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Case 2:16-cv-06417-AB Document 1 Filed 12/13/16 of 25

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

TAYLOR ZIMMERMAN,22301 Delaire Landing Road: Case No.

Philadelphia, PA 19114,

and: COMPLAINT

SARA HARTMAN,: PRAYER FOR RELIEF134 Clifton Place, Apt. 2

Brooklyn, NY 11238,: JURY DEMAND

and: PROPOSED CLASS-ACTION UNDERFED. R. CIV. P. 23

IYSHA ABED,513 Quincy Drive

Turnersville, NJ 08012,

and

ROBERT WEINSTEIN,4213 Deerhurst Dr.

Plano, TX 75093,

and

JILL SCHULSON,1702 Rodman St.

Philadelphia, PA 19146,

and

LEIA PINTO,115 Poplar Ave.

Modesto, CA 95354,

on behalf of themselves and all others

Similarly situated,

Plaintiffs,

v.

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1-800 CONTACTS, INC.66 E. Wadsworth Park Drive

Draper, UT 84020,

Defendant.

COMPLAINT

Plaintiffs Taylor Zimmerman, Sara Hartman, Iysha Abed, Robert Weinstein, Jill

Schulson, and Leia Pinto, by and through undersigned counsel, bring this action individually and

on behalf of a class of all persons and entities similarly situated, against 1-800 Contacts, Inc. ("1-

800 Contacts") for damages and injunctive relief under the antitrust laws of the United States and

of various state laws. Plaintiffs allege facts regarding themselves based on personal knowledge,

and on information and belief as to all other factual allegations, as follows:

NATURE OF THE ACTION

1. This action arises as a result of a series of bilateral agreements between 1-800

Contacts and numerous competitors in the market for online sales of contact lenses that prevent

the parties to those agreements from competing against one another through online search

advertisements (the "No-Bidding Agreements"). According to the Federal Trade Commission

("FTC"), 1-800 Contacts, which is the largest online seller of contact lenses in the United States,

has been the "driving force" behind these agreements and the anticompetitive scheme that they

enable.

PARTIES

2. Plaintiff Taylor Zimmerman is an individual residing at 22301 Delaire Landing

Road, Philadelphia, Pennsylvania. Ms. Zimmerman has purchased contact lenses from 1-800

Contacts during the Class Period and as recently as 2016. Ms. Zimmerman has made her

purchases while in this judicial District, and 1-800 Contacts delivered the contact lenses to her in

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this judicial District. 1-800 Contacts further billed Ms. Zimmerman at an address in this judicial

District.

3. Plaintiff Sara Hartman is an individual residing at 134 Clifton Place, Apt. 2,

Brooklyn, New York. Ms. Hartman has purchased contact lenses from 1-800 Contacts during

the Class Period and as recently as 2016. Ms. Hartman has made her purchases in New York, 1-

800 Contacts delivered the contact lenses to her in New York, and 1-800 Contacts billed Ms.

Hartman at an address in New York.

4. Plaintiff lysha Abed is an individual residing at 513 Quincy Drive, Turnersville,

New Jersey. Ms. Abed has purchased contact lenses from 1-800 Contacts during the Class

Period and as recently as 2016. Ms. Abed has made her purchases in New Jersey, 1-800

Contacts delivered the contact lenses to her in New Jersey, and 1-800 Contacts billed Ms. Abed

at an address in New Jersey.

5. Plaintiff Robert Weinstein is an individual residing at 4213 Deerhurst Drive,

Plano, Texas. Mr. Weinstein has purchased contact lenses during the Class Period and as

recently as 2016. Mr. Weinstein has made his purchases in Texas, 1-800 Contacts delivered the

contact lenses to him in Texas, and 1-800 Contacts billed Mr. Weinstein at an address in Texas.

6. Plaintiff Jill Schulson is an individual residing at 1702 Rodman St., Philadelphia,

Pennsylvania. Ms. Schulson has purchased contact lenses during the Class Period and as

recently as 2016. Ms. Schulson has made her purchases in Pennsylvania, 1-800 Contacts

delivered the contact lenses to her in Pennsylvania, and 1-800 Contacts billed Ms. Schulson at an

address in Pennsylvania.

7. Plaintiff Leia Pinto is an individual residing at 115 Poplar Ave., Modesto,

California. Ms. Pinto has purchased contact lenses during the Class Period and as recently as

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2016. Ms. Pinto made her purchases in California, 1-800 Contacts delivered the contact lenses to

her in California, and 1-800 Contacts billed Ms. Pinto at an address in California.

8. Defendant 1-800 Contacts is a corporation organized under the laws of Delaware,

with a principal place of business at 66 East Wadsworth Park Drive, Draper, Utah 84020.

JURISDICTION AND VENUE

9. Plaintiffs bring this action on their own behalf as well as that of the Classes to

recover damages, including treble damages, costs of suit, and reasonable attorneys' fees arising

from Defendant's illegal conduct.

10. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, 1332,

1337(a), 1367, and Sections 4 and 16 of the Clayton Act (15 U.S.C. 15(a) and 26). The claims

in this case arise under federal antitrust law and therefore present federal questions, they present

claims between citizens of different states in which the amount in controversy exceeds $75,000,

and they present claims in which the aggregate amount in controversy for the putative class

exceeds $5 million and at least one of the members of the putative class is a citizen of a different

state than 1-800 Contacts.

11. Jurisdiction and venue are proper in this judicial district pursuant to Section 12 of

the Clayton Act (15 U.S.C. 22) and 28 U.S.C. 1391 because a substantial part of the events

giving rise to Plaintiffs' claims occurred in this District, a substantial portion of the affected

interstate trade and commerce was carried out in this District, and Defendant regularly transacts

business in this District.

