NOTICE OF CERTIFICATION AND SETTLEMENT APPROVAL HEARINGS
regarding the DEFENDANTS ELPIDA MEMORY, INC. AND ELPIDA MEMORY (USA) INC.
(collectively “the Elpida Defendants”)
Read this Notice Carefully as it May Affect Your Rights
TO:
All persons resident in Canada at the time of purchase and/or at the time of notice who
purchased DRAM and products containing DRAM (“DRAM Products”) between April 1, 1999 and
June 30, 2002, 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 between April 1, 1999 and June 30, 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. Class Proceedings.
Nature of the Lawsuits
DRAM is dynamic random access memory, a form of computer memory that is contained in a widerange of computers and other electronic devices such as printers, computer hard disk drives, personal
digital assistants (PDA), modems, mobile phones, telecommunications hubs and routers, digital
cameras, video recorders and televisions, GPS devices, digital set top boxes, game consoles and MP3
players, as well as many other non-electronic products that use DRAM for memory storage and other
purposes.
For the purpose of these proceedings and this notice, DRAM includes all types of EDO DRAM, fastpage mode (“FPM DRAM”), synchronous dynamic random access memory (“SDRAM”), Rambus
dynamic random access memory (“RDRAM”), asynchronous dynamic random access memory
(“ASYNC”), double data rate dynamic random access memory (“DDR”) including modules containing
DRAM, EDO DRAM, FPM DRAM, RDRAM, SDRAM, ASYNC and/or DDR. For clarification,
DRAM does not include SRAM.
Class action proceedings have been initiated in British Columbia (Court File No. L043141, Vancouver
Registry), in Ontario (Court File No. 05-CV-4340) and Quebec (File No. 500-06¬000251-047,
Montreal) (collectively, the “National DRAM Class Proceedings”). The plaintiffs, on behalf of
themselves and the classes, are claiming damages and restitution from the defendants for unlawfully
conspiring to fix, maintain, or increase the price of DRAM. The defendants include: Infineon
Technologies AG; Infineon Technologies North America Corp.; Infineon Technologies Corporation;
{04025-001/00270362.1}
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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. doing business as Crucial Technologies, Mosel Vitelic Corp.; Mosel Vitelic Inc.; Elpida
Memory, Inc.; and Elpida Memory (USA) Inc.
The National DRAM Class Proceedings allege that the defendants control the vast majority of the
market for DRAM in Canada, that they engaged in an international cartel to fix the price of DRAM
during the period April 1, 1999 to June 30, 2002, and that, as a result, class members paid more for
their purchases of computer and other products than they would have but for the illegal price-fixing.
A motion has been brought in the B.C. proceedings to join and certify against the following
defendants: Hitachi Ltd.; Hitachi America Ltd.; Hitachi Electronics Devices (USA); Hitachi Canada
Ltd.; NEC Corporation; NEC Corporation of America; NEC Canada; Renesas Electronics Corporation
fka NEC Electronics Corporation; Renesas Electronics America Inc. fka NEC Electronics America,
Inc.; and Renesas Electronics Canada.
A second class action has been commenced in Ontario (Court File No. CV-10-15178) against the
following additional defendants with the same allegations pertaining to DRAM: Hitachi Ltd.; Hitachi
America Ltd.; Hitachi Electronics Devices (USA); Hitachi Canada Ltd.; Mitsubishi Electric
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. The plaintiffs may at some point seek to have the court consolidate the two Ontario
proceedings.
I.
STATUS OF BRITISH COLUMBIA AND QUEBEC CERTIFICATION
On November 12, 2009, the British Columbia Court of Appeal certified the British Columbia class
proceeding and appointed Pro-Sys Consultants Ltd. as the representative plaintiff for the purpose of the
class proceedings in British Columbia. On November 16, 2011, the Quebec Court of Appeal certified
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the Quebec class proceeding and appointed as Option Consommateurs as the representative plaintiff
for the purpose of the class proceedings in Quebec.
