CIRCUIT COURT OF ST. LOUIS COUNTY
STATE OF MISSOURI
Case No. 17SL-CC02089
Division No. 4

NANCY YLVISAKER, WESLEY JONES and KARI GLADSTONE, individually, and on behalf of all others similarly situated,

Plaintiffs,

v.

CLARKSON EYECARE, LLC,

Defendant.

NOTICE OF CLASS ACTION SETTLEMENT

 A Missouri Court has authorized this Notice. This is not a solicitation from a lawyer. Please read this Notice carefully as it may affect your legal rights.

This notice is being provided because you may be among a group or “class” of persons who paid sales tax to Clarkson Eyecare, LLC (“Clarkson”) in Missouri between June 9, 2012 and December 17, 2020. In this lawsuit, Plaintiffs contend Clarkson overcharged certain customers for sales tax in Missouri for purchases involving at least one materials component and reimbursement, in whole or in part, from an insurance provider and/or vision plan. While Clarkson denies liability, Clarkson has agreed to establish a settlement fund in the amount of $3,500,000.00 as part of a settlement agreement with the class to resolve the dispute.

For the terms of the settlement agreement, and how your rights are affected under the settlement agreement, please review the executed settlement agreement here: http://www.mosalestaxsettlement.com/wp-content/uploads/2021/01/Fully-Executed-Settlement-Agreement-.pdf.

Downloadable copies of certain important pleadings and court orders may be found here: http://www.mosalestaxsettlement.com/?page_id=55.

A summary of certain parts of the settlement agreement is set forth below.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS CASE

Certain of these rights and options and the deadlines to exercise them are explained below.

IF YOU WANT TO PARTICIPATE FULLY IN THIS SETTLEMENT If you are a class member, you are included in the class and bound by the settlement agreement and associated release unless you act to exclude yourself from the case.

 

All class members who do not act to exclude themselves from the settlement are eligible to receive a cash payment that represents a percentage of sales tax charged by Clarkson for certain product purchases from Clarkson locations in Missouri. The amount of payment each class member may receive is detailed in Section 7, below.

If you receive notice of the settlement by mail or e-mail, the notice will state whether or not you are required to submit a valid claim form to receive payment, which form can be found on the settlement website. If you did not receive notice by email or mail, you are required to submit a valid claim form to receive payment.  If you are required to submit a claim form to receive payment and you do not do so by the deadline, you will be bound by the settlement agreement and release and not eligible to receive payment.

By participating in the settlement, you give up any rights to separately sue Clarkson for any claims arising out of or in any way relating to computation, charging, or collection of Missouri sales tax for the class period.

Any class member who does not request exclusion may enter an appearance in this action through an attorney, if desired.

IF YOU DO NOT WANT TO PARTICIPATE IN THIS SETTLEMENT OR IF YOU WANT TO OBJECT TO THE SETTLEMENT If you do not want to participate or be included in this settlement, then you must request to be excluded from the settlement. Your request for exclusion must be received no later than March 13, 2021. Instructions for doing so are in Section 8 below. If you timely request exclusion in the manner required under the settlement agreement, the Court will exclude you from the settlement.

 

If you wish to object to the settlement, your objection must be received no later than March 13, 2021. Instructions for doing so are in Section 8 below.

If you exclude yourself from this case, you give up the money and benefits made available by the settlement. You keep any rights to sue Clarkson separately about Clarkson’s computation, charging, or collection of Missouri sales tax.

Your options are explained in this Notice.

1. WHAT IS THIS LAWSUIT ABOUT?

Plaintiffs Nancy Ylvisaker, Wesley Jones and Kari Gladstone (“Plaintiffs”) filed a civil lawsuit in the Circuit Court of St. Louis County, Missouri against Clarkson, captioned Ylvisaker, et al. v. Clarkson Eyecare, LLC, Case No. 17SL-CC02089 (“the Lawsuit”). Plaintiffs filed the Lawsuit on behalf of themselves and on behalf of the group or “class” of persons alleging Clarkson overcharged its customers Missouri sales tax for certain product purchases that involved reimbursement, in whole or in part, from an insurance provider and/or vision plan. Copies of all pleadings, orders, and other documents in the Lawsuit may be obtained from the Court. Certain of the foregoing documents may be obtained on the settlement website.

2. WHAT IS A CLASS ACTION AND WHO IS INVOLVED?

In a class action, one or more people called class representatives (in this case, Nancy Ylvisaker, Wesley Jones, and Kari Gladstone) sue on behalf of people who have similar claims. All these people are a class or class members. One court resolves the issues for all class members, except for those who exclude themselves from the class. Here, the Court has certified a class action for settlement purposes.

