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Case 2:1 0-cv-00547-JCC       Document 1

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15      Class and has retained counsel competent and experienced in class action and antitrust litigation.

time, based on the nature of the trade and commerce involved, Plaintiff reasonably believes that

there are at least hundreds of members in the Class and that their identities can be learned from

records in Defendants' possession, custody or control. Class members are geographically

dispersed throughout the United States.

61.

Plaintiffs claims are typical of the claims of the other members ofthe Class.

Plaintiff and the members of the Class have all sustained damage in that during the Class Period

they purchased Transitions lenses directly from a Defendant or a John Doe Co-Conspirator at

artificially maintained, non-competitive prices, established by the Defendants' actions in

connection with the anticompetitive behavior alleged herein. Defendants' anticompetitive

conduct, the effects of such violations, and the relief sought are all issues or questions that are

common to Plaintiff and the other Class members.

62.

Plaintiff will fairly and adequately protect the interests of the members of the

Hi      Plaintiff's interests are coincident with, and not antagonistic to, the interests of the other Class

17      members.

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63.      . Common questions of law and fact exist as to all members of the Class and

predominate over any questions affecting solely individual members of the Class.

64.

The common questions of law and fact common to the Class include, but are not

limited to:

(a)

whether the development, manufacture and sale of photochromic
treatments for corrective ophthalmic lenses in the United States (the
"Photo chromic Treatment Market") is the relevant market in this case;

(b)

whether Transitions possesses monopoly power in the Photochromic
Treatment Market;

CLASS ACTION COMPLAINT - 13

BYRNES • KELLER • CROMWELL u>
S8THFLOOR

1000 SECONDAVENtJE

SEATTLE. W.\SHINGTON 98104

(206) 622-2000

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Case 2:1 0-cv-00547-JCC       Document 1

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(c)

whether, through the conduct alleged herein, Transitions willfully
acquired, maintained and enhanced its monopoly power in the
Photochromic Treatment Market;

(d)

whether, through the conduct alleged herein, Defendants and the John Doe
Co-Conspirators conspired to confer, maintain or enhance Transitions'
monopoly power in the Photo chromic Treatment Market;

(e)

whether Defendants and the John Doe Co-Conspirators conspired to
engage in unlawful exclusionary conduct to impair the opportunities of
Transitions' rivals in the Photo chromic Treatment Market;

(f)

whether Transitions entered into exclusionary agreements that
unreasonably restrained trade and impaired its rivals in the Photo chromic
Treatment Market;

(g)

whether Defendants and the John Doe Co-Conspirators engaged in a
contract, combination or conspiracy among themselves to unreasonably
restrain trade and impair Transitions' rivals in the Photochromic
Treatment Market;

(h)

whether and to what extent, Defendants' and the John Doe Co-
Conspirators' conduct caused Class members to pay supra-competitive
prices and, thereby, suffer antitrust injuries; and

(i)

whether Plaintiff and Class members are entitled to any damages and, if
so, the appropriate Class-wide measure of damages.

65.

A class action is superior to other available methods for the fair and efficient

adjudication of this controversy because joinder of all members of the Class is impracticable.

The prosecution of separate actions by individual members of the Class would impose heavy

burdens upon the courts and Defendants, and would create a risk of inconsistent or varying

adjudications of the questions oflaw and fact common to the Class. A class action would

achieve substantial economies of time, effort and expense, and would assure uniformity of

decision as to persons similarly situated without sacrificing procedural fairness. There will be no

material difficulty in the management of this action as a class action on behalf of the Class.

CLASS ACTION COMPLAINT - 14

BYRNES • KELLER • CROMWELL ~
88TH FLOOR

1000 SECOND AVENUE

SEATTLE. WASHINGTON 98104

(206) 622-2000

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Case 2:1 0-cv-00547-JCC     Document 1

Filed 03/30/2010         Page 15 of 26

CLAIMS FOR RELIEF

COUNT I

Violation of Section 2 ofthe Sherman Antitrust Act, 15 V.S.C. § 2: Monopolization

Against Defendant Transitions Only

           66.       Plaintiff incorporates by reference the preceding allegations.

67.