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CLASS ALLEGATIONS

12. Plaintiffs bring this action on behalf of themselves and as a class action pursuant

to Fed. R. Civ. P. 23(a) and (b)(3). All Plaintiffs pursue their claims under the Sherman Act on

behalf of a class that is defined as follows (the "Federal Class"):

All persons and entities who purchased contact lenses from 1-800 Contacts in the

United States, at any time between January 1, 2004, and the present (the "Class

Period")

13. Plaintiffs Taylor Zimmerman and Schulson also pursue their claims under the

Pennsylvania Unfair Trade Practices and Consumer Protection Law on behalf of a class that is

defined as follows (the "Pennsylvania Class"):

All persons and entities who purchased contact lenses from 1-800 Contacts in the

Commonwealth of Pennsylvania, at any time between January 1, 2004, and the

present.

14. Plaintiff Sara Hartman also pursues her claims under New York G.B.L. 349 on

behalf of a class that is defined as follows (the "New York Class"):

All persons and entities who purchased contact lenses from 1-800 Contacts in

the State ofNew York, at any time between January 1, 2004, and the present.

15. Plaintiff Iysha Abed also pursues her claims under N.J. Stat. 56:8-2 on behalf of

a class that is defined as follows (the "New Jersey Class"):

All persons and entities who purchased contact lenses contact lenses from 1-

800 Contacts in the State of New Jersey at any time between January 1, 2004,

and the present.

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16. Plaintiff Robert Weinstein also pursues his claims under Texas Business and

Commerce Code 17.46 and Tex. Business and Commerce Code 15.05 on behalf of a class

that is defined as follows (the "Texas Class"):


the State of Texas, at any time between January 1, 2004, and the present.

17. Plaintiff Pinto also pursues her claims under California Civil Code 1750 et seq.

on behalf of a class that is defines as follows (the "California Class"):


the State of California, at any time between January 1, 2004, and the present.

18. The definitions of the Federal Class, the Pennsylvania Class, the New York Class,

the New Jersey Class, and the Texas Class (collectively, the "Classes") specifically exclude the

following persons or entities:

a. The Defendant;

b. Any of the Defendant's co-conspirators;

c. Any of the Defendant's parent companies, subsidiaries, or affiliates;

d. Any of Defendant's officers, directors, management, or employees;

e. All governmental entities; and

f. The Judges and chambers staff in this case, as well as any members of their

immediate families.

19. Plaintiffs do not know the exact number of members of the Classes because such

information is in Defendant's exclusive control. Plaintiffs are informed and believe that, due to

the nature of the trade and commerce involved, there are hundreds-of-thousands of Class

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members, if not more, geographically dispersed throughout Pennsylvania, the United States, and

elsewhere, such that joinder of all Class members in the prosecution is impracticable.

20. Members of the Classes can be ascertained from 1-800 Contacts' own records.

21. Plaintiffs' claims are typical of the claims of fellow members of the Classes

because Plaintiffs directly purchased contact lenses from 1-800 Contacts, Plaintiffs and all

members of each class were damaged by the same wrongful conduct, and the relief sought herein

is common to all members of each class.

22. Numerous questions of law or fact common to the Classes including but not

limited to those identified below arise from the anticompetitive and unlawful conduct alleged

herein:

a. Whether 1-800 Contacts entered into No-Bidding Agreements;

b. Whether the No-Bidding Agreements resulted in search engine companies

not displaying to Plaintiffs and the Classes advertisements that were

responsive to the user's search;

c. Whether the No-Bidding Agreements deprived Plaintiffs and the Classes of

truthful and non-misleading information about the prices, products, and

services offered by 1-800 Contacts' competitors in the market for online

sales of contact lenses;

d. Whether the No-Bidding Agreements limited price and service competition

among online sellers of contact lenses;

e. Whether the No-Bidding Agreements caused Plaintiffs and the Classes to

pay higher prices for contact lenses than they would have paid absent the

agreements, acts, and practices of 1-800 Contacts;

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f. Whether 1-800 Contacts violated Section 1 of the Sherman Act, 15 U.S.C.

1;

g. Whether 1-800 Contacts violated the Pennsylvania Unfair Trade Practices

and Consumer Protection Law, 73 P.S. 201-1 et seq.;

h. Whether 1-800 Contacts violated N.Y.G.B.L. 349;

i. Whether 1-800 Contacts violated N.J. Stat. 56:8-2;

j. Whether 1-800 Contacts violated Texas Bus. & Com. Code 17.46;

k. Whether 1-800 Contacts violated Texas Bus. & Com. Code 15.05;

1. Whether 1-800 Contacts violated Cal. Civil Code 1750;

m. Whether 1-800 Contacts violated Cal. Bus. & Prof. Code 17200; and

n. Whether 1-800 Contacts violated Cal. Bus. & Prof. Code 17500 et seq.

23. These and other questions of law and fact that are common to the Classes

predominate over any questions affecting members of the Classes individually.

24. Plaintiffs will fairly and adequately represent the interests of the Classes because

each of them purchased contacts from 1-800 Contacts and they have no conflicts with any other

members of the Class. Furthermore, Plaintiffs have retained sophisticated and competent

counsel who is experienced in prosecuting antitrust class actions and other complex litigation.

25. Defendant has acted on grounds generally applicable to the Classes, thereby

making final injunctive relief appropriate with respect to the Classes as a whole.

26. This class action is superior to alternatives, if any, for the fair and efficient

adjudication of this controversy. Prosecution of the claims pleaded herein as a class action will

eliminate the possibility of repetitive litigation. There will be no material difficulty in the

management of this action as a class action.

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27. The prosecution of separate actions by individual members of any of the Classes

would create the risk of inconsistent or varying adjudications, establishing incompatible

standards of conduct.

TRADE AND COMMERCE

28. During the Class Period, 1-800 Contacts sold contact lenses in the United States

in a continuous and uninterrupted flow of interstate commerce, including through and into this

judicial District.

