, 933 (6th Cir. 2005) (discussing several “practical indicia” considered in
evaluating submarkets). Here, AML’s “[o]ther facts” supposedly supporting a
submarket do nothing to suggest a lack of interchangeability between wholesale
and retail mortgages; they simply reiterate that wholesale mortgages go through
brokers while retail mortgages do not. Am. Cl. ¶ 23, PageID.353-54. But the
relevant market cannot be defined “as a tautological fact” merely by asserting it to
be what AML says it is. B & H Med., LLC v. ABP Admin., Inc., 354 F. Supp. 2d
746, 749 (E.D. Mich. 2005). It is “the consumers’ perspective” that matters.
Cardizem, 105 F. Supp. 2d at 680. AML’s allegations suggest no plausible reason
why consumers cannot readily switch from wholesale to retail mortgages. The fact
that borrower experiences differ across channels is not indicative of separate
markets or submarkets. To the contrary, it is “improper ‘to require that products be
fungible to be considered in the relevant market.’” Basketball, 388 F.3d at 962.
In sum, because AML has “failed to define the relevant market,” and it
“cannot prevail” without doing so, the analysis ends here. Id. at 963-64. All of
14
AML’s claims should be dismissed with prejudice.
B. AML Fails to State a Claim for a Per Se Illegal Group Boycott in

Violation of Section 1 of the Sherman Act (Count I).
Count I of the Amended Counterclaim asserts that the “conduct of UWM
and its mortgage brokers constitute a per se illegal group boycott” violating
Section 1 of the Sherman Act. Am. Cl. ¶ 123, PageID.383. AML does not state a
claim for a per se violation of Section 1 because: (1) AML does not allege a per se
illegal agreement between UWM and its horizontal direct competitors; and (2)
AML does not allege adequate market power to support a per se violation of
Section 1. See Okavage, 2022 WL 17478298, at *13-16 (rejecting claim that
UWM’s “ultimatum” was a per se illegal boycott because, inter alia, “there is no
plausible allegation of a horizontal agreement between UWM and its direct
competitors” and because plaintiff did not allege sufficient “market power or
exclusive access”).
1. AML Does Not Plead a Per Se Illegal Group Boycott Based on

a Horizontal Agreement Between UWM and Its Competitors.
The crux of AML’s per se claim is that UWM’s so-called “boycott”
amounted to “a coerced, concerted refusal to deal” with Rocket or Fairway “by the
vast majority of UWM’s brokers.” Am. Cl. ¶ 123, PageID.383. But AML has not
alleged a per se illegal group boycott because “[l]abels and buzzwords
notwithstanding,” it “has not pleaded factual matter” suggesting “a horizontal
15
agreement between UWM and its direct competitors[.]” Okavage, 2022 WL
17478298, at *14. The only agreement AML alleges is vertical between UWM and
its brokers.
All Section 1 claims are evaluated under one of two analytical approaches:
the per se rule or the rule of reason. NHL Players’ Ass’n, 325 F.3d at 718. The per
se rule applies only to practices that “are entirely void of redeeming competitive
rationales.” Id. It is a “demanding” standard “that should be applied only in clear
cut cases.” Id. at 718-19.
The U.S. Supreme Court has limited “the per se rule in the boycott context
to cases involving horizontal agreements among direct competitors.” NYNEX Corp.
v. Discon, 525 U.S. 128, 135 (1998). It has warned against the “indiscriminate[]”
expansion of the group boycott label. Fed. Trade Comm’n v. Ind. Fed. of Dentists,
476 U.S. 447, 558 (1986). In particular, it has refused to “force” a “concerted
refusal to deal” into “the ‘boycott’ pigeonhole and invoking the per se rule.” Id. at
458. Mere allegations that a practice “has diminished consumer choice” will not
suffice. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1090 (6th Cir. 1996).
“Only a group boycott through horizontal agreement can constitute a per se
violation[.]” Total Benefits Planning v. Anthem Blue Cross, 552 F.3d 430, 435 (6th
Cir. 2008). Vertical restraints involving “entities that are upstream or downstream
of one another” do not meet this stringent standard. Expert Masonry, Inc. v. Boone
16
Cnty., 440 F.3d 336, 344 (6th Cir. 2006).
Although AML repeatedly invokes the buzzwords “group boycott” and
“concerted refusal to deal,” the only agreement AML factually alleges is the
vertical Addendum and Amendment between UWM and its brokers. See Am. Cl.
¶¶ 38, 44, 49, 51, 54, 61, 69-71, 76-82, 104, 108, 121, PageID.357-64, 366-69,
376-78, 382-83. These vertical agreements cannot support per se treatment; they
must be analyzed under the rule of reason. See Total Benefits, 552 F.3d at 435;
Expert Masonry, 440 F.3d at 344-45.
To the extent AML is attempting to assert a “hub and spoke” conspiracy,
with UWM purportedly organizing brokers into a horizontal boycott, its allegations
still fail. “There is no special exception for applying per se status just because
there is a hub and spoke conspiracy; the complaint still must show some horizontal
relationship.” Total Benefits, 552 F.3d at 435. Even if the Court were to assume
arguendo that AML has identified UWM as a “hub” and its brokers as “spokes,”
the “rim holding everything together is missing” because “[n]o agreements are
identified between competitors[.]” Id. at 435-36. AML has not alleged how the
brokers are connected to each other in a horizontal agreement. See id. at 436 (the
“critical issue for establishing a per se violation within the hub and spoke system is
how the spokes are connected to each other”). Indeed, AML’s own allegations
make clear the only “connection” is brokers’ shared enthusiasm for the vertical
17
agreement with UWM. See Am. Cl. ¶¶ 38, 44, 49, 51, 54, 61, PageID.357-59, 361-
64; see also Okavage, 2022 WL 17478298, at *14-18 (holding plaintiff failed to
allege a hub and spoke conspiracy between UWM and its brokers).
A vertical agreement between UWM and brokers that the brokers like but
are free to terminate at will is not a horizontal group boycott. To the contrary, the
“freedom to switch suppliers lies close to the heart of the competitive process that
the antitrust laws seek to encourage.” NYNEX, 525 U.S. at 137. Antitrust law “does
not restrict the long recognized right of [a party] engaged in an entirely private
business, freely to exercise his own independent discretion as to parties with whom
he will deal; and, of course, he may announce in advance the circumstances under
which he will refuse to sell.” United States v. Colgate & Co., 250 U.S. 300, 307
(1919). A party “has a right to deal, or refuse to deal, with whomever it likes, as
long as it does so independently.” Monsanto Co. v. Spray-Rite Serv. Corp., 465
U.S. 752, 761 (1984). Here, UWM announced its Amendment, and brokers were
and are free to accept or decline. AML has not alleged a horizontal group boycott,
and its per se claim fails.
2. AML’s Allegations Do Not Demonstrate Market Power

Sufficient to Support a Per Se Violation of Section 1.
AML’s per se claim also fails because it has not alleged market power in the
relevant market sufficient to support a per se violation. To guard against
“indiscriminate” misuse of the “boycott” label to invoke the per se rule, the
18
Supreme Court limits its application to “cases in which firms with market power
boycott suppliers or customers” to discourage doing business with a competitor.
Ind. Fed’n of Dentist, 476 U.S. at 458. This requires the alleged conspirators to
“possess[] market power or exclusive access to an element essential to effective
competition.” Nw. Wholesale Stationers v. Pac. Stationery, 472 U.S. 284, 296
(1985). AML has not satisfied the market power requirement. See § IV.D, infra.
AML asserts that UWM has market power because it has a 54% share of the
wholesale lending “market,” and its brokers purportedly represent “more than
60%” of wholesale mortgage brokers. Am. Cl. ¶¶ 25, 92, PageID.354, 372. But as
discussed in § IV.A, supra, AML has failed to allege that wholesale lending is the
relevant market, so its allegations of market power are facially deficient from the
start. Even accepting AML’s 60% claim arguendo, that does not satisfy “market
power” for purposes of evaluating an alleged group boycott, because AML does
not “plead or estimate” what percentage of mortgage brokers in the putative
wholesale market as a whole actually “joined the boycott,” or “what the effect of
the boycott was vis-à-vis the relevant market.” Okavage, 2022 WL 17478298, at
*17. AML only alleges that UWM “boasts” of “over 12,000 mortgage brokers,”
and “announced” that that “93% of the brokers presented with” the Addendum
agreed to sign it. Am. Cl. ¶¶ 25, 54, PageID.354, 362-63. AML’s careful efforts to
avoid alleging the actual percentage of brokers participating in the All-In Initiative
19
is indicative of its inability to allege market power within this group.
C. AML Fails to State a Claim for Unreasonable Restraint of Trade

in Violation of Section 1 of the Sherman Act (Count II).
Count II of the Amended Counterclaim asserts AML’s “rule of reason”
claim under Section 1 of the Sherman Act, alleging in conclusory terms that UWM
“has substantial market power,” that it “unreasonably restrained trade in the
relevant market,” and that it “caused substantial anticompetitive effects[.]” Am. Cl.
¶¶ 127-129, PageID.384. AML has not met its burden of pleading “that the conduct
complained of ‘produces significant anticompetitive effects within the relevant
product and geographic markets.’” Basketball, 388 F.3d at 959; see also Okavage,
2022 WL 17478298, at *18-19 (holding that plaintiff failed to state a claim under
the rule of reason because it failed to allege that UWM’s actions have either “the
potential for genuine adverse effects on competition” or “an actual detrimental
effect on competition”). AML’s claim has three facial deficiencies requiring
dismissal.
First, AML has not adequately alleged the relevant market. See § IV.A,
supra. Failing “to adequately define a relevant market” makes it “impossible to
assess” the alleged anticompetitive effects of the conduct complained of.
Basketball, 388 F.3d at 961.
Second, AML has “failed to sufficiently identify anti-competitive effects” of
UWM’s Addendum and Amendment. Nat’l Hockey League Players Ass’n v.
20
Plymouth Whalers Hockey Club, 419 F.3d 462, 473 (6th Cir. 2005). To satisfy the
rule of reason analysis, AML must allege that UWM’s actions “may suppress or
even destroy competition.” Found. for Interior Design, 244 F.3d at 530. This
requires AML to allege “more than its own damages,” because the antitrust laws
“are designed for ‘the protection of competition, not competitors[.]’” Id. AML
must allege an “antitrust injury,” meaning “an injury of the type the antitrust laws
were intended to prevent and that flows from that which makes the defendants’
acts unlawful.” Valley Prods. Co., Inc. v. Landmark, 128 F.3d 398, 402 (6th Cir.
1997).
AML does not allege antitrust injury. Its allegations focus almost exclusively
on purported injury to AML and other mortgage brokers, but not injury to
competition. Am. Cl. ¶¶ 104-121, PageID.376-83. The crux of AML’s alleged
“anticompetitive effects” is that brokers must now choose between UWM on the
one hand, or Rocket and Fairway on the other, which limits to some degree the
options a particular broker may offer to a particular client—even as AML
acknowledges that there are “other alternatives.” See id. ¶¶ 104-117, PageID.376-
81. Mortgage brokers, however, are “intermediaries who bring borrower and lender
together”; they are not the lender or the consumer. Schuetz v. Banc One Mortg.
Corp., 292 F.3d 1004, 1006 (9th Cir. 2002). AML does not allege that consumers
have experienced fewer choices, higher prices, reduced output, or less competition
21
among wholesale and retail lenders for their mortgage business as a result of
UWM’s initiative—the hallmarks of competitive harm. See EnviroPak Corp. v
Zenfinity Capital, LLC, No. 4:14-CV-00754, 2015 WL 331807, at *13-14 (E.D.
Mo. Jan. 23, 2015). AML’s grievances pertain only to its preferred business
practices and its loan volume. But antitrust law “is designed to protect consumers
from producers, not to protect producers from each other or to ensure that one firm
gets more of the business.” Ehredt Underground v. Commonwealth Edison, 90
F.3d 238, 240 (7th Cir. 1996).
Competition also is not harmed where, as here, the Amendment is “of
relatively short duration and, crucially, can be terminated upon short notice”; such
terms thus “do not—by themselves—sustain the Sherman Act claims.” Pro Search
Plus, LLC v. VFM Leonardo, Inc., No. 8:12-CV-02102, 2013 WL 3936394, at *4
(C.D. Cal. July 30, 2013).8 The Amendment includes no minimum obligation to
submit loans to UWM and permits brokers to submit loans to dozens of other
wholesale lenders while under contract with UWM. That is a facially lawful
relationship that “generally pose[s] little threat to competition.” ZF Meritor, LLC v.
Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012).
Third, AML has failed to allege that UWM has the requisite market power in
8
See also Paddock Pubs., Inc. v. Chicago Tribune Co., 103 F.3d 42, 44 (7th Cir.
1996); PNY Techs., Inc. v. Sandisk Corp., No. 11-CV-04689, 2014 WL 1677521,
at *8 (N.D. Cal. Apr. 25, 2014).
22
the relevant market sufficient “to have an adverse effect on competition,” as
required under the rule of reason analysis. Hand v. Cent. Transp., Inc., 779 F.2d 8,
11 (6th Cir. 1985); see also PSI Repair Servs., Inc. v. Honeywell, Inc., 104 F.3d
811, 818 (6th Cir. 1997) (“The market power requirement is important because,
without market power, a seller cannot engage in the forcing necessary to establish
a Section(s) 1 violation.”). As discussed below with regard to AML’s
monopolization claim, AML has not alleged market power. See § IV.D, infra.
D. AML Fails to State a Claim for Attempt to Monopolize in

Violation of Section 2 of the Sherman Act (Count III).
Count III of the Amended Counterclaim asserts in wholly conclusory terms
that UWM “sought to attain monopoly power” and has a “dangerous probability”
of achieving its goals. Am. Cl. ¶ 133, PageID.385. AML’s recitation of these
elements does not come close to satisfying its burden to plead facts establishing:
(1) a specific intent to monopolize; (2) anti-competitive conduct; and (3) a
dangerous probability of success. Smith Wholesale Co., Inc. v. Philip Morris USA,
Inc., 219 Fed. App’x 398, 409 (6th Cir. 2007); see also Okavage, 2022 WL
17478298, at *19-21 (holding that plaintiff failed to allege sufficient market power
to comprise a “dangerous probability of success”). AML’s monopolization claim
should be dismissed for three reasons.
First, AML has not alleged the relevant market. See § IV.A, supra. Like its
other claims, AML’s monopolization claim cannot proceed without a properly
23
defined relevant market. See Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d
768, 781 (6th Cir. 2002) (holding that claim under Section 2 of the Sherman Act
requires “possession of monopoly power in a relevant market”).
Second, AML has not alleged anti-competitive conduct. See § IV.C, supra.
Third, AML has not alleged a dangerous probability of success. “Market
strength that approaches monopoly power” is “a necessary element for showing a
dangerous probability of achieving monopoly power,” and “requires that the court
focus on the ability of a single seller to unilaterally raise prices and restrict output.”
Smith Wholesale, 219 Fed. App’x at 409. AML’s allegation that UWM has 54%
market share (Am. Cl. ¶¶ 25, 92, PageID.354, 372) is insufficient to plead market
strength. See id. (finding 56% market share insufficient).9
Monopoly power is “the ability of a single seller to raise price and restrict
output.” Spirit Airlines, 431 F.3d at 935. AML does not allege, and cannot allege,
that UWM has the power or a dangerous likelihood of acquiring the power to force
borrowers to accept its loans, or otherwise to raise prices or restrict output
unilaterally. Thus, AML has failed to allege attempted monopolization.
9
See also Blue Cross Blue Shield v. Marshfield Clinic, 65 F.3d 1406, 1411 (7th
Cir. 1995) (collecting cases) (“50 percent is below any accepted benchmark for
inferring monopoly power from market share”); Bailey v. Allgas, Inc., 284 F.3d
1237, 1250 (11th Cir. 2002) (similar); Am. Prof’l Testing Serv., Inc. v. Harcourt
Brace Jovanovich Legal & Prof’l Publ’ns, Inc., 108 F.3d 1147, 1154 (9th Cir.
1997) (“[a] mere showing of substantial or even dominant market share alone
cannot establish market power...”).
24
E. AML’s State Antitrust Claims and Declaratory Judgment Claim

