1. A class action was commenced in Ontario in 2005 against a group of manufacturers and distributors of Dynamic Random Access Memory (“DRAM”) alleging they conspired to fix the price at which DRAM was sold in Canada and worldwide during the period April 1, 1999 to June 30, 2002. A second class action was commenced in Ontario in 2010 against a further group of manufacturers and distributors of DRAM alleging the same conspiracy. The law firms of Sutts, Strosberg LLP and Harrison Pensa LLP are prosecuting the Ontario actions.
2. Parallel class actions were commenced in British Columbia and Québec alleging the same conspiracy and counsel in the three jurisdictions are working co-operatively to prosecute the actions nationally.
3. DRAM is the most commonly used semiconductor memory product, providing high-speed storage and retrieval of electronic information for a wide variety of computer, telecommunications and consumer electronics products, including personal computers, laptop computers, workstation computers and servers.
APPROVED SETTLEMENTS AND OTHER ORDERS
4. The plaintiffs in the actions across Canada have reached national settlements with all but one group of defendant manufacturers which have been approved by the three Courts with jurisdiction over the actions. The settling defendants did not admit liability, but they agreed to pay in total $79.47 million for the benefit of the settlement class members. The net settlement amount from the eleven settlements is being held in trust for the benefit of settlement class members pending implementation of a Distribution Protocol. The settlement agreements and the Ontario approval orders may be reviewed in the Documents section of this website.
5. Settlement class members means:
|All persons resident in Canada at the time of purchase and/or at the time of notice who purchased DRAM products during the period April 1, 1999 to June 30, 2002, except Excluded Persons and all persons resident in the United States at the time of purchase and/or at the time of notice who purchased DRAM products in Canada during the period April 1, 1999 to June 20, 2002 to the extent that such Persons have actual or potential claims as against the defendants in respect of DRAM products that have not been wholly or completely settled or extinguished in the U.S. Settlement or otherwise in respect of the U.S. Proceedings.|
DRAM products generally means DRAM and products containing DRAM (but does not include SRAM).
Excluded Persons generally means the defendants and their related companies and officers and directors.
6. The deadline set by the Courts for persons not wishing to participate in the class actions expired June 2, 2012.
7. The Courts ordered a discontinuance of the actions against the one remaining set of defendants, Mosel, who went through insolvency proceedings sometime ago.
8. The Courts also approved Class Counsel fees of 30% of the total settlement amount, less a holdback of $1 million pending distribution, payable out of the settlement amount.
APPROVAL OF THE DISTRIBUTION PROTOCOL AND THE CLAIMS PROCESS
9. The plaintiffs and Class Counsel spent a significant amount of time developing a Distribution Protocol and a claims process which the Courts have now approved. A copy of the proposed Distribution Protocol may be reviewed here (English) (French).
10. The reports of Dr. Ross, an independent economist hired by Class Counsel to opine on distribution, can be reviewed at the Documents section of this website. The Honourable Ian Binnie, a retired Supreme Court of Canada justice, also provided an independent report to the Courts. Mr. Binnie’s report to the Courts may be reviewed in the Documents section of this website.
11. Once the claims process and Distribution Protocol are implemented, settlement class members will be required to file a claim for payment in a claims process. Settlement class members who have proof of purchase of DRAM and DRAM products purchased during the period April 1, 1999 to June 30, 2002 should retain those proofs of purchase although the claims process and methods of proof of a claim have been constructed recognizing not all settlement class members will still have this documentation.
THE DISTRIBUTION PROTOCOL PLAN TO PAY THE NET SETTLEMENT AMOUNT
12. Please note that the explanations given in this section are very broad in nature and should not, under any circumstances, be interpreted as having priority over the rules set out in the Distribution Protocol.
13. The plan to pay the net settlement amount to settlement class members is based on two variables: the quantity of DRAM purchased by each settlement class member, and the settlement class member’s position in the DRAM distribution chain.
14. Given that DRAM is contained in a very wide range of products, and that its quantity and price have greatly varied over time, the plan to pay the NET settlement amount is based on a common unit of measurement. This unit is the “Computer Equivalent Unit” (“CEU”). One CEU is defined as the average DRAM content of a computer in the class period - April 1, 1999 to June 30, 2002. CEU values have been assigned to various products which contain DRAM, so that settlement class members can simply identify those products that they purchased, and the Claims Administrator can calculate and assign a total CEU value for the purposes of their claim. For settlement class members who purchased raw DRAM or DRAM in large quantities, there is an additional schedule for assigning a CEU value to those purchases in a straightforward manner. The following table provides a few examples:
|CEU of some DRAM products|
|Computers - laptops or desktops||1.00|
|Video game consoles||0.10|
|Servers||1.00 CEU per $3,400 CDN spent|
15. Since the class contains people at different positions on the DRAM distribution chain, some settlement class members have absorbed a larger overcharge due to the price fixing, whereas others were able to pass on part of the overcharge to lower levels of the distribution chain. For that reason, the plan to pay out the net settlement amount assigns a different monetary value to a CEU depending on the position in the DRAM distribution chain of the person making the claim. The identified positions are as follows:
|Distribution Chain||CEU Value|
|Electronics Manufacturing Services (“EMS”)||$1.25|
|Manufacturers of computer DRAM products for commercial resale to government or education entities||$1.25|
|Manufacturers of computer DRAM products for commercial resale to non-government/education entities||$0.63|
|Manufacturers of non computer DRAM products for commercial resale||$0.42|
|Resellers of computer and non computer DRAM products without modifications||$0.42|
|Manufacturers or Resellers with stranded DRAM inventory||$2.50|
16. End Consumers will receive the greater of $20.00 or the value of their CEU claim. For example, a household End Consumer who purchased 2 computers and 1 server will receive $20.00 (even though the value of their claim is 3 CEUs x $5.00) while a small business End Consumer who purchased 20 computers and 5 servers would receive $125.00 (25 CEUs x $5.00).
17. In order to avoid some settlement class members taking a disproportionate share of the net settlement amount, the available monies are divided into three funds. A settlement class member’s claim will be paid from the applicable fund. The three funds are as follows:
|1||End Consumers Fund||50%|
|3||Other DRAM Purchasers Fund
18. In the event the value of the claims against any fund is greater than the amount of money in that fund, the CEU values associated with that fund will be proportionately decreased.
19. In order to obtain more details on the plan to pay the settlement amounts, you can consult the Distribution Protocol in the Documents section of this website.
20. Monitor this website periodically for updates on the future claims process.
21. For more information, you may review the settlement agreements and other documents in the Documents section of this website. Pour de plus amples information en français, vous pouvez consulter le site internet: www.recourscollectif.info/fr/dossiers/dram/.
22. If you would like to speak to someone at Sutts, Strosberg LLP about these class actions, please use our toll free line 1.800.229.5323, extension 8296.
23. If you would like to know more about how a class action works, click here.