29. The conduct alleged herein substantially affected interstate trade and commerce in

the United States and caused antitrust injury in the United States to Plaintiffs and members of the

Classes.

FACTUAL ALLEGATIONS

A. Competition For Online Retail Sales Of Contact Lenses

30. Contact lenses are medical devices that the United States Food and Drug

Administration regulates. Contact lenses generally require a customer to obtain a prescription

from an eye-care professional who is licensed under state law, including ophthalmologists,

optometrists, and, at times, opticians. After obtaining a prescription, a user can have any

authorized retailer fill it. In fact, the federal Fairness to Contact Lens Consumer Act, 15 U.S.C.

7601 et seq., prevents eye-care professionals from limiting consumers' ability to purchase

contact lenses from discount retailers that sell at at lower prices.

31. Approximately 49.9 million people use contact lenses in the United States

approximately 12.8% of the population. Annual retail sales of contact lenses in the United States

total slightly more than $4 billion. In 2012, approximately 16.7% of all retail contact lens sales

occurred on-line, and that percentage has increased over the past four years.

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32. With respect to online sales of contact lenses, there are specialized sellers,

distribution channels, logistics, and promotional strategies, and a distinct subset of consumers

who look principally or only to online sellers in order to fill their prescriptions, all of which

makes the market for online sales of contact lenses unique from other channels of contact lens

sales.

33. 1-800 Contacts has long been the largest online seller of contact lenses in the

United States. Indeed, the FTC has recently estimated that 1-800 Contacts sales constitute 50%

of the online retail sales of contact lenses in the United States. The FTC estimates that the

combined share of 1-800 Contacts and the firms with which it executed No-Bidding Agreements

is approximately 80%.

34. 1-800 Contacts was formed in 1995 and was a pioneer in direct-to-consumer sales

of contact lenses, including online sales of contact lenses. However, by the early 2000s, a

number of competing online retailers had emerged, and many of them were expanding rapidly.

Online rivals invested in search advertising and competed directly against 1-800 Contacts. They

often undercut 1-800 Contacts' prices for contact lenses, many by a substantial amount.

35. As early as 2003, 1-800 Contacts recognized that it was losing sales to lower-

priced online competitors, but 1-800 Contacts did not want to lower its prices to compete with

those rivals. To this day, 1-800 Contacts' prices remain higher than the prices of its rivals, but

the No-Bidding Agreements limit competition and therefore permit 1-800 Contacts to continue to

maintain unreasonably-high prices.

B. Online Search Advertising

36. Search engines, such as Google, Bing, and Yahoo, are available to internet users

without charge. The search engines finance their services in part through the sale of search

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advertising, which refers to the paid advertisements that appear, in response to a search query, on

the results page above or adjacent to the actual search results.

37. Search advertising permits advertisers to deliver a targeted message to a user at

the precise moment that the user has expressed an interest in a specific subject. Often, the user is

contemplating making a purchase at that time as well. For example, a seller of contact lenses can

display its advertisement to a user who has entered the search query, "on-line sales of contact

lenses."

38. Search engine users get value from search advertising because the advertisements

permit fast, easy competition by permitting users quickly to navigate among several different

websites that offer comparable products. For example, a user seeking to purchase contact lenses

can benefit from paid advertisements because the advertisements present a range of merchants

offering products from the same manufacturer. The user then can compare price, service, and

other competitive factors that can influence a purchasing decision.

39. Search engine companies sell advertising space on the search engine results page

by means of auctions. Advertisers bid for placements using keywords. A separate and

automated search advertising auction is conducted each time a user enters a query.

40. When purchasing search engine advertisements, an advertiser can specify

particular keywords to which it wants its advertisement to appear in response. In general, the

advertiser specifies whether its ad should appear as a result of (a) a broad match (whenever a

search contains a phrase that is similar to the one that the advertiser has specified), (b) an exact

match of a search term or search phrase that the advertiser has specified, or (c) a search term that

includes a phrase that the advertiser has specified.

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41. Alternatively, the advertiser can permit the search engine company to use its own

algorithms to identify relevant auctions for the advertiser, regardless of the key words in

question.

42. When a consumer enters a query, an algorithm evaluates the relevant bids for the

advertising auction. The winner or winners of the auction will have their advertisements

displayed to the user. If the user clicks on an advertisement and visits the advertiser's website,

then the advertiser pays a fee to the search engine company.

43. Search engine companies determine whether and in what order to place

advertisements using sophisticated algorithms that consider the quality of the advertisement.

"Quality" refers to the search engine's assessment of whether the advertisement will be relevant

and useful to the user. The search engine makes this assessment based on the search engine's

analysis of user feedback, including click-through data, which is incorporated in real time into

the algorithms that determine which advertisements will be shown. As part of that process, the

search engine demotes or eliminates advertisements that prove not to be relevant or useful to

users.

44. Search engine users sometimes search for a trademarked word or phrase such as

"1-800 Contacts." In response, the search engine can provide the user with advertisements for

the trademark-owner's product or for other, related companies. Thus, when a user searches for

"1-800 Contacts" on Google, the advertisements returned in response might be for 1-800

Contacts or for one or more other online retailers of contact lenses.

45. An advertiser can also specify negative keywords for a search engine. Negative

keywords instruct the search engine not to include the company's advertisement in response to a

particular search. For example, a company that sells ice hockey equipment might use "air"

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as a negative keyword to prevent its advertisement from being displayed in response to a query

about "air hockey."

C. The No-Bidding Agreements

46. In or around 2004, 1-800 Contacts began sending cease-and-desist letters to rival

online sellers of contact lenses whose search advertisements appeared in response to user queries

containing the term "1-800 Contacts" (or similar variations). 1-800 Contacts accused its rivals of

infringing its trademarks.

