Acuity Optical Laboratories, LLC v. Davis Vision Inc

Filing 50

OPINION entered by Judge Sue E. Myerscough on 8/23/2016. Davis Vision's Motion for Summary Judgment, d/e 27 is GRANTED IN PART AND DENIED IN PART. Davis Vision's Motion for Summary Judgment is GRANTED as to Counts III; IV; V; VI; IX; X; XI and XIV and DENIED with leave to Refile the Motion at the close of discovery as to Counts I; II; VII; VIII; XII and XIII. Acuity's Motion for Partial Summary Judgment, d/e 35 is DENIED. This case is REFERRED to U. S. Magistrate Judge Tom Schanzle-Haskins for a Status Conference on how discovery shall proceed. (MAS, ilcd)

E-FILED

Tuesday, 23 August, 2016 04:35:35 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ACUITY OPTICAL
LABORATORIES, LLC,
Petitioner,
v.
DAVIS VISION, INC.,
Respondent.

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14-cv-03231

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Respondent Davis Vision, Inc.’s Motion for
Summary Judgment (d/e 27) and Petitioner Acuity Optical
Laboratories, LLC’s Motion for Partial Summary Judgment (d/e 35).
Respondent’s Motion is GRANTED IN PART and DENIED IN PART
WITH LEAVE TO REFILE AT THE CLOSE OF DISCOVERY and
Petitioner’s Motion is DENIED. The Court finds that Davis Vision is
entitled to summary judgment on Counts V, VI, and IX, and Acuity
is not entitled to summary judgment on Count I because the
Mandatory Lab Policy is neither a per se unlawful restraint on trade
between Davis Vision and its competitors nor a per se unlawful

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forced group boycott. The Court further finds that Davis Vision is
entitled to summary judgment on Counts III, IV, X, XI, and XIV
because Acuity fails to state a claim upon which relief can be
granted in those counts. The Court further finds that Davis Vision
is not entitled to summary judgment on Counts I, II, VII, VIII, XII,
and XIII, and Acuity is not entitled to summary judgment on Count
II because with further development of the record through
discovery, reasonable issues of material fact may exist as to the
merits of the claims. However, Davis Vision may refile its motion
for summary judgment on these counts once discovery has
concluded.
I.

BACKGROUND

Acuity Optical Laboratories, LLC of Illinois brings this suit
against Davis Vision, Inc. of New York for damages and permanent
injunctive relief. Acuity claims that Davis Vision’s Mandatory Lab
Policy, a requirement that essentially all of Davis Vision’s innetwork providers agree to provide only Davis Vision manufactured
lenses to Davis Vision members constitutes: (1) a per se unlawful
horizontal conspiracy with providers under Section 1 of the
Sherman Antitrust Act and Section 1 of the Illinois Antitrust Act
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(Counts I and VI); (2) a per se unlawful collection of vertical
agreements that, in reality, act as a horizontal forced group boycott
among providers, orchestrated by Davis Vision, under Section 1 of
the Sherman Antitrust Act, Section 3 of the Clayton Act, and
Sections 1 and 4 of the Illinois Antitrust Act (Counts I, V, VI, and
IV); (3) an otherwise unlawful conspiracy under Section 1 of the
Sherman Antitrust Act and Section 2 of the Illinois Antitrust Act
(Counts I and VII); (4) an illegal plan to monopolize under Section 2
of the Sherman Antitrust Act and Section 3 of the Illinois Antitrust
Act (Counts II and VIII); (5) a per se unlawful tying arrangement
under Sections 1 and 2 of the Sherman Antitrust Act (Count III); (6)
an illegally compulsory provision within Davis Vision’s provider
agreement under the Illinois Insurance Code (Count X); (7) an
unreasonable restriction on members’ access to healthcare under
the Illinois Insurance Code (Count XI); (8) tortious interference with
Acuity’s ability to enter into valid business relationships with
providers (Count XII); and (9) an illegal restriction on members’
right to choose where to purchase lenses under the Eyeglass Rule,
16 C.F.R. § 456 (Count XIV). Acuity further claims that Davis
Vision: (1) has engaged in illegal predatory pricing under section 2
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of the Clayton Act (Count IV); and (2) has committed illegal
misrepresentation under the Lanham Act (Count XII).
On August 25, 2015, about four months prior to the close of
fact discovery, Davis Vision filed its motion for summary judgment
(d/e 27). Acuity filed a combined response to Davis Vision’s motion
and Acuity’s own motion for partial summary judgment (d/e 35).
Responses and replies were subsequently filed. The Court heard
oral arguments on the motions on April 11, 2016.
The following is a summary of the facts that the parties agree
are undisputed:
a. The Parties in this Action Are Acuity, a Lens Manufacturer
and Davis Vision, a Vision Benefits Provider.
Acuity Optical Laboratories, LLC is a manufacturer of eyeglass
lenses and other ophthalmic goods (“lens manufacturer”),
headquartered in Normal, Illinois. Day-to-day business operations
of both Acuity and All About Eyes are run by Adam Rosengren.
Initially, Acuity primarily sold eyeglass lenses (“lenses”) only to its
affiliated chain of retail stores, All About Eyes. However, in July
2011, after Acuity’s lab was destroyed by an adjacent building’s
collapse, Acuity invested in new equipment and began selling lenses

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to third-party opticians, optometrists, and retail outlets (together
“providers”). Acuity conducts its third-party lens sales via an
independent department within the company that operates under
the name Identity Optical. Identity Optical is managed by Peter
Kimerling.
Acuity uses only state-of-the-art digital lens manufacturing
technology, also known as “freeform,” to manufacture lenses for the
national market. This technology allows Acuity to manufacture
lenses that are superior to the lenses produced with conventional
lens manufacturing technology. Further, Acuity offers next-day-air
shipping and regularly reduces prices on its lenses to acquire new
business.
As of February 2015, Acuity had approximately 350 open
customer accounts across the entire continental United States,
mostly with optometrists. Also, Acuity’s affiliated retail store, All
About Eyes, has agreements to produce lenses for several vision
benefits companies. The predominant vision benefits plan with
which Acuity does business is EyeMed, as a result of EyeMed’s
coverage of State of Illinois employees and Acuity’s presence in
Illinois.
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Davis Vision is a managed vision care company headquartered
in San Antonio, Texas. Davis Vision is wholly owned by HVHC, Inc.
Davis Vision shares its headquarters with another wholly owned
subsidiary of HVHC called Visionworks. No physical separation
exists between the Davis Vision’s and Visionworks’ headquarters.
Visionworks operates a chain of retail vision care stores. Davis
Vision and Visionworks each own two laboratories that produce
lenses. John Kay, an HVHC employee, supervises all four labs.
Along with sharing office space, Visionworks and Davis Vision also
share information, such as budgeting forecasts and other financial
information.
Davis Vision sells different forms of vision care plans to private
employers, government employers, and other plan sponsors.
Individual members receive Davis Vision’s vision care benefits
through an employer or sponsor. Davis Vision has two types of
members: discount plan members, who receive discounts on eye
exams, glasses, contacts, and other goods; and funded plan
members, who receive insurance coverage for their vision care.
However, Davis Vision derives revenue primarily from the members

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with funded plans, with little to no revenue coming from discount
plan members.
Davis Vision contracts with providers for in-network status in
Davis Vision’s vision plans. Davis Vision members receive benefits
from their vision plans only when they go to these in-network
providers for exams, lenses, and other services. As a result, Davis
Vision funded plan members rarely go to out-of-network providers
for lenses. However, if a funded plan member is prescribed a
specific lens that Davis Vision does not produce, the member can
and must obtain that product from an out-of-network provider, and
the member does not receive any contribution from his or her Davis
Vision plan.
As a part of Davis Vision’s contract with most in-network
providers, the provider must agree to Davis Vision’s Mandatory Lab
Policy. The Mandatory Lab Policy requires that the provider uses
lenses manufactured by one of Davis Vision’s labs to fill any orders
for lenses by a Davis Vision member. Davis Vision’s contracts with
its employers and plan sponsors do not contain any such language
regarding the Mandatory Lab Policy between Davis Vision and
providers. By extension, Davis Vision members are also unaware of
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the policy. The Mandatory Lab Policy has been a part of Davis
Vision’s business model since the company was established in
1974. For almost all providers, if the provider is not willing to
accept the Mandatory Lab Policy, Davis Vision will not contract with
that provider. However, Visionworks, a lens retailer, along with five
other large lens retailers, including Costco and Walmart, are
exempted from the policy.
Davis Vision’s funded members pay a co-pay for the lenses
obtained with their vision care benefits, rather than paying for the
lenses outright. As a result, Davis Vision considers lenses to be a
cost of delivering benefits. To limit this cost, Davis Vision
manufactures the lenses for use by its members. Davis Vision
manufactures lenses only for this purpose and does not sell the
lenses it manufacturers to any third parties. In fact, Davis Vision
does not even sell the lenses manufactured for its members to the
providers. Rather, a Davis Vision member pays a co-pay to Davis
Vision for a pair of lenses and Davis Vision provides the lenses to
the provider, at no charge, for the provider to use in the member’s
eyeglasses. Then, Davis Vision pays the provider a dispersing fee.
According to Davis Vision, the Mandatory Lab Policy is a critical
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element of its effort to control the cost of lenses for the benefit of its
members. Davis Vision produces only about 10% of its lenses using
the same state-of-the-art “freeform/digital lens” technology as that
employed by Acuity.
b. The Parties Operate in Different Product Markets.
Davis Vision members constitute about 18 million of
approximately 150.7 million vision plan participants in the United
States. Therefore, the Mandatory Lab Policy impacts fewer than
12% of all vision plan participants nationally. Davis Vision
produced approximately 2.3 million pairs of lenses in 2014. More
than 98 million pairs of lenses were produced nationally in 2014.
Therefore, Davis Vision’s labs produced less than 2.4% of the total
lenses made nationally in 2014.
Davis Vision’s competition in the vision care benefits market
includes other managed vision care companies and vision benefits
providers, such as Avesis, VSP, EyeMed, Spectera, and Superior.
These competitors use different business models. For example, VSP
and EyeMed use a select network of independent laboratories that
provide lenses for the vision benefits companies’ members,
sometimes referred to as the reimbursement model. Spectera
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utilizes a model similar to Davis Vision’s in that Spectera has its
own laboratories and produces lenses for some of its members.
Acuity argues that Davis Vision also competes with lens
manufacturers like Acuity because Davis Vision manufactures
lenses for its members in exchange for a co-pay. All About Eyes
and Visionworks, as retailers, are in competition with all other
providers.
c. Geographically, Both Parties Compete in the National
Market.
Davis Vision sells vision benefits to the national market.
Accordingly, if Davis Vision also sells lenses, as Acuity argues,
Davis Vision sells lenses in the national market, as well. Acuity,
likewise, is a national lens-producing laboratory.
Acuity alleges, in its complaint, that the relevant geographic
market is the Greater Chicago Area. Of the Chicago-area providers
who participate in managed care vision plans, less than one third
are in-network with Davis Vision. Many of these in-network
providers also contract with other managed vision care plan
companies aside from Davis Vision. EyeMed has the largest
presence of any vision benefits company in Chicago.

