This website is to inform you about a proposed class-action settlement of two lawsuits pending in the United States District Court for the Northern District of Ohio called: Poteat v. Visionworks of America, Inc., N.D. Ohio No. 1:15-cv-2306, and Lenart v. Visionworks of America, Inc., N.D. Ohio No. 1:16-cv-2505, brought on behalf of the Settlement Class. This website contains important documents and information about the Settlement. Please read this information carefully to determine whether you wish to participate in the Settlement. This website explains your rights and options and the deadlines to exercise them. The Settlement affects your legal rights whether or not you act.Top
The Poteat lawsuit claims that Visionworks’ “Buy One, Get One Free” promotion violated Ohio consumer laws governing the use of the word “free” in advertisements, and the Lenart lawsuit claims that Visionworks “Buy One, Get One Free” promotion violated Illinois consumer laws. A more complete description of Plaintiff’s allegations in the Poteat lawsuit is available in the Second Amended Class Action Complaint, which is available here, and for the Lenart lawsuit, in the First Amended Class Action Complaint, which is available here.
Visionworks maintains that it has complied with all applicable Ohio and Illinois consumer laws, denies that it has done anything wrong, and denies that anyone has been harmed in any way. Plaintiffs and Visionworks both decided to settle the lawsuit, on the terms of this Settlement, solely for the purpose of avoiding the burden, expense, risk, and uncertainty that are inherent in litigation.Top
In a class-action lawsuit, someone called a “Class Representative” (in this case Plaintiffs Karen Poteat and Cheryl Lenart) sues on behalf of other people who have allegedly similar claims. If the court approves, the group of people together is a “Class” or the “Class Members.” In a class action, one court resolves the issues for everyone in the Class, except for those people who choose to exclude themselves from the Class.
After the parties reached an agreement to settle these cases, the Court granted preliminary approval of the Settlement and conditionally recognized that they should be treated as a class action for settlement purposes only. Among other things, this preliminary approval permits Settlement Class Members to exclude themselves from the Settlement Class or to voice their support of or opposition to the Settlement before the Court makes a final determination as to certification of the Settlement Class and approval of the Settlement.Top
The Court has not decided in favor of any party to the litigation. Instead, the Parties have agreed to settle the claims against Visionworks by entering into a written settlement agreement.
Visionworks maintains that its conduct was lawful and denies all allegations of wrongdoing or liability.
The Class Representatives and their attorneys think the Settlement is best for everyone because it provides an opportunity for benefits to the Class Members now while avoiding the risk, expense, and delay of pursuing the case through trial and appeals. Visionworks is settling solely for the purpose of avoiding the burden, expense, risk, and uncertainty that are inherent in litigation.Top
The Settlement Class includes the following persons:
The “Ohio Settlement Class” (for the Poteat lawsuit): All consumers who completed a Buy-One-Get-One-Free Transaction at a Visionworks store located in Ohio from June 25, 2012, through September 15, 2016.
The “Illinois Settlement Class” (for the Lenart lawsuit): All consumers who completed a Buy-One-Get-One-Free transaction at a Visionworks store located in Illinois from June 8, 2013, through September 15, 2016.
For purposes of the Settlement Class, a BOGO Transaction means a transaction in which a consumer purchased two pairs of eyeglasses from Visionworks under a “Buy One, Get One Free” promotion for which the consumer paid the list price for one complete pair of eyeglasses (frames and lenses) from a Visionworks store either (a) in Ohio from June 25, 2012, through September 15, 2016, or (b) in Illinois from June 8, 2013, through September 15, 2016. Only consumers who paid money to Visionworks (in the form of cash, check, money order, credit card, debit card, or like instrument) are considered to have engaged in a BOGO Transaction.
Excluded from the Settlement Class are: (a) all persons who would otherwise qualify for membership in the Settlement Class but for the fact that such person previously has released all claims as to Visionworks or received a full refund or store credit from Visionworks for all “Buy One, Get One Free” transactions within the period covered by the Settlement Class; (b) Visionworks’ officers, directors, and employees; (c) Visionworks’ attorneys; (d) Plaintiffs’ attorneys; and (e) any judge or mediator who has presided over either mediation or disposition of this case and the members of his or her immediate family.
