UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

IN RE: FICO ANTITRUST LITIGATION 

RELATED CASES No. 1:20-CV-2114 

Judge Edmond E. Chang 

Magistrate Judge M. David Weisman 

This document relates to: 

ALL ACTIONS

PLAINTIFFS’ JOINT MEMORANDUM 

IN SUPPORT OF THEIR MOTION TO COMPEL 

DISCOVERY FROM FAIR ISAAC CORPORATION 

 

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PRELIMINARY STATEMENT1

Fair Isaac refuses to produce information that is squarely within the broad scope of 

discovery. First, it refuses to produce information regarding settlement agreements that resolved: 

(i) the Equifax Litigation (Fair Isaac Corp. v. Equifax Inc., No. 06-cv-04112 (D. Minn.)), which 

is alleged to be part of Fair Isaac’s decades-long anticompetitive scheme to put VantageScore, its 

only meaningful competitor, out of business, DPAC ¶¶ 9, 87-92; IPAC ¶¶ 13, 102-114; and (ii) the 

TransUnion Litigation (Fair Isaac Corp. v. Trans Union LLC, No. 17-cv-08318 (N.D. Ill.)), which 

was resolved via an agreement through which Plaintiffs allege “Fair Isaac essentially bought 

TransUnion off,” DPAC ¶ 99; IPAC ¶ 113.2 Second, Fair Isaac refuses to produce sealed filings 

from the TransUnion Litigation, which also involved monopolization claims against Fair Isaac. 

Finally, it refuses to identify personnel responsible for Fair Isaac’s lobbying efforts, including its 

disparagement campaign against VantageScore, and to produce any documents related to that 

subject. DPAC ¶¶ 146-155; IPAC ¶¶163-170. 

The requested material is no doubt relevant: Plaintiffs’ Complaints contain direct 

allegations implicating each category of discovery. And Fair Isaac has not claimed any undue 

burden associated with producing the requested material. Nor can it, since the material comprises 

1

 Plaintiffs state pursuant to Local Rule 37.2 and this Court’s case procedures that they met and 

conferred with counsel for Fair Isaac via face-to-face videocalls in good faith in an attempt to 

resolve this dispute on January 5, 2024 and on March 11, 2024. Plaintiffs and Fair Isaac also 

exchanged correspondence in an effort to resolve the dispute on December 20, 2023; January 4, 

2024; January 19, 2024; January 31, 2024; February 15, 2024; February 23, 2024; March 14, 2024; 

March 27, 2024; and April 11, 2024 (email). Plaintiffs also sent email correspondence to counsel 

for Fair Isaac on April 19, 2024 to confirm that Fair Isaac objects to and opposes this motion. 

Counsel for Fair Isaac confirmed Fair Isaac objects to this motion on April 20, 2024. The parties 

intend to submit a stipulation with a proposed briefing schedule. 

2

 “DPAC” refers to Direct Purchaser Plaintiffs’ First Amended Consolidated Complaint, 

Dkt.184; “IPAC” refers to Indirect Purchaser Plaintiffs’ Second Amended Consolidated 

Complaint, Dkt. 185. 

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(i) filings in Fair Isaac’s possession, (ii) documents Fair Isaac produced to the U.S. Department of 

Justice, (iii) the identities of a limited set of Fair Isaac’s own key personnel, and (iv) documents in 

Fair Isaac’s possession concerning its lobbying efforts. 

Plaintiffs thus respectfully request that the Court compel Fair Isaac to produce the 

requested information. 

ARGUMENT 

Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged 

matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” 

Fed. R. Civ. P. 26(b)(1). The scope of discovery under Rule 26 is “very broad.” Rubin v. Islamic 

Republic of Iran, 349 F. Supp. 2d 1108, 1111 (N.D. Ill. 2004); see also HTG Cap. Partners, LLC 

v. Doe(s), No. 15-CV-02129, 2015 WL 5611333, at *3 (N.D. Ill. Sept. 22, 2015) (Chang, J.) 

(similar). Discovery is permitted into “ ‘any matter that bears on, or that reasonably could lead to 

other matter that could bear on, any issue that is or may be in the case.’ ” Illinois ex rel. Raoul v. 

Monsanto Co., 345 F.R.D. 459, 459 (N.D. Ill. Oct. 24, 2023) (emphasis added) (citation omitted). 

“Information within this scope of discovery need not be admissible in evidence to be 

discoverable.” Fed. R. Civ. P. 26(b)(1). 

“The party opposing discovery has the burden of showing the discovery is overly broad, 

unduly burdensome, or not relevant.” HTG, 2015 WL 5611333, at *3. Fair Isaac cannot meet its 

burden. Its relevance objections lack merit, and it has not articulated any reason why producing 

the requested material would be unduly burdensome. This Court should grant the Motion to 

Compel. 

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I. FAIR ISAAC SHOULD BE COMPELLED TO PRODUCE THE EQUIFAX AND TRANSUNION 

SETTLEMENT AGREEMENTS AND RELATED INFORMATION 

A. The Settlements and Related Documents Are Critical to Plaintiffs’ Case 

Plaintiffs propounded the following discovery requests regarding settlement agreements: 

 Interrogatory No. 2. Identify all agreements, including settlement 

agreements; contracts; and amendments to agreements or contracts with 

Experian, Equifax, and TransUnion. 

 Interrogatory No. 3. Identify all persons who conceived, drafted, offered, 

negotiated, approved, or executed any agreement, contract, or amendment 

to agreements or contracts described in Interrogatory No. 2. 

