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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
IN RE BAUSCH & LOMB CONTACT
LENS LITIGATION
Civil Action No. CV-94-C-1144-W
Judge U.W. Clemon
CLASS ACTION SETTLEMENT NOTICE
TO: CONSUMER PURCHASERS OF CONTACT LENSES MANUFACTURED BY BAUSCH & LOMB SOLD UNDER THE FOLLOWING TRADE NAMES DURING THE FOLLOWING TIME PERIODS:
MEDALIST -- JANUARY 1, 1991 through DECEMBER 31, 1995
OPTIMA FW -- NOVEMBER 1, 1990 through DECEMBER 31, 1995
CRITERION ULTRA FW -- NOVEMBER 1, 1990 through APRIL 30, 1996
PLEASE READ THIS NOTICE CAREFULLY
THIS NOTICE ANSWERS THESE IMPORTANT QUESTIONS:
1. Why should I read this notice?
2. What is this case about?
3. What are the terms of the proposed settlement?
4. Do I need to do anything to participate in the class settlement?
5. How do I make a claim?
6. What is the settlement approval procedure?
7. Where do I get additional information?
1. WHY SHOULD I READ THIS NOTICE?
Your rights may be affected in a lawsuit known as In re Bausch & Lomb Contact Lens Litigation, Civil Action No. 94-C-1144-W, pending before the Honorable U.W. Clemon in the United States District Court for the Northern District of Alabama. This Notice is to inform consumer purchasers of contact lenses manufactured by Bausch & Lomb sold under the trade names Medalist, Optima FW, and Criterion Ultra FW that a settlement in this action has been preliminarily approved by the District Court. This Notice sets forth the terms of the proposed settlement and your rights under the settlement.
2. WHAT IS THE CASE ABOUT?
Plaintiffs Myra S. Roberts and others, on behalf of themselves and all other persons similarly situated, brought this case alleging that, among other things, Bausch & Lomb misrepresented the characteristics of the Medalist and Optima FW lenses. The action sought monetary relief against defendant Bausch & Lomb. Bausch & Lomb denies any misrepresentations on its part or any liability relating to plaintiffs' claims. The Court has yet to make any ruling on the merits of plaintiffs' claims or the defenses asserted by defendants Bausch & Lomb.
3. WHO IS IN THE SETTLEMENT CLASS?
The settlement class consists of residents or domiciliaries of the United States who were consumer purchasers of Bausch & Lomb's Medalist lenses from January 1, 1991 through December 31, 1995, Optima FW lenses from November 1, 1990 through December 31, 1995, and Criterion Ultra FW lenses from November 1, 1990 through April 30, 1996.
The Court, on November 1, 1994, certified a class of residents or domiciliaries of the United States who were consumer purchasers of Bausch & Lomb's Medalist and Optima FW lenses form January 1, 1991 through November 1, 1994. Notice of this action was disseminated in early 1995. Class members were given until May 1, 1995 to exclude themselves from the class. If you were such consumer purchaser of either a Medalist or Optima FW lens between the period of January 1, 1991 and November 1, 1994, and did not timely opt-out of the class, you are bound by the settlement as to those purchases if the settlement is finally approved by the Court.
The Court, on July, 1996, certified an expanded class, adding residents or domiciliaries of the United States who were consumer purchasers of Bausch & Lomb's Criterion Ultra FW lens from November 1, 1990 through April 30, 1996, and extending the class period from November 1, 1994 through December 31, 1995 for Medalist consumer purchasers and from November 1, 1990 through December 31, 1990 and from November 1, 1994 through December 31, 1995 for Optima FW consumer purchasers. If you purchased an Optima FW lens between November 1, 1990 and December 31, 1990 or between November 1, 1994 and December 31, 1995, or if you purchased a Criterion Ultra FW lens between November 1, 1990 and April 30, 1996, or if you purchased Medalist lenses between November 1, 1994 and December 31, 1995, as to those purchases you may exercise your right to exclude yourself. The judgment in this case will bind all such class members who do not timely “opt-out” of the proposed settlement class, and you will be bound by the settlement as to those purchases, if it is finally approved by the Court. If you do not opt-out, you will be represented free of charge by the class counsel described in Paragraph 5 below, or you may appear through your own counsel at your expense.
