Historic Class Action Settlement and Distribution Protocol
The final settlements were approved yesterday in a series of settlements that represent the second-largest recovery in Canadian competition class action history. Pro-sys Consultants Ltd. v. Infineon Technologies AG et al, 2014 BCSC 1936 alleged a price-fixing conspiracy among international manufacturers of dynamic random access memory (DRAM), a semiconductor memory product that provides high speed storage and retrieval of information found in computers, servers and other electronic equipment. The class includes purchasers at all levels of the distribution chain. Analogous proceedings were also brought in Ontario and Quebec.
Yesterday’s settlement approval left the total national settlement amount achieved in the class actions, inclusive of accrued interest, at $80 million. Class counsel has developed and implemented an innovative protocol to distribute the net proceeds of the settlement, based on:
- public consultation with class members;
- retaining an economist to address distribution of loss as a result of overcharge;
- retaining a former Supreme Court of Canada judge to advice on process;
- assigning different members of the class counsel team responsibility for sub-groups of the class and adopting an adversarial role to ensure the interests of groups at different levels of the distribution chain are protected; and
- a review of the expert evidence and allocation plan approved in the parallel US proceeding.
The result is a distribution protocol dividing the net proceeds of the settlement in three parts: half to the end consumers, who purchased DRAM/computer or electronic equipment for their own use and not for resale; 30% to electronic manufacturers; and 20% to other DRAM purchasers. The claims are being administered by a third party professional administrator.
The court also approved plaintiff’s counsel contingency fee of 30% of the settlement funds, just under $23 million (for docketed time of just under $8 million), as fair and reasonable in the circumstances.