The defendants deny any wrongdoing and are continuing to contest certification. The courts in British
Columbia, Ontario and Quebec have not taken any position as to the likelihood of recovery on the part
of the representative plaintiff or other members of the class, or as to the merits of the claims or
defences asserted by either side. The allegations against the defendants have not been proven in court
in Canada.
II.
SETTLEMENT WITH ELPIDA DEFENDANTS
A settlement has been reached in the National DRAM Class Proceedings with the Elpida Defendants
(the “Elpida Settlement Agreement”). Pursuant to the Elpida Settlement Agreement, Elpida will pay
CAD $5,845,833.33 million for the benefit of the Settlement Class described below in exchange for a
full release of claims against it and its related entities relating to the National DRAM Class
Proceedings. The settlement amount will be held in an interest bearing account for the benefit of the
Settlement Class described below.
By court order, the Settlement Class for the purpose of Elpida Settlement Agreement is defined to
include the following three classes:
The B.C. Settlement Class
All Persons resident in British Columbia at the time of purchase and/or at the time of notice
who purchased DRAM Products during the Settlement Class Period, except Excluded Persons.
The Ontario Settlement Class
(i) All Persons resident in Canada at the time of purchase and/or at the time of notice who
purchased DRAM Products during the Settlement Class Period, except Excluded Persons and
Persons who are included in the B.C. Settlement Class and the Quebec Settlement Class; and
(ii) 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 Settlement Class Period 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.
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Quebec Settlement Class
All Persons resident in Quebec at the time of purchase and/or at the time of notice who
purchased DRAM Products during the Settlement Class Period, except Excluded Persons and
any legal person established for a private interest, partnership or association which at any time
between October 5, 2003 and October 5, 2004 had under its direction or control more than 50
persons bound to it by contract of employment or that is not dealing at arm's length with Option
Consommateurs.
The Settlement Class is further defined with reference to the following definitions:
“DRAM” means dynamic random access memory devices and components, including without
limitation, all types of EDO DRAM, fast-page mode (FPM) DRAM, synchronous dynamic
random access memory (“SDRAM”), Rambus dynamic random access memory (“RDRAM”),
asynchronous dynamic random access memory (“ASYNC”), double data rate dynamic random
access memory (“DDR”), including modules containing DRAM, EDO DRAM, FPM DRAM,
RDRAM, SDRAM, ASYNC and/or DDR. For greater certainty, DRAM does not include
SRAM.
“DRAM Products” means DRAM and products that contain DRAM. For greater certainty,
DRAM Products does not include products that contain SRAM and that do not contain any
DRAM.
“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, any judge of a Court who has heard or
will hear any motion or application in respect of the National DRAM Class Proceedings and his
or her immediate family, and any person who has fully and finally settled or extinguished their
actual or potential claims as against the defendants in respect of DRAM Products as part of the
U.S. Settlement or otherwise in respect of the U.S. Proceedings.
“Settlement Class Period” means April 1, 1999 to June 30, 2002.
“U.S. Proceedings” means the proceedings filed before the United States District Court for the
Northern District of California under the caption In re Dynamic Random Access Memory
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(DRAM) Antitrust Litigation, Master File No.: M-02-1486 PJH (JCS), MDL 1486, and
including all class and individual actions transferred by the Judicial Panel for Multidistrict
Litigation for coordination, all actions pending such transfer, all actions that may be transferred
in the future and any other actions involving similar allegations relating to DRAM Products
that are pending or that may be commenced before the federal or state courts of the United
States.
“U.S. Settlement” means the settlement of any direct purchaser actions in the U.S. Proceedings,
the settlement of any indirect purchaser actions in the U.S. Proceedings and any other
settlement of the U.S. Proceedings.
This settlement resolves the National DRAM Class Proceedings as against the Elpida Defendants for
the entire Settlement Class. The calculation and timing of the distribution of the settlement funds will
be determined by further order of the courts. Under the Elpida Settlement Agreement, the Elpida
Defendants have agreed to provide cooperation to the plaintiffs in pursuing the National DRAM Class
Proceedings against the remaining defendants and other named or unnamed co-conspirators. The
settlement is a compromise of disputed claims and the Elpida Defendants do not admit any
wrongdoing or liability.
