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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ORDER

 Plaintiffs are health care plans offering comprehensive health care services and coverage, 

including prescription drug coverage, to their members across the United States. Defendants are 

Walgreen Co. and Walgreens Boots Alliance, Inc. (collectively, “Walgreens”) who allegedly 

engaged in a fraudulent scheme to overcharge Plaintiffs for prescription drugs by submitting 

claims for payment at artificially inflated prices. Before the Court is Walgreens’ Motion for 

Attorneys’ Fees and Expenses, (Dkt. 470), brought pursuant to the Magistrate Judge’s May 31, 

2023 Order (“Order”) granting Walgreens’ Motion to Compel, (Dkt. 453). For the following 

BCBSM, INC., et al., 

 Plaintiffs/Counter-Defendants, 

 v. 

WALGREEN CO. and WALGREENS BOOTS 

ALLIANCE, INC., 

 Defendants/Counter-Plaintiffs.

WALGREEN CO. and WALGREENS BOOTS 

ALLIANCE, INC., 

 Defendants/Third-Party Plaintiffs, 

 v. 

PRIME THERAPEUTICS LLC,

 Third-Party Defendant. 

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No. 20 C 1853 

 Judge Virginia M. Kendall 

Consolidated with: 

 No. 20 C 1929 

 No. 20 C 3332 

 No. 20 C 4940 

 No. 20 C 4738 

 No. 22 C 1362 

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reasons, Walgreens’ Motion for Attorneys’ Fees and Expenses [470] is granted in part and 

Walgreens is awarded $68,316.80 in fees. 

BACKGROUND

 The Court has detailed the factual background of Plaintiffs’ main claims and Walgreens’ 

counterclaim in previous opinions. See Dkt. 453; BCBSM, Inc. v. Walgreen Co., 512 F. Supp. 3d 

837, 846–47 (N.D. Ill. 2021); BCBSM, Inc. v. Walgreen Co., No. 20 C 1853, 2022 WL 393596, at 

*1–3 (N.D. Ill. Feb. 9, 2022). The Court will briefly summarize the relevant factual allegations 

and procedural history. 

Plaintiffs are health care plans offering comprehensive health care services and coverage, 

including prescription drug coverage, to their insureds across the United States.1 Walgreens send 

claims for reimbursement to Plaintiffs’ pharmacy benefit managers, who then submit claims for 

payment to Plaintiffs when a Walgreens pharmacy dispenses a prescription to an insured. Plaintiffs 

allege that Walgreens engaged in a fraudulent scheme to inflate the prescription prices —thus 

owing them damages. (Dkt. 145; Dkt. 453 at 2). 

Discovery in this case proceeds under the Honorable Magistrate Judge Sheila M. Finnegan. 

In January 2023, Walgreens moved to compel Plaintiffs to respond to certain document requests 

and interrogatories. (Dkt. 407). The Magistrate Judge addressed the raised discovery issues in 

depth. Specifically at issue were:

• Interrogatory 26, which sought information about the financial relationship 

between Plaintiffs and Prime Therapeutics LLC, in connection with Walgreens’ 

1 Walgreens seeks relief against the 28 original Blue Cross insurer plaintiffs. In March 2022, seven 

more Blue Cross insurers joined this case as plaintiffs; Walgreens’ Motion to Compel does not 

apply to the new plaintiffs. (See Dkt. 470 at 2 n.1). 

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third-party complaint against Prime Therapeutics for contribution. (Dkt. 453 at 2; 

Dkt. 407 at 2). 

• Interrogatories 13, 14, and 16, which sought information about common interest 

agreements, litigation financing or funding, and insurance contracts or policies 

covering any part of Plaintiffs’ costs in this case between or among Plaintiffs and 

third parties. (Dkt. 453 at 8). 

• Interrogatory 10 and Requests for Production (“RFPs”) 38 and 39, which sought 

information regarding the method, processes, and documents supporting or forming 

the basis for the Complaint’s exhibits. (Dkt. 453 at 13). 

• Requests for Admission (“RFAs”) 148–160 related to Plaintiffs’ Consumer Fraud 

Act claims against Walgreens. (Dkt. 453 at 17; Dkt. 408-8 at 6–10). 

