Bartolucci v. 1-800 Contacts, Inc. ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DANIEL J. BARTOLUCCI and )
EDWARD UNGVARSKY, )
On behalf of themselves and all )
others similarly situated, )
)
Plaintiffs, )
)
v. ) Civil Action No. 17-00097 (ABJ)
)
1-800 CONTACTS, INC., )
)
Defendant. )
____________________________________)
)
ELIZABETH HENRY, )
On behalf of herself and all others )
similarly situated, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-00117 (ABJ)
)
1-800 CONTACTS, INC., et al. )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION AND ORDER
Plaintiffs Daniel Bartolucci and Edward Ungvarsky sued defendant 1-800 Contacts, Inc.
(“1-800 Contacts”), alleging that it agreed, and conspired to agree, with other online retailers
selling contact lenses nationwide to restrain trade in violation of the Sherman Antitrust Act and
the District of Columbia’s consumer protection laws. Compl. ¶¶ 2, 5 [No. 1:17-cv-00097,
Dkt. # 1] (“Bartolucci Compl.”). Plaintiff Elizabeth Henry filed a separate lawsuit against 1-800
Contacts, as well as Vision Direct, Inc. (“Vision Direct”), and fifteen unnamed “John Doe” co-
conspirators, alleging violations of the Sherman Act, and separate violations of New York state
law. Compl. ¶¶ 1, 39 [No. 1:17-cv-00117, Dkt. # 1] (“Henry Compl.”). Each plaintiff seeks to
represent a nationwide class of similarly-situated consumers for its federal claims, and a separate
sub-class of similarly-situated consumers for their state law claims. Bartolucci Compl. ¶¶ 41, 55;
Henry Compl. ¶¶ 70–71.
Defendant 1-800 Contacts has filed a consolidated motion to transfer both cases under 28
U.S.C. § 1404(a). It asks the Court to transfer the cases to the U.S. District Court for the District
of Utah, where 1-800 Contacts is headquartered, and where two similar cases against the company
are already pending, having already been transferred there from California. 1 Def. 1-800 Contacts,
Inc.’s Mot. to Transfer Venue to the District of Utah [No. 1:17-cv-00097, Dkt. # 8] (“Def.’s
Mot.”); 1-800 Contacts’ Mem. of P. & A. in Supp. of Def.’s Mot. at 3–4 [No. 1:17-cv-00097, Dkt.
# 8-1] (“Def’s. Mem.”). 2 Plaintiffs filed a joint memorandum in opposition to the motion to
transfer, arguing that transfer is not warranted, and that pretrial consolidation under 28
U.S.C. § 1407, which they have already sought before the Judicial Panel on Multidistrict Litigation
(“JPML”), is more appropriate. Pls.’ Joint Mem. of P. & A. in Opp. to Def.’s Mot. [No. 1:17-cv-
00097, Dkt. # 17] (“Pls.’ Opp.”) at 1–3. 3
For the reasons stated below, the Court will grant the motion to transfer.
1 See Thompson v. 1-800 Contacts, Inc., No. 2:16-cv-1183 (D. Utah) (transferred from the
Southern District of California on November 21, 2016); Stillings v. 1-800 Contacts, Inc., No. 2:16-
cv-1257 (D. Utah) (transferred from the Northern District of California on December 8, 2016).
2 The motion to transfer was also filed in the Henry action. Def.’s Mot. [No. 1:17-cv-00117,
Dkt. # 6]; Def.’s Mem. [No. 1:17-cv-00117, Dkt. # 6-1]. Any citation to defendant’s motion or
memorandum refers to both docket entries, unless otherwise noted.
3 Plaintiffs filed their joint memorandum in the Henry action as well. See Pls.’ Opp. [No.
1:17-cv-00117, Dkt. # 17]. Any citation to plaintiffs’ joint memorandum refers to both docket
entries, unless otherwise noted.
2
BACKGROUND
1-800 Contacts is a corporation headquartered in Draper, Utah, and defendant Vision
Direct is a corporation headquartered in Bellevue, Washington. Bartolucci Compl. ¶ 10; Henry
Compl. ¶¶ 20–21. The corporate defendants engage in the sale of contact lenses over the internet.
Bartolucci Compl. ¶¶ 2, 4; Henry Compl. ¶ 1. The lawsuits are nationwide class actions alleging
that 1-800 Contacts entered into agreements with its competitors to resolve actual or threatened
trademark litigation, and that these agreements, which are alleged to be in restraint of trade in
violation of the Sherman Act and state law, result in higher prices for consumers.
