Between Defendants Cadbury Schweppes pic and Cadbury Adams

Transcription

SUPREME COURT
OF BRITISH COLUMBIA
No. S078807
VANCOUVER REGISTRY
Vancouver Registry
In the Supreme Court of British Columbia
Between
Jacob Stuart Main and Jennifer Maynard
Plaintiffs
and:
Cadbury Schweppes pic, Cadbury Adams Canada Inc.,
Mars, Incorporated, Mars Canada Inc. formerly known as Effem Inc.,
The Hershey Company, Hershey Canada Inc., Nestle S.A.,
Nestle Canada Inc. and ITWAL Limited
Defendants
BROUGHT UNDER THE CLASS PROCEEDINGS ACT, R.S.B.C. 1996, c. 50
ORDER MADE AFTER APPLICATION
NESTLE CANADA SETTLEMENT APPROVAL
BEFORE THE HONOURABLE MR. JUSTICE
BUTLER
17/JAN/2013
)
ON THE APPLICATION of the Plaintiffs for an order approving the Settlement
Agreement made with the Defendant Nestle Canada, Inc. ("Nestle Canada") and
certifying this proceeding for settlement purposes against Nestle Canada, coming on for
hearing at Vancouver, British Columbia on January 10, 2013 and on hearing Sharon
Matthews, in person in Vancouver, Charles Wright, by teleconference and Simon
Hebert, in person in Quebec City (counsel for the Plaintiffs and Petitioner in the BC,
Ontario and Quebec actions), Catherine Beagan-Flood, by teleconference, Robin
Reinertson, in person in Vancouver (counsel for the Defendant Nestle Canada Inc.),
Sandra A. Forbes, by teleconference (counsel for the Defendant Mars Canada Inc.
formerly known as Effem Inc.), Scott Maidment by teleconference and Sidney Elbaz, in
person in Quebec City (counsel for the former Defendants The Hershey Company and
Hershey Canada Inc.), Christopher Naudie, by teleconference (counsel for the former
Defendants Cadbury Schweppes pic and Cadbury Adams Canada Inc.) and Donald
Houston, by teleconference (counsel for the former Defendant ITWAL Limited) and
upon judgment being reserved to January 17, 2013;
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ON READING the materials filed, including the Settlement Agreement attached to this
Order as Schedule "A" (the "Settlement Agreement");
AND WHEREAS the deadline for opting out of the Action has passed and no BC
Settlement Class Member has validly opted out;
AND WHEREAS the deadline for objecting to the Settlement Agreement has passed,
and there have been no written objections to the Settlement Agreement and no BC
Settlement Class Member appeared to object to the Settlement Agreement;
AND ON HEARING the submissions of counsel for the Plaintiffs and counsel for Nestle
Canada;
AND ON BEING ADVISED that the Plaintiffs and Nestle Canada consent to this Order
THIS COURT ORDERS that:
1.
The Settlement Agreement is incorporated into this Order in its entirety and forms
part of this Order, and the definitions in the Settlement Agreement shall be applied in
interpreting this Order.
2.
For greater certainty, the term "Non-Settling Defendant" includes, without
limitation, any unnamed co-conspirator who is not a Releasee and is now or hereafter
named as a defendant in any of the Canadian Proceedings.
3.
In the event of a conflict between this Order and the Settlement Agreement, this
Order shall prevail.
4.
The Action is certified as a class proceeding as against Nestle Canada only and
for settlement purposes only.
5.
The certification of this action against the Settling Defendant and the definitions
of Settlement Class, Settlement Class Period and Common Issue, are without prejudice
to any position a Non-Settling Defendant may take in this or any subsequent proceeding
on the issue of whether this action should be certified as a class proceeding as against
the Non-Settling Defendants. No person may cite or rely upon the certification as
against the Settling Defendant, or any reasons given by the Court in support of the
same, as authority in support of any motion for certification against the Non-Settling
Defendants in this or any other proceeding. For greater certainty, the certification of this
action against the Settling Defendant shall have no effect on any motion for certification
against the Non-Settling Defendants in this or any other proceeding.
