Smith v. Costa Del Mar, Inc.

A court authorized a notice because you have a right to know about a proposed settlement of this class action lawsuit and about all of your options before the Court decides whether to give final approval to the Settlement. The Long Form Notice explains the lawsuit, the Settlement, and your legal rights. You are NOT being sued.

A copy of the Long Form Notice can be found here.

In a class action, one or more people called “Class Representatives” (in this case, Troy Smith, Brendan Haney, and Gerald Reed) sue on behalf of all people who have similar claims. The people included in the class action are called a “Class” or “Class Members”. One court resolves the issues for all Class Members, except those people who exclude themselves from the Settlement.

The Honorable Timothy J. Corrigan of the United States District Court for the Middle District of Florida, Jacksonville Division, is overseeing this class action. The case is known as Troy Smith, et al. v. Costa Del Mar, Inc., Case No. 3:18-cv-01011-TJC-JRK.

The lawsuit claims that (i) Costa’s statement that it replaces scratched lenses, frames, and other parts damaged by accident, normal wear and tear, or misuse for a “nominal fee” is false, deceptive, and misleading in violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201, et seq., and constitutes a breach of warranty under the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301, et seq.; and (ii) Costa’s purported “Lifetime Warranty” against manufacturer’s defects violates the substantive requirements of the MMWA, 15 U.S.C. §§ 2301, et seq., because customers must pay a fee to take advantage of the “Lifetime Warranty.”

Costa has denied and continues to deny all of the claims in the lawsuit and raised several defenses.

The Court did not decide in favor of Plaintiffs or Costa. Instead, both sides agreed to a Settlement. The Settlement allows both Plaintiffs and Costa to avoid the uncertainty, cost, and risk of a trial, and offers benefits to those affected. The Class Representatives and their attorneys think the Settlement is in the best interest of the Class.

The Settlement includes individual consumers, excluding officers and attorneys for Costa, judges presiding over the case, and Plaintiffs’ counsel, who meet one or more of the following criteria:

• Florida Purchase Class - All citizens of the State of Florida who purchased Costa plano sunglasses from July 28, 2013 to January 31, 2018.
• Florida Repair Class - All citizens of the State of Florida who: (i) purchased Costa plano sunglasses before January 1, 2018; and (ii) were charged a fee by Costa, from July 28, 2012 through the date of entry of the Court’s Final Order, to repair or replace their Costa plano sunglasses damaged by accident, normal wear and tear, or misuse.
• Nationwide Repair Class - All citizens of the United States (excluding citizens of the State of Florida) who: (i) purchased Costa plano sunglasses before January 1, 2018, and (ii) were charged a repair fee by Costa, from April 3, 2015 through the date of entry of the Court’s Final Order, to repair or replace their Costa plano sunglasses damaged by accident, normal wear and tear, or misuse.
• Warranty Class - All citizens of the United States who: (i) purchased non-prescription Costa sunglasses prior to January 1, 2016; and (ii) paid Costa a warranty fee to repair or replace non-prescription sunglasses damaged by a manufacturer’s defect from August 20, 2013 through the date of entry of the Court’s Final Order.

All Costa brand non-prescription, non-promotional sunglasses (“plano sunglasses”) are included in the “Florida Purchase Class,” “Florida Repair Class,” and “Nationwide Repair Class,” as those classes are described in FAQ 5. The Florida Purchase Class, Florida Repair Class, and Nationwide Repair Class do not include USA Limited Edition, Kenny Chesney Limited Edition, and Ocearch Special Collection sunglasses.

All Costa brand non-prescription sunglasses are included in the “Warranty Class” as described in FAQ 5.

Class Members can receive one or more Product Vouchers between $8.99 and $19.99 based on the class in which the class member qualifies. The vouchers are non-personalized, transferable, and may be combined (if you are eligible for multiple vouchers). The vouchers may be used to claim any items available for sale as of the date of use on the website of Costa (www.costadelmar.com) at a price equal to or less than the value of your voucher(s). Product(s) claimed using the vouchers will not be assessed sales tax and will be shipped to you free of charge. In other words, you can shop online for Costa products at absolutely no cost or charge to you, and without leaving your home. You may also use the vouchers to purchase any Costa product on the website in excess of the voucher amounts—you just have to pay the difference, plus applicable sales tax on such difference.

All class action Settlement Product Vouchers will expire and become void two (2) years after they are issued.

You can read a detailed description of the Product Vouchers and their limitations in the Settlement Agreement. The Settlement Agreement is available here.

Vouchers will be provided only if the Court finally approves the Settlement and after any appeal period expires or any appeals are resolved in favor of the Settlement.

Per the Court's January 27, 2022, Order, an additional $4 million has become available for distribution to Class Members of the Nationwide Repair and Florida Repair classes as well as to those members of the Florida Purchase class who submitted valid claims. These will be disbursed in mailed or electronic cash payments in addition to the previously described product vouchers.

If the Settlement is approved and becomes final, and you did not exclude yourself, all of the Court’s orders will apply to you and legally bind you. That means you will not be able to sue, continue to sue, or be part of another lawsuit against Costa for the same claims asserted or which could have been asserted based on the factual allegations raised in the lawsuit. The specific rights you are giving up are called “Released Claims”. The Released Claims are described in more detail in Paragraph XII(B) of the Settlement Agreement. The Settlement Agreement is available here. If you have questions about the Released Claims or what they mean, you can talk to Class Counsel listed in FAQ 16 for free, or you can talk with your own lawyer.