 Interrogatory No. 6(b). For each topic listed below, identify the five 

current or former Fair Isaac employees who are most knowledgeable about 

such topic during the relevant period: . . . b) Lobbying efforts against 

VantageScore, including but not limited to, in connection with allowing 

VantageScore to be used by Fannie Mae or Freddie Mac. 

 RFP No. 3. All Agreements or Proposed Agreements to settle or 

compromise the TransUnion Litigation.

 RFP No. 4. All Agreements or Proposed Agreements to settle or 

compromise the VantageScore Solutions Litigation [i.e., the Equifax 

Litigation]. 

 RFP No. 6. All Documents relating to the decision by You to initiate, 

maintain, and/or dismiss the TransUnion Litigation or VantageScore 

Solutions Litigation [i.e., the Equifax Litigation], including the bases, merits, 

or purposes of such litigation, excluding Documents protected by attorneyclient privilege or attorney work product doctrine.

 RFP No. 7. All Documents relating to the business or economic effect of 

any anticipated, proposed, or actual outcome of the TransUnion Litigation 

or VantageScore Solutions Litigation [i.e., the Equifax Litigation]. 

 RFP No. 8. Documents relating to any potential or actual resolution, 

dismissal, and/or settlement of the TransUnion Litigation or VantageScore 

Solutions Litigation [i.e., the Equifax Litigation], as well as any decision to 

settle or not settle such actions.3

3

 The discovery requests are excerpted here and reproduced in full in Exhibits 1 and 2. Citations 

to Exhibits (“Ex.”) refer to the exhibits to the Declaration of Chad E. Bell filed with this motion. 

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These discovery requests are plainly relevant and proportional to the needs of the case. 

Plaintiffs have alleged that Fair Isaac’s lawsuit against the Credit Bureaus and VantageScore (the 

Equifax Litigation) was a critical part of Fair Isaac’s decades-long campaign of anticompetitive 

conduct designed to drive its only real competitor, VantageScore, out of business. DPAC ¶¶ 8-10, 

86-100; IPAC ¶¶ 12-15, 101-114. Similarly, Plaintiffs have alleged that, through its settlement of 

the TransUnion Litigation, “Fair Isaac essentially bought TransUnion off” and “cut Plaintiffs off 

from obtaining further information about the anticompetitive agreements between Fair Isaac and 

the Credit Bureaus,” and that, shortly after settling, TransUnion and Fair Isaac entered into a “longterm (presumably lucrative)” distribution contract. DPAC ¶ 99; IPAC ¶ 113. Fair Isaac thus cannot 

meet its burden to show that the requested material – which the Complaints put at issue directly – 

is irrelevant or disproportional to the needs of the case. See, e.g., Doe v. Loyola Univ. Chi., No. 

18-CV-7335, 2020 WL 406771, at *2 (N.D. Ill. Jan. 24, 2020) (granting motion to compel 

discovery “directly relevant to the allegations contained in [the plaintiff ’s] complaint”); Merix 

Pharm. Corp. v. Glaxosmithkline Consumer Healthcare, L.P., No. 05-CV-1403, 2006 WL 

2931260, at *3 (N.D. Ill. Oct. 11, 2006) (similar). 

That Plaintiffs’ Complaints directly implicate the settlements and non-privileged 

documents reflecting their negotiation should end this inquiry. But, at a minimum, Plaintiffs’ 

discovery requests are relevant for the additional, independent reason that they are reasonably 

calculated to uncover evidence showing that Fair Isaac attempted to induce the Credit Bureaus to 

forgo VantageScore in favor of Fair Isaac and why the Bureaus went along (if they did). Either 

way, the material is discoverable. Eggleston v. Chi. Journeymen Plumbers’ Loc. Union No. 130, 

U. A., 657 F.2d 890, 903 (7th Cir. 1981). 

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The Equifax Litigation. This Court has held that “Plaintiffs have plausibly alleged that 

FICO’s Equifax Litigation was itself an anticompetitive act.” Dkt. 173 at 13. In 2008, Experian 

settled that anticompetitive litigation with Fair Isaac “and entered into a lucrative partnership with 

Fair Isaac following the settlement.” DPAC ¶ 9; IPAC ¶ 13. Similarly, in 2010, after a jury ruled 

against Fair Isaac, TransUnion settled with Fair Isaac. See DPAC ¶¶ 9, 90, 91; IPAC ¶ 13, 105, 

106; Fair Isaac Corp. v. Equifax, Inc., No. 06-CV-04112, Dkt. 1073 (D. Minn. May 17, 2010). 

Fair Isaac produced both settlement agreements to the Department of Justice in connection with 

its antitrust investigation into Fair Isaac. Dkt. 258-1 at 13 n.2. But Fair Isaac refuses to produce 

them to Plaintiffs. 

Plaintiffs are entitled to documents that reflect why Experian settled instead of continuing 

to fight alongside Equifax and TransUnion and the terms to which Experian and Fair Isaac agreed 

in exchange for Experian forfeiting its litigation rights. Plaintiffs are likewise entitled to documents 

that reflect why TransUnion settled, as opposed to enforcing its judgment (as Equifax presumably 

did), and what, if any, concessions TransUnion received in that settlement agreement, or in 

exchange for settling if memorialized elsewhere. Plaintiffs also have a right to documents that 

reflect why Fair Isaac settled as opposed to fighting off Experian and, later, TransUnion – 

documents that may well shed light on the anticompetitive nature of the litigation and Fair Isaac’s 

claims’ lack of merit. That evidence may also rebut Fair Isaac’s denial of the allegations that the 

Equifax litigation inhibited the growth of VantageScore. See Dkt. 182 ¶ 95 (Answer to DPAC); 

Dkt. 183 ¶ 110 (Answer to IPAC). And it may rebut Fair Isaac’s and the Credit Bureaus’ arguments 

that the Credit Bureaus would not have agreed with Fair Isaac to handicap their joint venture, 

VantageScore. See, e.g., Dkt. 220 at 3-4, 8-9; Dkt. 222 at 16-17. Discovery of those settlements 

and communications surrounding them, as well as the identities of the Fair Isaac employees most 

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knowledgeable on the subject, is critical to the effective prosecution of Plaintiffs’ claims that the 

Equifax litigation impaired VantageScore and that Fair Isaac attempted to, and perhaps did, 

conscript the Credit Bureaus into agreeing to impair VantageScore. 