6.
The BC Settlement Class is defined as:
All Persons resident in British Columbia who, during the Settlement Class
Period, purchased Chocolate Products in Canada, except the Excluded
Persons.
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* Chocolate Products means any and all chocolate confectionary products
of the Defendants sold in Canada
7.
Jacob Stuart Main and Jennifer Maynard are appointed as the representative
plaintiffs for the BC Settlement Class.
8.
The following issue is common to the BC Settlement Class:
Did Nestle Canada conspire to raise, maintain, fix or stabilize the prices of,
or allocate markets and customers for, Chocolate Products in Canada
during the Settlement Class Period? If so, what damages did Settlement
Class Members suffer?
9.
The Settlement Agreement is fair, reasonable and in the best interests of the BC
Settlement Class.
10.
The Settlement Agreement is hereby approved pursuant to s. 35 of the Class
Proceedings Act, RSBC 1996, c 50, and shall be implemented and enforced in
accordance with its terms and the terms of this Order.
11.
This Order is binding upon each and every BC Settlement Class Member
including those Persons who are minors or mentally incapable and the requirements of
Rules 20-2(2) and 20-2(17) of the Supreme Court Civil Rules are dispensed with in
respect of this action.
12.
Upon the Effective Date, each and every BC Settlement Class Member shall
consent to, and shall be deemed to have consented to, the dismissal as against the
Releasees of any of the Additional Proceedings or Other Actions he, she or it has
commenced, without costs and with prejudice.
13.
Upon the Effective Date, each and every Additional Proceeding and Other Action
commenced in British Columbia by any BC Settlement Class Member shall be and is
hereby dismissed against the Releasees, without costs and with prejudice. In particular,
Christopher Conway et al. v. Hershey Canada Inc. et a/, Supreme Court of British
Columbia (Victoria Registry) (Court File No. 08-0620) is hereby dismissed without costs
and with prejudice.
14.
Upon the Effective Date, each Releasor shall have and shall be conclusively
deemed to have forever and absolutely released the Releasees from the Released
Claims (including, without limitation, the ITWAL Claims held and_ released by the Main
Plaintiffs as Released Claims).
15.
Upon the Effective Date, ITWAL shall have and shall be conclusively deemed to
have forever and absolutely released and discharged the Releasees from the ITWAL
Claims.
16.
No Releasor may now or hereafter institute, continue, maintain or assert, either
directly or indirectly, whether in Canada or elsewhere, on their own behalf or on behalf
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of any class or any other Person, any action, suit, cause of action, claim or demand
against any Releasee or any other Person who may claim contribution or indemnity, or
other claims over relief, from any Releasee in respect of any Released Claim (including,
without limitation, the ITWAL Claims held and released by the Main Plaintiffs as
Released Claims) or any matter related thereto, except for the continuation of the Main
Proceedings and Additional Proceedings against any Non-Settling Defendant.
17.
The use of the terms "Releasors", "Released Claims" and "ITWAL Claims" in this
Order does not constitute a release of claims by BC Settlement Class Members.
18.
Each and every BC Settlement Class Member covenants and undertakes not to
make any claim in any way nor to threaten, commence, or continue any proceeding in
anyjurisdiction against the Releasees in respect ofor in relation to the Released Claims
(including, without limitation, the ITWAL Claims held and released by the BC Settlement
Class as Released Claims).
19. Except as provided herein, this Order does not affect any claims or causes of
action that any BC Settlement Class Member has or may have against any Non-Settling
Defendant.
20.
All claims for contribution, indemnity or other claims over, whether asserted,
unasserted or asserted in a representative capacity, inclusive of interest, taxes and
costs, relating to the Released Claims (including, without limitation, the ITWAL Claims,
whether held by ITWAL or an assignee) which were or could have been brought in the
Main Proceedings or the Additional Proceedings (whether or not brought in the Main
Proceedings or in the Additional Proceedings), by any Non-Settling Defendant or any
other Person or party against a Releasee, or by a Releasee against any Non-Settling
Defendant or any other Person or party (excepting (i) a claim by a Releasee against any
individual excluded in writing from the definition of Releasees and (ii) a claim by a
Releasee pursuant to a policy of insurance, provided any such claims involve no right of
subrogation against any Non-Settling Defendant), are barred, prohibited and enjoined in
accordance with the terms of this Order.