(Counts IV to XII) Fail in Tandem with the Federal Claims.
Counts IV through XI of the Amended Counterclaim assert mirror-image
antitrust claims under the Michigan, California, Florida, and Texas antitrust
statutes. Because these statutes all follow federal antitrust law, the claims fail in
tandem. See Hobart-Mayfield, Inc. v. Nat’l Operating Comm. on Stds. for Athletic
Equip., 48 F.4th 656, 663 (6th Cir. 2022) (Michigan); Cty. of Tuolumne v. Sonora
Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001) (California); All Care Nsg. Ser.
v. High Tech Staffing Serv., 135 F.3d 740, 745 n.11 (11th Cir. 1998) (Florida); Am.
Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 543-44 (5th Cir. 2012) (Texas). Count
XII seeks declaratory relief derived from the preceding antitrust claims, and thus
also fails in tandem with those claims. Am. Cl. ¶ 178, PageID.391.
V. Conclusion
For the foregoing reasons, UWM respectfully requests that the Court dismiss
AML’s Amended Counterclaim with prejudice.
Dated: April 19, 2023 Respectfully submitted,

By: /s/ Moheeb H. Murray
Moheeb H. Murray (P63893)
Mahde Y. Abdallah (P80121)
BUSH SEYFERTH PLLC
100 West Big Beaver Road, Suite 400
Troy, MI 48084
T/F: (248) 822-7800
[email protected]
[email protected]
Attorneys for United Wholesale Mortgage, LLC
25

SOUTHERN DIVISION

v.
AMERICA’S MONEYLINE, INC.
__________________________________________________________________/
BRIEF FORMAT CERTIFICATION FORM
I, Moheeb H. Murray, hereby certify that the foregoing brief complies with
Eastern District of Michigan Local Rules 5.1(a), 5.1.1, and 7.1 and Judge
Michelson’s Case Management Requirements. In particular, I certify that each of
the following is true (click or check box to indicate compliance):
☒ the brief contains a statement regarding concurrence, see LR 7.1(a);
☒ the brief, including footnotes, uses 14-point font, see LR 5.1(a)(3);
☒ the brief contains minimal footnotes and, in all events, no more than 10,
see Case Management Requirements § III.A;
☒ the brief and all exhibits are searchable .pdfs, see Case Management
Requirements § III.A;
☒ the brief is double spaced (except for footnotes and necessary block
quotes) with one-inch margins, see LR 5.1(a)(2);
☒ deposition transcripts have been produced in their entirety and not in
minuscript, see Case Management Requirements § III.A;
☒ if the brief and exhibits total 50 pages or more, a courtesy copy with ECF
headers will be sent to chambers, see Case Management Requirements
§ III.B.
I also acknowledge that if the Court later finds that these requirements are
not met, my brief will be stricken.
Dated: April 19, 2023 /s/ Moheeb H. Murray
26
Case 2:22-cv-10228-LJM-EAS ECF No. 27-1, PageID.437 Filed 04/19/23 Page 1 of 1

SOUTHERN DIVISION

v.
AMERICA’S MONEYLINE, INC
__________________________________________________________________/
INDEX OF EXHIBITS
Exhibit Description
A Okavage Group LLC v United Wholesale Mortgage
B Transcript of Facebook Live Video
Exhibit A
Okavage Group, LLC v. United Wholesale Mortgage, LLC, Slip Copy (2022)
after a loan is funded, if it works with borrowers at all, id. 1

2022 WL 17478298 According to UWM, “wholesale mortgage lending allows
Only the Westlaw citation is currently available. customers to access a wide array of better mortgages at
United States District Court, M.D. Florida, more favorable rates than they are most often able to obtain
Jacksonville Division. through retail mortgage lenders.” Doc. 46 at 13. 2 Fairway
Mortgage (Fairway) is a competitor of UWM; it offers both
The OKAVAGE GROUP, LLC on behalf of
retail mortgage lending and wholesale mortgage lending.
itself and all others similarly situated, Plaintiff, Rocket Mortgage is also a competitor of UWM; it offers
v. both retail mortgage and wholesale mortgage lending, with
UNITED WHOLESALE MORTGAGE, LLC Rocket Pro TPO (Rocket) handling the wholesale side. AC
and Matthew Ishbia, individually Defendants. ¶¶ 7-8, 11. Neither Fairway nor Rocket are parties to this
lawsuit, but their status as competitors to UWM is central to
No. 3:21-cv-448-BJD-LLL understanding the alleged anticompetitive scheme.
|
Signed July 27, 2022 Plaintiff, a one-member LLC and mortgage broker based in
St. Augustine, Florida, alleges it is, or has been, a client
Attorneys and Law Firms
of UWM, Rocket, and/or Fairway. Id. ¶ 2. According to
Joseph E. Parrish, Parrish & Goodman PLLC, Tampa, FL, plaintiff, during the process of wholesale lending, mortgage
Robert Henry Goodman, Parrish & Goodman, PLLC, Fort brokers provide loan applications to the borrower, collect
Myers, FL, for Plaintiff. completed loan applications, verify income, and gather other
documentation. Mortgage brokers also advise borrowers of
Avi Benayoun, Glenn E. Goldstein, Sabrina Niewialkouski, interest rates, loan terms, and select the wholesale mortgage
Greenberg Traurig, P.A., Fort Lauderdale, FL, Stephanie lender who best suits the needs of the borrower. AC ¶
Peral, Sidley Austin LLP, Miami, FL, for Defendants United 5. Plaintiff emphasizes the importance of independence to
Wholesale Mortgage, LLC, Mathew Ishbia. the mortgage-broker business because brokers must be able
“to choose from a variety of wholesale lenders to select
the mortgage product and experience that best matches the
Report and Recommendation specific needs of the broker's client.” AC ¶ 5.
Laura Lothman Lambert, United States Magistrate Judge According to plaintiff, UWM, faced with a declining stock
price and a decreasing share of the wholesale lending market,
*1 Defendants United Wholesale Mortgage (UWM) and
acted improperly by orchestrating an anticompetitive scheme
Matthew Ishbia move to dismiss Plaintiff's First Amended
that violated federal and state antitrust laws. Id. ¶¶ 11-12.
Class Action Complaint under Federal Rules of Civil On March 4, 2021, UWM hosted a virtual event, and its
Procedure 12(b)(1), 12(b)(2), and 12(b)(6), doc. 46. Plaintiff, Chief Executive Officer Matthew Ishbia publicly announced
The Okavage Group, LLC, responded in opposition, doc. an ultimatum 3 by UWM to mortgage brokers.
53. This motion has been referred to me for a report
and recommendation for appropriate resolution, doc. 60. *2 Ishbia's speech was posted to Facebook. Throughout
For the reasons discussed below, I respectfully recommend the speech, Ishbia highlighted that UWM is “all in” for the
defendants’ motion be denied in part and granted in part. broker family; emphasized its goals of being faster, easier,
and cheaper; and stressed UWM's mantra as helping mortgage
brokers succeed. http://www.facebook.com/97640871999/
Background videos/845176203005957 (last visited June 27, 2022). Ishbia
explained in the announcement that UWM was separating
UWM is a wholesale residential mortgage lender. Amended retail mortgage lending from wholesale lending and made
Complaint (AC), doc. 32 ¶ 3. Wholesale mortgage lenders a series of statements geared towards exciting the broker
offer mortgage loans through independent third parties, network, exclaiming, “there is no stopping brokers,” and “we
including mortgage brokers. As a result, a wholesale are going to win together as a family.” Id.
mortgage lender does not work directly with borrowers until
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1

Ishbia further alleged there were two companies “hurting the

wholesale channel”—Fairway and Rocket—by cutting the AC ¶ 13. According to plaintiff, 93 percent of the brokers
mortgage brokers out. He announced that “at UWM, we're not presented with the addendum signed it. Id.
helping those, that help them ... if you work with them, you
can't work for UWM anymore, effective immediately.” Id. at Plaintiff refused to sign the addendum. UWM terminated
11:30-11:56. Ishbia continued, “owners, you have until March its contract with plaintiff, and no longer accepted mortgage
15 to sign an addendum saying you're not working with those applications by plaintiff's customers. Id. ¶ 46. Before plaintiff
two lenders ... And if you don't sign the addendum ... you was terminated, UWM regularly accepted mortgage loan
and nobody at your company will work with UWM anymore, applications submitted by plaintiff. Id. ¶ 28
and that's okay, there's no hard feelings.” Id. starting at 12:17.
Ishbia stated: “this is what I think, there are 75 great lenders Plaintiff argues that defendants’ conduct amounted to a
out there, you need to have options, but there's two that are out “contract, combination, or conspiracy in restraint of trade to
there hurting the channel .... You can pick us and the 73 other jointly boycott [Rocket and Fairway] to suppress competition
lenders or you can pick those others and not have UW[M]....” in the relevant markets,” a scheme that is “pernicious, or
Id. at 13:20. manifestly anticompetitive, because, whether or not any
broker agreed to the ultimatum, it limits the choice of
Plaintiff alleges that in order to “implement the [u]ltimatum lending options available to brokers, and ultimately the loan
and coerce a boycott” of Fairway and Rocket, defendants options available to consumers, in the relevant market.” Id.
advised their broker clients that “they were required to ¶ 13. Plaintiff alleges that Rocket and Fairway “consistently
consent to a contract addendum.” AC ¶ 13. The addendum offer better suited and/or lower[-]priced mortgage loans in
memorialized Ishbia's announcement, that from now on, connection with the ... applications submitted by mortgage
brokers could not engage in business with Fairway or Rocket brokers as compared to UWM, [but that nevertheless]
if they wanted to work with UWM, and that UWM would seek Defendants’ [u]ltimatum limits the ability of Plaintiff ...
damages if the warranty was violated: to offer their clients (consumers/prospective borrowers) the
best-suited mortgage loan products ... thereby restraining
trade and limiting competition.” Id. ¶ 34.
United Wholesale Mortgage, LLC
*3 In its amended complaint, doc. 32, plaintiff alleges
(“UWM”) is amending its
defendants violated the Sherman Act by unlawfully
broker, correspondent[,] and financial
restraining trade (count I) and engaging in unlawful steering
institution agreements by adding a
representation and warranty that its (count II) in violation of 15 U.S.C. § 1; and by attempting
clients will not submit loans to to monopolize the wholesale mortgage market (count III) in
either Rocket Mortgage or Fairway
violation of 15 U.S.C. § 2. Plaintiff also brings claims
Independent Mortgage for review,
under Florida law alleging that: 1) defendants unlawfully
underwriting, purchase and/or funding
restrained trade (count IV), 2) engaged in unlawful steering
(unless such loan was locked
(count V), and 3) unlawfully attempted to monopolize the
with Rocket Mortgage or Fairway
wholesale mortgage market (count VI) in violation of the
Independent Mortgage prior to March
Florida Antitrust Act, Fla. Stat. § 542.18; 4 4) tortiously
21, 2021). If client or client's
interfered with business contracts and prospective economic
employees breach this representation
and warranty, the client agrees to pay advantage (count VII), 5 and 5) violated Florida's Deceptive
liquidated damages to UWM of: (i) and Unfair Trade Practices Act, Fla. Stat. § 501.201 (count
Five Thousand Dollars ($5,000.00) VIII). Plaintiff also brings a count for a declaratory judgment,
per loan closed with UWM, or (ii) 28 U.S.C. §§ 2201-2202 (count IX). It asks the Court to
Fifty Thousand Dollars ($50,000.00), declare: 1) the ultimatum and associated addendum are per
whichever is greater. se illegal; and 2) the addendum, and all rights, damages, and
obligations under it, are unlawful and unenforceable. AC ¶
164.

Defendants raise six grounds for dismissing plaintiff's considered); Lawrence v. United States, 597 F. App'x 599, 602
amended complaint: 1) plaintiff lacks standing to sue; 2) the
(11th Cir. 2015) (citing Horsley v. Feldt, 304 F.3d 1125,
Court lacks personal jurisdiction over Ishbia; 3) plaintiff's
1134 (11th Cir. 2002) (holding a district court may consider
antitrust claims (counts I-VI) fail to state a claim upon which
documents attached to a motion to dismiss if considering a
relief can be granted; 4) the tortious interference claim (count
facial attack on subject matter jurisdiction, “if the documents
VII) fails to allege intentional or unjustified interference with
are central to plaintiff's claim and their authenticity is not
plaintiff's contractual relationships or reasonable business
disputed.”).
expectancies; 5) the amended complaint fails to state a claim
under Florida Deceptive and Unfair Trade Practices Act
*4 Defendants argue plaintiff lacks Article III standing
(count VIII); and 6) plaintiff's count for declaratory relief
because the amended complaint alleges “implausible injuries
(count IX) is duplicative and therefore improper.
with no causal connection to defendants’ purported actions.”
Doc. 46 at 20. Specifically, defendants argue the amended
complaint protests the loss of unspecified customers and
Analysis commissions but fails to allege plausible facts establishing
plaintiff's loss or the connection between the loss and the
challenged conduct. Id.
I. Standing
Before proceeding to the merits of any case, a court must

A. Constitutional Standing first find it has subject matter jurisdiction over the action.
Douglas v. United States, 814 F.3d 1268, 1280-81 (11th
Defendants move to dismiss under Rule 12(b)(1) because, Cir. 2016) (Tjoflat, J., concurring). This inquiry is necessary
they argue, plaintiff lacks standing under Article III of the because “[f]ederal courts are courts of limited jurisdiction,”
United States Constitution, and thus the Court lacks subject meaning “[t]hey possess only that power authorized by the
matter jurisdiction over the case. Doc. 46 at 20-26. A Rule Constitution and statute.” Kokkonen v. Guardian Life Ins.
12(b)(1) motion can be based on either a facial challenge or a Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
factual challenge that looks beyond the complaint to evidence If at any time a court determines it lacks subject matter
jurisdiction, the action must be dismissed. Douglas, 814 F.3d
related to jurisdiction. Butler v. Morgan, 562 F. App'x 832,
at 1280-81 (citation omitted).
835 (11th Cir. 2014) (citing McElmurray v. Consol. Gov't
of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. Standing is a “threshold jurisdictional question” originating
2007)). Defendants raise a facial attack, asking the Court from the requirement in Article III of the Constitution that
to “look and see if the plaintiff's complaint has sufficiently “the jurisdiction of the federal courts be limited to actual
alleged a basis of subject matter jurisdiction.” Doc. 46 at
cases and controversies.” Fla. Fam. Pol'y Council v.
19 (quoting McElmurray, 501 F.3d at 1251) (additional Freeman, 561 F.3d 1246, 1253 (11th Cir. 2009) (citations
citations omitted). and quotations omitted). There are three elements of the
constitutional standing requirement: “[t]he plaintiff must have
In analyzing a facial attack, the Court treats the amended (1) suffered an injury in fact, (2) that is fairly traceable to
complaint as it would in considering a Rule 12(b) the challenged conduct of the defendant, and (3) that is likely
(6) motion—taking the allegations as true and properly to be redressed by favorable judicial decision.” Spokeo,
considering the exhibits attached to the amended complaint, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citation omitted).
doc. 32, the addendum, doc. 32-1, and Ishbia's public Plaintiff, as the party invoking the Court's jurisdiction, has
announcement referenced in the amended complaint and the burden of establishing standing; because the case is at
attached to defendant's motion to dismiss, doc. 46-2. See the pleading stage, it must “clearly allege facts demonstrating
Tellabs, Inc. v. Makor Issues & Rts. Ltd., 551 U.S. each element.” Id. (quotations, citations, and alterations
308, 322 (2007) (citations omitted) (explaining that when omitted). See also Church v. City of Huntsville, 30 F.3d
ruling on Rule 12(b)(6) motions to dismiss, documents 1332, 1336 (11th Cir. 1994) (quotation and citations omitted)
“incorporated into the complaint by reference” are properly (“Standing requirements are not mere pleading requirements

but rather are an indispensable part of the plaintiff's case.

