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 David E. Weisman This document relates to: 

ALL ACTIONS 

THE CREDIT BUREAUS’ MOTION TO STAY DISCOVERY 

AS TO THE CREDIT BUREAUS PENDING THE CREDIT BUREAUS’ MOTION 

TO DISMISS PLAINTIFFS’ AMENDED COMPLAINTS 

Experian Information Solutions, Inc., Equifax, Inc., and TransUnion, LLC (collectively, 

the “Credit Bureaus”) request that this Court stay discovery of the Credit Bureaus while the Court 

considers the Credit Bureaus’ forthcoming motion to dismiss. 

BACKGROUND 

On September 28, 2023, this Court “grant[ed] the Credit Bureaus’ motion to dismiss in its 

entirety,” concluding that neither the hub-and-spoke theory nor the individual conspiracy theories 

were plausible as required to state a claim under applicable pleadings standards. Sept. 28, 2012 

Mem. Op.& Order (“Op.”) at 22, 30, Dkt. 173. The Court noted that while “[f]or now” the 

dismissal was without prejudice, as no prior amendment had been made, “the Plaintiffs should 

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.” Id. at 22. 

The Court permitted Plaintiffs to “file amended complaints by October 30, 2023, if there really is 

a fix for the problems identified in the Opinion.” Id. at 30. In setting this deadline, the Court noted 

that the amended complaint deadline was intentionally later than the deadline for Fair Isaac 

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Corporation (“FICO”) to file its answer, “so that an answer is in place as discovery gets going with 

FICO.” Id. at 22 n.5 (emphasis added). The Court also set deadlines for a joint status report 

(October 16) and initial disclosures (November 13). Id. at 30-31. 

On October 16, 2023, FICO and Plaintiffs filed a joint status report including proposed 

discovery deadlines; the Credit Bureaus were not parties to the case at the time, and thus were not 

signatories to that joint status report, nor were they asked to participate in any meet and confer 

regarding that report. Dkt. 179. The next day, “[o]n review of the status report,” the Court entered 

a case management order setting discovery deadlines for FICO and Plaintiffs. Dkt. 180. 

On October 23, 2023, FICO answered Plaintiffs’ complaints. See Dkts. 182, 183. 

On October 30, 2023, the Direct Purchaser Plaintiffs (“DPPs”) filed a First Amended 

Consolidated Class Action Complaint, Dkt. 184, and the Indirect Purchaser Plaintiffs (“IPPs”) 

filed a Second Amended Class Action Complaint, Dkt. 185. Both sets of plaintiffs named the 

Credit Bureaus as defendants. See Dkt. 184 at ¶¶ 23, 24, 25; Dkt. 185 at ¶¶ 25, 26, 27. As the 

Credit Bureaus intend to demonstrate in their upcoming motion to dismiss, however, the 

allegations in the amended complaints are fundamentally identical to the allegations in the 

dismissed original complaints, and dismissal of the claims against the Credit Bureaus will therefore 

be appropriate for all the same reasons the Court dismissed the same claims previously. The parties 

will shortly submit to the Court for its approval an agreed-upon schedule under which the Credit 

Bureaus’ motion to dismiss will be filed by December 1, 2023, Plaintiffs will file any opposition 

by January 15, 2024, and briefing will be complete by February 9, 2024.

Although the Court’s September 28, 2023 Order seemed to contemplate that any attempt 

by the Plaintiffs to amend their complaints to assert a claim against the Credit Bureau would be 

addressed in parallel with discovery of FICO (not the Credit Bureaus), see Op. at 22 n.5, out of an 

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abundance of caution on November 1, 2023, the Credit Bureaus reached out to the Plaintiffs and 

FICO to confirm that they shared that understanding. See Ex. A at 10-11 (Email from Leslie Pope, 

counsel for TransUnion). FICO agreed that it would not seek discovery from the Credit Bureaus 

pending a motion to dismiss.1

 See Ex. A at 8 (Email from Matthew Provance, counsel for FICO). 

Plaintiffs, however, objected to this commonsense course of action, and asserted the right to take 

discovery from the Credit Bureaus even while the Credit Bureaus’ motion to dismiss is pending. 

See Ex. A at 8-9 (Email from Lauren Weinstein, counsel for Plaintiffs). 

On November 5, 2023, Plaintiffs proposed to treat the Credit Bureaus as third parties while 

the Credit Bureaus’ motion to dismiss is pending if the Credit Bureaus agreed to (1) give up any 

right to seek to modify the case schedule in the event the motion is denied, and (2) be subjected 

two rounds of discovery if the motion is denied—one round of discovery as third parties while the 

motion is pending, and a second round of discovery as parties if the motion is denied. See Ex. A 

at 6 (Email from Lauren Weinstein, counsel for Plaintiffs). 