The lawsuits pending before the Court are two of seven similar antitrust actions that have
been filed against defendant 1-800 Contacts and several of its competitors arising out of the same
set of facts and circumstances. 4 The following four lawsuits were filed before the instant actions
were filed in this Court:
x Stillings v. 1-800 Contacts, Inc., No. 2:16-cv-01257 (D. Utah) was filed in
the Northern District of California on September 21, 2016, and transferred
to the District of Utah on December 8, 2016. Plaintiff is a resident of Contra
Costa County, California, who seeks to represent a nationwide class of
consumers that was allegedly overcharged for the contact lenses sold by 1-
800 Contacts, in violation of the Section 1 of the Sherman Act.
x Thompson, et al. v. 1-800 Contacts, Inc., et al., No. 2:16-cv-01183 (D. Utah)
was filed in the Southern District of California on October 13, 2016, and
transferred to the District of Utah on November 21, 2016. Plaintiffs, both
residents of California, filed suit against 1-800 Contacts, Vision Direct, and
fifteen unnamed co-conspirators under Section 1 of the Sherman Act and
under California state law. They seek to represent a nationwide class for
their federal antitrust claims, and a separate sub-class of consumers in
California for their state law claims.
4 In addition to the cases filed in federal district courts across the country, there is also an
ongoing administrative proceeding, which was initiated on August 8, 2016 by the Federal Trade
Commission, against 1-800 Contacts and its competitors. See In re 1-800 Contacts, Inc., No. 9372,
2017 WL 511541 (F.T.C. Feb. 1, 2017).
3
x Bean v. 1-800 Contacts, Inc., No. 2:16-cv-05726 (E.D. Pa.) was filed on
November 2, 2016. Plaintiff, a resident of Pennsylvania, seeks to represent
a nationwide class of consumers for her claims under Sections 1 and 2 of
the Sherman Act, and a separate sub-class of consumers in Pennsylvania for
her state law claims.
x Zimmerman, et al. v. 1-800 Contacts, Inc., No. 2:16-cv-06417 (E.D. Pa.)
was filed on December 13, 2016. Plaintiffs, residents of Pennsylvania, New
York, New Jersey, Texas, and California, seek to represent a nationwide
class of consumers for their claims under Section 1 of the Sherman Act, and
each plaintiff also seeks to represent a separate sub-class of consumers in
their respective home states for violations of those states’ laws.
The two lawsuits filed in this district largely mirror the actions that were pending when
they were filed.
x The Bartolucci complaint was filed on January 13, 2017. Bartolucci
Compl. Plaintiffs are residents of Washington, D.C. who purchased contact
lenses from 1-800 Contacts through its website at allegedly anticompetitive
prices. Id. ¶¶ 8–9. They filed suit against 1-800 Contacts alleging
violations of Section 1 of the Sherman Act, 15 U.S.C. § 1, and violations of
the District of Columbia Consumer Protections Procedures Act, D.C. Code
§ 28-3901, et seq. Id. ¶¶ 87–105. Plaintiffs seek to represent a nationwide
class of consumers for their federal antitrust claims, and a separate sub-class
of consumers in the District of Columbia for their D.C. law claims. Id. ¶¶ 2,
5–9.
x On January 18, 2017, plaintiff Henry, a resident of New York, filed suit in
this Court against 1-800 Contacts, Vision Direct, and fifteen unnamed co-
conspirators under Sections 1, 2, and 3 of the Sherman Act, and under New
York General Business Law, N.Y. Gen. Bus. Law § 349(a). Henry Compl.
¶¶ 1, 10–28. Plaintiff Henry also seeks to represent a nationwide class of
consumers for her federal antitrust claims, in addition to a separate sub-class
of similarly-situated consumers in the state of New York for her state law
claim. Id. ¶¶ 71–72.
One more case was filed after the two cases were filed here:
x Nance v. 1-800 Contacts, Inc., No. 4:17-cv-00178 (E.D. Ark.) was filed on
March 22, 2017. Plaintiff, a resident of Arkansas, seeks to represent a
nationwide class for his claim under Section 1 of the Sherman Act, and a
separate sub-class of consumers in Arkansas for his state law claim.
4
Plaintiffs allege that 1-800 Contacts was facing growing competition from other online
retailers of contact lenses and asserted its trademark rights over phrases such as “1-800 Contacts.”
Bartolucci Compl. ¶¶ 3, 18–20; Henry Compl. ¶¶ 6–7. This effort began in 2004 with cease-and-
desist letters, followed by lawsuits filed against competitors aimed at preventing them from
advertising their products in response to queries on popular search engines such as Google and
Bing. Bartolucci Compl. ¶¶ 18–20; Henry Compl. ¶¶ 6–7. Plaintiffs allege that 1-800 Contacts
settled “baseless” trademark lawsuits it had filed against its competitors, and that those settlements
amounted to “unlawful agreements under which [the competitors] agreed not to place bids for
online advertising that would run in response to specified internet search queries, including any
search containing the term ‘1-800 Contacts.’” Bartolucci Compl. ¶ 5; see Henry Compl. ¶ 5. All
of the lawsuits in question were filed in the District of Utah, and only one of the defendants
litigated the matter to judgment; 5 the rest settled. See Bartolucci Compl. ¶ 18; Henry Compl. ¶ 7;
Def.’s Mem. at 13.