If you fall within the foregoing Settlement Class definition, you are a Settlement Class Member and will be bound by the Settlement, unless you opt out or exclude yourself. (See below, "How do I exclude myself from the Settlement?" for how to opt out or exclude yourself.)Top
Visionworks has agreed to make available $4,209,280 (the “Fund”)--$1,155,280 to the Ohio Settlement Class and $3,054,000 to the Illinois Settlement Class--to compensate Class Members who file valid claims. Class Members can submit a claim form for a cash payment of up to $100.00 for each “Buy One, Get One Free” purchase of eyeglasses that they completed from a Visionworks store in Ohio between June 25, 2012, and September 15, 2016, or in Illinois between June 8, 2013, and September 15, 2016. If a Class Member paid less than $100.00 in the transaction, then that person may receive a payment up to the amount he or she actually paid. Only consumers who paid money to Visionworks (in the form of cash, credit, debit, check, money order, or the like) are eligible to receive a payment, and only one claim may be submitted per “Buy One, Get One Free” transaction. You do not get two claims due to the fact that you received two pairs of eyeglasses as part of the “Buy One, Get One Free” transaction, and consumers who received only a free pair of eyeglasses are not eligible for payment.
In addition, Visionworks has agreed to pay from the Fund Settlement Class Counsel’s attorneys’ fees and costs, in an amount to be determined by the Court.
If the combined sum of the payments to the Ohio Settlement Class Members and the attorneys’ fees and costs for the Ohio Settlement Class approved by the Court would exceed $1,155,280, the amount received by Ohio Settlement Class Members who submit claim forms will be reduced proportionally so that the total amount paid by Visionworks with respect to the Ohio Settlement Class is $1,155,280.
If the combined sum of the payments to the Illinois Settlement Class Members and the attorneys’ fees and costs for the Illinois Settlement Class approved by the Court would exceed $3,054,000, the amount received by Illinois Settlement Class Members who submit claim forms will be reduced proportionally so that the total amount paid by Visionworks with respect to the Illinois Settlement Class is $3,054,000.
If you are a member of the Settlement Class (see Question 5, "How do I know if I am part of the Settlement Class?"), and you choose to stay in the Settlement Class, you can submit a Claim Form to receive a check containing your cash payment. (See Question “G. How can I get a cash payment?") The Settlement Agreement provides more detail about the Settlement. You can access a copy of the Settlement Agreement here.Top
To claim a cash payment as part of the Settlement, you must complete and submit a Claim Form online or by U.S. Mail, which must be submitted on line or postmarked by May 15, 2017. You can submit an electronic Claim Form here before 11:59 p.m. ET on May 15, 2017. You can obtain a copy of the Claim Form to submit through the mail by downloading it from here, by calling toll-free 866-664-9035, or by writing to the Settlement Administrator at Visionworks Settlement Administrator, P.O. Box 43456, Providence, RI 02940-9967. If you are submitting your Claim Form by U.S. Mail, it must be postmarked by May 15, 2017, addressed to Visionworks Settlement Administrator, P.O. Box 43456, Providence, RI 02940-9967. In addition, Claim Forms sent by U.S. Mail must be received by the Settlement Administrator by May 29, 2017, to be eligible for payment. You cannot submit your claim form by any other method.
Please read the instructions on the Claim Form carefully. To be eligible, you must affirm on the Claim Form: (1) either (a) that between June 25, 2012, and September 15, 2016, you completed a “Buy One, Get One Free” transaction from a Visionworks store in Ohio or (b) that between June 8, 2013, and September 15, 2016, you completed a “Buy One, Get One Free” transaction from a Visionworks store in Illinois, and (2) that for each “Buy One, Get One Free” transaction for which you are seeking a settlement payment, you paid money to Visionworks (in the form of cash, check, money order, credit, or like instrument). The Claim Form also requests the month and year of each transaction and the amount you paid, if known.Top
If you timely submit a valid Claim Form, you should receive a check from the Settlement Administrator by 90 days after the Settlement has received final approval and/or after any appeals have been resolved in favor of the Settlement. The Court will hold a hearing on July 31, 2017, at 12:00 p.m. to decide whether to approve the Settlement. If the Court approves the Settlement, there may then be appeals. It is always uncertain how these appeals will be resolved, and resolving them can take time, perhaps more than a year after Court approval.
