COURT FILE NOS.: Listed below
DATE: 20210520
ONTARIO
SUPERIOR COURT OF JUSTICE
Alternators Sheridan Chevrolet et al v Denso Corporation et al CV-13-478125CP
Automatic Transmission Fluid Warmers and Oil Coolers Sheridan Chevrolet et al v T. Rad Co., Ltd. et al. CV-14-506644CP
Automotive Brake Hoses Sheridan Chevrolet et al v Hitachi Metals, Ltd. et al CV-19-619936CP
Automotive Constant-Velocity-Joint Boot Products Sheridan Chevrolet et al v Toyo Tire & Rubber Co. Ltd. et al CV-14-506645CP
Automotive Hoses Sheridan Chevrolet et al v Toyoda Gosei Co., Ltd. et al. CV-15-524185CP
Fuel Injection Systems Sheridan Chevrolet et al v Hitachi, Ltd. et al CV-14-506683CP
Heater Control Panels Sheridan Chevrolet et al v Denso Corporation et al CV-12-449233CP
Inverters Sheridan Chevrolet et al v Denso Corporation et al CV-15-524183CP
Motor Generators Sheridan Chevrolet et al v Denso Corporation et al CV-15-524184CP
Occupant Safety Systems Sheridan Chevrolet et al v Takata Corporation et al CV-13-472259CP
Oxygen Sensors Sheridan Chevrolet et al v Denso Corporation et al CV-14-516006CP
Radiators Fady Samaha v Denso Corporation et al CV-13-478182CP
Spark Plugs Sheridan Chevrolet et al v Denso Corporation et al CV-14-516004CP
Starters Sheridan Chevrolet et al v Denso Corporation et al CV-13-478127CP
Steering Angle Sensors Sheridan Chevrolet et al v Panasonic Corporation et al CV-14-506746CP
Switches Sheridan Chevrolet et al v Panasonic Corporation et al CV-14-506672CP
Windshield Wiper Systems Sheridan Chevrolet et al v Denso Corporation et al CV-13-478180CP
Proceedings under the Class Proceedings Act, 1992, S.O. 1992, c.6
BEFORE: Justice Edward Belobaba
COUNSEL: Charles M. Wright, Linda Visser, Jean-Marc Leclerc and Jonathan Schachter for the Plaintiffs
Michael Binetti for the Defendants Marelli Corporation (formerly known as Calsonic Kansei Corporation), and Marelli North America, Inc. (formerly known as Calsonic Kansei North America, Inc.)
Adam Chisholm for the Defendant Continental Tire Canada, Inc.
Emrys Davis for the Defendants Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., ZF Fiedrichshafen AG, TRW Automotive GmbH, TRW Vehicle Safety Systems Inc., TRW Canada Limited, Kelsey-Hayes Company, Kelsey-Hayes Canada Limited, and Nippon Seiki Co., Ltd., N.S. International, Ltd., and New Sabina Industries, Inc.
Antonio Di Domenico, Vera Toppings and Carolyn Flanagan for the Defendants INOAC Corporation, INOAC USA, Inc., INOAC Interior Systems LLC, Springfield Interior Trim, LLC, INOAC Interior Systems LP, Blenheim Interior Trim, LLP, and INOAC Canada Limited
Dan Edmondstone for the Defendants Faurecia SA, Faurecia Exhaust Systems, Inc., Faurecia USA Holdings, Inc. Faurecia Emissions Control Technologies, USA, LLC, Faurecia Emissions Control Technologies Canada, Ltd., Faurecia Abgastechnik GmbH, and Faurecia Systèmes d’Èchappement
David Gadsden and Brendan O’Grady for the Defendants Kayaba Industry Co. Ltd. d/b/a KYB Corporation and KYB Americas Corporation
Pierre Gemson for the Defendants Sanoh Industrial Co., Ltd., Sanoh America, Inc. and Sanoh Canada Ltd.
James Gotowiec for the Defendants Showa Corporation, American Showa Inc. and Showa Canada Inc.