21.
If the Court determines that there is a right of contribution and indemnity or other
claim over, whether in equity or in law, by statute or otherwise:
(a)
the BC Settlement Class Members shall not be entitled to claim or recover
from any Non-Settling Defendant that portion of any damages (including
punitive damages, if any), restitutionary award, disgorgement of profits,
interest and costs (including investigative costs claimed pursuant to s. 36
of the Competition Act) that corresponds to the Proportionate Liability of
the Releasees proven at trial or otherwise; and
(b)
this Court shall have full authority to determine the Proportionate Liability
of the Releasees at the trial or other disposition of this action, whether or
not the Releasees appear at the trial or other disposition, and the
Proportionate Liability of the Releasees shall be determined as if the
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Releasees are parties to this action and any determination by this Court in
respect of the Proportionate Liability of the Releasees shall apply only in
this action and shall not be binding on the Releasees in any other
proceedings.
22. Nothing in this Order is intended to or shall limit, restrict or affect any arguments
that any Non-Settling Defendant may make regarding the reduction of any assessment
of damages, restitutionary award, disgorgement of profits or judgment against them in
this action.
23. Although the Settlement Agreement refers to the ITWAL Assignment and the
ITWAL Claims, this Court, by this Order, is neither approving the ITWAL Assignment
nor pronouncing in any way on the validity, legality or implementation of the ITWAL
Assignment or on the validity or legality of the ITWAL Claims.
24. The releases given in favour of the Releasees under the Settlement Agreement
and in this Order are in no way dependent upon the validity of the ITWAL Assignment.
25.
Regardless of any subsequent determination by a court that the assignment of
the ITWAL Claims to the Main Plaintiffs pursuant to the ITWAL Settlement Agreement
(the "ITWAL Assignment") is nullified, illegal, or unenforceable (whether in whole or in
part) or any determination that the ITWAL Assignment otherwise fails to fully,
completely and unconditionally assign and transfer the ITWAL Claims to the Main
Plaintiffs in trust: (i) the Main Plaintiffs and the Additional Plaintiffs shall not assert in the
Main Proceedings, the Additional Proceedings or in any other proceedings that any of
tne releases given in favour of the Releasees are terminated, cancelled or ineffective;
and, (ii) ITWAL shall nevertheless have, and be conclusively deemed to have, forever
and absolutely released and discharged the Releasees from the ITWAL Claims.
26.
This Order is without prejudice to any position any Non-Settling Defendant may
take in this or any other proceeding regarding the validity, legality and/or implementation
of the ITWAL Assignment and/or the validity and/or legality of the ITWAL Claims and,
for greater certainty:
(a)
nothing in this Order shall prevent or restrict any Non-Settling Defendant
in any way from challenging the validity, legality and/or implementation of
the ITWAL Assignment and/or the validity and/or legality of the ITWAL
Claims;
(b)
no Person, in this or any other proceeding, may reiy on this Order or any
reasons given by this Court in support of this Order as authority against
any Non-Settling Defendant in a challenge to the validity, legality and/or
implementation of the ITWAL Assignment and/or the validity and/or
legality of the ITWAL Claims;
(c)
it is this Court's intention that neither this Order, nor any reasons given by
this Court for this Order, nor the approval of the Settlement Agreement
may be used in any way as authority against any Non-Settling Defendant
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in a court's subsequent ruling in this or any other proceeding in respect of
the validity, legality and/or implementation of the ITWAL Assignment
and/or the validity and/or legality of the ITWAL Claims; and
(d)
notwithstanding the other provisions of this paragraph, the Non-Settling
Defendants are fully bound by the terms of this Order, including, without
limitation, the releases in paragraphs 14 and 15 and the bar order
provisions in paragraphs 20 and 21.