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Acuity is currently pursuing business in the Chicago market,
including a contract to become the laboratory of choice for a 22store retail chain in the Chicago area. (The parties do not name the
retail chain.) Acuity estimates that its sales to providers in the
Chicago area comprise as much as 15 percent of its overall lens
manufacturing sales and that this percentage has grown larger in
the past two years.
d. Acuity Argues That the Mandatory Lab Policy Has
Anticompetitive Effects on the Lens Market.
In Acuity’s combined response and motion for partial
summary judgment, Acuity includes, as purportedly “undisputed
facts,” testimony from Acuity’s executives, Mr. Rosengren and Mr.
Kimerling, regarding the executives’ second-hand knowledge and
personal opinion of the anticompetitive effects of the Mandatory Lab
Policy. Acuity claims that, because the record does not contain
contradictory testimony, Mr. Adam Rosengren’s and Mr. Peter
Kimerling’s testimonies are undisputed facts. Davis Vision,
however, disputes these facts and further suggests that the
testimony would not be admissible at trial on grounds of hearsay,
speculation, or inadmissible layman opinion.

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This testimony relied on by Acuity includes: (1) Mr. Kimerling’s
testimony that many providers want to order Acuity’s superior
lenses for Davis Vision members but cannot do so; (2) Mr.
Kimerling’s testimony that every one of his 359 accounts and other
new accounts would immediately begin ordering lenses from Acuity
for Davis Vision members if possible; (3) Mr. Kimerling’s testimony
on the damage caused by the Mandatory Lab Policy, as well as
similar policies by other vision benefit companies; (4) Mr.
Kimerling’s testimony that a lab in Decatur was forced to shut down
because of the Mandatory Lab Policy; (5) Mr. Kimerling’s testimony
that it has become difficult for new labs to enter the market
because of restrictive manufacturing policies of companies like
Davis Vision, EyeMed and VSP; (6) Mr. Kimerling’s testimony that
most potential provider accounts will not contract with additional
labs because of administrative costs; (7) Mr. Kimerling’s testimony
that providers do not discuss problems concerning the Mandatory
Lab Policy with Davis Vision because the providers are afraid that
Davis Vision will eliminate them from the Davis Vision network; (8)
Mr. Kimerling’s testimony that many providers are aware that Davis
Vision labs produce low-quality work and have slow turnaround
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times; (9) Mr. Rosengren’s testimony that providers do not want to
be required to use Davis Vision labs; (10) Mr. Rosengren’s testimony
that Acuity competes with Davis Vision; and (11) Mr. Rosengren’s
testimony that Davis Vision members, considering premiums and
copays, pay more for lenses than on the open market.
Additionally, Acuity claims that, because Davis Vision moved
for summary judgment prior to the close of discovery, Acuity was
deprived of a full opportunity to discover relevant evidence. Acuity
further claims that, if provided a full opportunity at discovery,
Acuity would produce, at least, the following additional evidence: (1)
affidavits from providers stating that the providers would
immediately contract with Acuity if the Mandatory Lab Policy were
discontinued; (2) affidavits from providers about their preference to
obtain lenses from manufacturers other than Davis Vision; and (3)
definitive evidence that a new lens manufacturer cannot currently
enter the lens market due to the restrictions of the Mandatory Lab
Policy.
II.

LEGAL STANDARD

Summary judgment is proper if the movant shows that no
genuine dispute exists as to the material facts that entitle the
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movant to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
movant bears the initial responsibility of informing the court of the
basis for the motion and identifying the evidence that demonstrates
the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). No genuine issue of material fact
exists if no reasonable jury could find in favor of the nonmoving
party on the fact. Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d
908, 915 (7th Cir. 2007). When ruling on a motion for summary
judgment, the Court must consider the facts in the light most
favorable to the nonmoving party, drawing all reasonable inferences
in that party’s favor. Woodruff v. Mason, 542 F.3d 545, 550 (7th
Cir. 2008).
On cross-motions for summary judgment, the same standard
of review in Federal Rule of Civil Procedure 56 applies to each
movant. See Cont’l Cas. Co. v. Nw. Nat’l Ins. Co., 427 F.3d 1038,
1041 (7th Cir. 2005). Cross-motions for summary judgment are
considered separately, and each party requesting summary
judgment must satisfy the above standard before judgment will be
granted in its favor. See Tegtmeier v. Midwest Operating Eng'rs
Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir. 2004);
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Santaella, 123 F.3d at 461. Thus, the facts are construed in favor
of the non-moving party, which differs depending on which motion
is under consideration. Tegtmeier, 390 F.3d at 1045.
Summary judgment should not be entered “until the party
opposing the motion has had a fair opportunity to conduct such
discovery as may be necessary to meet the factual basis of the
motion.” Celotex, 477 U.S. at 326. Fed.R.Civ.P. 56(d) provides
relief for a party opposing a motion for summary judgment if the
party can establish, through affidavits or declarations, that it
“cannot present facts essential to justify its opposition.” “A party
seeking the protection of [Rule 56(d)] must make a good faith
showing” that that party cannot provide the needed evidence
without more discovery. Kalis v. Colgate-Palmolive Co, 231 F.3d
1049, 1058 n.5 (7th Cir. 2000) (quoting United States v. All Assets
& Equip. of W. Side Bldg. Corp., 58 F.3d 1181, 1190 (7th Cir.
1995)). “A court may disregard a failure to formally comply” with
Rule 56(d)’s motion requirement if the opposing party otherwise
“clearly sets out the justification” for a grant of additional time for
discovery. Pfeil v. Rogers, 757 F.2d 850, 856 (7th Cir. 1985).

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III.

ANALYSIS

To obtain civil damages under federal antitrust laws, Acuity
must prove the following elements: (1) that Davis Vision had a duty
recognized by the antitrust laws and that Davis Vision violated that
duty; (2) that Acuity suffered an injury protected by the antitrust
laws; and (3) that a direct link exists between Davis Vision’s
antitrust violation and Acuity’s antitrust injury, i.e., Acuity has
antitrust standing. See Greater Rockford Energy and Technology
Corp. v. Shell Oil Co., 998 F.2d 391, 395 (7th Cir. 1993); 15 U.S.C.
§ 15.
Davis Vision argues that it is entitled summary judgment on
all of Acuity’s claims because Acuity has not proven any of the
aforementioned elements on its federal antitrust claims (Counts IV). Specifically, Davis Vision first argues that Acuity cannot prove
that Davis Vision has violated any recognized antitrust duty
because: (1) Davis Vision’s Mandatory Lab Policy does not
constitute an illegal conspiracy in restraint of trade (Count I); (2)
Davis Vision’s Mandatory Lab Policy is not an attempt to create an
illegal monopoly (Count II); (3) Acuity has not stated a claim for
unlawful tying (Count III) or predatory pricing (Count IV); and (4)
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Davis Vision’s Mandatory Lab Policy does not constitute an illegal
forced boycott (Count V). Davis Vision also argues that Acuity (1)
cannot establish antitrust injury and (2) cannot establish antitrust
standing. Davis Vision further argues that it is entitled to summary
judgment on Acuity’s state antitrust claims (Counts VI-IX), because
Acuity’s Illinois Antitrust Act claims are analyzed identically to
Acuity’s federal claims. Davis Vision also argues that it is entitled
to summary judgment on Counts X, XI, and XIV because the
relevant statute/regulation does not provide a private right of action
for Acuity. Finally, Davis Vision argues that it is entitled to
summary judgment on Counts XII and XIII because Acuity fails to
state a claim for tortious interference with prospective business
advantage or violation of the Lanham Act.
Acuity argues, however, that it is entitled to partial summary
judgment on the issue of liability in Counts I and II because: (1)
Davis Vision’s Mandatory Lab Policy is a per se unlawful horizontal
agreement in violation of Section 1 of the Sherman Antitrust Act
(Count I); (2) lenses manufactured for Davis Vision members
constitutes a viable antitrust market over which Davis Vision
exercises unlawful market power in violation of Section 2 of the
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Sherman Antitrust Act (Count II); and (3) Acuity has established
antitrust injury and antitrust standing for those claims. Acuity
next argues that the Court should, at least, deny Davis Vision’s
motion for summary judgment on all counts because reasonable
disputes of material fact exist regarding the merit of each of Acuity’s
claims and regarding whether Acuity has established antitrust
injury and antitrust standing. Third, Acuity argues that, if the
Court does not presently find reasonable disputes of material fact
sufficient to deny Davis Vision’s motion for summary judgment, if
given additional discovery, Acuity would provide sufficient evidence
to produce a reasonable dispute of material fact on all counts.
Acuity has not filed a separate Rule 56(d) motion or provided
affidavits but this Court may still grant Acuity relief under Rule
56(d) because Acuity has sufficiently alleged in its memorandum of
law that it was denied the opportunity to conduct needed discovery
because of Davis Vision’s present motion for summary judgment.
See Pfeil, 757 F.2d at 856 (“A court may disregard a failure to
formally comply with Rule 56(f) if the opposing party’s
request…clearly sets out the justification.”); Theotokatos v. Sara Lee
Personal Products, 971 F.Supp 332, 344 (N.D. Ill. 1997) (citing Pfeil
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and considering a party’s request that the court allow additional
discovery in the party’s response to summary judgment even
though a formal Rule 56(d) motion was not filed); Toombs v. Martin,
05-00104, 2005 WL 3501700, *1-2 (N.D. Ind. Dec. 19, 2005)
(waiving the affidavit/declaration requirement of Rule 56(d) when
the plaintiff sufficiently justified his need for additional discovery in
his motion). Acuity has made the required “good faith showing”
that it cannot respond to some of Davis Vision’s summary judgment
arguments because: (1) Acuity has identified the specific material
facts that it anticipates discovering; and (2) the inability to conduct
discovery is not a result of Acuity’s failure to be diligent. See Kalis
v. Colgate-Palmolive Co., 231 F.3d 1049, 1058 n.5 (7th Cir. 2000).
Acuity had, in fact, served discovery requests on Davis Vision in
August 2015; however, Acuity then agreed to Davis Vision’s request
that the parties stay discovery until Davis Vision’s motion, which
argued primarily matters of law, was resolved. See Ex. A and B to
Davis Vision’s Surreply (d/e 47) at 11-14.
Further, Davis Vision does not refute Acuity’s claim that
additional discovery is needed to resolve certain issues of fact.
Rather, Davis Vision argues that it is entitled to summary judgment
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notwithstanding what additional discovery would reveal because the
Court can find for Davis Vision without resolving the issues that
Acuity claims require additional discovery. Therefore, the Court
finds that Acuity has provided sufficient information for the Court
to determine whether additional discovery is needed and, therefore,
that Acuity may defeat summary judgment at this point if the
specific material facts that Acuity alleges it would produce through
discovery would create a reasonable dispute of material fact.  
Based on a review of the present record, the Court finds that
Davis Vision is entitled to summary judgment on Counts III, IV, V,
VI, IX, X, XI, and XIV. Further, the Court finds that Acuity is not
entitled to partial summary judgment on Counts I and II; however,
Acuity has met its burden to postpone summary judgment under
Fed.R.Civ.P. 56(d) on those counts, as well as Counts VII, VIII, XII
and XIII.
A. Although the Mandatory Lab Policy Is Not a Per Se
Unlawful Horizontal Agreement, Acuity Could Establish a
Reasonable Dispute of Material Fact as to Whether the
Policy Constitutes an Illegal Conspiracy (Count I).
In Count I, Acuity claims that the Mandatory Lab Policy is an
unlawful conspiracy in violation of Section 1 of the Sherman Act.

