Fair Isaac Corp., Plaintiff, v. Federal Insurance Company, et al., Defendants. (2024)

ORDER

Plaintiff Fair Isaac Corporation (FICO) moves to certify an interlocutory appeal under 28 U.S.C. § 1292(b), arguing that two questions warrant immediate appellate review: (1) whether FICO is entitled to a binding jury determination on its claim for disgorgement of profits, and (2) whether FICO's burden to show attribution required it to establish a causal nexus between Defendants’ infringement and their revenues beyond a speculative level. Dkt. Nos. 1324, 1326. Defendants Federal Insurance Company (Federal) and ACE American Insurance Company (ACE) (collectively, Defendants) oppose certifying FICO's first question on the grounds that (1) the request is unduly delayed, (2) FICO is judicially estopped from certifying the issue for appeal, and (3) FICO fails to show that the question meets Section 1292(b)’s standard for interlocutory appeal. Defendants argue that FICO's second question also fails to meet the requirements of Section 1292(b). For the reasons explained below, FICO's motion is denied.

FACTS

The extensive history of this case has been recounted several times. The Court adopts and incorporates by reference the factual background as recounted in this Court's Order on Defendant's Motion for a New Trial on Actual Damages. Dkt. No. 1284. As relevant here, FICO sued Defendants in 2016 alleging breach of contract and copyright infringement. The breach-of-contract claim involved a license agreement between FICO and Federal for use of Blaze Advisor, a rules management software on which FICO owns several copyrights. FICO claimed that Federal infringed its copyright through unauthorized disclosure of the software to third parties and by continuing to use the software after FICO terminated the license agreement. FICO sought actual damages for the infringement, as well as disgorgement of profits, and demanded a jury trial on all claims.

Federal moved to strike the jury demand as to disgorgement of profits, arguing that disgorgement is an equitable remedy for the Court to decide. Dkt. No. 329. The Court found that neither the Copyright Act nor the Seventh Amendment guaranteed FICO a jury trial on the equitable remedy of disgorgement and granted Federal's motion. Dkt. No. 588. FICO appealed to the district judge, who affirmed the order. Dkt. No. 811. Federal then moved to bifurcate the trial to separate the jury issues of liability and actual damages from the equitable issue of disgorgement. Dkt. No. 899. Federal argued that the astronomical revenue figures relevant to disgorgement would anchor the jury and lead it to award an improperly inflated actual damages figure. FICO opposed the motion, arguing that bifurcation was unnecessary as there would be substantial overlap in evidence between the two phases. FICO also encouraged the Court to empanel an advisory jury on the disgorgement issue, arguing that “in the event of an appeal and a decision by the Eighth Circuit that a claim for disgorgement is not equitable, the advisory decision of the jury will avoid a second trial.” Dkt. No. 910 at 28. FICO concluded: “Trying this case in a single trial, with an advisory jury opinion on disgorgement, is more efficient, aids the Court in its own equitable determination, and ensures no need for a second trial following appeal.” Id. at 38.

The Court denied Defendants’ motion to bifurcate, finding they had failed to demonstrate that bifurcation would prevent prejudice or increase efficiency and convenience. See Dkt. No. 935. The Court also stated that it would “employ the jury in an advisory capacity on the disgorgement claim, providing the Eighth Circuit the benefit of the jury's determination and protecting the verdict should the Eighth Circuit determine that this Court erred in finding disgorgement was not a jury issue.” Id. at 17. The case proceeded to trial.

After deliberation, the jury returned its advisory opinion that FICO had not proved Defendants’ infringing use of Blaze Advisor contributed to their revenues and therefore FICO was entitled to $0 in disgorged profits. Dkt. No. 1173. Following briefing on the issue, the Court issued its findings of fact and conclusions of law as required under Rule 52(a). See Disgorgement Order, Dkt. No. 1282. The Court agreed with the jury's advisory opinion on disgorgement, finding that FICO failed to meet its attribution burden because it presented insufficient evidence to establish a causal nexus between the infringement and the differentiated revenues above a speculative level. Id. at 10, 24, 34. Specifically, the Court found that the testimony on which FICO relied to show the requisite causal connection established the potential benefits of Blaze, but it did not demonstrate that Defendants achieved or realized those benefits, much less that those benefits resulted in revenue. Id. at 24, 34. Having failed to meet its burden, FICO was not entitled to disgorge any profits from Defendants. Id. at 36-37.

