Disposable Contacts Antitrust Litigation

This multidistrict antitrust litigation was centralized before this Court on June 10, 2015, by order of the United States Judicial Panel on Multidistrict Litigation (“MDL Panel”) (ECF No. 1; Transfer Order). It arises out of minimum retail pricing policies adopted by contact lenses manufacturers starting in June 2013 with regard to the distribution and sale of certain contact lenses. These policies were referred to as “Unilateral Pricing Policies” (“UPP”) by the Defendants. The operative complaint, filed on March 1, 2017, alleges that the Defendants used the UPPs to restrain competition from discount and online stores on consumer prices in the retail market for disposable contact lenses. The safety and effectiveness of contact lenses manufactured by the Defendants are not at issue in this litigation.

The Class Representatives allege claims for violations of:

1. The United States Sherman Act, 15 U.S.C. §§ 1 and 3;
2. The California Cartwright Act, Cal. Bus. & Prof. Code §§ 16720, et seq.;
3. The Maryland Antitrust Act, Md. Com. Law §§ 11-201, et seq.;
4. The California Unfair Competition Law, Cal. Bus. & Prof Code §§ 17200, et seq.; and
5. The Maryland Consumer Protection Act, Md. Com. Law §§ 13-301, et seq.

A settlement was reached with CVI for $3 million on August 30, 2017 (the “CVI Settlement”), and the Court preliminarily approved that settlement on July 10, 2018 (ECF No. 841). The Court provided final approval of the CVI settlement on March 4, 2020 (ECF No. 1164).

A settlement was reached with B&L for $10 million on August 19, 2019 (the “B&L Settlement”), and the Court preliminarily approved that settlement on October 8, 2019 (ECF No. 1046), and the Court granted final approval of the B+L settlement on March 4, 2020 (ECF No. 1164).

The Court certified the Litigation Classes on December 4, 2018 (ECF No. 940) and the last of Defendants’ requests for interlocutory appellate review was denied by the United States Court of Appeals for the Eleventh Circuit on June 20, 2019. The Court subsequently issued a Notice apprising consumers of the CVI and B&L Settlements and its certification of the Litigation Classes.

This website and the Notice is now being issued because another Defendant, ABB reached a settlement for $30.2 million on September 22, 2020, and the Court preliminarily approved that settlement on November 10, 2020 (ECF No. 1224). The Court granted final approval to the ABB Settlement on June 1, 2021.

Please note that this FAQ does not describe all of the claims and defenses asserted by the Class Representatives. To review the full operative Complaint, click here.

To view a copy of the Notice, click here.

The settling Defendant is ABB (ABB Optical Group LLC). B&L and CVI previously settled this action.

The Non-Settling Defendants are Alcon (Alcon Vision, LLC), and JJVC a/k/a/ “Vistakon” (Johnson & Johnson Vision Care, Inc.).

The Court has not decided any issue on the merits in favor of the Class Representatives or ABB. Instead, the Class Representatives and ABB engaged in lengthy negotiations and have agreed to the Settlement. By agreeing to settle, the parties avoid the costs and uncertainty of a trial, and the Settlement Class Members affected will get a chance to receive compensation. The Class Representatives and their attorneys think the Settlement is best for all members of the Settlement Class. The Settlement does not mean that any law was broken or that ABB did anything wrong.

The Action remains ongoing against the Non-Settling Defendants. Lead Counsel will have to prove the Class Representatives’ claims in Court. Alternatively, the Action may be resolved in favor of the Non-Settling Defendants, in which case no additional money would become available. There is no guarantee as to what will happen.

In a class action, one or more people called “Class Representatives” sue on behalf of themselves and other people with similar claims. All of these people together are the “class” or “class members.” The Class Representatives are: Rachel Berg, Alexis Ito, Miriam Pardoll, Jennifer Sineni, Joseph Felson, Tamara O’Brien, Susan Gordon, Catherine Dingle, Elyse Ulino, Amanda Cunha, Sheryl Marean, Brett Watson, Kathleen Schirf, Cora Beth Smith, and John Machikawa. Class actions avoid the necessity of each member of a class having to file his, her, or its own separate lawsuit to obtain relief. Class actions are used to decide legal and factual issues that are common to all members of a class, and one court resolves the issues for all class members, except for those who exclude themselves from the class(es).

