Steven Lee, OD.

CHICAGO—Steven Lee, OD, co-founder and executive vice president of Opternative, the world’s first online refractive eye exam service, has settled a lawsuit alleging that he had sold copyrighted test questions for optometry board exams through a prior business.

The suit, filed by the National Board of Examiners in Optometry in the United States District Court for the Northern District of Illinois Eastern Division, was settled in mid-July, two weeks before Opternative launched its service in 27 states covering 75 percent of the U.S. 18- to 40-year-old population, which was reported in VMail. Under the terms of the settlement, Lee will pay the NBEO at least $181,200 and as much as $481,200 if Opternative continues to raise funds or is acquired. Lee did not admit to any wrongdoing.

News of the settlement was first reported by the Chicago Tribune’s Blue Sky website last week.

NBEO, based in Charlotte, N.C., filed the lawsuit in U.S. District Court in October 2014. The suit alleged that Lee established an online business called “Optometry Board Exams: Secrets, Hints, Tips, Cheat Sheets,” which advertised purchase of practice questions and study guides that included “unauthorized copies of actual questions in NBEO’s question database” to study for a Part I Exam, which is used to evaluate an individual’s fitness to practice optometry.

The suit accused Lee of trade secret misappropriation, willful copyright infringement, tortious interference with contract and breach of contract. According to the suit, Lee was confronted about the sales in November 2013 and took down the website. As part of the settlement, NBEO has taken control of the website previously operated by Lee, www.optometryboardexams.com.

Opternative asserts that the timing of NBEO suit reflects the organization’s hostility toward Opternative’s disruptive business model.

“We are troubled by the timing of the NBEO’ actions, as the suit was filed nearly two years after our founding and appears part of a coordinated campaign by an aggressive group of optometrists to discredit our pioneering technology and misinform consumers seeking an affordable and convenient way to take a refractive eye exam,” Opternative co-founder and CEO Aaron Dallek said in an emailed statement to VMail. “However, the settlement between Dr. Steven Lee and the NBEO will have no impact on the future financial performance of Opternative as we continue to grow our services.”

NBEO CEO Jack Terry claims that the suit’s timing had nothing to do with Opternative. “The NBEO has no position on Opternative or any business venture of any optometrist since that would be outside the scope and function of NBEO,” Terry told VMail.

According to Terry, NBEO was unaware of Opternative until after Lee had been identified as the owner of the www.optometryboardexams.com website and was a target in the investigation. “The NBEO became aware of Dr. Lee's association with Opternative well into the fact-finding of the case,” he said. “The NBEO began investigating the owner of this illegal website long before there was an association with this business venture. The investigation was based on the multiple issues described in the complaint which are contrary to the Candidate Agreement that all candidates read and sign when registering for any NBEO exam immediately prior to taking an exam.”