The Court also granted Defendants’ motion for a new trial on actual damages, finding that the evidence in the trial record did not support the jury's actual damages award. Dkt. No. 1284. FICO rejected the Court's remittitur, Dkt. No. 1338, and the Court ordered a new jury trial on damages, which is scheduled to begin on June 10, 2024. FICO asks the Court to stay the scheduled trial and certify for interlocutory appeal two questions relating to the Disgorgement Order. Dkt. No. 1326.

ANALYSIS

FICO claims that two questions warrant immediate appellate review: (1) whether FICO has a right to a binding jury verdict on disgorgement, and (2) whether FICO's burden of attribution requires it to establish a causal nexus between Defendants’ unauthorized use of Blaze Advisor and their revenues beyond a speculative level. Defendants argue that FICO's motion should be denied because neither question meets the standard for interlocutory review under Section 1292(b) and the request is unduly delayed.¹ Furthermore, they argue, FICO is judicially estopped from seeking immediate appellate review of the first question.

Section 1292(b) grants the district court discretion to certify an otherwise non-final order for interlocutory appeal. 28 U.S.C. § 1292(b). Section 1292(b) is “to be used only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation. It was not intended merely to provide review of difficult rulings in hard cases.” Union Cty., Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008). “A motion for certification must be granted sparingly, and the movant bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted.” White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994).

A district court has broad discretion to grant or deny certification for interlocutory appeal. See id. Because certification is a prerequisite to interlocutory review, the Court of Appeals “is without jurisdiction to review an exercise of the district court's discretion in refusing such certification.” Pfizer, Inc. v. Lord, 522 F.2d 612, 614 (8th Cir. 1975); see In re Master Key Antitrust Litig., 528 F.2d 5, 8 (2d Cir. 1975) (“[The district court's] refusal to certify the interlocutory appeal of [its] rulings is, of course, not appealable.”).

A party seeking to certify an order for interlocutory appeal must show that: (1) the order involves a controlling question of law; (2) there is a substantial ground for difference of opinion as to that controlling question of law; and (3) an immediate appeal will materially advance the ultimate termination of the litigation. White, 43 F.3d at 377.

I. Question 1: Right to a Biding Jury Verdict on Disgorgement

FICO first seeks interlocutory appeal of the Court's finding that disgorgement is an equitable remedy for which FICO does not enjoy a statutory or constitutional right to a jury determination. Because FICO fails to satisfy all the requirements of Section 1292(b) and is judicially estopped from asserting that immediate appeal of the question would materially advance the termination of the litigation, the motion is denied as to this question.

A. Controlling Question of Law

A controlling question of law is a legal question and not “a matter of the discretion of the trial court.” Great Lakes Gas Transmission Ltd. P'ship v. Essar Steel Minnesota, LLC, No. 09-cv-3037, 2015 WL 3915687, at *4 (D. Minn. June 25, 2015) (quoting White, 43 F.3d at 377). “A question of law is controlling if reversal of the district court's order would terminate the action, or even if its resolution is quite likely to affect the further course of litigation.” Hazelden Betty Ford Found. v. My Way Betty Ford Klinic, GmbH, No. 20-409, 2021 WL 3711055, at *3 (D. Minn. Aug. 20, 2021) (quotations and citation omitted). Courts generally consider questions involving the meaning of statutory or constitutional provisions to be controlling questions of law. See Pagliolo v. Guidant Corp., No. 06-cv-943, 2007 WL 1567617, at *1 (D. Minn. May 29, 2007); Great Lakes, 2015 WL 3915687, at *4.