Transitions acquired, willfully maintained and unlawfully exercised monopoly

power in the relevant market through the exclusionary, anticompetitive conduct set forth above,

including, but not limited to:

(a)

at the lens caster level: (1) adopting and publicly announcing a general

policy of refusing to deal with lens casters that sell or promote any competing photo chromic

lens; (2) entering into exclusive agreements with certain lens casters; (3) threatening to terminate

lens casters that would not sell Transitions' lenses on an exclusive basis; and (4) terminating a

lens caster that developed a competing photo chromic treatment; and

(b)

at the Prescription Lab and optical retailer levels: (1) entering into long-

term exclusionary agreements with most major optical retailers; (2) entering into agreements

with Prescription Labs requiring that they promote Transitions' lenses as their preferred

photo chromic lens and withhold normal sales efforts for competing photo chromic lenses; and (3)

offering discounts only to customers who sold only or almost only Transitions' photochromic

lenses.

68.

There is no legitimate business justification for Transitions' actions and the

23      conduct through which it maintained 'its monopoly power in the relevant market.

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69.

Transitions has effectively excluded competition from the relevant market,

maintained its dominant market share in the relevant market, and profited from its

anticompetitive conduct by excluding less expensive, superior competitive products, by

CLASS ACTION COMPLAINT -15

BYRNES • KELLER • CROMWELL wo
88'1'HFLOOR

1000 SECOND AVENUE

SEATTLE. WASHINGTON 98104

(206) 622-2000

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Case 2:10-cv-00547-JCC        Document 1

Filed 03/30/2010         Page 16 of 26

maintaining prices at artificially high levels, and by reaping the benefits of its illegally obtained

and maintained monopoly power.

70.

The anticompetitive effects of Transitions' conduct far outweigh any conceivable

procompetitive benefits or justifications.

71.

Plaintiff and members of the Class have been injured in their business or property

by Transitions' monopolization of the relevant market. Without limiting the generality of the

foregoing, Plaintiff and the other members of the Class have been forced to pay higher prices for

photo chromic lenses, including Transitions lenses, than they would have paid absent Transitions'

unlawful conduct.

72.

COUNTll

Violation of Section 2 of the Sherman Antitrust Act, 15 D.S.C. § 2:

Conspiracy to Monopolize

Against All Defendants

Plaintiff incorporates by reference the preceding allegations.

73.

As set forth above, the Essilor Defendants actively facilitated Transitions' efforts

17      to acquire, willfully maintain and unlawfully exercise monopoly power in the relevant market

18      through the excIusionary, anti competitive conduct set forth above, including, but not limited to:

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(a)
(b)

purchasing and selling only Transitions' photo chromic lenses;

exercising their control over the John Doe Co-Conspirators to induce them

to substantially limit their purchases and sales of photo chromic lenses to Transitions

photo chromic lenses; and

(c)

in the case of Essilor of America, entering into agreements that effectively

25      induced its Prescription Lab customers (other than the JOM Doe Co-Conspirators) to purchase

26      and sell only Transitions' photo chromic lenses.

CLASS ACTION COMPLAINT - 16

BYRNES • KELLER • CROMWELL U.P
38TH FLOOI!

1000 SECOND AVENUE

SEATTLE, WASHINGTON 98104

(206) 622-2000

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Filed 03/30/2010         Page 17 of 26

Case 2:1 0-cv-00547-JCC       Document 1

74.

Defendants and the John Doe Co-Conspirators sought to obtain, maintain and

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enhance Transitions' monopoly power in the Photo chromic Treatments Market beginning no

later than 1999 when Transitions began implementing exclusionary contracts with lens casters,

including Essilor of America, to thwart competition from Corning and other potential rivals.

75.

Pursuant to their anti-competitive conspiracy, the Essilor Defendants agreed to

enter into anticompetitive exclusionary agreements, with Transitions, with each other, with the

John Doe Co-Conspirators, and with their respective non-conspiring customers, that effectively

blocked rival photochromic treatment suppliers from contracting with the Essilor Defendants and

prevented those rivals from distributing through the John Doe Co-Conspirators.

           76.       Each of the Defendants and the John Doe Co-Conspirators has committed at least

one overt act - such as entering into exclusionary agreements and selling Transitions lenses at

supra-competitive prices - to further the conspiracy.

77.

Each of the Defendants and the John Doe Co-Conspirators intended that the

conspiracy to monopolize alleged herein would maintain and enhance Transitions' monopoly

power and injure Plaintiff and the Class thereby.

78.

