ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-358368-00CP

DATE: November 29, 2013

BETWEEN:

DAVID BRATTON

Plaintiff

– and –

SAMSUNG ELECTRONICS CO. LTD., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG ELECTRONICS CANADA INC., HYNIX SEMICONDUCTOR, INC., HYNIX SEMICONDUCTOR AMERICA, INC., MICRON TECHNOLOGY, INC., MICRON SEMICONDUCTOR CANADA, MICRON SEMICONDUCTOR PRODUCTS, INC., NEC CORPORATION, NEC ELECTRONICS AMERICA, INC., CYPRESS SEMICONDUCTOR, CORPORATION, CYPRESS SEMICONDUCTOR, INC., ALLIANCE SEMICONDUCTOR CORPORATION, ALLIANCE MEMORY, INC., FUJITSU LTD., FUJITSU CANADA, INC., FUJITSU AMERICA, INC., ETRON TECHNOLOGY AMERICA, INC., GSI TECHNOLOGY, INC., HITACHI LTD., HITACHI CANADA, LTD., HITACHI AMERICA LTD., INTERNATIONAL BUSINESS MACHINES CORPORATION, IBM CANADA LTD., INTEGRATED DEVICE TECHNOLOGY, INC., INTEGRATED SILICON SOLUTION, INC., MITSUBISHI ELECTRIC CORPORATION, MITSUBISHI ELECTRIC SALES CANADA INC., MITSUBISHI ELECTRIC & ELECTRONICS USA, INC., SEIKO EPSON CORPORATION, EPSON CANADA, LIMITED, EPSON AMERICA, INC., EPSON ELECTRONICS AMERICA, INC., RENESAS TECHNOLOGY CORPORATION, RENESAS TECHNOLOGY CANADA LIMITED, RENESAS TECHNOLOGY AMERICA, INC., SHARP CORPORATION, SHARP ELECTRONICS CORPORATION, SHARP ELECTRONICS OF CANADA LTD., SONY CORPORATION, SONY OF CANADA LTD., SONY CORPORATION OF AMERICA, SONY ELECTRONICS, INC., STMICROELECTRONICS N.V., STMICROELECTRONICS INC, STMICROELECTRONICS, INC, TOSHIBA CORPORATION, TOSHIBA OF CANADA LIMITED, TOSHIBA AMERICA CORPORATION, TOSHIBA AMERICA ELECTRONIC COMPONENTS, INC., WINBOND ELECTRONICS CORPORATION AMERICA, INC.

Defendants

Heather Rumble Peterson for the Plaintiff

Catherine Beagan Flood for the Defendants, Samsung Electronics Co. Ltd., Samsung Semiconductor, Inc., Samsung Electronics Canada Inc.

Susan Friedman for the Defendants Mitsubishi Electric Corporation, Mitsubishi Electric Sales Canada Inc., Mitsubishi Electric & Electronics USA, Inc., and Renesas Technology Canada Limited

Zohaib Maladwala for the Defendants, Toshiba of Canada Limited

Raphael T. Eghan for the Defendant, NEC Corporation

Alex Zavaglia for the Defendants, Cypress Semiconductor, Corporation and Cypress Semiconductor, Inc.

HEARD: November 27, 2013

REASONS FOR DECISION

PERELL, J.

[1] This class action under the Class Proceedings Act, 1992, S.O.1992, c. C.6 was certified as a class action for settlement purposes against the Defendants Micron Technology, Inc., Micron Semiconductor Canada, and Micron Semiconductor Products, Inc. See David Bratton v. Samsung Electronics Co. Ltd., 2012 ONSC 5231. The settlement with the Micron Defendants was approved in February 2013. See Bratton v. Samsung Electronics Co. Ltd., 2013 ONSC 939.

[2] No request for fees was made at the time of the Micron settlement approval. Disbursements of $165,380.11 were approved by the Courts at that time.

[3] On September 10, 2013, the action was certified for settlement purposes as against the Defendants Samsung Electronics Co. Ltd., Samsung Semiconductor, Inc., Samsung Electronics Canada Inc.

