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CITATIONEidoo v. Infineon Technologies AG_ 2012 ONSC 4375

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CITATIONEidoo v. Infineon Technologies AG_ 2012 ONSC 4375 Powered By Docstoc
					                      CITATION: Eidoo v. Infineon Technologies AG, 2012 ONSC 4375
                                                   COURT FILE NO.: 05-CV-4340
                                                               DATE: July25,2012

                                  ONTARIO
                          SUPERIOR COURT OF JUSTICE

BETWEEN:

                    Khalid Eidoo and Cygnus Electronics Corporation
                                                                                 Plaintiffs
                                         -and-

Infineon Technologies AG, Infineon Teclmologies Corporation, Infineon Teclmologies North
America Corporation, Hynix Semiconductor Inc., Hynix Semiconductor America Inc., Hynix
    Semiconductor Manufacturing America, Inc., Samsung Electronics Co., Ltd., Samsung
                 Semiconductor, Inc., Samsung Electronics America, Inc.,
 Micron Semiconductor Products, Inc. o/a Crucial Teclmologies, Mosel Vitelic Corp., Mosel
                          Vitelic Inc. and Elpida Memory, Inc.
                                                                               Defendants

                    Proceeding under the Class Proceedings Act, 1992

COUNSEL:
   •   Jonathan Foreman and Robert Gain for the Plaintiffs
   •   Christopher P. Naudie and Geoff Grove for Elpida Memory, Inc.
   •   Katherine L. Kay for Infineon Technologies AG, Infineon Technologies Corporation,
       Infineon Technologies North America Corporation

HEARING DATE: July 23, 2012

PERELL,J.

                              REASONS FOR DECISION

A. INTRODUCTION

[I]     In this action, Khalid Eidoo and Cygnus Electronics Corporation sue Infineon
Technologies AG, Infineon Technologies Corporation, Infineon Technologies North America
Corporation, Hynix Semiconductor Inc., Hynix Semiconductor America Inc., Hynix
Semiconductor Manufacturing America, Inc. Samsung Electronics Co., Ltd., Samsung
Semiconductor, Inc., Samsung Electronics America, Inc., Micron Semiconductor Products,
Inc. o/a Crucial Teclmologies, Mosel Vitelic Corp., Mosel Vitelic Inc. and Elpida Memory,
Inc. for: (a) breach of Part IV of the Competition Act, R.S.C. 1985, c. C-34; (b) civil
conspiracy; and (c) tortious interference with economic interests.
[2]   The action concerns allegations that the Defendants conspired to fix prices in DRAM
(dynamic random access memory) devices. The action is on behalf of the plaintiffs and other
                                             - 2-


persons resident in Canada who purchased DRAM or products which contained DRAM
manufactured by the defendants from April 1, 1999 to June 30, 2002.
[3]     There is a companion action in British Columbia in which Pro-Sys Consultants Ltd. is
the representative plaintiff. The British Columbia action is known as Pro-Sys Consultants
Ltd. v. Infineon Technologies Inc. There is a companion action in Quebec in which Option
Consummateurs and Claudette Cloutier are the representatives. The Quebec action is known
as Option Consommateurs c. Infineon Technologies Inc. There are also parallel proceedings
in the United States.
[4]    On March 28, 2012, I certified the Ontario class action for the purposes of a
settlement between the plaintiffs Khalid Eidoo and Cygnus Electronics Corporation and
Elpida Memory, Inc. and Elpida Memory (USA) Inc., (collectively "Elpida") two of the
many defendants. See Eidoo v. b?fineon Technologies AG 2012 ONSC 1987. On June 20,
2012, I approved the settlement after a fairness hearing. See Eidoo v. Infineon Technologies
AG, 2012 ONSC 3801. I approved the settlement and signed the approval order on June 20,
2012 with reasons to follow. The reasons were issued on June 27, 2012.
[5]    The Plaintiffs in this action and the Plaintiffs in the companion actions now
simultaneous bring two motions in the respective actions. The purpose of one motion is for
court approval of a distribution protocol and the appointment of a claims administrator. An
aspect of that motion is the determination of the "effective date," for the release of the
settlement funds that are currently being held in escrow in accordance with an Escrow
Agreement. The purpose of the other motion is for court approval of Class Counsels' fee.
[6]   Procedurally, the motions are brought pursuant to the Canadian Judicial Protocol for
the Management of Multijurisdicitonal Class Action.
[7]     In the first motion, the plaintiffs in the respective actions seek an Order: (a) adopting
the Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions; (b)
appointing Bruneau Group Inc. as Claims Administrator for the settlement; (c) approving the
Distribution Protocol; and (d) declaring that the Effective Date having been reached, upon
receipt of a copy of this Order, the Escrow Agent shall transfer the Settlement Amount to the
Bruneau Group.
[8]    In the second motion, Class Counsel seek an order approving their counsel fee.