Plaintiffs allege that when 1-800 Contacts and its competitors settled those disputes, and
the competitors agreed to refrain from advertising their products in response to search queries
containing terms such as “1-800 Contacts,” they also agreed to set up a system of “negative
keywords.” Bartolucci Compl. ¶¶ 3, 18–20; Henry Compl. ¶ 7. These would direct particular
search engines not to display the competitors’ products when a potential customer initiated such a
search query, even when that query would otherwise have produced results directing potential
customers to the competitors’ webpages. Bartolucci Compl. ¶¶ 18–20; Henry Compl. ¶ 7.
Plaintiffs claim that because “1-800 Contacts did not want to lower its prices to compete” with its
5 Only one competitor, Lens.com, refused to enter into an agreement and proceeded to
litigate 1-800 Contacts’ trademark claim in Utah. See 1-800 Contacts, Inc. v. Lens.com, Inc., 722
F.3d 1229 (10th Cir. 2013).
5
“lower priced online competitors,” it created a scheme that “artificially fixed, raised, maintained
and/or stabilized the prices for contact lenses” by manipulating the placement of online
advertisements. Henry Compl. ¶¶ 85, 110; Bartolucci Compl. ¶¶ 16, 88. And they claim that these
agreements reduced competition in the market. See Bartolucci Compl. ¶ 35; Henry Compl. ¶¶ 39–
40.
Shortly after the plaintiffs in the Bartolucci matter filed their lawsuit, they asked the
Judicial Panel for Multidistrict Litigation to consolidate all of the pending cases in the District of
Columbia under 28 U.S.C. § 1407. In re: 1-800 Contacts Antitrust Litig., MDL Case No. 2770,
Dkt. # 1 (J.P.M.L. Jan. 24, 2017). The other named plaintiffs voiced their support for the motion
for pretrial consolidation on February 15, 2017. See In re: 1-800 Contacts Antitrust Litig., MDL
Case No. 2770, Dkt. ## 20, 21, 23, 24 (J.P.M.L. Feb. 15, 2017) (filings in support of pretrial
consolidation by plaintiffs Stillings, Thompson, Zimmerman, Bean, and Henry).
On January 31, 2017, defendant 1-800 Contacts moved under 28 U.S.C. § 1404(a) to
transfer the Bartolucci and Henry actions to the District of Utah. 6 Def.’s Mot. Plaintiffs jointly
opposed the motion to transfer, Pls.’ Opp., and defendant filed a reply in support of its motion on
6 On February 1, 2017, plaintiffs in both actions moved jointly to stay all proceedings in this
Court pending the JPML’s decision on Bartolucci’s section 1407 motion to consolidate. Joint Mot.
for Temporary Stay of All Proceedings Pending Ruling on Mot. for Transfer & Coordination by
the JPML [No. 1:17-cv-00097, Dkt. # 10] (“Pls.’ Joint Mot. to Stay”); Pls.’ Joint Mot. to Stay [No.
1:17-cv-00117, Dkt. # 8]. Defendant 1-800 Contacts opposed the motion to stay the next day in
both cases. Def. 1-800 Contacts’ Opp. to Pls.’ Joint Mot. to Stay [No. 1:17-cv-00097, Dkt. # 12]
(“Def.’s Opp. to Stay”); Def.’s Opp. to Stay [No. 1:17-cv-00117, Dkt. # 9]. The Court granted
that motion in part on February 3, 2017, staying all proceedings other than defendant’s section
1404(a) motion to transfer. Min. Order (Feb. 3, 2017).
6
March 6, 2017. 1-800 Contacts’ Reply in Supp. of Def.’s Mot. [No. 1:17-cv-00097, Dkt. # 19]
(“Def.’s Reply”); Def.’s Reply [No. 1:17-cv-00117, Dkt. # 20]. 7
STANDARD OF REVIEW
“For the convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought . . . .”
28 U.S.C. § 1404(a). The Court has “broad discretion” to transfer a case under section 1404. In
re Scott, 709 F.2d 717, 719 (D.C. Cir. 1983). The defendant, as the moving party, bears the burden
of establishing that transfer is proper. Greater Yellowstone Coal. v. Bosworth, 180 F. Supp. 2d
124, 127 (D.D.C. 2001). The decision to transfer requires an “individualized, case-by-case
consideration of convenience and fairness.” Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).