FICO challenges the Court's interpretation of the Copyright Act, and reversal of the Court's order would entitle FICO to a binding jury verdict on disgorgement. But, as FICO has already received an advisory jury verdict, reversal on this issue would only entitle FICO to a new jury trial if the Eighth Circuit also chose not to follow the ordinary course and “give effect to” the advisory verdict. Indiana Lumbermens Mut. Ins. Co. v. Timberland Pallet & Lumber Co., Inc., 195 F.3d 368, 375 (8th Cir. 1999). Additionally, because FICO previously asserted that an advisory jury would protect the verdict should the Court of Appeals reverse on this very issue, it is judicially estopped from now claiming that resolution of this question is “quite likely to affect the further course of litigation.” Hazelden Betty Ford Found., 2021 WL 3711055, at *3. However, these issues are better addressed in relation to Section 1292(b)’s requirement that a party seeking certification demonstrate that interlocutory appeal would materially advance the ultimate termination of the litigation. Because this is a purely legal question involving the meaning of statutory and constitutional provisions, the Court will consider it to be “controlling” for purposes of this motion.

B. Substantial Ground for Difference of Opinion

“Substantial ground for difference of opinion exists if the party asking for interlocutory appeal has identified ‘a sufficient number of conflicting and contradictory opinions [that] provide substantial ground for disagreement.’ ” Fed. Ins. Co. v. 3M Co., No. 21-cv-2093, 2023 WL 3686814, at *3 (D. Minn. May 26, 2023) (quoting White, 43 F.3d at 378). This requirement may be met if “ ‘a difference of opinion exists within the controlling circuit’ or ‘the circuits are split on the question.’ ” Target Corp. v. ACE Am. Ins. Co., No. 19-cv-2916, 2022 WL 4592094, at *2 (D. Minn. Sept. 30, 2022) (quoting Graham v. Hubbs Mach. & Mfg., Inc., 49 F. Supp. 3d 600, 612 (E.D. Mo. 2014)). A “dearth of cases” on the issue does not constitute substantial ground for difference of opinion. White, 43 F.3d at 378.

FICO cites one Ninth Circuit decision and three district court decisions from outside this circuit in which courts found that parties have the right to a jury trial on the issue of copyright disgorgement. This collection of cases fails to establish substantial grounds for difference of opinion. A difference of opinion among a few courts outside the Eighth Circuit is irrelevant to this Court's inquiry, and the dearth of cases among the Courts of Appeals does not constitute substantial ground for difference of opinion. Nor is the Court swayed by FICO's argument that “the Supreme Court has expressly indicated that the question does not yield an obvious answer.” Dkt. No. 1326 at 9 (citing Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 668 n.1 (2014)).² That a question lacks an obvious answer does not mean the case is so exceptional as to warrant immediate appeal. See Union Cty., 525 F.3d at 646 (Section 1292(b) is “not intended merely to provide review of difficult rulings in hard cases”). As FICO bears the heavy burden to demonstrate that all three of Section 1292(b)’s conjunctive requirements are met, its failure to show substantial ground for difference of opinion is sufficient reason to deny certification of this question. Even so, the Court addresses the third requirement, which is also unsatisfied.

C. Materially Advance the Ultimate Termination of the Litigation

FICO argues that resolution of the jury right question “will determine whether a new trial on disgorgement will be necessary.” Dkt. No. 1326 at 8. Interlocutory review materially advances the ultimate termination of the litigation, FICO argues, because disgorgement could then be tried as part of the already-scheduled retrial on actual damages.

“When litigation will be conducted in substantially the same manner regardless of our decision, the appeal cannot be said to materially advance the ultimate termination of the litigation.” White, 43 F.3d at 378-79. Interlocutory review is less likely to materially advance the ultimate termination of the litigation if a trial date has been set and the action is ready to be tried. See Great Lakes, 2015 WL 3915687, at *16; Burks v. Abbott Lab'ys, No. 08-cv-3414, 2013 WL 949890, at *2 (D. Minn. Mar. 11, 2013). A court's finding that interlocutory appeal would not materially advance the ultimate termination of the litigation is sufficient grounds to deny the motion, regardless of whether the issues qualify as controlling questions of law as to which there is substantial ground for difference of opinion. See Watkins Inc. v. McCormick & Co., Inc., 579 F. Supp. 3d 1118, 1122 (D. Minn. 2022); Burks, 2013 WL 949890, at *1.