ABB Settlement:

By Order dated November 10, 2020, the Court certified the following Settlement Class for the ABB Settlement:

All persons and entities residing in the United States who made retail purchases of disposable contact lenses manufactured by Alcon, JJVC, CVI, or B&L during the Settlement Class Period for their own use and not for resale, where the prices for such contact lenses were subject to a “Unilateral Pricing Policy” and the purchase occurred during the period when the Unilateral Pricing Policy was in effect.

Excluded from the Settlement Class are any purchases from l-800 Contacts of disposable contact lenses subject to B&L’s Unilateral Pricing Policy, where the purchase occurred on or after July 1, 2015. Also excluded from the Settlement Class are Defendants, their parent companies, subsidiaries and affiliates, any alleged co-conspirators, all governmental entities, and any judges or justices assigned to hear any aspect of this action.

The Settlement Class Period is from June 1, 2013 to December 4, 2018.

You are a member of one or more of the Classes if you purchased disposable contact lenses manufactured by one of the Defendant Manufacturers for your personal use (i.e., not for resale), the purchase(s) occurred during the period when the Unilateral Pricing Policy, or UPP, was in effect, and those disposable contact lenses were subject to a UPP.

You are not a member of any of the Classes if you purchased disposable contact lenses:

1. Manufactured by a company other than the named Defendants;
2. For resale;
3. That were not subject to a UPP; or
4. At a period when the UPP was not in effect.

You are also not a member of any of the Classes if you are:

1. One of the Defendants, their parent companies, subsidiaries or affiliates, or an alleged co-conspirator;
2. A governmental entity;
3. Counsel for the parties; or
4. A judge or justice assigned to hear any aspect of this Action.

The disposable contact lenses that were subject to the UPPs, and the period during which each UPP was in effect, are set forth below.

Lastly, you are not a member of any of the Litigation Classes if you only purchased disposable contact lenses manufactured by CVI. If you are a member of the Settlement Classes but not the Litigation Classes, your rights as to the Non-Settling Defendants will not be impacted by future decisions in this case, and you will not be able to claim in any future recoveries against the Non-Settling Defendants.

The disposable contact lenses that were subject to the UPPs, and the period during which each UPP was in effect, are set forth below:

* Note: Excluded from the B&L Class are any purchases from 1-800-Contacts of disposable contact lenses subject to B&L’s Unilateral Pricing Policy, where the purchase occurred on or after July 1, 2015.

If you are not sure whether you are included in the Classes, you may call 1-877-253-3649 with questions. You may also write with questions to Disposable Contact Lens Settlement Administrator, P.O. Box 2995, Portland, OR 97208-2995 or email info@ContactLensSettlement.com.

On October 7, 2015, the Court granted Class Representatives’ motion appointing Hausfeld LLP, Scott+Scott Attorneys at Law LLP, and Robins Kaplan LLP as interim lead counsel. (ECF No. 116).

On November 23, 2015, Lead Counsel, on behalf of Class Representatives, filed the Consolidated Class Action Complaint (“Consolidated Complaint”).

On December 23, 2015, Defendants filed their Motion to Dismiss the Consolidated Complaint. (ECF No. 146). Following briefing and oral argument, the Court denied Defendants’ motion. (ECF Nos. 185, 190). On July 27, 2016, Defendants filed their Answers and Affirmative Defenses. (ECF Nos. 266-70).

The operative complaint, Plaintiffs’ Interlineation to Corrected Consolidated Class Action Complaint (ECF No. 395; Complaint), was filed on March 1, 2017.

On December 4, 2018 (ECF No. 940), the Court issued an Order certifying the Litigation Classes, appointing Hausfeld LLP, Scott+Scott, Attorneys at Law, LLP, and Robins Kaplan LLP as Lead Counsel, and formally designated the plaintiffs as the Class Representatives for the Litigation Classes. The Court’s Order certifying the Litigation Classes does not guarantee Class Members will receive money or benefits; that will be decided later in the Action.

The $3 million CVI Settlement was reached on August 30, 2017, and the $10 million B&L Settlement was reached on August 19, 2019. The Court preliminarily approved the B&L and CVI Settlements on July 10, 2018 (ECF No. 841) and October 8, 2019 (ECF No. 1046), respectively.