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Acuity argues that it is entitled to summary judgment as to liability
on Count I because Davis Vision’ Mandatory Lab Policy is a per se
unlawful horizontal agreement. Davis Vision argues, however, that
it is entitled to summary judgment on Count I because: (1) the
Mandatory Lab Policy is not per se unlawful; and (2) Acuity’s alleged
relevant product market is not viable for antitrust purposes and,
therefore, Acuity cannot prove the Mandatory Lab Policy unlawful
under either the quick-look or Rule of Reason approach. Davis
Vision also argues that it is entitled to summary judgment on
Count I because Acuity has not suffered an antitrust injury and
Acuity does not have antitrust standing.
The Court finds that the Mandatory Lab Policy is not a per se
unlawful horizontal agreement. However, the Court finds that, with
additional discovery, Acuity could produce a reasonable dispute of
material fact as to: (1) whether the Mandatory Lab Policy is an
otherwise unlawful conspiracy under Section 1; (2) whether Acuity
has suffered an antitrust injury; and (3) whether Acuity has
antitrust standing. Therefore, neither party is entitled to summary
judgment on Count I.

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1. The Court uses one of three approaches to analyze a
practice under Section 1 of the Sherman Act.
To prove a Section 1 violation, Acuity must establish a
“contract, combination, or conspiracy” that results in an
“unreasonable restraint of trade in a relevant market.” Agnew v.
National Collegiate Athletic Ass’n, 683 F.3d 328, 335 (7th Cir.
2012). The court uses one of three frameworks to analyze whether
an unreasonable restraint of trade exists: (1) the per se approach;
(2) the quick-look approach; or (3) the Rule of Reason.
When the alleged unlawful conspiracy is one of the types of
agreements that courts have determined “always or almost always
tend to restrict competition and decrease output,” e.g., price-fixing
agreements, the Court may find, without any analysis, that the
agreement per se violates Section 1 of the Sherman Act (the per se
approach). NCAA v. Bd. of Regents, 468 U.S. 85, 100 (1984).
Alternatively, in cases where the per se analysis does not apply
but the court can easily determine, without “elaborate industry
analysis,” that an agreement is anticompetitive, then the court may
apply a quick-look approach. Agnew, 683 F.3d at 336 (quoting Bd.
of Regents, 468 U.S. at 109) (when “no elaborate industry analysis

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is required to demonstrate the anticompetitive character…of an
agreement” courts use the “quick-look” approach). Under the
“quick-look” approach, the court shifts the burden to the defendant
to provide a “legitimate justification[ ]” for the anticompetitive
practice. Agnew, 683 F.3d at 336. If the Court does not find that
the agreement is justified, then the Court may declare the
agreement unlawful without further analysis. See id. If the Court
does find that the agreement is justified, then the Court must use a
Rule of Reason analysis. See id.
All agreements that do not fit either of the first two categories
or that pass the legitimate justification step of the quick-look
approach are analyzed under the Rule of Reason. See id. at 335-36.
To prove that an agreement is an unlawful conspiracy under the
Rule of Reason, a petitioner must prove that the agreement has (1)
an anticompetitive effect (2) on a given product market (3) in a given
geographic area. See id. at 335; see also Reifert v. S. Cent. Wis.
MLS Corp., 450 F.3d 312, 321 (7th Cir. 2006).
2. The Mandatory Lab Policy is not a per se unlawful
horizontal restraint of trade under Section 1 of the
Sherman Act.

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Acuity argues that Davis Vision has per se violated Section 1
of the Sherman Act because the Mandatory Lab Policy is a
horizontal restraint of trade. See Leegin Creative Leather Products,
Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007) (“horizontal agreements
among competitors…to divide markets” are per se unlawful).
Horizontal agreements are “restraints imposed by agreement
between competitors,” as opposed to vertical agreements, which are
restraints “imposed by agreement between firms at different levels
of distribution.” Bus. Electronics Corp. v. Sharp Electronics Corp.,
485 U.S. 717, 730 (1988) (emphasis added). Davis Vision, whether
considered only a vision benefits provider (Davis Vision’s view), or
both a vision benefits provider and a lens manufacturer (Acuity’s
view), operates at a different level of distribution than the providers,
which operate at the retail level.1 Therefore, the Mandatory Lab
Policy, a provision of the in-network contract between Davis Vision
and each provider, would typically be considered a vertical
agreement. See id. at 730. However, Acuity presents two theories

See Flow Chart, attached to this opinion as Exhibit A. The information in the
Flow Chart is collected from the undisputed facts included in the parties’
briefs.
1

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to suggest that the Court view the Mandatory Lab Policy as a
horizontal agreement.
a. The Mandatory Lab Policy is not a horizontal restraint of trade
based on Davis Vision’s relationship with Visionworks.
Acuity's first theory is that the Mandatory Lab Policy between
Davis Vision and providers is a horizontal agreement because Davis
Vision has a sister company, Visionworks, that competes with the
providers. Acuity claims that this theory is supported by the
holdings of Copperweld Corp. v. Independence Tube Corp., 467 U.S.
752 (1984) and United States v. Grinnell, Corp., 384 U.S. 563
(1966). However, neither case supports Acuity’s theory.
In Copperweld, the United States Supreme Court found that a
parent company and its subsidiary could not “conspire” under the
Sherman Act. 467 U.S. at 771. The Court reasoned that, because
an unlawful antitrust conspiracy is the “joining of two independent
sources of economic power previously pursuing separate interests,”
a parent company and its subsidiary cannot be guilty of a
conspiracy” because their interests are already unified. Id.
(emphasis added). Essentially, the unity of interest between the
parent and subsidiary prevents a petitioner from satisfying the

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“previously pursuing separate interests” element of a conspiracy.
Courts have since extended this Copperweld reasoning and held
that any two “sources of economic power” that have a “unity of
interest” cannot be found to conspire for antitrust purposes or in
other contexts. See e.g., Century Oil Tool, Inc. v. Production
Specialties, Inc., 737 F.2d 1316 (5th Cir. 1984) (finding that two
companies under the same ownership shared a unity of interest
and, therefore, could not conspire under the Sherman Act);
American Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d
212 (4th Cir. 2004) (finding the same between a hospital and its
peer review committee); see also Bucklew v. Hawkins, Ash, Baptie &
Co., LLP, 329 F.3d 923 (7th Cir. 2003) (finding that a parent and a
subsidiary cannot conspire under RICO).
Acuity asks this Court to extend the reasoning of Copperweld
even further and find that: (1) Davis Vision has a unity of interest
with Davis Vision’s sister company, Visionworks; and (2) because of
this unity of interest, any agreement between Visionworks'
competitors and Davis Vision should be analyzed as an agreement
among competitors. That is, Acuity wants this Court to hold that
Davis Vision competes with providers because Visionworks
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competes with providers and, therefore, the Mandatory Lab Policy
constitutes an illegal horizontal agreement between competitors
(Davis Vision and providers).
However, in Copperweld, the Supreme Court explicitly stated
that the Court was limiting its opinion to “the narrow issue squarely
presented,” i.e. whether a parent and subsidiary are capable of
conspiring. Copperweld, 467 U.S. at 767. Further, the Supreme
Court explicitly stated that the “unity of interest” holding applied
only to “coordinated activity” of a parent and its subsidiary. Id. at
771. That is, commonly-owned companies have a unity of interest
only when they are engaged in coordinated activity. For these
reasons, courts have declined to extend the reasoning of
Copperweld, as Acuity asks this Court to do here, to find increased
antitrust liability based on commonality of ownership, in the
absence of specific evidence of coordinated activity. See Michael v.
Intracorp. Inc., 179 F.3d 847, 857 (10th Cir. 1999) (holding that a
defendant company that reviewed insurance claims from insurance
companies could not be found in horizontal conspiracy with
insurance companies based on the defendant’s relationship with its
parent company and sister company that were insurance
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companies, absent specific evidence of coordinated activity between
the defendant and either the parent or sister insurance company);
In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 341,
n.44 (3d. Cir. 2010) (declining to extend Copperweld to find that a
subsidiary is automatically liable for agreements made by its
parent); In re Florida Cement and Concrete Antitrust Litigation, 746
F.Supp.2d 1291, 1324 (S.D. Fl. 2010) (similarly finding that a
parent is not liable for the antitrust violations of its subsidiary). In
fact, Acuity does not provide, nor can this Court identify any case
where a court has applied Copperweld as Acuity asks this Court to
do here.