The Court finds that immediate appeal would not materially advance the ultimate termination of the litigation. First, this is not a case in which certification would resolve all claims; it is therefore more efficient to allow the remaining issue to reach final resolution. Second, because both parties have expressed their intent to appeal an adverse final judgment, granting certification here would all but ensure multiple appeals. See Nat'l Union Fire Ins. Co. of Pittsburgh v. Donaldson Co., No. 10-cv-4948, 2015 WL 4898662, at *4 (D. Minn. Aug. 17, 2015) (finding that certification would not materially advance the termination of the litigation because of the likelihood that “the court of appeals would need to review this case multiple times”). Third, even if the Eighth Circuit reversed on this issue, the error could be corrected by giving effect to the advisory jury's verdict. See Indiana Lumbermens, 195 F.3d at 375. Finally, FICO is judicially estopped from relying on its sole argument for the efficiency of immediate review.

1. Judicial Estoppel

FICO claims that this question should be reviewed in advance of the scheduled trial on actual damages because, in the event of an Eighth Circuit reversal, disgorgement could then be tried alongside actual damages, thus preventing the need for a separate trial on disgorgement. This stance is contrary to FICO's previous assurances that an advisory jury would protect the verdict and ensure against the need for a retrial on disgorgement. Consequently, FICO is judicially estopped from arguing that interlocutory appeal of this question would materially advance the ultimate termination of the litigation by avoiding another trial.

“[J]udicial estoppel is an equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quotations and citation omitted). The doctrine “prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Id. at 749 (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)). Judicial estoppel is intended “to protect the integrity of the judicial process ․ by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Id. at 749-50 (quotations and citation omitted). “[B]ecause the rule is intended to prevent improper use of judicial machinery, the discretionary determination to apply the doctrine of judicial estoppel is made on a case-by-case basis.” Gray v. City of Valley Park, Mo., 567 F.3d 976, 981–82 (8th Cir. 2009). While there is no mechanical test, three factors inform a court's decision whether to apply the doctrine: (1) “whether a party's later position is clearly inconsistent with its earlier position,” (2) “whether the party has succeeded in persuading a court to accept that party's earlier position,” and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 981. These factors are addressed in turn.

First, FICO consistently took the position prior to trial that an advisory jury on the disgorgement issue would protect the verdict in the event of reversal. In opposing Defendants’ motion to strike the jury demand, FICO argued that “courts have uniformly given the recovery of profits issue to the jury.” Dkt. No. 345 at 9. In support of this claim, FICO cited four cases, three of which it quoted as either employing an advisory jury or reserving the ability to later treat the jury's verdict as advisory. Id. at 9-10. Later, in opposing Defendants’ motion to bifurcate, FICO specifically argued that “in the event of an appeal and a decision by the Eighth Circuit that a claim for disgorgement is not equitable, the advisory decision of the jury will avoid a second trial.” Dkt. No. 910 at 28. Thus, prior to the jury entering its advisory verdict, FICO firmly held the stance that an advisory jury would advance the ultimate termination of the litigation by protecting the verdict and avoiding a second trial on disgorgement.

FICO now seeks immediate appellate review of the Court's order on disgorgement, arguing that the issue must be reviewed in advance of the scheduled retrial on actual damages because an Eighth Circuit reversal would necessitate a jury trial on disgorgement. In other words, FICO now argues that the jury's advisory verdict is not protected and a second trial on disgorgement will indeed be necessary if it succeeds on appeal. FICO's present argument, then, clearly contradicts its prior guarantee that an advisory jury “ensures no need for a second trial following appeal.” Id. at 38 (emphasis added).

Second, FICO successfully persuaded the Court that the issues of liability and actual damages should be tried alongside disgorgement and that employing an advisory jury on the latter would protect the verdict if the Eighth Circuit were to later reverse. Defendants disagreed, arguing that the disgorgement issue should be bifurcated from the other issues entirely. The Court accepted FICO's argument, rejected Defendants’, and put the issue to the jury in an advisory capacity. In so doing, the Court noted that employing the jury in an advisory capacity on disgorgement would give the Eighth Circuit the benefit of the jury's determination and “protect[ ] the verdict should the Eighth Circuit determine that this Court erred in finding disgorgement was not a jury issue.” Dkt. No. 935 at 17. Thus, the Court accepted FICO's earlier position, and FICO is estopped from asserting a contrary position now. See Gustafson v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., 29 F.4th 406, 411 (8th Cir. 2022) (finding that a court accepted a party's position when the court used the party's reasoning in its order).