Therefore, each element of standing must be supported with At the motion to dismiss stage, where the Court is required
the manner and degree of evidence required at the successive to accept the allegations in the amended complaint as true, I
stages of litigation.”). find the allegations specific enough to conclude that plaintiff
“plausibly suffered an injury traceable to [defendants’]
To meet the requirement of an “injury in fact,” a plaintiff
conduct.” Pinson v. JPMorgan Chase Bank, Nat'l Assoc.,
“must show that [it] suffered an invasion of a legally protected
942 F.3d 1200, 1207 (11th Cir. 2019). Economic injuries
interest that is concrete and particularized and actual or
have long been recognized as sufficient to establish an injury
imminent, not conjectural or hypothetical.” Spokeo, 578
in fact. Sierra Club v. Morton, 405 U.S. 727, 733-34
U.S. at 339 (quotations and citation omitted). Particularized
(1972) (citations omitted) (“[P]alpable economic injuries”
means it “affected the plaintiff[s] in a personal and individual
have been held sufficient to “lay the basis for standing,” such
way.” Id. For an injury to be concrete, “it must actually exist.”
as injury to plaintiff's competitive position in the computer-
Id. at 340. Faced with a motion to dismiss, general factual servicing market); MSPA Claims 1, LLC v. Tenet Fla., Inc.,
allegations of injury resulting from a defendant's conduct 918 F.3d 1312, 1318 (11th Cir. 2019) (finding an allegation
may suffice, because a court “presume[s] that general factual plaintiff was not paid a reimbursement on time was “a type
allegations embrace those specific facts that are necessary to of economic injury, which [was] the epitome of ‘concrete.’
”). Restricting plaintiff's ability to make independent pricing
support the claim.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
recommendations and decisions on behalf of their customers
561 (1992) (quotations and citations omitted).
is sufficient, at this early stage, to allege an injury. Simpson
Defendants argue that each of plaintiff's claims relies on v. Union Oil, 377 U.S. 13, 16 (1961). 6
the same theory of conclusory and facially implausible
injury: “direct financial injury, including lost sales and The amended complaint also alleges that plaintiff's
commissions,” and that plaintiff has been “financially relationship with UWM was terminated because of the change
damaged” by a “reduction in choice, lost customers and in the agreement. AC ¶ 46. The termination is itself a concrete
commissions.” Doc. 46 at 21-22 (citing AC ¶¶ 47, 76, 90, 100,
112, 123, 133, 145, 156). Plaintiff counters that its amended and particularized injury. Spokeo, 578 U.S. at 339. More
complaint satisfies the general pleading rules for Article III detail and evidence supporting plaintiff's allegations about the
standing because the amended complaint alleges plaintiff is customers, sales, and commissions lost is not required at this
“the target of anticompetitive conduct,” and it was through stage of the proceeding. See, e.g., Sky Angel U.S., LLC v. Nat'l
this targeting that defendants “implemented [their] scheme to Cable Satellite Corp., 947 F. Supp. 2d 88, 106 (D.D.C. 2013)
restrain trade by a competitor.” Doc. 53 at 11-12. (rejecting defendant's argument that the complaint could not
establish an injury in fact because it did not quantify lost
*5 The amended complaint alleges that plaintiff is profits or numbers of lost subscribers).
a mortgage brokerage company that advises and helps
individuals apply for and obtain residential mortgages and Defendants argue plaintiff's claim that it lost customers
that since October 2018, it had a business relationship with interested in business with UWM is facially implausible given
UWM—“submitting mortgage loan applications on behalf plaintiff's concession that wholesale lenders “do not work
of clients to UWM and Fairway Mortgage and/or Rocket directly with consumers/borrowers until after a loan has been
Pro TPO,” bringing a “substantial number of clients to these funded, if at all[,]” doc. 46 at 22 (citing AC ¶ 3); and its further
entities.” AC ¶¶ 44-45. Plaintiff alleges further that after the allegation that a mortgage broker advises the customer of the
ultimatum, UWM terminated its wholesale lending agreement rates and terms and selects the wholesale mortgage lender. Id.
with plaintiff and refused to accept mortgage applications by (citing AC ¶ 5). Defendants argue that because the customers
its customers. Id. ¶ 46. Plaintiff states it has lost customers do not literally pick the lender, plaintiff's allegation it lost
“who were interested in loans from UWM but from who customers is implausible. But the amended complaint alleges
[plaintiff] could not offer since doing so would mean losing that it is the borrower's final decision whether to accept a loan.
customers seeking loan products from Rocket and Fairway.” AC ¶ 72 (explaining that the ultimatum “prevents prospective
Id. As a result, plaintiff claims it suffered financial damages home buyers from obtaining potentially better-suited and/
of lost sales and commissions. Id. ¶ 47. or lower-priced mortgage products.”). Accepting the well-

pleaded allegations as true, a customer seeking a mortgage 7 unlawful.’ ” Gulf States Reorg. Grp., Inc. v. Nucor Corp.,
may plausibly decide not to do business with plaintiff because
466 F.3d 961, 966 (11th Cir. 2006) (quoting Brunswick
it cannot obtain mortgage quotes from UWM.
Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)).
The Eleventh Circuit has explained the added burden on an
*6 Defendants make an additional argument regarding the
antitrust plaintiff this way: even if the defendants violated the
factual implausibility of the amended complaint. They argue
antitrust laws, the plaintiff “must still show that its injury due
that because plaintiff pleads that Rocket and Fairway offer
to those violations [is] the sort that the antitrust laws were
lower-rate mortgages, plaintiff could not be injured by being
intended to prevent.” Id.
unable to do business with UWM. Doc. 46 at 22-23. Plaintiff
does not, however, allege that Rocket and Fairway loans are
The Eleventh Circuit employs a two-step test to determine
always better priced. Rather, the Court reads the assertions
about Rocket and Fairway in the amended complaint as whether a plaintiff has antitrust standing. Palmyra Park
explaining the reason for plaintiff's rejection of defendants’ Hosp., 604 F.3d at 1299. “First, the plaintiff must have alleged
ultimatum and as context for why defendants issued it in the an antitrust injury; and second, the plaintiff must be an
first instance. And because defendants extol UWM's other
efficient enforcer of the antitrust laws.” Id. (citing Todorov
qualities as compared to different wholesalers, it is plausible
v. DCH Healthcare Auth., 921 F.2d 1438, 1448 (11th Cir.
UWM is an attractive lender for more reasons than just its rate
1991)). Defendants argue plaintiff has not met either prong.
offerings. The extent of injury suffered by plaintiff because
of an inability to engage in business with all three mortgage
The Supreme Court has defined an antitrust injury as
companies can be developed during discovery.
“flow[ing] from that which makes defendants’ acts unlawful.
The injury should reflect the anticompetitive effect either
Defendants next argue plaintiff only alleges their conduct
of the violation or of anticompetitive acts made possible
harmed Rocket and Fairway, “with no causal connection
by the violation. It should, in short, be ‘the type of loss
between defendants’ actions and plaintiff's ... injury.” Doc. 46
that the claimed violations ... would be likely to cause[,]’
at 26. See also id. at 12 (“Each of plaintiff's claims focuses
almost exclusively on the effect of defendants[’] supposed ” Brunswick Corp., 429 U.S. at 489 (quoting Zenith
actions on Rocket and Fairway—not plaintiff.”). Although Radio Corp. v. Hazeltine Rsch., 395 U.S. 100, 125 (1969)),
some allegations included the 37-page amended complaint meaning those injuries “result[ing] from interference with the
are unusual, given that Rocket and Fairway are not parties freedom to compete.” Johnson v. Univ. Health Servs. Inc.,
8
here, plaintiff plausibly alleges that UWM's conduct has 161 F.3d 1334, 1338 (11th Cir. 1998).
injured plaintiff by causing it to suffer “direct financial injury,
including loss of sales and commissions,” and that it has been *7 Defendants argue plaintiff does not establish an antitrust
“financially damaged by a reduction in choice, lost customers injury because it fails to allege “any actual reduction in
and commissions.” AC ¶¶ 46, 76. the number of competitors, reduced output, or an increase
in prices for lenders or consumers,” nor has it alleged an
anticompetitive effect on plaintiff. Doc. 46 at 27. Plaintiff
counters that an antitrust injury is established where a party is
B. Antitrust Standing
terminated for failing to participate in a group boycott. Doc.
The Court next considers whether plaintiff has sufficiently 53 at 12.
alleged antitrust standing. “To have antitrust standing, a party
must do more than meet the basic ‘case and controversy’ At this stage, I find plaintiff has plausibly alleged harm that
requirement that would satisfy constitutional standing.” may be addressed through the antitrust laws. For example,
in the amended complaint, plaintiff alleges defendants acted
Palmyra Park Hosp. v. Phoebe Putney Mem. Hosp., 604
to “boycott and force its competitors ... out of business,” in
F.3d 1291, 1299 (11th Cir. 2010) (citations and quotations
order to “suppress and eliminate competition in the wholesale
omitted). A plaintiff alleging violations of the antitrust laws
lending market[,]” leading to a restraint on trade. AC ¶ 71.
“must also show that they have suffered ‘antitrust injury,’
Plaintiff also alleges that by conspiring with acquiescing
or ‘injury of the type the antitrust laws were intended to
mortgage brokers “who would otherwise compete for new
prevent and that flows from that which makes defendant's acts
sources of wholesale lending, [defendants attempt] to force

UWM's competitors out of the wholesale lending business of the injury, whether other
and deprive mortgage customers of competing sources of potential plaintiffs were better
mortgage loans.” Id. suited to vindicate the harm,
whether the damages were highly
Plaintiff contends UWM's ultimatum “eliminat[ed] the ability speculative, the extent to which
of plaintiff ... to offer [its] clients the full array of loan apportionment of damages was
products that existed before the ultimatum was issued ... highly complex and would
prevent[ing] prospective home buyers from obtaining risk duplicative recoveries, and
potentially better-suited and/or lower-priced mortgage loan whether the plaintiff would be
products.” Id. ¶ 72. From the face of the complaint, able to efficiently and effectively
it “appears plausible that the same alleged violation [of enforce the judgment.
the antitrust laws] both reduced competition and injured
[plaintiff]—that [plaintiff's] injury ‘flows from that which
makes [defendants’] acts unlawful.’ ” Sky Angel, 947 F. Supp.
*8 Palmyra Park, 604 F.3d at 1299 (citing Todorov,
at 107 (quoting Brunswick, 429 U.S. at 489). This is so 921 F.2d at 1451-52).
because of both the alleged effect of UWM's ultimatum on
consumers and its termination of the agreement with plaintiff. Taking the allegations as true, as I must at this stage, I
See also Pace Elecs., Inc. v. Canon Comput. Sys., 213 find plaintiff would be an efficient enforcer of the antitrust
F.3d 118, 121-22, 124 (3d Cir. 2000) (finding a terminated law. Plaintiff alleges that it was injured directly because its
dealer who refused to participate in a vertical price fixing contract was terminated for not agreeing to the ultimatum
scheme sufficiently alleged an antitrust injury because it lost aimed at hurting Fairway and Rocket's share of the market.
profits and could no longer sell the defendant's brand at dealer It also alleges that it lost customers and profits because it
could not access the UWM loans, and therefore, borrowers as
prices); Big Bear Lodging Ass'n v. Snow Summit, Inc., 182 whole suffered from reduced competition among wholesalers.
F.3d 1096, 1103 (9th Cir. 1999) (holding a boycott restricting I find that, when considered together, these alleged damages
nonassociation members access to customers and supplies are direct enough to satisfy the first two factors of antitrust
“that may be necessary for effective competition” was an standing. I further find the damages are not speculative;
antitrust injury). however, as the litigation progresses, plaintiff will have to
identify its lost customers and profits.
Defendants also argue the amended complaint fails to allege
plaintiff is an efficient enforcer of the antitrust laws—the Nor do I find that there is a risk of duplicative recoveries
second prong of the Eleventh Circuit's antitrust standing because the harms, particularly those allegedly suffered by
test. Defendants’ claim that plaintiff is not a “ ‘consumer’ plaintiff directly, are specific and distinct. I make no finding,
of the mortgage nor a ‘competitor’ of UWM, but a mere however, whether other plaintiffs would be better suited to
‘commercial intermediary’ between mortgage lenders and make these claims and whether a judgment for the plaintiff
mortgage consumers ... As such, plaintiff's purported injuries “declaring the contract addendum and termination null and
do not qualify as antitrust injuries, and plaintiff cannot void, is the best way to redress the violation.” Doc. 53 at 15.
efficiently enforce any antitrust violation.” Doc. 46 at 28
Overall, I find the Palmyra factors 9 outlined above, at this
(citations and additional quotations omitted). Plaintiff argues
early stage of the litigation and considering my obligation
it is unnecessary for it to be a consumer or competitor to be
to accept all well-pleaded allegations as true, meet the
an efficient enforcer and urges the Court to follow the factors
minimum pleading standards necessary to survive a motion to
in Palmyra Park, addressed below. Doc. 53 at 18-22.
dismiss and recommend denial of defendants’ Rule 12(b)
A court considers various factors when determining whether (1) motion without prejudice.
plaintiff would be an efficient enforcer of the antitrust laws:
the directness or indirectness