[4] This motion seeks an order: (a) approving the settlement agreement reached with Samsung Electronics Co., Ltd., Samsung Semiconductor, Inc., and Samsung Electronics Canada Inc. dated April 30, 2013; (b) approving payment of an interim legal fee in the amount of $450,000.00 plus disbursements in the amount of $7,000.58 and applicable taxes; and (c) directing that the balance of the Samsung Settlement Amount and interest accruing be held by British Columbia Counsel in trust for the benefit of the Settlement Class Members.

[5] In the class action, David Bratton sues Samsung Electronics Co. Ltd., Samsung Semiconductor, Inc., Samsung Electronics Canada Inc., Hynix Semiconductor, Inc., Hynix Semiconductor America, Inc., Micron Technology, Inc., Micron Semiconductor Canada, Micron Semiconductor Products, Inc., NEC Corporation, NEC Electronics America, Inc., Cypress Semiconductor, Corporation, Cypress Semicondutor Inc., Alliance Semiconductor Corporation, Alliance Memory, Inc., Fujitsu Ltd., Fujitsu Canada, Inc., Fujitsu America, Inc. Etron Technology America, Inc., GSI Technology, Inc., Hitachi Ltd., Hitachi Canada Ltd., Hitachi America Ltd., International Business Machines Corporation, IBM Canada Ltd., Integrated Device Technology, Inc., Integrated Silicon Solution, Inc., Mitsubishi Electric Corporation, Mitsubishi Electric Sales Canada Inc., Mitsubishi Electric & Electronics USA, Inc., Seiko Epson Corporation, Epson Canada, Limited, Epson America, Inc., Epson Electronics America, Inc., Renesas Technology Corporation, Renesas Technology Canada Limited, Renesas Technology America, Inc., Sharp Corporation, Sharp Electronics Corporation, Sharp Electronics of Canada Ltd., Sony Corporation, Sony of Canada Ltd., Sony Corporation of America, Sony Electronics, Inc. Stmicroelectronics N.V., Stmicroelectronics Inc., Stmicroelectronics, Inc., Toshiba Corporation, Toshiba of Canada Limited, Toshiba America Corporation, Toshiba of Canada Limited, Toshiba America Corporation, Toshiba America Electronic Components, Inc., Winbond Electronics Corporation America, Inc.

[6] Mr. Bratton’s action relates to alleged price fixing in the Static Random Access Memory (“SRAM”) industry. Similar actions are proceeding concurrently in British Columbia and Québec.

[7] Mr. Bratton pleads claims for: breach of Part VI of the Competition Act, R.S.C. 1985, c C-34, civil conspiracy; and, tortious interference with economic interests.

[8] Sutts Strosberg LLP and Siskinds LLP, counsel in the Ontario Action, are working with CFM in the British Columbia action and Siskinds, Desmeules s.e.n.c.r.l., counsel in the Québec action to prosecute the actions.

[9] In April 2013, a national settlement was reached with the Samsung Defendants, and in September 2013, notice of the certification and of the settlement approval hearing was distributed in accordance with the notice plan approved by the courts in British Columbia, Ontario, and Québec.

[10] The plaintiffs continue to litigate against the remaining non-setting defendants.

[11] The Samsung Settlement Agreement is conditional upon approval of this court and the courts in British Columbia and Québec.

[12] Under the terms of the Samsung Settlement Agreement, Samsung agrees to pay $1.5 million for the benefit of the Settlement Class Members in all three jurisdictions. The funds have been paid and are being held by CFM in an interest-bearing trust account for the benefit of the Settlement Class.