Third, FICO previously benefited from its successful opposition to Defendants’ motion to bifurcate and accompanying assurances that an advisory jury would prevent a retrial on disgorgement. By changing positions now, in advance of the new trial on actual damages, FICO stands to receive the same benefit and more: disgorgement and actual damages tried together, as well as the possibility that the jury would find FICO is entitled to disgorge profits this time around. FICO would derive an unfair advantage—and Defendants an unfair detriment—if the Court were to accept its change in position and allow immediate appeal.

FICO is judicially estopped from taking the stance necessary to show that certification would materially advance the ultimate termination of the litigation. The Court's ruling need only extend that far. The Court has not determined that FICO is estopped from later raising the jury-right issue or challenging the jury instructions on appeal. It is, however, estopped from arguing that interlocutory review will materially advance the termination of the litigation by preventing an additional retrial on disgorgement. That is FICO's argument for the purposes of this motion, and it is clearly contrary to FICO's prior stance. Claiming that immediate appellate review avoids an additional trial on disgorgement after previously ensuring the Court an advisory jury would obviate that need entirely is precisely the kind of “improper use of judicial machinery” the doctrine is intended to prevent. Gray, 567 F.3d at 981.

II. Question 2: Burden to Demonstrate Causal Nexus

FICO also argues that the causation standard employed by the Court warrants immediate appellate review. Specifically, FICO asserts that the instructions given to the advisory jury, as well as the Court's disgorgement order, misstated FICO's burden to demonstrate attribution and disgorge profits under the Copyright Act. As relevant here, the Court instructed the jury that FICO must “prove a causal nexus between the revenues Defendants received and the unauthorized use of Blaze Advisor․ A party cannot meet its burden to establish the causal nexus by identifying revenue that is only remotely or speculatively attributable to the infringement. That is, FICO must show that the use of Blaze Advisor contributed to the generation of revenue.” Final Jury Instr., Dkt. No. 1167 at 25. FICO contends that it should have been required only to demonstrate “some connection or relationship” between the Defendants’ revenues and their unauthorized use of Blaze Advisor.

A copyright owner is responsible for establishing “attribution,” which requires identifying “that profits are attributable to the infringed work.” Andreas v. Volkswagen of Am., Inc., 336 F.3d 789, 796 (8th. Cir. 2003). As the Eighth Circuit described in Andreas, a plaintiff seeking to demonstrate attribution bears the “burden of establishing a causal connection between the infringement and [the defendant's] profits.” Id. at 792; see id. at 798 (describing the causal connection as “a nexus”). In crafting its jury instructions on disgorgement, this Court drew directly from the language in Andreas, as well as the cases it cited and subsequent cases interpreting its holding.³ The Court again consulted the standard expressed in Andreas in its disgorgement order, ultimately finding that FICO had failed to demonstrate the requisite causal link between Defendants’ infringement and their revenues beyond a speculative level. Dkt. No. 1282 at 10, 19-20. Because the Eighth Circuit has already provided clear guidance on this issue and interlocutory appeal would only delay the ultimate termination of the litigation, FICO fails to meet the requirements of Section 1292(b).

A. Controlling Question of Law

Courts have held that a question of law is controlling if “resolution of the issue on appeal could materially affect the outcome of the litigation in the district court.” Telligen, Inc. v. Atl. Specialty Ins. Co., No. 418-cv-00261, 2019 WL 9575233, at *2 (S.D. Iowa Sept. 18, 2019) (quoting Emerson Elec. Co. v. Yeo, No. 4:12-cv-1578, 2013 WL 440578, at *2 (E.D. Mo. Feb. 5, 2013)).

FICO challenges the standard both as it was given to the advisory jury and as it was applied in the Court's order on disgorgement. Because this is a legal question the resolution of which could, hypothetically, affect FICO's disgorgement award, it is a controlling question of law for Section 1292(b) purposes.⁴ See, e.g., In re Text Messaging Antitrust Litig., 630 F.3d 622, 626 (7th Cir. 2010) (“Decisions holding that the application of a legal standard is a controlling question of law within the meaning of section 1292(b) are numerous.”).