On November 6, 2023, counsel for the Credit Bureaus met with counsel for Plaintiffs to try 

to understand their proposal. When the Credit Bureaus asked if the Plaintiffs’ proposed “third 

party” discovery would be narrow, counsel for Plaintiffs responded that she could not describe the 

specific discovery Plaintiffs would seek but that Plaintiffs would be seeking extensive discovery 

of the Credit Bureaus. Later the same day, Plaintiffs served the Credit Bureaus with 67 RFPs and 

8 interrogatories for each Credit Bureau. 

 1

 FICO also indicated that it might move to dismiss some portion of the amended 

complaints, and might further seek a stay of discovery while such a motion to dismiss was pending. 

The Credit Bureaus take no position with respect to any such request by FICO, but note that staying 

discovery as to the Credit Bureaus would not require staying discovery with respect to FICO. 

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The Credit Bureaus informed Plaintiffs that they could not agree to Plaintiffs’ proposal, 

which would result in the Credit Bureaus being subject to extensive discovery twice in the same 

case—an approach that would very likely multiply the burden and expense to which the Credit 

Bureaus would be subject. See Ex. A at 1 (Email from Leslie Pope, counsel for TransUnion). The 

Credit Bureaus therefore bring this motion seeking a stay of discovery. 

ARGUMENT 

This Court’s prior rulings and the parties’ prior submissions do not appear to contemplate 

that Plaintiffs would, simply by filing an amended complaint, therefore be entitled to begin 

discovery of the previously-dismissed Credit Bureaus. The Credit Bureaus accordingly move to 

stay discovery of the Credit Bureaus until after the Court has tested the sufficiency of the amended 

complaints. See Ashcroft v. Iqbal, 556 U.S. 662, 664-65 (2009) (“[B]ecause Iqbal’s complaint is 

deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”). 

I. The Court Should Stay Discovery as to the Credit Bureaus Because All of the 

Applicable Factors Weigh in Favor of Such a Stay 

District courts enjoy broad discretion in managing discovery. Jones v. City of Elkhart, 

Ind., 737 F.3d 1107, 1115 (7th Cir. 2013). Under Federal Rules of Civil Procedure 26(c) and 

26(d), a court may limit the scope and sequence of discovery, including staying discovery during 

the pendency of a motion to dismiss. In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 336 

(N.D. Ill. 2005). “[S]uch stays are granted with substantial frequency,” as this Court’s practices 

recognize, see Judge Edmond E. Chang’s Case Procedures, Discovery & Discovery Motions

(“During the pendency of a motion, such as a motion to dismiss, . . . very often one or both parties 

might be justified in asking for a stay.”). 

In determining whether to grant such a stay, a court may consider at least the following 

factors: (1) whether a stay will unduly prejudice or tactically disadvantage the non-moving party, 

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(2) whether a stay will simplify the issues in question and streamline the trial; and (3) whether a 

stay will reduce the burden of litigation on the parties and on the court. Robinson v. Walgreen Co., 

2021 WL 2453069, at *1 (N.D. Ill. June 16, 2021). Here, these factors all weigh in favor of a stay. 

As to the first factor, a stay will not unduly prejudice or tactically disadvantage Plaintiffs 

because the stay the Credit Bureaus seek is limited to the pendency of their motion to dismiss, and 

“having to wait for resolution 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). “Plaintiff[s] also do[] not 

seek a preliminary injunction against Defendant[s], further demonstrating that a delay at this stage 

would not significantly prejudice Plaintiff[s].” Calderon v. Procter & Gamble Co., 2022 WL 

20742696, at *1 (N.D. Ill. Oct. 6, 2022). And Plaintiffs can advance their claims and discovery 

against FICO while the motion to dismiss the claims against the Credit Bureaus is pending; as this 

Court notes in its Procedures, “there is generally no particular sequence in which discovery must 

occur.” 

The second factor relating to efficiency similarly weighs in favor of a stay because the 

Credit Bureaus’ motions to dismiss will argue “that Plaintiff[s’] entire class action complaint is 

legally defective” and can resolve all claims against them. Calderon, 2022 WL 20742696, at *2. 

Indeed, this is the rare case in which the Court has already found that a set of claims was legally 

defective, and where the Plaintiffs seek discovery notwithstanding that holding. Staying discovery 

to clarify whether any claims survive as to the Credit Bureaus will significantly streamline 

proceedings here. 