For the same reasons, this Court finds that an agreement
between Davis Vision and competitors of Davis Vision’s sister
company, Visionworks, should not be viewed as an agreement
between Davis Vision and its competitors, absent actual evidence
that the agreement constitutes coordinated activity by Davis Vision
and Visionworks. Acuity argues that the agreement constitutes
coordinated activity because (1) Davis Vision and Visionworks share
a physical headquarters and (2) Visionworks may benefit from the
agreement. However, as in Michael, Acuity’s purported evidence of
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coordinated activity is actually evidence of characteristics that are
not atypical of sister companies, rather than proof of actual
coordinated activity. 179 F.3d at 857, n.12 (petitioner must provide
evidence of involvement by the sister company in the respondent’s
action or evidence that the respondent is “merely the alter ego” of
its sister company). The evidence in the record shows that the
Mandatory Lab Policy is part of an agreement Davis Vision makes in
its capacity as a vision care benefits provider, an industry in which
Visionworks does not participate. Acuity does not provide, or claim
it would provide in discovery, any evidence that executives or
employees of Visionworks actually participate in the creation or
execution of the Mandatory Lab Policy agreements. Therefore, the
Court finds that the Mandatory Lab policy is not “coordinated
activity” by Davis Vision and Visionworks.
Alternatively, Acuity argues that the holding of Grinnell
supports Acuity’s first theory: that Davis Vision competes at the
retail level with providers because Visionworks competes at the
retail level with providers. In Grinnell, however, the United States
Supreme Court dealt with whether four commonly owned
companies, all at the same level of distribution, competed in the
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same product market because of the similarity of the products that
the companies manufactured. 384 U.S. 563. The Supreme Court
held that a parent company that offered fire sprinkler systems
operated in the same market as three majority-owned subsidiaries
that provided burglary and fire-protection services, burglary
services, and fire-protection services, respectively, because all four
companies offered essentially the same product: a “central station
service under which hazard-detecting devices installed on the
protected premises automatically transmit an electric signal to a
central station.” Id. at 571. In short, Grinnell states that
companies that offer essentially the same product operate in the
same product market. In this case, however, Acuity is not making
the argument made in Grinnell, that is, that Davis Vision and
Visionworks operate in the same product market. In fact, both
parties already agree that Davis Vision and Visionworks both
operate in the lens market. Here, Acuity is making the same
argument as it attempted to do under Copperweld, that the Court
should look at Davis Vision as a competitor at the retail level in the
lens market—even though Davis Vision is not actually a retail seller
of lenses—because Visionworks, a company with the same owners
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as Davis Vision is a retail seller of lenses. Grinnell’s holding
regarding the similarity of the products that companies sold does
nothing to support Acuity’s argument.
As a result, this Court finds that the Mandatory Lab Policy is
not a per se unlawful horizontal agreement based on Davis Vision’s
relationship with Visionworks.
b. The Mandatory Lab Policy is not a collection of vertical
agreements that, in reality, operates as a per se unlawful forced
group boycott, orchestrated by Davis Vision.
Acuity’s second theory is that, even if Davis Vision does not
operate at the same level of distribution as the providers, the
Mandatory Lab Policy, between Davis Vision and the providers,
constitutes a collection of vertical agreements that, in reality,
operates as a horizontal agreement among providers to boycott
third-party lens manufacturers, such as Acuity. However, the
Court finds that facts do not support Acuity’s second theory.
Typically, a vertical agreement, like the Mandatory Lab Policy,
will not be found per se unlawful under Section 1 of the Sherman
Act unless it includes an agreement to fix prices. See Miles
Distributors, Inc. v. Specialty Const. Brands, Inc., 476 F.3d 442,
450 (7th Cir. 2007) (“[A] vertical restraint is not illegal per se unless
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it includes some agreement on price or price levels.”). Moreover, the
Mandatory Lab Policy is a “vertical exclusive distributorship” (a
contract to receive a certain product from a single distributor) and
such a vertical agreement is “presumptively legal.” Republic
Tobacco Co. v. North Atlantic Trading Co., Inc., 381 F.3d 717, 736
(7th Cir. 2004). However, courts have found in some cases that a
collection of individual vertical exclusive distributorship agreements
can be viewed as a horizontal agreement. Specifically, when a
respondent who competes at one level of product distribution
makes vertical exclusive distributorship agreements with
competitors at a different level of product distribution, the
“collection” of the vertical agreements together may comprise a per
se unlawful horizontal forced group boycott, with the respondent “in
the center as the ringmaster.” See Toys “R” Us, Inc. v. F.T.C., 221
F.3d 928 (7th Cir. 2000) (affirming FTC finding of a per se antitrust
violation under Section 1 where a group of toy manufacturers all
vertically agreed with retailer Toys “R” Us to boycott other retailers);
Interstate Circuit v. United States, 306 U.S. 208 (1939) (finding a
Section 1 violation where a group of movie distributors all vertically
agreed with first run movie theaters to implement minimum-price
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and no-double-feature restrictions on subsequent run movie
theaters for certain movies).
However, for the Court to find the collection of vertical
agreements to be per se unlawful under this ringmaster theory,
Acuity must show through direct or circumstantial evidence that
the providers were acting in conspiracy with one another rather
than acting independently. See Toys, 221 F.3d at 934 (horizontal
agreements may be proved by “either direct or circumstantial
evidence”). That is, Acuity must prove that the individual providers’
agreements with Davis Vision are not simply parallel action or tacit
collusion. See In re Text Messaging Antitrust Litig., 782 F.3d 867,
879 (7th Cir. 2015) (“Tacit collusion, also known as conscious
parallelism, does not violate Section 1 of the Sherman Act.”). To
meet this burden, Acuity must present evidence that “tends to
exclude the possibility” that the providers acted independently
because “antitrust law limits the range of permissible inferences
from ambiguous evidence.” Matsushita Elec. Indus. Co., LTD. et al.
v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); see also Toys, 221
F.3d 935-36 (finding conspiracy based on direct evidence that the
toy manufacturers agreed only after assurance that their
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competitors would also agree, as well as evidence that: (1) the
agreements were an abrupt shift in the manufacturers’ operations;
(2) the agreements deprived the manufactures of profitable sales
outlets; and (3) the manufacturers wanted to use other retailers but
feared defying Toys “R” Us); Interstate, 306 U.S. at 221 (inferring
conspiracy from the substance and manner of the proposed
agreement, the substantial unanimity of action by the movie
distributors, and refusal of the defendants to call witnesses with
information about the agreements).
Acuity first argues that the Mandatory Lab Policy itself is
direct evidence of conspiracy because the industry is aware of how
the policy functions. However, such tacit collusion or conscious
parallelism alone is not proof of a conspiracy. See Text Messaging,
782 F.3d at 879. Acuity further argues that the circumstantial
evidence in this case parallels that identified in Toys and Interstate
and, therefore, proves Acuity’s boycott claim.2 Specifically, Acuity

Acuity argues that the evidence supports these contentions; however, Acuity’s
evidence regarding the actions and opinions of the providers is actually
inadmissible second-hand testimony given by Acuity’s executives. See Gunville
v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (a party cannot rely on
inadmissible hearsay to oppose summary judgment). However, Acuity claims
that, if given more discovery, it will produce affidavits from providers to support
the testimony of Acuity’s executives.
2

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argues that this Court should infer a conspiracy because: (1) the
providers agree to the Mandatory Lab Policy and subsequently
refrain from complaining about the policy only because, otherwise,
they could not be in-network with Davis Vision; (2) some providers
usually manufacture their own lenses and may not do so under the
Mandatory Lab Policy; and (3) providers are forced to act against
their interests by subjecting customers to inferior products and
longer turn-around times that come with the use of Davis Vision
labs. However, this evidence does not support a finding that the
providers conspired with each other.
First, Acuity’s assertion that a provider agrees to the
Mandatory Lab Policy because the provider could not otherwise
become in-network with Davis Vision is actually evidence that the
providers acted independently, not in conspiracy. The provider
enters into the Mandatory Lab Policy because the provider wants to
be in-network with Davis Vision. The provider wants to be innetwork with Davis Vision because, through Davis Vision, the
provider gains access to the additional customers that come with
in-network status. For this reason, the provider is willing to
sacrifice its ability to choose the lens manufacturer that it uses for
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Davis Vision customers. Therefore, the provider is clearly acting in
its own interest in increasing business.
Second, Acuity’s other purported evidence does not, as Acuity
claims it does, parallel the evidence Acuity cited from Toys, which
showed that the toy manufacturers were acting contrary to their
interests. The agreements that the toy manufacturers entered into
in Toys limited those toy manufacturers’ access to customers
because the toy manufacturers could no longer access the
customers of certain toy stores that they agreed to boycott. In this
case, a provider’s agreement to the Mandatory Lab Policy allows the
provider access to new additional customers without taking away
from current business. The provider simply does not otherwise
have access to the 99% of Davis Vision members who obtain lenses
from in-network providers. Even though a provider may not be
enamored with the procedure for filling Davis Vision members’
orders, having more customers is in the provider’s pecuniary
interest.
Further, in Toys, the manufacturers agreements with Toys “R”
Us impacted the manufacturers business with all customers. In the
present case, however, a provider’s agreement to the Mandatory Lab
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Policy only impacts the new Davis Vision customers brought in by
the agreement. The Mandatory Lab Policy creates no contractual
obligation for the provider when dealing with the provider’s other
customers. Accordingly, a provider who: (1) prefers to produce its
own lenses; or (2) prefers to use an alternative lens manufacturer,
can continue to do so for all non-Davis Vision member customers.
In fact, a provider could not obtain lenses for its other customers
from Davis Vision because Davis Vision will not provide lenses for
consumers who do not have a Davis Vision plan.
Because Acuity’s evidence would not allow a reasonable jury to
find that the providers are conspiring, and Acuity does not claim
that it will produce such evidence with more discovery, the Court
finds that the providers’ vertical agreements with Davis Vision do
not constitute a horizontal conspiracy among providers to boycott
Acuity and other lens manufacturers. Therefore, the Mandatory
Lab Policy is not a per se unlawful horizontal agreement.
3. With additional discovery, Acuity could establish a
reasonable dispute of material fact as to whether the
Mandatory Lab Policy violates Section 1 of the Sherman
Act under the quick-look or Rule of Reason approach.