B. Substantial Ground for Difference of Opinion

“Interlocutory appeal is not warranted when the United States Court of Appeals for the Eighth Circuit has provided ‘clear guidance’ on the disputed legal question.” Target Corp., 2022 WL 4592094, at *2 (quoting S.B.L. by and through T.B. v. Evans, 80 F.3d 307, 312 (8th Cir. 1996)); see Great Lakes, 2015 WL 3915687, at *4 (finding no substantial ground for difference of opinion when the court's order “explicitly relie[d] on controlling precedent”). A difference of opinion in courts outside the controlling circuit does not satisfy Section 1292(b)’s second requirement. See Target Corp., 2022 WL 4592094, at *2.

FICO takes issue with the “causal nexus” standard and would have preferred the Court employ a less demanding standard for causation, ideally one that does not require showing causation at all. FICO argues that, under Andreas, it was required only “to demonstrate ‘some connection or relationship between the infringement and the profit’ ” it sought. Dkt. No. 1326 at 13 (quoting Andreas, 336 F.3d at 799). In addition to quoting this well-worn sentence,⁵ FICO claims two cases from this district support its proposed standard and provide substantial ground for difference of opinion. Reading beyond FICO's carefully selected excerpts from these cases, it is apparent they do not.

As discussed, both the jury instructions and the disgorgement order explicitly relied on the Eighth Circuit's controlling precedent in Andreas. The Court has previously discussed that case in depth and FICO introduces no new arguments regarding its interpretation here. In sum, Andreas held that a copyright plaintiff seeking to show attribution bears the “burden of establishing a causal connection between the infringement and [the defendant's] profits.” Andreas, 336 F.3d at 792. Importantly, that “connection or relationship” must rise above the level of “mere speculation.” Id. at 796, 799.

FICO argues that the court in Furnituredealer.net “expressly acknowledge[d] that [demonstrating attribution] does not amount to a significant imposition on plaintiffs but merely requires ‘a showing of causation that is less stringent than but-for causation.’ ” Dkt. No. 1326 at 13 (quoting Furnituredealer.net, Inc v. Amazon.com, Inc, No. 18-cv-232, 2022 WL 891462, at *4 (D. Minn. Mar. 25, 2022)). Once again, FICO's description of the case is not entirely accurate, and the meaning of the quotation is clearer when read in context. Nowhere in the case does the court “expressly acknowledge” that attribution amounts to a minimal imposition on plaintiffs, and while it does note that a copyright owner need not show “but-for” causation, that statement is immediately followed by its explanation of what is required:

[The] nexus cannot be met by demonstrating a merely theoretical relationship between the alleged infringement and the profits. A copyright owner must present more than mere speculation that the copyrighted work contributed to profits. Courts must be careful to guard against a plaintiff[ ] claiming the defendant's profit from something only feebly connected to the infringement. Thus, while a copyright owner need not show “but-for” causation in proving nexus, the copyright owner also must present concrete evidence of that causation that crosses the line from mere speculation into plausibility.

Id. (quotations and citations omitted). Ultimately, though, Furnituredealer.net is most notable in its rejection of semantic arguments like the one FICO relies on here. While FICO finds critical difference between terms like “connection,” “causal nexus,” and “attributable to,” the court in Furnituredealer.net expressed an understanding that these terms are essentially interchangeable. See id. (finding that the “nexus can be established by showing a ‘connection,’ ‘causal connection,’ or a ‘causal link’ or that the copyrighted work was a ‘contributing factor’ to profits”). Though the standard can be phrased in various ways, it requires something more than a “mere theoretical relationship between the alleged infringement and the profits.” Id. Thus, the focus is whether the copyright owner has established a causal link beyond a speculative, remote, or hypothetical level.

FICO cites Honeywell as rejecting an onerous reading of Section 504(b). That case addressed whether, when infringement “is less than a wholesale copying of the entirety of a work,” a plaintiff must “prove that the defendant profited from the infringing work” or instead must prove “more specifically that the defendant profited from the infringing portions of the work.” Honeywell Int'l Inc. v. ICM Controls Corp., No. 11-cv-569, 2017 WL 374907, at *4 (D. Minn. Jan. 26, 2017). The court rejected the latter, more onerous standard; it did not, however, reject the standard of causation FICO challenges here. To the contrary, it stated that the Eighth Circuit's interpretation of the Copyright Act “is clear and controlling: Once the plaintiff proves a causal nexus between the infringing work and gross revenues from a related product, the burden shifts to the defendant.” Id. (citing Andreas, 336 F.3d at 796).

