Contact Lens Consumers Get Price-Fixing Class Action Certified

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A consumer Class has been given certification in a contact lens price-fixing multidistrict litigation. 

Plaintiffs in the contact lens class action claim that large contact lens manufacturers including Alcon Laboratories Inc., Johnson & Johnson Vision Care Inc., Bausch & Lomb Inc., and CooperVision Inc., along with the distributor ABB Optical Group LLC colluded to raise prices of disposable, or soft contact lenses.

“This case is a clear example of the category of cases where the individual members of the proposed class would lack incentive to pursue individual actions as the possible recovery would likely be far outweighed by the expense of such action,” U.S. District Judge Harvey E. Schlesinger said.

When the Class certification was pending, the contact lens manufacturers attempted to have various pieces of the consumers’ argument tossed in an effort to discredit their claims.

One such effort included an attempt to strike portions of the report given by consumers’ experts, who argued that the companies did indeed conspire to raise prices of disposable contact lenses.

According to the contact lens price fixing multidistrict litigation, Alcon, Johnson & Johnson, Bausch & Lomb, and CooperVision conspired to eliminate discounting of contact lenses by ensuring that all retailers in the industry charged a minimum price for disposable lenses.

The consumers argue that the companies conspired with suppliers and with independent eye care professionals (ECPs).

Allegedly, over the course of 15 months starting in June 2013, the manufacturers ensured that companies charged the minimum price for lenses by “threatening to curtail the supply of its contact lens lines to retailers who sell below the mandated price.”

The contact lens price-fixing multidistrict litigation was centralized on June 10, 2015 before the U.S. District Court for the Middle District of Florida, Jacksonville Division.

Earlier this year, the contact lens companies attempted to have the contact lens price-fixing multidistrict litigation thrown out, arguing that the customers had not provided clear evidence that the companies had conspired to fix prices.

The customers argue that the company implemented this minimum price strategy for several of the “most advanced and/or most popular lines of contact lenses sold by the manufacturers in question.”

The customers in the contact lens price-fixing MDL went on to argue that the companies effectively divided the market for disposable contact lenses into distinct markets for each brand of contact lenses subject to a minimum price, or UPP.

According to the customers, this agreement between the companies and the distributor violated antitrust law.

The customers argue that the Sherman Act “broadly prohibits ‘every contract, combination…or conspiracy, in restraint or trade of commerce,” in the interest of prohibiting monopolies and preventing the interference of free trade and commerce. The customers say the the contact lens companies’ agreement limits free trade.

The plaintiffs say that in accordance with the Sherman Act, a company does have the right to deal or refuse to deal however it likes, “as long as it does so independently.”

Additionally, the customers argue that consumers were hurt by the companies’ collusion because as a result of this allegedly unlawful agreement, customers paid more for disposable contact lenses than they would have if the customers had behaved lawfully and not conspired to fix prices.

The Class is represented by Michael E. Lockamy and John A. DeVault III of Bedell Dittmar Devault Pillans & Coxe PA, Robert C. Gilbert of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Hollis Salzman, Bernard Persky and Benjamin Steinberg of Robins Kaplan LLP, Michael D. Hausfeld, James J. Pizzirusso, Nathaniel C. Giddings, Michael P. Lehmann and Bonny E. Sweeney of Hausfeld LLP, Christopher M. Burke and Joseph P. Guglielmo of Scott & Scott Attorneys at Law LLP, George W. Sampson of Sampson Dunlap LLP, Steven C. Marks of Podhurst Orseck LLP and Dennis Stewart of Hulett Harper Stewart LLP.

The Contact Lens Price-Fixing Class Action Lawsuit is In re: Disposable Contact Lens Antitrust Litigation, Case No. 3:15-md-02626-HES-JRK, in the U.S. District Court for the Middle District of Florida.

UPDATE: On Sept. 17, 2019, Bausch & Lomb agreed to pay $10 million to consumers who allege that the contact lens company conspired with others to raise prices of soft, disposable lenses.

UPDATE 2: December 2019, the contact lens price-fixing class action settlement is now open. Click here to file a claim.