IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

IN RE: FICO ANTITRUST LITIGATION 

RELATED CASES

Case No. 1:20-CV-02114

Hon. Edmond E. Chang 

Magistrate Judge M. David Weisman

This document relates to:

ALL ACTIONS

THE CREDIT BUREAUS’ REPLY IN SUPPORT OF THEIR MOTION TO STAY 

DISCOVERY AS TO THE CREDIT BUREAUS PENDING THE CREDIT BUREAUS’ 

MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINTS

As this Court’s November 16 Order suggests, the Bureaus are appropriately regarded as 

third parties to this litigation between Plaintiffs and FICO. See Nov. 16, 2023 Order, Dkt. 198

(“the Credit Bureaus may be treated as a non-party . . . like any other non-party for discovery 

purposes, starting right now”). While the Bureaus strongly believe that Plaintiffs have not come 

close to curing the defects leading this Court to dismiss their original complaints, and thus the 

Bureaus are, and should remain, third parties to the claims against FICO, they respectfully submit 

that the best course is to defer all discovery of the Bureaus pending resolution of the Bureaus’ 

impending motion to dismiss—which will be filed the day after this reply. 

If the Court is not inclined to do so, then the Court should limit discovery of the Bureaus 

to third-party discovery, with the associated limitations on burden, and stay party discovery until 

the Court determines whether Plaintiffs have cured the defects in their claims. See Sept. 28, 2023 

Order at 22, Dkt. 173 (warning Plaintiffs to “realistically assess whether they can fill the gap in an 

amended pleading, bearing in mind that the Plaintiffs already gave it a fulsome shot in the current 

300-plus-paragraph Complaints”). Put frankly, Plaintiffs should not be permitted to take party

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discovery simply because they filed lightly-amended versions of complaints already rejected as 

deficient under Rule 12(b)(6). Indeed, Plaintiffs’ demand for such party discovery contradicts 

Plaintiffs’ own proposal to treat the Bureaus as third parties for discovery purposes. 

The Bureaus’ motion to stay discovery should therefore be granted—whether (a) in full by 

staying all discovery of the Bureaus pending resolution of their forthcoming motion to dismiss or 

(b) in part by staying all party discovery of the Bureaus pending such resolution. 

ARGUMENT

I. The Court Correctly Concluded that the Bureaus Should Be Treated as Third 

Parties Unless and Until Plaintiffs State a Viable Claim Against Them 

The Court’s November 16 Order allowing third-party discovery of the dismissed Bureaus

correctly treats the Bureaus as third parties to this dispute between Plaintiffs and FICO, and thus 

allows the same discovery of the third-party Bureaus that the parties would be allowed to take of 

any other third parties. While Plaintiffs failed to heed the Court’s warning not to file an amended 

complaint naming the Bureaus absent a viable factual basis to do so, see Dkt. 173 at 22, the mere 

fact of filing amended complaints should not entitle Plaintiffs to a period of party discovery against 

the Bureaus while motions to dismiss those complaints are pending. 

Plaintiffs cite Kindstrom v. Lake County, No. 3:22-cv-50041 (N.D. Ill.), for the proposition 

that “courts have denied motions to stay discovery after granting motions to dismiss with leave to 

amend.” Opp’n at 7-8 (Dkt. 200). But Kindstrom holds no such thing. The Kindstrom Court 

never ruled on a motion to dismiss; at most, a petition to proceed in forma pauperis was denied 

without prejudice. See Kindstrom, No. 3:22-cv-50041 (N.D. Ill. Mar. 2, 2022) Dkt. 10. Nor did 

the Court there ever rule on a motion to stay discovery; rather, the Court administratively struck a 

series of motions to stay as moot in light of amended pleadings, with the apparent expectation that 

those motions would then be refiled after the amended pleading was refiled (as has, in fact, 

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repeatedly occurred in that matter). Kindstrom, No. 3:22-cv-50041 (N.D. Ill. Mar. 6, 2023) Dkt. 