The TransUnion Litigation. TransUnion’s antitrust counterclaims against Fair Isaac 

challenged the same contractual provisions at issue here. TransUnion, like Plaintiffs, alleged that 

the “No Equivalent Products” provision effectively prohibits TransUnion from distributing 

VantageScore; that the “Dynamic Royalty Provision” effectively forecloses the Credit Bureaus 

from, and punishes them for, selling VantageScore for use in the B2C market if they also sell FICO 

scores for use in the B2B market; and that the “Level Playing Field” language disincentivizes the 

Credit Bureaus from negotiating with Fair Isaac for lower royalties. Compare TransUnion 

Counterclaims ¶¶ 46, 55, 60, Fair Isaac Corp. v. Trans Union LLC, No. 17-cv-8318, Dkt. 38 (N.D. 

Ill. Feb. 12, 2018), with DPAC ¶¶ 108-110, IPAC ¶¶ 120-123. 

Yet TransUnion ultimately dropped its challenges to those provisions when it settled with 

Fair Isaac on undisclosed terms before even briefing summary judgment. DPAC ¶ 99; IPAC ¶ 113. 

As Plaintiffs allege: “Fair Isaac essentially bought TransUnion off.” DPAC ¶ 99; IPAC ¶ 113. 

Moreover, “[o]ne effect of this settlement was to cut Plaintiffs off from obtaining further 

information about the anticompetitive agreements between Fair Isaac and the Credit Bureaus.” 

DPAC ¶ 99; IPAC ¶ 113. And, after entering into the settlement, “TransUnion announced that it 

had entered into a long-term (presumably lucrative) contract to distribute FICO Scores to lenders 

and consumers in Canada.” DPAC ¶ 99; IPAC ¶ 113. In light of those allegations, Plaintiffs’ 

requests for the settlement agreement between TransUnion and Fair Isaac, the surrounding nonprivileged communications, and the identities of the Fair Isaac employees most knowledgeable 

about the agreement, are reasonably calculated to uncover evidence of agreement between Fair 

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Isaac and TransUnion to maintain contractual provisions that exclude VantageScore. Such material 

is also relevant to Fair Isaac’s denial of the allegations that it bought off TransUnion through the 

settlement. See Dkt. 182 ¶ 99 (Answer to DPAC); Dkt. 183 ¶ 114 (Answer to IPAC).4 

B. Fair Isaac Fails To Show that Plaintiffs’ Requests Are Improper 

Fair Isaac claims the information Plaintiffs seek is not discoverable because the relevant 

requests concern settlement agreements. But that does not alter the analysis. Precedent amply 

supports ordering Fair Isaac to produce the requested information. 

Settlements and documents exchanged by parties relating to settlements, like all other 

nonprivileged material, are discoverable – especially where, as here, the settlements themselves 

are alleged to have had anticompetitive effects. See FTC v. Actavis, Inc., 570 U.S. 136, 141 (2013) 

(settlements themselves may “unreasonably diminish competition in violation of the antitrust 

laws”). Courts in this Circuit, including this Court, routinely order the production of settlements 

and related documents when a settlement itself is at issue in a case. See, e.g., In re Gen. Motors 

Corp. Engine Interchange Litig., 594 F.2d 1106, 1124 & n.20 (7th Cir. 1979); In re MSTG, Inc., 

675 F.3d 1337, 1348 (Fed. Cir. 2012) (affirming this Court); see also Noble Roman’s Inc. v. 

B & MP, LLC, No. 15-CV-9446, 2017 WL 1163866, at *8-9 (N.D. Ill. Mar. 29, 2017); Pactiv 

Corp. v. Multisorb Techs., Inc., No. 10-CV-461, 2012 WL 1831517, at *5 (N.D. Ill. May 18, 2012); 

Pfizer Inc. v. Apotex Inc., 731 F. Supp. 2d 754, 764 (N.D. Ill. 2010); Channelmark Corp. v. 

Destination Prods. Int’l, Inc., No. 99-CV-214, 2000 WL 968818, at *4-5 (N.D. Ill. July 7, 2000); 

4

 Plaintiffs agree that any documents properly covered by attorney-client privilege or the workproduct doctrine are shielded from discovery and may be logged rather than produced, consistent 

with the discovery protocol. Dkt. 207 at 22-24. But privilege log entries have value in discovery. 

For example, they may allow Plaintiffs to identify potential witnesses with non-privileged 

knowledge of the settlement agreements and the motivations behind them, or to establish dates 

during which Fair Isaac and/or the Bureaus had obligations to preserve discoverable materials. 

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Arcelormittal Ind. Harbor LLC v. Amex Nooter, LLC, No. 15-CV-195, 2016 WL 614144, at *6-7 

(N.D. Ind. Feb. 16, 2016); Thermal Design, Inc. v. Guardian Bldg. Prods., Inc., 270 F.R.D. 437, 

438-39 (E.D. Wis. 2010). This Court should do the same here.