47. 1-800 Contacts claimed that the mere fact that a rival's advertisement appeared on

the results page in response to a query containing "1-800 Contacts" constituted trademark

infringement. 1-800 Contacts threatened to sue its competitors that did not agree to cease

participating in these search advertising auctions.

48. Most often, rivals agreed to 1-800 Contacts' demands in order to avoid prolonged

and costly litigation against a bigger, more well-heeled rival. Only one competitor refused to

settle and proceeded to litigation.

49. 1-800 Contacts' position lacked even the barest hint of merit. Indeed, when one

competitor Lens.com resisted 1-800 Contacts' threats, the U.S. Court of Appeals for the 10th

Circuit rejected 1-800 Contacts' theory of trademark infringement. See 1-800 Contacts, Inc. v.

Lens.com, Inc., 722 F.3d 1229, 1245-49 (10th Cir. 2013).

50. Between 2004 and 2013, 1-800 Contacts entered at least fourteen No-Bidding

Agreements with rival on-line sellers of contact lenses settling 1-800 Contacts' purported

trademark claims by restricting bidding in search advertising auctions.

51. The No-Bidding Agreements go well beyond prohibiting trademark infringement.

They restrain a broad range of truthful, non-misleading, and non-confusing advertising.

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52. All fourteen No-Bidding Agreements bar 1-800 Contacts' competitor from

bidding in a search advertising auction for any of 1-800 Contacts' trademarked terms, such as "1-

800 Contacts" or variations thereof.

53. Thirteen of the 14 No-Bidding Agreements also require 1-800 Contacts'

competitor to employ negative keywords directing the search engines not to display the

competitor's advertisement in response to a search query that includes any of 1-800 Contracts'

trademarked terms (or variations thereof), even if the search engines' algorithms determine that

the advertisement would be relevant and useful to the user. Thus, even if a user enters a query

for "1-800 Contacts cheaper alternatives" or "1-800 Contacts competitors, the user will see

advertisements only for 1-800 Contacts. These agreements are also reciprocal, requiring 1-800

Contacts to employ its competitors' trade names and variations thereof as negative keywords in

its own advertising campaigns.

54. 1-800 Contacts has aggressively policed the No-Bidding Agreements,

complaining to competitors when the company suspects a violation, threatening further litigation,

and demanding compliance.

55. 1-800 Contacts has actively concealed the existence of and the effect of the No-

Bidding Agreements by including confidentiality provisions in the No-Bidding Agreements and

through other actions designed to create the impression that search results returned by search

engines were honest and untained.

D. Anticompetitive Effects Of The Bidding Agreements In Relevant Markets

56. The relevant product market in which to analyze the impact of the No-Bidding

Agreements is the market for the retail sale of contact lenses. In addition, the market for online

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retail sale of contact lenses is a distinct submarket in which to analyze the impact of the No-

Bidding Agreements.

57. Both 1-800 Contacts and its online sales competitors sell contact lenses

nationwide, without any distinction for the buyer's location. The relevant geographic market is

therefore the United States.

58. 1-800 Contacts' conduct had the purpose, capacity, tendency, and effect of

restraining competition unreasonably and injuring consumers, including Plaintiffs and the

Classes, in the following ways, among others:

a. Preventing search engine companies from displaying to users on the

results page the advertisements that are most responsive to a user's search;

b. Impairing the quality of the service provided to consumers such as

Plaintiffs and the Classes by search engine companies, including the results page;

c. Depriving consumers such as Plaintiffs and the Classes of truthful and

non-misleading information about the prices, products, and services offered by 1-800

Contacts' competitors in the market for online sales of contact lenses;

d. Limiting price and service competition among online sellers of contact

lenses;

e. Preventing online sellers of contact lenses from disseminating truthful and

non-confusing information about the availability of, and prices for, their products and

services; and

f. Causing Plaintiffs and the Classes to pay higher prices for contact lenses

than they would pay absent the agreements, acts, and practices of 1-800 Contacts.

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59. As horizontal agreements that restrain price competition and restrain truthful and

non-misleading advertising, the No-Bidding Agreements are per se illegal. Furthermore, the No-

Bidding Agreements are overbroad because they exceed the scope of any property right that 1-

800 Contacts may have had, now or at any time, in its trademarks, and the No-Bidding

Agreements are not reasonably necessary to achieve any procompetitive benefit. Less restrictive

alternatives are available to 1-800 Contacts to safeguard any legitimate interest the company

might have had under trademark law.

60. Significant barriers to entry prevent new competitors that are not subject to No-

Bidding Agreements from entering the market. A new entrant would have to build the

infrastructure necessary, would have to have the resources to purchase the relevant inventory,

and would have to attract substantial consumer attention. These barriers mean that the

possibility of a new entrant does not place any meaningful limit on 1-800 Contacts' ability to

raise its prices. At the same time, the No-Bidding Agreements mean that existing competitors do

also do not place a meaningful limit on 1-800 Contacts ability to raise its prices.

61. Plaintiffs and the Classes have been injured in their business and property in that,

during the Class Period, they paid more for contact lenses than they would have in the absence of

the Defendant's conduct.

E. The FTC's Enforcement Action Against 1-800 Contacts

62. On or about August 11, 2016, the United States Federal Trade Commission

filed an action against 1-800 Contacts alleging that the No-Bidding Agreements violate

Section 5 of the Federal Trade Commission Act. The FTC's action is captioned In the Matter

of1-800 Contacts, Inc., Docket No. 9372 (FTC).

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FIRST CAUSE OF ACTION

RESTRAINT OF TRADE IN VIOLATION OF SHERMAN ACTION 1

(Asserted By All Plaintiffs On Behalf Of The Federal Class)

63. Plaintiffs incorporate by reference each preceding paragraph as though fully set

forth herein.

64. Beginning at least in 2004, the exact date being unknown to Plaintiffs and the

Classes and exclusively within the knowledge of the Defendant, 1-800 Contracts entered into the

No-Bidding Agreements, which constitute continuing agreements to restrain trade and commerce

unreasonably in violation of Section 1 of the Sherman Act (15 U.S.C. 1) by limiting

competition in the market for online sales of contact lenses.