27. Subject to paragraph 28 of this Order, a Non-Settling Defendant may, on motion
to this Court brought on at least ten (10) days notice and determined as if Nestle
Canada were a party to this action, not to be brought unless and until the action against
that Non-Settling Defendant has been certified and all appeals or times to appeal have
been exhausted, seek orders for the following:
(a)
documentary discovery and an affidavit of documents from Nestle Canada
in accordance with the Supreme Court Civil Rules;
(b)
oral discovery of a representative of Nestle Canada, the transcripts of
which may be read in at trial;
(c)
leave to serve a request to admit on Nestle Canada in respect of factual
matters; and/or
(d)
the production of a representative of Nestle Canada to testify at trial, with
such witness to be subject to cross-examination by counsel for the NonSettling Defendant.
28.
Nestle Canada shall retain all rights to oppose any motion brought under
paragraph 27 of this Order, and nothing in this Order is intended to interfere with the
power of this Court to make such orders as to costs and other terms as it considers
appropriate on any such motion.
29. A Non-Settling Defendant may serve any motion referred to in paragraph 27 on
Nestle Canada by service on counsel of record for Nestle Canada in this action.
30.
For the purposes of administration and enforcement of this Order and the
Settlement Agreement, this Court will retain an ongoing supervisory role and Nestle
Canada acknowledges the jurisdiction of this Court and attorns to the jurisdiction of this
Court solely for the purpose of implementing, administering and enforcing the
Settlement Agreement and this Order and subject to the terms and conditions set out in
the Settlement Agreement and this Order.
31.
No Releasee shall have any responsibility or liability relating to the administration
of the Settlement Agreement or the Distribution Protocol or the administration,
investment, or distribution of the Trust Account.
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32. Subject to the provisions of the Settlement Agreement, the Settlement Amount,
plus accrued interest less any monies paid out pursuant to the Settlement Agreement,
shall continue to be held in trust by the Escrow Agent for the benefit of the Settlement
Class, pending further order of the Courts.
33.
The terms of this Order shall not be effective unless and until the Settlement
Agreement is approved by the Quebec Court and the Ontario Court.
34.
In the event that the Settlement Agreement is terminated in accordance with its
terms, this Order shall be declared null and void on subsequent motion made on notice
to the Plaintiffs or Nestle Canada, as appropriate.
35.
The determination of the form of any additional notice to Settlement Class
Members regarding approval of the Settlement Agreement and/or claims filing process,
and the approval of a plan of dissemination of any additional notice be and are hereby
adjourned to be dealt with by further orders of the Courts..
36.
Except as aforesaid, this action be and is hereby dismissed against Nestle
Canada without costs and with prejudice.
THE
FOLLOWING
PARTIES APPROVE THE
FORM OF THIS
ORDER AND
CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS
BEING BY CONSENT:
Signatured J.J. Camp, Q.C.
Lawyer for the Plaintiffs
sec a^bcyêdSignature of Sandra A. Forbes
Lawyer for the Defendant Mars Canada Inc.,
formerly known as Effem Inc.
?*s£ ctifacted
Signature of Robin Rejnertson
Lawyer for the Defendant, Nestle Canada Inc
??e aVodned.
Signature of Scott Maidment
Lawyer for the Defendants, The Hershey Company
and Hershey Canada Inc.
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32. Subject to the provisions of the Settlement Agreement, the Settlement Amount,
33.
34.
35.
36.
THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND
BEING BY CONSENT:
aTbu^peASignature of J.J. Camp, Q.C.
Lawyer/f6r the Plaintiffs
Signature of Sandra A. Forbes
5eg a-forViedSignature of Robin Reinertson
See A-tiGrWrl
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32.
Subject to the provisions of the Settlement Agreement, the Settlement Amount,
33.
34.
35.
36.