Fair Isaac’s objection – that settlement agreements and related communications are 

categorically “outside the scope of discovery absent special circumstances” – lacks merit (and does 

not even apply to the request for the identities of knowledgeable Fair Isaac personnel in 

Interrogatory 6(b)). Ex. 7, FICO Jan. 4, 2024 Correspondence at 2-3. The Seventh Circuit has 

previously rejected such an absolute position, holding that even “settlement negotiations” are not 

“protected from examination by some form of privilege.” Gen. Motors Corp. Engine Interchange 

Litig., 594 F.2d at 1124 & n.20; see id. at 1124 (“refusal to permit discovery or examination of 

[settlement] negotiations constituted an abuse of discretion”). Other courts agree. See, e.g., MSTG 

Inc., 675 F.3d at 1348 (affirming decision “order[ing] production of [settlement] negotiation 

documents”); Arcelormittal, 2016 WL 614144, at *6-7 (ordering production of settlement 

negotiation documents). Executed settlement agreements are themselves discoverable too. See, 

e.g., Pfizer Inc., 731 F. Supp. 2d at 759 (relevant “settlement documents . . . are precisely the kind 

of documents that discovery permits [a party] to demand and receive”). And even if the settlement 

agreements are not admissible for a specific purpose in the litigation, they are still discoverable. 

See, e.g., Arcelormittal, 2016 WL 614144, at *6 (granting motion to compel documents concerning 

“settlement negotiations” because even if the documents “themselves would not be admissible at 

trial,” “relevant evidence need not be admissible to be discoverable” and “information within the 

settlement negotiations [would] likely allow [the plaintiff] to conduct additional relevant discovery 

on those topics”). 

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Fair Isaac contends that “the most instructive authority” supporting its refusal to produce 

the requested information is In re Dealer Management Systems Antitrust Litigation, No. 18-CV864, 2019 WL 3884036 (N.D. Ill. Aug. 16, 2019). See Ex. 11, FICO’s Feb. 23, 2024 

Correspondence at 2. That is telling. Fair Isaac’s leading decision expressly acknowledges that 

there is “no settlement privilege.” Dealer Mgmt. Sys., 2019 WL 3884036, at *2 (emphasis added). 

It also recognizes that “[w]hether a confidential settlement agreement should be disclosed to other 

parties in a multi-party case is governed by the familiar Rule 26(b)(1) discovery standards,” just 

like all other discovery. Id. at *1. There, the plaintiffs had failed to “articulate[] a specific basis as 

to why the settlement terms [we]re relevant to a claim or defense in the continuing litigation.” Id.

at *2. That is not true here – to the contrary, the Plaintiffs have alleged that the settlements are part

of Fair Isaac’s course of anticompetitive conduct. See pp. 4-7, supra. 

Fair Isaac also argues that courts “ ‘should honor confidentialities that are bargained-for 

elements of settlement agreements.’” Ex. 7, FICO’s Jan. 4, 2024 Correspondence at 2-3. But Fair 

Isaac does not explain how Plaintiffs could be bound by a bargain they did not strike. Nor does 

Fair Isaac explain why the applicable protective order is inadequate to address its confidentiality 

concerns. “Most cases find that a settlement agreement is discoverable despite a confidential 

designation, especially when there is a protective order in place.” Thermal Design, 270 F.R.D. at 

438; see Channelmark, 2000 WL 968818, at *5 (similar). 

There is no justification for denying Plaintiffs this discovery. Whatever interests there 

might be in keeping settlements confidential that are not already adequately addressed by a 

protective order, “the public has an equally strong interest in not allowing parties to conceal 

information that is of legitimate public concern.” Channelmark, 2000 WL 968818, at *5. 

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II. FAIR ISAAC SHOULD BE COMPELLED TO PRODUCE RELEVANT SEALED PLEADINGS 

FROM THE TRANSUNION LITIGATION

Plaintiffs’ Document Request No. 2 asked Fair Isaac for “All Documents produced, 

provided, filed, or served in connection with the TransUnion Litigation.” Ex. 2, Plaintiffs’ 

Document Requests at 6. Fair Isaac asserted boilerplate objections and responded that it would 

“produce non-privileged documents in its possession, custody, or control, if any, that it produced 

in the TransUnion Litigation that are relevant to TransUnion’s counterclaims for alleged 

monopolization.” Ex. 4, Fair Isaac’s Objections to RFPs at 7. Fair Isaac has agreed, however, to 

produce only a small handful of sealed filings from that Litigation, despite the relevance of other

sealed filings to the monopolization claims pursued in that case as well as this one. Ex. 6, Plaintiffs’ 

Dec. 20, 2023 Letter at 4; Ex. 9, Plaintiffs’ Jan. 31, 2024 Letter at 4; Ex. 12, Plaintiffs’ Mar. 14, 

2024 Letter at 2 (memorializing Plaintiffs’ proposal to narrow production to Dkt. Nos. 1, 35, 53, 

71, 72, 113, 141, 148, 159, 162, and 170 and Fair Isaac’s agreement to produce only Dkt. Nos. 1, 

35, 53, 71, and 72); Ex. 14, Plaintiffs’ Apr. 11, 2024 Email (confirming impasse). 

The requested documents are undoubtedly relevant. The TransUnion Litigation is directly 

mentioned multiple times in Plaintiffs’ Complaints as relevant to Fair Isaac’s pattern of 

anticompetitive practices (e.g., DPAC ¶¶ 96-100). Evidence concerning core factual allegations in 

Plaintiffs’ Complaints certainly falls within Rule 26(b)(1)’s provision that “allows the parties to 

engage in broad, liberal discovery” of “any nonprivileged matter that is relevant to any party’s 

claim or defense.” Coleman v. Illinois, No. 19-CV-3789, 2020 WL 5752149, at *3 (N.D. Ill. Sept. 