If you are in the Florida Repair Class, Nationwide Class, or Warranty Class, you were not required to submit a claim form to receive the Product Voucher(s) if the Settlement is approved and becomes final. You will automatically receive the voucher(s) to which you are entitled through email or First Class Mail at the address Costa has on file for you following the Final Effective Date

Members of the Florida Purchase Class must have submitted a claim form to get the benefits for which they may be eligible. These individuals must have submitted a claim form by January 31, 2021. A Claimant who, by definition, would fall into both the Florida Repair Class and Florida Purchase Class, shall only be entitled to the Product Voucher(s) from the Florida Repair Class for those sunglasses which were repaired and a fee was paid to Costa. To the extent a Class Member may have had additional sunglass purchases beyond the number of repair claims in the Florida Repair Class, that Class Member may have submitted a claim for those additional purchases not covered by the Florida Repair Class Product Voucher(s).

The deadline to submit a Claim Form passed on January 31, 2021.

You will receive your Product Voucher(s) after the Court approves the Settlement and any appeals are exhausted. The Court will hold a hearing on April 20, 2021, to decide whether to approve the Settlement. If the Court approves the Settlement, there may be appeals. It is always uncertain whether the appeals can be resolved and resolving them can take time. Please be patient.

The deadline to opt-out of the Settlement passed on January 31, 2021.

No. If you excluded yourself, you have told the Court you do not want to be part of the Class in this Settlement.

No.

Yes, the Court appointed the law firm of Holland & Knight LLP to represent you and other Class Members. The lawyers are referred to as “Class Counsel”. You will not be charged for the services of these lawyers in this case. If you want to be represented by your own lawyer, you may hire one at your own expense.

Class Counsel has not been paid for any of their work in this lawsuit. Class Counsel will ask the Court to award them Attorneys’ Fees, Costs, and Expenses of up to $12,000,000. They will also ask the Court for a payment of up to $10,000 for each of the three named Plaintiffs and Class Representatives (for a total of $30,000), for bringing the lawsuit and representing the Class. The Court may award less than these amounts. All of these amounts, as well as the cost to administer the Settlement, will be paid by Costa from the total Settlement Fund.

If you are a Class Member, you can object to the Settlement. You can give reasons why you think the Court should not approve it. The Court will consider your views before making a decision. Objections must be submitted in writing, must be signed and include:

1. The case name and number (Troy Smith, et al. v. Costa Del Mar, Inc., Case No. 3:18-cv-01011-TJC-JRK);
2. Your full name, current address, telephone number, and signature;
3. An explanation of the basis upon which you claim to be a Class Member and proof you are a Class Member;
4. The basis of your objection;
5. A statement confirming whether you intend to personally appear and/or testify at the Fairness Hearing;
6. The names, addresses, and phone numbers of all witnesses whom you or your attorney intends to call at the Fairness Hearing; and
7. A list of exhibits which you may use.

Your formal objection letter must have been mailed to all of the locations listed below, received no later than March 1, 2021:

If you planned to appear at the Fairness Hearing, you must have filed with the Settlement Administrator a notice of intention to appear no later than March 1, 2021.

Objecting is telling the Court you do not like something about the Settlement. You can object only if you stay in the Class (do not exclude yourself). Excluding yourself is telling the Court you do not want to be part of the Class. If you exclude yourself, you cannot object because the case no longer affects you.

The Court held the fairness hearing on April 20, 2021. The Court entered Final Approval and Judgment on January 27, 2022. However, there may still be appeals to this Judgment and if the Judgment is appealed, it is unknown how long it may take to resolve. Please be patient.

The Fairness Hearing was held on April 20, 2021.

The Fairness Hearing was held on April 20, 2021.

The Court entered Final Approval and Judgment on January 27, 2022. However, there may still be appeals to this Judgment and if the Judgment is appealed, it is unknown how long it may take to resolve. Please be patient.

If you are in the Florida Purchase Class and you do nothing, you will not get any benefit from this Settlement. If you are in the Florida Purchase Class, you need to submit a Claim Form to receive the Settlement benefits that you are eligible for if the Settlement is approved and becomes final. If the Settlement is approved and becomes final, all of the Court’s orders will apply to you and legally bind you. That means you will give up your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Costa about the same legal issues raised in this case.

If you are in the Florida Repair Class, Nationwide Repair Class, or Warranty Class and you do nothing, you will automatically receive the Settlement benefits that you are eligible for if the Settlement is approved and becomes final. All of the Court’s orders will apply to you and legally bind you. That means you will give up your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Costa about the same legal issues raised in this case.

The Notice summarizes the proposed Settlement. More details are in the documents filed with the Court. You can get many of those documents and a Claim Form here. You may also review the Court’s file in this case at the Office of the Clerk, United States District Court for the Middle District of Florida, Bryan Simpson United States Courthouse, 300 North Hogan Street, Jacksonville, Florida 32202. You can also call 1-855-917-3479 toll-free; write to the Settlement Administrator at P.O. Box 3259, Portland, OR 97208-3259; or contact Class Counsel. Please do not call the Judge about this case. Neither the Judge, nor the Clerk of Court, will be able to give you advice about this case. Furthermore, Costa’s attorneys do not represent you and they cannot give you legal advice.