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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BCBSM, INC., et al., 

Plaintiffs / Counter-Defendants, 

v. 

WALGREEN CO. & WALGREENS 

BOOTS ALLIANCE, INC.,

Defendants / Counterclaimant.

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Case No. 1:20-cv-01853

Honorable Virginia M. Kendall

Honorable Sheila M. Finnegan

Consolidated with:

No. 1:20-cv-01929

No. 1:20-cv-03332

No. 1:20-cv-04738

No. 1:20-cv-04940

No. 1:22-cv-01362

WALGREEN CO. & WALGREENS 

BOOTS ALLIANCE, INC.,

Third-Party Plaintiffs,

v.

PRIME THERAPEUTICS LLC & 

OMEDARX, INC.,

Third-Party Defendant.

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DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND EXPENSES

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), Defendants Walgreen Co. and 

Walgreens Boots Alliance, Inc. (together, “Walgreens”), through their undersigned attorneys,

respectfully request that this Court, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) and 

the Court’s Order Granting Defendants’ Motion to Compel Plaintiffs’ Discovery (ECF No. 453), 

award Walgreens its reasonable attorneys’ fees and expenses incurred in connection with 

Walgreens’ Motion to Compel Plaintiffs’ Discovery (ECF No. 407). Walgreens further requests 

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that the Court award Walgreens further reasonable attorneys’ fees and expenses incurred in 

connection with filing the instant motion for attorneys’ fees and expenses. 

In support of this motion, Walgreens relies on all pleadings and papers of record to date 

and states as follows: 

1. On January 23, 2023, Walgreens moved to compel the twenty-eight original Blue 

Cross insurer plaintiffs1(the “Initial Plaintiffs”) to answer certain of Walgreens’ discovery 

requests that Plaintiffs had theretofore refused (the “Motion”). (ECF Nos. 407, 408.) 

Specifically, Walgreens sought an order requiring the Initial Plaintiffs to respond to 

(i) Interrogatory 26, which seeks basic information about the financial relationship between the 

Initial Plaintiff insurers and Prime Therapeutics LLC, a Blue Cross-owned pharmaceutical 

benefit manager and third-party defendant; (ii) Interrogatories 13, 14, and 16, which relate to the 

Initial Plaintiffs’ common-interest and joint-defense agreements, litigation-financing or 

contingent attorneys’ fee arrangements, insurance policies and indemnification agreements, and 

other, similar agreements, including any cooperative agreements among and between Prime and 

the Initial Plaintiffs or their respective counsel; (iii) Interrogatory 10 and Requests for Production 

38 and 39, which relate to the basis for and documents supporting the exhibits that the Initial 

Plaintiffs attached to their complaint; and (iv) requests for admission that ask the Initial Plaintiffs 

to confirm the legal and factual basis for their consumer fraud claims.

2. On February 13, 2023, the Initial Plaintiffs filed their opposition to the Motion. 

(ECF Nos. 418, 419.) 

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In March 2022, seven more Blue Cross insurers (the “CareFirst Plaintiffs”) filed a nearly 

identical complaint against Walgreens. The CareFirst Plaintiffs’ case was consolidated with the 

other Plaintiffs’, see Dkt. 272, but discovery between Walgreens and the CareFirst Plaintiffs is 

in its early stages. See, e.g., Dkt. 372, at 2–3. This Motion seeks relief only against the initial 28 

Plaintiffs, reserving all rights as to the CareFirst Plaintiffs.

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3. On February 27, 2023, Walgreens filed its reply in support of the Motion. (ECF 

Nos. 427–430.) 

4. In its May 31, 2023 Order (the “Order”), the Court granted the Motion in its 

entirety, ordering all of the relief sought by Walgreens without exception. (ECF No. 453.) 

Specifically, the Court ordered the Initial Plaintiffs to (i) respond to Interrogatory No. 26; 

(ii) respond to Interrogatories Nos. 13, 14, and 16; (iii) respond to Interrogatory No. 10 and 

Requests for Production Nos. 38–39; and (iv) respond to Requests for Admission Nos. 148–160. 

Id. 

5. In so holding, the Court rejected all of Initial Plaintiffs’ conclusory and 

boilerplate objections based on generic claims of irrelevance and privilege. See, e.g., Order at 4 

(“No reasons were given for each such conclusory objection.”), 9 (“Such conclusory objections 

carry no weight and could be stricken, but the objections Plaintiffs ultimately advanced in 

opposing this motion to compel are untenable in any event.”), 10 (“Plaintiffs provide no basis for 

asserting that the information sought in Interrogatory No. 13 is privileged.”).

6. Under Federal Rule of Civil Procedure 37(a)(5)(A), when the Court grants a 

motion to compel discovery, “the court must, after giving an opportunity to be heard, require the 

party or deponent whose conduct necessitated the motion, the party or attorney advising that 

conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, 

including attorney’s fees,” unless certain exceptions exist, which do not exist here. See also 

Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786 (7th Cir. 1994) (Rule 37 “presumptively 

requires every loser to make good the victor’s costs.”). 

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7. In satisfaction of Rule 37(a)(5)(A)(i), Walgreens filed its Motion after attempting 

in good faith to obtain the discovery requested without court action. See Motion at ¶¶ 4, 20, 24 

(citing ECF No. 408, Declaration of Charles D. Zagnoli, Ex. 3–7). 