25, 2020); see, e.g., Doe, 2020 WL 406771, at *2 (evidence regarding Plaintiffs’ allegations is 

discoverable); Merix Pharm. Corp., 2006 WL 2931260, at *3 (same). 

Moreover, “[i]f relevance is in doubt, courts should err on the side of permissive 

discovery.” Wiginlon v. CB Richard Ellis, Inc., 229 F.R.D. 568, 577 (N.D. Ill. 2004). That is 

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especially the case where the discovery in question comprises filed pleadings that may have 

additional potential judicial estoppel value. See New Hampshire v. Maine, 532 U.S. 742, 749 

(2001) (“[W]here a party assumes a certain position in a legal proceeding, and succeeds in 

maintaining that position, [the party] may not thereafter, simply because [its] interests have 

changed, assume a contrary position.” (first alteration in original)); Wells v. Coker, 707 F.3d 756, 

760 (7th Cir. 2013) (“The doctrine of judicial estoppel prevents a party from prevailing on an 

argument in an earlier matter and then relying on a contradictory argument to prevail in a 

subsequent matter.”). As Plaintiffs explained to Fair Isaac when identifying the precise sealed 

pleadings they seek, “these sealed materials contain representations that either Fair Isaac or Trans 

Union made in pleadings to the court, and thus have discovery value as such” and the redacted 

information “appears to, in many cases, quote or discuss the contents of discovery materials 

produced in the Trans Union Litigation, including but not limited to agreements to which Trans 

Union and/or Fair Isaac were parties, verified interrogatory responses by both Fair Isaac and Trans 

Union, and testimony made by Trans Union and/or Fair Isaac employees in sworn declarations.” 

Ex. 12, Plaintiffs’ Mar. 14, 2024 Letter at 1. 

Rather than turn over that information, Fair Isaac proposes to limit its production to a few 

documents of its choosing. As Plaintiffs told Fair Isaac, that position is “nonsensical, and has only 

caused further, unnecessary delay.” Ex. 10, Plaintiffs’ Feb. 15, 2024 Letter at 4. Fair Isaac has 

identified no burden associated with producing this relevant material. Id. Nor could it: These are 

non-voluminous filings to which Fair Isaac and/or its agents have ready access. Fair Isaac would 

face no burden in producing the information, much less an undue burden. 

The Seventh Circuit has “uniformly rejected” invitations to shield from disclosure 

materials that “are filed and form the basis of judicial action,” stating that, with the exception of 

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genuine trade secrets, certain personal identifying information, and grand jury materials, they 

“must eventually be released.” Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) 

(collecting cases); In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (“The 

public’s right of access to judicial records has been characterized as ‘fundamental to a democratic 

state.’ ” (quoting United States v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976)) (cleaned up)). 

If the public at large has a presumptive right to sealed pleadings, surely the Plaintiffs in this matter 

– who are subject to a protective order negotiated with Fair Isaac and so-ordered by this Court – 

have the right to receive the unredacted filings they seek within the formal discovery process. 

Plaintiffs thus respectfully request that Fair Isaac be compelled to produce Dkt. Nos. 113, 

141, 148, 159, 162, and 170 from the TransUnion Litigation, in addition to Dkt. Nos. 1, 35, 53, 

71, and 72, which Fair Isaac has already agreed to produce. 

III. FAIR ISAAC SHOULD BE COMPELLED TO RESPOND TO REQUESTS FOR INFORMATION 

CONCERNING ITS LOBBYING AGAINST VANTAGESCORE

Plaintiffs’ Interrogatory 6(b) asked Fair Isaac to “identify the five current or former Fair 

Isaac employees who are most knowledgeable about . . . [l]obbying efforts against VantageScore” 

during the relevant period. Ex. 1, Plaintiffs’ Interrogatories at 8. Similarly, Plaintiffs’ Document 

Request No. 32 asked Fair Isaac to produce “[a]ll Documents relating to submissions, 

presentations, or other communications with legislators and legislative staff, including members 

and staff of legislative committees; government agencies and staff; executive branch officials and 

staff; and government-sponsored enterprises and their representatives regarding VantageScores or 

any Competitor Credit Score Products.” Ex. 2, Plaintiffs’ Document Requests at 11. Fair Isaac 

objected to the Interrogatory and Document Request as irrelevant, claiming that its “ ‘lobbying 

efforts’ have no bearing on any claims or defenses at issue in this action,” relying on the “NoerrCase: 1:20-cv-02114 Document #: 282 Filed: 04/24/24 Page 13 of 21 PageID #:6471
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Pennington doctrine.” Ex. 3, Fair Isaac’s Interrogatory Objections at 22-23; Ex. 4, Fair Isaac’s 

Objections to RFPs at 35-36. 

“Relevance, particularly in the discovery phase, is a low bar to meet. According to the 

Federal Rules, evidence is relevant if it ‘has any tendency’ to make a fact of consequence ‘more 

or less probable than it would be without the evidence.’ ” LKQ Corp. v. Kia Motors Am., Inc., No. 

21-CV-3166, 2023 WL 3455315, at *2 (N.D. Ill. May 15, 2023) (citing Fed. R. Evid. 401(a)-(b)). 

The relevance of information sought by Interrogatory 6(b) and Document Request No. 32 – which 

concern Fair Isaac’s lobbying efforts against its only real competitor, VantageScore – cannot 

seriously be contested. See In re Brand Name Prescription Drugs Antitrust Litig., No. 94-0897, 

1995 WL 509666, at *1 (N.D. Ill. Aug. 18, 1995) (“[C]ourts have recognized that evidence of 

protected lobbying activity may be used to show the purpose and character of other activities.” 