In May 2023, Magistrate Judge Finnegan granted Walgreens’ Motion to Compel in its 

entirety and ordered Plaintiffs to respond. (Dkt. 453 at 8, 10, 13, 17, 21). Walgreens now move 

under Federal Rule of Civil Procedure 37(a)(5)(A) for Plaintiffs to pay Walgreens’ reasonable 

attorneys’ fees and expenses incurred in connection with filing its Motion to Compel, (Dkt. 407), 

and the Motion for Attorneys’ Fees and Expenses, (Dkt. 472), in the amount of $103,184.40, plus 

any expenses and fees to be incurred through further briefing. Plaintiffs object.

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DISCUSSION

I. Substantial Justification under Rule 37(a)(5)(A)

Under Rule 37(a)(5)(A), if a motion to compel is granted, “the court must, after giving an 

opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay 

2 Initially, Walgreens requested $102,746.00 (Dkt. 470 at 6), but later, changed it to $103,184.40, 

(Dkts. 472, 476). 

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the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. 

R. Civ. Proc. 37(a)(5)(A); see also, e.g., Gevas v. Wexford Health Sources, No. 20 C 50146, 2021 

WL 5795308, at *8 (N.D. Ill. Dec. 7, 2021). The fee-shifting is automatic: if the motion to compel

is granted a court must require the party to pay the movant’s reasonable expenses and attorney’s 

fees incurred in making the motion unless (1) the motion was filed before the parties attempted to 

resolve their discovery dispute without court intervention; (2) the opposing party’s nondisclosure, 

responses, or objections were substantially justified; or (3) other circumstances make the award of 

expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). The rule “presumptively requires every loser 

to make good the victor’s costs,” Rickels v. City of South Bend, Ind., 33 F.3d 785, 786 (7th Cir. 

1994), and the burden is on the defendants to prove that one of the Rule 37 exceptions applies, see 

Lorillard Tobacco Co. v. Elston Self Serv. Wholesale Groceries, Inc., 259 F.R.D. 323, 327 (N.D. 

Ill. 2009). 

There is no dispute that Walgreens filed their Motion to Compel following meet-andconfers with Plaintiffs. (Dkt. 453 at 4; Dkt. 475 at 6–7). Further, neither party raises, nor does the 

Court find, any circumstances making the award of expenses unjust. The issue lies with whether 

Plaintiffs were “substantially justified” in their nondisclosure, responses, or objection. Fed. R. Civ. 

Proc. 37(a)(5)(A)(ii). A party’s resistance to discovery is substantially justified if there is a 

“genuine dispute,” or if “reasonable people could differ as to the appropriateness of the contested 

action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). 

The Court will not recite the entirety of Magistrate Judge Finnegan’s Order evaluating the 

Motion to Compel. However, in the Court’s view, the Magistrate Judge’s findings speak to whether 

Plaintiffs bore their burden of displaying substantial justification in their position. In relevant part, 

the Magistrate Judge found: 

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a) as to Interrogatory 26, Plaintiffs provided a “conclusory objection” with “no reasons”

such that they were “tantamount to not making any objection at all,” and “ha[d] not even attempted 

to make [an undue burden] showing.” (Dkt. 453 at 4, 7–8); 

b) as to Interrogatory 13, Plaintiffs “conclusory objections carry no weight and could be 

stricken,” but Plaintiffs objections were “untenable in any event.” (Id. at 9);

c) as to Interrogatory 14, Plaintiffs “present no argument” that “producing information . . . 

is unduly burden or disproportionate,” and make “no claim that their agreements contain legal 

advice.” (Id. at 12);

d) as to Integratory 16, providing sworn responses to information that Plaintiffs believed 

was already required under the initial disclosure rules is appropriate and not burdensome. (Id. at 

13); 

e) as to Interrogatory 10 and RFPs 38 and 39, that 1) “assertion of the consulting expert 

objection . . . is wholly conclusory”; 2) was waived in any event, and 3) Plaintiffs failed to produce 

a privilege log or identify any specific documents that would be work product (Id. at 14–15); and 

f) as to RFAs 148-160, that Plaintiffs, while arguing that the work product privilege 

applied, “never even explain[ed] why responding to this discovery would involve attorney work 

product, and none of Plaintiffs’ cases is on point.” (Id. at 19).