A court is not deprived of its discretion to transfer cases during the pendency of a section
1407 motion for pretrial consolidation. See J.P.M.L. Rule 2.1(d) (“The pendency of a motion
. . . before the Panel pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial
proceedings in any pending federal district court action and does not limit the pretrial jurisdiction
of that court.”). Indeed, the JPML itself has noted that “where a reasonable prospect exists that
resolution of Section 1404 motions could eliminate the multidistrict character of a litigation,
7 Defendant Vision Direct has yet to be served or enter an appearance in the Henry action,
and has not joined 1-800 Contacts’ motion. The Court has broad discretion to order a transfer and
may even do so sua sponte. In re Scott, 709 F.2d 717, 721 (D.C. Cir. 1983). Moreover, the Court
notes that Vision Direct has not opposed transferring similar claims to the District of Utah. See
Joint Mot. to Transfer Venue to District of Utah, Thompson v. 1-800 Contacts, Inc., No. 3:16-cv-
02552 (S.D. Cal.) [Dkt. # 20] at 2 (“Plaintiffs . . . and Defendant[] 1-800 Contacts, Inc. . . . submit
this joint motion for an order transferring this action to the United States District Court for the
District of Utah pursuant to 28 U.S.C. § 1404(a). Defendant Vision Direct, Inc. has confirmed that
it also does not oppose this request.”). Thus, the Court will proceed to rule on the motion to
transfer despite the lack of input from Vision Direct.
7
transfer under Section 1404 is preferable to centralization.” In re: Gerber Probiotic Prod. Mktg.
& Sales Practices Litig., 899 F. Supp. 2d 1378, 1380 (J.P.M.L. 2012).
The threshold question under section 1404(a) is whether the action “might have been
brought” in the transferee district. 28 U.S.C. § 1404(a). This limitation imposes two prerequisites
to transferability: (1) “venue must be proper in the transferee district;” and (2) “the defendants
must be subject to the process of the federal court in the transferee district at the time the action
was originally filed.” Relf v. Gasch, 511 F.2d 804, 806–07 (D.C. Cir. 1975).
Venue in a civil case is proper in:
(1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction with respect
to such action.
28 U.S.C. § 1391(b). The statute further provides that a corporate defendant is deemed to reside
“in any judicial district in which such defendant is subject to the court’s personal jurisdiction with
respect to the civil action in question.” 28 U.S.C. § 1391(c)(2). And under the second prerequisite,
“a defendant is subject to process in the transferee court if the defendant would have been subject
to personal jurisdiction in the transferee court at the time the suit was brought.” Levin v. Majestik
Surface Corp., 654 F. Supp. 2d 12, 15 (D.D.C. 2009), citing Hoffman v. Blaski, 363 U.S. 335, 343–
44 (1960).
In addition, Section 12 of the Clayton Antitrust Act specifically provides that “[a]ny suit,
action, or proceeding under the antitrust laws against a corporation may be brought not only in the
8
judicial district whereof it is an inhabitant, but also in any district wherein it may be found or
transacts business.” 15 U.S.C. § 22.
If the threshold requirement of venue has been met, the Court must then go on to balance
case-specific private interest and public interest factors to determine whether transfer is
appropriate. See Wilderness Soc’y v. Babbitt, 104 F. Supp. 2d 10, 12 (D.D.C. 2000). Private
interest considerations include:
(1) the plaintiffs’ choice of forum, unless the balance of convenience is
strongly in favor of the defendants;
(2) the defendants’ choice of forum;
(3) whether the claim arose elsewhere;
(4) the convenience of the parties;
(5) the convenience of the witnesses of the plaintiff and defendant but
only to the extent that the witnesses may actually be unavailable for
trial in one of the fora; and
(6) the ease of access to sources of proof.
Trout Unlimited v. U.S. Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). And the public interest
considerations include:
(1) the transferee’s familiarity with the governing laws;
(2) the relative congestion of the calendars of the potential transferee and
transferor courts; and
(3) the local interest in deciding local controversies at home.
Id.
ANALYSIS
Defendant maintains that both lawsuits could have been brought in the District of Utah,
and plaintiffs do not dispute this contention. See Def.’s Mem. at 13; Pls.’ Opp.; Def.’s Reply at
9
5. 8 Therefore, the Court need only examine and balance the private and public interest factors.
See Lentz v. Eli Lilly & Co, 464 F. Supp. 2d 35, 36 (D.D.C. 2006) (determining on a motion to
transfer that only the second inquiry requires examination where it is undisputed that the action
could have been brought in the transferee district).
I. The private interest factors weigh in favor of transferring both actions.
A. Plaintiffs’ Choice of Forum
The D.C. Circuit has held that “a plaintiff’s choice of forum will rarely be disturbed . . .
unless the balance of convenience is strongly in favor of the defendant.” Gross v. Owen, 221 F.2d
94, 95 (D.C. Cir. 1955). The plaintiff’s choice of forum is often accorded deference “where the
plaintiffs have chosen their home forum and many of the relevant events occurred there.” New
Hope Power Co. v. U.S. Army Corps of Eng’rs, 724 F. Supp. 2d 90, 95 (D.D.C. 2010), citing Great
Socialist People’s Libyan Arab Jamahiriya v. Miski, 946 F. Supp. 2d 137, 144–45 (D.D.C. 2007).
But an “insubstantial factual nexus between the case and the plaintiff’s chosen forum” will weaken
the deference given to plaintiff’s forum. Id. Additionally, “in a class action suit in which the
plaintiffs propose to represent a class of potential plaintiffs who reside throughout the country, the
plaintiffs’ choice of forum deserves less weight than it is typically given.” Berenson v. Nat’l Fin.