THE
FOLLOWING
PARTIES
APPROVE
THE
FORM
OF THIS
ORDER
AND
BEING BY CONSENT:
S<?e nVtacWc)
Signature of J.J. Camp, Q.C.
see aTbcVefV
^nne^lyJsnown as Effem Inc.
flgnatcfrebf RobTn Reinertsors
Lawyer for theêfendant, Nestle Canada Inc .
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32.
Subject to the provisions of the Settlement Agreement, the Settlement Amount,
33.
34.
35.
36.
THE
FOLLOWING
PARTIES
APPROVE THE
FORM
OF THIS
ORDER AND
BEING BY CONSENT:
<ee_ atarVort
Signature of J.J. Camp, Q.C.
<£e? nttnfVcri
Signature of Robin Reinertson
J-aêrrcTtheDefendants, The Hershey Company
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Signature of Christopher Naudie
Lawyer for the Defendants, Cadbury Schweppes pic
and Cadbury Adams Inc.
<*?e r\Vnr\tfA
Signature of Miranda Lam
Lawyer for the Defendant, ITWAL Limited
By the Court
Registrar
V
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see.
o&xsrtA
Signature of Christopher Naudie
Lawyer for the Defendants, Cadbury Schweppes pic
and Cadbury Adams Inc.
Signature of Miranda Lam
Lawyer for the Defendant, ITWAL Limited
s
/
.•'
By the Court
\
j
1^
PL
Registrar
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(. '
Schedule A
CANADIAN CHOCOLATE CLASS ACTIONS
NATIONAL SETTLEMENT AGREEMENT
Made on August 2,2012
Between
DAVID OSMUN, METRO (WINDSOR) ENTERPRISES INC.,
GAETAN ROY, JACOB STUART MAIN AND JENNIFER MAYNARD
(the "Main Plaintiffs")
and
CHRISTOPHER CONWAY, SHEILA DOBIE, MICHAEL LINDEBACH,
VIKTORIYA SAMARINA, DAVID WILLIAM COWAN, JEREMY MCINTYRE,
GAVIN CRAWFORD, BRIAN KJELSHUS, ROSALYN GOLFMAN, DANIEL
PAWLACIIUK, BEVERLY BRANTH, BARRETT THOMPSON,
RICK THOMPSON, WELLIAM KELLY AND
GERALD LEDREW
(the "Acldilional Plaintiffs")
and
NESTLE CANADA INC.
(the "Settling Defendant")
TABLE OF CONTENTS
SECTION I-DEFINITIONS
SECTION 2 - SETTLEMENT APPROVAL
4
12
2.)
Best Efforts
12
2.2
2.3
2.4
2.5
Motions Approving Notice and Authorizing and Certifying Actions
Agreement on Form of Orders
12
12
13
13
Pre-Motion Confidentiality
Sequence of Motions
SECTION 3-SETTLEMENTBENEFITS
14
3.1
Payment of Settlement Amount
14
3.2
Tuxes and Interest
14
SECTION 4 - DISTRIBUTION OF SETTLEMENT AMOUNT AND INTEREST
15
4.1
Distribution Protocol
15
4.2
No Responsibility for Administrat ion or Fees
15
SECTION 5- ITWAL SETfLEMENT AGREEMENT
5.1
Representations and Warranties Regarding the ITWAL Setllemenl
Agreement
SECTION 6-RELEASES AND DISMISSALS
15
15
15
6.1
6.2
6.3
Release of Releasees
Covenant Not To Sue
No FurtherClaims
15
16
16
6.4
Scope ofReleased Claims
16
6.5
6.6
6.7
Dismissal of the Main Proceedings
Dismissal of the Additional Proceedings
Dismissal of the Other Actions
....16
16
17
6.8
Claims Against Other Entities Reserved
18
6.9
No Assistance to Other Plaintiffs
18
6.10
Releases
13
SECTION 7 - BAR ORDER AND OTHER CLAIMS
7.1
7.2
7.3
Ontario and British Columbia Bar Order
Quebec Bar Order
Material Term
19
19
21
22
SECTION 8 - EFFECT OF SETfLEMENT
8.1
8.2
8.3
22
No Admission of Liability
Agreement Not Evidence
No Further Litigation
22
22
23
SECTION 9-CERTIFICATION OR AUTHORIZATION FOR SETTLEMENT ONLY
24
9.1
Settlement Class and Common Issue
24
9.2
Certification or Authorization Without Prejudice
24
SECTION 10-NOTICE TO SETTLEMENT CI.ASS
10.1
24
Notice Required
24
10.2
Form and Distribution ofNolice
25
10.3
Notice of Distribution
25
SECTION 11 - ADMINISTRATION AND IMPLEMENTATION
25
11.1
Mechanics of Administration
25
11.2
information and Assistance
25