Casey Halladay for the Defendants Schaeffler AG, Schaeffler Group USA Inc., Schaeffler Canada Inc., Schaeffler Technologies GmbH & Co. KG, FAG Kugelfischer GmbH, Stanley Electric Co., Ltd., Stanley Electric U.S. Co., Inc., II Stanley Co., Inc., Adient PLC and Adient Seating Canada LP
Donald Houston and Katherine Booth for the Defendants Alps Electric Co., Ltd., Alps Electric (North America) Inc. and Alps Automotive Inc.
Randal Hughes and Emrys Davis for the Defendants USUI Co., Ltd. and USUI International Corporation
Katherine L. Kay for the Defendants Aisin Seiki Co. Ltd., Aisin Holdings of America, Inc., Aisin World Corp. of America, Aisin Automotive Casting Tennessee, Inc., Friedrich Boysen GmbH & Co. KG, Boysen USA, LLC, Ichikoh Industries, Ltd., Keihin Corporation, Keihin North America, Inc., Toyo Denso Co., Ltd., Weastec, Inc., Valeo S.A., Valeo Incorporated, Valeo Japan Co. Ltd., Valeo Climate Control Corp., Valeo Compressor North America Inc., and Valeo Electrical System, Inc.
David Kent for the Defendants Robert Bosch GmbH, Robert Bosch LLC, Robert Bosch North America Corporation, Bosch Brake Components LLC and Robert Bosch Inc.
Robert Kwinter for the Defendants NSK Ltd., NSK Americas, Inc., NSK Canada Inc., NSK Europe Ltd., NSK Corporation, NSK Steering Systems America, Inc. and NSK Steering Systems Co., Ltd.
Eric Lefebvre for the Defendants JTEKT Corporation, JTEKT North America Corporation, Koyo France SA, Koyo Deutschland GmbH, Koyo Corporation of U.S.A., Koyo Canada Inc., Sanden Corporation, Sanden International (USA) Inc., Sanden Automotive Climate Systems Corporation and Sanden Automotive Components Corporation
Maureen Littlejohn for the Defendants Denso Corporation, Denso International America Inc., Denso Manufacturing Canada, Inc., Denso International Korea Corporation, Denso Korea Automotive Corporation, and Denso Sales Canada, Inc.
Paul Martin for the Defendants Mahle Behr GmbH & Co. KG, Mahle Behr USA Inc., Yamada North America, Inc., Yamada Manufacturing Co. Ltd., AB SKF, SKF USA Inc., SKF Canada Limited and SKF GmbH
Kevin Wright for the Defendants Nachi-Fujikoshi Corp., Nachi America Inc., Nachi Canada Inc., Nachi Europe GmbH, and Nachi Technology Inc.
HEARD: May 13, 2021 via Zoom video
- Auto Parts Class Actions -
Distribution Protocol Approval, Automaker Production Orders and Honoraria
[1] There are three motions before me. They relate to some of the 45 class actions alleging price-fixing in the global automotive parts industry that I am currently case-managing. The actions involve a variety of auto parts produced by a wide range of suppliers. The class actions materialized in the aftermath of high-profile criminal and regulatory investigations in the United States, Canada and Europe.
[2] The first motion seeks this court’s approval of a proposed protocol for distributing settlement funds in 16 auto parts actions (the “Omnibus Distribution Protocol”) and a proposed protocol for distributing funds in the Constant Velocity-Joint-Boot Products action (the “CVJB Distribution Protocol”). The 17 affected actions are listed on the first page of these reasons.
[3] I agree with class counsel that the proposed protocols are fair, reasonable and in the best interests of the class. They will achieve significant compensation objectives. The protocols contain straightforward and flexible proof of purchase requirements, and in certain situations, allow for even undocumented claims.