In sum, the Order’s repeated findings of boilerplate, conclusory, and unsupported 

objections showed that Plaintiffs were not substantially justified under Rule 37(a)(5)(A)(ii). 

Nevertheless, Plaintiffs resist this conclusion. They argue that the Rule 37(a)(5)(A)(ii) exception

applies because there was a “good faith effort” to resolve “genuine discovery disputes” and the 

Magistrate Judge did not find “bad faith” or a “disregard for clear, bright-line discovery rules.”

(See Dkt. 475 at 8, 14). They misstate the law: an objection or response to a discovery request is

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substantially justified if there is a genuine dispute. Questions of good faith or bright-line discovery 

rules are irrelevant here. Plaintiffs’ argument fails because they did not provide substantial 

justification in their initial objections, but instead, rested on generic, vague responses, 

characterized as “no reasons,” “no argument,” and “conclusory objections.” The Court has 

previously granted fees where a party failed to provide “compelling reasons that the information 

is not discoverable, either by asserting a privilege or by explaining [how it] would impose an undue 

burden,” just as the underlying Order found. In re: Local TV Adver. Antitrust Litig., No. 18 C 6785, 

2023 WL 5659926, at *2 (N.D. Ill. Aug. 31, 2023). Now, upon Walgreens’ Motion for Attorneys’ 

Fees, Plaintiffs seek to set forth more detailed arguments to display a genuine dispute.

A key purpose of awarding fees and expenses under Rule 37(a)(5) is to deter abuses of the 

discovery process, see In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 330 (N.D. Ill. 2005) 

(citing 7 Moore’s Federal Practice § 37.23[1], at 37–42); Gevas, 2021 WL 5795308, at *8, and to

“promote voluntary discovery without the need for motion practice,” Ill. Tool Works, Inc. v. Metro 

Mark Prods., Ltd., 43 F.Supp.2d 951, 960 (N.D. Ill. 1999). Plaintiffs’ responses violate the spirit 

of Rule 37 if Plaintiffs can rely on conclusory and boilerplate objections and still escape Rule 37’s 

presumptive fee-shifting. The Court finds that Plaintiffs have not met their burden of proving they 

fit into one of Rule 37(a)(5)(A)’s exceptions and thus, applies the presumptive fee-shifting in favor 

of Walgreens.

II. Reasonableness of Counsel’s Rates and Hours

a. Billing Rate

The district court enjoys “wide latitude” in establishing attorney fee awards. Divane v. 

Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003). The Court must determine the reasonable hourly 

rate to be applied and the number of hours reasonably expended, and then multiply the two 

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figures—the “lodestar.” Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012); Haywood v. 

Wexford Health Sources, Inc., No. 16 CV 3566, 2021 WL 2254968, at *10 (N.D. Ill. Jun. 3, 2021). 

There “is a strong presumption that the lodestar calculation yields a reasonable attorneys’ fee 

award,” though the Court may nevertheless adjust the fee based on factors not included in the 

computation. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011); Pable v. 

Chicago Transit Auth., No. 19 CV 7868, 2023 WL 5955832, at *3 (N.D. Ill. Aug. 16, 2023).

In determining a reasonable rate, we “presume that an attorney’s actual billing rate for 

similar litigation is appropriate to use as the market rate.” Pickett, 664 F.3d at 640. Defendants, as 

the fee applicant, bear the initial burden in producing enough evidence that their requested rates 

are in line with those prevailing in the community. Id. (quoting Blum v. Stenson, 465 U.S. 886, 

895 n. 11 (1984)). If the fee applicant satisfies this burden, the burden shifts to the other party to 

offer evidence that sets forth a “good reason why a lower rate is essential.” Id.

In support of their rates’ reasonableness, Defendants provided an affidavit from Ropes & 

Gray LLP attorney Timothy R. Farrell, counsel to Walgreens. The affidavit includes a breakdown 

of the billing rates and hours worked for eight associates, one paralegal, one counsel, and two 

partners and notes that the rates reflect an alternative fee arrangement whereby their client 

“receive[s] a substantial discount compared to [the firm’s] standard billing rates” “below what is

customarily charged by the firm in litigation of this type,” and are “comparable to those of similarly 

situated law firm in the Chicago area.” (Dkt. 470-1 at 3).