Plaintiff and members of the Class have been injured in their business or property

by Defendants' antitrust violations. The injury to Plaintiff and the Class consists of paying

artificially inflated prices for photo chromic lenses, including Transitions lenses. Such injury, in

the form of overcharges, is the type of injury the antitrust laws were designed to prevent and

flows directly from Defendants' unlawful conduct.

ANTI COMPETITIVE EFFECTS OF DEFENDANTS' CONDUCT

79.

The effects of Defendants' anticompetitive exclusionary acts have been to capture

and/or maintain for Transitions more than 80 percent of the relevant market, to substantially

CLASS ACTION COMPLAINT - 17

BYRNES • KELLER • CROMWELL ....,.
38TH FLOOR

1000 SECOND AVENUE

SEATTLE. WASHINGTON 98104

(206) 622-2000

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Case 2:1 O-cv-00547-JCC      Document 1

Filed 03/30/2010         Page ·18 of 26

impair and foreclose competition from Transitions' rivals in the Photochromic Treatment

Market, and to significantly raise barriers to entry for potential rivals.

80.

Defendants' conduct adversely affects competition and consumers by (1)

increasing the prices and reducing the output of photo chromic lenses; (2) deterring, delaying and

impeding the ability of Transitions' actual or potential competitors to enter or to expand their

sales in the Photo chromic Treatment Market; (3) reducing innovation; and (4) reducing

consumer choice among competing photochromic lenses.

81.

Absent Defendants' conduct and the substantial foreclosure and impairment of

effective competition caused by such conduct, Transitions, as a rational actor, would have

reduced the price it charged to lens casters for its photo chromic treatment of lenses and/or

supplied its low-priced, private label photochromic lens (which it offers outside of the United

States where it faces increased competition) in response to added unimpaired competition from

Coming, Vision-Ease and other rivals and potential rivals (i. e., Prescription Labs and/or lens

casters that could have or would have developed their own photo chromic treatments). Moreover,

had actual or potential photo chromic treatment suppliers not been substantially foreclosed or

stifled by Defendants' anti competitive conduct from effectively competing in the market for such

products, those competitors and/or potential competitors would have sold much more of their

products, gained a larger market share and achieved economies of scale and scope that could

have further driven down prices in the marketplace.

82.

By unlawfully excluding and impairing competition, Defendants' conduct has

caused Plaintiff and other Class members to pay more for photo chromic lenses than they

otherwise would have paid absent Transitions' illegal, exc1usionary conduct.

CLASS ACTION COMPLAINT - 18

BYRNES • KELLER • CROMWELL ~
38TH FLOOR

1000 SECOND AVENUE

SEATTLE_, WASHINGTON 98104

(206) 622-2000

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Case 2:1 0-cv-00547-JCC       Document 1

Filed 03/30/2010         Page 19 of 26

DAMAGES

83.

As a result of Defendants' illegal conduct, members of the Class were compelled

to pay, and did pay, artificially inflated prices for the Transitions lenses they purchased. Had

potential competitors been able to enter the market unirnpeded by Defendants' illegal conduct (or

been a threat to enter the market), Plaintiff and other members of the Class would have been able

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to, inter alia, purchase less expensive photo chromic lenses. The prices that Plaintiff and other

Class members paid for photo chromic lenses during the Class Period were substantially greater

than the prices they would have paid absent the illegal exc1usionary conduct alleged herein

because: (a) the prices of all photo chromic lenses were artificially inflated by Transitions' illegal

conduct - as competitors were deprived of economies of scale and efficient distribution channels

_ and (b) Class members were deprived of the opportunity to purchase competing photochromic

lenses and to purchase those lenses at lower prices. Members of the Class have, as a

consequence, sustained losses and damage to their business and property in the form of

overcharges. The full amount of such damages will be calculated after discovery and upon proof

at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests the following:

A.

Certification of the Class proposed in this Complaint;

B.

Defendants' actions described herein be adjudged and decreed to be in violation

of Section 2 of the Sherman Act, 15 V.S.C. § 2;

C.

Plaintiff and the Class recover damages, as provided by law, that they are

determined to have sustained, and that judgment in favor of plaintiff be entered

against Defendants;

CLASS ACTION COMPLAINT - 19

BYRNES.KELLER·CROMWELL~
88TH FLOOR

1000 SECOND AVENUE

SEATTLE, WASHINGTON 98104

(206) 622-2000