BEAN v. 1-800 CONTACTS, INC.

Filing 19

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 2770) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 4/5/2017. Associated Cases: MDL No. 2770, PAE/2:16-cv-05726, PAE/2:16-cv-06417, UT/2:16-cv-01183, UT/2:16-cv-01257 (dld)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: 1-800 CONTACTS ANTITRUST LITIGATION

MDL No. 2770

ORDER DENYING TRANSFER

Before the Panel:* Plaintiffs in the District of District of Columbia Bartolucci action, which
since has been transferred to the District of Utah, move to centralize six actions in the District of
District of Columbia. The actions, which are listed on the attached Schedule A, are pending in the
Eastern District of Pennsylvania (two actions) and the District of Utah (four actions). The Panel has
been informed of an additional federal action involving related issues in the Eastern District of
Arkansas.
All responding plaintiffs support centralization in the District of District of Columbia, in the
first instance. In the alternative, plaintiffs in the two Eastern District of Pennsylvania actions (Bean
and Zimmerman) suggest the Eastern District of Pennsylvania as transferee district, while plaintiffs
in the District of Utah Thompson action suggest the District of Utah.
Common defendant 1-800 Contacts, Inc., opposes centralization. 1-800 Contacts agrees that
these actions should be litigated in a single venue – the District of Utah, but argues that the better
mechanism for achieving this is transfer under 28 U.S.C. § 1404.
On the basis of the papers filed and the hearing session held, we deny the Bartolucci
plaintiffs’ motion. As all parties acknowledge, these Sherman Act putative class actions share
factual issues stemming from allegations that 1-800 Contacts entered into reciprocal “bidding
agreements” with more than a dozen of its rivals under which the parties agreed not to compete
against one another in certain online search advertising auctions.1 There also is no dispute that these
actions should be litigated together. The only real dispute is whether Section 1404 or Section 1407
is the better means for accomplishing that objective.
*

One or more Panel members who could be members of the putative class in this litigation
have renounced their participation in that class and have participated in this decision.
1

Allegedly, under these bidding agreements, the parties agreed not to bid in any search
advertising auctions for any of their respective trademarked terms or variations thereof. In addition,
many of the agreements required the parties to employ “negative keywords” directing the search
engines not to display the competitor’s advertisement in response to a search query that included any
of the other party’s trademarked terms or variations thereof. Thus, for example, a consumer who
tried to locate and purchase contact lenses online using a query such as “1-800 Contacts” would be
unable to find sellers of contact lenses other than 1-800 Contacts.

-2As we repeatedly have held, “where ‘a reasonable prospect’ exists that the resolution of a
Section 1404 motion or motions could eliminate the multidistrict character of a litigation, transfer
under Section 1404 is preferable to Section 1407 centralization.” E.g., In re: 3M Co. Lava Ultimate
Prods. Liab. Litig., — F. Supp. 3d —, 2016 WL 4153598, at *1 (J.P.M.L. Aug. 5, 2016) (quoting
In re: Gerber Probiotic Prods. Mktg. and Sales Practices Litig., 899 F. Supp. 2d 1378, 1380
(J.P.M.L. 2012)). Such a prospect plainly exists here. The two earliest-filed actions in the District
of Utah were transferred to that district under Section 1404 from the Northern and Southern Districts
of California, respectively, in late 2016. More recently, the District of District of Columbia court
transferred the Bartolucci and Henry actions to the District of Utah on 1-800 Contacts’ opposed
Section 1404 motion. In the two Eastern District of Pennsylvania actions, 1-800 Contacts’ Section
1404 motions are pending. Given these circumstances, centralization under Section 1407 is not
warranted.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: 1-800 CONTACTS ANTITRUST LITIGATION

MDL No. 2770

SCHEDULE A

Eastern District of Pennsylvania
BEAN v. 1-800 CONTACTS, INC., C.A. No. 2:16-05726
ZIMMERMAN, ET AL. v. 1-800 CONTACTS, INC., C.A. No. 2:16-06417
District of Utah
THOMPSON, ET AL. v. 1-800 CONTACTS, INC., ET AL., C.A. No. 2:16-01183
STILLINGS v. 1-800-CONTACTS, INC., C.A. No. 2:16-01257
BARTOLUCCI, ET AL. v. 1-800 CONTACTS, INC., C.A. No. [pending]
HENRY v. 1-800 CONTACTS, INC., ET AL., C.A. No. [pending]