120 (“In light of the anticipated third amended complaint, the pending motions to stay discovery 

102 103 are stricken without prejudice.”). Plaintiffs have cited nothing that would support taking 

party discovery after a motion to dismiss is granted—nor have the Bureaus located such authority.

Allowing party discovery would be particularly inappropriate given that the Bureaus will 

file a motion to dismiss the amended complaints tomorrow. That motion will show that the minor 

and cosmetic changes Plaintiffs made to their complaints are futile, introduce no new substantive 

factual allegations, and do not address the many defects this Court correctly identified in the 

original complaints. See Dkt. 187 at 6. As the Bureaus explained in their motion to stay, while 

allowing Plaintiffs to seek discovery of the Bureaus as parties while the motion to dismiss is 

pending would subject the Bureaus to undue burden and expense, Plaintiffs will suffer no prejudice 

from a short delay in discovery. See id. at 4-6. 

Plaintiffs assert (at 9) that the Court cannot consider the Bureaus’ forthcoming motion to 

dismiss. But, many courts have considered the possibility that claims will be dismissed in 

managing discovery. See, e.g., Turner v. City of Chicago Bd. of Educ., 2018 WL 11473307, at *2 

(N.D. Ill. Nov. 27, 2018) (finding “judicial economy is served by postponing discovery until the 

District Court rules on the pending motion” where the defendant asserted “the same deficiency the 

District Court found in Plaintiffs’ First Amended Complaint”); Sanders v. City of Indianapolis, 

2010 WL 1410587, at *1 (S.D. Ind. Apr. 2, 2010) (finding “that a stay of discovery is appropriate” 

where there was “a high likelihood (though not a certainty)” that the “claims will ultimately be 

dismissed,” and so “Defendants will have needlessly been put to the expense of discovery”); CMG 

Worldwide Inc. v. Adidas Am., Inc., 2018 WL 7140117, at *3 (S.D. Ind. Sept. 26, 2018) (“the court 

weighs the potential benefits of a stay with the likelihood that awaiting a ruling on the motion to 

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dismiss will indeed cause those benefits to be realized”). The Court should consider its own prior 

order dismissing the original complaints, and the absence of material changes in the amended 

complaints, in deciding how to efficiently manage discovery in this case.

Plaintiffs argue (at 8) that because the “Bureaus will be subject to discovery one way or 

the other, whether as parties or third parties,” subjecting the Bureaus to party discovery while their 

motion to dismiss is pending would not impose any additional burden on the Bureaus. Plaintiffs 

are wrong. Plaintiffs ignore the material differences between party and third-party discovery. 

While the Federal Rules of Civil Procedure do not distinguish between the appropriate subject 

matter of party and third-party discovery, those rules—and federal courts in this district and 

nationwide—sharply distinguish between the burden that it is appropriate to impose on parties and 

third parties. See Fed. R. Civ. P. 45(d)(1) (“A party or attorney responsible for issuing and serving 

a [Rule 45] subpoena must take reasonable steps to avoid imposing undue burden or expense on a 

person subject to the subpoena.”); see also, e.g., Wong v. Bd. of Educ. of Cmty. Consol., 2013 WL 

6571326, at *4 (N.D. Ill. Sept. 30, 2013) (“[I]n the context of third-party discovery, [courts] need 

to consider the unwanted burden thrust upon third parties.”); Am.’s Health & Res. Ctr., Ltd. v. 

Alcon Labs., Inc., 2018 WL 11260472, at *3 (N.D. Ill. Nov. 19, 2018) (“[T]he court has an 

independent obligation to protect third-party subpoena respondents from undue burden and 

expense when responding to discovery subpoenas.”). 