4. WHAT ARE THE TERMS OF THE PROPOSED SETTLEMENT?
On July, 1996, the United States District Court granted preliminary approval to the proposed settlement agreement, subject to final approval following a fairness hearing. Bausch & Lomb has agreed, in essence, to pay the difference between the average wholesale prices it received for the sale of the Medalist, Optima FW and Criterion Ultra FW lenses as compared with the average wholesale prices of its SeeQence2 lenses and to provide certificates good for certain Bausch & Lomb products in an equal amount based upon average retail prices of those products. Specifically, under the terms of the proposed settlement, Bausch & Lomb has agreed to pay each qualifying class member $5.36 for each four-pack of Medalist lenses purchased, $8.04 for each six-pack of Medalist lenses purchased, $3.43 for each Criterion Ultra FW lens purchased, and $5.33 for each Optima FW lens purchased. Additionally, each qualifying class member will be entitled to receive the same amount, per lens (or per lens pack for Medalist), in the form of product certificates for the purchase of specified Bausch & Lomb products. Bausch & Lomb has also agreed to bear the costs associated with the administration of the proposed settlement. In order for a class member to participate in the settlement, he or she must timely submit a claim f orm. See Section 6, below.
5. PLAINTIFFS' ATTORNEYS, ATTORNEYS' FEES AND EXPENSES
The Court has appointed the following law firms as plaintiffs' counsel in this litigation: Ellis & Rapacki; Doffermyre, Shields, Canfield & Knowles; Hare, Wynn, Newell & Newton; Lieff, Cabraser, Heimann & Bernstein, LLP; Farmer, Price, Hornsby & Weatherford; Alexander Hawes, LLP; Williams & Troutwine, P.C., Charfoos & Christensen, P.C. and The Attorneys Info. Exchange Group. These firms have been aggressively prosecuting this case on behalf of the class since its inception on a contingency basis, without charge to the class. In addition to the settlement amounts described above, Bausch & Lomb has also agreed to pay to class counsel attorneys' fees of $8 million plus expenses actually and reasonably incurred, subject to approval by the Court pursuant to class counsel's application for award of fees, if the settlement is approved. Such attorneys fees and expenses as may be awarded by the Court will not reduce the class benefits in any way.
6. DO I NEED TO DO ANYTHING IN ORDER TO PARTICIPATE IN THE SETTLEMENT?
Yes. If you want to participate in the settlement, you must submit, no later than February 1, 1997, the enclosed Claim Form or the enclosed Alternative Claim Form discussed below. If you do not timely and properly submit one of these claim forms, you will not be allowed to participate in the benefits of the settlement. If you need a copy of a claim form, please call 1-800-392-0581, or write to P.O. Box 371248, Birmingham, Alabama 35237-1248 or on the Internet at _____________.
7. WHAT IS THE SETTLEMENT APPROVAL PROCEDURE?
The Court has scheduled a fairness hearing on November 26, 1996, at the hour of 9:30 a.m., in the Courtroom of the Honorable U. W. Clemon, United States District Court for the Northern District of Alabama, Western Division, Birmingham, Alabama. At the fairness hearing, the Court will consider, among other issues, whether the settlement should be granted final approval as fair, adequate and reasonable, and in the best interests of the class. Although you may attend this hearing, you are not required to do so in order to participate in the settlement. If you wish to comment in support of, or in opposition to any aspect of the proposed settlement, you may do so, but you must submit your detailed comments or objections in writing to P.O. Box 371248, Birmingham, Alabama 35237-1248, no later than November 1, 1996. If you wish to appear at the fairness hearing to be heard orally, you must, by written notice postmarked no later than November 1, 1996, notify the Court of your desire to appear personally and state in detail the nature of your comments or objections. A copy of such written notice must be concurrently sent to Class Counsel: James J. Thompson, Jr., Esq., Hare, Wynn, Newell & Newton, 290 North 21st Street, Suite 800, Birmingham, Alabama 35203 and to Bausch & Lomb's counsel: Gregory H. Hawley, Esq., Maynard, Cooper & Gale, 2400 AmSouth/Harbert Plaza, 1901 Sixth Avenue North, Birmingham, Alabama 35203.