B. CANADIAN JUDICIAL PROTOCOL for the MANAGEMENT of
   MULTIJURISDICTIONAL CLASS ACTIONS

[9]    There is no dispute that the Canadian Judicial Protocol for the Management of
Multijurisdictional Class Actions should apply, and I so order.
[I 0] Justice Gagnon of the Superior Comi of Quebec and Justice Masuhara of the
Supreme Comi of British Columbia have made similar orders.

C. FACTUALBACKGROUND

[II] Harrison Pensa LLP and Sutts, Strosberg LLP in Ontario are working cooperatively
with the law firms of Camp Fiorante Matthews Mogerman in British Columbia and Belleau
                                            -3-


Lapointe, LLP in Quebec. Collectively, they are Class Counsel. (At the outset of the actions,
Siskinds LLP of Ontario also provided some legal services.).
[12] Once proceedings had commenced, Class Counsel agreed that the British Columbia
action and the Quebec action would be prosecuted to certification. The Ontario action was
held back.
[ 13] At the time the proceedings were conm1enced, there had not been a successful
contested certification of a price-fixing case in Canada. The only Competition Act class
actions that had proceeded to a contested ce1iification hearing were Chadha v. Bayer Inc.
(1999), 45 O,R, (3d) 29 (S.C.J.) and Price v. Panasonic Canada, [2002] O.T.C. 426, 22
C.P.C. (5th) 382 (S.C.J.). Ce1iification, however, was refused in those cases.
[14] On May 5, 2008, after a seven-day ce1iification hearing, the British Columbia
Superior Comi dismissed the motion for certification in Pro-Sys Consultants Ltd. v. Injineon
Technologies Inc., the British Columbia action. The plaintiffs appealed.
[15] On February 23, 2010, the British Columbia Comi of Appeal reversed the motions
judge and ce1iified the class action against all the Defendants.
[16] The Defendants applied to the Supreme Comi of Canada for leave to appeal, but the
application for leave was dismissed on June 3, 2010.
[17] On August 16, 2010, the British Columbia action was set down for trial for 80 court
days commencing September 10, 2012. However, on June 13, 2012, the trial date was
tentatively adjourned to the fall of2014, subject to any agreement between the parties.
[18] On April15, 2011, the British Columbia Court of Appeal denied certification of two
proposed class actions, Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2011
BCCA 187 and Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2011 BCCA 186
("Microsofi"). Those cases changed the law in British Columbia with respect to whether
indirect purchasers have a cause of action for anti-competitive conduct. The plaintiffs in Sun-
Rype and Microsoft sought and were granted leave to appeal to the Supreme Comi of
Canada. The appeals are scheduled to be heard on October 17, 2012.
[19] On November 15, 2011, the plaintiffs in British Columbia, Ontario, and Quebec
actions entered into a settlement agreement with Elpida Memory, Inc. ("Elpida Japan") and
Elpida Memory (USA) Inc. (collectively "Elpida"). Under the terms of the agreement, Elpida
agreed to pay $5,750,000 plus interest in exchange for a full release of claims. With interest,
the Settlement Amount totalled $5,845,833.33 as of March 8, 2012.