(citing United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670-71 n.3 (1965))). 

Fair Isaac’s invocation of Noerr-Pennington is misplaced and does not change the 

relevance analysis. The doctrine does not apply to Interrogatory 6(b), which asks for the identities 

of “the five current or former Fair Isaac employees who are most knowledgeable about . . . 

[l]obbying efforts against VantageScore.” Ex. 1, Plaintiffs’ Interrogatories at 8. There is no 

reasonable basis for Fair Isaac to argue that the names of relevant potential witnesses alone could 

ever be used to assert liability based on protected lobbying efforts in violation of NoerrPennington. 

Nor does Noerr-Penington shield the documents Plaintiffs seek from discovery. “The mere 

fact that the documents sought . . . relate to or arise from lobbying activity is insufficient to bar 

their discovery.” Brand Name Prescription Drugs Antitrust Litig., 1995 WL 509666, at *2. 

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Pennington, since the “Noerr-Pennington doctrine does not address the discoverability of 

Defendants’ lobbying efforts.” Stallings v. Union Pac. R.R. Co., No. 01-CV-1056, 2003 WL 

21317297, at *7 (N.D. Ill. June 6, 2003) (emphasis added), report and recommendation adopted,

No. 01-CV-1056, 2003 WL 21688235 (N.D. Ill. July 17, 2003). 

Stallings is particularly instructive. There, the Court overruled a Noerr-Pennington 

objection nearly identical to Fair Isaac’s, where the plaintiff did not “seek to impose liability based 

on Defendants’ lobbying efforts,” but instead sought discovery of lobbying efforts for the “limited 

purpose” of “establish[ing] that Defendants knew they had a common law duty [to provide 

adequate warning devices] which they lobbied to change.” Stallings, 2003 WL 21317297, at *7. 

Other case law is similar. See, e.g., N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 

666 F.2d 50, 53 (4th Cir. 1981) (permitting discovery of material relating to legislative lobbying 

efforts because “Noerr-Pennington is by definition an exemption from anti-trust liability, and not 

a bar to discovery of evidence”); Associated Container Transp. (Aus.) Ltd. v. United States, 705 

F.2d 53, 60 (2d Cir. 1983) (holding that Noerr-Pennington is not a bar to a civil investigative 

demand).5

This case is no different, and the same result should follow. As in Stallings, Plaintiffs seek 

discovery into Fair Isaac’s lobbying efforts not because those lobbying efforts themselves are the 

basis of antitrust liability, but because statements made by Fair Isaac during the course of its 

lobbying efforts against VantageScore may have independent evidentiary value. For example, Fair 

5 See also Houston Indus. v. Kaufman, 95-CV-5237, 1996 WL 580418, at *3-4 (S.D. Tex. Mar. 7, 

1996) (permitting discovery into lobbying efforts despite Noerr-Pennington); In re Motor Fuel 

Temperature Sales Practices Litig., 707 F. Supp. 2d 1145, 1167 (D. Kan. 2010) (“Courts have 

generally held that efforts to petition the government are not protected from discovery.”); 

InfoSpan, Inc. v. Emirates NBD Bank PJSC, No. 11-CV-1062, 2016 WL 8849699, at *6 (C.D. Cal. 

June 8, 2016) (“No liability could be predicated on the initiation, but the evidence is still admissible 

to show Emirates’ intent. . . . Analysis of the Noerr-Pennington doctrine yields the same result.”). 

Case: 1:20-cv-02114 Document #: 282 Filed: 04/24/24 Page 15 of 21 PageID #:6473
15 

Isaac’s past statements in lobbying efforts could undermine or contradict any attempted defense 

by Fair Isaac that VantageScore’s failure to gain wide adoption was due to VantageScore offering 

an inferior product, instead of Fair Isaac’s attempts to crush it through anticompetitive conduct. 

Indeed, all statements Fair Isaac made in its lobbying efforts serve as evidence of positions Fair 

Isaac has previously taken, which could be used to refute Fair Isaac’s contrary positions on 

questions relevant to this litigation, or to estop Fair Isaac from attempting to take such contrary 

positions in the first place. Moreover, Plaintiffs anticipate that market definition will be heavily 

litigated. Discovery into statements made by Fair Isaac, including during its lobbying activities, in 

which it characterized or discussed the relevant product market are therefore highly probative and 

relevant, even if the underlying lobbying efforts themselves cannot form an independent basis for 

antitrust liability under Noerr-Pennington. 

To the extent Noerr-Pennington applies, determinations as to the admissibility of evidence 

can be made at trial or on summary judgment; the doctrine does not impact the discoverability of 

evidence concerning Fair Isaac’s efforts to lobby against VantageScore. The Court should compel 

Fair Isaac to respond in full to Plaintiffs’ Interrogatory 6(b) and Document Request No. 32. 

CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ 

Motion to Compel Discovery from Defendant Fair Isaac Corporation and order Fair Isaac to 

produce all non-privileged information sought by Plaintiffs’ Interrogatory Nos. 2, 3, and 6(b) and 

Document Request Nos. 2, 3, 4, 6, 7, 8, and 32, as clarified in this Motion. 