8. HOW CAN I EXCLUDE MYSELF FROM THE SETTLEMENT?
If you were a consumer purchaser of either Medalist or Optima FW lenses between January 1, 1991 and November 1, 1994, and you have not previously excluded yourself from the action you may not exclude yourself from the proposed settlement, as to those purchases, as previous notice was provided to class members of the pendency of this litigation.
If you purchased Criterion Ultra FW lenses between November 1, 1990 and April 30, 1996, or you purchased Medalist lenses between November 1, 1994 and December 31, 1995, or you purchased Optima FW lenses between November 1, 1990 and December 31, 1990 or between November 1, 1994 and December 31, 1995, as to those purchases you may exclude yourself (or “opt-out”) from this settlement. In order to do so, you must submit a written “Exclusion Request,” to P.O. Box 371248, Birmingham, Alabama 35237-1248, postmarked no later than November 1, 1996. You must personally sign the form, as unsigned forms or forms signed by other individuals will not be accepted. As to those purchases, if you elect to exclude yourself from the class, you will not share in any recovery that is to be paid to class members as a result of the settlement, and you will not be bound by any further orders or judgments entered for or against the class.
9. HOW DO I MAKE A CLAIM?
To make a claim under the settlement, you must determine how many of the subject contact lenses you purchased during the above described periods. You should contact your contact lens provider and obtain one of the following types of documentation to support your claim:
(1) A “Verified Claim Form” completed by your contact lense provider indicating for each purchase the number of Medalist, Optima FW or Criterion Ultra FW lenses you purchased and the date of purchase, and that the contact lens provider's records reflect such purchase. (These forms have been provided to contact lens providers by Bausch & Lomb); or
(2) A letter from and on the stationery of your contact lens provider indicating for each purchase the number of Medalist, Optima FW or Criterion Ultra FW lenses you purchased and the date of purchase, and that the contact lens provider's records reflect such purchase.
If, after attempting to obtain this documentation, you are unable to obtain either of the two above documents, you should complete and submit the enclosed Alternative Claim Form with any required documentation.
The Claim Form or the Alternative Claim Form must be completed and sent, with the required supporting documentation as applicable, to P.O. Box 371248, Birmingham, Alabama 35237-1248 and be postmarked no later than February 1, 1997.
10. WHERE DO I GET ADDITIONAL INFORMATION?
Information will be available by calling 1-800-392-0581, writing to the above P.O. Box or on the Internet at . PLEASE DO NOT CONTACT THE COURT. You may review the pleadings, records and other papers on file in this litigation, which may be inspected during regular business hours at the United States District Court for the Northern District of Alabama, Birmingham, Alabama.
Dated: August 1, 1996
U.W.CLEMON
Honorable U.W. Clemon
United States District Judge
Richard Alexander is a specialist in personal injury litigation with 30 years in-depth experience. Emphasizing working relationships with clients has led to an exceptional record of success. He has served as a member of the Board of Governors of The State Bar of California, President of the Santa Clara County Bar Association and the Board of Governors of Consumer Attorneys of California. He is a founding member of the National Association of Consumer Advocates, and heads Alexander Hawes, LLP.
Alexander Hawes, LLP is a California law firm that specializes in personal injury, wrongful death, and financial losses caused by negligence, defective products, toxic chemicals, corporate misconduct or insurance fraud on behalf of consumers, small investors, injured workers and small businesses. In addition to individual cases the firm prosecutes class actions for large groups of individuals who have suffered financial loss as a result of corporate fraud, defective consumer products, and environmental pollution. The firm holds Martindale-Hubbell's highest rating and is recognized in the List of Preeminent Law Firms in the U. S.
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