SECTION 12 - CLASS COUNSEL FEES AND ADMINISTRATION EXPENSES
26
SEC HON 13-TERMINATION OF SETFLEMENT AGREEMENT
27
13.1
13.2
13.3
Right of Termination
If Settlement Agreement is Terminated
Allocationof Monies in the Trust Account Following Termination
13.4
Survival of Provisions After Termination
SECTION 14-MISCELLANEOUS
;
27
28
29
29
29
14.1
Releasees HaveNo Liability lor Administration
29
14.2
Motions for Directions
29
14.3
14.4
14.5
14.6
14.7
Headings, etc
Computation ofTime
Ongoing Jurisdiction
30
30
31
Governing Law
Entire Agreement
31
31
14.8
Amendments
32
14.9 Binding Effect
14.10 Counterparts
14.11 Interpretation
14.12 Transaction
,
32
32
32
33
14.13 Recitals
14.14 Schedules
14.15 Notice
33
33
33
14.16 Acknowledgements
14.17 Authorized Signatures
34
35
Schedule A ADDITIONAL PROCEEDINGS
Schedule B MAIN PROCEEDINGS
in-
CANADIAN CHOCOLATE CLASS ACTIONS
NATIONAL SETTLEMENT AGREEMENT
RECITALS
A.
WHEREAS the Main Plaintiffs have commenced, or have been added as plaint ill's to, (lie Main
Proceedings in the Courts and allege that the Defendants participated in an unlawful conspiracy to
raise, maintain, fix, or stabilize the price ofChocolate Products inCanada and/or to allocate markets
and customers for the sale of Chocolate Products in Canada, contrary to Part VI of the Compelilioii
Act and common law, and the Main Plaintiffs claim class-wide damages allegedly caused as a result of
the same. The claims in the Main Proceedings and the Additional Proceedings relate solely to the
manufacture, distribution and/or sale of Chocolate Products in Canada. The claims asserted do not
relate in any way to the manufacture, distribution and/or sale of Chocolate Products in the United
Slates or anyothercountry,
B.
AND WHEREAS the Additional Plaintiffs have commenced the Additional Proceedings in
the Ontario Court, the BC Court and a number of other courts in Canada which make similar
allegations against the Defendants as well as against other parlies related to the sale of Chocolate
Products in Canada, and the Additional Plaintiffs claim similarclass-widedamages;
C.
AND WHEREAS the Settling Defendant did sell Chocolate Products in Canada during the
Class Period but vigorously denies any and all liability in respect of all claims alleged in the Canadian
Proceedings, and strongly asserts that it has complete defences in respect of certification (and
authorization) and themerits intheCanadian Proceedings;
D.
AND WHEREAS the Settling Defendant would have actively and diligently pursued all of
its defences in respect of the merits had this settlement not occurred and the Main Plaintiffs and
Additional Plaintiffs (collectively the "Canadian Plaintiffs") continued the Canadian Proceedings
against it;
E.
AND WHEREAS, despile its strong belief that it is nol liable in respect ofany of the claims
as alleged inthe Canadian Proceedings and that it has complete defences in respect of the merits, the
I
Settling Defendant has entered into this Settlement Agreement solely to avoid the further
considerable expense, inconvenience, and burden of this litigation and any other present or future
litigation arising out of the facts that gave rise to this litigation, to achieve final resolutions of all
claims asserted or which could have been asserted against the Releasees by the Canadian Plaintiffs
on their own behalf and on behalf of the Settlement Class, and to avoid the risks inherent in
uncertain, complex and protracted litigation;
F.