3. WHY WAS THIS NOTICE ISSUED?

This notice was issued, by Court order, to inform potential class members about this settlement, the class members’ rights, and how those rights may be affected by the settlement. Do not be alarmed. You have not been sued; nor have you “filed” a lawsuit. This notice simply informs you of the named Plaintiffs’ lawsuit and the proposed settlement and lets you know that you may be a member of the class and to advise you of your rights and options as a class member.

4. HAS THE JUDGE DECIDED WHO IS RIGHT?

No. By certifying the class and issuing this notice, the judge is not suggesting that the named Plaintiffs or the class will win or lose the case. The class is being certified for settlement purposes only as part of a resolution of disputed claims.

5. HOW DO I KNOW IF I AM A MEMBER OF THE CLASS?

By Order dated December 17, 2020, the Court certified the following class of persons for settlement purposes only:

all individuals who made a purchase from one of Clarkson’s Missouri retail locations during the period beginning on June 9, 2012 through December 17, 2020 (the “Class Period”), that: (i) included a materials component; (ii) involved an insurance or vision plan reimbursement; (iii) had a write-off of some kind; and (iv) had a sales tax charge greater than zero dollars ($0.00). Excluded from the Settlement Class are: (a) Clarkson and its employees; (b) the Judge to whom the Lawsuit is assigned; (c) any member of the Judge’s staff or immediate family and (d) any individual who meets the criteria specified above, but for whom Clarkson’s records demonstrate that for each of the individual’s transactions falling within the Class Period, the sales tax amount collected by Clarkson in connection with the sale was equal to or less than the applicable sales tax rate for such sale multiplied by the aggregate amount Clarkson received from the customer as reimbursement for the taxable component(s) of the transaction and/or the customer’s insurer or vision plan as reimbursement for the taxable component(s) of the transaction.

If you are not sure whether you are a member of the class or if you have other questions, you may contact Atticus Administration, the settlement administrator to see if you are a settlement class member.

Address: MO Sales Tax Settlement
c/o Atticus Administration
PO Box 64053
Saint Paul, MN 55164
Phone: 1-888-226-2203
Email: MOSalesTaxSettlement@atticusadmin.com

You may also contact Class Counsel, whose contact information is identified in Section 6.

6. WHO IS CLASS COUNSEL?

The Court has appointed the named Plaintiffs’ attorneys in the Lawsuit as Counsel for the Class (“Class Counsel”). Class Counsel are David T. Butsch and Christopher E. Roberts of Butsch Roberts & Associates LLC, Ryan Keane of Keane Law, LLC and W. Bevis Schock. Class Counsel’s contact information is as follows:

BUTSCH ROBERTS & ASSOCIATES LLC
231 S. Bemiston Ave., Suite 260
Clayton (St. Louis), MO 63105
Telephone: (314) 863-5700
Facsimile: (314) 863-5711
Email: Butsch@ButschRoberts.com
Email: CRoberts@butschroberts.com

Keane Law, LLC
7777 Bonhomme Ave, #1600
St. Louis, MO 63105
Telephone: (314) 391-4700
Facsimile: (314) 244-3778
Email: ryan@keanelawllc.com

W. Bevis Schock
7777 Bonhomme Ave., Ste. 1300
St. Louis, MO 63105
Telephone: 314-726-2322
Email: wbschock@schocklaw.com

You are not required to hire your own lawyer because Class Counsel will be working on your behalf if you are a member of the class. If you want to hire your own lawyer, you are permitted to do so at your own expense.

7. WHAT WILL BE PAID AS PART OF THE SETTLEMENT?

Clarkson has agreed to establish a settlement fund in the amount of $3,500,000.00, which will be the exclusive source of payment. From the settlement fund, payments to class members, a class representative service award of $5,000, certain settlement fund tax costs, attorney’s fees of $1,000,000.00 (subject to potential adjustment as provided below), reasonable litigation expenses in the amount of $32,814.49, and costs of administering this settlement will come from the settlement fund. A minimum of $2,000,000.00 will be made available to pay class members’ claims.

All class members who do not exclude themselves from the settlement (and who submit a valid claim form when required) will receive a cash payment via check (which check will be valid for 90 days from the date of issuance) that will be calculated based upon the aggregate amount of sales tax charged to such class member in each transaction within the Class Period that meets the criteria for a qualifying transaction as is set forth in Section 3.01 of the settlement agreement, up to the following amounts, as follows:

Total Sales Tax Charge/Transaction Settlement Value/Transaction
$00.01-20.00 $3.00
$20.01-30.00 $5.00
$30.01-40.00 $6.00
$40.01-50.00 $8.00
$50.01-60.00 $10.00
$60.01-70.00 $12.00
$70.01-80.00 $14.00
$80.01-90.00 $15.00
$90.01-100.00 $17.00
$100.01+ $19.00

The class member eligible for payment shall be assigned a settlement value for each qualifying transaction and such member shall receive payment equal to the sum of such settlement values.