Page 37 of 74

Because the Mandatory Lab Policy is not a per se violation of
Section 1 of the Sherman Act, the Court must analyze Acuity’s
claim under one of the other two approaches described above: the
quick-look approach or the Rule of Reason. Davis Vision argues
that, regardless which approach the Court uses, Acuity does not
meet the threshold burden of identifying a viable antitrust product
market. Acuity, however, argues that the Court should find that
“lenses manufactured for Davis Vision members” is a viable
antitrust market because: (1) it is a viable product market under
the general rule of reasonable interchangeability; (2) it is a viable
submarket under Methodist Health Services Corp. v. OSF
Healthcare System; or (3) it is a viable single-brand derivative
submarket, under Newcal Industries, Inc. v. IKON Office Solution.
The Court finds that Acuity alleged market is not a viable
product market under the general rule of reasonable
interchangeability and is not a viable single-brand derivative market
under Newcal. However, the Court finds that, although Acuity has
not yet carried its burden to win summary judgment, Acuity could,
with additional discovery, establish a reasonable dispute of material

Page 38 of 74

fact as to whether its alleged market is a viable submarket under
Methodist.
a. Under either remaining approach, Acuity must allege a viable
antitrust product market.
For a Section 1 claim analyzed under either the quick-look
approach or the Rule of Reason, a petitioner is required to identify a
relevant product market that is affected by the allegedly
anticompetitive practice. See Agnew, 683 F.3d at 337 (the quicklook allows a petitioner to forego a showing of “market power” but
does not “dispense[ ]” with the petitioner’s burden to show “the
existence of a relevant market”).
In a Rule of Reason analysis, a precise market definition is
required for the petitioner to be able to demonstrate that a
defendant wields sufficient market power to establish an unlawful
conspiracy. Agnew, 683 F.3d at 337. Under the quick-look
approach, the petitioner may forgo a strict showing of market power
and, therefore, does not need to specifically define the parameters of
the market. Nevertheless, the petitioner still has the burden to
identify the “rough contours” of the market, including, at least the
relevant product market, so that a court can determine whether the

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respondent’s actions have anticompetitive effects on that market.
See Republic Tobacco, 381 F.3d at 738. After all, the purpose of
the Sherman Act is to protect competition in the commercial arena.
Therefore, without a commercial market to analyze, the restrictions
of the Sherman Act are not implicated. See Id. at 738 (“Economic
analysis is virtually meaningless if it is entirely unmoored from at
least a rough definition of a product and geographic market.”);
Agnew, 683 F.3d at 337 (the existence of a commercial market is
what implicates the Sherman Act in the first place).
b. Acuity’s alleged product market, lenses manufactured for
Davis Vision members, does not satisfy the general rule of
reasonable interchangeability because the lenses
manufactured for Davis Vision members are interchangeable
with other lenses.
Generally, a relevant product market for antitrust purposes is
defined by “the reasonable interchangeability of the products and
the cross-elasticity of demand for those products.” Int’l Equip.
Trading, Ltd. v. AB Sciex LLC, 13-1129, 2013 WL 4599903, *3 (N.D.
Ill. 2013). Interchangeability is based on the “unique attributes” of
the products that allow them to be substituted for one another but
make them difficult to replace with a product from outside the
market. See id. Perceived differences in quality or a buyer’s
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preference for a specific brand do not render one product noninterchangeable with another. See e.g., Hack v. President & Fellows
of Yale College, 237 F.3d 81, 86-87 (2d. Cir. 2000) (finding a Yale
education to be interchangeable with other schools), Queen City
Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 436 (3d. Cir. 1997)
(finding Domino’s-approved pizza ingredients to be interchangeable
with non-approved ingredients). Accordingly, a petitioner’s alleged
market must contain “all interchangeable substitute products,” in
order for a court to determine whether anticompetitive effects
actually exist. Failure to allege a proper market results in a failed
claim. See Queen City, 124 F.3d at 436 (holding that, even at the
preliminary motion to dismiss stage, if a petitioner’s proposed
relevant product market “clearly does not encompass all
interchangeable substitute products even when all factual
inferences are granted in [its] favor, the relevant market is legally
insufficient”); see also Int’l Equip. Trading, Ltd., 2013 WL 4599903
at *3 (granting a motion to dismiss on the grounds that the plaintiff
failed to properly allege a product market containing all
interchangeable substitutes). 

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Acuity’s alleged product market is not all lenses but, rather,
only those lenses manufactured for Davis Vision members. Such a
market would ordinarily not be found viable under the general rule
because it narrows the market based not on the product but based
on the purchaser. See Rohlfing v. Manor Care, Inc., 172 F.R.D.
330, 345 (N.D. Ill. 1997) (“it is improper to define a market simply
by identifying a group of consumers who have purchased a given
product”). However, a market narrowed in this fashion can be
legally viable if the products made for the particular consumer are
not reasonably interchangeable with products made for other
consumers. See Eastman Kodak Co. v. Image Technical Services,
Inc., 504 U.S. 451, 482 (1992) (finding that only replacement copy
machine parts made for owners of Kodak copy machines was a
legally viable market because replacement parts made for owners of
other copy machines did not work in Kodak copy machines); Int’l
Equip. Trading, Ltd., 2013 WL 4599903 at *4 (“When a complaint
limits the relevant market to a single brand, franchise, institution,
or comparable entity,” the petitioner must show that the product
cannot be substituted with entity’s products.) (internal quotations
omitted). In this case, however, Acuity does not even attempt to
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argue that Davis Vision lenses are not interchangeable with nonDavis Vision lenses. In fact, Acuity wants to manufacture lenses for
use by Davis Vision members, essentially admitting that Davis
Vision’s lenses and Acuity’s lenses are interchangeable substitutes.
However, the analysis does not end here.
c. With additional discovery, Acuity could establish a
reasonable dispute of material fact as to whether lenses
made for Davis Vision customers is a viable antitrust product
submarket.
In some cases, a “well-defined submarket” may also be a
legally viable product market for antitrust purposes. See Methodist
Health Services Corp. v. OSF Healthcare System, 15-1054, 2015 WL
1399229, *6 (C.D. Ill. March 25, 2015) (quoting Brown Shoe Co. v.
United States, 370 U.S. 294, 325 (1962)). To analyze whether a
submarket is appropriately “well-defined,” courts examine “‘such
practical indicia’ as (i) industry or public recognition of the
submarket as a separate economic entity, (ii) the product’s peculiar
characteristics and uses, (iii) unique production facilities, (iv)
distinct customers, (v) distinct prices, (vi) sensitivity to price
changes, and (vii) specialized vendors” (known as the practical
indicia test). Id. Acuity argues that Davis Vision benefits members

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comprise a viable submarket, as a matter of law. This Court cannot
find, as a matter of law, that Acuity’s alleged market is a viable
submarket; however, the Court finds that, given additional time for
discovery, Acuity could establish a reasonable dispute as to
whether its alleged market is a viable antitrust submarket.
Generally, courts have found that a submarket comprised of a
subgroup of buyers of one product fails the practical indicia test
because the buyers in the submarket are reasonably
interchangeable with the other buyers in the market. See
Campfield v. State Farm Mut. Auto Ins. Co., 532 F.3d 1111, 1119
(10th Cir. 2008) (“When there are numerous sources of
interchangeable demand, the plaintiff cannot circumscribe the
market to a few buyers in an effort to manipulate the buyers’
market share.”); Little Rock Cardiology Clinic PA v. Baptist Health,
591 F.3d 591 (8th Cir. 2009) (plaintiff could not narrow market to
only commercial health insurance payers of hospital services
because government payers are interchangeable), Marion
Healthcare LLC v. Southern Illinois Healthcare, 12-0871, 2013 WL
4510168 (S.D. Ill. Aug. 26, 2013) (same); Stop & Shop Supermarket
Co. v. Blue Cross & Blue Shield of R.I., 373 F.3d 57, 66 (1st Cir.
Page 44 of 74