of the injury, the remoteness

*9 “A plaintiff seeking the exercise of personal jurisdiction

over a nonresident defendant bears the initial burden of
II. Rule 12(b)(2) Motion to Dismiss alleging in the complaint sufficient facts to make out a prima
for Lack of Personal Jurisdiction
facie case of jurisdiction.” United Techs. Corp. v. Mazer,
Defendants also move to dismiss Ishbia from this 556 F.3d 1260, 1274 (11th Cir. 2009) (additional citations
omitted). If a defendant challenges personal jurisdiction “by
matter under Federal Rule of Civil Procedure 12(b)
submitting affidavit evidence in support of its position, the
(2), because the Court lacks personal jurisdiction over
burden traditionally shifts back to the plaintiff to produce
him. Defendants contend that plaintiff failed to “allege[ ]
personal jurisdictional connection to Florida outside of Mr. evidence supporting jurisdiction.” Madara, 916 F.2d at
Ishbia's official acts as President and CEO of UWM,” and 1514. But when the defendant provides only conclusory
Florida's corporate shield doctrine precludes the Court's allegations that it is not subject to jurisdiction, the burden
exercise of jurisdiction over him for acts committed in does not revert to the plaintiff. Louis Vuitton, 736 F.3d
furtherance of UWM's interest. Doc. 46 at 17. Plaintiff
counters that defendants have not adequately challenged at 1350 (quoting Stubbs v. Wyndham Nassau Resort &
the Court's personal jurisdiction and that Florida's corporate Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006)).
shield doctrine does not apply to his alleged conduct. Doc. 53 Defendants have submitted no affidavit(s) or other evidence
at 22-24. in support of its motion about personal jurisdiction. Thus, I
look to the amended complaint to see if plaintiff has pleaded a
As stated above, I must accept the facts alleged in the prima facie case of personal jurisdiction over Ishbia. Louis
complaint as true and “construe all reasonable inferences in Vuitton, 736 F.3d at 1350.
favor of plaintiff.” Madara v. Hall, 916 F.2d 1510, 1514
(11th Cir. 1990). Courts in the Eleventh Circuit ask two Plaintiff alleges Ishbia is a citizen of Michigan who “has
questions when determining personal jurisdiction—1) does conducted and continues to regularly conduct business in
personal jurisdiction exist under the forum state's long-arm and with mortgage brokers in the state of Florida.” AC ¶
statute; and 2) does the exercise of that “jurisdiction violate 18. Plaintiff also alleges Ishbia “knowingly and intentionally
the Due Process Clause of the Fourteenth Amendment to directed communications announcing the unlawful ultimatum
and false statements to mortgage brokers in order to justify
the U.S. Constitution.” Louis Vuitton Malletier, S.A. v. and convince mortgage brokers to acquiesce to and not
Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (additional contest the ultimatum, including plaintiff and class members
citation omitted). located in the state of Florida.” Id. ¶ 19. According to
plaintiff, “[a]t all relevant times Matthew Ishbia actively and
I look to Florida's long arm statute, Fla Stat. § 48.193, to knowingly directed and participated in the illegal scheme to
decide whether the Court has personal jurisdiction over non- boycott UWM's competitors.” Id. ¶ 52. I find these conclusory
Florida resident Ishbia and construe the statute as the Florida allegations fail to allege Ishbia has a personal connection to
state courts would. Sculptchair, Inc. v. Century Arts, Ltd., the state of Florida outside of those that are part of his job as
94 F.3d 623, 627 (11th Cir. 1996) (citations omitted). Florida's CEO of UWM. Snow v. DirecTV, Inc., 450 F.3d 1314, 1318
corporate shield doctrine precludes the exercise of personal (11th Cir. 2006) (holding vague and conclusory allegations
jurisdiction over a nonresident corporate employee sued cannot establish personal jurisdiction).
individually for conduct performed in his corporate capacity.
Doe v. Thompson, 620 So.2d 1004, 1006 (Fla. 1993). “The The corporate shield doctrine does not protect a corporate
rationale of the doctrine is the notion that it is unfair to force officer who commits intentional torts, such as fraud or
an individual to defend a suit brought against him personally other intentional misconduct. Louis Vuitton, 736 F.3d at
in a forum with which his only relevant contacts are acts
performed not for his own benefit but for the benefit of his 1355 (citing Doe, 620 So.2d at 1006 n.1). The next
question, therefore, is “whether the [amended] complaint
employer.” Id. at 1006 (quotations and citations omitted). sufficiently states a cause of action for an intentional tort.
LaFreniere v. Craig-Myers, 264 So.3d 232, 239 (Fla. 1st
DCA 2018) (citations omitted). Plaintiff has alleged at least

one intentional tort against Ishbia, tortious interference with

Levine v. World Fin. Network Nat'l Bank, 437 F.3d 1118,
business contracts and prospective advantage (count VII);
1120 (11th Cir. 2006). “A well-pleaded complaint may
but because of pleading infirmities outlined below, count
proceed even if it strikes a savvy judge that actual proof of
VII should be dismissed and it cannot serve as plaintiff's
those facts is improbable, and that a recovery is very remote
jurisdictional hook to Ishbia. Drewes v. Cetera Fin. Group,
Inc., No. 19-cv-80531-KAM, 2020 WL 1875639, at *3-*4 and unlikely.” Twombly, 550 U.S. at 556 (internal citation
(S.D. Fla. 2020). and quotation omitted).
I respectfully recommend defendants’ motion to dismiss

A. Unlawful Restraint of Trade, Section One of the
for lack of personal jurisdiction under Rule 12(b)(2) Sherman Act
be granted and Ishbia dismissed from this lawsuit without Plaintiff sues for unlawful restraint of trade in violation of the
prejudice.
Sherman Act, 15 U.S.C. § 1 (count I). The heart of this
claim is the allegation that defendants “engaged in a concerted
action and course of conduct with its acquiescing mortgage
III. Rule 12(b)(6) Motions for Failure to State a Claim brokers to effectively boycott and force its competitors,
[Fairway and Rocket], out of business, to suppress and
Defendants argue that each count of the amended complaint eliminate competition in the wholesale lending market.” AC
fails to state a claim upon which relief can be granted ¶ 71. Defendants, plaintiff alleges, used the ultimatum to
encourage brokers to boycott Rocket and Fairway, creating
and move to dismiss each count under Rule 12(b)(6).
a “classic ‘hub-and-spoke’ horizontal conspiracy between
To survive a motion to dismiss under Rule 12(b)(6), a itself and mortgage brokers who would otherwise compete
complaint must contain a “short and plain statement of the with each other for new sources of wholesale lending.”
claim showing that the pleader is entitled to relief.” Fed. Id. This conspiracy, plaintiff claims, would “force UWM's
R. Civ. P. 8(a)(2). The Supreme Court has explained this competitors out of the wholesale lending business and deprive
requires “a complaint ... contain sufficient factual matter, mortgage customers of competing sources for mortgage
accepted as true, to ‘state a claim to relief that is plausible loans.” Id.
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
Section One of the Sherman Act, under which counts
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. I and II are brought, provides that “[e]very contract,
544, 570 (2007)). “A claim has facial plausibility when combination in the form of trust or otherwise, or conspiracy,
the plaintiff pleads factual content that allows the court to in restraint of trade or commerce among the several States,
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Conclusory allegations or with foreign nations, is declared to be illegal.” 15
are insufficient. Twombly, 550 U.S. at 55 (“[A] plaintiff's U.S.C. § 1. In interpreting this prohibition, the Supreme
obligation to provide the grounds of his entitlement to Court explained that “Congress intended only to prohibit
relief requires more than labels and conclusions, and a ‘unreasonable’ restraints on trade.” Quality Auto Painting
formulaic recitation of the elements of a cause of action will Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d
not do ....”) (alterations, quotations, and citations omitted).
1249, 1261 (11th Cir. 2019) (citing Arizona v. Maricopa
“The plausibility standard ‘calls for enough fact to raise a
Cnty. Med. Soc., 457 U.S. 332, 343 (1982)). See also
reasonable expectation that discovery will reveal evidence’
Texaco, Inc. v. Dagher, 547 U.S. 1, 5 (2006) (emphasis
of the defendant's liability.” Chaparro v. Carnival Corp.,
in original) (observing that the Supreme Court does not take
693 F.3d 1333, 1337 (2012) (quoting Twombly, 550 U.S. a “literal approach” to the language of Section One, but
at 556). “has long recognized that Congress intended to outlaw only
unreasonable restraints[.]”). A Section One claim has three
*10 In deciding a Rule 12(b)(6) motion, a district elements: (1) a conspiracy that (2) unreasonably (3) restrains
court should construe the complaint broadly and view the interstate or foreign trade. Quality Auto Painting, 917 F.3d
allegations in the light most favorable to the plaintiff. at 1260 (citation omitted).

In deciding whether an alleged restraint is unreasonable, A court's decision “to apply the per se rule turns on
a court generally analyzes the claim under one of two whether the practice facially appears to be one that would
always or almost always tend to restrict competition and
frameworks—the rule of reason or the per se rule. MM
decrease output ... or instead one designed to ‘increase
Steel, L.P. v. JSW Steel (USA) Inc., 806 F.3d 835, 848 (5th
economic efficiency and render markets more, rather than
Cir. 2015). Antitrust claims are typically analyzed under the
rule of reason, which requires a court to “decide whether less competitive.’ ” Nw Wholesale Stationers, Inc. v.
the questioned practice imposes an unreasonable restraint Pac. Stationary and Printing Co., 472 U.S. 284, 289 (1985)
on competition, taking into account a variety of factors,
(quoting Broadcast Music, Inc. v. Columbia Broadcast.
including specific information about the relevant business,
Sys., Inc., 441 U.S. 1, 19-20 (1979)). Generally, horizontal
its condition before and after the restraint was imposed, and
agreements are per se illegal, In re Disposable Contact
the restraint's history, nature, and effect.” State Oil Co. v.
Lens Antitrust Litig., 215 F. Supp. 3d 1272, 1291 (M.D.
Khan, 522 U.S. 3, 10 (1997).
Fla. 2016), as are group boycotts, “because, in the courts’
experience, [these business relationships], virtually always
But as the law has developed, courts have recognized that
stifle competition.” Jacobs, 626 F.3d at 1334 (citing
some restraints on trade are per se illegal. State Oil,
United States v. Topco Assocs., Inc., 405 U.S. 596,
522 U.S. at 10 (citing Maricopa Cnty., 457 U.S at 344).
“Some types of restraints ... have such predictable and 607-08 (1972)). See also State Oil, 522 U.S. at 10
pernicious anticompetitive effect, and such limited potential (additional quotations and citation omitted) (“Per se treatment
for procompetitive benefit, that they are deemed unlawful per is appropriate once experience with a particular kind of
restraint enables the Court to predict with confidence that the
se.” Id. (citing N. Pac. R. Co. v. United States, 356 U.S.
rule of reason will condemn it.”).
1, 5 (1958)). See also Jacobs v. Tempur-Pedic Intern., Inc.,
626 F.3d 1327, 1334 (11th Cir. 2010) (additional citations The Supreme Court has cautioned, however, against adopting
omitted) (explaining “per se violations of § 1 of the Sherman per se rules “where the economic impact of certain practices
Act are limited to a very small class of antitrust practices
is not immediately obvious.” Dagher, 547 U.S. at 5
whose character is well understood and that almost always
(additional citations and quotations omitted). The courts,
harm competition.”).
therefore, “should apply the per se label ‘infrequently and
with caution.’ ” United Am. Corp. v. Bitmain, Inc., 530 F.
*11 Plaintiff does not bring separate counts for each theory
of relief (rule of reason or per se) under Section One; instead, Supp. 3d 1241, 1272 (S.D. Fla. 2021) (quoting Seagood
Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1567 (11th Cir.
in count I, it mashes all theories together and hedges 10 ,
1991)).
alleging defendants’ conduct should be treated as a per se
violation of antitrust law, but even if the Court applies
Whether to apply the per se or rule-of-reason analysis is a
the “rule-of-reason approach,” defendants have unlawfully
restrained trade. AC ¶ 74. Defendants argue counts I, II, question of law for a trial court. Procaps S.A. v. Patheon,
IV and V fail because plaintiff has not alleged a horizontal
36 F. Supp. 3d 1306, 1323 (S.D. Fla. 2014) (citing State
boycott or hub-and-spoke conspiracy; that it has failed to
Oil, 522 U.S. 3 (1997)). The Court is therefore required to
establish a per se violation of the Sherman Act; and that
undertake some analysis to determine the economic effect,
even when its claims are assessed under the rule-of-reason
framework, it fails to state a claim upon which relief can be if any, of the alleged restraint on trade. Cont'l T.V.,
granted. Doc. 46 at 29-35. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58-59 (1977)
(“[D]eparture from the rule-of-reason standard must be based
*12 The amended complaint is confusing and laden with upon demonstrable economic effect rather than ... upon
buzz words. The Court must, therefore, undertake its own formalistic line drawing.”); Bitmain, 530 F. Supp. 3d at
study of these specialized relationships and what must be pled 1274 (finding plaintiff failed to “make factual assertions that
at this stage for plaintiff to move forward. plausibly suggest[ed] [d]efendants, through bid rigging or
group boycott, committed a per se violation of § 1 of the

Sherman Act.”); In re Disposable Contact Lens Antitrust

among direct competitors.” NYNEX Corp. v. Discon, Inc.,
Litig., 215 F. Supp. 3d 127 (holding plaintiffs stated a per
525 U.S. 128, 135 (1998) (detailing an example of group
se claim at the motion to dismiss stage); but see In re Blue
boycott “in the strongest sense: A group of competitors
Cross Blue Shield Antitrust Litig., 26 F. Supp. 3d 1172, 1187
threatened to withhold business from third parties, unless
(N.D. Ala. 2014) (denying a motion to dismiss a Section One
those third parties would help them injure their directly
claim as it was “simply too early to assess which standard of
competing rivals.”). The Court reasoned that
review should be applied to plaintiffs’ allegations[,]” because
even though the question whether rule-of-reason or per se [t]he freedom to switch suppliers lies close to the heart
analysis applies is a question of law, “it is predicated on a of the competitive process that the antitrust laws seek to
factual inquiry into the restraint's competitive effect.”). With
encourage. Cf. Standard Oil, 221 U.S. at 62, 31 S.Ct.
this framework in mind, the Court undertakes its analysis of
502 (noting “the freedom of the individual right to contract
the amended complaint, doc. 32.
when not unduly or improperly exercised [is] the most
efficient means for the prevention of monopoly”). At the
*13 Plaintiff here alleges the restraint on trade is the group
same time, other laws, for example, “unfair competition”
boycott, which took the form of an ultimatum. The Eleventh
laws, business tort laws, or regulatory laws, provide
Circuit has defined a group boycott as:
remedies for various “competitive practices thought to
be offensive to proper standards of business morality.”
3 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 651d,
[p]ressuring a party with whom one
p. 78 (1996). Thus, this Court has refused to apply per
has a dispute by withholding, or
se reasoning in cases involving that kind of activity. See
enlisting others to withhold, patronage
or services from the target. The Brooke Group Ltd. v. Brown & Williamson Tobacco
ultimate target of the agreement can be Corp., 509 U.S. 209, 225, 113 S.Ct. 2578, 125 L.Ed.2d
either a competitor or a customer of 168 (1993) (“Even an act of pure malice by one business
some or all of the [boycotters] who is competitor against another does not, without more, state
being denied access to desired goods a claim under the federal antitrust laws”); 3 Areeda &
or services because of a refusal to Hovenkamp, supra, ¶ 651d, at 80 (“[I]n the presence of
accede to particular terms set by some substantial market power, some kinds of tortious behavior
or all of the [boycotters]. could anticompetitively create or sustain a monopoly, [but]
it is wrong categorically to condemn such practices ... or
categorically to excuse them”).
Quality Auto Painting, 917 F.3d at 1271 (citations and Id. at 137 (alterations, punctuation and citations in original).
quotation marks omitted). See also In re Keurig Green

The gist of plaintiff's Section One claim is this: because
Mountain Single Serve Coffee Antitrust Litig., 383 F. Supp.
UWM mandated its brokers sign the ultimatum and 93 percent
3d 187, 245 (S.D.N.Y 2019) (citation and quotation omitted)
of the brokers complied, it is per se illegal. This theory
(explaining a “group boycott is an agreement to pressure a
fails for three reasons. First, there is no plausible allegation
supplier or customer not to deal with another competitor.”).
of a horizontal agreement between UWM and its direct
Plaintiff argues it has sufficiently alleged its boycotting claim
competitors; second, plaintiff does not provide sufficient
is a per se violation of Section One.
factual material supporting its claim that UWM took part
in a hub-and-spoke conspiracy with brokers, specifically
that the brokers entered into any agreement with each
i. Per se analysis other. Third, and finally, even if plaintiff plausibly alleged
a horizontal agreement among direct competitors, the claim
The Supreme Court has treated boycotts as per se unlawful, fails because per se treatment only applies to cases in
see, e.g., Klor's, Inc. v. Broadway Hale Stores, Inc., 359 which “the conspirators imposing the group boycott possess
U.S. 207 (1959). But it has limited “the per se rule in the market power or exclusive access to an element essential to
boycott context to cases involving horizontal agreements effective competition.” Doc. 46 at 30 (quotations and citations
omitted).