[20] On November 16, 2011, the Quebec Comi of Appeal authorized the Quebec action
against all the defendants. An appeal of that judgment to the Supreme Court of Canada will
be heard on October 17, 2012. (The appeal has been scheduled to be heard with Sun-Rype
Products Ltd. v. Archer Daniels Midland Company, supra, and Pro-Sys Consultants Ltd. v.
Microsofi Co17Joration, supra.).

[21] On February 27, 2012, Elpida Japan commenced restmcturing proceedings in Japan.
On April 24, 2012, an order from the U.S. Bankruptcy Court stayed all actions in the United
States against Elpida Japan and Elpida USA, except those specifically excluded. The U.S.
                                                   - 4-


indirect purchaser actions that are parallel to the Canadian actions were among the actions
excluded from the stay.
[22] On March 8, 2012, Elpida delivered the Settlement Amount to BNY Trust Company
of Canada, the "Escrow Agent," for deposit into the trust account. The Settlement Amount is
being held in escrow by the Escrow Agent pursuant to the terms of an Escrow Agreement
dated March 6, 20 12 between Class Counsel, Elpida, and the Escrow Agent.
[23] For present purposes, the pertinent provisions of the Escrow Agreement concern the
"effective date" for the release of those funds out of escrow. Paragraphs 12 and 13 of the
Escrow Agreement state:
     12. Upon appoinhnent of a Claims Administt·ator or such other tmstee as may be appointed by the
     Coutts to administer the Escrow Funds, the Escrow Agent shall cede control of the Escrow Funds
     to such Claims Administrator or hustee and shall have no further obligations pursuant to this
     Escrow Agreement.

     13. The Escrow Agent shall release the Escrow Funds upon receipt of written notification from
     counsel for Elpida USA at Osler, Hoskin & Harcourt LLP ("Osler") and fi·om Settlement Class
     Counsel requesting the release of the Escrow Funds and certifying that the Settlement Agreement
     was approved by the B.C. Supreme Court, the Ontario Superior Court and the Quebec Court and
     that the Effective Date has occurred, or that the Settlement Agreement is terminated in
     accordance with the terms of the Settlement Agreement. For the purposes of this Escrow
     Agreement, "Effective Date" shall have the meaning set forth in the Settlement Agreement.

[24] As may be noted, the Escrow Agreement borrows the definition of "Effective Date"
from the Settlement Agreement. The Settlement Agreement defines "Effective Date" and
"Final Order" as follows:
      Effective Date means the date when the Final Orders have been received from all the Courts
      approving this Settlement Agreement.

      Final Order means a final order, judgment or equivalent decree entered by a Coutt in respect of
      the certification or authorization of a Proceeding as a class proceeding for the purposes of this
      settlement and/or the approval of this Settlement Agreement and implementing it in accordance
      with its terms, once the time to appeal such order has expired without any appeal being taken, if
      any appeal lies, or once there has been affmnation of the order, judgment or equivalent decree
      upon final disposition of all appeals.

[25] Thus, the settlement funds are being held in escrow by the Escrow Agent pursuant to
the terms of the Escrow Agreement, and the escrow agent will not release the funds until
after the court appoints a claims administrator and until after the "Effective Date" is
determined. Because of the threat of bankruptcy proceedings, Class Counsel are very eager
and anxious that the funds be released from escrow.
[26] On March 28, 2012, I approved the Notice of Settlement Approval Hearing and the
Notice Program. The Notice informed settlement class members that Class Counsel would be
seeking legal fees of up to 1/3 of the Settlement Amount, plus disbursements and applicable
taxes to be approved by the courts and paid out of the Settlement Amount. The deadline for
objecting to the settlement passed and no objections were submitted.
[27] Meanwhile, the defendants in the British Columbia action, other than Elpida applied
to the Supreme Court of Canada for reconsideration of the denial of leave to appeal. The
Supreme Court of Canada denied the motion for reconsideration on May 17,2012.
                                              -5-