[13] Under the Settlement Agreement, Samsung also agrees to cooperate with the plaintiffs in pursuing their claims against the remaining defendants. Under the terms of the Samsung Settlement Agreement, Samsung is required to: (a) make reasonable best efforts to provide existing electronic transactional data for direct sales of SRAM delivered in Canada during the Class Period; (b) provide any transcripts or video recordings of all depositions of the Samsung employees, directors or officers taken in the course of the US SRAM Litigation concerning allegations raised in these Proceedings; (c) provide any pre-existing documents produced in the US SRAM Litigation concerning the allegations raised in the Proceedings, including but not limited to any documents provided pursuant to any settlement agreement in the US; (d) provide any pre-existing documents provided to the US Department of Justice, the European Commission, the Canadian Competition Bureau or any other agency without geographic limitation, concerning allegations raised in the Proceedings with respect to the Class Period; (e) provide an evidentiary proffer relating to allegations in the Proceedings with respect to the Class Period including dates, locations, subject matter and participants in any meetings or discussions between competitors relating to the allegations raised in the Proceedings; and (f) produce at trial and/or discovery or through acceptable affidavits or other testimony in the Proceedings representatives qualified to establish for admission into evidence: (i) Samsung’s sales of SRAM products into Canada; (ii) any of Samsung’s’ documents and information provided as cooperation, and (iii) documents produced by other defendants that were created by, sent to, or received by Samsung that may be necessary for the prosecution of the Proceedings.

[14] As part of the Samsung Settlement Agreement, the parties are seeking an order barring any claim for contribution or indemnity against Samsung. The bar order sought in Ontario is identical to that approved by the British Columbia court on November 4. A similar bar order/waiver of solidarity was approved by the courts in all three jurisdictions in the Micron Settlement approvals.

[15] There were no objections to the settlement and the Representative Plaintiffs and Class Counsel recommend the settlement for approval.

[16] The Class Counsel group seeks approval of legal fees in an amount equal to 25% of the $1.8 million recovered in the proceedings to date from the Micron ($300,000) and Samsung ($1.5 million) settlements.

[17] The actual time incurred with respect to Class Counsel legal fees to the date of the Samsung settlement exceeds the amount of the legal fees sought at this time. Class Counsel has incurred an additional $7,000.58 in disbursements from the time of the Micron approval to the date of the Samsung settlement.

[18] The motions for approval of the settlement and for the request for fees were granted in Québec on October 16, 2013 and in British Columbia on November 4, 2013, respectively.

[19] To approve a settlement of a class proceeding, the court must find that in all the circumstances the settlement is fair, reasonable, and in the best interests of those affected by it: Dabbs v. Sun Life Assurance, [1998] O.J. No. 1598 (Gen. Div.) at para. 9; Parsons v. Canadian Red Cross Society, [1999] O.J. No. 3572 (S.C.J.) at paras. 68-73.

[20] In determining whether to approve a settlement, the court, without making findings of facts on the merits of the litigation, examines the fairness and reasonableness of the proposed settlement and whether it is in the best interests of the class as a whole having regard to the claims and defenses in the litigation and any objections raised to the settlement: Baxter v. Canada (Attorney General) (2006), 2006 41673 (ON SC), 83 O.R. (3d) 481 (S.C.J.) at para. 10.

[21] When considering the approval of negotiated settlements, the court may consider, among other things: (a) the likelihood of recovery or likelihood of success; (b) the amount and nature of discovery, evidence or investigation; (c) settlement terms and conditions; (d) recommendation and experience of counsel; (e) future expenses and likely duration of litigation and risk; (f) recommendation of neutral parties; (g) if any, the number of objectors and nature of objections; (h) the presence of good faith, arms-length bargaining and the absence of collusion; (i) the degree and nature of communications by counsel and the representative parties with Class Members during the litigation; and (i) information conveying to the court the dynamics of and the positions taken by the parties during the negotiation: Dabbs v. Sun Life Assurance Company of Canada (1998), 1998 14855 (ON SC), 40 O.R. (3d) 429 (Gen. Div.) at 440-44, aff'd (1998), 1998 7165 (ON CA), 41 O.R. (3d) 97 (C.A.), leave to appeal to S.C.C. refused Oct. 22, 1998, [1998] S.C.C.A. No. 372; Parsons v. The Canadian Red Cross Society, [1999] O.J. No. 3572 (S.C.J.) at paras. 71-72; Frohlinger v. Nortel Networks Corp., 2007 696 (ON SC), [2007] O.J. No. 148 (S.C.J.) at para. 8; Kelman v. Goodyear Tire and Rubber Co., 2005 803 (ON SC), [2005] O.J. No. 175 (S.C.J.) at paras. 12-13; Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd. (2005), 2005 8751 (ON SC), 74 O.R. (3d) 758 (S.C.J.) at para. 117; Sutherland v. Boots Pharmaceutical plc, [2002] O.J. No. 1361 (S.C.J.) at para. 10.