the boat’; ‘with us or against us’; and ‘all for one and one
*14 Labels and buzzwords notwithstanding, plaintiff has for all.’ ” Id. (punctuation and errors in original). See also
not pleaded factual matter suggesting defendants’ ultimatum id. ¶ 33 (recounting broker comments allegedly “reflecting
and accompanying behavior was a horizontal agreement an agreement to boycott.”). Plaintiff contends the boycott
between UWM and its direct competitors. UWM is a was “successful” because UWM announced that 93 percent
wholesale mortgage lender; there is no allegation in the of the brokers participated. Id. ¶ 13. Critically, plaintiff
amended complaint that UWM conspired with one of its conclusorily alleges that “UWM further facilitated the boycott
direct competitors, such as another wholesale lender, to push by providing forums for mortgage brokers to join the boycott
Rocket and Fairway out of the market. Bitmain, 530 F. Supp. in plain sight, assisting each other with terminating their
3d at 1273 (finding plaintiff had not pleaded a group boycott relationships with Rocket and Fairway. UWM joined in
entitled to per se treatment because not all defendants were facilitating these terminations.” Id.
competitors).
*15 Plaintiff explains in the amended complaint the various
Plaintiff argues its Section One claim is nevertheless entitled parts of the alleged conspiracy this way:
to per se treatment because it is a “horizontal hub-and-spoke
conspiracy.” Doc. 53 at 27. A hybrid type of agreement 49. As the hub, UWM hosted a live event, calling on
“dubbed a ‘hub and spoke’ conspiracy exists where an entity mortgage brokers in attendance to boycott its competitors,
at one level of the market structure (the ‘hub’) coordinates and further facilitated that boycott by assisting brokers in
an agreement among competitors at a different level (the terminating their relationships with Rocket and Fairway.
‘spokes’).” Bitmain, 530 F. Supp. 3d at 1255-56 (citations UWM coerced and enforced the boycott by asking the
omitted). “A horizontal conspiracy either alone, or as part of a boycotting brokers to sign the addendum that would
‘rimmed hub-and-spoke conspiracy,’ defined as ‘a collection penalize brokers that continued to do business with Rocket
of vertical agreements joined by horizontal agreements,’ is and Fairway.
a per se violation of § 1 of the Sherman Act.” In re 50. Mortgage brokers, as the spokes, joined the boycott in
Disposable Contact Lens Antitrust Litig., 215 F. Supp. 3d plain sight. Their concerted actions formed the rim of the
conspiracy. The brokers’ agreements to participate in the
at 1294 (citing In re Musical Instruments and Equip.
boycott immediately restructured the market by preventing
Antitrust Litig., 798 F.3d 1186, 1192 n.3 (2015)). Once a
mortgage brokers from conducting business in which they
horizontal agreement, alone or as part of a hub-and-spoke
submitted loan applications to UWM, Rocket and Fairway
conspiracy, is established, a court need not inquire further into
on behalf of their clients.
the alleged wrongful act's effect on the market. Id. (citations
omitted). Id. ¶¶ 49-50 (emphasis added).
Plaintiff alleges that “by coercing mortgage brokers to boycott An agreement under Section One of the Sherman Act is a
the wholesale lending business of its competitors, it created “conscious commitment to a common scheme designed to
a classic hub-and-spoke horizontal conspiracy between itself
and mortgage brokers who would otherwise compete with achieve an unlawful objective.” Monsanto Co. v. Spray-
each other for new sources of wholesale lending[.]” AC ¶ Rite Serv. Corp., 465 U.S. 752, 764 (1984) (quotations and
71. The amended complaint alleges that “[m]any brokers citations omitted). “The critical issue for establishing a per se
in attendance at the [Facebook] event explicitly heeded Mr. violation with the hub and spoke system is how the spokes
Ishbia's clarion call to boycott UWM's closest competitors.” are connected to each other.” Total Benefits Plan. Agency,
Id. ¶ 12. Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 436
(6th Cir. 2008).
Plaintiff gives examples of broker comments during the
virtual event. Some of those broker comments were: “ ‘We Plaintiff's allegation of a per se violation based on a hub-
are ALL IN’ ‘unstoppable together ...’ ‘We are all family! and-spoke conspiracy fails because there are not enough
Brokers are better when we work together’; ‘Brokers are facts in the amended complaint to plausibly suggest that
family. We don't go against our family’; ‘All in .... with the brokers agreed among themselves to boycott Rocket and
us or out’; ‘You're either with the captain [UWM] or off Fairway. Put differently, plaintiff does not plausibly allege

any horizontal agreement between each spoke (the brokers); deal, 12 which justified per se illegality.” Doc. 53 at 25
only a hub (UWM) and vertical agreements between it and (citation omitted). Only in specific contexts not applicable
each spoke (the brokers). There are no factual allegations of here, plaintiff argues, does a court require showing market
any agreement among the brokers. See doc. 46 at 32-33. The conditions. Id. I disagree.
wheel, in antitrust terms, has no rim, and a rimless wheel
does not amount to a per se restraint-of-trade under Section In Northwest Wholesale, the defendant expelled a competitor
One. The Ninth Circuit explained the centrality of a horizontal from a wholesale cooperative. The Supreme Court faced the
agreement between vertical members of the conspiracy this question of whether a rule-of-reason or per se analysis should
way: “a rimless hub-and spoke conspiracy is not a hub-and-
spoke conspiracy at all (for what is wheel without a rim?); it is apply. 472 U.S. at 297. The Court rejected per se treatment
because the plaintiff had not made a preliminary showing
a collection of purely vertical agreements.” In re Musical the expulsion was “characteristically” likely “to result in
Instruments and Equip. Antitrust Litig., 798 F.3d 1186, 1192
n.3 (9th Cir. 2015) (citation omitted). predominately anticompetitive effects.” Id. at 296. Put
another way, “conduct is unreasonable per se when it ‘always
As alleged, independent expressions of enthusiasm and or almost always tends to restrict competition and decrease
encouragement among brokers observing Ishbia's speech and output.’ ” Retina Assocs., P.A. v. S. Baptist Hosp. of Fla.,
conclusory allegations that UWM “provid[ed] forums” or Inc., 105 F.3d 1376, 1381 (11th Cir. 1997) (quoting Broadcast
“joined in facilitating these terminations” are not enough to Music, Inc. v. Columbia Broad. Sys., 105 F.3d 1376, 1381
plausibly suggest “concerted actions” or an agreement among (11th Cir. 1997)). See also F.T.C. v. Ind. Fed. of Dentists,
the brokers sufficient to form the rim of a conspiracy. See 47 U.S. 447, 458-59 (1986) (holding that the policy of the
defendants was a group boycott; nevertheless, the Supreme
In re. Ins. Brokerage Antitrust Litig., 618 F.3d 300, Court did not invoke the per se rule, because it was not a
329-30 (3d Cir. 2010) (rejecting the plaintiff's attempt to infer case in which “firms with market power boycott suppliers or
a horizontal agreement from information sharing between the customers in order to discourage them from doing business
spokes and upholding the district court's refusal to find a per with a competitor ....”).
se hub-and-spoke conspiracy when the plaintiff established
no agreement between the spokes). Nor is it sufficient that Applications of “the per se approach have generally involved
the brokers knew they were all accepting UWM's ultimatum. joint efforts by a firm or firms to disadvantage competitors
In re EpiPen Direct Purchaser Litig., No. 20-cv-0827 (ECT/ by either directly denying or persuading or coercing suppliers
JFD), 2022 WL 101770, at *7 (D. Minn. Apr. 5, 2022) or customers to deny relationships the competitors need in
(citations and quotations omitted) (explaining the vertical
spokes’ knowledge of the other vertical spokes’ deals with the the competitive struggle.” Nw Wholesale, 472 U.S. at
hub was insufficient to establish an agreement under Section 294 (citations and quotations omitted). The Court explained
that in cases where the per se rule was applied, “the
One, and so its hub-and spoke conspiracy failed). 11
boycott often cut off access to a supply, facility, or market
necessary to enable the boycotted firm to compete ...
*16 Even if plaintiff had sufficiently alleged a horizontal
and frequently the boycotting firms possessed a dominant
agreement between direct competitors (either between UWM
position in the relevant market.” Id. (citations omitted).
and competing wholesale residential mortgage lender, or as
Critically, the Court highlighted that “not every cooperative
part of a (rimmed) hub-and-spoke conspiracy), I find its
activity involving a restraint or exclusion will share with the
Section One claim is still not entitled to per se treatment
per se forbidden boycotts the likelihood of predominately
because plaintiff has not plausibly alleged UWM and the
mortgage brokers it conspired with wield “market power anticompetitive consequences.” Id. at 295. “Unless the
or exclusive access to an element essential to effective cooperative possesses market power or exclusive access to an
element essential to effective competition, the conclusion that
competition.” Nw Wholesale, 472 U.S. at 295 (citations
expulsion is virtually always likely to have an anticompetitive
omitted).
effect is not warranted.” Id. (citations omitted).
Plaintiff argues coercive acts, like ultimatums by customers

Plaintiff argues Retina and Northwest Wholesale’s holdings
or distributors to boycott a competing supplier “have long
are limited; that the requirement of a “preliminary
been held to constitute a horizontal, concerted refusal to

examination of market conditions surrounding the alleged a product and a geographic dimension.” Spectrofuge Corp. v.
restraint” before applying a per se rule applies only when a Beckman Instruments, Inc., 575 F.2d 256, 276 (5th Cir. 1978).
“wholesale cooperative or a professional association where Nor does it allege that UWM possessed the market power in
expulsion for violation of a rule is expected[.]” Doc. 33 the relevant market (before or after the ultimatum). The Court
at 30 (additional citations omitted). I disagree. The holding acknowledges that anticompetitive effect is a fact-intensive
of Northwest Wholesale is not limited to any particular inquiry developed in discovery, doc. 53 at 36; the amended
organization, such as cooperatives and associations, because complaint, however, does not allege sufficient facts, which
in its decision, the Court “engaged in a[n] explicit and detailed could be developed further in discovery, that UWM wielded
survey of the broad classes of cases that comprise the ‘group actual market power or exclusive access.
boycott category.’ ” Victory Int'l (USA) Inc. v. Perry Ellis Int'l,
Inc., No. 08-20395-Civ, 2008 WL 11468225, at *6 (S.D. Fla. The Eleventh Circuit has also suggested that a plaintiff may
establish entitlement to a per se rule if “prior cases have
June 12, 2008) (citing Nw Wholesale, 472 U.S. at 293-94).
shown that a certain practice” regularly poses anticompetitive
consequences, “a deleterious effect on the market will be
*17 Upon review of the amended complaint, it is not facially
presumed[,] and no detailed market analysis is required.”
apparent, nor characteristically likely that the anticompetitive
conduct alleged here cut off consumer or broker access to the Retina Assocs., 105 F.3d at 1381. See, e.g., Pierson v.
wholesale mortgage market. Plaintiff has not plausibly pled Orlando Reg'l Healthcare Sys., Inc., 619 F. Supp. 2d 1260,
UWM's market dominance, or that plaintiff's access to certain 1278 (M.D. Fla. 2009) (noting that where plaintiff could not
essential supplies (wholesale mortgages) needed to compete cite a case in which the alleged anticompetitive conduct was
a per se Section One violation, it had to “rely on the rule of
was cut off. Nw Wholesale, 472 U.S. at 295. Additionally,
reason” to set forth a Section One violation.). Plaintiff has
it is not facially apparent that an ultimatum of this nature in the
pointed to no historical comparison, no case on all fours with
wholesale mortgage market “tends to restrict competition and
the group boycott alleged here, when a court analyzed the case
decrease output.” Retina Assocs., 105 F.3d at 1381 (citation
under the per se rubric.
and quotations omitted).
*18 I respectfully recommend counts I and IV be dismissed

The amended complaint fails to plausibly allege UWM
without prejudice because plaintiff failed to plausibly allege
possessed a dominant position in the marketplace at the
defendants committed a per se violation.
time of the ultimatum or after 93 percent of its mortgage
brokers signed the addendum promising not to do business
with Rocket or Fairway. “[T]he principal judicial device for
measuring actual or potential market power remains market ii. Rule-of-Reason Analysis
share[.]” U.S. Anchor Mfg. v. Rule Indus., Inc., 7 F.3d 986, “Restraints that are not unreasonable per se are judged
994 (11th Cir. 1993). The Court assumes, without deciding,
that the market here is the wholesale lending market, not the under the rule of reason.” Ohio v. Am. Express Co., 138
mortgage lending market as a whole. See AC ¶ 3 (“Within S. Ct. 2274, 2284 (2018). The Supreme Court explained
the market for residential mortgage lending in the United that “[t]he rule of reason requires courts to conduct a fact-
States, the relevant sub-market for this case is the market specific assessment of ‘market power and market structure ...
for wholesale lending for mortgages sold through mortgage to assess the restraint's actual effect’ on competition.” Id.
brokers.”). 13 (citations and quotations omitted) See also Dagher, 547

U.S. at 5 (explaining that whether the restraint is an undue
Plaintiff alleges UWM has about 34 percent market share of burden presumptively turns on a rule-of-reason analysis).
the wholesale lending channel, and that 93 percent of brokers The Supreme Court has outlined a three-step, burden-shifting
who were given the addendum agreed to it. AC ¶¶ 6, 96. analysis to determine whether a particular restraint violates
Plaintiff does not plead or estimate, however, what percentage
the rule of reason. Am. Express Co., 138 S. Ct. at 2284.
of the brokers in the wholesale market as a whole “joined the
boycott.” See, e.g., AC ¶ 13. Thus, for example, the plaintiff Under this approach, a plaintiff “has the initial burden
does not plead what the effect of the boycott was vis-à-vis to prove that the challenged restraint has a substantial
the relevant market. “The relevant market is defined by both