Whether the Bureaus are parties or third parties will have a substantial impact on the 

burdens that Plaintiffs can seek to impose on them consistent with the rules. For example, 

Plaintiffs claim (at 5) that they intend to take third-party discovery of the Bureaus before taking 

party discovery of FICO. But that approach is backwards for third-party discovery—because 

under Rule 45, Plaintiffs “ought to . . . pursue[] discovery from the [party] . . . before targeting 

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a non-party.” Rossman v. EN Eng’g, LLC, 467 F. Supp. 3d 586, 591 (N.D. Ill. 2020); see also

Little v. JB Pritzker for Governor, 2020 WL 1939358, at *7 (N.D. Ill. Apr. 22, 2020) (“Parties and 

non-parties are not on the same footing during discovery. Before seeking discovery from a nonparty[,] . . . a litigant must first attempt to obtain the discovery from another party in the lawsuit. . 

. . If the litigant fails to obtain the information from the other party, the litigant must provide a 

reasonable explanation for why it was unable to do so.”). Until Plaintiffs first attempt to obtain 

discovery from FICO, Plaintiffs can only speculate as to whether the information they need is 

available from FICO or only in possession of the Bureaus—and because the Bureaus are third 

parties, Plaintiffs must first start with FICO, a party.0 F

1

 

And while Plaintiffs assert (at 8) that the scope of third-party discovery is the same as the 

scope of party discovery, this assertion only undermines Plaintiffs’ claim (at 5) that treating the 

Bureaus as third parties will deny Plaintiffs access to necessary discovery. The November 16 

Order’s third-party approach simply prohibits Plaintiffs from imposing burdens on the Bureaus

beyond those allowed by Rule 45. To the extent that certain discovery is too burdensome to 

demand from third parties under that standard, Plaintiffs put forward no reason why the Court 

should allow Plaintiffs to nonetheless demand it from the Bureaus here. 

 1

 While FICO asserts that the Bureaus are in exclusive possession of unspecified “transactional data,” 

FICO fails to explain why the “transactional data” in its own files and those of the Plaintiffs will be 

insufficient to perform the specific “economic analyses” FICO contemplates, much less why those specific 

economic analyses are necessary. Dkt. 201 at 1, 3. FICO also asserts that discovery of the Credit Bureaus 

is necessary to understand “adoption among end users” of VantageScore, without acknowledging that 

VantageScore, LLC publishes annual data on adoption on its public website. Id. at 3; see Oliver Wyman, 

2022 VantageScore® Market Study Report at 2 (2022), at 2022-VS-Market-Adoption-Study-Public-Report.pdf

(“VantageScore credit score use increased to 14.5BN scores or by 18% compared to the 2019 study[.]”). 

To the extent FICO intends to seek third-party discovery of the Bureaus, FICO should follow the same 

process as the Plaintiffs and seek that discovery only after exhausting party discovery and readily accessible 

public resources. 

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Plaintiffs’ other arguments (at 4-9) boil down to the generalized complaint about delay, 

which “is not a persuasive reason to deny the motion for stay.” Rodriguez v. Ford Motor Co., 

2022 WL 704780, at *1 (N.D. Ill. Mar. 9, 2022) (citation omitted). 

Finally, as noted, Plaintiffs are now asking this Court to reject a proposal that Plaintiffs 

themselves originally suggested—though, of course, the Court’s compromise approach does not 

come with the conditions Plaintiffs sought to attach to that proposal. One main problem with 

Plaintiffs’ proposal was that Plaintiffs demanded that, in the unlikely event that Plaintiffs’ lightlyamended complaints survive, the Bureaus waive any right to petition this Court for sufficient time 

to complete party discovery or to object to the burdens associated with taking such discovery in 

two stages. 1F

2

 See Opp’n at 3-4. These restrictions on the Bureaus’ ability to raise concerns with 

the Court were and are inappropriate. But Plaintiffs were otherwise perfectly content to take thirdparty discovery of the Bureaus; that Plaintiffs now object to the very proposal that they themselves 

suggested illustrates the lack of merit in those objections.

The Court should therefore not permit Plaintiffs to take party discovery from the Bureaus 

pending resolution of the Bureaus’ motion to dismiss the amended complaints. 