Servs., LLC, 319 F. Supp. 2d 1, 3 (D.D.C. 2004).
8 The Court is also independently satisfied that both actions could have been brought in the
District of Utah. Venue is proper in the District of Utah under 28 U.S.C. § 1391 and Section 12
of the Clayton Act because 1-800 Contacts maintains its principal place of business in Draper,
Utah, defendant Vision Direct markets and sells its products nationwide, plaintiffs allege that 1-
800 Contacts “engineered” a “hub-and-spoke” conspiracy that would have emanated from its
headquarters in Utah, and a substantial part of the events giving rise to plaintiffs’ claims took place
in Utah. See Bartolucci Compl. ¶¶ 10, 18–22; Henry Compl. ¶¶ 21, 56. Moreover, each corporate
defendant would be subject to process in the District of Utah because they are each subject to
personal jurisdiction there due to their establishment of business contacts in Utah by affirmatively
selling and marketing their products. See Bartolucci Compl. ¶ 13; Henry Compl. ¶ 12; Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 473–76 (1985).
10
Plaintiff Henry is a resident of New York, so this is not her home forum. And the Henry
complaint alleges no other connection to the District of Columbia, other than the fact that defendant
does business here – as it does throughout the country – over the internet. Henry Compl. ¶¶ 12–
13, 18. So her choice of forum carries little weight.
Plaintiffs Bartolucci and Ungvarsky are residents of the District of Columbia, but like
plaintiff Henry, they claim that they purchased their contact lenses directly from the 1-800
Contacts website. Bartolucci Compl. ¶¶ 8–9; Henry Compl. ¶ 19. Plaintiffs Bartolucci and
Ungvarsky argue that they suffered their injury – paying an inflated price – in Washington, D.C.
Bartolucci Compl. ¶¶ 8–9; see also Pls.’ Opp. at 12. Even if this connection to the District of
Columbia requires the Court to accord some deference to the Bartolucci plaintiffs’ choice of forum,
that deference is not entitled to great weight.
First, the District of Columbia has “no meaningful nexus to the controversy and the
parties.” Greater Yellowstone Coal., 180 F. Supp. 2d at 128 (emphasis added). The controversy
involves alleged restraints on trade that took place across the country, and neither defendant has
any connection to the District of Columbia other than the fact that both conduct nationwide
business. At a minimum, the District of Columbia’s connection to the controversy and to the
defendants is identical to that of any other jurisdiction.
Additionally, both lawsuits seek to represent a nationwide class of consumers, which serves
to reduce the deference typically given to a plaintiff’s choice of forum. Berenson, 319 F. Supp.
2d at 3. Plaintiffs acknowledge this proposition in their pleading. See Pls.’ Opp. at 13.
Because there is an insubstantial factual nexus to the District of Columbia in both cases,
and because both cases involve nationwide class actions, plaintiffs’ choice of forum is entitled to
limited deference. Therefore, the first factor is neutral, or at best, favors plaintiffs only slightly.
11
B. Defendants’ Choice of Forum
Defendants’ choice of forum is not ordinarily entitled to deference unless defendants can
“establish that the added convenience and justice of litigating in its chosen forum overcomes the
deference ordinarily given to the plaintiff’s choice.” Sheffer v. Novartis Pharms. Corp., 873 F.
Supp. 2d 371, 376 (D.D.C. 2012). But a defendant’s choice of forum will be accorded some weight
when there are parallel proceedings in the proposed district. See Fed. Hous. Fin. Agency v. First
Tenn. Bank Nat’l Ass’n, 856 F. Supp. 2d. 186, 193 (D.D.C. 2012).
Here, two similar cases are currently pending in the District of Utah, and transfer of the
Bartolucci and Henry actions will serve the interests of judicial economy. See generally Van
Dusen, 376 U.S. at 616 (observing that the purpose of section 1404(a) transfer “is to prevent the
waste of time, energy and money, and to protect litigants, witnesses and the public against
unnecessary inconvenience and expense”), quoting Cont’l Grain Co. v. Barge F.B.L.–585, 364
U.S. 19, 26–27 (1960). So, this factor weighs in favor of transfer.
C. Whether the Claim Arose Elsewhere
Transfer is favored when “the material events that form the factual predicate of the
plaintiff’s claim did not occur in the plaintiff’s chosen forum.” Sheffer, 873 F. Supp. 2d at 376,
citing Intrepid Potash-N.M., LLC v. U.S. Dep’t of Interior, 669 F. Supp. 2d 88, 95 (D.D.C. 2009).
Plaintiffs do not contend that any meaningful portion of the events leading to this case occurred in
the District of Columbia. Rather, the complaints focus on arrangements concerning the sale and
marketing of contact lenses across the country online.