[22] The Settlement Agreement meets the criteria required for approval; i.e.: (a) it was well investigated; (b) it was negotiated at arm’s length; (c) it benefits the class members; (d) it was recommended by Class Counsel and by the Representative Plaintiffs; and (e) the settlement is preferable when compared against the prospect of litigation with an uncertain outcome and duration.

[23] I conclude that the settlement is in the best interests and that it should be approved.

[24] Turning to the matter of Class Counsels’ fee request, 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 result achieved: Parsons v. Canadian Red Cross Society, 2000 22386 (ON SC), [2000] O.J. No. 2374 (S.C.J.), at para 13; Smith v. National Money Mart, 2010 ONSC 1334, [2010] O.J. No. 873 (S.C.J.), at paras 19-20; Fischer v. I.G. Investment Management Ltd., [2010] O.J. No. 5649 (S.C.J.), at para 25.

[25] 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 undertaken, 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 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 opportunity cost to class counsel in the expenditure of time in pursuit of the litigation and settlement: Smith v. National Money Mart, supra, at paras. 19-20; Fischer v. I.G. Investment Management Ltd., supra, at para 28.

[26] The fees request accords with the fee agreements with the representative plaintiffs and the representative plaintiffs support Class Counsel’s request.

[27] In my opinion, Class Counsel’s fee request at this juncture of the proceedings is reasonable and fair, and it should be approved as asked.

[28] Orders accordingly. I have signed the Orders.

Perell, J.

Released: November 29, 2013

COURT FILE NO.: 54055CP

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID BRATTON

Plaintiff

‑ and ‑

SAMSUNG ELECTRONICS CO. LTD., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG ELECTRONICS CANADA INC., HYNIX SEMICONDUCTOR, INC., HYNIX SEMICONDUCTOR AMERICA, INC., MICRON TECHNOLOGY, INC., MICRON SEMICONDUCTOR CANADA, MICRON SEMICONDUCTOR PRODUCTS, INC., NEC CORPORATION, NEC ELECTRONICS AMERICA, INC., CYPRESS SEMICONDUCTOR, CORPORATION, CYPRESS SEMICONDUCTOR, INC., ALLIANCE SEMICONDUCTOR CORPORATION, ALLIANCE MEMORY, INC., FUJITSU LTD., FUJITSU CANADA, INC., FUJITSU AMERICA, INC., ETRON TECHNOLOGY AMERICA, INC., GSI TECHNOLOGY, INC., HITACHI LTD., HITACHI CANADA, LTD., HITACHI AMERICA LTD., INTERNATIONAL BUSINESS MACHINES CORPORATION, IBM CANADA LTD., INTEGRATED DEVICE TECHNOLOGY, INC., INTEGRATED SILICON SOLUTION, INC., MITSUBISHI ELECTRIC CORPORATION, MITSUBISHI ELECTRIC SALES CANADA INC., MITSUBISHI ELECTRIC & ELECTRONICS USA, INC., SEIKO EPSON CORPORATION, EPSON CANADA, LIMITED, EPSON AMERICA, INC., EPSON ELECTRONICS AMERICA, INC., RENESAS TECHNOLOGY CORPORATION, RENESAS TECHNOLOGY CANADA LIMITED, RENESAS TECHNOLOGY AMERICA, INC., SHARP CORPORATION, SHARP ELECTRONICS CORPORATION, SHARP ELECTRONICS OF CANADA LTD., SONY CORPORATION, SONY OF CANADA LTD., SONY CORPORATION OF AMERICA, SONY ELECTRONICS, INC., STMICROELECTRONICS N.V., STMICROELECTRONICS INC, STMICROELECTRONICS, INC, TOSHIBA CORPORATION, TOSHIBA OF CANADA LIMITED, TOSHIBA AMERICA CORPORATION, TOSHIBA AMERICA ELECTRONIC COMPONENTS, INC., WINBOND ELECTRONICS CORPORATION AMERICA, INC.*

Defendants

REASONS FOR DECISION

Perell, J.

Released: November 29, 2013