United States District Court, District of Columbia
DANIEL J. BARTOLUCCI and EDWARD UNGVARSKY, On behalf of themselves and all others similarly situated, Plaintiffs,
1-800 CONTACTS, INC., Defendant. ELIZABETH HENRY, On behalf of herself and all others similarly situated, Plaintiff,
1-800 CONTACTS, INC., et al. Defendants.
MEMORANDUM OPINION AND ORDER
BERMAN JACKSON, United States District Judge
Daniel Bartolucci and Edward Ungvarsky sued defendant 1-800
Contacts, Inc. (“1-800 Contacts”), alleging that
it agreed, and conspired to agree, with other online
retailers selling contact lenses nationwide to restrain trade
in violation of the Sherman Antitrust Act and the District of
Columbia's consumer protection laws. Compl. ¶¶
2, 5 [No. 1:17-cv-00097, Dkt. # 1]
(“Bartolucci Compl.”). Plaintiff
Elizabeth Henry filed a separate lawsuit against 1-800
Contacts, as well as Vision Direct, Inc. (“Vision
Direct”), and fifteen unnamed “John Doe”
co-conspirators, alleging violations of the Sherman Act, and
separate violations of New York state law. Compl.
¶¶ 1, 39 [No. 1:17-cv-00117, Dkt. # 1]
(“Henry Compl.”). Each plaintiff seeks
to represent a nationwide class of similarly-situated
consumers for its federal claims, and a separate sub-class of
similarly-situated consumers for their state law claims.
Bartolucci Compl. ¶¶ 41, 55;
Henry Compl. ¶¶ 70-71.
1-800 Contacts has filed a consolidated motion to transfer
both cases under 28 U.S.C. § 1404(a). It asks the Court
to transfer the cases to the U.S. District Court for the
District of Utah, where 1-800 Contacts is headquartered, and
where two similar cases against the company are already
pending, having already been transferred there from
California. Def. 1-800 Contacts, Inc.'s Mot. to
Transfer Venue to the District of Utah [No. 1:17-cv-00097,
Dkt. # 8] (“Def.'s Mot.”); 1-800
Contacts' Mem. of P. & A. in Supp. of Def.'s Mot.
at 3-4 [No. 1:17-cv-00097, Dkt. # 8-1] (“Def's.
Mem.”). Plaintiffs filed a joint memorandum in
opposition to the motion to transfer, arguing that transfer
is not warranted, and that pretrial consolidation under 28
U.S.C. § 1407, which they have already sought before the
Judicial Panel on Multidistrict Litigation
(“JPML”), is more appropriate. Pls.' Joint
Mem. of P. & A. in Opp. to Def.'s Mot. [No.
1:17-cv-00097, Dkt. # 17] (“Pls.' Opp.”) at
reasons stated below, the Court will grant the motion to
Contacts is a corporation headquartered in Draper, Utah, and
defendant Vision Direct is a corporation headquartered in
Bellevue, Washington. Bartolucci Compl. ¶ 10;
Henry Compl. ¶¶ 20-21. The corporate
defendants engage in the sale of contact lenses over the
internet. Bartolucci Compl. ¶¶ 2, 4;
Henry Compl. ¶ 1. The lawsuits are nationwide
class actions alleging that 1-800 Contacts entered into
agreements with its competitors to resolve actual or
threatened trademark litigation, and that these agreements,
which are alleged to be in restraint of trade in violation of
the Sherman Act and state law, result in higher prices for
lawsuits pending before the Court are two of seven similar
antitrust actions that have been filed against defendant
1-800 Contacts and several of its competitors arising out of
the same set of facts and circumstances. The following
four lawsuits were filed before the instant actions were
filed in this Court:
• Stillings v. 1-800 Contacts, Inc., No.
2:16-cv-01257 (D. Utah) was filed in the Northern District of
California on September 21, 2016, and transferred to the
District of Utah on December 8, 2016. Plaintiff is a resident
of Contra Costa County, California, who seeks to represent a
nationwide class of consumers that was allegedly overcharged
for the contact lenses sold by 1-800 Contacts, in violation
of the Section 1 of the Sherman Act.
• Thompson, et al. v. 1-800 Contacts, Inc., et
al, No. 2:16-cv-01183 (D. Utah) was filed in the
Southern District of California on October 13, 2016, and
transferred to the District of Utah on November 21, 2016.
Plaintiffs, both residents of California, filed suit against
1-800 Contacts, Vision Direct, and fifteen unnamed
co-conspirators under Section 1 of the Sherman Act and under
California state law. They seek to represent a nationwide
class for their federal antitrust claims, and a separate
sub-class of consumers in California for their state law
• Bean v. 1-800 Contacts, Inc., No.