8. And clearly triggering Rule 37(a)(5)(A)(ii)’s fee shifting mandate, the Initial 

Plaintiffs’ opposition to the discovery requested in the Motion was not only substantially

unjustified—Plaintiffs’ resisted this clearly relevant discovery in most cases providing no

justification at all. See supra ¶ 5. See also Order at 5 (“Even without these deficiencies, 

however, the Court would overrule these objections because the data sought appears to be 

relevant.”), 11 (“Even if all Plaintiffs had responded, however, the Court agrees with Walgreens 

that the discovery sought here is not irrelevant, cumulative, or disproportionately burdensome.”), 

12 (“Plaintiffs present no argument, much less proof, that producing information about fee 

arrangements now is unduly burdensome or disproportionate.”), 13 (“Providing sworn responses 

to that effect is appropriate and not burdensome”), 15 (“Plaintiffs’ assertion of the consulting 

expert objection to Exhibit 2 is wholly conclusory . . . [and] is especially troubling since, as 

Walgreens rightly points out, the consulting expert claim here varies from Plaintiffs’ written 

response to Interrogatory No. 10 asserting that the process used to create Exhibit 2 will be 

answered by ‘the forthcoming expert report(s),’ clearly a reference to a testifying expert.”), 19 

(“The Court rejects Plaintiffs’ argument that the requests here seek legal conclusions. On their 

face, they do not. . . .”), 21 (“It is worth noting that Plaintiffs themselves signal that they are in 

fact asserting consumer fraud claims based on conduct short of intentional deceit by confirming 

that such claims are viable and stating that they have not been abandoned . . . . The requests for 

admission are a proper way to understand what Plaintiffs are alleging.”). 

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9. No other circumstances exist that would make an award of fees and expenses 

unjust. See Fed. R. Civ. P. 37(a)(5)(A)(iii). 

10. Having no other choice but to move to compel this important discovery, 

Walgreens’ counsel billed fees to Walgreens relating to the filing of the Motion, as well as the 

instant motion for attorneys’ fees, in the amount of $103,184.40. See Declaration of Timothy R. 

Farrell, ¶¶ 3-4.

11. These fees are reasonable.2 See Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th 

Cir. 2012) (“When a prevailing party is entitled to ‘a reasonable attorney’s fee,’ . . . the district 

court must make that assessment, at least initially, based on a calculation of the ‘lodestar’—the 

hours reasonably expended multiplied by the reasonable hourly rate—and nothing else.”); see 

also Bos. Sci. Corp. v. Cook Grp. Inc., No. 117CV03448JRSMJD, 2022 WL 2210011, at *2 

(S.D. Ind. June 21, 2022) (granting motion for attorneys’ fees for time spent bringing motion for 

attorneys’ fees); Haywood v. Wexford Health Sources, Inc., No. 16 CV 3566, 2021 WL 2254968, 

at *14 (N.D. Ill. June 3, 2021) (attorneys’ fees for time spent assessing produced documents for 

compliance with discovery requests is recoverable upon successful motion to compel). “There is 

a strong presumption that the lodestar calculation yields a reasonable attorneys’ fee award.” 

Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011). The Seventh Circuit 

“presume[s] that an attorney’s actual billing rate for similar litigation is appropriate to use as the 

market rate.” Id. 

WHEREFORE, Walgreens thus respectfully requests that the Court enter an order

directing the Initial Plaintiffs and/or their counsel to pay Walgreens’ costs and expenses, 

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Indeed, the billing rates actually charged by Walgreens’ counsel are lower than what 

undersigned counsel typically charges clients for work of this nature, further evidencing the 

reasonableness of the fees requested. See Declaration of Timothy R. Farrell, ¶ 5.

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including attorneys’ fees, incurred in connection with Walgreens’ filing of the Motion in the 

amount of $103,184.40, plus any expenses and fees to be incurred through further briefing or 

argument on the instant motion. 

Dated: September 8, 2023 Respectfully submitted,

By: /s/ Jeffrey J. Bushofsky

Jeffrey J. Bushofsky

Laura G. Hoey

Timothy R. Farrell

Charles D. Zagnoli

ROPES & GRAY LLP

191 N. Wacker Drive

32nd Floor

Chicago, IL 60606

Telephone: (312) 845-1200

Facsimile: (312) 845-5522

Jeffrey.Bushofsky@ropesgray.com

Laura.Hoey@ropesgray.com

Timothy.Farrell@ropesgray.com

Charles.Zagnoli@ropesgray.com

Attorneys for Defendant / Counterclaimant / 

Third-Party Plaintiff Walgreen Co. & 

Defendant / Third-Party Plaintiff Walgreens 

Boots Alliance, Inc

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CERTIFICATE OF SERVICE

I, Charles D. Zagnoli, hereby certify that the foregoing document was electronically filed 

on September 8, 2023, and will be served electronically via the Court’s ECF Notice system upon 

all registered counsel of record.

 /s/ Charles D. Zagnoli

Charles D. Zagnoli

ROPES & GRAY LLP

191 N. Wacker Dr.

32nd Floor

Chicago, IL 60606

Telephone: (312) 845-1200

Facsimile: (312) 845-5522

Charles.Zagnoli@ropesgray.com

Attorney for Defendants / Counterclaimant / 

Third-Party Plaintiffs Walgreen Co. & 

Walgreens Boots Alliance, Inc.

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