Law Times

Law Times • June 1, 2015 Page 3 www.lawtimesnews.com Eidoo v. Infineon Technologies AG DraM settlement payments challenged over human rights issue By Shannon Kari Law Times T he distribution of funds from an $80-million class action settlement over the pricing of com- puter memory parts is facing a hurdle as a result of a recent allegation that the current frame- work for claimants to apply for the money contravenes the Ontario Human Rights Code. Superior Court Justice Paul Perell has scheduled a motion for July 24 to hear arguments related to the dis- tribution plan for the so-called DRAM class-action pro- ceeding. "The matter of the alleged contravention of the Hu- man Rights Code must be addressed," wrote Perell in a May 25 decision in Eidoo v. Infineon Technologies AG that was critical of how this development in the litigation came to the court's attention. The DRAM settlement, approved in Ontario, Que- bec, and British Columbia last year, involved claims of price fixing of "dynamic random access memory" com- ponents in electronic devices between 1999 and 2002. The deadline to object to the settlement agreement and class counsel fees in Ontario was last August. Con- sumers have until June 23 to submit a claim that for many individuals will result in a $20 payment. Perell is the case management judge for the proceed- ing and in his latest ruling he noted he had received cor- respondence on May 5 from Jonathan Foreman, one of the consortium of class counsel in the action. The letter explained that Eric Letts, an Ottawa-based lawyer acting for five potential class members, had con- tacted Foreman. Letts' clients alleged the distribution plan contravenes two sections of the Human Rights Code in Ontario. The individuals want an amendment to the plan and intend to seek damages under the human rights statute, according to Perell. The Superior Court judge indicated he was willing to deal with the matter on a mo- tion on short notice in late May. A motion was not brought, however. Instead, Perell stated that on May 20, he received a letter by e-mail from Letts. "Mr. Letts advised that: 'The pending issue is not yet before the Court and it is my clients' preroga- tive and right to prosecute their case as they choose and in accor- dance with the Rules of Civil Pro- cedure.' That said, Mr. Letts then went on for five pages to argue the matter that was not yet before the court," wrote Perell. The lawyers sent more corre- spondence to the judge's assistant that involved substantive com- ments about the disagreement over the distribution plan. "I do not know what procedural planet the parties think they are living on, but it is not one known to me," wrote Perell in his May 25 ruling. "In any event, the process or procedure adopted by the parties to deal with a possibly serious legal problem is inappropriate for a superior court of record and I do not approve of it. I order it to stop." The specific nature of the alleged human rights viola- tions is unclear. The frequently asked questions portion of the web site set up for claimants explains that there will be a minimum payment of $20 without receipts for anyone who bought an electronic device in the relevant time period. Family members living in the same household must pool their purchases and submit a single consumer claim. Foreman, a partner at Harri- son Pensa LLP, and Letts, a sole practitioner, said in an e-mail to Law Times that they were work- ing together to try to resolve the issue and expect to be able to pro- vide more information shortly. They didn't specify the nature of the human rights concern. While the factual situation may be unusual, Perell is doing the right thing in scheduling a motion, says Daniel Bach, a class action lawyer and partner at Sis- kinds LLP. "There is always a need to be cognizant of what will happen to absent class members" when the court approves a class action settlement, he says, noting judges who preside over these matters "take their obligation to the class very seriously." "Justice Perell is using his case management powers to make this work in an orderly fashion," he adds. The merit of the human rights concern and the tim- ing of it several months after the deadline to object are likely issues that will be before Perell. But it's best to ad- dress them in a motion, according to Bach. In a ruling last fall, Perell approved total fees of $16.8 million plus taxes for class counsel in the three prov- inces. The court also approved expenditures of up to $3 million out of the settlement funds for the notice plan for potential claimants. In addition, there was a $1-million holdback on fees since Perell noted "there is considerable work to be done" in ensuring a "respectable take up" by claimants of the funds available. LT NEWS Untitled-2 1 2015-01-20 1:52 PM 'There is always a need to be cognizant of what will happen to absent class members,' says Daniel Bach.

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