[28]    On June 18, 2012, Justice Masuhara approved the Settlement Agreement in the
British Columbia action.
[29] On June 20,2012, as already noted above, the Settlement Agreement was approved in
Ontario and the approval order signed.
[30] On June 27, 2012, Justice Gagnon approved the settlement agreement in the Quebec
action.
[31] As of July 13, 2012, neither Elpida Japan nor Elpida USA has applied in Canada for
bankruptcy, creditor protection, or recognition of the Tokyo Order or the U.S. Recognition
Order.

D. APPOINTMENT OF CLAIMS ADMINISTRATOR

[32]    Class Counsel retained the class action administration firm Bruneau Group Inc. to
assist with the distribution of the notice of the certification for settlement purposes and of the
Settlement Agreement. Class Counsel now proposes to retain Bruneau Group as Claims
Administrator.
[33] Bruneau Group and Ms. Bruneau are highly experienced and specialized class action
administrators. The interests of absent class members will be adequately protected by this
appointment. Ms. Bruneau is proficiently bilingual in Canada's official languages and
capable of administering the settlement for class members fimn across the countly.
[34]   I approve the appointment of Bruneau Group Inc. as settlement administrator.

E. EFFECTIVE DATE.

[35] In Ontario, a right to appeal was available for 30 days after the Elpida Settlement
Agreement was approved. It seems that the situation is the same in British Columbia, and I
understand that there is no right to appeal from the settlement approval order in Quebec.
[36] My approval order on June 20, 2012 was the last of the appealable orders. It was a
final order, and it was not appealed. The other orders were not appealed.
[3 7] In the above circumstance, my interpretation of the operation of the Escrow
Agreement and of the Settlement Agreement is that the "effective date" for the purposes of
both is July 20, 2012, and I so declare.

F. DISTRIBUTION PROTOCOL

[38] The Elpida Settlement Agreement is the first settlement in the actions in British
Columbia, Ontario and Quebec. As a consequence, Class Counsel proposes that, for the time
being, the Settlement Amount be held in trust by Bruneau Group in an interest-bearing
account for the benefit of the class members. The only immediate distribution would be for
payment of Class Counsels' fee as approved by the comi.
[39] Thus the Elpida Settlement Agreement contemplates a distribution protocol that, with
an exception for counsel fees, does not actually distribute the funds, but which instead holds
them in trust until the resolution of the actions in British Columbia, Ontario, and Quebec.
                                             -6-


[40]    Class Counsel submit that the deferral of distribution to the class member is in the
best interests of the class because a distribution now would be inefficient and a waste of
expense. In other words, there is a significant cost of distribution that will be incurred again
when future settlement funds or judgment proceeds are received. The class members will
earn interest on the settlement proceedings in the meantime and in the long term will recover
more from this approach.
[41] In my opinion, in all the circumstances, it is fair and reasonable that Class Counsel be
paid their Counsel Fee and disbursements for a class action that they have carried for almost
eight years and the balance of the settlement funds not be disbursed pending fmiher
settlements or the outcome of any trial.
[42] The Representative Plaintiffs are content with this anangement, and, accordingly, I
approve the proposed distribution scheme.