For example, if Customer A had three qualifying transactions in the Class Period with sales tax charges of $15, $18 and $21, he or she would receive a check for up to $11. Separate payments will not be made for individual transactions. Rather, the tax charged for each individual transaction will be aggregated for purposes of calculating the amount to be paid.

For clarity, transactions for which Clarkson’s records show that the sales tax amount collected by Clarkson in connection with the sale was equal to or less than the applicable sales tax rate for such sale multiplied by the aggregate amount Clarkson received from the customer as reimbursement for the taxable component(s) of the transaction and/or the customer’s insurer or vision plan as reimbursement for the taxable component(s) of the transaction shall not be assigned a settlement value, and shall not be included in calculating settlement payments for a class member.

The settlement value per transaction in the above table is subject to a pro rata downward adjustment to the extent that the aggregate of the settlement payments to qualifying class members would otherwise exceed $3,500,000.00 minus the amounts paid in Section 7.03.A and 7.03.D of the settlement agreement. However, no such pro rata adjustment shall cause the aggregate of the settlement payments to all qualifying class members to be less than $2,000,000.00. If necessary, Class Counsel shall reduce (or refund, as the case may be) its attorneys’ fees in order to cause the aggregate amount of settlement payments to qualifying class members to equal $2,000,000.00.

Ninety-five days after the date on which the last check for a settlement payment to a qualifying class member is issued, the Settlement Administrator shall pay any amount remaining in the settlement fund, including, but not limited to, any amounts of payments uncashed by the class members (which shall then be void) to the cy pres recipients, Delta Gamma Center for Children with Visual Impairments and St. Louis Society for the Blind and Visually Impaired, or if not approved by the Court, one or more cy pres recipients agreed upon by the parties and approved by the Court. If the Court approves the cy pres recipients, the cy pres amounts will be split equally between the two organizations.

8. WHAT DO I NEED TO DO TO RECEIVE THE BENEFIT OF THE SETTLEMENT, TO OBJECT TO THE SETTLEMENT, OR TO BE EXCLUDED FROM THE SETTLEMENT?

If you received notice of the class action settlement by mail, you do not need to take any further action to receive payment.

If you received notice of the class action settlement by email, the notice will direct you as to whether you are required to submit a valid claim form to receive payment. Generally speaking, if Clarkson has a valid mailing address on file for a class member, he or she will not be required to submit a claim form.

However, please follow the direction in the email notice.
If you received notice of the class action settlement via publication in a newspaper and you did not receive a direct email or mail notice, you are required to submit a valid claim from to receive payment.

A claim form may be submitted through the settlement website at www.MOSalesTaxSettlement.com or by mailing a completed claim form to the settlement administrator at the address provided below.

MO Sales Tax Settlement
c/o Atticus Administration
PO Box 64053
Saint Paul, MN 55164

The deadline to submit a valid claim form is March 13, 2021. Any claim from post marked after the deadline will be denied and invalid.
The claim form is included as the last page of this notice.

To exclude yourself from the class:

If you do not want to be a member of the class and participate in the settlement, you can ask the Court to exclude you from the settlement and allow you to “opt out” by sending such correspondence in writing via either mail, email, fax, or the settlement website to:

Address: MO Sales Tax Settlement
c/o Atticus Administration
PO Box 64053
Saint Paul, MN 55164
Email: MOSalesTaxSettlement@atticusadmin.com
Phone: 1-888-226-2203
Fax: 1-844-200-6440
Website: www.MOSalesTaxSettlement.com

To be effective, the request to exclude yourself to the settlement must be completed, signed and received (or postmarked if sent by mail) by March 13, 2021. The request to exclude must clearly state you wish to be excluded from the settlement.

The request to be excluded from the class must include your name, address, and telephone number, and provide a clear statement communicating that you elect to be excluded from the settlement class and do not wish to be a settlement class member.

If you choose to be excluded from the class:

1. Your claims against Clarkson will not be decided in the Lawsuit and you will not share in any recovery and benefits that the named Plaintiffs obtained for the class.

2. You will not be bound by any determinations or any judgment that the Court makes or enters in the Lawsuit, whether favorable or unfavorable.

3. You will not be entitled to any further notice with regard to the Lawsuit.

4. You may pursue any claims you have against Clarkson at your own expense and risk by filing your own separate lawsuit, should you choose to do so.