2004) (market was all retail pharmaceutical sales rather than only
“health care financed or insurance reimbursed pharmaceutical
products” because retail sales not fitting those categories were
reasonably interchangeable); Brokerage Concepts, Inc. v. U.S.
Healthcare, Inc., 140 F.3d 494 (3d. Cir. 1998) (finding the same
when plaintiff alleged a market of only pharmaceutical sales to
HMO members).
However, courts have made an exception to this general rule
when access to a particular submarket of buyers is “critical” to an
industry member’s “survivability.” See Methodist, 2015 WL
1399229 at *6-7. For example, courts have found that a subgroup
of buyers is viable as an antitrust market when: (1) the subgroup is
comprised of particularly high-profit buyers; or (2) there is an
“inelastic difference in price” between products sold to two different
groups of buyers. See United States v. Archer-Daniels-Midland
Co., 866 F.2d 242, 246 (8th Cir. 1988) (finding two separate
product markets for normally interchangeable products because
government price support raised the price of one product to an
artificially high level); Methodist, 2015 WL 1399229 at *6-7
(allowing a submarket of only hospital services for privately-insured
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customers and not government-insured customers because the
reimbursement rate from private insurers was so much higher as to
render access to that market imperative).
Acuity argues that its alleged market fits this exception.
Specifically, Acuity argues that its market parallels a market
previously approved by another court in this District. See
Methodist, 2015 WL 1399229. In Methodist, the court found, when
ruling on a motion for judgment on the pleadings, that a submarket
consisting of healthcare provided to privately insured patients but
not government-insured patients was viable for antitrust purposes.
See id. The court found the submarket viable because plaintiff had
alleged, and the defendant had admitted, that “access to privately
insured patients is critical to a health-care provider’s long-term
sustainability” due to the low prices mandated for governmentpayers. Id. at *7. Here, Davis Vision has not made such an
admission. Further, Acuity’s alleged market is even narrower than
the market of privately insured patients found viable in Methodist.
Still, under the reasoning employed in Methodist, Acuity can
survive summary judgment if Acuity can provide evidence sufficient
to show a reasonable dispute of material fact as to whether access
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to its alleged market of Davis Vision members is “critical” to survival
in the lens market.
Acuity first claims that it has exceeded its burden and already
proven as a matter of law that access to Davis Vision members is
critical to survival in the lens market. To support this claim, Acuity
points to: (1) testimony from Davis Vision’s Scott Hamey that access
to members of managed care vision benefits plans (of which Davis
Vision is one) is critical to Visionworks’ survival; (2) the Towson
Report, a report on the “likely economic impacts” of a previously
proposed plan by CareFirst BlueCross BlueShield to institute a
mandatory lab policy for all eyeglass and contact lenses in
Maryland, Washington D.C., and Northern Virginia; (3) Acuity’s
Peter Kimerling’s testimony that the number of optical labs in the
United States in 2014 was less than half of the number in 2001;
and (4) Kimerling’s “estimation” that only 10-20% of the total lens
market is available to Acuity. See Ex. C to Davis Vision’s Mot.
Summ.J. (d/e 27-2) at 196-97 (Hamey’s testimony); Ex. 9 to
Acuity’s Response to Davis Vision’s Mot. Summ.J. (d/e 35-9)
(Towson Report); Ex. C to Davis Vision’s Mot. Summ.J. (d/e 27-2) at
99, 120 (Kimerling’s testimony). Alternatively, Acuity argues that,
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given more discovery, Acuity “will present overwhelming evidence of
a new [lens manufacturer’s] inability to enter the market due to the
barrier presented by the Mandatory Lab Policy” and, therefore, this
Court should not grant summary judgment to Davis Vision on
Count I. Acuity’s Reply (d/e 43) at 15.
The evidence cited by Acuity does not, as Acuity claims, prove
at a matter of law that access to Davis Vision members is critical to
the survival of a lens manufacturer. Nor does such evidence
establish a reasonable issue of material fact based on the present
record. However, the Court finds that the evidence Acuity claims it
would obtain in discovery would create a reasonable dispute of
material fact as to whether access to Davis Vision members is
critical for survival in the lens manufacturing market. Based on the
present record, a reasonable jury could not find that access to
Davis Vision customers is critical for lens manufacturers. First, Mr.
Hamey’s testimony that access to Davis Vision members is critical
to Visionworks is not relevant to the issue at hand because
Visionworks is a lens retailer, not a lens manufacturer.
Second, the Towson Report is not relevant to the actual effects
of the Mandatory Lab Policy because it is a speculative report that
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attempted to project the impact of a mandatory lab policy that had
been proposed by a different benefits company, under different
circumstances, in the specific geographic area of Maryland,
Washington, D.C., and Northern Virginia. Blue Cross Blue Shield
was considering implementing a policy that required all of its
providers to obtain eyeglass lenses, contact lenses, and other goods
from a single manufacturer. Providers that worked with Blue Cross
Blue Shield were previously either manufacturing goods for
members themselves or acquiring the goods from the manufacturer
of their choice. Now, the providers were going to be required to
change to using a single laboratory. The Towson Report made
projections about how the providers having to change their current
business practices would generally affect the economy in the
geographic region. As the Court has already discussed, Davis
Vision does not require any providers to change their current
business practices. Still, the report could possibly be relevant to a
Rule of Reason analysis of the anti-competitive effects of the
Mandatory Lab Policy. However, the projections, which concern a
different insurer in a different market, are not probative of whether

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a lens manufacture cannot survive without access to Davis Vision
members, specifically.
Third, although Mr. Kimerling’s testimony about the number
of lens manufacturers currently operating compared to the number
of lens manufacturers operating in 2001 is evidence with some
value, that value is negligible without more evidence suggesting that
the Mandatory Lab Policy is the cause of the difference in the
number of labs. Finally, Mr. Kimerling’s testimony regarding the
percentage of the entire lens market that is available to Acuity does
not prove that access to Davis Vision members is critical to all lens
manufacturers. Mr. Kimerling did not testify that the percentage of
the lens market available to Acuity is the same percentage of the
lens market available to other manufacturers. Further, Davis
Vision members consume fewer than 2.4% of the total lenses
produced nationwide. Therefore, even without access to Davis
Vision members, Acuity would have access to over 97% of the
market. Mr. Kimerling did not testify that Acuity’s inability to
access the other 97% of the market is caused by the Mandatory Lab
Policy.

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Further, the additional evidence in the record does not suggest
that access to Davis Vision customers is critical to survival in the
lens manufacturing market. Davis Vision is one of many vision
plans available to eyeglass wearers and, therefore, Davis Vision
members are one of many groups of consumers available to lens
manufacturers. Again, Davis Vision members make up only about
12% of vision plan members nationwide and consume less than
2.4% of total lenses produced nationwide. Therefore, a lens
manufacturer still has access to 88% of vision plan members and
over 97% of consumers of lenses. Further, Acuity does not present
any evidence that the profit that a lens manufacturer can obtain
from sales to Davis Vision members differs in any way from the
profit that a lens manufacturer can obtain from sales to the other
97% of consumers.
However, the evidence that Acuity claims it can provide in
discovery, “evidence of a new [lens manufacturer’s] inability to enter
the market due to the barrier presented by the Mandatory Lab
Policy” is substantially probative of a lens manufacturer’s need to
access Davis Vision members. Acuity’s Reply (d/e 43) at 15. Such
evidence, when combined with the evidence currently in the record,
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could enable a reasonable jury to find for Acuity on the issue.
Therefore, Davis Vision is not entitled to summary judgment on
Count I.
d. “Lenses manufactured for Davis Vision members” is not a
viable single-brand derivative submarket under Newcal.
Acuity alternatively argues that Acuity’s alleged market is
viable because lenses manufactured for Davis Vision members is a
viable single-brand, derivative submarket created by the Mandatory
Lab Policy. If Acuity’s alleged market is viable under this theory,
Acuity could be awarded summary judgment on the issue without
having to produce the additional evidence cited earlier. However,
Acuity’s alleged market is not viable under this theory.
Courts have found that a single-brand derivative submarket
may be viable for antitrust purposes. See Kodak, 504 U.S. at 48082 (finding that Kodak-only copy machine repair parts and Kodakonly copy machine repair contracts were legally cognizable
derivative submarkets); Newcal Industries, Inc. v. IKON Office
Solution, 513 F.3d 1038 (9th Cir. 2008) (finding that the market of
copy machine service contracts for IKON copy machine lessees was
a properly alleged derivative submarket).

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Such a viable derivative submarket requires a petitioner to
properly identify three separate markets. The petitioner must begin
by identifying a viable antitrust product market, deemed the
primary market. Then, the petitioner must identify a proper
derivative market within that primary market. See Newcal, 513
F.3d at 1051 (the finding of a derivative submarket is conditioned
upon the existence of a “wholly derivative” market). Finally, the
petitioner must identify a submarket within the derivative market.
Acuity does not identify a “wholly derivative” market.
A wholly derivative market is a market that is created only
because of the existence of the primary market, i.e., the market
would not exist without the primary market. See Kodak, 504 U.S.
at 480-82 (finding that copy machine repair parts and copy
machine repair contracts were legally cognizable derivative markets
because they would not exist if the primary market of copy
machines did not exist). In this case, Acuity’s alleged primary
market is vision benefits plans and Acuity’s alleged derivative
market is lenses. Acuity’s alleged derivative market is not a “wholly
derivative” market because the market for lenses would exist even if
vision benefits plans did not exist. Therefore, Acuity’s alleged
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market is not a viable single brand derivative submarket.3 As a
result, Acuity still must prove that its alleged market is viable under
Methodist to avoid summary judgment.
4. A genuine issue of material fact exists as to whether
Acuity has established an antitrust injury and antitrust
standing.
Davis Vision briefly argues that, even if Acuity’s alleged
product market is viable, Davis Vision is still entitled to summary
judgment on Acuity’s conspiracy claim in Count I because Acuity
lacks antitrust injury and antitrust standing. However, the Court
finds that Acuity could establish both antitrust injury and antitrust
standing, based on the facts that Acuity has specifically identified
that it will uncover in discovery.
a. A reasonable dispute of material fact exists as to whether
Acuity has established an antitrust injury.
An antitrust injury is “injury of the type the antitrust laws
were intended to prevent that flows from that which makes
defendants’ acts unlawful.” Atl. Richfield Co. v. USA Petroleum Co.,

Even if Acuity did identify a proper derivative market, the finding of a
derivative submarket is still subject to the practical indicia, discussed in the
previous section. See Newcal, 513 F.3d at 1051 (“in considering the legal
validity” of a contractually-created, single-brand, derivative submarket, the
court must also determine whether the submarket qualifies as a submarket
“under the Brown Shoe standard”).
3