In 2019, notice was provided regarding the B&L and CVI Settlements and the formation of Litigation Classes. On February 25, 2020, the Court held a Fairness Hearing. On March 4, 2020, the Court issued an Order granting final approval and a final judgment for the B&L and CVI Settlements (ECF No. 1164).

On November 27, 2019, the Court denied the Defendants’ motions for summary judgment (ECF No. 1091). The Court has not yet made a ruling on the merits of the allegations made in the Complaint or on Defendants’ denials and defenses. The Action is ongoing and a trial date has not been set.

On June 1, 2021, the Court granted final approval to the ABB Settlement.

The ABB Settlement will establish a Settlement Fund totaling $30.2 million that will be used to pay eligible Settlement Class Members who submit valid claims or already submitted a valid claim to the B&L and/or CVI Settlement(s). The cost to administer the ABB Settlement, attorneys’ fees, service payments for the Class Representatives (if any are requested and approved by the Court), taxes and other expenses approved by the Court will come out of the Settlement Fund. The Settlement requires ABB to deposit $500,000 into an Escrow Account within 15 days following Preliminary Approval. ABB will then deposit the remainder of the Settlement Amount ($29,700,000) into the Escrow Account as follows: 50% of the remainder ($14,850,000) by April 15, 2021, and 50% of the remainder, ($14,850,000) by January 14, 2022.

In order to minimize the administrative expenses, Class Representatives intend to distribute the Net Settlement Funds for the ABB, B&L, and CVI Settlements at a later stage of the case, such as after any future settlement with or judgment against the Non-Settling Defendants. Please be patient.

The ABB Net Settlement Fund will be distributed to qualifying members of the ABB Settlement Class pro rata (proportional share). Lead Counsel estimates that there are up to 40 million purchasers of disposable contact lenses that were subject to Defendants’ UPPs. In the event that Lead Counsel determines that it will be economically infeasible to directly distribute the ABB Net Settlement Fund to the ABB Settlement Class, they may propose alternative plans of distribution to the Court, including a cy pres distribution, of the ABB Net Settlement Fund. In the event that Lead Counsel propose an alternative plan of distribution to the Court, the motion will be posted here and an email will be sent to any email address registered with the Administrator prior to the hearing on the motion.

If you already submitted a timely and valid Proof of Claim as part of the earlier B&L and/or CVI Settlement(s), you did not need to submit another Proof of Claim. You will automatically be included in the ABB Settlement to receive a payment from the ABB Net Settlement Fund. However, if you did not submit a timely and valid Proof of Claim as part of either of the B&L and/or CVI Settlement(s), you must have submitted a Proof of Claim to share in the ABB Net Settlement Fund by March 10, 2021. You will not be able to share in the B&L Settlement if you did not submit a timely and valid Proof of Claim in the B&L Settlement, and you will not be able to share in the CVI Settlement if you did not submit a timely and valid Proof of Claim in the CVI Settlement. You will not be able to share in the ABB Settlement unless you submitted a valid Proof of Claim pursuant to the B&L Settlement, the CVI Settlement, or the ABB Settlement. The deadline to file your Proof of Claim pursuant to the ABB Settlement was March 10, 2021.

Unless you excluded yourself from the ABB Settlement Class, the Settlement does not permit you to sue ABB for the claims being resolved by the Settlement. The specific claims (“Released Claims”) being resolved against ABB and its related parties are described in paragraphs 1.28, 1.30, and 7.1 of the ABB Settlement Agreement. The ABB Settlement Agreement is available here.

If you have any questions, you can talk to Lead Counsel listed herein for free or you can, of course, talk to your own lawyer about what this means.

The deadline to file a Proof of Claim was March 10, 2021.

If you are a member of the ABB Settlement Class, you had the right to decide whether to remain a member of the ABB Settlement Class.

If you purchased only contact lenses manufactured by B&L, you had an additional opportunity to decide whether to remain a member of the Litigation Classes.

Excluding Yourself from the ABB Settlement Class: If you wanted to keep the right to file or maintain your own lawsuit against ABB about the Released Claims, then you must have taken steps to get out of the Settlement with ABB. This is called excluding yourself – or sometimes referred to as opting out of the class. If you asked to be excluded from the ABB Settlement, you will not receive any benefits from the ABB Settlement, and you cannot object to the ABB Settlement Agreement.