Far from demonstrating a substantial ground for difference of opinion among courts in this circuit, the cases FICO cites all stand for the requirement that a copyright owner must show a causal nexus between the alleged infringement and the profits. And, as Furnituredealer.net explains, semantic arguments like FICO's miss the mark. The proper focus is not the phrase chosen to describe the required connection, but whether a plaintiff demonstrated that connection above the speculative or remote level. See Furnituredealer.net, 2022 WL 891462, at *4 (a plaintiff must “present concrete evidence of [ ] causation that crosses the line from mere speculation into plausibility”); Honeywell, 2017 WL 374907, at *6 n.5 (the burden of demonstrating a causal nexus “guard[s] against a plaintiff's claiming the defendant's profits from something only feebly connected to the infringement”); Andreas, 336 F.3d at 796 (the plaintiff met his burden by “introduc[ing] more than mere speculation that the” infringing commercial contributed to sales of the car).

FICO failed to demonstrate such a nonspeculative connection. Indeed, this Court expressly found that “[t]he evidence FICO relies on only speculatively or remotely links the Defendants’ infringing use of Blaze to th[eir] revenue.” Dkt. No. 1282 at 20. Although FICO identified differentiated revenues—i.e., “revenue from the sale of insurance policies that ran through computer applications that used, among other software, Blaze Advisor”—it did not show that Defendants’ infringing use had a causal nexus to those revenues. Dkt. No. 1282 at 8-9. Nor did the testimony extolling the benefits of Blaze Advisor establish that Defendants achieved or realized those benefits, much less that those benefits resulted in revenue. Id. at 24. FICO may have demonstrated “some connection” in the sense that certain revenues were earned through policies that “touched” Blaze. But this merely served to satisfy FICO's obligation to differentiate the revenues so as to move forward to a trial (whether jury or court) on disgorgement. See Dkt. No. 105 at 61-63 (allowing discovery into “profits and revenues associated with service[s] and products sold by divisions that used” Blaze while leaving the burden of a causal connection for a later time); Dkt. No. 201 at 42, 59 (ordering production of documents related to applications that “work with” or “touch” Blaze); Summary Judgment Order, Dkt. No. 731 at 57 (finding that FICO's evidence of differentiated revenues demonstrated a genuine dispute of material fact sufficient to survive summary judgment on the issue of disgorgement). At trial FICO was required to but did not demonstrate a connection of the kind required by Andreas and its progeny. Thus, not only has the Eighth Circuit provided “clear guidance” on this question, but all the in-circuit cases interpreting that guidance have articulated a standard FICO failed to meet. FICO has not shown a substantial ground for difference of opinion on this question. Though this alone warrants denial of certification, the Court also addresses Section 1292(b)’s third requirement.

C. Materially Advance the Ultimate Termination of the Litigation

FICO fails to show that resolution of this question would materially advance the ultimate termination of the litigation. First, absent an Eighth Circuit reversal of the Court's decision that FICO does not enjoy the right to a binding jury verdict on disgorgement, the issue remains one for the Court. No efficiency would be gained by remanding the disgorgement issue to this Court now, rather than after the scheduled trial on actual damages. Second, FICO's claim that immediate review would avoid piecemeal appeals is belied by the fact that both parties have expressed their intention to appeal the final order should the jury not find in their favor. Rather than reduce the burden on the appellate court, certification here would ensure multiple appeals. See Nat'l Union Fire, 2015 WL 4898662, at *4 (denying certification when it “would risk multiple appeals that could otherwise be consolidated by allowing the sole remaining substantive issue to reach resolution”); Great Lakes, 2015 WL 3915687, at *4 (when parties are “likely to appeal all, if not most, of th[e] Court's rulings following trial,” interlocutory appeal will “not prevent the inefficiency of having the Eighth Circuit hear multiple appeals in the same case.”); S.E.C. v. Credit Bancorp, Ltd., 103 F.Supp.2d 223, 226 (S.D.N.Y.2000) (“[T]he benefit to the district court of avoiding unnecessary trial must be weighed against the inefficiency of having the Court of Appeals hear multiple appeals in the same case.”).