The National DRAM Class Proceedings are continuing against the defendants named above except for
the Elpida Defendants.
III.
CERTIFICATION FOR SETTLEMENT PURPOSES
In order to implement the Elpida Settlement Agreement, the courts in British Columbia, Ontario and
Quebec have certified the National DRAM Class Proceedings as against the Elpida Defendants for the
purposes of settlement only (the “Settlement Certification”). In their respective orders, the courts in
British Columbia, Ontario and Quebec have certified the Settlement Class.
The courts have not taken any position as to the likelihood of recovery on the part of the representative
plaintiffs or other members of the class, or as to the merits of the claims or defences asserted by either
side. The allegations against the defendants have not been proven.
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IV.
SETTLEMENT APPROVAL
The Elpida Settlement Agreement remains subject to final court approval. Motions to approve the
Elpida Settlement Agreement will be heard by the British Columbia Court in the City of Vancouver on
June 13, 2012 at 9:00 a.m. (the “BC Approval Hearing”), the Ontario Court in the City of Toronto on
June 20, 2012 at 9:00 a.m. (the “Ontario Approval Hearing”), and the Superior Court of Quebec in the
City of Montreal on June 22, 2012 at 9:30 a.m. (the “Quebec Approval Hearing”). At these hearings,
the British Columbia, Ontario and Quebec courts will determine whether the Elpida Settlement
Agreement is fair, reasonable, and in the best interests of the Settlement Class.
Questions about the Settlement
This notice contains only a summary of the Elpida Settlement Agreement and members of the
Settlement Class are encouraged to review the complete Elpida Settlement Agreement. Copies of the
Elpida Settlement Agreement can be downloaded from the DRAM section of Class Actions at
www.cfmlawyers.ca. Copies of the Elpida Settlement Agreement can also be mailed to you at a cost of
$10, which represents the cost of photocopying and mailing. If you would like copies of the Elpida
Settlement Agreement or have questions that are not answered on-line, please contact the appropriate
Class Counsel identified below. INQUIRIES SHOULD NOT BE DIRECTED TO THE COURTS.
Interpretation
This notice contains a summary of some of the terms of the Elpida Settlement Agreement. If there is a
conflict between the provisions of this notice and the Elpida Settlement Agreement, including the
schedules to the Elpida Settlement Agreement, the terms of the Elpida Settlement Agreement shall
prevail.
V.
OPTIONS AVAILABLE TO CLASS MEMBERS
IN RESPECT OF THE PROCEEDINGS AND THE SETTLEMENT
As set out above, you are a member of the Settlement Class if you are a resident of Canada who bought
DRAM Products during the period April 1, 1999 to June 30, 2002 or a resident of the United States
who bought DRAM Products in Canada during the period April 1, 1999 to June 30, 2002. You do not
need to do anything to continue to be included as a class member and you will be entitled to participate
in the settlement contemplated by the Elpida Settlement Agreement and legally bound by the result of
the National DRAM Class Proceedings.
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Members of the Settlement Class who do not oppose the proposed settlement do not need to appear at
the settlement approval hearings or take any other action at this time to indicate their desire to
participate in the settlement contemplated by the Elpida Settlement Agreement.
Objecting to the Settlement
Members of the Settlement Class are entitled to appear and make submissions at the appropriate BC,
Ontario or Quebec Approval Hearing. If you wish to comment on or make an objection to the Elpida
Settlement Agreement, you must deliver a written submission to the appropriate class counsel at the
addresses listed below by June 2, 2012 (“Class Counsel”). Class Counsel will forward all such
submissions to the appropriate court. All filed written submissions will be considered by the
appropriate court. If you do not file a written submission by the deadline, you may not be entitled to
participate, through oral submissions or otherwise, in the appropriate BC, Ontario or Quebec Approval
Hearing.