All checks will expire 90 days after they are issued.Top
The Court has appointed the following attorneys as Settlement Class Counsel to represent you and the rest of the Settlement Class Members in this case for purposes of the Settlement: Drew Legando, Jack Landskroner, Tom Merriman, and Ed Jerse of Landskroner Grieco Merriman LLC; Mark Schlachet; and Doug Werman and Maureen Salas of Werman Salas, P.C.
You will not be charged directly for these attorneys, but they will be compensated out of the Settlement Fund (see Question 5, "What does the Settlement provide?"). If you want to be represented by your own lawyer, you may hire an attorney at your own cost.
In addition, the Court appointed Karen Poteat to serve as the Class Representative for the Ohio Settlement Class and Cheryl Lenart as the Class Representative for the Illinois Settlement Class. They are also members of their respective Settlement Classes.Top
Settlement Class Counsel will ask the Court for an award of attorneys’ fees, which will be paid out of the Settlement Fund (see Question 5, "What does the Settlement provide?"). From the beginning of the Poteat case in June 2014 and the beginning of the Lenart case in June 2016, Settlement Class Counsel has not received any payment for the time they have spent litigating these cases or obtaining the settlement.
They will ask the Court to compensate them from the settlement fund. Settlement Class Counsel will submit their fee request by March 31, 2017. Settlement Class Counsel have committed to request not more than $385,093.33 in attorney’s fees for the Ohio Settlement Class (1/3 of the Ohio settlement amount made available, $1,155,280) and not more than $1,018,000.00 for the Illinois Settlement Class (1/3 of the Illinois settlement amount made available, $3,054,000) for a combined limit of not more than $1,403,093.33 (1/3 of the total settlement amount available, $4,209,280).
The Court will ultimately decide the amount to award.
Settlement Class Counsel will also ask the Court to reimburse their costs and expenses incurred by them and by the Class Representatives.Top
If the Court grants final approval to the Settlement, the Court will enter a final order and judgment and dismiss the case against Visionworks with prejudice. Claim Forms and payments under the Settlement will then be processed, and claims payments will be distributed. The release by the Settlement Class Members will also take effect.
Under the release, unless you exclude yourself from the Settlement Class, you cannot separately sue Visionworks or the Released Parties for the claims and issues in this case or any of the Released Claims. The Settlement Agreement contains the following release:
In exchange for the relief described in this Settlement Agreement, the Plaintiffs, Settlement Class Members, and/or his or her respective spouse, heirs, executors, administrators, representatives, agents, attorneys, partners, successors, predecessors and assigns and all those acting or purporting to act on their behalf agree to release and discharge the Released Parties from all duties, obligations, demands, claims, actions, causes of action, suits, damages, rights or liabilities of any nature and description whatsoever, whether arising under local, state or federal law, whether by Constitution, statute (including, but not limited to, the OCSPA and ICFA, and any assertions of liability, debts, covenants, guarantees, projections, losses, endorsements, controversies, suits, actions, rights, legal duties, warranties, torts, unfair or deceptive practices, statutory violations, contracts, agreements, obligations, promises, promissory estoppel, detrimental reliance, or unjust enrichment), tort, contract, common law or equity or otherwise, whether known or unknown, concealed or hidden, suspected or unsuspected, anticipated or unanticipated, asserted or unasserted, foreseen or unforeseen, actual, fixed, contingent, or vested, liquidated or unliquidated, direct or indirect, matured or unmatured, individually or on behalf of or as part of any putative, proposed, or certified class or other aggregate proceeding, related to, arising out of, concerning or in connection with in any way, any and all alleged direct or indirect acts, omissions, representations, conducts, legal duties, unjust enrichment, trade practices, or obligations that arise out of, or are related or connected in any way with, Visionworks’ sale or advertising of eyeglasses to that Settlement Class Member. This release includes, but is not limited to, all claimed or unclaimed compensatory damages, actual damages, damages stemming from any allegations of willfulness or recklessness, damages for emotional distress, statutory damages, consequential damages, incidental damages, nominal damages, treble damages, punitive and exemplary damages, injunction, rescission, reformation, restitution, disgorgement, constructive trust, as well as all claims for equitable, declaratory or injunctive relief under any federal or state statute or common law or other theory that was alleged or could have been alleged in the Litigation, including but not limited to, any and all claims under deceptive or unfair practices statutes, or any other statute, regulation or judicial interpretation. This release also includes interest, costs, and fees arising out of any of the claims described above. Nothing in this Settlement Agreement shall be deemed a release of the Parties’ respective rights and obligations under this Settlement Agreement.