anticompetitive effect that harms consumers in the relevant Channel Commc'n., 376 F.3d 1065, 1072-73 (11th Cir. 2004)
market.” Id. (citations omitted). If a plaintiff makes such (citation and quotations omitted). For the reasons discussed
a showing, the burden shifts back to the defendant to above while analyzing the anticompetitive effect of UWM's
show “a procompetitive rationale for the restraint.” Id. conduct, plaintiff has not alleged sufficient factual detail
(citations omitted). “If a defendant makes that showing, to support its claim that the alleged unlawful behavior—
then the burden shifts back to plaintiff to demonstrate that the ultimatum—had the potential for genuine adverse effects
the competitive efficiencies could be reasonably achieved
on competition. Id. at 1073-74 (explaining damage to a
through less anticompetitive means.” Id.
specific competitor may also damage competition in general
when a plaintiff draws that implication with specific factual
These steps are not to be applied mechanically or without
allegations).
thought; rather, “[t]he whole point of the rule of reason is
to furnish ‘an enquiry meet for the case, looking to the
Further, the amended complaint does not offer a “clear
circumstances, details and logic of a restraint’ to ensure that it
picture” of UWM's total market power; nor has plaintiff
duly harms competition before a court declares it unlawful.”
plausibly connected the ultimatum to possible harm to
Nat'l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, competition. Appleton v. Intergraph Corp., 627 F. Supp.
2d 1342, 1355 (M.D. Ga. 2008). The amended complaint
2160 (2021) (citing Ca. Dental Assn v. FTC, 526 U.S. 756,
describes defendants’ wrongful conduct directed at Rocket
781 (1999)).
and Fairway, via the ultimatum; but fails to allege a sufficient
link between the ultimatum and harm to competition within
To fulfill step one—showing an anticompetitive effect on
the wholesale retail mortgage market. Id.
the market—plaintiff may either show 1) “the potential for
genuine adverse effects on competition;” or 2) that the
I respectfully recommend counts I and IV be dismissed
“behavior had an actual detrimental effect on competition.”
without prejudice because plaintiff failed to plausibly allege
Levine v. Cent. Fla. Med. Affiliates, 72 F.3d 1538, 1551 defendants committed a rule-of-reason violation. Id.
(11th Cir. 1996) (citations and additional quotations omitted).
Plaintiff can meet this initial burden with direct or indirect
evidence. American Express Co., 138 S. Ct. at 2284. B. Unlawful Steering, Section One of the Sherman Act
“Direct evidence of anticompetitive effects would be proof
of actual detrimental effects on competition, such as reduced In count II, plaintiff alleges defendants, using the ultimatum
output, increased prices, or decreased quality in the relevant and addendum, unlawfully restrained trade by inducing
market ... [i]ndirect evidence would be proof of market mortgage brokers in the wholesale mortgage market to
power plus some evidence that the challenged restraint harms steer their clients “away from what are often-times better-
competition.” Id. (citations and quotations omitted). suited and/or lower-priced mortgage loan products offered by
[Fairway and Rocket] and/or forcing and coercing mortgage
Upon review of the amended complaint and plaintiff's brokers in the wholesale lending market to steer their clients
response to the motion to dismiss, it is clear plaintiff is to often-times ill-suited and/or higher-priced mortgage loan
proceeding on the theory that defendants’ behavior had the products offered by UWM.” AC ¶ 84. This violation is based
potential for adverse effects on competition; see, e.g., doc. 53 on the same conduct addressed above in the Court's analysis
at 35 (citing AC ¶ 66) (arguing it is clear from the ultimatum of the unlawful boycott claim and will not be repeated here.
and the contract addendum that the boycott of independent
brokers was “designed to shut out competition, which will Defendants proffer, and plaintiff does not contradict,
harm customers and the wholesale market.”). that steering is not a separate claim from boycott, but
“a description sometimes applied to contract provisions
*19 To proceed on the theory that anticompetitive challenged as unreasonable restraints under Section [One].”
conduct has the potential for “genuine adverse effects on Docs. 46 at 40-41, 53 at 36. See Quality Auto Painting,
competition,” plaintiff is required “to define the relevant 917 F.3d at 1271 (analyzing steering and boycott allegations
market and establish defendants possessed power in that together where plaintiffs alleged insurance companies
market.” Spanish Broad. Sys. of Fla., Inc. v. Clear engaged in steering by unlawfully discouraging insureds

from using a certain repair shop by using misrepresentations Plaintiff alleges there is a “dangerous probability UWM will
and other deceitful methods.). Essentially, count II is a re- monopolize the wholesale mortgage market” because of its
allegation of unlawful restraint on trade, see section A. ultimatum and related overt acts. AC ¶ 96. Plaintiff states
Because the same analysis applicable to counts I and IV apply UWM has a 34 percent market share, which is currently the
here, I recommend that counts II and V be dismissed without largest share of the wholesale mortgage market, AC ¶ 96;
prejudice. and “[p]rior to the illegal conduct alleged herein, Rocket
had the second-largest share of the market, and Fairway had
the eighth-largest share of the market. Collectively, UWM's
illegal conduct has been designed to eliminate over 50 percent
C. Attempted Monopolization,
of the competition in the wholesale lending market.” AC ¶ 96.
Section Two of the Sherman Act
In count III, plaintiff sues under Section Two of the Sherman Again, as in the Section One analysis, the Court assumes,
Act, for attempted monopoly. That section makes it a crime without deciding, that the relevant market is the wholesale
to “monopolize, or attempt to monopolize, or combine or lending market; still, plaintiff has not pleaded facts plausibly
conspire with any other person or persons, to monopolize any suggesting defendants possessed enough market power to
part of the trade or commerce among the several States, or pose a danger of monopolization. A “dangerous probability of
success arises when the defendant comes close to achieving
with foreign nations[.]” 15 U.S.C. § 2. “This provision
monopoly power in the relevant market.” Gulf States Reorg.
covers behavior by a single business as well as coordinated
Grp., Inc. v. Nucor, 721 F.3d 1281, 1285 (11th Cir. 2013)
action taken by several businesses.” Spanish Broad. Sys.,
(citing Levine v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d
376 F.3d at 1074 (citing 15 U.S.C. § 2). A claim for attempted
1538, 1555 (11th Cir. 1996)).
monopolization must establish “three distinct elements: ‘(1)
the defendant has engaged in predatory or anticompetitive
Put another way, plaintiff has the burden to show that, as result
conduct with (2) a specific intent to monopolize and (3) a
of the wrongful conduct, there is a dangerous probability a
dangerous probability of achieving monopoly power.’ ” Id.
monopoly will exist or already exists. A 34 percent market
(quoting Spectrum Sports, Inc. v. McQuillan, 506 U.S. share does not plausibly suggest that UWM has come close
447, 456 (1993)). “Monopoly power is ‘the power to raise to achieving monopoly power in the relevant market. See
prices to supra-competitive levels or ... the power to exclude
U.S. Anchor Mfg., 7 F.3d at 1001 (holding that because
competition in the relevant market either by restricting entry
the defendant “possessed less than 50 percent of the market
of new competitors or by driving existing competitors out of
at the time the alleged predation began and throughout the
the market.’ ” U.S. Anchor Mfg., 7 F.3d at 994 (quoting time when it was alleged to have continued, there was no
dangerous probability of success ... as a matter of law.”);
Am. Key Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1581
Paycargo, LLC v. CargoSpring, LLC, No. 3:19-cv-85-TCB,
(11th Cir. 1985)).
2019 WL 5793113, at *5 (N.D. Ga. Nov. 4, 2019) (collecting
cases explaining that even when a plaintiff pleads a defendant
*20 A claim brought under Section Two, like claims brought
has at least 50 percent market share, they must also “show that
under Section One “require[s] harm to competition that
new rivals are barred from entering the market.”); Moecker
must occur within a ‘relevant,’ that is, a distinct market,
v. Honeywell Intern., Inc., 144 F. Supp. 2d 1291, 1308 (M.D.
with a specific set of geographical boundaries and a narrow
Fla. 2001) (citations and quotations omitted) (explaining that
delineation of the products at issue.” Spanish Broad. Sys., “[a]lthough a high market share ... may ordinarily raise an
376 F.3d at 1074 (citing U.S. Anchor Mfg., 7 F.3d at inference of monopoly power, it will not do so in a market
995). For a Section One claim, the “relevant market” must be with low entry barriers or other evidence of a defendant's
harmed by an alleged unreasonable restraint on trade; to bring ability to control process or exclude competitors.”).
a Section Two claim, however, defendants “must possess
enough power or potential power in this relevant market [to] Plaintiff's conclusory allegations that before the offending
conduct, Rocket and Fairway held the second and eighth
harm competition.” Id. (citing Morris Commc'ns Corp. v. largest share of the market and therefore defendants’ illegal
PGA Tour, Inc., 364 F.3d 1288, 1293-94 (11th Cir. 2004)). conduct sought to eliminate 50 percent of its competition

are insufficient to plead market share. “There can be no Care Dist. v. Prof'l Med. Educ., Inc., 13 So.3d 1090, 1094
‘dangerous probability of success’ [under Section Two of the (Fla. 4th DCA 2009) (citation omitted).
Sherman Act] if the defendant ‘was never able to maintain a
majority position in the market.’ ” Gulf States Reorg. Grp., Defendants argue count VII must be dismissed for four
Inc. v. Nucor, 822 F. Supp. 2d 1201, 1237 (N.D. Ala. 2011) reasons: 1) the claim is facially implausible; 2) the amended
complaint identifies no actual business contract or advantage
(quoting U.S. Anchor Mfg., 7 F.3d at 1001). Because I find
breached or interrupted because of the contract; 3) plaintiff
plaintiff has failed to plead UWM has a dangerous probability
cannot plead a viable theory of damages; and 4) plaintiff failed
of achieving monopoly power, I need not reach the question
to allege facts demonstrating defendants had the requisite
of whether plaintiff has sufficiently pled “defendants engaged
intent to violate Florida law. Doc. 46 at 45-48.
in predatory or anticompetitive conduct with a specific intent
to monopolize[.]” Spectrum Sports, 506 U.S. at 456. 14 This count, as pleaded, must be dismissed. The business
contract and prospective economic advantage that serves 15
*21 I recommend that counts III and VI be dismissed
as the basis for the claim is the relationship between plaintiff
without prejudice.
and borrowers desiring mortgage loans from Fairway or
Rocket, AC ¶ 137; not the relationship between UWM and
plaintiff. Id. ¶¶ 137-48. Plaintiff alleges that it retained
D. Tortious Interference with Business contracts with Rocket and Fairway because it did not agree
Contracts and Prospective Advantage to the ultimatum, and thus the amended complaint identifies
no business contract or prospective economic advantage
In count VII, plaintiff brings a claim against UWM for interrupted by the ultimatum or boycott.
tortious interference with business contracts and prospective
advantage, presumably under Florida law, though plaintiff While a cause of action may lie for present or prospective
does not specify. customers, “[a]s a general rule, an action for tortious
interference with a business relationship requires a business
Plaintiff's theory is as follows: plaintiff “had and w[as] likely relationship evidenced by an actual and identifiable
to maintain business contracts and/or prospective economic understanding or agreement which in all probability would
advantage with borrowers desiring mortgage loans from have been completed if the defendant had not interfered.”
[Fairway and/or Rocket].” AC ¶ 137. Defendants knew of
these relationships, and interfered with them by making false Ethan Allen, Inc. v. Georgetown Manor, 647 So.2d 812,
statements, coercing brokers to engage in a boycott, and 815 (Fla. 1995) (citation omitted). See also Int'l Serv. &
“enforcing a coercive contract of adhesion,” which caused Servs., Inc. v. Austral Insulated Prods., Inc., 262 F.3d 1152
an assenting broker to either terminate his or her relationship (11th Cir. 2001). As noted above, the relationship alleged
with UWM or be precluded from offering loans by Rocket and to have been disrupted is between plaintiff and borrowers
Fairway. These acts aimed to and did interfere with plaintiff's desiring mortgage loans from Fairway and/or Rocket. AC ¶
business relationships. Plaintiff relied on the representations; 137.
and as a result, plaintiff was harmed by “the reduction in
choice, lost customers and commissions” and was “injured in *22 Because the amended complaint does not allege that
[its] business and property with millions of dollars in losses.” existing customers ended their business with plaintiff because
AC ¶¶ 136-145. of the unavailability of mortgages with Rocket and Fairway,
plaintiff fails to allege an understanding or agreement not
The elements of a claim of tortious interference with a consummated because of UWM's action(s). Compare AC ¶
business relationship under Florida law are: “(1) the existence 46. See, e.g., Med. Sav. Ins. Co. v. HCA, Inc., No. 2:04cv156,
of a business relationship, not necessarily evidenced by an 2005 WL 1528666, at *9 (M.D. Fla. June 24, 2005), aff'd by
enforceable contract, under which the plaintiff has legal 186 F. App'x 919 (11th Cir. 2006) (explaining that because the
rights; (2) the defendant's knowledge of the relationship; complaint failed to allege existing customers were induced
(3) an intentional and unjustified interference with the to breach their contracts, or that any breach occurred, there
relationship by the defendant; and (4) damage to the plaintiff was no claim for tortious interference; a mere hope that its
as a result of that interference.” Palm Beach Cnty. Health customers would renew could not sustain the claim).

n.23 (M.D. Fla. May 9, 2005) (“Plaintiffs concede that

their FDUPTA claims ‘survive’ or ‘fall’ with their antitrust
I recommend count VII be dismissed without prejudice.
claims.”). 17
F. FDUPTA Claim
Recommendation 18
In count VIII, plaintiff alleges defendants violated Florida's
Deceptive and Unfair Trade Practices Act (FDUPTA), Fla. *23 I respectfully recommend:
Stat. § 501.201. The FDUPTA prohibits all “[u]nfair methods
of competition, unconscionable acts or practices, and unfair 1. Defendants’ Motion to Dismiss, doc. 46, be denied in
or deceptive acts or practices in the conduct of any trade or part and granted in part, and the complaint dismissed
without prejudice:
commerce.” Fla. Stat. § 501.204(1). To state a FDUPTA
claim, plaintiffs must allege “(1) a deceptive act or unfair
a. Defendants’ motion to dismiss pursuant to Federal
trade practice; (2) causation; and (3) actual damages.”
Rule of Civil Procedure 12(b)(1) be denied without
Dolphin LLC v. WCI Cmty., Inc., 715 F.3d 1243, 1250 (11th
prejudice,
Cir. 2013) (citing Rollins, Inc. v. Butland, 951 So.2d 860,
869 (Fla. 2d DCA 2006)). b. Defendants’ motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(2), be granted,
In support of its claim under the FDUPTA, plaintiff claims
the ultimatum restrained trade and attempted to create an
c. Defendants’ motion to dismiss pursuant to Federal
illegal monopoly in the wholesale mortgage market. AC
Rule of Civil Procedure 12(b)(6) be granted, on all
¶ 154. Because the Court previously found the federal
counts.
antitrust violations as alleged are insufficient, I need not
reach the question of whether the acts as alleged violated 2. The Court direct plaintiff to file a second amended
the FDUPTA. 16
See Hunter v. Bev Smith Ford, LLC, complaint, if it so chooses, within fourteen days of the
No. 07-80665-CIV-RYSKAMP, 2008 WL 1925265, at *7 entry of an order on the motions.
(S.D. Fla. Apr. 29, 2008) (dismissing FDUTPA claims based
on violations of state and federal statutes that the court had
All Citations
considered and rejected); JES Props., Inc. v. USA Equestrian,
Inc., No. 802CV1585T24MAP, 2005 WL 1126665, at *19, Slip Copy, 2022 WL 17478298
Footnotes
1 Retail mortgage lenders, on the other hand, work directly with borrowers “from the beginning, including
providing loan applications and collecting completed loan applications, performing income verification and
collecting other required documentation, as well as quoting interest rates.” AC ¶ 4.
2 Citations to page numbers in the record are to the CM/ECF pagination.
3 The Court refers to the allegation by plaintiffs that defendants forced a choice between working with UWM
or Rocket and Fairway to secure mortgages as “the ultimatum.” By doing so, however, the Court does not
imply the alleged conduct was illegal. Instead, I use the term ultimatum because it is the descriptor given by
plaintiff and, at this stage, the Court must accept well-pleaded allegations as true. See Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009).