2:16-cv-05726 (E.D. Pa.) was filed on November 2, 2016.
Plaintiff, a resident of Pennsylvania, seeks to represent a
nationwide class of consumers for her claims under Sections 1
and 2 of the Sherman Act, and a separate sub-class of
consumers in Pennsylvania for her state law claims.
• Zimmerman, et al. v. 1-800 Contacts, Inc.,
No. 2:16-cv-06417 (E.D. Pa.) was filed on December 13, 2016.
Plaintiffs, residents of Pennsylvania, New York, New Jersey,
Texas, and California, seek to represent a nationwide class
of consumers for their claims under Section 1 of the Sherman
Act, and each plaintiff also seeks to represent a separate
sub-class of consumers in their respective home states for
violations of those states' laws.
lawsuits filed in this district largely mirror the actions
that were pending when they were filed.
• The Bartolucci complaint was filed on January
13, 2017. Bartolucci Compl. Plaintiffs are residents
of Washington, D.C. who purchased contact lenses from 1-800
Contacts through its website at allegedly anticompetitive
prices. Id. ¶¶ 8-9. They filed suit
against 1-800 Contacts alleging violations of Section 1 of
the Sherman Act, 15 U.S.C. § 1, and violations of the
District of Columbia Consumer Protections Procedures Act,
D.C. Code § 28-3901, et seq. Id. ¶¶
87-105. Plaintiffs seek to represent a nationwide class of
consumers for their federal antitrust claims, and a separate
sub-class of consumers in the District of Columbia for their
D.C. law claims. Id. ¶¶ 2, 5-9.
• On January 18, 2017, plaintiff Henry, a resident of
New York, filed suit in this Court against 1-800 Contacts,
Vision Direct, and fifteen unnamed coconspirators under
Sections 1, 2, and 3 of the Sherman Act, and under New York
General Business Law, N.Y. Gen. Bus. Law § 349(a).
Henry Compl. ¶¶ 1, 10-28. Plaintiff Henry
also seeks to represent a nationwide class of consumers for
her federal antitrust claims, in addition to a separate
sub-class of similarly-situated consumers in the state of New
York for her state law claim. Id. ¶¶
more case was filed after the two cases were filed here:
• Nance v. 1-800 Contacts, Inc., No.
4:17-cv-00178 (E.D. Ark.) was filed on March 22, 2017.
Plaintiff, a resident of Arkansas, seeks to represent a
nationwide class for his claim under Section 1 of the Sherman
Act, and a separate sub-class of consumers in Arkansas for
his state law claim.
allege that 1-800 Contacts was facing growing competition
from other online retailers of contact lenses and asserted
its trademark rights over phrases such as “1-800
Contacts.” Bartolucci Compl. ¶¶ 3,
18-20; Henry Compl. ¶¶ 6-7. This effort
began in 2004 with cease-and-desist letters, followed by
lawsuits filed against competitors aimed at preventing them
from advertising their products in response to queries on
popular search engines such as Google and Bing.
Bartolucci Compl. ¶¶ 18-20; Henry
Compl. ¶¶ 6-7. Plaintiffs allege that 1-800
Contacts settled “baseless” trademark lawsuits it
had filed against its competitors, and that those settlements
amounted to “unlawful agreements under which [the
competitors] agreed not to place bids for online advertising
that would run in response to specified internet search
queries, including any search containing the term
‘1-800 Contacts.'” Bartolucci Compl.
¶ 5; see Henry Compl. ¶ 5. All of the
lawsuits in question were filed in the District of Utah, and
only one of the defendants litigated the matter to
judgment; the rest settled. See Bartolucci
Compl. ¶ 18; Henry Compl. ¶ 7; Def.'s
Mem. at 13.
allege that when 1-800 Contacts and its competitors settled
those disputes, and the competitors agreed to refrain from
advertising their products in response to search queries
containing terms such as “1-800 Contacts, ” they
also agreed to set up a system of “negative
keywords.” Bartolucci Compl. ¶¶ 3,
18-20; Henry Compl. ¶ 7. These would direct
particular search engines not to display the competitors'
products when a potential customer initiated such a search
query, even when that query would otherwise have produced
results directing potential customers to the competitors'
webpages. Bartolucci Compl. ¶¶ 18-20;
Henry Compl. ¶ 7. Plaintiffs claim that because
“1-800 Contacts did not want to lower its prices to
compete” with its “lower priced online
competitors, ” it created a scheme that
“artificially fixed, raised, maintained and/or
stabilized the prices for contact lenses” by
manipulating the placement of online advertisements.