(See Section 11.2 of the Settlement Agreement.)
As you can see, by staying in the settlement class, you are releasing -- or giving up -- any unknown claims. That means you are giving up claims against Visionworks which you might have but do not know you have. Section 11.3 of the Settlement Agreement provides more detail on what this means.
The Settlement Agreement is available here.
Unless you exclude yourself from the Settlement Class, you will be bound by the Settlement Agreement and any decisions by the Court relating to the Settlement. If you do not wish to be a Settlement Class Member, you must exclude yourself from the Settlement Class.
If the Court does not approve the Settlement, the case will proceed as though no settlement had been attempted. If the Settlement is not approved, there is no assurance that a class will be certified for litigation purposes or that, if certified, a class would receive a greater recovery than provided for in the Settlement (if anything).Top
If you do nothing, you will not receive a payment under the Settlement, and you will release all claims you may have against Visionworks and the Released Parties concerning the conduct alleged in this case. (See Question 14, "If I do not exclude myself, can I sue Visionworks for the same thing later?”)Top
If you do not want to be part of the Settlement Class, you must take steps to exclude yourself from, or opt out of, the Settlement Class. (Excluding yourself or opting out of the Settlement Class are the same thing.) If you do this, you cannot submit a Claim Form and will not get a Settlement payment, but you will also not release any claims you have. If you exclude yourself, you also will not be bound by any orders or judgments issued in this case, and if you choose to do so, you can pursue whatever legal rights you may have in a separate proceeding, but you will do so at your own expense.
To exclude yourself from the Settlement Class, you must send a written request to the Settlement Administrator. The written request must also contain your name, your original signature, current postal address and telephone number, and a specific statement that you want to be excluded from the Settlement Class. It will be sufficient to state, along with the other required information, that “I wish to opt out of the settlement” or “I wish to be excluded from the settlement.” You must mail your exclusion Request so that it is postmarked no later than April 14, 2017, to:
Visionworks Settlement Administrator
P.O. Box 43456
Providence, RI 02940-9967
You cannot exclude yourself on the phone or by e-mail. You also cannot exclude yourself by mailing a request to any other location or after the deadline. You cannot exclude others or be excluded as part of a group or class consisting of more than one consumer.