G. FEE APPROVAL

[43] Class Counsel seek Court approval of a fee request in the amount of $1,753,750.00
(As will be seen below, this is a multiple of 0.52 of the docketed time of Class Counsel).
[44] Class Counsel have an agreement to share the cost of disbursements and to share the
fees approved. The agreement between counsel stipulates that the work will be divided and
duplicative work avoided. The agreement stipulates that unless exceptional circumstances
dictate otherwise, a maximum of two professionals from each law firm shall claim payment
for time associated with attending meetings or couti appearances. Similarly, a maximum of
two professionals from each law firm shall claim payment for the review of any document or
report in the litigation. No payment shall be claimed for reviewing communications between
co-counsel that addresses purely organizational or logistical matters.
[45] Class Counsel have consulted with the United States law firms of Cooper & Kirkham,
P.C. and Zelle Hofmann Voelbel & Mason LLP. These two U.S. firms are leaders in the
counsel teams on the parallel DRAM indirect purchaser class action in the United States.
They have recorded their time at their regular rates for assisting and conferring with Class
Counsel. Class Counsel have agreed to compensate them on a fair and equitable basis which
compensation will be paid from the fees for Class Counsel approved by the Courts.
[46]   Class Counsel also request payment of applicable taxes and reimbursement of
disbursements of $502,432.85. The most significant disbursement is for expert fees. Class
Counsel have decided not to request the disbursements incuned for meals at this time.
[4 7] Class Counsel have unde1iaken to file in a sealed envelope the disbursements to be
paid forthwith after court approval. This information will be necessary to avoid any double
recovery should the court be asked in the future to approve additional counsel fees and
disbursements.
[48] The request for the counsel fee is made pmsuant to contingency fee retainer
agreements that were entered into between Harrison Pensa LLP and Sutts, Strosberg LLP and
the representative plaintiffs. The contingency fee retainer agreements provide for a fee
payable of up to 30% of the value of any settlement plus disbursements and applicable taxes.
                                               - 7-


The retainer agreement for the British Columbia plaintiff provides for a fee of up to 33.3 %
of the value of any settlement plus disbursements and applicable taxes.
[49] The Fee Agreement between Ontario Class Counsel and the plaintiffs states, among
other things, that no fees are payable absent "success" as defined in the Class Proceeding
Act, 1992 and that the fee payment is to made as a lump sum percentage subject to court
approval. The agreement provides examples as to the mechanics of a fee payment in the
event of success.
[50] Section 32(1) of the Class Proceedings Act, 1992 provides that an agreement
respecting fees and disbursements shall be in writing and shall: (a) state the terms under
which fees and disbursements shall be paid; (b) give an estimate of the expected fee, whether
contingent on success in the class proceeding or not; and, (c) state the method by which
payment is to be made, whether by lump sum, salary or otherwise. The comi has the
authority to approve a contingent counsel fee based on a percentage of recovery: Crown Bay
Hotel Ltd. Partnership v. Zuric Indemnity Co. of Canada (1998), 40 O.R. (3d) 83 at paras. 6,
11-13 (Gen. Div.).
[51] I am satisfied that the contingency fee agreements in the case at bar satisfy the
technical requirements of the Class Proceedings Act, 1992 and the agreements should be
approved.
[52]    Class Counsel have docketed time at their usual hourly rates which total
$3,364,886.75 up to April 30, 2012. US Consulting Counsel have docketed time at their
usual hourly rates of $358,992.00.
[53] The fairness and reasonableness of the fee awarded in respect of class proceedings is
to be determined in light of the risk undertaken by the lawyer in conducting the litigation and
the degree of success or results achieved: Maxwell v. MLG Ventures Ltd. (1996), 30 O.R.
(3d) 304 (Gen. Div.); Windisman v. Toronto College Park Ltd., [1996] O.J. No. 2897 (Gen.
Div.); Serwaczek v. Medical Engineering Corp., [1996] O.J. No. 3038 (Gen. Div.); Parsons
v. Canadian Red Cross Society (2000), 49 O.R. (3d) 281 (S.C.J.).
[54] Where the fee arrangements are a part of the settlement, the court must decide
whether the fee arrangements are fair and reasonable, and tltis means that counsel are entitled
to a fair fee, which may include a premium for the risk undertaken and the result achieved,
but the fees must not bring about a settlement that is in the interests of the lav.')'ers, but not in
the best interests of the Class Members as a whole: Sparvier v. Canada (AIIorney General),
[2006] S.J. No. 752 (Q.B.) at para. 43, affd [2007] S.J. No. 145 (C.A.).
[55] Fair and reasonable compensation must be sufficient to provide a real economic
incentive to lawyers to take on a class proceeding and to do it well: Gagne v. Si!c01p Ltd.
(1998), 41 O.R. (3d) 417 (C.A.); Parsons v. Canadian Red Cross Society (2000), 49 O.R.
(3d) 281 (S.C.J.); Vitapharm Canada Ltd. v. F Hoffinann-La Roche Ltd., [2005] O.J. No.
1117 (S.C.J.) at paras. 59-61.
[56] Factors relevant in assessing the reasonableness of the fees of Class Counsel include:
(a) the factual and legal complexities of the matters dealt with; (b) the risk unde1iaken,
including the risk that the matter might not be certified; (c) the degree of responsibility
assumed by Class Counsel; (d) the monetary value of the matters in issue; (e) the importance
of the matter to the class; (f) the degree of skill and competence demonstrated by Class
                                               - 8-