Finally, given that this question has been clearly answered by the Eighth Circuit, the remote possibility that it would overrule Andreas and reverse this Court does not outweigh the burden, delay, and expense certification would cause. See Target Corp., 2022 WL 4592094, at *3 (“If the mere possibility of reversal on appeal were sufficient to warrant certification for interlocutory appeal, certification would be routine rather than an option granted only in ‘extraordinary cases.’ ”) (quoting Union County, 525 F.3d at 646); Berkley Reg'l Ins. Co. v. John Doe Battery Mfr., No. 20-cv-2382, 2023 WL 4864277, at *3 (D. Minn. July 31, 2023) (“The potentially harmful impact, both in delay and expense, if the district court's ruling is upheld on interlocutory appeal cannot be ignored.”). FICO fails to show that certification would materially advance the ultimate termination of the litigation.

One other observation bears discussion. Interlocutory appeal here could only materially advance the litigation if three decisions fell in FICO's favor. First, the Eighth Circuit would have to find that FICO is entitled to a binding jury verdict on disgorgement. The Eighth Circuit would then have to decide that the disgorgement instructions given to the advisory jury were erroneous. Finally, the Eighth Circuit would have to decide that the advisory jury's verdict cannot be given effect and must be vacated. Reaching this third conclusion would require two attendant determinations: that the error in the jury instructions was not harmless, and that FICO did not waive its right to a jury trial on disgorgement by previously arguing that the advisory jury's verdict could be given binding effect. If all the above events occurred in tandem, certification might advance the litigation. The fact that FICO would have to prevail on all of these matters in order to materially advance the litigation weighs heavily against certification and the attendant burden and expense of delay. See Bullock v. Baptist Mem'l Hosp., 817 F.2d 58, 60 (8th Cir. 1987) (“[P]ermitting appeals before final judgment causes delay, expense, and duplication of appellate process, especially in view of the fact that, statistically speaking, most appeals result in affirmances.”).

Because FICO fails to demonstrate that either of the questions it seeks to certify is “a controlling question of law as to which there is substantial ground for difference of opinion” and that an immediate appeal will “materially advance the ultimate termination of the litigation,” 28 U.S.C. § 1292(b), the Court denies its motion for certification.

ORDER

For the reasons set forth above, IT IS HEREBY ORDERED: FICO's Motion to Amend Order to Certify for Appeal [Dkt. No. 1324] is DENIED.

FOOTNOTES

1.   Defendants argue that FICO's three-month delay in seeking certification of the Court's Disgorgement Order and FICO's decision not to seek certification of the Court's 2019 order on the underlying jury-right issue justify denying the motion. Section 1292(b) does not establish a time in which a party must move to certify an order for interlocutory appeal, and while other courts in this circuit have approved of denying certification because of undue delay, the Eighth Circuit itself has not. In any event, the Court need not address the alleged delay in order to find that FICO fails to meet Section 1292(b)’s requirements for certification.

2.   The Court notes that FICO previously argued that other courts had addressed the problem raised by this same footnote in Petrella by using an advisory jury. See Dkt. No. 345 at 9-10.

3.   See Final Jury Instr., Dkt. No. 1167 at 25 (citing Andreas, Mackie v. Reiser, 296 F.3d 909, 915 (9th Cir. 2002), and Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004)). Andreas cited Mackie for the rule that a plaintiff “has the burden to demonstrate a nexus between the infringement and the indirect profits before apportionment can occur.” Andreas, 336 F.3d at 796 (quoting Mackie, 296 F.3d at 915). In turn, Polar Bear Prods., Inc. provided an example of an overly speculative causal link that failed to meet the standard expressed in Andreas and Mackie. Polar Bear Prods., Inc., 384 F.3d at 714-15.

4.   As the Eighth Circuit has already provided a clear answer to this question, the Court doubts that certification would change the outcome of the litigation, but the first prong of Section 1292(b) does not require so much.

5.   FICO has now mobilized some form of these words no fewer than 115 times in its briefing on this issue. See Dkt. No. 1282 at 21 n. 10; Dkt. No. 1326.

DAVID T. SCHULTZ U.S. Magistrate Judge