Court File and Parties

COURT FILE NO.: 05-CV-4340 COURT FILE NO.: 10-CV-15178CP DATE: 20160601

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KHALID EIDOO and CYGNUS ELECTRONICS CORPORATION Plaintiffs – and – 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., SAMSUNG ELECTRONICS CANADA INC., MICRON TECHNOLOGY, INC. MICRON SEMICONDUCTOR PRODUCTS, INC. o/a CRUCIAL TECHNOLOGIES, MOSEL VITELIC CORP., MOSEL VITELIC INC. and ELPIDA MEMORY, INC. Defendants

AND BETWEEN:

KHALID EIDOO and CYGNUS ELECTRONICS CORPORATION Plaintiffs – and – HITACHI LTD., HITACHI AMERICA, HITACHI ELECTRONIC DEVICES (USA), HITACHI CANADA LTD., MITSUBISHI ELECTRONIC CORPORATION, MITSUBISHI ELECTRIC SALES CANADA INC., MITSUBISHI ELECTRIC & ELECTRONICS USA, INC., NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION USA, NEC CORPORATION, NEC CORPORATION OF AMERICA, NEC CANADA, RENESAS ELECTRONICS CORPORATION fka NEC ELECTRONICS CORPORATION, RENESAS ELECTRONICS AMERICA, INC. fka NEC ELECTRONICS AMERICA, INC., RENESAS ELECTRONICS CANADA LTD., TOSHIBA CORPORATION, TOSHIBA AMERICA ELECTRONICS COMPONENTS INC., TOSHIBA OF CANADA LIMITED, WINBOND ELECTRONICS CORPORATION AND WINBOND ELECTRONICS CORPORATION AMERICA Defendants

Counsel: Jonathan Foreman and Lindsay Merrifield for the Plaintiffs

HEARD: May 9, 2016

Proceeding under the Class Proceedings Act, 1992

BEFORE: PERELL, J.

Reasons for Decision

[1] Khalid Eidoo and Cygnus Electronics Corporation are the Representative Plaintiffs in two actions in Ontario certified under the Class Proceedings Act, 1992. There are parallel proceedings in British Columbia and Québec. The actions, which eventually settled after a series of settlement agreements, have been ongoing for a decade and are now in the administration and distribution stage.

[2] The settlements resulted in a settlement fund of approximately $80 million. Class Counsel were awarded legal fees of approximately $24 million plus disbursements, of which there was a $1 million holdback. There was a successful communications plan to encourage Class Members to take up the balance of the settlement funds. The communications plan cost $3 million, but Class Counsel advises that there was a take-up of 1.1 million claims of which the Claims Administrator has approved 915,000. There may only be a small portion of the settlement proceeds that may not be taken up and that will have to be dealt with in the future by the courts in the three provinces.

[3] At this time, Class Counsel has applied in Ontario, in British Columbia, where the class action is being administered by Justice Masuhara, and in Québec, where the class action is being administered by Justice Gagnon, for payment of the balance of the counsel fee and for various other relief. To be more precise, the various Representative Plaintiffs and the consortium of Class Counsel apply for the following:

(A) an order that any claims by Other DRAM Purchasers calculated by the Claims Administrator valued at less than $20 be increased to $20;

(B) the Settlement Amounts, plus accrued interest and less the fees and disbursements and applicable taxes of Class Counsel as approved by the Courts, the Claims Administrator’s fees and disbursements and applicable taxes, any costs of notice and any income taxes due on accrued interest (the “Net Settlement Funds”) shall be distributed by the Claims Administrator as follows:

(i) All approved and timely claims shall be paid at full value from their respective funds to the extent possible;

(ii) The surplus monies in the EMS and Other DRAM Purchasers funds (the “Surplus Amounts”) shall be pooled and distributed as follows:

(a) sufficient monies from the Surplus Amounts shall be allocated to the End Consumers Fund to pay all approved claims advanced against the fund at full value; and

(b) all Standard Form Claims shall be increased by their pro rata share of the balance of the Surplus Amounts;

(c) the claim of Mr. Helmar Wex shall be paid at the amount approved by the arbitrator appointed under the Administration Protocol, subject to pro-ration as set out in subpara. (b) above;

(C) The approval for payment of $1 million plus accrued interest of $18,509.46 plus applicable taxes to Class Counsel of the legal fee holdback ordered by the Court;

(D) The approval of payment of Class Counsel disbursements of $84,199.70 plus applicable taxes;

(E) The approval of payment of $57,500 inclusive of taxes for the legal services of Paliare Roland Rosenberg Rothstein LLP incurred on behalf of the class;

(F) The approval of a holdback of $25,000 from the DRAM Settlement Amount for further disbursements (and taxes) likely to be incurred prior to completion of the claims process.

[4] The application in Ontario is made contingent on parallel or equivalent orders being made by the Supreme Court of British Columbia in Pro-Sys Consultants Ltd. v. Infineon Technologies AG, et al. (Vancouver Registry, Action No. L043141), and by the Superior Court of Québec, district of Montreal in Option Consommateurs v. Infineon Technologies AG, et al. (Action No: 500-06-000251-047).

[5] The applications for relief in the three class actions were heard sequentially in British Columbia, Ontario, and Québec, and then with the agreement of the Class Counsel in the respective class actions, the judges conferred before each writing independent Reasons for Decision.

[6] Before writing these Reasons for Decision, I had the opportunity to read Justice Masuhara’s decision, which is reported as Pro-Sys Consultants Ltd. v. Infineon Technologies AG, 2016 BCSC 964, and Justice Gagnon’s decision, which is reported as Option Consommateurs v. Infineon Technologies AG, is 2016 QCCS 2454.

[7] I agree or concur with both decisions and would adopt their analysis as my own. I have nothing to add but repetition. Accordingly, the application in Ontario is granted in accord with the decisions in British Columbia and Québec.

[8] Order accordingly.

PERELL, J. Released: June 1, 2016