[4] In the second motion, the plaintiffs ask that this court compel 13 automakers — BMW, Chrysler, Ford, GM, Honda, Jaguar, Lincoln, Mazda, Nissan, Subaru, Toyota, Volkswagen, and Volvo (the “Automakers”) — to produce certain customer information to the claims administrator in order to provide notice and facilitate the claims process under the Omnibus Distribution Protocol.
[5] Here again I accept class counsels’ submissions. Section 12 of the Class Proceedings Act,[^1] provides the court with jurisdiction to require the Automakers to provide the requested customer information. Indeed, this was the basis for a similar order in the Automotive Wire Harness Systems distribution protocol (the “WH Distribution Protocol”). The production of the customer information (none of which is sensitive) will enhance and simplify both the notice and claims process.
[6] In the third motion, class counsel seek approval for the payment of modest honoraria to the representative plaintiffs.
[7] I will deal with each of these motions in turn.
(1) Approval of the distribution protocols
[8] Section 26 of the CPA governs the distribution of settlement funds. A proposed distribution of settlement funds will be found “appropriate” if the plan of distribution is fair, reasonable, and in the best interests of the class.
➢ The Omnibus Distribution Protocol
[9] The Omnibus Distribution Protocol sets out the distribution of settlement funds in the 16 actions. The settlement funds total approximately $52.8 million.
[10] The Omnibus Distribution Protocol follows the same general structure as the WH Distribution Protocol. Some amendments have been made to reflect the WH claims experience and the fact that the distribution relates to multiple automotive parts.
[11] The proposed distribution protocol describes the qualifying purchases, the timing periods, the claims process and the appeal process. Settlement class members will be grouped using the same structure as was used in the WH Distribution Protocol. The allocation between purchaser groups will the same as the allocation in the WH Distribution Protocol.
[12] The Omnibus Distribution Protocol is approved.
➢ The CVJB Distribution Protocol
[13] The proposed CVJB Distribution Protocol sets out how the $364,815 in settlement funds in the CVJB Products action will be distributed.
[14] Given the relatively modest amount available for distribution, the only eligible claimants are Automakers with manufacturing facilities in Canada[^2] who purchased at least $100,000 in CVJB Products directly from GKN plc (or a subsidiary) during the relevant period. GKN plc, a British automotive parts manufacturer, was identified as the target in Toyo Tire’s U.S. guilty plea. No other targets were identified by way of guilty pleas or cooperation evidence. The settlement funds will be distributed in equal portions to approved claimants. There will be no deficiency or appeal process.
[15] The CVJB Distribution Protocol is approved.
(2) Customer information production order
[16] The plaintiffs ask for a court order that the Automakers produce certain customer information to the claim administrator for the limited purpose of facilitating notice and the claims process under the Omnibus Distribution Protocol. The requested customer information is generally defined as:
for End Users:
(i) the vehicle information number (“VIN”) of Affected Vehicles purchased and/or leased by End Users between January 1, 2000 and July 31, 2015; and
(ii) the name, address, and email address (if available) of the original owner of each identified Affected Vehicle.
for Dealers:
(iii) name, address, corporate contact name (if available) and email address (if available); and
(iv) the aggregate purchase price of affected vehicles purchased by a dealer from the Automaker on an annual basis between January 1, 2000 and July 2015.
[17] GM, Honda, Nissan, Subaru, and Toyota produced similar customer information pursuant to court order to facilitate the WH Distribution Protocol. Additional (similar) information is sought from these Automakers for the period between December 1, 2014 to July 31, 2015. In respect of GM, information is also being sought for models other than the Pontiac Vibe (the WH Distribution Protocol related to the Pontiac Vibe only).
[18] Class Counsel are not aware of any objections from GM, Honda, Nissan, Subaru, or Toyota; have not received a final position from BMW, Chrysler, Ford, Jaguar Land Rover, Mazda, or Volkswagen; and thus far have received no response from Volvo.
[19] The Personal Information Protection and Electronic Documents Act[^3] governs disclosure of personal information held by businesses such as the Automakers. Section 7(3)(c) of PIPEDA permits businesses to disclose personal information without the knowledge or consent of the individual pursuant to an order made by the court with jurisdiction to compel the production of such information. As noted earlier, this court has such jurisdiction under s. 12 of the CPA.