 

Case: 1:20-cv-02114 Document #: 282 Filed: 04/24/24 Page 16 of 21 PageID #:6474
16 

Dated: April 24, 2024 

 /s/ Steven F. Molo 

Steven F. Molo 

Lauren F. Dayton 

MOLOLAMKEN LLP 

300 N. LaSalle Street, Suite 5350 

Chicago, IL 60654 

Telephone: 312-450-6700 

smolo@mololamken.com 

ldayton@mololamken.com 

Lauren M. Weinstein 

MOLOLAMKEN LLP 

600 New Hampshire Avenue, N.W., 

 Suite 500 

Washington, DC 20037 

Telephone: 202-556-2000 

lweinstein@mololamken.com 

Liaison Counsel for Direct Purchaser 

Plaintiffs and the Proposed Direct 

Purchaser Class 

Joseph P. Guglielmo 

Michelle E. Conston (pro hac vice) 

Anna Hunanyan (pro hac vice) 

SCOTT+SCOTT 

 ATTORNEYS AT LAW LLP 

The Helmsley Building 

230 Park Avenue, 17th Floor 

New York, NY 10169 

Telephone: 212-223-6444 

jguglielmo@scott-scott.com 

mconston@scott-scott.com 

ahunanyan@scott-scott.com 

Patrick McGahan (pro hac vice) 

SCOTT+SCOTT 

 ATTORNEYS AT LAW LLP 

156 S. Main St. 

Colchester, CT 06415 

Telephone: 860-531-2606 

pmcgahan@scott-scott.com 

Respectfully submitted, 

 /s/ Chad E. Bell 

Christopher M. Burke 

Walter Noss 

Yifan (Kate) Lv 

KOREIN TILLERY PC 

707 Broadway, Suite 1410 

San Diego, CA 92101 

Telephone: 619-625-5620 

cburke@koreintillery.com 

wnoss@koreintillery.com 

klv@koreintillery.com 

George A. Zelcs 

Randall P. Ewing, Jr. 

Chad E. Bell 

Labeat Rrahmani 

KOREIN TILLERY, LLC 

205 North Michigan Avenue, Suite 1950 

Chicago, IL 60601 

Telephone: 312-641-9750 

gzelcs@koreintillery.com 

rewing@koreintillery.com 

cbell@koreintillery.com 

lrrahmani@koreintillery.com 

 /s/ Carmen Medici 

Carmen Medici (pro hac vice) 

Gary Foster (pro hac vice) 

SCOTT+SCOTT 

 ATTORNEYS AT LAW LLP 

600 West Broadway, Suite 3300 

San Diego, CA 92101 

Telephone: 619-798-5319 

cmedici@scott-scott.com 

gfoster@scott-scott.com 

 

Interim Lead Class Counsel for Direct 

Purchaser Plaintiffs and the Proposed Direct 

Purchaser Class 

Case: 1:20-cv-02114 Document #: 282 Filed: 04/24/24 Page 17 of 21 PageID #:6475
17 

Jennifer W. Sprengel 

CAFFERTY CLOBES MERIWETHER & 

 SPRENGEL LLP 

150 S. Wacker, Suite 3000 

Chicago, IL 60606 

Telephone: 312-782-4880 

jsprengel@caffertyclobes.com 

Barbara J. Hart (pro hac vice) 

GRANT & EISENHOFER 

485 Lexington Ave., 29th Floor 

New York, NY 10017 

Telephone: 646-722-8526 

bhart@gelaw.com 

Brian M. Hogan 

DICELLO LEVITT LLP 

Ten North Dearborn Street, Sixth Floor 

Chicago, IL 60602 

Telephone: 312-214-7900 

bhogan@dicellolevitt.com 

Gregory S. Asciolla (pro hac vice) 

Karin E. Garvey (pro hac vice) 

John M. Shaw (pro hac vice) 

DICELLO LEVITT LLP 

485 Lexington Avenue, Suite 1001 

New York, NY 10017 

Telephone: 646-933-1000 

gasciolla@dicellolevitt.com 

kgarvey@dicellolevitt.com 

jshaw@dicellolevitt.com 

Paul E. Slater 

Joseph M. Vanek 

Michael G. Dickler 

Matthew T. Slater 

SPERLING & SLATER, P.C. 

55 W. Monroe Street, Suite 3200 

Chicago, IL 60603 

Telephone: 312-641-3200 

pes@sperling-law.com 

jvanek@sperling-law.com 

mdickler@sperling-law.com 

mslater@sperling-law.com 

Linda P. Nussbaum 

Susan Schwaiger 

NUSSBAUM LAW GROUP, P.C. 

1133 Avenue of the Americas, 31st Floor 

New York, NY 10036 

Telephone: 917-438-9102 

lnussbaum@nussbaumpc.com 

sschwaiger@nussbaumpc.com 

Michael L. Roberts 

Karen Sharp Halbert 

ROBERTS LAW FIRM, P.A. 

6834 Cantrell Road, Suite #1131 

Little Rock, AR 72207 

Telephone: 501-821-5575 

mikeroberts@robertslawfirm.us 

karenhalbert@robertslawfirm.us 

Gary F. Lynch 

LYNCH CARPENTER LLP 

1133 Penn Avenue, 5th Floor 

Pittsburgh, PA 15222 

Telephone: 412-322-9243 

gary@lcllp.com 

Katrina Carroll 

LYNCH CARPENTER LLP 

111 W. Washington Street, Suite 1240 

Chicago, IL 60602 

Telephone: 312-750-1265 

katrina@lcllp.com 

 

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18 

Michael P. Lehmann (SBN 77152) 

Christopher Lebsock (SBN 184546) 