Counsel; (g) the results achieved; (h) the ability of the class to pay; (i) the expectations of the
class as to the amount of the fees; (j) the oppmiunity cost to Class Counsel in the expenditure
of time in pursuit of the litigation and settlement: Vitapharm Canada Ltd. v. F. Hojjinann-La
Roche Ltd., [2005] O.J. No. 1117 (S.C.J.) at para. 67; Endean v. Canadian Red Cross
Society, [2000] B.C.J. No. 1254 (S.C.); Wamboldt v. Northstar Aerospace (Canada) [2009]
O.J. No. 2583 (S.C.J.) at para. 33.
[57] At this juncture of the actions, having regard to the above factors, I am satisfied that
the fee requested by Class Counsel is fair and reasonable.
[58] It is an understatement to say that the actions across the country, particularly the
actions in British Columbia and Quebec, have been vigorously litigated. Class Counsel have
confronted a formidable array of determined and adept defence counsel in very complex
litigation.
[59] Class Counsel have done an enormous amount of work, and in taking on this action
and continuing it to this day, Class Counsel have taken on an extraordinary risky litigation
with enormous uncertainties in the substantive law and in the procedural law associated with
class actions. Those unce1iainties persist, and the litigation against the non-settling
defendants remains risky both substantively and procedurally.
[60] The results achieved so far, which undoubtedly contributed to a partial settlement
being achieved, and the settlement agreement itself are good results.
[61] In my opinion, at this juncture, a 30% contingency fee is fair and reasonable
especially when tltis fee involves a fraction of the docketed value of the legal services.
[62] The circumstances may be different at later fee approvals, if any, but at this juncture,
in my opinion, Class Counsel have achieved a good result and have earned and deserve to be
paid for their work to date.
[63]    Accordingly, for the above reasons, I grant both motions before the court.




                                                                                         Perell, J.


Released: July 25, 2012
                     CITATION: Eidoo v. Infineon Technologies AG 2012 ONSC 4375
                                                  COURT FILE NO.: 05-CV -4340
                                                              DATE: July 25 2012


                                                   ONTARIO
                                           SUPERIOR COURT OF JUSTICE

                                      BETWEEN:


                                          Khalid Eidoo and Cygnus Electronics
                                                     Corporation
                                                                          Plaintiff
                                                         -and-
                                               In fin eon Technologies AG,
                                          Infineon Technologies Corporation,
                                         Infineon Technologies North America
                                        Corporation, Hynix Semiconductor Inc.
                                          Hynix Semiconductor America Inc.,
                                         Hynix Semiconductor Manufacturing
                                      America, Inc. Samsung Electronics Co., Ltd.,
                                             Samsung Semiconductot·, Inc.,
                                          Samsung Electronics America, Inc.
                                       Micron Semiconductor Products, Inc. o/a
                                       Crucial Technologies, Mosel Vitelic Cot·p.,
                                       Mosel Vitelic Inc. and Elpida Memory, Inc.
                                                                        Defendants



                                              REASONS FOR DECISION


                                                                          PercH, J.