Henry Compl. ¶¶ 85, 110;
Bartolucci Compl. ¶¶ 16, 88. And they
claim that these agreements reduced competition in the
market. See Bartolucci Compl. ¶ 35;
Henry Compl. ¶¶ 39- 40.
after the plaintiffs in the Bartolucci matter filed
their lawsuit, they asked the Judicial Panel for
Multidistrict Litigation to consolidate all of the pending
cases in the District of Columbia under 28 U.S.C. §
1407. In re: 1-800 Contacts Antitrust Litig., MDL
Case No. 2770, Dkt. # 1 (J.P.M.L. Jan. 24, 2017). The other
named plaintiffs voiced their support for the motion for
pretrial consolidation on February 15, 2017. See In re:
1-800 Contacts Antitrust Litig., MDL Case No. 2770, Dkt.
## 20, 21, 23, 24 (J.P.M.L. Feb. 15, 2017) (filings in
support of pretrial consolidation by plaintiffs Stillings,
Thompson, Zimmerman, Bean, and Henry).
January 31, 2017, defendant 1-800 Contacts moved under 28
U.S.C. § 1404(a) to transfer the Bartolucci and
Henry actions to the District of Utah. Def.'s Mot.
Plaintiffs jointly opposed the motion to transfer, Pls.'
Opp., and defendant filed a reply in support of its motion on
March 6, 2017. 1-800 Contacts' Reply in Supp. of
Def.'s Mot. [No. 1:17-cv-00097, Dkt. # 19]
(“Def.'s Reply”); Def.'s Reply [No.
1:17-cv-00117, Dkt. # 20].
the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought . . . .” 28 U.S.C. § 1404(a). The Court
has “broad discretion” to transfer a case under
section 1404. In re Scott, 709 F.2d 717, 719 (D.C.
Cir. 1983). The defendant, as the moving party, bears the
burden of establishing that transfer is proper. Greater
Yellowstone Coal. v. Bosworth, 180 F.Supp.2d 124, 127
(D.D.C. 2001). The decision to transfer requires an
“individualized, case-by-case consideration of
convenience and fairness.” Van Dusen v.
Barrack, 376 U.S. 612, 622 (1964).
is not deprived of its discretion to transfer cases during
the pendency of a section 1407 motion for pretrial
consolidation. See J.P.M.L. Rule 2.1(d) (“The
pendency of a motion . . . before the Panel pursuant to 28
U.S.C. § 1407 does not affect or suspend orders and
pretrial proceedings in any pending federal district court
action and does not limit the pretrial jurisdiction of that
court.”). Indeed, the JPML itself has noted that
“where a reasonable prospect exists that resolution of
Section 1404 motions could eliminate the multidistrict
character of a litigation, transfer under Section 1404 is
preferable to centralization.” In re: Gerber
Probiotic Prod. Mktg. & Sales Practices Litig., 899
F.Supp.2d 1378, 1380 (J.P.M.L. 2012).
threshold question under section 1404(a) is whether the
action “might have been brought” in the
transferee district. 28 U.S.C. § 1404(a). This
limitation imposes two prerequisites to transferability: (1)
“venue must be proper in the transferee
district;” and (2) “the defendants must be
subject to the process of the federal court in the transferee
district at the time the action was originally filed.”
Relf v. Gasch, 511 F.2d 804, 806-07 (D.C. Cir.
in a civil case is proper in:
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b). The statute further provides that a
corporate defendant is deemed to reside “in any
judicial district in which such defendant is subject to the
court's personal jurisdiction with respect to the civil
action in question.” 28 U.S.C. § 1391(c)(2). And
under the second prerequisite, “a defendant is subject
to process in the transferee court if the defendant would
have been subject to personal jurisdiction in the transferee
court at the time the suit was brought.” Levin v.
Majestik Surface Corp., 654 F.Supp.2d 12, 15
(D.D.C. 2009), citing Hoffman v. Blaski, 363 U.S.
335, 343-44 (1960).
addition, Section 12 of the Clayton Antitrust Act
specifically provides that “[a]ny suit, action, or
proceeding under the antitrust laws against a corporation may
be brought not only in the judicial district whereof it is an
inhabitant, but also in any district wherein it may be found
or transacts business.” 15 U.S.C. § 22.
threshold requirement of venue has been met, the Court must
then go on to balance case-specific private interest and
public interest factors to determine whether transfer is
appropriate. See Wilderness Soc'y v. Babbitt,