II. The Most Efficient Option Is To Stay Discovery as to the Bureaus Until the Motion 

To Dismiss Is Resolved

In the alternative, the Court should stay all discovery of the Bureaus. Plaintiffs’ Opposition

fails to address the Bureaus’ concern that proceeding with discovery of the Bureaus now introduces 

the risk that there will be two rounds of discovery of the Bureaus—a first round of discovery of 

 2

 Plaintiffs devote space to arguing that because their first email to FICO’s counsel regarding 

discovery copied the Bureaus, and was addressed to “Counsel” rather than FICO’s counsel by name, the 

Bureaus should have intervened in the process of setting a discovery schedule for a case from which they 

had been dismissed. See Opp’n at 4, 10. Plaintiffs omit to mention that in the joint status report attached 

to that initial outreach, Plaintiffs included a signature block for FICO but no signature block for the 

Bureaus—thus making clear that the Bureaus were not “parties.” 

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the Bureaus as third parties while the motion to dismiss is pending and a second round of discovery 

as parties in the event the motion to dismiss is denied. Of course, this concern exists only to the 

extent that Court denies the Bureaus’ forthcoming motion to dismiss; the Bureaus respectfully 

submit that the Court should instead grant that motion—particularly given that little has changed 

in the amended complaints, and certainly nothing that would call for the Court to reverse its prior 

decision. But, if the Court were to allow Plaintiffs to bring the Bureaus back in as parties, then 

doing so would mean two rounds of discovery for the Bureaus—compounding the burdens on the 

Bureaus, the parties, and the Court. The Bureaus thus maintain that the most efficient option would 

be to impose a single round of discovery after the amended complaints have been tested. 

CONCLUSION

For the reasons stated above and in the Bureaus’ motion, the Bureaus maintain that the 

Court should stay all discovery of the Bureaus pending resolution of their forthcoming motion to 

dismiss Plaintiffs’ amended complaints—but if the Court is not inclined to do so, then the Court 

should stay all party discovery as to the Bureaus, and continue to treat the Bureaus as third parties, 

pending resolution of the motion to dismiss.2F

3

 

 3

 The Bureaus take no position on FICO’s separate request that this Court stay discovery as to all 

parties, but note that there is no reason to tie FICO’s belated request for such a stay to the Bureaus’ properlynoticed motion. 

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Dated: November 30, 2023 Respectfully submitted,

/s/ Leslie V. Pope

Leslie V. Pope (admitted pro hac vice) 

John Thorne, #6181458 

KELLOGG, HANSEN, TODD, 

 FIGEL & FREDERICK, P.L.L.C. 

1615 M Street, N.W. 

Suite 400 

Washington, D.C. 20036 

Tel: (202) 326-7900 

lpope@kellogghansen.com 

jthorne@kellogghansen.com

J. David Duffy, #6242374 

Audrey Mense, #6302524 

THOMPSON COBURN LLP

55 East Monroe Street, 37th Floor 

Chicago, Illinois 60603 

(312) 346-7500 

dduffy@thompsoncoburn.com

amense@thompsoncoburn.com 

Attorneys for TransUnion LLC 

/s/ James F. Herbison 

James F. Herbison 

Michael P. Mayer

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601-9703 

(312) 558-5600 

jherbison@winston.com 

mmayer@winston.com 

Counsel for Equifax, Inc.

/s/ Carolyn P. Gurland

Carolyn Pelling Gurland, #6274399 

WHITE & CASE LLP

111 South Wacker Drive 

Suite 5100 

Chicago, IL 60606 

Tel: (312) 881-5400 

carolyn.gurland@whitecase.com 

Robert A. Milne (admitted pro hac vice) 

Martin M. Toto (admitted pro hac vice) 

Jack E. Pace III (admitted pro hac vice) 

Bryan D. Gant (admitted pro hac vice) 

WHITE & CASE LLP

1221 Avenue of the Americas 

New York, NY 10020-1095 

Tel: (212) 819 8200 

rmilne@whitecase.com

mtoto@whitecase.com

jpace@whitecase.com

bgant@whitecase.com

Counsel for Defendant Experian Information 

Solutions, Inc.

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