65. As a result of the Defendant's unlawful conduct and acts, retail prices for contact

lenses were higher than they would have been in the absence of such conduct.

66. Defendant's anticompetitive and unlawful conduct is per se illegal.

67. As a result of the Defendant's anticompetitive and unlawful conduct, Plaintiffs

and members of the Federal Class have been injured in their business and property in that they

have paid more for contact lenses than they otherwise would have paid in the absence of

Defendant's conduct.

SECOND CAUSE OF ACTION

VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND

CONSUMER PROTECTION LAW

(Asserted By Plaintiffs Zimmerman and Schulson

On Behalf of The Pennsylvania Class)


forth herein.

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69. Plaintiff Zimmerman and Schulson and each member of the Pennsylvania Class is

a person within the meaning of the Pennsylvania Unfair Trade Practices and Consumer

Protection Law.

70. Plaintiffs Zimmerman and Schulson and each member of the Pennsylvania Class

purchased contact lenses for personal use from 1-800 Contacts.


suffered an ascertainable loss of money or property because each of them paid a price higher

than what it should have been for contact lenses purchased from 1-800 Contacts.

72. Defendant's No-Bidding Agreements deprive consumers of truthful, non-

misleading information about competition in the market for online sales of contact lenses. In

addition, the No-Bidding Agreements cause misleading representations to consumers who search

for 1-800 Contacts that there are no alternatives to 1-800 Contacts in the market.

73. The Defendant's conduct occurred in business or commerce.


justifiably relied on the misleading search results caused by the No-Bidding Agreements

THIRD CAUSE OF ACTION

VIOLATION OF N.Y.G.B.L. 349

(Asserted By Plaintiff Hartman On Behalf Of The New York Class)


forth herein.

76. Defendant's actions are directed, at least in part, at consumers who purchase

contact lenses.

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77. Defendant's actions are misleading in a material way in that they deprive

consumers about information about competitors who can offer lower prices than 1-800 Contacts.

78. Plaintiff Hartman and the New York Class have been injured as a result of


FOURTH CAUSE OF ACTION

VIOLATION OF N.J. STAT. 56:8-2

(Asserted By Plaintiff Abed On Behalf Of The New Jersey Class)

79. Plaintiffs incorporate by reference each preceding paragraph as though fully

set forth herein.

80. Defendant's No-Bidding Agreements constitute unlawful conduct because they

are an unconscionable commercial practice and are the knowing concealment or suppression

of truthful, non-misleading information about competition in the market for online sales of

contact lenses.

81. Plaintiff Abed and the members of the New Jersey Class suffered an

ascertainable loss because they paid more for contacts than they would have but for

Defendant's unlawful conduct.

82. The No-Bidding Agreements permitted 1-800 Contacts to maintain prices

above competitive levels and therefore caused the loss that Plaintiff Abed and the members of

the New Jersey Class suffered.

FIFTH CAUSE OF ACTION

VIOLATION OF TEX. BUS. & COM. CODE 17.46

(Asserted By Plaintiff Weinstein On Behalf Of The Texas Class)


set forth herein.

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84. Plaintiff Weinstein is a consumer of contact lenses that he has purchased from 1-

800 Contacts.

85. 1-800 Contacts engaged in false, misleading, or deceptive acts by entering into the

No-Bidding Agreements. The No-Bidding Agreements deprive consumers of truthful, non-

misleading information about competition in the market for online sales of contact lenses. In

addition, the No-Bidding Agreements cause misleading representations to consumers who search

for 1-800 Contacts that there are no alternatives to 1-800 Contacts in the market.

86. 1-800 Contacts' conduct is a producing cause of the harm that Plaintiff Weinstein

and members of the Texas Class have suffered because it has caused them to pay prices that are

above the market price for on-line purchases of contact lenses.

SIXTH CAUSE OF ACTION

VIOLATION OF TEX. BUS. & COM. CODE 15.05

(Asserted by Plaintiff Weinstein On Behalf Of The Texas Class)


forth herein.

88. Beginning at least in 2004, the exact date being unknown to Plaintiffs and the

Classes and exclusively within the knowledge of the Defendant, 1-800 Contacts entered into the

No-Bidding Agreements, which constitute continuing agreements to restrain trade and commerce

unreasonably in violation of the Texas Free Enterprise and Antitrust Act of 1983 (Tex. Bus. &

Corn. Code 1501 et seq.) by limiting competition in the market •for online sales of contact

lenses.

89. As a result of the Defendant's unlawful conduct and acts, retail prices for contact

lenses were higher than they would have been in the absence of such conduct.

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90. Defendant's anticompetitive and unlawful conduct is per se illegal.

91. As a result of the Defendant's anticompetitive and unlawful conduct, Plaintiffs

and members of the Texas Class have been injured in their business and property in that they

have paid more for contact lenses than they otherwise would have paid in the absence of


SEVENTH CAUSE OF ACTION

VIOLATION OF CALIFORNIA CIVIL CODE 1770

(Asserted By Plaintiff Pinto On Behalf Of The California Class)


set forth herein.

93. Plaintiff Pinto and the members of the California Class are consumers who

purchased contact lenses from 1-800 Contacts for personal, family, or household purposes and

not for resale.

94. Plaintiff Pinto and the members of the California Class are "consumers" within

the meaning of the California Consumer Legal Remedies Act ("CLRA")

95. 1-800 Contacts is a "person" within the meaning of the CLRA.

96. Plaintiff Pinto's and the members of the California Class's purchases of

contact lenses from 1-800 Contacts were "transactions" within the meaning of the CLRA.