Excluding Yourself from the Litigation Classes if You are a Consumer who purchased only Contact Lenses Manufactured by B&L: If you are included in the definition of any of the Litigation Classes and you wanted to sue the Defendants on your own about the claims alleged by Class Representatives in this Action, you must have excluded yourself from the Litigation Classes. If you excluded yourself, you won’t get any money from future distributions if Class Representatives obtain any money as a result of a trial or any future settlements.

If you have a pending or contemplated lawsuit against any of the Defendants involving the same legal issues in this Litigation or the Released Claims in the ABB Settlement Agreement, speak to your lawyer immediately. You must have excluded yourself from the ABB Settlement in order to continue or initiate your own lawsuit against ABB. You must have excluded yourself from the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L) in order to continue or initiate your own lawsuit.

You were required to have requested exclusion in accordance with the procedures set forth in FAQ 12.

If you purchased only contact lenses manufactured by B&L and want to remain a member of the Litigation Classes, you do not need to do anything at this time other than to retain your documentation reflecting your purchases of disposable contact lenses subject to a UPP during the Class Period, as discussed in Paragraph 43 below.

If you are a member of the ABB Settlement Class and you did not submit a Proof of Claim to the B&L and/or CVI Settlement(s), you must have submitted a Proof of Claim no later than March 10, 2021, in order to participate in any distribution of funds from the ABB Settlement. If you already submitted a timely and valid Proof of Claim to the B&L and/or CVI Settlement(s), you did not need to submit another Proof of Claim.

Your decision is important for the following reasons:

If you chose to remain a member of the ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L), you will be bound by all past, present and future orders and judgments in this Action, whether favorable or unfavorable. If any money is awarded, either through a settlement with Defendants or a judgment of the Court after a trial, you may be eligible to receive a share of that award. However, if you remain a member of the ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased contact lenses manufactured by B&L only), you may not pursue a lawsuit on your own behalf with regard to any of the legal claims in this Action. Pursuant to Rule 23(e)(4) of the Federal Rules of Civil Procedure, it is within the Court’s discretion whether to allow a second opportunity to request exclusion from the Litigation Classes if there is a settlement in the Action involving the claims of the members of the Litigation Classes. Please note that if you remain a member of the ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L), you will not be personally responsible for Lead Counsel’s attorneys’ fees or costs. Lead Counsel has agreed to represent the Classes on a contingent fee basis, which means that they will be awarded fees and costs to be approved by the Court only if they succeed in obtaining a recovery from one or more Defendants. Any attorneys’ fees for Lead Counsel will be awarded by the Court. As a member of ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L), you will be represented by Lead Counsel. Alternatively, you may remain a member of the ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L) and elect to be represented by counsel of your own choosing. If you do retain separate counsel, you will be responsible for that attorney’s fees and expenses.

If you chose to be excluded from the ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L), you will not be bound by any orders or judgment in this Action applicable to the ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L), to which you excluded yourself, nor will you be eligible to share in any recovery that might be obtained on behalf of the ABB Settlement Class and/or the Litigation Classes (if you are a consumer who purchased only contact lenses manufactured by B&L) to which you excluded yourself. You will retain any right you have to individually pursue any unreleased legal rights that you may have against Defendants.

Members of the respective Classes will be eligible to participate in any recovery that might be obtained on their behalf. While this Website is not intended to suggest any likelihood that the Class Representative or members of the Litigation Classes will obtain any recovery, should there be a recovery, members of the Litigation Classes may be required to support their requests to participate in the distribution of the recovery by demonstrating their membership in of the Litigation Classes and documenting their purchases of disposable contact lenses subject to UPPs during the Class Period. For this reason, please be sure to keep all records of your contact lens purchases.

The deadline to exclude yourself was March 10, 2021.

The deadline to object was March 10, 2021.