HAUSFELD LLP 

600 Montgomery Street, Suite 3200 

San Francisco, CA 94111 

Telephone: 415-633-1908 

mlehmann@hausfeld.com 

clebsock@hausfeld.com 

Hilary K. Scherrer 

Paul Gallagher 

HAUSFELD LLP 

1700 K Street, N.W., Suite 650 

Washington, DC 20006 

Telephone: 202-540-7200 

hscherrer@hausfeld.com 

pgallagher@hausfeld.com 

Scott A. Martin 

Irving Scher 

Jeanette Bayoumi 

HAUSFELD LLP 

33 Whitehall Street, 14th Floor 

New York, NY 10004 

Telephone: 646-357-1100 

smartin@hausfeld.com 

ischer@hausfeld.com 

jbayoumi@hausfeld.com 

Daniel E. Gustafson (pro hac vice) 

Michelle J. Looby (pro hac vice) 

Daniel J. Nordin (pro hac vice) 

Dennis Stewart (pro hac vice) 

Anthony J. Stauber 

GUSTAFSON GLUEK PLLC 

600 West Broadway, Suite 3300 

San Diego, CA 92101 

Telephone: 612-333-8844 

dgustafson@gustafsongluek.com 

mlooby@gustafsongluek.com 

dnordin@gustafsongluek.com 

tstauber@gustafsongluek.com 

dstewart@gustafsongluek.com 

Kenneth A. Wexler 

Melinda J. Morales 

Michelle Perkovic 

WEXLER WALLACE LLP 

55 W. Monroe Street, Suite 3300 

Chicago, IL 60603 

Telephone: 312-346-2222 

kaw@wexlerwallace.com 

mjm@wexlerwallace.com 

mp@wexlerwallace.com 

Counsel for Direct Purchaser Plaintiffs 

 and the Proposed Direct Purchaser Class 

 

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19 

 /s/ Garrett D. Blanchfield 

Garrett D. Blanchfield (pro hac vice) 

Brant D. Penney (pro hac vice) 

Roberta A. Yard (pro hac vice forthcoming) 

REINHARDT WENDORF & 

 BLANCHFIELD 

222 South 9th Street, Suite 1600 

Minneapolis, MN 55101 

Telephone: 651-287-2100 

g.blanchfield@rwblawfirm.com 

b.penney@rwblawfirm.com 

r.yard@rwblawfirm.com 

Interim Co-Lead Counsel for Indirect 

Purchaser Plaintiffs and the Proposed 

Indirect Purchaser Class 

Charles R. Watkins (3122790) 

GUIN, STOKES & EVANS, LLC 

321 South Plymouth Court, Suite 1250 

Chicago, IL 60604 

Telephone: 312-878-8391 

charlesw@gseattorneys.com 

Liaison Counsel for Indirect Purchaser 

Plaintiffs and the Proposed Indirect 

Purchaser Class 

Brian P. Murray (pro hac vice forthcoming) 

Lee Albert (pro hac vice forthcoming) 

GLANCY PRONGAY & MURRAY LLP 

230 Park Avenue, Suite 358 

New York, NY 10169 

Telephone: 212-682-5340 

bmurray@glancylaw.com 

lalbert@glancylaw.com 

Douglas A. Millen 

FREED KANNER LONDON & 

 MILLEN LLC 

100 Tri-State International Drive, Suite 128 

Lincolnshire, IL 60069 

Telephone: 224-632-4500 

dmillen@fklmlaw.com 

Jeffrey J. Corrigan (pro hac vice) 

William G. Caldes (pro hac vice) 

Jeffrey L. Spector (pro hac vice) 

Icee N. Etheridge (pro hac vice) 

SPECTOR ROSEMAN & 

 KODROFF, P.C. 

2001 Market Street, Suite 3420 

Philadelphia, PA 19103 

Telephone: 215-496-0300 

JCorriganf@srkattorneys.com 

BCaldes@srkattorneys.com 

JSpector@srkattorneys.com 

IEtheridge@srkattorneys.com 

Michael S. Smith (pro hac vice) 

Gregory P. Hansel (pro hac vice) 

Randall B. Weill (pro hac vice) 

Elizabeth F. Quinby (pro hac vice) 

PRETI FLAHERTY, BELIVEAU & 

 PACHIOS LLP

One City Center, 

P.O. Box 9546 

Portland, ME 04101 

Telephone: 207-791-3000 

msmith@preti.com 

ghansel@preti.com 

rweill@preti.com 

equinby@preti.com 

David McLafferty (pro hac vice forthcoming) 

MCLAFFERTY LAW FIRM, P.C. 

 ATTORNEYS AT LAW 

923 Fayette Street 

Conshohocken, PA 19428 

Telephone: 610-940-4000, ext. 12 

www.McLaffertyLaw.com 

 

 

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20 

Simon B. Paris, Esq. 

 (pro hac vice forthcoming) 

Patrick Howard, Esq. 

 (pro hac vice forthcoming) 

SALTZ MONGELUZZI & 

 BENDESKY, P.C. 

1650 Market Street, 52nd Floor 

Philadelphia, PA 19103 

Telephone: 215-575-3985 

sparis@smbb.com 

phoward@smbb.com 

Jonathan M. Jagher 

 (pro hac vice forthcoming) 

FREED KANNER LONDON & 

 MILLEN LLC 

923 Fayette Street 

Conshohocken, PA 19428 

Telephone: 610-234-6487 

jjagher@fklmlaw.com 

Michael J. Boni (pro hac vice forthcoming) 

Joshua D. Snyder (pro hac vice forthcoming) 

John E. Sindoni (pro hac vice forthcoming) 

BONI, ZACK & SNYDER LLC 

15 St. Asaphs Road 

Bala Cynwyd, PA 19004 

Telephone: 610-822-0200 

mboni@bonizack.com 

jsnyder@bonizack.com 

jsindoni@bonizack.com 

Counsel for Indirect Purchaser Plaintiffs 

and the Proposed Indirect Purchaser Class 

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