97. 1-800 Contacts advertises a low-price guarantee knowing that its competitors

have lower prices but that it has inhibited consumers' ability to discover those lower prices, in

violation. Its conduct constitutes a false or misleading statement of fact concerning the

existence of or amounts of price reductions, in violation of California Civil Code

1770(a)(13).

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98. 1-800 Contacts engaged in this conduct in order to induce consumers such as

Plaintiff Pinto to purchase contacts at supracompetitive prices, and Plaintiff Pinto and member

of the California Class relied to their detriment on these false and misleading representations.

99. Plaintiff Pinto and the members of the California Class have suffered injuries as a

proximate result of 1-800 Contacts' conduct.

EIGHTH CAUSE OF ACTION

VIOLATION OF CALIFORNIA BUS. & PROF. CODE 17500



forth herein.

101. 1-800 Contacts has disseminated or caused to be made or disseminated before the

public in California in through an advertising device, including the internet, which is untrue or

misleading, including, inter alia, its failure to disclose the No-Bidding Agreements and its

assertions that it charges competitive prices, rather than supracompetitive prices.

102. 1-800 Contacts knew or should have known that its claims were false, deceptive,

and misleading to ordinary consumers.

103. Consumers, including Plaintiff Pinto and the members of the California Class,

relied to their detriment on 1-800 Contacts' false, misleading, and deceptive claims.

NINTH CAUSE OF ACTION

VIOLATION OF CALIFORNIA BUS. & PROF. CODE 17200



forth herein.

22119220687_5


105. 1-800 Contacts has engaged in unfair competition by virtue of unlawful acts in

violation of the Sherman Antitrust Act, 15 U.S.C. 1 et seq.

106. 1-800 Contacts has engaged in unfair competition by virtue of one or more

fraudulent and unfair acts by concealing the existence of the No-Bidding Agreements and by its

assertions that it charges competitive prices, rather than supracompetitive prices.

107. Plaintiff Pinto and the members of the California Class relied to their detriment on

1-800 Contacts' fraudulent and unfair acts and have been injured as a result.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that the Court enter judgment on their behalf and on

behalf of the Classes defined herein, by adjudging and decreeing that:

A. This action may proceed as a class action, with Plaintiffs serving as the Class

Representative, and with Plaintiff s counsel as Class Counsel;

B. Defendant has combined and conspired in violation of Section 1 of the Sherman

Act, 15 U.S.C. 1, and that Plaintiffs and the Classes have been injured in their business and

property as a result of Defendant's violations;

C. Plaintiffs and the Classes are entitled to recover damages sustained by them, as

provided by the federal antitrust laws under which relief is sought herein, and that a joint and

several judgment in favor of Plaintiffs and the Classes be entered against Defendant in an

amount subject to proof at trial, which is to be trebled in accordance with Section 4 of the

Clayton Act, 15 U.S.C. 15;

D. Defendant has violated the Pennsylvania Unfair Trade Practices and Consumer

Protection Law, N.Y.G.B.L. 349, N.J. Stat. 58:8-2, Tex. Bus. & Com. Code 17.46, Tex.

23119220687_5


Bus. & Corn. Code 15.05, and Cal. Civil Code 1750, and Cal. Bus. & Prof. Code. 17200

and 17500 et seq.;

E. Plaintiffs and the Classes are entitled to pre-judgment and post-judgment interest

on the damages awarded them, and that such interest be awarded at the highest legal rate from

and after the date this class action complaint is first served on Defendant;

F. Plaintiffs and the Classes are entitled to equitable relief appropriate to remedy

Defendant's past and ongoing restraint of trade, including:

G. A judicial determination declaring the rights of Plaintiffs and the Classes and the

corresponding responsibilities of the Defendant;

H. Issuance of a permanent injunction against Defendant and its parents, subsidiaries,

affiliates, successors, transferees, assignees, and the respective officers, directors, partners,

agents, and employees thereof and all other persons acting or claiming to act on their behalf from

continuing and maintaining the conspiracy or agreements alleged herein;

I. Defendant is to be responsible financially for the costs and expenses of a Court-

approved notice program through post and media designed to give immediate notification to the

Class;

J. Plaintiffs and the Classes recover their costs of this suit, including reasonable

attorneys' fees as provided by law; and

K. Plaintiffs and the Classes receive such other or further relief as may be just and

proper.

24I 19220687_5


JURY DEMAND

Pursuant to Fed. R. Civ. P. 38(b), Plaintiffs demand a trial by jury of all claims asserted

in this Complaint so triable.

Respect ully sibmitted,

Josh !a D. WolsonPA ID No. 84998

Jerry R. DeSideratoPA ID No. 201097DILWORTH PAXSON LLP1500 Market St., Suite 3500E

Philadelphia, PA 19102

[email protected]@dilworthlaw.comTel: (215) 575-7000 (telephone)

Dated: December 13, 2016 Attorneysfor Plaintiffs

251192206875

CONTRACT

FOR OFFICE USE ONLY

TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

tf

Case 2:16-cv-06417-AB Document 1-1 Filed 12/13/16 Page 1 of 2

JS 44 (Rev. 07/16) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as

provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the

purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORIvI)

1 PLAINTIFFS DEFENDANTSIraclor zimmerman, 6ara Hartman, lysha Abed, Robert Weinstein, Jill

Schulson, and Leia Pinto 1-800 Contacts, Inc.