Released: July 25,2012.
              Khalid Eidoo, et al              lnfineon Technologies AG, et al                                  Court File No: 05-CV-4340
                        Plaintiffs       and   Defendants


                                                                                                      ONTARIO
0~   ')_;;, ,'2~\2                                                                            SUPERIOR COURT OF JUSTICE

 <:::Ji'\.~ -\;:, ~\::,   '<'V"'. \   0..'-.C:..~C"n~ ""~~~CI-A\'"'vi.£ ~.,_:)               Proceeding commenced at Windsor

\)!LU/'~ ~--:'!.""6.0                           \ "'-<:J\A.N... s't::,~~ \.'w...     Proceeding Under the Class Proceedings Act, 1992
 C::,.~.

                      9~S.
                                                                                                      MOTION RECORD
                                                                                                APPROVAL OF CLASS COUNSEL
                                                                                                   FEES & DISBURSEMENTS



                                                                                   HARRISON PENSA LLP
                                                                                   Lawyers
                                                                                   450 Talbot Street
                                                                                   P.O. Box 3237
                                                                                   London, ON N6A 5J6

                                                                                   JONATHAN FOREMAN
                                                                                   LSUC #: 45087H
                                                                                   Tel:  519.661.6775
                                                                                   Fax: 519.667.3362

                                                                                   SUITS, STROSBERG LLP
                                                                                   Lawyers
                                                                                   600 Westcourt Place
                                                                                   251 Goyeau Street
                                                                                   Windsor, ON N9A 6V4

                                                                                   HEATHER RUMBLE PETERSON
                                                                                   LSUC#: 24671V
                                                                                   Tel: 519.561.6228
                                                                                   Fax: 519.561.6203

                                                                                   Lawyers for the Plaintiffs


                                                           --------------
                Khalid Eidoo, eta/              /nfineon Technologies AG, eta/                                     Court File No: 05-CV-4340
                          Plaintiffs    and     Defendants


                                                                                                         ONTARIO
0~
  01.~ , L.""~":t                                                                                SUPERIOR COURT OF JUSTICE

     u l\.~ \    ~   0~
            0..1/¥\\,S_ '""""2t.y, ~\11-S..
                            \(Y\   0-C- '"<...;-.                                tw             Proceeding commenced at Windsor

 ~~ ~~ \~d\.~ \. ~ ::,.'-\:f'"'\.""'.\...s...                                           Proceeding Under the Class Proceedings Act, 1992
 c)~~.

                         9~:\                                                                            MOTION RECORD
                                                                                            APPROVAL OF DISTRIBUTION PROTOCOL AND
                                                                                             APPOINTMENT OF CLAIMS ADMINISTRATOR




                                                                                      HARRISON PENSA LLP
                                                                                      Lawyers
                                                                                      450 Talbot Street
                                                                                      P.O. Box 3237
                                                                                      London, ON N6A 5J6

                                                                                      JONATHAN FOREMAN
                                                                                      LSUC #: 45087H
                                                                                      Tel:  519.661.6775
                                                                                      Fax: 519.667.3362

                                                                                      SUTTS, STROSBERG LLP
                                                                                      Lawyers
                                                                                      600 Westcourt Place
                                                                                      251 Goyeau Street
                                                                                      Windsor, ON N9A 6V4

                                                                                      HEATHER RUMBLE PETERSON
                                                                                      LSUC#: 24671V
                                                                                      Tel: 519.561.6228
                                                                                      Fax: 519.561.6203

                                                                                      Lawyers for the Plaintiffs

				
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