In re COMPLETE Cases CA4/3

Filed 10/24/13 In re COMPLETE Cases CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

G046913

In re COMPLETE CASES. (JCCP No. 4521; O.C. Super Ct. Nos. 07CC01296 & 07CC01297)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Nancy Wieben Stock, Judge. Affirmed. The Martini Law Group and Steven D. Martini for Appellant. The Senators (Ret.) Firm, Thomas M. Moore and Ronald T. Labriola for Respondents Nicole Lazar, Cameron Smith and the Class. Venable LLP, Ben D. Whitwell and Ryan M. Andrews for Respondent Abbott Medical Optics, Inc. * * *

The unusual title of this case reflects the fact it arises out of the settlement of a class action suit brought against Advanced Medical Optics, now known as Abbott Medical Optics (AMO), for allegedly making misleading statements concerning the disinfecting capabilities of the company’s “COMPLETE MoisturePLUS” multipurpose contact lens solution (the “Complete Contact Lens Solution”) in the mid-2000’s. The basic theory of the class action was that the product had been marketed as a “multipurpose” contact lens solution with the ability to “disinfect” contact lenses, when, in fact, it did not disinfect lenses of a microorganism known as Acanthamoeba whose presence in the eye can cause Acanthamoeba keratitis, which in turn can lead to corneal ulcers and even blindness. Prominent in the pleadings was the recall of the Complete Contact Lens Solution after a report by the United States Centers for Disease Control noted an increased risk of Acanthamoeba kerititis in users of the solution. The class action suit was settled in 2011. Besides requiring the product to be pulled from the market, the settlement consisted of two basic components: The first part involved reimbursements to class members. AMO would pay 100 percent of the price of every bottle of the contact lens solution purchased if the class member submitted proof of purchase. If a class member didn’t have proof of purchase but did have bottles of the solution, the class member would be reimbursed a small amount of money depending on the size of the bottle ($4 for a 2 ounce bottle, $5 for a 4 ounce bottle, $6 for “an Active Pack” and $9 for 12 and 16 ounce bottles.) And if class members had no proof of purchase or bottles, they could, by declaring under penalty of perjury they purchased the solution, receive a coupon for $10 worth of other AMO products. The settlement also contemplated a payment by AMO of some $1,847,529 in attorney fees and costs. The second part involved the establishment of a cy pres fund in the event the total amount of reimbursements to class members did not reach $650,000. Any difference was to be paid to Guide Dogs of America (with funding earmarked for