4 The Florida legislature has adopted the antitrust law developed by the federal courts under the Sherman
Act. All Care Nursing Serv., Inc. v. High Tech Staffing Servs., Inc., 135 F.3d 740, 745 n. 11 (11th Cir. 1998)
(citations omitted) (noting “[f]ederal and Florida antitrust laws are analyzed under the same rules and case
law.”). As a result, my analysis of federal antitrust law in section III, A-C, applies equally to alleged violations
of the Florida Antitrust Act, Fla. Stat. § 542.18 (counts IV, V, and VI).
5 Plaintiff does not specify what body of law applies to its tortious interference claim, but when read in tandem
with the rest of the amended complaint and plaintiff's response to the motion to dismiss, it is evident plaintiff
intended Florida law to apply.
6 In Simpson, the plaintiff entered a consignment agreement with the defendant requiring it to charge a
minimum price for gasoline. Plaintiff sold gas at a disallowed price, the defendant terminated the agreement,
and plaintiff sued. 377 U.S. at 16. The Supreme Court reversed summary judgment for the defendant,
finding the restriction on plaintiff's ability to make independent, competitive pricing decisions was an
“actionable wrong.” Id. It also noted that “if the ‘consignment’ agreement achieves resale price maintenance
in violation of the Sherman Act, it and the lease are being used to injure interstate commerce by depriving
independent dealers of the exercise of free judgment whether to become consignees at all, or remain
consignees, and in any event, to sell at competitive prices.” Id.
7 I note that plaintiff's theory of relief evidenced in parts of its response, doc. 58, presumes UWM directs
marketing and advertising directly to borrowers; but no such allegation is explicitly made in the amended
complaint, although the announcement at issue is viewable by the public on Facebook.
8 See, e.g., AC ¶¶ 30-32 (alleging Ishbia falsely accused Fairway and Rocket of various wrongs to justify
mortgage brokers to acquiesce to his ultimatum).
9 Defendants make no argument based on these factors.
10 Rule 8(a)(2) requires a pleading contain “a short and plain statement of the claim showing that the pleader
is entitled to relief ....” Complaints that do not comply with Rule 8(a)(2) “are often disparagingly referred
to as ‘shotgun pleadings.’ ” Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1320 (11th Cir.
2015); see also Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021) (discussing shotgun pleadings).
A shotgun pleading fails “to give the defendants adequate notice of the claims against them and the grounds
upon which each claim rests.” Weiland, 792 F.3d at 1323. There are four types of shotgun pleadings, and
the amended complaint here falls into three of the four prohibited categories.
The first type of shotgun pleading, “contain[s] multiple counts where each count adopts the allegations of all
preceding counts, causing each successive count to carry all that came before and the last count to be a
combination of the entire complaint.” Barmapov, 986 F.3d at 1324-25 (quoting Weiland, 792 F.3d at 1321).
Plaintiff here uses such a tactic, with each count repeating and realleging all paragraphs that came before it
“as if fully set forth herein.” See AC ¶¶ 69, 83, 93, 103, 116,126, 136, 149, 159.
The second type is one “replete with conclusory, vague, and immaterial facts not obviously connected to
any particular cause of action.” Barmapov, 986 F.3d at 1325 (quoting Weiland, 792 F.3d at 1322). Here,
plaintiff's amended complaint teems with vague and conclusory facts and repeated use of antitrust jargon such
as “group boycott,” “naked horizontal boycott,” and “hub-and-spoke conspiracy,” without sufficient explanation
of their operation, meanings, or application here. The unorganized and frequent use of these terms and
phrases made analysis here particularly challenging. I have undertaken my analysis, however, mindful of my

obligation to construe the complaint broadly and in the light most favorable to plaintiff. Levine v. World Fin.
Network Nat'l Bank, 437 F.3d 1118 (11th Cir. 2006).
The fourth type “assert[s] multiple claims against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or which of the defendants the claim is brought
against.” Barmapov, 986 F.3d at 1325 (alteration in original) (quoting Weiland, 792 F.3d at 1323). The
amended complaint here treats UWM and Ishbia as the same, and does not separately allege Ishbia
committed individual counts. This practice is impermissible.
“A district court has the inherent authority to ... dismiss a complaint on shotgun pleading grounds.” Vibe
Miko, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018) (citing Weiland, 792 F.3d at 1320); see
also Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1192 n.13 (11th Cir. 2003) (“When faced with
[a shotgun] pleading, the district court, acting on its own initiative, [may] require a repleader”). Considering
Weiland, and for the reasons stated in this recommendation, plaintiff's complaint appears to be a shotgun
pleading. Should the Court allow plaintiff to file a second amended complaint, I suggest plaintiff separate
its theories of relief under Section One of the Sherman Act into separate counts, so it is clear what facts it
alleges support the individual theories it asserts.
11
I do not, however, imply that a rimless hub-and-scope conspiracy may never restrain trade. In re Musical
Instruments and Equip. Antitrust Litig., 798 F.3d 1186, 1192 n.3 (9th Cir. 2015). Rather, it is the mode of
analysis affected by a lack of horizontal agreement. “One key difference between a rimless hub-and-spoke
conspiracy (i.e., a collection of purely vertical agreements) and a rimmed hub-and-spoke conspiracy (i.e., a
collection of vertical agreements joined by horizontal agreements): courts analyze vertical agreements under
the rule of reason, ... whereas horizontal agreements are violations per se.” Id. (citations omitted).
12 “Group boycotts” are also called “concerted refusals to deal.”
13 I do so because this assumption follows my duty to view the allegations in the light most favorable to plaintiff.
See, e.g., AC ¶ 6 (alleging that as of March 31, 2020, “mortgage lending originating through independent
brokers [like plaintiff] controlled [only] 15.8 percent of residential loan originations in the United States[.])”
“Many antitrust cases turn on the precise definition of this market, as defendants contest whether they
possess market power or whether the restraint at issue affected the market as a whole.” Spanish Broad.
Sys. of Fla., Inc. v. Clear Channel Commc'ns, Inc., 376 F.3d 1065, 1074 (11th Cir. 2004).
14 The Eleventh Circuit explained that “injury to a competitor need not always result in injury to competition. The
use of unfair means resulting in the substitution of one competitor for another without more does not violate
the antitrust laws.” Spanish Broad. Sys., 376 F.3d at 1076 (citing Mfg. Research Corp. v. Greenlee Tool
Co., 693 F.2d 1037, 1043 (11th Cir. 1982)).
Even if the ultimatum qualified as “unfair means,” id., it is not clear from the amended complaint that
defendants’ actions had or could have an anticompetitive effect to the market or competition in general. AC ¶¶
11-12. It appears, rather, that plaintiff has “merely alleged an attempt to eliminate two firms from the market
rather than injury to competition.”
15 As I have explained, plaintiff's theories of relief are difficult to parse out. I read count VII as based, at least in
part, on the claim that defendants interfered with plaintiff's relationship with Rocket and Fairway. The count
thus fails.

16 The Court does not reach the question of whether plaintiff stated a claim for declaratory relief under count
IX for the same reason.
17 I note, however, that I maintain some reservations as to whether plaintiff has sufficiently plead damages for
the FDUPTA claim. See Casa Dimitri Corp. v. Invicta Watch Co. of Am., Inc., 270 F. Supp. 3d 1340, 1352
(S.D. Fla. 2017) (citations and quotations omitted) (explaining the element of “actual damages” is a “term
of art” that does not include “consequential damages;” and that “harm in the manner of competitive harm,
diverted or lost sales, and harm to the goodwill and reputation” are consequential damages).
18 “Within 14 days after being served with a copy of [a report and recommendation on a dispositive issue], a
party may serve and file specific written objections to the proposed findings and recommendations.” Fed. R.
Civ. P. 72(b)(2). “A party may respond to another party's objections within 14 days after being served with a
copy.” Id. A party's failure to serve and file specific objections to the proposed findings and recommendations
alters the scope of review by the District Judge and the United States Court of Appeals for the Eleventh
Circuit, including waiver of the right to challenge anything to which no specific objection was made. See Fed.
R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1; Order (Doc. No. 3), No. 8:20-mc-100-SDM,
entered October 29, 2020, at 6.
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

Exhibit B
1
1 IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
2 JACKSONVILLE DIVISION
3 CASE NO. 3:21-CV-00448
4
THE OKAVAGE GROUP, LLC,
5 on behalf of itself and
all others similarly
6 situated,
7 Plaintiff,
8 v.
9 UWM HOLDINGS CORPORATION and

MAT ISHBIA, individually,
10
Defendants.
11 /
12
13
14 TRANSCRIPTION OF FACEBOOK LIVE VIDEO
15 March 4, 2021
16
17
Transcribed by Mary Ann Collier, a Court
18 Reporter and Notary Public for the State of Florida.
19
20
21
22
23
24
25
Mary Ann Collier & Associates, Inc.

Broward: 954-782-4300 Dade: 305-371-2443
2
1 Hi there. I'm Mat Ishbia, president and CEO
2 of UWM. Welcome to Facebook Live. Thanks for
3 being here with us. We're so excited to have you
4 join. We've got some big announcements.
5 I've got a couple of big things I'm excited
6 to tell you about, state of the industry, a new
7 jumbo loan and even more. But before I wanted to
8 just say thank you. Proud to be part of the
9 family, the broker family. I'm all in with you
10 guys; you're all in with us. I'm proud to be
11 part of it and excited about our future together
12 as a team, as a family.
13 Now, as you guys know, I'm out there as much
14 as possible, broker family. Faster, easier,
15 cheaper. We're all in for mortgage brokers,
16 helping independent mortgage companies succeed,
17 whether it's the national press or on national
18 television, or, you know, I'm always put out,
19 findamortgagebroker.com, help the brokers win,
20 brokers are best for consumers, brokers are best
21 for realtors. Super Bowl commercial. We did
22 that. Helped you grow. We're all in. There's
23 no other way to say it. You know, educating
24 realtors and consumers. We're helping them
25 realize that you're the best place to go, the

Broward: 954-782-4300 Dade: 305-371-2443
3
1 independent mortgage companies, the mortgage
2 brokers.
3 And so our goal, my goal, 33 percent mortgage
4 broker market share by 2025. Right now it's
5 anywhere between 17 and 22 percent, depending on
6 what numbers you look at. But brokers are
7 growing and we're gonna to grow together as a
8 family.
9 You guys have a huge advantage over retail,
10 because you have options. You have options of
11 different lender's, return times, pricing, and
12 you're always going to have options. There's 75
13 amazing wholesale lenders out there, 75 amazing
14 wholesalers doing. There may be more in the
15 future.
16 Options are key. You have an advantage,
17 because it's faster, it's easier and it's
18 cheaper. Technology investment. And what we're
19 trying to do as brokers, and you guys know this,
20 is help you dominate, help make you invincible.
21 Give you access to marketing, give you access to
22 technology, so you can compete with the biggest
23 lenders in America.
24 We're here to help support you so you can
25 continue to win. Because we already know you're

Broward: 954-782-4300 Dade: 305-371-2443
4
1 cheaper, you have a better price, because you're
2 in wholesale. How to make it faster and easier,
3 and that' what we're going to continue to invest
4 in.
5 I've got some big technology rollouts coming
6 soon. But we're not going to talk about that
7 stuff today. I have three big things I want to
8 talk about today with you guys. First thing is
9 this. Prime jumbo. The UWM prime jumbo is back.
10 We're pivoted to a simplified, easy, one-stop
11 product, where you can run it though DU, and,
12 boom, just like high balance nationwide, you're
13 good to go. Run it through DU. There's a couple
14 overlays, but a lot less, because Appendix Q,
15 right, that's going away where you don't have to
16 follow this. So we have less overlays than those
17 high balance nationwide and jumbo bank buster.
18 But now you have one program called the Prime
19 Jumbo with amazing pricing. Right? Two million
20 dollar loan amounts, up to an 89.99 LTV on
21 purchases and rate and terms, and probably over
22 80 on cash out. We're trying to get that just so
23 that the last little piece will work out.
24 This has come alive March 17th. One product,
25 run through DU, simplified, great pricing, 45

Broward: 954-782-4300 Dade: 305-371-2443
5
1 ETI, 89.99 LTV. Brokers, we're going to win.
2 We're going to help those jumbo borrowers,
3 because pre-COVID, we were great on jumbo and you
4 were great on jumbo. We kind of backed off on it
5 during COVID. Now it's back. Now we have the
6 full suite of products, again, at UWM, from FHA,
7 to the VA, to the conventional. Of course, as
8 guys know it now, prime jumbo is back in about
9 two weeks, March 17th. So be on the lookout.
10 We're real excited about that opportunity.
11 Now, speaking about products, Conquest, one
12 of the best products in America. Consistently
13 has been great. Help brokers close loans fast.
14 Help you win retail loans. It's been great.
15 It's had its time and place. It's been
16 successful, very successful. But now we're going
17 to pivot. We're going to pivot here at UWM.
18 We're all going to pivot together.
19 Conquest will still be out there, but our
20 regular programs, our elite programs, our
21 non-elite programs, our regular conventional,
22 FHA, VA, all those programs, those are going to
23 be the focus, simplifying the rate sheet, making
24 our rate policies, our rate sheet policies
25 better, to use it the way we always had it.

Broward: 954-782-4300 Dade: 305-371-2443
6
1 That's back.
2 And on top of it, the pricing's substantially
3 sharper across the board. IPO 61 is over. The
4 61 base points is now in the rate sheet. All
5 right? IPO 61 is over. Sixty-one base points in
6 this rate sheet, like I just said, self-employed
7 now that matters. Three properties, you're good.
8 Right? There's no more complexities.
9 It's simple. Use our regular pricing, elite
10 and non-elite, you're good to go with UWM, 61
11 base points in the pricing. Lock plus 12 is now
12 in there, too. You can lock on 30, 45, 60 day
13 locks. Whatever you want. There's higher rate
14 ranges, so if you want to have a little more
15 premium on there, it's out there.
16 Also, I'm throwing in more pricing, another
17 40 to 50 base points on top of the 61. We are
18 going to be, if you look at the pricing that's
19 going to come out, so we're probably the best
20 price with everyone else chasing us, which is
21 great, I'm fine with that. We're not going to
22 try to be the best price. We are going to try to
23 be very consistent.
24 You know, the 61 base points is in. Another
25 40 to 50 on top of that, we are going to grow

Broward: 954-782-4300 Dade: 305-371-2443
7
1 together. 2.99, 2.875, those are real rates
2 right now. The refi boom didn't go anywhere.
3 It's still here. Take advantage with UWM.
4 Purchases have been off the charts right now.
5 We're blowing up our purchases. Now you can use
6 them on all your loans with UWM.
7 You want investment properties, right? You
8 couldn't do that on Conquest. Now you're good.
9 Investment price. There's no 18 month
10 requirement anymore. That's done. That was
11 Conquest.
12 You can do all your loans with UWM,
13 investment properties, cash outs, you know,
14 higher rate ranges, lower ranges, whatever you
15 need, self-employed, you don't need a 760 FICO, a
16 740 FICO. Self-employed, you're good to go.
17 Our high balance pricing's really sharp. Our
18 15 year pricing is really sharp. We're going to
19 knock these loans out extremely fast. It's what
20 it's for. Guess what? We're closing these loans
21 this month, every one of these loans. Bring them
22 on in. Let's dominate. Let's finish the quarter
23 strong. Let's continue to grow as a team. We
24 went public. We talked about that. We had
25 access to resources. It's time to turn it on.