[20] The customer information sought from the Automakers for the purposes of this distribution is not sensitive personal information. The Automakers were required to produce the same kind of information in conjunction with the WH Distribution Protocol. Similar production orders were also in Airia Brands v. Air Canada[^4] and Iovine v. Toronto Sun Wah Trading Inc.[^5] The claim administrator has signed a confidentiality agreement and will implement security measures to safeguard this information.
[21] The plaintiffs’ motion for a customer information production order as described above is granted.
Honoraria
[22] Class counsel ask that the court approve the payment of honoraria to the representative plaintiffs for the time and effort expended in advancing the class members’ claims. Specifically, class counsel ask that:
• Gazarek Realty Holdings Ltd. (formerly Sheridan Chevrolet Cadillac Ltd.) and 5045320 Ontario Ltd. (formerly The Pickering Auto Mall Ltd.) receive a $200 honorarium in the 16 actions (for a total of $3,200 per plaintiff);
• Fady Samaha receive a $200 honorarium in 14 actions with pending distributions (for a total of $2,800); and
• Kate O’Leary receive a $2,500 honorarium in the Occupant Safety Systems action.
[23] Class counsel say that Sheridan Chevrolet, Pickering Auto Mall, Mr. Samaha, and Ms. O’Leary have fairly and adequately represented the interests of Class Members in the auto parts actions. They were always available to class counsel for consultation and provided timely responses to any requests that were made of them. They remained alert as to the status of the ongoing litigation and provided instructions in respect of the settlements achieved, class counsel legal fees and the proposed distribution protocols. Also, add class counsel, they voluntarily exposed themselves and their claims to a level of scrutiny that no other class member had to face.
[24] I do not question the significant contributions made by the specified representative plaintiffs. However, as class counsel well understand, representative plaintiffs do not receive additional compensation for simply doing their job as class representatives. It is only where the representative plaintiff can demonstrate a level of effort and involvement that goes beyond what is normally expected and is truly extraordinary, or where there is evidence that they were financially harmed because they agreed to be a class representative that an honorarium will be justified.[^6]
[25] Here there is no evidence that the efforts of the representative plaintiffs were “truly extraordinary” or that they sustained any related harm. However, given their involvement and commitment over many years of litigation and given the modesty of the payments requested ($200 per action), I approve the requested honoraria.
Disposition
[26] I am pleased to grant the requested Orders:
a. approving the Omnibus Distribution Protocol;
b. approving the CVJB Distribution Protocol;
c. appointing RicePoint as the claim administrator;
d. approving the Claim Notice and Plan of Dissemination;
e. authorizing the Automakers to produce certain customer information to the claim administrator for the limited purpose of providing notice and facilitating the claims process under the Omnibus Distribution Protocol; and
f. approving honoraria payments to Sheridan Chevrolet, Pickering Auto Mall, Ms. O’Leary, and Mr. Samaha as indicated.
[27] Orders to go as per the draft Orders that were signed at the conclusion of the hearing on May 13, 2021.
Signed: Justice Edward P. Belobaba
Notwithstanding Rule 59.05, this Judgment [Order] is effective from the date it is made, and is enforceable without any need for entry and filing.
Date: May 20, 2021
[^1]: Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). [^2]: Fiat Chrysler of Canada, Ford of Canada, General Motors of Canada, Honda Canada, and Toyota Motor Manufacturing of Canada [^3]: S.C. 2000, c. 5 [^4]: Airia Brands v. Air Canada, 2016 ONSC 1371. [^5]: Iovine v. Toronto Sun Wah Trading Inc, 2014 ONSC 6555. [^6]: Aps v. Flight Centre Travel Group, 2020 ONSC 6779, at para. 43; Casseres v Takeda Pharmaceutical Company, 2021 ONSC 2846 at para. 10.