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495 U.S. 328, 334 (1990). To prove antitrust injury, a petitioner
must show both “injury to [it]self” and “injury to the market.” Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.
1984). Davis Vision argues that Acuity has established neither type
of injury. However, Davis Vision incorrectly identifies Acuity’s
purported injury to both itself and the market as solely higher
prices. First, Acuity’s claims that it is injured because it loses
profits due to an inability to compete in the market. Second, Acuity
claims that Davis Vision members are injured because the lack of
competition in the market allows Davis Vision to provide members
with low-quality products and poor service at higher prices. Both of
these purported injuries flow directly from the decrease in
competition caused by Davis Vision’s alleged violation. Davis Vision
does not even attempt to point to any evidence that forecloses the
possibility of these purported injuries. Further, Acuity alleges that
it will definitively prove these injuries through additional discovery.
Davis Vision also argues that any injury to Acuity is too
speculative because Acuity does not compete in Davis Vision’s
market, vision benefits plans. However, Acuity argues that Davis
Vision’s violation injures the lens market, where Acuity does
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compete, not the vision benefits market. Therefore, Davis Vision is
not entitled to summary judgment based on a failure to establish
antitrust injury.
b. A reasonable dispute of material fact exists as to whether
Acuity has antitrust standing.
Davis Vision also briefly argues that Acuity does not have
antitrust standing. Antitrust standing assures that the petitioner is
the party “who can most effectively vindicate the purposes of
antitrust laws.” Kochert v. Greater Lafayette Health Servs., Inc.,
463 F.3d 710, 718 (7th Cir. 2006). Six factors determine whether a
petitioner has antitrust standing: “(1) the causal connection
between the alleged antitrust violation and the harm to the plaintiff;
(2) [i]mproper motive; (3) [w]hether the injury [is] of a type that
Congress sought to redress with the antitrust laws; (4) [t]he
directness between the injury and the market restraint; (5) [t]he
speculative nature of the damages; (6) [t]he risk of duplicate
recoveries or complex damages apportionment.” Id. at 718. Davis
Vision argues that none of the first five factors are in Acuity’s favor.
However, Davis Vision’s argument amounts merely to conclusory
statements and a repeat of its arguments regarding antitrust injury.

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The Court finds that a genuine issue of material fact still exists
as to whether Acuity can satisfy standing. First, this Court has
already found, when analyzing injury, that the harm alleged by
Acuity is: (1) a type of harm that the antitrust laws were intended to
remedy; (2) causally connected to the alleged antitrust violation;
and (3) directly linked to the alleged market restraint. Second,
Acuity claims that with more discovery, it can definitively prove lost
profits based on its exclusion from the market. Such evidence
would eliminate any concern about the speculative nature of
Acuity’s damages. Third, Acuity claims that it can prove, with more
discovery, that Davis Vision uses the marketing power it gains from
the Mandatory Lab Policy to eliminate competition so that Davis
Vision can provide its members with lower-quality lenses and poor
service at high prices. A jury could reasonably find that such a
motive, which harms consumers in the market, is improper.
Therefore, the Court finds that Davis Vision is not entitled to
summary judgment based on a failure to establish antitrust
standing.
B. The Court’s Earlier Rulings Are Dispositive on Counts II,
V, VI, VIII, VIII, and IX.

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1. Neither party is entitled to summary judgment on Count II
because the same reasonable dispute exists as to whether
Acuity has alleged a viable product market.
In Count II, Acuity claims that the Mandatory Lab Policy
violates Section 2 of the Sherman Act because the policy constitutes
an organized plan to create a monopoly. To prove this claim, Acuity
must prove two elements: (1) the possession of monopoly power in
the relevant market; (2) the willful acquisition or maintenance of
that power as distinguished from growth or development as a
consequence of a superior product, business acumen, or historic
accident. See Grinnell, 384 U.S. at 570-71. Davis Vision argues
that it is entitled to summary judgment on this claim because
Acuity does not allege a viable relevant product market, as is
required to prove the first element. Acuity, on the other hand,
argues that it has proven both elements as a matter of law. The
Court held, supra Part.A.3.c, that a reasonable dispute of material
fact exists as to whether Acuity has alleged a viable product market.
Therefore, neither party is entitled to summary judgment on Count
II.
2. Davis Vision is entitled to summary judgment on Count V
because Acuity’s claim of an illegal boycott under Section 3 of
the Clayton Act is judged by the same standard as Acuity’s
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claim of a per se unlawful forced group boycott under Section 1
of the Sherman Act.
In Count V, Acuity claims that the Mandatory Lab Policy
constitutes an illegal boycott under Section 3 of the Clayton Act.
An alleged boycott under Section 3 of the Clayton Act is analyzed
identically to an alleged per se unlawful horizontal forced group
boycott under Section 1 of the Sherman Act. See Tire Sales Corp. v.
Cities Service Oil Co., 637 F.2d 467, 474-75 (7th Cir. 1980) (using
the identical analysis for a group boycott under Section 1 of the
Sherman Act and Section 3 of the Clayton Act). The Court
previously found as a matter of law that the Mandatory Lab Policy
did not constitute an illegal boycott when analyzing the policy for
the purposes of Acuity’s claim under Section 1 of the Sherman Act.
Accordingly, the Mandatory Lab Policy does not constitute an illegal
boycott under Section 3 of the Clayton Act. Therefore, Davis Vision
is entitled to summary judgment on Count V.
3. Davis Vision is entitled to summary judgment on Counts VI and
XI but not on Counts VII and VIII because Acuity’s claims under
the Illinois Antitrust Act are judged by the same standards as
its parallel federal claims.
In Counts VI, VII, VIII, and IX, Acuity claims that Davis Vision
has violated subsections (1), (2), (3), and (4) of the Illinois Antitrust
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Act, respectively. Davis Vision argues that it is entitled to summary
judgment on these claims. However, the parties agree that Acuity’s
claims under the Illinois Antitrust Act parallel Acuity’s claims under
Section 1 and 2 of the Sherman Act and Section 3 of the Clayton
Act. Therefore, the Court’s rulings on Acuity’s state antitrust
claims must follow the Court’s rulings on Acuity’s federal claims.
Specifically, claims under Section 1 of the Illinois Act parallel per se
unlawful claims under Section 1 of the Sherman Act; claims under
Section 2 of the Illinois Act parallel non-per se unlawful claims
under Section 1 of the Sherman Act; claims under Section 3 of the
Illinois Act parallel claims under Section 2 of the Sherman Act; and
claims under Section 4 of the Illinois Act parallel claims under
Section 3 of the Clayton Act. See Kling v. St. Paul Fire & Marine
Ins. Co., 626 F.Supp. 1285, 1292 (C.D. Ill. 1986) (citing the
“similarity which exists in the interpretation of the Illinois Antitrust
Act and the Sherman Act” when applying the same standard to
claims brought under subsections (1), (2), and (3) of the Illinois Act
as Sections 1 and 2 of the Sherman Act); but see Int’l Test and
Balance, Inc. v. Associated Air and Balance Council, 14 F.Supp.2d
1033, 1040 (N.D. Ill. 1998) (clarifying that, unlike the Sherman Act,
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the Illinois Act splits the conspiracy provision into per se unlawful
conspiracies under subsection (1) and non per se unlawful
conspiracies under subsection (2)); see also Maywood Sportservice,
Inc. v. Maywood Park Trotting Assoc., 14 Ill. App. 3d 141, 151 (1st
Dist. 1973) (finding that “[t]he language in section 3 of the Clayton
Act is substantially identical” to that of Section 4 of the Illinois Act);
15 U.S.C. § 14 (Section 3 of the Clayton Act) and 740 ILCS 10/3(4)
(Section 4 of the Illinois Act) (still containing essentially identical
language). As a result, the parties make no additional arguments
on these claims.
Accordingly, Davis Vision is entitled to summary judgment on
Counts VI and IX (claims under Sections 1 and 4 of the Illinois Act),
based on this Courts earlier reasoning supra Part III.A.2.b. and Part
III.B.2.; and Davis Vision is not entitled to summary judgment on
Counts VII and VIII (claims under 740 ILCS 10/3 (2) and (3)), based
on this Court’s earlier reasoning supra Part III.A.3 and Part III.B.1.
C. Davis Vision Is Entitled to Summary Judgment on Counts
III, IV, X, XI, and XIV Because Acuity Fails to State a
Claim Upon Which Relief Can Be Granted.
In Counts III, IV, X, XI, and XIV, Acuity fails to state a claim
upon which relief can be granted. Therefore, Davis Vision is
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entitled to summary judgment on these counts. See Reed v.
Hanlon, 06-cv-1761, 2008 WL 696981, *4 (S.D. Ind. March 13,
2008) (granting summary judgment to defendant on certain counts
because plaintiff failed to state a claim upon which relief could be
granted); Class v. New Jersey Life Ins. Co., 746 F.Supp. 776, 780
(N.D. Ill. 1990) (same); Lane v. Molinar, S89-77, 1990 WL 610887,
*3 (N.D. Ind. Jan. 19, 1990) (same).
1. Acuity fails to state a claim that the Mandatory Lab Policy
constitutes unlawful tying under federal antitrust law (Count
III).
Davis Vision is entitled to summary judgment on Acuity’s
Count III tying claim because Acuity fails to state a tying claim.
Tying is the use of market power in one product market (the tying
market) to exercise unlawful market power over another product
market (the tied market). In order to state a tying claim, a
petitioner must satisfy four elements: (1) the tying arrangement is
between two distinct products or services; (2) the respondent has
sufficient economic power in the tying market to appreciably
restrain free competition in the market for the tied product; (3)
interstate commerce is affected; and (4) the tying seller has an