Broward: 954-782-4300 Dade: 305-371-2443
8
1 It's game on for all of us.
2 Now, like I say, we're going to be consistent
3 on pricing across the board. Our competitors are
4 going to follow us, so even the brokers that
5 don't use UWM, they got a big boost, because all
6 the other brokers, all of the lenders, excuse me,
7 will follow our pricing. So if you look at
8 pricing yesterday and look at it tomorrow, watch
9 the difference and watch how everyone else is
10 just sharpening. Keep up with UWM, so we're
11 helping the whole broker channel.
12 Why would we do that? Because we're
13 separating retail from wholesale. Enough of this
14 talk that retail is close to competing with us.
15 It's over. It was a moment in time. The market
16 was crazy. Margins were different. That's a
17 moment in time.
18 Brokers are dominating. We're taking over
19 the market. There's no stopping brokers. We're
20 going to win together as a family. I'm all in,
21 you're all in, we're all in together.
22 So look out for the rate sheet, 12:15 p.m.,
23 you know, a couple minutes from now. It's going
24 to be out there. It's live. Get ready. Our
25 competitors will follow us. Now, whether you

Broward: 954-782-4300 Dade: 305-371-2443
9
1 work with us or not, everyone's getting the
2 advantage.
3 If you're a broker, you know who you just
4 lost? Retail. The retail losses, they're
5 struggling. They're going to struggle, because
6 we just widened the gap, service, technology,
7 pricing, it's all there with UWM. Let's dominate
8 together.
9 We're all in. We're going to continue to
10 talk about findamortgagebroker.com. We're going
11 to continue to help you grow. We're all in for
12 brokers. Faster, easier, cheaper. Educate
13 realtors. Help everyone win. We want to
14 continue to help you have a significant
15 advantage over the retail channel. So our
16 pricing's sharp. Look at it. It's going to be
17 great.
18 Now, I have another big announcement before
19 we go, because I got a couple big things. You
20 know, there's three big things. One is jumbo,
21 prime jumbo is huge. It's going to be great.
22 But pricing's game over. Right? Let's do this.
23 Let's take it to another level. We're excited
24 about it. Hoping you are, too.
25 Take a look at it. Everyone is going to be

Broward: 954-782-4300 Dade: 305-371-2443
10
1 excited. We're going to take loans. We're
2 dominate for you. Help you. Now, there's no
3 float downs, just to be clear. You can't float
4 down loans, you can't switch. It's renew locks,
5 you know, that's what the new pricing's for. But
6 we're going to grow together as a team, as a
7 family. And so we're very excited about this.
8 Now, before we get to the last point, and I'm
9 talking about you growing, you succeeding, before
10 I get to the last point, pricing's great. We
11 talked about success track is coming back.
12 Training, coaching, helping you get better.
13 I want to just point out a couple of things.
14 We've been doing it virtually, but back in May
15 and June, coming up in May and June, we're going
16 back out here. You're welcome to come back out.
17 We have hundreds of people here a week.
18 Obviously, we will do the social distance, make
19 sure everyone's feeling comfortable and safe.
20 But we're getting ready to go. We're going to
21 dominate together.
22 So on top of that we added a partner services
23 team, so you guys know. It's brokers are trying
24 to do a lot of retail branch services or whatever
25 they call it. We have partner services. You

Broward: 954-782-4300 Dade: 305-371-2443
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1 need help recruiting new LOs? We got you. You
2 need help with licensing? We got you. You need
3 any help with culture, training, we got it.
4 Marketing and branding, you need help with your
5 website, we got it. Technology. We are trying
6 to make the brokers invincible. Our technology,
7 your team, our services, we're going to win
8 together.
9 Now, the last thing I want to talk about
10 before we go, and this is a big one, it's
11 important, because, listen, big goals, big goals,
12 big responsibilities on all of us. Thirty-three
13 percent mortgage broker channel by 2025. We're
14 going to get there as a family. What's going to
15 stop us? Nothing's stopping us. We're getting
16 there. We're getting there together so you guys
17 know.
18 Now, what can slow us down? One thing is if
19 the loan officers don't come to the broker
20 channel or even leave the broker channel and go
21 to the retail channel. That would hurt us. That
22 would hurt you and that would hurt all of us
23 together.
24 Or let's think about it, purchases where we
25 all dominate. What if real estate just stopped

Broward: 954-782-4300 Dade: 305-371-2443
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1 referring business to brokers? What if they try
2 to cut the loan officers and the brokers out?
3 Right? Or if a consumer came to a broker and
4 then left and never came back. Never referred
5 people to you. Bad experience with a broker.
6 You know, what can we do? Those things would
7 hurt us.
8 Well, let me talk about something. There's
9 two companies out there that are hurting the
10 wholesale channel. Right? At UWM we only grow
11 if you grow. I've got no chance. I got 8500
12 plus people here. We win when you win and all of
13 us win together.
14 But there's two companies out there hurting
15 the wholesale channel. Specifically, Fairway
16 Independent. They have a wholesale company
17 called Fairway Independent Wholesale. They're
18 out there soliciting loan officers and talking
19 negatively about brokers right now. They're
20 calling, trying to steal your loan officers, they
21 are soliciting them, they are aggressive and
22 they're not doing right by the broker channels.
23 But some of our brokers are still referring
24 them loans, sending them loans. That's not good.
25 Loan officers, we don't want them leaving. We

Broward: 954-782-4300 Dade: 305-371-2443
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1 want them coming to us, not leaving. Fairway
2 Independent is out there trying to hurt the
3 wholesale channel.
4 The other company is Rocket Mortgage.
5 They're going after real estate agents. They're
6 trying to cut the loan officer out. They're
7 paying real estate agents to get licensed and
8 then paying them 50 basis points. I don't know
9 what this is. It's not my job to figure that
10 out. Paying them 50 base point and cut the loss,
11 just refer them right to Rocket's partnership
12 team. Cut the brokers out. Cut the loan
13 officers out. That's not good. That's not good
14 for us. That's not what we want.
15 The same thing with -- you know, we all know
16 Rocket Mortgage solicits your past clients and
17 solicits the -- they're -- once again, these are
18 their business models. Fairway Independent and
19 Rocket Mortgage, whatever they want to do they
20 can do. And as long as they play by the rules,
21 it's their rules, their world.
22 But that's not my business model. My
23 business model is helping you win. Helping the
24 family grow. Being all in for brokers. And I
25 can't stop other people's business models. But

Broward: 954-782-4300 Dade: 305-371-2443
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1 what I can do, I can control my business model.
2 So I'm starting today and saying at UWM,
3 we're not helping those that help them. If you
4 work and send loans and send business to Fairway
5 Independent or Rocket Mortgage, which, by the
6 way, is about 25 percent of the broker channel
7 works with either of those lenders. So 35
8 percent you can just ignore this whole point.
9 But I wanted to point out, 25 percent work with
10 those lenders. If you work with them, you can't
11 work with UWM anymore effective immediately.
12 So you can't work with UWM if you work with
13 those guys. Because, you know what, I can't stop
14 you, but I'm not going to help you help the
15 people that are hurting the broker channel.
16 And that's what's going on right now. We
17 don't need a fund, Fairway Independent or Rocket
18 Mortgage, to try to put brokers out of business.
19 We don't need to do that. If you want to do
20 that, it's your own deal. No hard feelings.
21 But at UWM, you can't work with UWM anymore.
22 So you have until -- so, owners, you have
23 until March 15th to sign an addendum saying
24 you're not working with those two lenders.
25 There's other lenders, by the way. There's 75

Broward: 954-782-4300 Dade: 305-371-2443
15
1 great lenders. Those lenders, I don't agree with
2 their business practices, but these two are going
3 after the broker channel and so we're not helping
4 them anymore.
5 You have until March 15th to sign the
6 addendum. And if you don't sign the addendum,
7 but, hey I'm not working with them, that's no
8 problem. Then you and nobody in your company
9 will be able to work with UWM anymore.
10 And that's okay. There's no hard feelings.
11 Right? I don't have a problem. You can either
12 accept the addendum, you can decline the
13 addendum, in which case you can say I don't want
14 to work with UWM, or you can accept it and say I
15 have some loans to close out, because we don't
16 want you to not close out the loans. Close out
17 your loans. Take care of consumers.
18 Even if you were to decline the addendum and
19 the loans you have with UWM, we're not going to
20 hurt the consumer. We'll close every one of
21 those loans with you. We're here to help and do
22 the right thing.
23 But, going forward, I'm not supporting
24 brokers with our technology, with our service,
25 with our passion for the broker channel, with our

Broward: 954-782-4300 Dade: 305-371-2443
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1 recruiting, with all the things that are going to
2 hurt the rest of the broker channel by funding
3 the competition of brokers, the competition of
4 the wholesale channel.
5 So here's the question. Are you all in? Are
6 you out? Are you in or are you out? If you're
7 in, like I said, most of you guys don't worry.
8 This is what I think. There's 75 great lenders
9 out there. You need to have options. But
10 there's two that are out there hurting the
11 channel.
12 And so what we think about is this. You can
13 pick us and the 73 other lenders or you can pick
14 those others and not have you. But, either way.
15 Well, one of them has great pricing. Well,
16 Provident has the best pricing. All right.
17 There's nothing that those two lenders do for
18 brokers that the other 73 lenders don't do. And
19 so today we're taking a stand. We're saying
20 we're all in.
21 Now, what's the response? I mean, this is
22 great for the whole broker channel, to be honest
23 with you, because I love brokers either way.
24 Even if you don't pick us, I still love you,
25 because I'm supportive of the channel and excited

Broward: 954-782-4300 Dade: 305-371-2443
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1 for the channel's growth.
2 But, here's the reality. Today, after our
3 rate sheet, or maybe tomorrow, Rocket Mortgage
4 and Fairway Independent, you know what they're
5 going to do? Sharpen the price to another 100
6 basis points. Make it so that if they -- they
7 just lost 80 percent of their business
8 potentially. Right? Because the only thing 80
9 to 90 percent of brokers are going to say, hey,
10 we're sticking with UWM and the other 73 lenders
11 that are out there trying to help us grow, not
12 with the people that are trying to put us out of
13 business.
14 So for the ten percent that stay with them,
15 hey, they're going to get some great pricing.
16 And then as soon as they know you're gone, UWM is
17 out of it, they'll probably back off the pricing
18 and change it. But, hey, that's your decision.
19 That's what they're going to do. They're
20 going to sharpen pricing. You want great
21 pricing, there's a lot of great -- well, our
22 pricing is really sharp today and it's going to
23 be really sharp going forward. But, like I said,
24 these guys just lost 70, 80, 90 percent of their
25 business, they're going to make some massive

Broward: 954-782-4300 Dade: 305-371-2443
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1 changes right away.
2 And so I know that. You know that. But who
3 you are all in with? Are you all in with the
4 brokers or are you all in with the people trying
5 to put brokers out of business? So today, I'm
6 all in with you. I'm all in with the brokers and
7 I'm going to always be all in. That's what we're
8 doing.
9 Our pricing, extremely sharp today. It's
10 going to be consistently sharp. We're going to
11 help you win more loans. We're going to help you
12 grow in the purchase market. We're not going to
13 hurt you on the realtors; we're going to help you
14 with the realtors.
15 We're not going to, you know, sever loan
16 officers, we're going to help you get more loan
17 officers. We're going to help you with your
18 consumers. Our Plan 360, out new technology.
19 We've got some big tech stuff coming out. We're
20 going to continue to invest, not hundreds of
21 millions, billions of dollars in the broker
22 channel and technology behind it. That's how we
23 got here and that's how we're all going to get
24 there together.
25 So take a look at our amazing pricing. It's

Broward: 954-782-4300 Dade: 305-371-2443
19
1 out. Jumbo is coming soon. And then the
2 question is, you all in? You all in with the
3 broker channel? Because I'm all in. We're all
4 in together as a family.
5 Thanks for joining me. If you have any
6 questions, you can reach out to us. We're
7 excited. Hashtag all in. I know a lot of people
8 are thinking right now that's how we're going to
9 do it. I'm all in. You're all in. Let's
10 dominate.
11 We're going to grow the broker channel.
12 We're going to grow every single loan officer.
13 Watch us. We're going to win together. I'm
14 excited to do it with you as a family. Have a
15 great day.
16 (End of Facebook Live video.)
17
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23
24
25

Broward: 954-782-4300 Dade: 305-371-2443
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1 CERTIFICATE OF REPORTER
3 I, MARY ANN COLLIER, Court Reporter, do
4 hereby certify that I was authorized to and did
5 stenographically transcribe the Facebook Live video,
6 and that the transcript is a true and complete record
7 of my stenographic notes of said Facebook Live video.
9 DATED this 16th day of June 2021.
10
11
12
MARY ANN COLLIER
13
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25

Broward: 954-782-4300 Dade: 305-371-2443

United Wholesale Mortgage, Llc's Motion To Dismiss America's Moneyline, Inc.'s Amended Counterclaim

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United Wholesale Mortgage, Llc's Motion To Dismiss America's Moneyline, Inc.'s Amended Counterclaim

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Case 2:22-cv-10228-LJM-EAS ECF No. 27, PageID.

401 Filed 04/19/23 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT

UNITED WHOLESALE MORTGAGE, LLC

Plaintiff/Counter-Defendant Case No. 22-cv-10228

AMERICA’S MONEYLINE, INC

UNITED WHOLESALE MORTGAGE, LLC’S MOTION TO DISMISS

United Wholesale Mortgage, LLC (“UWM”) moves, under Fed. R. Civ. P.

12(b)(6), to dismiss America’s Moneyline, Inc.’s (“AML”) Amended

the following Brief in Support of this Motion to Dismiss.

and dismiss AML’s Amended Counterclaim.

BUSH SEYFERTH PLLC

Dated: April 19, 2023

IN THE UNITED STATES DISTRICT COURT

UNITED WHOLESALE MORTGAGE, LLC

Plaintiff/Counter-Defendant Case No. 22-cv-10228

AMERICA’S MONEYLINE, INC.

UNITED WHOLESALE MORTGAGE, LLC’S BRIEF IN SUPPORT OF

II. Summary of Factual Allegations .....................................................................3

A. AML Is a Mortgage Broker in a Vertical Relationship with

B. The Alleged “Wholesale Mortgage Lending” Market. .........................4

C. UWM Announced the Amendment to Combat Practices

D. Brokers and Trade Associations Engaged in a Robust

E. AML’s Agreement to the Amendment and Repeated Breaches. ..........6

F. AML’s Allegations of “Anticompetitive” Effects. ...............................7

G. AML’s Prior Counterclaim and UWM’s First Motion to

III. Standard of Review..........................................................................................9

IV. Argument .........................................................................................................9

A. AML’s Claims Rest on a Legally Unsustainable Assertion That

1. AML Has Not Plausibly Alleged That “Wholesale

2. AML’s Allegations Demonstrate That the Actual

B. AML Fails to State a Claim for a Per Se Illegal Group Boycott

1. AML Does Not Plead a Per Se Illegal Group Boycott

2. AML’s Allegations Do Not Demonstrate Market Power

C. AML Fails to State a Claim for Unreasonable Restraint of

D. AML Fails to State a Claim for Attempt to Monopolize in

E. AML’s State Antitrust Claims and Declaratory Judgment Claim

Prod. Sols. Int’l v. Aldez Containers, LLC,

Statement of the Issues Presented

1. Should AML’s antitrust-based counterclaims (all counts) be dismissed

where AML failed to plausibly allege the actual relevant market?

UWM answers: Yes.

The Court should answer: Yes.

2. Should AML’s federal antitrust claims for per se illegality,

unreasonable restraint of trade, and attempted monopolization (Counts I-III) be

competitors, sufficient market power by UWM, any anticompetitive effect, or any

plausible risk of monopolization?

UWM answers: Yes.

The Court should answer: Yes.

3. Should AML’s state antitrust claims (Counts IV-XI) be dismissed

UWM answers: Yes.

The Court should answer: Yes.

4. Should AML’s declaratory relief claim (Count XII) be dismissed

where it seeks relief derived from the preceding antitrust claims?

UWM answers: Yes.

The Court should answer: Yes.

Controlling or Most Appropriate Authority

Fed. R. Civ. P. 12(b)(6)

Hand v. Cent. Transp., Inc., 779 F.2d 8 (6th Cir. 1985)

NYNEX Corp. v. Discon, 525 U.S. 128 (1998)

Okavage Grp., LLC v. United Wholesale Mortg., No. 3:21-CV-448, 2022 WL

A. The claims lack any legal merit and should be dismissed.