In re Disposable Contact Lens Antitrust Litigation

109 F. Supp. 3d 1369, 2015 U.S. Dist. LEXIS 76165, 2015 WL 3654649

• Court: United States Judicial Panel on Multidistrict Litigation
• Decided: June 8, 2015
• Docket: MDL No. 2626
• Status: Published

Opinion

TRANSFER ORDER

SARAH S. VANCE, Chair.

Before the Panel:

* Plaintiffs in a Northern District of California action (Miller) and a Southern District of Florida (Cesare) move under 28 U.S.C. § 1407 to centralize pretrial proceedings in the Northern District of California or the Southern District of Florida, respectively. These actions are listed on the attached Schedule A. At oral argument, the Miller movants announced that they alternatively support centralization in the Middle District of Florida. These cases concern defendants’ alleged anticompetitive conduct aimed at fixing, raising, maintaining and/or stabilizing the prices at which disposable contact lenses are sold in the United States. At issue in all actions are defendants’ pricing policies that allegedly prevented resale of the subject contact lenses below a minimum price. Since plaintiffs filed this motion, the parties have notified the Panel of 43 potentially related actions filed in various districts.

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No party opposes centralization. Defendant Alcon Laboratories, Inc. supports centralization in the Southern District of Florida or, alternatively, the Northern - Texas. Plaintiff Costco Wholesale Corp. (Costco) and defendants ABB Optical Group (ABB), Bausch & Lomb, CooperVision, Inc., and Johnson & Johnson Vision Care, Inc. (J & J) support centralization in the Northern District of California. Responding plaintiffs variously propose centralization in the Northern District of California, the Middle or Southern Districts of Florida, the District of New Jersey, the Eastern District of Louisiana and the Eastern District of Tennessee.

After considering the argument of counsel, we find that the actions in this litigation involve common questions of fact, and that centralization in the Middle District of Florida will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Plaintiffs are purchasers of contact lenses and the retailer Costco, which sells contact lenses at its warehouses. The purchaser plaintiffs allege that manufacturers of contact lenses conspired with each other and with defendant ABB, a wholesaler that is purportedly the largest distributor of contact lenses, as well as with independent eye care professionals represented by ABB and their trade association, the American Optometric Association, to impose minimum resale prices on certain contact lens lines. Plaintiffs allege that the manufacturing defendants commenced their minimum resale price maintenance scheme in June 2013, and that the scheme eliminated price competition on certain contact lens lines. Centralization will prevent duplicative discovery and inconsistent pretrial rulings (including on issues of class certification), and conserve the resources of the parties, their counsel and the judiciary.

The parties disagree about whether the Northern District of California Costco action should be included in the centralized proceedings. Plaintiffs generally support-including Costco in the centralized proceedings. Costco suggests centralization of the action is appropriate but prefers coordination instead of consolidation with the putative class actions. Defendants oppose including Costco in the MDL proceedings, largely because Costco is a single retailer action against only one manufacturer, and because Costco has been made a defendant in some of the later filed actions. While Costco is somewhat different from the other actions, given its single manufacturer focus and that Costco is also a defendant in some actions, we are of the opinion that the action shares sufficient questions of fact regarding the imposition of pricing restraints on contact lenses to merit inclusion in this MDL. Coordination of Costco with the other actions may be preferable to consolidation, but Section 1407 contemplates transfer for “coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). Accordingly, we leave the question of determining the extent of any coordination or consolidation to the discretion of the transferee judge. See, e.g., In re: Pfizer Inc. Sec., Deriv. & “ERISA” Litig., 374 F.Supp.2d 1348, 1349-50 (J.P.M.L.2005). Further, as defendants conceded at oral argument, Costco’s forum selection clause does not affect our authority to transfer Costco to. the Middle District of Florida. See, e.g., In re: Medical Resources Securities Litigation, 1998 U.S. Dist. LEXIS 15832, at *3 (J.P.M.L. Oct. 7, 1998).

While this litigation could be centralized in any number of the suggested transferee districts, we are persuaded that the Middle District of Florida is an appropriate transferee district for this litigation. Two defendants have a significant presence in Florida, with defendant J & J based in Jacksonville, and defendant ABB based, in Coral Springs, which is located in the Southern District of Florida. Judge Harvey E. Schlesinger presides over a potential tag-along action pending in the Middle District of Florida. By selecting Judge Schlesinger to serve as the transferee judge, we have chosen a jurist who is familiar with the contact lens industry by virtue of his experience presiding over a previous MDL involving allegations of anticompetitve conduct in that industry. See, e.g., MDL No. 1030—In re: Disposable Contact Lens Antitrust Litig., 170 F.R.D. 524, 527 (M.D.Fla.1996) (alleging that the contact lens manufacturers and two eye care practitioner trade associations “conspired among themselves ... to restrict the supply of replacement contact lenses to alternative channels of distribution”).

IT IS THEREFORE ORDERED that the actions listed on Schedule A are transferred to the Middle District of Florida and, with the consent of that court, assigned to the Honorable Harvey E. Schlesinger for coordinated or consolidated pretrial proceedings.

SCHEDULE A

MDL No. 2626 — IN RE: DISPOSABLE CONTACT LENS ANTITRUST LITIGATION

Northern District of California

COSTCO WHOLESALE CORPORATION v. JOHNSON & JOHNSON VISION CARE, INC., C.A. No. 3:15-00941

MACHIKAWA, ET AL. v. COOPER VISION, INC., ET AL., C.A. No. 3:15-01001

MILLER, ET AL. v. ALCON LABORATORIES, INC., ET AL., C.A. No. 3:15-01028

FERNANDES v. ALCON LABORATORIES, INC., ET AL., C.A. No. 3:15-01045

MANGUM v. COOPERVISION, INC., ET AL., C.A. No. 5:15-01064

Southern District of Florida

CESARE v. COOPERVISION, INC., ET AL., C.A. No. 0:15-60466

District of Kansas

GRAY, ET AL. v. ALCON LABORATORIES, INC., ET AL., C.A. No. 2:15-02642

Certain Panel members who could be members of the putative classes in this docket have renounced their participation in these classes and have participated in the decision.

1 . These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h), 7.1 and 7.2.