REQUESTS FOR EXCLUSION THAT ARE NOT POSTMARKED ON OR BEFORE APRIL 14, 2017, WILL BE INVALID AND WILL NOT BE HONORED.Top
No. If you don’t exclude yourself, you give up the right to sue the Defendant and the Released Parties for the claims being resolved by this Settlement. (See Question 11, "What am I giving up to get a benefit cash payment or stay in the Settlement Class?")Top
No. If you exclude yourself from the Settlement Class, you cannot participate in the Settlement, you will not be eligible to receive a payment pursuant to the Settlement, and you will not be able to object to the Settlement.Top
If you do not exclude yourself from the Settlement Class, you can provide the Court comments on the Settlement if you like or do not like any part of the Settlement. The Court and Settlement Class Counsel will consider your views carefully. To comment--which is entirely optional--you must file with the Court a notice of your intention to comment (which shall set forth each comment and the basis therefor). Any comments must be in writing and include: (1) the name of the lawsuit, either (a) for Ohio Settlement Class Members, Poteat v. Visionworks of America, Inc., Case No. 1:15-cv-2306, or (b) for Illinois Settlement Class Members, Lenart v. Visionworks of America, Inc., Case No. 1:16-cv-2505; (2) whether you or any attorney acting on your behalf intend to appear at the Fairness Hearing; and (3) a signed verification of membership in the Settlement Class. These materials must be filed with the Court and served upon Settlement Class Counsel and Defense Counsel by first class mail postage prepaid, CM/ECF Notification, or any other form of service upon counsel of record permitted by Rule 5(b)(2) of the Federal Rules of Civil Procedure. Comments on the Settlement must be filed and served no later than April 14, 2017. Comments on Settlement Class Counsel’s request for attorneys’ fees must be filed and served by April 14, 2017.
For your convenience, the following addresses may be used for filing and serving any comments:
Clerk of the Court
United States District Court
801 West Superior Avenue
Cleveland, Ohio 44113
LANDSKRONER GRIECO MERRIMAN LLC
1360 West 9th Street, Suite 200
Cleveland, Ohio 44113
TAFT STETTINIUS & HOLLISTER LLP
Ronald D. Holman, II
200 Public Square, Suite 3500
Cleveland, OH 44114
If you, or an attorney acting on your behalf, would like to appear and address the court on the subject of your comments, you must indicate in your written comments that you intend to appear at the Fairness Hearing. If an attorney will be appearing on your behalf, the attorney must file with the Clerk of the Court a written Notice of Appearance of Counsel by April 14, 2017, and include in the notice the full caption and case number of each previous class action in which that attorney has represented an objector. (See Questions 18, "When and where will the Court decide whether to approve the Settlement?," 19 ,"Do I have to come to the Fairness Hearing?," and 20, "May I speak at the hearing?" for more details.)Top
Commenting is telling the Court what your views are on all or part of the Settlement. The Court will consider your comments only if you remain in the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to comment on this Settlement because the case no longer affects you and, if you submit a comment, the Court will not consider it.Top
The Court will hold a Fairness Hearing on July 31, 2017, at 12:00 p.m., in Courtroom 18A of the United States District Court for the Northern District of Ohio, Carl B. Stokes U.S. Court House, 801 West Superior Avenue, Cleveland, Ohio 44113. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and in the best interests of the Settlement Class Members. If there are objections, the Court will consider them. The Court will listen to people who have submitted timely requests to speak at the hearing. The Court may also decide the amount that Settlement Class Counsel and Class Representatives shall be paid. After the hearing, the Court will decide whether to finally approve the settlement.Top
No. Settlement Class Counsel will answer questions the Court may have. But you are welcome to come at your own expense. If you send an objection or comment, you do not have to come to Court to talk about it. (See Question 16, "How do I provide the Court my comments on the Settlement?") As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.Top
You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must file and serve a written comment by April 14, 2017, and include in your comment a statement that you intend to appear at the Fairness Hearing. (See Question 16. "How do I provide the Court my comments on the Settlement?) Any lawyer who intends to appear on your behalf at the Fairness Hearing must file a written Notice of Appearance of Counsel with the Clerk of the Court by April 14, 2017, and must include the full caption and case number of each previous class-action case in which that counsel has represented an objector. You cannot speak at the hearing if you have excluded yourself.Top
If you have questions about the case, you can call Settlement Class Counsel toll free 888-570-3609, or write to them at: Settlement Class Counsel, Drew Legando, Landskroner Grieco Merriman LLC, 1360 West 9th Street, Suite 200, Cleveland, Ohio 44114.
PLEASE DO NOT CALL THE COURT, THE CLERK, OR THE DEFENDANT REGARDING THIS SETTLEMENT.Top