As for the third factor, given “the burden, time, and expense often associated with 

responding to discovery in a putative class action,” discovery of the Credit Bureaus unquestionably 

will be expensive and time-consuming for the parties and the Court. Rodriguez, 2022 WL 704780, 

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at *2. As the Supreme Court has noted, antitrust discovery is notoriously complicated and 

expensive. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007) (“[I]t is one thing to be 

cautious before dismissing an antitrust complaint in advance of discovery, but quite another to 

forget that proceeding to antitrust discovery can be expensive.”). Plaintiffs have already 

demonstrated as much by serving 67 RFPs and 8 interrogatories on each Credit Bureau. And 

although the Credit Bureaus may eventually need to respond to third-party discovery (as Plaintiffs 

have informed), it would be patently unfair and burdensome to prematurely subject them to the 

risk that they may need to face two sets of discovery—one set as third parties and one set as 

potential parties (although unlikely). The more efficient course is for the Plaintiffs to wait just a 

few months while the motion to dismiss is pending so that the Credit Bureaus’ position in this case 

(whether as third-parties or parties) is decided by the Court. 

Finally, a stay is particularly appropriate here because the Credit Bureaus already were 

dismissed as parties and—as the Credit Bureaus will show in their upcoming motions to dismiss—

Plaintiffs’ amendments are futile, and introduce no new factual allegations that should alter this 

Court’s prior opinion. Turner v. City of Chicago Bd. of Educ., 2018 WL 11473307, at *2 (N.D. 

Ill. Nov. 27, 2018) (“judicial economy is served by postponing discovery” when plaintiffs replead 

their claims and defendants assert the same deficiency). Indeed, “Plaintiffs already gave it a 

fulsome shot in the [original] 300-plus-paragraph Complaints.” Op. at 22. Given the likelihood 

of dismissal here, the substantial burden of party discovery on the Credit Bureaus would be 

disproportionate. Thus, this Court should stay discovery as to the Credit Bureaus. 

II. The Court’s Orders and Parties’ Submissions Appear to Contemplate Staying 

Discovery as to the Credit Bureaus While Considering an Amended Complaint 

This Court’s prior rulings, and the parties’ prior submissions, do not appear to contemplate 

discovery of the Credit Bureaus while a motion to dismiss amended complaints is pending. 

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First, when the Court established an October 23, 2023 deadline for FICO to answer the 

complaint and an October 30, 2023 deadline for Plaintiffs to amend their complaints, it appeared 

to recognize that doing so might lead to a situation in which discovery was proceeding as to FICO 

even as a motion to dismiss was being filed with respect to the claims against the Credit Bureaus. 

Op. at 22 n.5 (“This deadline [for Plaintiffs to amend their complaints] is intentionally set for after 

FICO’s answer deadline so that an answer is in place as discovery gets going with FICO.”). The 

Court’s specific mention of discovery “get[ting] going with FICO” appears to suggest that the 

Court did not contemplate that filing amended complaints would also automatically entitle the 

Plaintiffs to expand that discovery to include the Credit Bureaus. 

Second, the Court ordered the parties to submit a joint status report on discovery by October 

16, 2023, which the Court then used to set discovery deadlines on October 17, 2023. Dkts. 179, 

180. By that deadline, however, no live claims existed against any of the Credit Bureaus. The 

Credit Bureaus respectfully submit that if the Court contemplated that these discovery deadlines 

would apply to the Credit Bureaus, it would have scheduled this status report for a date after the 

Plaintiffs filed amended complaints on October 30, 2023, so that the Credit Bureaus could 

participate in the process of negotiating the dates applicable to such discovery. 

Third, if Plaintiffs knew that they intended to amend their complaints, and believed (as 

they now claim) that amending their complaints would make the Credit Bureaus subject to the 

discovery deadlines the Plaintiffs were negotiating with FICO, then surely the Plaintiffs would 

have expressed that position to the Credit Bureaus prior to submitting the October 16, 2023 Joint 

Status Report. Yet Plaintiffs did not request the Credit Bureaus’ views on any of the discovery 

deadlines included in the October 16, 2023 Joint Status Report, and did not ask the Credit Bureaus 

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to sign that report. Thus Plaintiffs, too, did not appear to contemplate that merely filing amended 

complaints would trigger an obligation for the Credit Bureaus to engage in discovery. 

CONCLUSION 

The Court should stay all discovery of the Credit Bureaus pending resolution of the 

forthcoming motion to dismiss Plaintiffs’ amended complaints. 

Dated: November 8, 2023 Respectfully submitted, 

/s/ Leslie V. Pope 

Leslie Pope (admitted pro hac vice) 

John Thorne, #6181458 

KELLOGG, HANSEN, TODD, 

 FIGEL AND FREDERICK P.L.L.C. 

1615 M Street NW 

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/ Michael P. Mayer 

Michael P. Mayer 

James Franklin Herbison 

WINSTON & STRAWN LLP 

35 West Wacker Drive 

Chicago, IL 60601-9703 

(312) 558-5600 

mmayer@winston.com 

jherbison@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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