Defendant maintains that the material events underlying these two cases – the corporate
decisions to initiate both the cease and desist letters and the lawsuits, the settlement of any
litigation or threatened litigation, and the implementation of the settlement agreements alleged to
12
be in restraint of trade – all took place in Utah. Def.’s Mem. at 18–20; see Berenson, 319 F. Supp.
2d at 4 (concluding that a claim arose where the corporate decisions were made). While plaintiffs
argue that defendant overstates the relevance of Utah to their antitrust actions, they do specifically
allege that the litigation in Utah was “baseless,” Bartolucci Compl. ¶¶ 5, 73; Henry Compl. ¶¶ 6,
118, and they confirm that their claims are based on some of the private settlement agreements 1-
800 Contacts later negotiated with its competitors. Pls.’ Opp. at 9–11.
Thus, to the extent any of the events forming the factual predicate of these nationwide class
actions happened in any particular state, they happened in Utah, and plaintiffs point to nothing that
would distinguish the District of Columbia from any other location in the country. Therefore, this
factor weighs in favor of transfer.
D. Convenience of the Parties
No party thoroughly addresses this factor, and instead the parties focus more on the
convenience of the witnesses, which will be discussed below. But for the convenience of the
parties factor to weigh in favor of transfer, “litigating in the transferee district must not merely
shift inconvenience to the non-moving party; instead, it should lead to increased convenience
overall.” Mazzarino v. Prudential Ins. Co. of Am., 955 F. Supp. 2d 24, 31 (D.D.C. 2013), citing
U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., 771 F. Supp. 2d 42, 48 (D.D.C. 2011)
and Kotan v. Pizza Outlet, Inc., 400 F. Supp. 2d 44, 50 (D.D.C. 2005).
Plaintiffs Bartolucci and Ungvarsky both reside in the District of Columbia, so they would
be required to travel to the District of Utah if the case is transferred. However, because plaintiff
Henry resides in New York, she will have to travel regardless of transfer, so her inconvenience
does not weigh heavily in the equation. Defendant 1-800 Contacts is headquartered in Utah, and
Vision Direct is headquartered in Washington State, so many of their officers and employees are
13
located in those places. See Def.’s Mem. at 8–9. As the actions are currently filed in the District
of Columbia, the inconvenience of traveling currently rests on defendants. So any transfer to the
District of Utah would merely shift the inconvenience from defendants to plaintiffs.
Therefore, this factor is neutral.
E. Convenience of Witnesses
“The convenience of the witnesses has been described as ‘the most critical factor’” on a
motion to transfer. Sheffer, 873 F. Supp. 2d at 377, quoting Pyrocap Int’l Corp. v. Ford Motor
Co., 259 F. Supp. 2d 92, 97 (D.D.C. 2003). But the convenience of the witnesses is only
considered “to the extent that the witnesses may actually be unavailable for trial in one of the fora.”
Bederson v. United States, 756 F. Supp. 2d 38, 49 (D.D.C. 2010), quoting Mohammadi v. Scharfen,
609 F. Supp. 2d 14, 18 (D.D.C. 2009). “Without evidence to the contrary, courts assume that
witnesses will voluntarily appear.” Id., quoting Mahoney v. Eli Lilly & Co., 545 F. Supp. 2d 123,
127 (D.D.C. 2008).
To favor transfer, the moving party must specify “what a nonresident witness will testify
to, the importance of the testimony to the issues in the case, and whether that witness is willing to
travel to a foreign jurisdiction.” Sheffer, 873 F. Supp. 2d at 378, quoting Thayer/Patricof Educ.
Funding, L.L.C. v. Pryor Res., Inc., 196 F. Supp. 2d 21, 33 (D.D.C. 2002). Defendant has not
addressed all three prongs of that showing; it simply argues that because the majority of the
witnesses are located in Utah, they will be unavailable for trial and outside of the District of
Columbia court’s subpoena power. See Def.’s Mem. at 18. This is not a sufficient showing to
weigh in favor of transfer, so this factor remains neutral.
14
F. Ease of Access to the Sources of Proof
There is little in either brief about this factor. While access to proof is still relevant in a
motion to transfer inquiry, modern technology has made “the location of documents [] much less
important” to a determination of convenience than it once was. Sheffer, 873 F. Supp. 2d at 378,
citing Thayer/Patricof, 196 F. Supp. 2d at 36.
Plaintiffs note that in the FTC action, 1-800 Contacts built its case “in large part, on
evidence held and witnesses residing outside of Utah,” Pls.’ Opp. at 14, and they add that “relevant
documents . . . are almost certainly being produced [by defendant] in the District of Columbia for
the FTC action.” Id. at 16. But there is nothing in the record to suggest that it would be easier to
gain access to evidence in either place.
So this factor is neutral, but taken as a whole, the private interest factors favor transfer.
II. The public interest factors weigh in favor of transferring both actions.
A. Transferees’ Familiarity with the Governing Laws
With regard to plaintiffs’ federal law claims, “[a]ll federal courts are presumed to be
equally familiar with the law governing federal statutory claims.” Fed. Hous. Fin. Agency, 856
F. Supp. 2d. at 194, quoting Miller v. Insulation Contractors, Inc., 608 F. Supp. 2d 97, 103
(D.D.C. 2009).