Plaintiffs argue that 1) Walgreens failed to submit any proof of actual billing rates in similar 

cases or in the district to support the request rate; and 2) that Walgreens has not submitted any 

proof that the fees were actually billed and paid by Walgreen. (Dkt. 475 at 18). While Walgreens 

does not provide a specific rate comparison, they are not required to do so. See Little v. JB Pritzker 

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for Governor, No. 1:18-cv-06954, ECF No. 241, at *2-3 (N.D. Ill. August 2, 2022). Moreover, 

Plaintiffs have not stated why a lower rate should apply. Considering that these attorneys are based 

in Chicago, which has generally high market rates, the Court finds Ropes & Gray’s rates 

reasonable. Next, Walgreens do not need to show that they paid the attorneys’ fees to recover those 

fees. And Walgreens did state that Ropes & Gray billed them for work on the Motions. (Dkt. 472 

¶10; Dkt. 476 at 7). Thus, the Court finds the hourly rates reasonable.

b. Number of Hours

Having determined that the hourly rates are appropriate, the Court next assesses whether 

the time entries are reasonable, which can include looking at whether entries are “excessive, 

redundant or otherwise unnecessary.’” Small v. Richard Wolf Med. Instruments Corp., 264 F.3d 

702, 708 (7th Cir. 2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). A “reasonable” 

use of a lawyer’s time “is a highly contextual and fact specific enterprise,” and the court has “wide 

latitude” in awarding attorney’s fees. Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010) (internal 

quotation marks omitted); see also Schmalz v. Vill. of N. Riverside, No. 13 C 8012, 2018 WL 

11198063, at *2 (N.D. Ill. Dec. 17, 2018).

Here, the Court finds no excessive or redundant entries. Plaintiffs’ argument that eight 

associates is excessive is irrelevant—the team size has no bearing on whether the total number of 

hours expended is reasonable. But the Court does take issue with the $34,867.60 in attorneys’ fees

for work performed after the ruling on the Motion to Compel.

There is no binding precedent on this Court as to whether Rule 37 attorneys’ fees include 

fees incurred after a motion to compel is granted. Compare Rackemann v. LISNR, Inc., No. 17 CV 

624, 2018 WL 3328140, at *6 (S.D. Ind. Jul. 6, 2018) (ordering costs and fees associated with the 

filing of the motion to compel, reply brief, and original brief in support of its request for fees), 

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with Hubert v. Oswego Junction Ents. LLC, No. 21 CV 3360, 2023 WL 2933052, at *2 (N.D. Ill. 

Apr. 13, 2023) (plaintiff not entitled to fees incurred “prod[ding] new defense counsel . . . to 

produce all the documents the Court ordered produced” because “time spent after the Court had 

ruled on Plaintiff's Motion does not justify an award of attorneys’ fees or costs under Rule 

37(a)(5)(A)”) (emphasis in original) and Pable v. Chicago Transit Auth., No. 19 CV 7868, 2023 

WL 5955832, at *4 (N.D. Ill. Aug. 16, 2023) (denying fees and costs incurred after the motion to 

compel was granted where there were “numerous and serious deficiencies” in the fee petition). 

The law is clear—the losing party must “pay the movant’s reasonable expenses incurred 

in making the motion,” Fed. R. Civ. Proc. 37(a)(5)(A), so that “the victor should be made whole,” 

Rickels, 33 F.3d at 787. Therefore, the Court declines to find that Plaintiffs must pay Walgreens 

for the work performed after the Magistrate Judge’s Order was entered on May 31, 2023. 

Walgreens’ award of fees and costs will be reduced by $34,867.60. 

CONCLUSION

For the foregoing reasons, the Court grants in part Defendants’ Motion for Attorney’s Fees 

[470] in the amount of $68,316.80. The Court orders Plaintiffs and their counsel to pay $68,316.80 

within 60 days of this Order. 

____________________________________ 

 Virginia M. Kendall 

 United States District Judge

Date: October 30, 2023

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