(b) County of Residence of First Listed Plaintiff Philadelphia County County of Residence of First Listed Defendant Salt Lake County(EXCEPT IN US. PLAINTIFF CASES) (IN US. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

Attorneys (IfKnown)JoVit kbo.rvircksigolc 1,,,,me,jelrvskftgeialgroumber)Dilworth Paxson, LLP, 1500 Market Street, Suite 3500E

Philadelphia, PA 19102; (215) 575-7000

II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

O 1 U.S. Government 0 3 Federal Question PTF DEF PTF DEF

Plaintiff (US. Government Not a Party) Citizen of This State 0 I 0 I Incorporated or Principal Place 0 4 0 4of Business In This State

0 2 U.S. Government 0 4 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5Defendant (Indicate Citizenship ofParties in Item III) of Business In Another State

Citizen or Subject ofa 0 3 0 3 Foreign Nation 0 6 0 6

IV. NATURE OF SUIT (Place an "X" in One Box Only)

O 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act

O 120 Marine 0 310 Airplane 0 365 Personal Injury of Property 21 USC 881 0 423 Withdrawal 0 376 Qui Tam (31 USC

O 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 3729(a))O 140 Negotiable Instrument Liability 0 367 Health Care/ 0 400 State ReapportionmentO 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 0 820 Copyrights 0 430 Banks and BankingO 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 450 CommerceO 152 Recover), of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark 0 460 Deportation

Student Loans 0 340 Marine Injmy Product 0 470 Racketeer Influenced and

(Excludes Veterans) 0 345 Marine Product Liability A 6I.6. 11 Corrupt OrganizationsO 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HIA (1395f0 0 480 Consumer Credit

of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) 0 490 Cable/Sat TV

O 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management 0 863 DIWC/DIWW (405(g)) 0 850 Securities/Commodities/O 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI ExchangeO 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 0 890 Other Statutory Actions

O 196 Franchise Injury 0 385 Property Damage 0 751 Family and Medical 0 891 Agricultural Acts

0 362 Personal Injury Product Liability Leave Act 0 893 Environmental MattersMedical Malpractice 0 790 Other Labor Litigation 0 895 Freedom of Infonnation

I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 791 Employee Retirement FEDERAL TAX SUITS Act

O 210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff 0 896 Arbitration

O 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant) 0 899 Administrative Procedure

0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 871 IRS—Third Party Act/Review or Appeal of0 240 Torts to Land 0 443 Housing/ Sentence 26 USC 7609 Agency Decision0 245 Tort Product Liability Accommodations 0 530 General 0 950 Constitutionality of0 290 All Other Real Property 0 445 Amer. w/Disabilities 0 535 Death Penalty IMMIGRATION State Statutes

Employment Other: 0 462 Naturalization Application0 446 Amer. w/Disabilities 0 540 Mandamus & Other 0 465 Other Immigration

Other 0 550 Civil Rights Actions0 448 Education 0 555 Prison Condition

0 560 Civil DetaineeConditions ofConfinement

V. ORIGIN (Place an "X" in One Box Only)X1 Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict 0 8 Multidistrict

Proceeding State Court Appellate Court Reopened Another District Litigation Litigation(specify) Transfer Direct File

Cite the U.S. Civil Statute under which you are filing (Do not citejurisdictional statutes unless diversity):15 U.S.C. Sections 1 and 15

VI. CAUSE OF ACTION Brief description of cause:

Anti-Trust

VII. REQUESTED IN rig CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only if demanded in complaint:COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: XYes 0 No

VIII. RELATED CASE(S)IF ANY (See instructions):

yuDGE ANITA B. BRODY DOCKET NUMBER 2:16-cv-05726-AB

DATE SIGNATURE OF ATTORNEY OF REkla V12/13/2016 Joshua D. Wolson

RECEIPT 6 AMOUNT APPLYING IFP I JUDGE MAG. JUDGE


JS 44 Revel se (Rev. 07/16)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as

required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is

required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of

Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) ofplaintiff and defendant. If the plaintiff or defendant is a government agency, use

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency andthen the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the

time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In landcondemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an

in one of the boxes. If there is more than one basis ofjurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendmentto the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes

precedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens ofdifferent states. When Box 4 is checked, the

citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, issufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more thanone nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filingdate.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or

multidistrict litigation transfers.Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.Section 1407.Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to

changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictionalstatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket

numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA DESIGNATION FORM to be used by counsel to indicate the category of the case for the purpose of

assignment to appropriate calendar.

Address of Plaintiff: Taylor Zimmerman, 22301 Delaire Landing Road, Philadelphia, PA 19114

1-800 Contacts, 66 E. Wadsworth Park Drive, Draper, UT 84020Address of Defendant:

Place of Accident, Incident or Transaction: Philadelphia, PA(Use Reverse Side For Additional Space)

Does this civil action involves nongovernmental corporate party with any parent corporation and any publicly held corporation owning 10% or more of its stock?

(Attach two copies of the Disclosure Statement Form in accordance with Fed.R.Civ.P, 7.1(a)) Yes [X No

Does this case involve multidistrict litigation possibilities? YesX No D

RELATED CASE, IF ANY:

Case Number: 2:16-cv-05726-AB Judge Anita B. Brody Date Terminated:

Civil cases are deemed related when yes is answered to any of the following questions:

1. Is this case related to property included in an earlier numbered suit pending or within one year previously terminated action in this court?

Yes [2:f No02. Does this case involve the same issue of fact or grow out of the same transaction as a prior suit pending or within one year previously terminated

action in this court?

YesX:1 No03. Does this case involve the validity or infringement of a patent already in suit or any earlier numbered case pending or within one year previously

terminated action in this court? Yes0 NoN

4. Is this case a second or successive habeas corpus, social security appeal, or pro se civil rights case filed by the same individual?

