In March, WatersTechnology reported that New York-based broker-dealer Dinosaur Financial and Swiss asset manager Swiss Life Investment Management had filed a class-action lawsuit in the Southern District of New York alleging antitrust violations in the licensing of Cusip numbers.

This was followed just three days later by another lawsuit with similar complaints, filed in the same court on behalf of Connecticut-based asset manager Hildene Capital Management.

Both suits were filed against the same four defendants: Cusip Global Services (CGS), which disseminates Cusip identifiers for North American securities; CGS’s former operator S&P Global; its new operator FactSet; and the identifier’s copyright holder, the American Bankers Association (ABA). Both suits allege monopolistic behavior by the defendants and violations of various US antitrust laws, and seek damages for the licensing fees paid to CGS by financial institutions—the “class” represented by both suits. (As such, these suits do not represent data vendors, which also license Cusips, as they are excluded from the class.)

But the first suit, in which Dinosaur and Swiss Life are plaintiffs, goes further than the second, alleging violations of the US Copyright Act, and saying that the formulaic, alphanumeric identifiers issued by CGS are non-copyrightable.

In a motion filed on April 20, counsel for Dinosaur and Swiss Life requested a partial summary judgment related only to the issue of whether the Cusip identifiers are copyrightable, setting aside their antitrust complaints for now. Summary judgments are early decisions made without full trial or hearings on the basis that the defense has no real expectation of winning the case.

The standard for a summary judgment is that the party filing for it must show there is no genuine dispute of any material fact and must prove that they are entitled to the judgment as a matter of law, says Patrick Ashby, a counsel in global law firm Linklaters’ US dispute resolution practice. Judgment as a matter of law argues that no reasonable jury could side with the opposing party.

The judge assigned to the case is Katherine Failla. Ashby says that were Failla to rule that Cusips—which are unique, nine-digit, electronically generated numbers assigned to all US and Canadian stocks and bonds—are non-copyrightable, the four defendants would have no basis to charge firms for using the identifiers. This would be a huge win for the plaintiffs and the class they represent and would serve as a touchstone for the plaintiffs’ antitrust claims in future judgments.

However, if Failla were to rule that Cusips are copyrightable, it would render the plaintiffs’ suit null.

“It’s a pretty aggressive maneuver by plaintiff’s counsel to seek summary judgment,” Ashby says. “It would be rather unique for that to occur before discovery and classification have taken place. It’s a very early stage in the proceedings for summary judgment, and somewhat unusual for it to be sought by plaintiffs’ counsel at this stage of the case.”

Setting a precedent

The April 20 motion cites a 1991 US Supreme Court case—Feist Publications Incorporated versus Rural Telephone Service Company—as a precedent for why the court should rule that Cusip numbers are non-copyrightable. In this case, the court ruled that facts, or information alone, cannot be copyrighted without a minimum of creativity. For example, telephone numbers are facts and can’t be copyrighted. But what about when they are put together with some degree of creativity, as when someone collates a database of telephone numbers? That creativity—but not the phone numbers themselves—constitutes intellectual property and can be copyrighted.

This case set a key precedent in US copyright law.

“It establishes that there must be some minimum degree of creativity for copyright to take hold,” Ashby says. “It’s a very low bar, but it is a bar all the same. That will be the key question here with respect to Cusips and whether they are subject to US copyright.”

Dinosaur and Swiss Life, then, are arguing that the ABA’s copyright protects only the compilation—that is, CGS’s master database of 60 data elements relating to more than 26 million financial instruments—and does not extend to the individual data items in the compilation—the Cusip identifiers themselves.

The two lawsuits could be combined. In another motion filed on April 22, counsel representing S&P Global asked that they be reconciled and consolidated, and for the court to appoint interim class counsel. All parties in each suit are scheduled to appear at a joint pretrial conference in June, at which point Failla could decide to consolidate.

Ashby says several considerations go into a decision to consolidate lawsuits that are similar to one another. Primarily, the judge will consider if consolidation is a more economical use of the court system’s resources, and if doing so would ensure consistency in rulings.

Additionally, the competing law firms that bring the cases are likely to compete for the position of lead class counsel, which comes with the possibility of a larger recovery for the chosen firm.

Counsel for Dinosaur and Swiss Life declined to comment. Officials from S&P Global and the ABA declined to comment. A representative for FactSet referred WatersTechnology to CGS, which said: “We believe strongly that the allegations are without merit, and we intend to defend our position vigorously.”