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 Alcon for $20 million on March 23,2022. On October 12, 2022, the Court approved that settlement.

A settlement was reached with JJVCI for $55 million on March 27, 2022. On October 12, the Court approved that settlement.

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 Defendants, Alcon and JJVCI recently reached settlements, and the Court preliminarily approved those settlements on May 9, 2022 (ECF 1343).

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 Defendants are Alcon and JJVCI. ABB, B&L, and CVI previously settled this action. With these two settlements, all Defendants have settled, and now that the Court has approved the Alcon and JJVCI Settlements, the litigation is fully and finally resolved.

The Court has not decided any issue on the merits in favor of the Class Representatives, Alcon, or JJVCI. Instead, the Class Representatives, Alcon and, separately, JJVCI, engaged in lengthy negotiations and have agreed to two separate Settlements. 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 believe the Settlements are best for all members of the Settlement Classes. The proposed Settlements do not mean that any law was broken or that Alcon or JJVCI did anything wrong.

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).

Alcon and JJVCI Settlements:

By Order dated May 9, 2022, the Court preliminarily certified the following Settlement Class for both the Alcon Settlement and the JJVCI Settlement:

All persons and entities residing in the United States who made retail purchases of disposable contact lenses manufactured by Alcon, JJVCI, 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 the Settlement Classes if you purchased disposable contact lenses (a) manufactured by a company other than the named Defendants, (b) for resale, (c) that were not subject to a UPP, or (d) at a period when the UPP was not in effect. You are also not a member of any of the Classes if you are (i) one of the Defendants, their parent companies, subsidiaries or affiliates, or an alleged co-conspirator, (ii) a governmental entity, (iii) counsel for the parties, or (iv) 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:

* 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 Settlement 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 March 4, 2020, the Court granted final approval of the B&L and CVI Settlements.

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

The Alcon and JJVCI Settlements will establish Settlement Funds of $20 million and $55 million, respectively, that will be used to pay eligible Settlement Class Members who submit valid claims or already submitted a valid claim to the ABB, B&L and/or CVI Settlement(s). The cost to administer the Alcon and JJVCI Settlements, attorneys’ fees and expenses, 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 Funds. The Settlement requires Alcon and JJVCI to deposit their respective settlement amounts into escrow accounts within fifteen (15) days of Preliminary Approval.

In order to minimize administrative expenses, Lead Counsel intend to distribute the Net Settlement Funds for all five Settlements at once.

Customers that filed valid claims for purchases of lenses made by B&L, JJVCI and Alcon that were subject to a UPP will draw funds on a pro rata basis from all five Settlement Funds. Purchasers of lenses subject to CVI’s UPP who filed valid claims will draw funds on a pro rata basis from the CVI, ABB, Alcon, and JJVCI Settlement Funds.

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 Net Settlement Funds to the Settlement Classes, they may propose alternative plans of distribution to the Court, including a cy pres distribution, of the Net Settlement Funds. 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.

Unless you excluded yourself from the Alcon and/or JJVCI Settlement Class(es), you gave up your right to sue Alcon and/or JJVCI for the claims being resolved by the Settlement(s). The specific claims (“Released Claims”) you are giving up against Alcon and/or JJVCI and its related parties are described in paragraphs 1.28, 1.30, and 7.1 of the Settlement Agreement(s). The Alcon and JJVCI Settlement Agreements are 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 claim filing deadline has passed.

The deadline to exclude yourself has passed.

The deadline to exclude yourself has passed.

The deadline to object has passed.

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  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  jguglielmo@scott-scott.com

Benjamin Steinberg ROBINS KAPLAN LLP 399 Park Avenue, Suite 3600 New York, NY 10022  1-212-980-7400  bsteinberg@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.

At least fifteen (15) days before the deadline to opt-out or object to the Settlements, Lead Counsel will ask the Court for attorneys’ fees of up to one-third (33.3%) of the Alcon and JJVCI Settlement Funds, as well as reimbursement of costs and expenses incurred by Lead Counsel during the litigation. In addition, Lead Counsel may also seek reimbursement of costs 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 9:30 a.m. on Wednesday, October 12, 2022, at the United States Courthouse, Courtroom 10C, 300 North Hogan Street, Jacksonville, Florida.

On October 22, 2022, the Court Preliminarily approved the Alcon and JJVCI Settlements.

If you do nothing, you will remain in the Alcon and/or JJVCI Settlement Classes. You will not be able to separately sue, or continue to sue 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. If you are a Settlement Class Member, and you file a valid Proof of Claim, you will be able to share in the Alcon and JJVCI Settlements. If you already submitted a timely and valid Proof of Claim as part of the ABB, B&L and/or CVI Settlement(s), you do not need to submit another Proof of Claim.

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. In order to minimize administrative expenses, Lead Counsel intend to distribute the Net Settlement Funds for all five Settlements at once. Lead Counsel anticipate that settlement funds will be distributed in early 2023.