And with regard to plaintiffs’ claims predicated on the laws of the District of Columbia
and the state of New York, the addition of these claims does not militate against transfer. First
of all, plaintiffs do not even mention their state law claims while discussing this factor in their
brief. See Pls.’ Opp. at 17. And while this Court may be more frequently called upon to apply
D.C. law than are the judges in the District of Utah, neither court has a particular connection to
the New York statutes relied upon in the Henry case, and in any event, all federal courts are more
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than capable of adjudicating state law claims from a variety of jurisdictions. See Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 584 (2013) (“[F]ederal judges
routinely apply the law of a State other than the State in which they sit.”).
Thus, the first public interest factor is neutral.
B. Relative Congestion of the Courts
When considering the congestion of the courts, the Court compares “the districts’ median
times from filing to disposition or trial.” Sheffer, 873 F. Supp. 2d at 380, citing Pueblo v. Nat’l
Indian Gaming Comm’n, 731 F. Supp. 2d 36, 40 n.2 (D.D.C. 2010).
Plaintiffs claim that the District of Columbia has a shorter median time from filing to
disposition than the District of Utah: 7.8 months compared to 10.4 months. Pls.’ Opp. at 17. But
defendant claims that the District of Utah has a shorter median time from filing to trial: 34.2
months compared to 41.8 months. Def.’s Reply at 10–11. Because these statistics essentially
cancel one another out, this factor is neutral. See Sheffer, 873 F. Supp. 2d at 380–81 (finding that
when one court has a quicker time to trial, and the other court has a quicker time to disposition,
the congestion of the courts “factor is in equipoise” and is “not very helpful”).
C. Local Interests in Deciding Local Controversies
The third and final public interest factor is the local interest in deciding local controversies
at home. Plaintiffs contend that because plaintiffs Bartolucci and Ungvarsky reside in the District
of Columbia, the District of Columbia has a local interest in these cases. Pls.’ Opp. at 17.
Obviously, that does nothing to tie this Court to plaintiff Henry’s case, and given the District’s
tangential connection to one of the complaints, the Court finds that it is Utah that has the greater
interest in adjudicating this controversy. Defendant is headquartered there, and many of the
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underlying events giving rise to plaintiffs’ claims – including the filing and resolution of the
trademark actions – took place there. See Def.’s Reply at 11.
Further, even if two plaintiffs do live in the District of Columbia, plaintiffs themselves
style these lawsuits as national class actions arising out of interstate commerce and the internet.
“When national significance attaches to a controversy, local interest can sometimes be
diminished.” Sheffer, 873 F. Supp. 2d at 381. Because there is national interest in the enforcement
of federal antitrust laws, no single jurisdiction can truly claim a uniquely particularized interest in
them. Therefore, any interest the District of Columbia may have, and even Utah’s local interest in
adjudicating these cases, is diminished due to the national significance of these cases. So this
factor weighs in favor of transfer, but it is not a particularly weighty factor under these
circumstances.
III. Additional public interest factors unique to these two actions favor transfer.
The circumstances surrounding the specific claims at issue call for the discussion of three
additional public interest factors. First, since two of the seven antitrust actions filed against these
defendants have already been transferred to the District of Utah, the Court will consider “the
presence of closely related litigation” in the transferee forum in determining whether transfer is
appropriate. Barham v. UBS Fin. Servs., 496 F. Supp. 2d 174, 180 (D.D.C. 2007). Second, since
the plaintiffs in each of the seven actions filed against 1-800 Contacts to date seek to represent a
nationwide class for their federal antitrust law claims, 9 the Court will consider the potential impact
of duplicative class actions proceeding simultaneously in multiple judicial districts. And third,
9 The parties in the two actions before the Court agree that the seven class actions currently
filed against 1-800 Contacts all raise virtually identical claims. See Def.’s Mem. at 5–7; Pls.’ Opp.
at 2; see also Pls.’ Joint Notice of Filing [Dkt. # 20] (informing the Court of the filing of a related
case in the Eastern District of Arkansas, which “shares common questions of fact and law with
each of the cases currently subject” to the currently pending motion before the JPML).
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since plaintiff Bartolucci has moved for pretrial consolidation of the antitrust actions as an MDL,
the Court will consider the relative efficiency of pretrial consolidation under section 1407 and
complete transfer under section 1404(a) in determining whether the public interest weighs in favor
of transfer.
A. The Existence of Related Actions in the Transferee District
Courts in this district have consistently held that “[t]he interests of justice are better served
when a case is transferred to the district where related actions are pending.” Martin–Trigona v.
Meister, 668 F. Supp. 1, 3 (D.D.C. 1987), citing Waites v. First Energy Leasing Corp., 605 F.