Opting Out of the Proceedings
If you do not opt out, you will be bound by the result of any common issues trials that proceed in the
National DRAM Class Proceedings and by the terms of the Elpida Settlement Agreement. You will not
be able to bring or maintain any other claim or legal proceeding in respect of any allegations asserted
in the National DRAM Class Proceedings, including allegations relating to violations of the
Competition Act. No further right to opt-out of the National DRAM Class Proceedings will be provided
to class members.
If you opt-out of the National DRAM Class Proceedings, you will not be able to participate in further
settlements or judgments in the National DRAM Class Proceedings and you will not be able to
participate in the settlement contemplated in the Elpida Settlement Agreement. You will be able to
bring your own lawsuit.
To opt-out, please immediately contact the appropriate Class Counsel as the addresses listed below for
further information. After contacting class counsel you will need to provide us with certain information
in writing. The written request must be sent to the appropriate class counsel at the addresses listed
below no later than June 2, 2012.
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Financial Consequences
If further settlements occur or if the common issues are determined in favour of the classes at the
common issues trials in the National DRAM Class Proceedings, class members may be entitled to
receive financial compensation from the remaining defendants. If you opt out, you will not be entitled
to receive any financial compensation in respect of the National DRAM Class Proceedings.
No individual class member will be liable for costs with respect to the settlement contemplated by the
Elpida Settlement Agreement, any future settlements or the determination of the common issues in
these National DRAM Class Proceedings.
Class Counsel
The law firm of Camp Fiorante Matthews Mogerman represents the BC Settlement Class. Class
Counsel at Camp Fiorante Matthews Mogerman can be reached at:
Telephone: 604-689-7555 or 1-800-689-2322
Email:
jjcamp@cfmlawyers.ca
Mail:
4th Floor, 856 Homer Street,
Vancouver, BC V6B 2W5
Attention: JJ. Camp, Q.C.
The law firm of Belleau Lapointe represents the Quebec Settlement Class. Class Counsel at Belleau
Lapointe can be reached at:
Telephone: 514-987-6700
Email:
info@belleaulapointe.com
Mail:
#306, Place d’Youville, Suite B-10
Montreal, Quebec, H2Y 2B6
Attention: Maxime Nasr
The law firms of Sutts, Strosberg LLP and Harrison Pensa LLP jointly represent the Ontario
Settlement Class. Class Counsel at Sutts Strosberg can be reached at:
Telephone: 1-800-229-5323 extn 8296 (toll free)
Email:
dramclassaction@strosbergco.com
Mail:
600 – 251 Goyeau Street
Windsor, Ontario N9A 6V4
Attention: Heather Rumble Peterson
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Objecting to the Class Counsel Fees
Class Counsel legal fees and disbursements must be approved by the Courts. Class Counsel will
collectively be requesting legal fees of up to 1/3 of the settlement funds, plus disbursements and
applicable taxes to be paid out of the settlement funds, at the B.C., Ontario and Quebec Approval
Hearings.
If you wish to comment on or make an objection to the Class Counsel fees, a written submission must
be delivered to the appropriate Class Counsel at the addresses listed above by June 2, 2012. Class
Counsel will forward all such submissions to the appropriate court. All filed written submissions will
be considered by the appropriate court. If you do not file a written submission by the deadline, you
may not be entitled to participate, through oral submissions or otherwise, in the approval hearings.
VI.
ADDITIONAL INFORMATION
The British Columbia certification order, the Quebec certification order, the orders approving this
notice and certifying the Settlement Claim, the statement of claim and other information is available at:
www.cfmlawyers.ca/class_actions/DRAM/index.html
Additional
information
about
the
class
proceedings
in
Ontario
is
http://harrisonpensa.com/expertise/class-actions/list-of-cases/d-ram-price-fixing
available
at:
and
at
available
at:
http://www.dramclassaction.com/
Additional
information
about
the
class
proceedings
in
Quebec
http://www.recourscollectif.info/en/cases/dram/
THIS NOTICE HAS BEEN AUTHORIZED BY
THE SUPREME COURT OF BRITISH COLUMBIA,
THE SUPERIOR COURT OF JUSTICE FOR ONTARIO,
AND THE SUPERIOR COURT OF QUEBEC
is