The Court appointed the law firms of Hausfeld LLP, Scott+Scott, Attorneys at Law, LLP, and Robins Kaplan LLP as Lead Counsel. If you have any questions concerning the matters raised in this website, you may contact Lead Counsel, as follows:

Nathaniel C. Giddings HAUSFELD LLP 888 16th Street, N.W.; Suite 300 Washington, DC 20006  1-202-540-7200  1-02-40-7201  ngiddings@hausfeld.com

Joseph P. Guglielmo SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, New York 10169  1-212-223-6444  1-212-223-6334  jguglielmo@scott-scott.com

Eamon O’Kelly ROBINS KAPLAN LLP 399 Park Avenue, Suite 3600 New York, NY 10022  1-212-980-7400  1-212-980-7499  eokelly@robinskaplan.com

You will not be charged for contacting these lawyers. As noted above, unless you elect to retain your own personal lawyer, if you remain in the Settlement Class, you will not have any direct obligations to pay the costs of this Action. If there is a recovery by one or more of the Classes in this Action, all costs and expenses, including Lead Counsel’s attorneys’ fees, will be paid from that recovery in an amount approved by the Court.

Lead Counsel has asked the Court for attorneys’ fees of up to one-third (33.3%) of the ABB, B&L, and CVI Settlement Funds, after payment of Court-approved costs and expenses. In addition, Lead Counsel has asked the Court for reimbursement from the ABB Settlement Fund of costs and expenses for their work in the Action, and may also seek service awards for the Class Representatives for their time and work spent prosecuting this Action. Any fees and expenses awarded by the Court will be paid out of the Settlement Funds.

The Court held a Fairness Hearing at 10:00 a.m. on Wednesday, May 19, 2021, at the United States Courthouse, Courtroom 10C, 300 North Hogan Street, Jacksonville, Florida.

At this hearing, the Court considered whether the ABB Settlement is fair, reasonable, and adequate and separately considered whether to approve the Settlement’s plan of distribution and any proposed attorneys’ fees, expenses, and/or incentive awards.

You did not have to attend the Fairness Hearing.

On June 1, 2021, the Court granted Final Approval to the ABB Settlement.

If you did nothing, you will remain in all of the Classes in which you are a member. You will not be able to separately sue, or continue to sue the Defendants—as part of any other lawsuit—for the Released Claims or the conduct alleged in the Complaint. You will also be legally bound by all of the Orders the Court issues and judgments the Court makes concerning this class action, including any decision on the Defendants’ motions for summary judgment. If you didn't file a valid claim, you will not be able to share in the ABB Settlements and any future recovery from the other Defendants.

To assist the Court and the parties in maintaining accurate lists of Settlement Class Members, you are requested to keep your email and physical address up to date with the Administrator. You may update your addresses here.

If a Notice was forwarded to you by the postal service, or if it was otherwise sent to you at an address that is not current, you should immediately contact the Administrator at Disposable Contact Lens Settlement Administrator, P.O. Box 2995, Portland, OR 97208-2995 or by calling the Administrator toll free at 877-253-3649 and providing them with your correct address. If the Administrator does not have your correct address, you may not receive notice of important developments in this Action.

This website and the Notice provide only a summary of the lawsuit and the claims asserted by Class Representatives. More details are available in the Settlement Agreements and other court documents, all available on this website here. You can also review copies of the important pleadings, orders, and other documents filed in this Litigation at www.pacer.gov, or at the office of the Clerk of the Court, United States District Court for the Middle District of Florida, Jacksonville Division, 300 North Hogan Street, Jacksonville, Florida 32202, under Case No. 3:15-md-02626-HES.

For additional questions, you may contact Lead Counsel at the information in FAQ 14, or contact the Settlement Administrator at info@ContactLensSettlement.com, or calling toll free 1-877-253-3649.

DO NOT WRITE OR CALL THE COURT FOR INFORMATION ABOUT THE SETTLEMENT OR THIS LITIGATION.

No distributions of settlement funds have yet been made in this litigation. Class Counsel have recently entered into settlement agreements with Johnson & Johnson Vision Care, Inc. and Alcon Vision, LLC and Class Counsel are in the process of having them approved by the Court. If approved, these settlements will end the litigation. Class Members who submit timely and valid claims to these settlements or submitted timely and valid claims the previous three settlements (CooperVision, Bausch & Lomb, and ABB Optical) will receive a single payment from all applicable settlements after the Johnson & Johnson and Alcon settlements are approved and the funds have been received. Please be patient and watch this space for updates.