CITATION: Bratton v. Samsung Electronics Co. Ltd., 2015 ONSC 3939
COURT FILE NO.: CV-08-0035836800CP
DATE: 20150618
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.,., 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
Zohaib Maladwala for the Defendants, Toshiba of Canada Limited, Toshiba Corporation, Toshiba America Inc. (improperly named Toshiba America Corporation) and Toshiba America Electronic Components, Inc.
Donald B. Houston for the Defendant Etron Technology America, Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: June 18, 2015
REASONS FOR DECISION
PERELL, J.
[1] Pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, the Plaintiff David Bratton brings a motion for an order: (a) certifying this action as a class proceeding against Toshiba Corporation, Toshiba of Canada Limited (aka Toshiba DU Canada Ltee.), Toshiba America Inc. (incorrectly named as Toshiba America Corporation) and Toshiba America Electronic Components, Inc. (collectively, “Toshiba”) and Etron Technology America, Inc.; (b) approving the short-form and long-form of the notice of certification and settlement approval hearings and the method of dissemination of the notices; and (c) amending the title of proceedings.
[2] For the reasons that follow, the motion is granted.
[3] 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., Toshiba Corporation, Toshiba of Canada Limited, Toshiba America Corporation, , Toshiba America Corporation, Toshiba America Electronic Components, Inc., and Winbond Electronics Corporation America, Inc.
[4] Toshiba America Inc. is incorrectly named in the title of proceedings as Toshiba America Corporation, and Mr. Bratton seeks an amendment to the title of proceedings to correct the error.
[5] Mr. Bratton’s action relates to alleged price fixing in the Static Random Access Memory (“SRAM”) industry. Similar actions are concurrently proceeding in British Columbia and Québec.
[6] 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.
[7] Sutts Strosberg LLP and Siskinds LLP, counsel in the Ontario action, are working with Camp Fiorante Matthews Mogerman (CFM) in the British Columbia action and Siskinds, Desmeules s.e.n.c.r.l., counsel in the Québec action to prosecute the actions.
[8] Since 2013, there has been a series of certification and authorization motions for settlement purposes. The first settlement was reached with the Micron Defendants and that settlement was approved by the courts across the country. Settlements with the Samsung Defendants followed.
[9] The opt-out period was run in conjunction with the Micron certification and notice dissemination, and no one opted out.
[10] In January, 2015, the actions in Ontario and British Columbia were certified for settlement purposes against the Hynix Defendants, the Mitsubishi/Renesas Defendants and the Cypress Defendant. At that time, notices and a plan of dissemination for notices were approved. The motion for authorization in respect of these Defendants, however, has not yet been heard by the Québec Court, and thus the notices of these settlements have not yet been implemented.
[11] Mr. Bratton and the Plaintiffs across Canada have now reached settlements with the Toshiba Defendants, dated March 19, 2015 and with the Etron Defendant, dated April 2, 2015.
[12] Under the terms of the Toshiba Settlement Agreement, Toshiba has agreed to pay $475,000 for the benefit of Class Members.
[13] Under the terms of the Etron Settlement Agreement, Etron has agreed to pay $150,000 for the benefit of Class Members.
[14] Under the terms of the Settlement Agreements, Toshiba and Etron each consent to certification/authorization for settlement purposes.
[15] If these Settlement Agreements, and the settlements with Hynix, Mitsubishi/Renesas and Cypress, are approved by the Courts, the class actions will be will be completed in their entirety, except as against the Defendant NEC Corporation in respect of which the Mr. Bratton intends to seek a consent dismissal.
[16] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims or defences of the class members raise common issues of fact or law; (d) a class proceeding would be the preferable procedure; and (e) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.
[17] Where certification is sought for the purposes of settlement, all the criteria for certification must still be met: Baxter v. Canada (Attorney General) (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 (S.C.J.) at para. 22. However, compliance with the certification criteria is not as strictly required because of the different circumstances associated with settlements: Bellaire v. Daya, [2007] O.J. No. 4819 (S.C.J.) at para. 16; National Trust Co. v. Smallhorn, [2007] O.J. No. 3825 (S.C.J.) at para. 8; Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065 (S.C.J.) at para. 9.
[18] Mr. Bratton is a resident of Ontario. He purchased a BlackBerry handheld device, containing SRAM. He is a Settlement Class Member within the proposed definition, and he has attested to his willingness to serve as representative plaintiff. He has been appointed representative plaintiff in all previous Ontario certifications.
[19] In his Statement of Claim, Mr. Bratton has disclosed causes of action including: (a) breach of Part VI of the Competition Act, R.S.C. 1985, c. C-34; (b) civil conspiracy; and (c) unjust enrichment. The cause of action criterion is satisfied.
[20] The proposed Class definition is identical to the Class definition used for the previous settlements. It is as follows:
All Persons in Canada who purchased SRAM or products which contained SRAM in the period from January 1, 1998 to December 31, 2005, except the Excluded Persons and persons who are included in the Quebec Settlement Class and the BC Settlement Class.
Excluded Person means each Defendant, the directors and officers of each Defendant, the subsidiaries or affiliates of each Defendant, the entities in which each Defendant or any of that Defendant's subsidiaries or affiliates have a controlling interest and the legal representatives, heirs, successors and assigns of each of the foregoing, and persons who validly and timely opt out of the Proceedings.
Quebec Settlement Class means the class authorized in Quebec Action No. 200-06-000083-074 (District of Quebec).
[21] The Class definition criterion is satisfied.
[22] Mr. Bratton proposes that this action be certified for settlement purposes only as against Toshiba and Etron on the basis of the following common issue:
Did the Settling Defendants, or any of them, conspire to fix, raise, maintain or stabilize the prices of, or allocate markets and customers for, SRAM directly or indirectly in Canada during the period from January 1, 1998 to December 31, 2005? If so, what damages, if any, are payable by the Settling Defendants, or any of them, to the Settlement Class Members?
[23] This question satisfies the common issue criterion. I am also satisfied that the Plaintiff has satisfied the preferable procedure and representative plaintiff criterion, and, therefore, with all of the criterion for certification having been satisifed, I grant the motion for certification for settlement purposes.
[24] The proposed Notices of Hearings advise Settlement Class Members of the material terms of the Settlement Agreements, the distribution process, the lawyers’ fees request, the consent dismissal of the Ontario action to be sought against NEC Corporation and the Class Members’ rights to comment on the matters before the court and/or participate in the approval hearings. The Notices are substantially the same as those recently approved by this Court but not yet disseminated in the Hynix, Mitsubishi/Renesas and Cypress settlements, except that they also include advice to the Class that a dismissal/discontinuance will be sought against NEC Corporation and that approval of a distribution process will also be sought.
[25] I approve the Notices.
[26] Order accordingly.
Perell, J.
Released: June 18, 2015
CITATION: Bratton v. Samsung Electronics Co. Ltd., 2015 ONSC 3939
COURT FILE NO.: CV-08-0035836800CP
DATE: 20150618
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., 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: June 18, 2015