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economic interest in the sales of the tied seller. Reifert v. South
Cent. Wisconsin MLS Corp., 450 F.3d 312, 316 (7th Cir. 2006).
Acuity alleges that Davis Vision unlawfully ties in-network
status with Davis Vision to the purchase of lenses from Davis
Vision labs. However, Acuity does not state a tying claim for two
reasons: (1) in-network status is not a distinct product that is
bought and sold in the market place; and (2) unlike in Acuity’s
conspiracy claim, Acuity does not allege direct harm to itself based
on the tying and, therefore, cannot establish antitrust injury or
antitrust standing for its tying claim.
Acuity does not state a tying claim because in-network status
is not a product market. In-network status is not a product that is
produced and distributed in a competitive market. Rather, innetwork status is a status obtained by a provider by contracting
with Davis Vision. See Bendr v. Southland Corp., 749 F.2d 1205,
1215 (6th Cir. 1984) (a contractual obligation is not a product).
Based on the record, the only limitation on a provider’s ability to
contract with Davis Vision is Davis Vision’s requirement that the
provider agree to the Mandatory Lab Policy and the other terms of
the provider agreement. Acuity does not provide, or claim that it
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will be able to provide, any evidence that Davis Vision’s contractual
obligation to include a provider in the Davis Vision network is
gained as a result of competition with other providers or that Davis
Vision is unable to increase the size of its network to take in
whatever providers desire to join. See Ad-Vantage Telephone
Directory Consultants, Inc. v. GTE Directors Corp., 849 F.2d 1336,
1345 (11th Cir.) (Yellow Pages advertisement space was not a
competitive product market because Yellow Pages would increase
the size of its book to accommodate all advertisements). Because
Acuity does not allege that Davis Vision’s bargaining power comes
from market power in a product market, Acuity does not state a
tying claim.
Further, Acuity alleges that the harm resulting from the
alleged tying violation—unlike the harm alleged in the context of
Acuity’s previous federal claims—is Davis Vision’s ability to exploit
Davis Vision members by charging higher prices without needing to
provide top-quality products and service and Davis Vision’s ability
to exploit providers by offering below-market reimbursements while
failing to provide top-quality products and service. However,
neither of these harms affects Acuity. As the Court stated supra
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Part III.b.3., Acuity must show a direct injury to itself in order to
establish antitrust injury and antitrust standing, which are
necessary prerequisites to bringing an antitrust claim. See Car
Carriers, 745 F.2d at 1107 (to allege antitrust injury, a petitioner
must allege both “injury to [it]self” and “injury to the market”);
Kochert, 463 F.3d at 718 (to allege standing, a petitioner must show
a causal link between the violation and the harm suffered by the
petitioner). Therefore, Acuity does not state a tying claim for this
additional reason.
2. Acuity does not state a claim that Davis Vision engages in
predatory pricing claim under Section 2 of the Clayton Act
(Count IV).
Davis Vision is entitled to summary judgment on Acuity’s
Count IV predatory pricing claim because Acuity does not state a
predatory pricing claim. To state a predatory pricing claim, a
petitioner must show: (1) that the respondent has sold products
below cost, i.e., at a predatory price; and (2) that, as a result, the
respondent’s competition has exited the market, or imminently will
exit from market, allowing the respondent to, then, charge
monopoly prices in that market. Acuity alleges that Davis Vision
charges predatory prices for vision benefits premiums and, as a
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result, can charge monopoly prices in the lens market. Acuity’s
claim fails because Acuity does not even allege that Davis Vision’s
competitors in the vision benefits plan market have exited the
market or will exit the market as a result of Davis Vision’s low
premiums. As a result, even if Acuity proves its allegations, Acuity
would not be entitled to relief on this claim. Therefore, Davis Vision
is entitled to summary judgment on Count IV.
3. Davis Vision is entitled to summary judgment on Counts X, XI,
and XIV because Acuity has no private right of action under 215
ILCS 5/364.2, 215 ILCS 5/370i(a), or 16 C.F.R. 456/2(a). 
Davis Vision is entitled to summary judgment on three of
Acuity’s additional claims because the statutes/regulations under
which Acuity brings the claims do not create a private right of
action for Acuity: Count X and XI, alleging violations of the Illinois
Insurance Code (Purchase of ophthalmic good or services, 215 ILCS
5/364.2, and Polices, agreements, or arrangements with incentives
or limits on reimbursement authorized, 5/370i(a)); and Count XIV,
alleging a violation of a Federal Trade Commission regulation called
the Eyeglass Rule.
First, Acuity does not have a private right of action under
Section 364.2 or Section 370i(a) of the Illinois Insurance Code
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because the Code does not provide a private right of action for
violations of those provisions. See Policies Issued in Violation of
Article—Penalty, 215 ILCS 5/370 (providing only for a civil penalties
imposed by the Director). While some statutes imply a private right
of action, no Illinois court has ever found such a private right of
action to be implied by 215 ILCS 5/364.2 or 5/370i. This Court
will not imply a private right of action that has not been previously
recognized by the Illinois Courts. Further, the finding of an implied
private right of action is only appropriate if: “(1) the plaintiff is a
member of the class for whose benefit the statute was enacted; (2)
the plaintiff’s injury is one the statute was designed to prevent; (3) a
private right of action is consistent with the underlying purposes of
the statute; and (4) implying a private right of action is necessary to
provide an adequate remedy for violations of the statute.” Metzger
v. DaRosa, 209 Ill.2d 30, 36 (Ill. 2004). In both of Acuity’s claims
under the Illinois Insurance Code, Acuity is not a member of the
class whose benefit the statute was enacted and Acuity’s injury is
not one the statute was designed to prevent. Therefore, no private
action is implied for Acuity.

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Acuity attempts to bring a claim under the “Purchase of
ophthalmic goods or services” provision of the Illinois Insurance
Code. This provision prohibits an insurer from requiring a provider,
as a condition of joining the insurer’s network, to purchase
ophthalmic goods or services “in a quantity or dollar amount in
excess of the quantity or dollar amount an enrollee purchases
under the terms of the policy. See 215 ILCS 5/364.2. Acuity’s
allegations may mirror the prohibition’s language; however,
providers, not lens manufacturers like Acuity, are clearly the class
for whose benefit the statute was enacted and the class whose
injury the statute was enacted to remedy.
Acuity also attempts to bring a claim under the “Policies,
agreements or arrangements with incentives or limits on
reimbursement authorized” provision of the Illinois Insurance Code.
This provision prohibits an insurer from including a condition or
term in a policy or contract that unreasonably restricts an insured’s
access to healthcare. See 215 ILCS 5/370i(a). Again, Acuity’s
allegations may mirror the language of the statute; however, the
protected class includes only those who enter into insurance
contracts with an insurer. This Court does not imply a private
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cause of action for lens manufacturers. Therefore, Davis Vision is
entitled to summary judgment on Counts X and XI.
Similarly, Acuity’s claim under the Eyeglass Rule fails because
the Eyeglass Rule, a regulation requiring eye doctors to provide
patients with their prescription, does not create a private right of
action for Acuity. See 16 C.F.R. 456/2(a). Acuity admits that it
does not have a cause of action under this regulation and that it
only included the claim to “illustrate to the Court that the dangers
inherent in a doctor’s ability to exercise monopolistic control over
the manufacturing decisions of its patients has been the cause for
targeted federal rule making in the past.” Pet. Resp. to
Respondent’s Mot. Summ.J and Pet. Mot. for Partial Summ.J (d/e
30) at 65. Accordingly, Davis Vision is entitled to summary
judgment on Count XIV, as well.
D. Davis Vision Is Not Entitled to Summary Judgment on
Counts XII and XIII.
Acuity makes two final claims: (1) tortious interference with
prospective business advantage under Illinois common law; and (2)
violation of the Lanham Act (15 U.S.C.A. § 1125). Davis Vision

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seeks summary judgment on these counts, but both parties include
only a few sentences in argument on these claims in their briefs.
In Count XII, Acuity claims that the Mandatory Lab Policy
tortiously interferes with Acuity’s prospective business advantage.
To prove a claim for tortious interference with prospective business
advantage, a petitioner must show: (1) the petitioner had a
reasonable expectation of entering into a valid business
relationship; (2) the respondent was aware of petitioner’s
expectancy; (3) the respondent purposefully or intentionally
interfered with the petitioner’s expectancy; and (4) damages
resulted from the interference. See Cromeens, Holloman, Sibert,
Inc. v. AB Volvo, 349 F.3d 376, 398 (7th Cir. 2003). Davis Vision
argues that Acuity has no claim because Acuity’s expectation of
entering into a business relationship with providers is only
aspirational. However, as this Court has noted, Acuity has alleged
that, if given time for discovery, Acuity will produce affidavits from
providers conclusively showing that such providers would contract
with Acuity if the Mandatory Lab Policy did not exist. Therefore,
Davis Vision is not entitled to summary judgment on that ground.

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In Count XIII, Acuity claims that Davis Vision violates the
Lanham Act because Davis Vision intentionally keeps information
about the Mandatory Lab Policy from Davis Vision sponsors and
members, thereby misleading consumers about the origin of Davis
Vision’s lenses. To prove a claim of this nature under the Lanham
Act, the petitioner must show: (1) the respondent uses in commerce
a word, term, name, symbol, or any combination thereof, or any
false designation of origin, false or misleading description of fact, or
false or misleading representation of fact, (2) that is likely to cause
confusion, mistake, or deception as to the origin of the respondent’s
goods or services. See 15 U.S.C. 1125(a)(1)(A). Davis Vision argues
that Acuity does not state a claim because: (1) Acuity and Davis
Vision are not competitors; and (2) Acuity does not even allege that
Davis Vision made misrepresentations in commercial promotion.
However, Davis Vision’s argument refers to alternative claims that
can be made under the Lanham Act. The claim Acuity brings does
not require that Acuity compete with Davis Vision or that Davis
Vision have made misrepresentations in commercial advertising or
promotion. See 15 U.S.C.A. § 1125 (subsection (1)(B) requires that
the “false or misleading representation of fact” be made in
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“commercial advertising or promotion” and subsection (1)(A) and (B)
both permit claims for misrepresentations about a competitor but
subsection (1)(A) also allows claims for any use of false or
misleading information “in connection with any goods or services”
or “in commerce.”). Therefore, Davis Vision is not entitled to
summary judgment these grounds.
IV.

CONCLUSION

For the foregoing reasons, it is HEREBY ORDERED that Davis
Vision’s Motion for Summary Judgment (d/e 27) is GRANTED IN
PART and DENIED IN PART. Davis Vision’s motion for summary
judgment is GRANTED as to Counts III, IV, V, VI, IX, X, XI, and XIV
and DENIED WITH LEAVE TO REFILE THE MOTION AT THE
CLOSE OF DISCOVERY as to Counts I, II, VII, VIII, XII, and XIII.
Acuity’s Motion for Partial Summary Judgment (d/e 35) is DENIED.
This case is REFERRED to U.S. Magistrate Judge Tom
Schanzle-Haskins for a status conference on how discovery shall
proceed.
IT IS SO ORDERED.
ENTER: August 23, 2016

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FOR THE COURT:

s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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