Supp. 219, 223 (N.D. Ill. 1985) and Islamic Republic of Iran v. Boeing Co., 447 F. Supp. 142, 145
(D.D.C. 1979); see also Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 56 (D.D.C. 2000) (finding
that conserving judicial resources and facilitating a final resolution of related litigation “strongly
favor[s] transfer”), quoting Harris v. Republic Airlines, 699 F. Supp. 961, 962 (D.D.C. 1988).
Where, as here, the facts and the legal issues in the transferor’s and transferee’s cases overlap,
transfer is strongly in the public interest. Reiffin, 104 F. Supp. 2d. at 56.
B. Inefficiencies and Inequities of Simultaneous Class-actions Proceeding in
Multiple Judicial Districts
The fact that the Bartolucci and Henry plaintiffs, as well as the plaintiffs in the Thompson
and Stillings actions that have already been transferred to the District of Utah, all seek to represent
a nationwide class of similarly-situated plaintiffs is another factor that weighs in favor of transfer
to a single jurisdiction under section 1404(a). See Wright & Miller, 7B Fed. Prac. & Proc. Civ.
§ 1798.1 (3d Ed.) (“Clearly, a single nationwide class action seems to be the best means of
achieving judicial economy.”); id. (“[T]hese competing and duplicative actions not only generate
unnecessary litigation and duplicative fees, but also they may result in delay, pose complicated
problems of judicial coordination in some instances, [and] increase the risk of disparate verdicts
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raising serious questions of fairness . . . .”). Under those circumstances, transfer to the jurisdiction
where the earlier cases are pending is appropriate.
Further, given the complex and novel nature of the legal issues in these cases, 1-800
Contacts, Inc. v. Lens.com, Inc., No. 2:07-CV-591, 2012 WL 113812, at *3 (D. Utah Jan. 13,
2012), (noting the “emerging and changing nature of Internet competition” in the market for
contact lenses), aff’d, 722 F.3d 1229 (10th Cir. 2013), and the fact that a ruling could have an
impact on a nationwide market for an item that millions of consumers depend upon each day, the
public interest is served by avoiding the possibility of overlapping and possibly inconsistent
rulings.
Also, commentators have noted that if nationwide class actions proceed simultaneously to
the merits in different judicial districts, the result would lead to legal uncertainty as well as possible
procedural and substantive unfairness to the defendant due to the limits of collateral estoppel in
the class-action context. See Rhonda Wasserman, Dueling Class Actions, 80 B.U. L. Rev. 461,
486–87 (2000) (“[T]he protections and limitations built into [the] preclusion doctrine – designed
to protect non-parties and to ensure that only issues actually litigated are precluded – [instead]
provide litigants with opportunities to ‘repackage’ class actions rejected by one court and file them
in another court.”).
C. Section 1404(a) Transfer and Pretrial Consolidation Under Section 1407
Plaintiffs argue that pretrial consolidation before the JPML would be a more efficient
means of solving these problems than transferring their cases to the District of Utah. But their
position is not supported by the applicable authority.
The JPML has stated that “centralization under Section 1407 should be the last solution
after considered review of all other options.” In re Best Buy Co., Cal. Song-Beverly Credit Card
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Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). The JPML frequently cites the availability
of a section 1404(a) transfer when denying a motion for consolidation. See, e.g., In re Michaels
Stores, Inc., Pin Pad Litig., 844 F. Supp. 2d 1368, 1368–69 (J.P.M.L. 2012); Gerber Probiotic,
899 F. Supp. 2d at 1379 (“We previously have denied centralization where there is a ‘reasonable
prospect’ that the resolution of Section 1404 motions could eliminate the multidistrict character of
the actions before us.”), quoting In re Republic of W. Ins. Coverage Litig., 206 F. Supp. 2d 1364,
1365 (J.P.M.L. 2002).
This is because the advantages of section 1407 consolidation formally end at the pretrial
stage: section 1407 “obligates the Panel to remand any pending case to its originating court when,
at the latest, those pretrial proceedings have run their course.” Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 34 (1998). Lexecon rights can be waived, but in the
absence of a waiver, a section 1407 is not permanent “as it is under Section 1404.” In re Best Buy,
804 F. Supp. 2d at 1378. Here, given the similar nature and the small number of pending cases,
they could be efficiently consolidated once transferred, and the consolidation would then be
permanent.
Moreover, if the cases are consolidated for pretrial purposes under an MDL, the parties
could still face the possibility of multiple, overlapping, and inconsistent class-action verdicts after
the cases have been returned to their respective courts. Thus, the public interest in judicial
economy would be well served by a section 1404(a) transfer.
So, after reviewing all of the public interest factors, the Court concludes that they weigh in
favor of transfer.
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CONCLUSION
For the reasons stated above, the Court finds that the private and public interest factors
weigh in favor of transfer. Accordingly, defendant’s motion to transfer both cases to the District
of Utah is GRANTED.
SO ORDERED.
AMY BERMAN JACKSON
United States District Judge
DATE: March 28, 2017
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