Yesp No

CIVIL: (Place I/ in ONE CATEGORY ONLY)A. Federal Question Cases: B. Diversity Jurisdiction Cases:

1. 0 Indemnity Contract, Marine Contract, and All Other Contracts 1. 0 Insurance Contract and Other Contracts

2. 0 FELA 2. 0 Airplane Personal Injury3. 0 Jones Act-Personal Injury 3. 0 Assault, Defamation

4. EX Antitrust 4. 0 Marine Personal Injury5. 0 Patent 5. 0 Motor Vehicle Personal Injury6. 0 Labor-Management Relations 6. 0 Other Personal Injury (Please specify)7. 0 Civil Rights 7. 0 Products Liability8. 0 Habeas Corpus 8. 0 Products Liability Asbestos

9. 0 Securities Act(s) Cases 9. 0 All other Diversity Cases

10. 0 Social Security Review Cases (Please specify)

11. 0 All other Federal Question Cases

(Please specify)

ARBITRATION CERTIFICATION(Check Appropriate Category)

I, Jo ua D. Wolson,counsel of record do hereby certify:Pursuant to Local Civil Rule 53.2, Section 3(c)(2),1that to the best o my knowledge and belief, the damages recoverable in this civil action case exceed the sum of

$150,000.00 exclusive of interest and costs;0 Relief other than monetary damages is sought

DATE: 12/13/2016 I A. 84998

Attorney-at-Law Attorney I.D.#

NOTE: A trial d: 'novo will be a trial by jury only if there has been compliance with F.R.C.P. 38.

I certify that, to my knowledge, the within case is not r lated t any case now pending or within one year previously terminated action in this court

except as noted above.

DATE: 12/13/201684998tornev-at-LawiL Attorney I.D.#

CIV. 609 (5/2012)


IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

CASE MANAGEMENT TRACK DESIGNATION FORM

Taylor Zimmerman, Sara Hartman, lysha Abed, CIVIL ACTIONRobert Weinstein, Jill Schulson, and Leia Pinto

V.

1-800 Contacts, Inc. NO.

In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel forplaintiff shall complete a Case Management Track Designation Form in all civil cases at the time offiling the complaint and serve a copy on all defendants. (See 1:03 ofthe plan set forth on the reverse

side of this form.) In the event that a defendant does not agree with the plaintiff regarding saiddesignation, that defendant shall, with its first appearance, submit to the clerk of court and serve on

the plaintiff and all other parties, a Case Management Track Designation Form specifying the trackto which that defendant believes the case should be assigned.

SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:

(a) Habeas Corpus Cases brought under 28 U.S.C. 2241 through 2255.

(b) Social Security Cases requesting review of a decision of the Secretary ofHealthand Human Services denying plaintiff Social Security Benefits.

(c) Arbitration Cases required to be designated for arbitration under Local Civil Rule 53.2.

(d) Asbestos Cases involving claims for personal injury or property damage fromexposure to asbestos.

(e) Special Management Cases that do not fall into tracks (a) through (d) that are

commonly referred to as complex and that need special or intense management bythe court. (See reverse side of this form for a detailed explanation of specialmanagement cases.)

(f) Standard Management Cases that do not fall into any one of the other tracks.

December 13, 2016 (11/1 Joshua D. Wolson

Date ttorney-a Attorney for Plaintiffs

(215) 575-7000 (215) 575-7200 [email protected]

Telephone FAX Number E-Mail Address

(Civ. 660) 10/02


Civil Justice Expense and Delay Reduction PlanSection 1:03 Assignment to a Management Track

(a) The clerk of court will assign cases to tracks (a) through (d) based on the initial pleading.

(b) In all cases not appropriate for assignment by the clerk of court to tracks (a) through (d), the

plaintiff shall submit to the clerk of court and serve with the complaint on all defendants a case managementtrack designation form specifying that the plaintiff believes the case requires Standard Management or

Special Management. In the event that a defendant does not agree with the plaintiff regarding said

designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on the

plaintiff and all other parties, a case management track designation form specifying the track to which thatdefendant believes the case should be assigned.

(c) The court may, on its own initiative or upon the request of any party, change the trackassignment of any case at any time.

(d) Nothing in this Plan is intended to abrogate or limit a judicial officer's authority in any case

pending before that judicial officer, to direct pretrial and trial proceedings that are more stringent than thoseof the Plan and that are designed to accomplish cost and delay reduction.

(e) Nothing in this Plan is intended to supersede Local Civil Rules 40.1 and 72.1, or theprocedure for random assignment of Habeas Corpus and Social Security cases referred to magistrate judgesof the court.

SPECIAL MANAGEMENT CASE ASSIGNMENTS(See §1.02 (e) Management Track Definitions of the

Civil Justice Expense and Delay Reduction Plan)

Special Management cases will usually include that class of cases commonly referred to as "complexlitigation" as that term has been used in the Manuals for Complex Litigation. The first manual was preparedin 1969 and the Manual for Complex Litigation Second, MCL 2d was prepared in 1985. This term isintended to include cases that present unusual problems and require extraordinary treatment. See §0.1 of thefirst manual. Cases may require special or intense management by the court due to one or more of thefollowing factors: (1) large number of parties; (2) large number of claims or defenses; (3) complex factualissues; (4) large volume of evidence; (5) problems locating or preserving evidence; (6) extensive discovery;(7) exceptionally long time needed to prepare for disposition; (8) decision needed within an exceptionallyshort time; and (9) need to decide preliminary issues before final disposition. It may include two or more

related cases. Complex litigation typically includes such cases as antitrust cases; cases involving a largenumber of parties or an unincorporated association of large membership; cases involving requests forinjunctive relief affecting the operation of large business entities; patent cases; copyright and trademarkcases; common disaster cases such as those arising from aircraft crashes or marine disasters; actions broughtby individual stockholders; stockholder's derivative and stockholder's representative actions; class actions or

potential class actions; and other civil (and criminal) cases involving unusual multiplicity or complexity offactual issues. See §0.22 of the first Manual for Complex Litigation and Manual for Complex LitigationSecond, Chapter 33.

ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: 1-800 Contacts Sued Again Over Alleged Anti-Competition Conspiracy

https://www.classaction.org/news/1800-contacts-sued-again-over-alleged-anticompetition-conspiracy

case 2:16-cv-06417-ab document 1 filed 12/13/16 page 1 25 · case 2:16-cv-06417-ab document 1 filed...

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