To object to the settlement:

Any settlement class member who wishes to object to the fairness, reasonableness, or adequacy of this settlement must file a written objection with the Court no later than March 13, 2021 and simultaneously serve a copy on Class Counsel and counsel for Clarkson at the respective addresses set forth in the settlement agreement.

The written objection must contain the class member’s full name, current address, telephone number, the reasons for the objection, whether he or she intends to appear at the Final Approval Hearing on his or her own behalf or through counsel, and a list of all cases in which the objector or objector’s counsel has appeared to object to a class-action settlement in the last five (5) years. Any documents supporting the objection must also be attached to the objection, and if the objecting party intends to call witnesses at the Final Approval Hearing, those witnesses must be identified, including providing each witness’s name, address, and telephone number in the objection. Objections must be signed by the settlement class member making them or by his, her, or its counsel.

Any settlement class member who has timely filed a written objection, as provided for above, may appear at the Final Approval Hearing, either in person or through an attorney hired at the class member’s own expense, to object to the fairness, reasonableness, or adequacy of the settlement agreement or the settlement. A settlement class member or his, her, or its attorney intending to make an appearance at the Final Approval Hearing must: (a) file a notice of appearance with the Court no later than March 13, 2021 and (b) serve a copy of such notice of appearance on Class Counsel and counsel for Clarkson. Any settlement class member who fails to comply with the objection requirements shall waive and forfeit any and all rights to appear separately and to object and shall be bound by all the terms of this settlement, and by all proceedings, orders, and judgments in the litigation.

The Final Approval Hearing will take place on April 22, 2021 at 9:00 a.m. in Division 4 of the Circuit Court St. Louis County, Missouri, 105 South Central Avenue, Clayton, Missouri 63105. To attend remotely, please see as follows:

URL: https://mocourts.webex.com/meet/joseph.dueker

or

Meeting Number: 967 349 036 (www.webex.com and “join” the meeting)

or

Join by phone: +1-408-418-9388 (tolls apply); enter access code: 967 349 036

9. WHAT CLAIMS ARE RELEASED UNDER THE SETTLEMENT AGREEMENT?

Each class member will be bound by the release and covenant not to sue in Sections 14.01 and 14.02 of the settlement agreement and the dismissal of the Lawsuit with prejudice, unless the class member validly opts-out of the settlement, in the manner provided herein.

10. HOW WILL CLASS COUNSEL AND THE CLASS REPRESENTATIVES BE PAID?

Class Counsel will seek an award of attorney’s fees of up to $1,000,000.00 and reasonable litigation expenses of up to $32,814.49. The Court will determine the amount of fees and expenses that should be awarded to Class Counsel. Said amounts will be paid from the $3,500,000.00 settlement fund.

Plaintiffs Nancy Ylvisaker and Wesley Jones will not seek an award for their service as class representatives. Plaintiff Kari Gladstone will seek an award of $5,000.00 for her service as class representative to be paid from the $3,500,000.00 settlement fund.

11. WHAT IF I HAVE QUESTIONS?

You should not contact the Clerk of The Court, Judge, Clarkson, or their attorneys with questions about this case. Instead, if you have any questions about your claim or rights or would like more information, you should call Class Counsel using the contract information for Class Counsel provided herein. You can also speak with your own attorney.

You can review and obtain copies of the Lawsuit, the Settlement Agreement, the Court’s Order granting Preliminary Approval of the Settlement and any other pleadings and filings in the Lawsuit directly from Class Counsel. You can also review and obtain copies of these papers at your own expense at the office of the Circuit Clerk of the Circuit Court of St. Louis County, 105 South Central Avenue, Clayton, Missouri 63105. You may also view these materials on the settlement website, www.MOSalesTaxSettlement.com.

12. IMPORTANT DEADLINES AND DATES TO REMEMBER

March 13, 2021 is the deadline to exclude yourself from the settlement, object to the settlement, and to file a claim (if required).

The Final Approval Hearing will take place on April 22, 2021 at 9:00 a.m. at Division 4 of the Circuit Court of St. Louis County, Missouri, 105 South Central Avenue, Clayton, Missouri 63105. To attend remotely, please see as follows:

URL: https://mocourts.webex.com/meet/joseph.dueker

or

Meeting Number: 967 349 036 (www.webex.com and “join” the meeting)

or

Join by phone: +1-408-418-9388 (tolls apply); enter access code: 967 349 036

Dated: January 12, 2021

This Notice is being made available pursuant to Missouri Supreme Court Rule 52.08 and by Order of the Court.

You may download a claim form here or you may submit a claim through the website here.