AND WHEREAS counsel for the Settling Defendant has engaged in extensive arm's-length
settlement discussions and negotiations with Class Counsel in respect of this Setllemenl Agreement
relating to Canada;
G,
AND WHEREAS as a result of these settlement discussions and negotiations, the Settling
Defendant and the Main Plainlilfs haveentered into this Settlement Agreement, whichembodiesall of
the terms and conditions of the settlement of the Canadian Proceedings between the Settling
Defendant and the Main Plaintiffs, both individually and on behalfofthe Settlement Class, subject lo
approval of the Courts;
H.
AND WHEREAS the Additional Plaintiffs and Additional Counsel have agreed to join and
abide by this Settlement Agreement on the basis that the terms ofthis Settlement Agreement are in fhc
best interests ofthc Settlement Class;
I.
AND WHEREAS theCanadian Plainlilfs have agreed to accept thissettlement because ofthe
value of the Settlement Amount paid under this Settlement Agreement, as well as the attendant risks
oflitigation in light ofthe defences that would be asserted by the Settling Defendant.
J.
AND WHEREAS the Settling Defendant does not admit, through the execution of this
Settlement Agreement or otherwise, any allegation of unlawful conduct alleged in the Canadian
Proceedings and has always and will continue todeny all such allegations;
K.
AND WHEREAS the Canadian Plaintiffs, Class Counsel, Additional Counsel, and the
Settling Defendant agree that neither this Settlement Agreement nor any statement made in the
negotiation thereof shall be deemed or construed to be an admission by or evidence against any
2
Releasee or evidence of the truth of any of the Canadian Plaintiffs' allegations against any Releasee,
which allegations arc expressly denied;
L.
AND WHEREAS the Canadian Plaintiffs, Class Counsel, and Additional Counsel have
reviewed and fully understand the terms of this Settlement Agreement and, based on their analyses
of the facts and law applicable to the Canadian Plaintiffs' claims, and having regard to (he burdens
and expense in prosecuting the Canadian Proceedings, including the risks and uncertainties
associated with trials and appeals, the Canadian Plaintiffs, Class Counsel, and Additional Counsel
have concluded that this Settlement Agreement is fair, reasonable and in the best interests of the
Canadian Plaintiffs and the Settlement Class;
M.
AND WHEREAS the Settling Defendant isenlering into this Settlement Agreement in order toachieve
a final and nation-wide resolution ofall claims asserted or which could have Ixcn asserted against tlw
Releasees by the Canadian Plaintiffs and the Settlement Class, and toavoid further expense, inconvenience
and the distraction ofburdensome and protracted litigation;
N.
AND WHEREAS as a necessary and integral part of this final and nation-wide resolution,
the Sealing Defendant is entering into this Settlement Agreement in order to achieve a final resolution ofall
claims asserted or which could have been asserted against the Releasees by ITWAL in the Canadian
Proceedings or in any other proceedings, taking into account that ITWAL was a purchaser of
Chocolate Products during the Settlement Class Period and that ITWAL, as a Defendant in tJtc
Canadian Proceedings, isan Excluded Person;
0.
AND WHEREAS the Canadian Plaintiffs liave entered into the ITWAL Settlement Agreement
with ITWAL and this Settlement Agreement issubject to the condition, among others, that the ITWAL
Entities have absolutely and unconditionally assigned and transferred to the Settlement Class any and
all right, title and interest that the ITWAL Entities have ever held, now Itold or may hereafter hold in
respect ofthe ITWAL Claims;
P.
AND WHEREAS the Canadian Plaintiffs and the Settlement Class Members intend to fully and
completely settle and resolve all of their claims, including the ITWAL Claims, asagainst the Releasees
onthe Effective Date pursuant tothis Settlement Agreement;
Q.
AND WHEREAS the Parlies therefore wish to, and hereby do, finally resolve on a national
basis, without admission of liability, alloftheCanadian Proceedings asagainst all ofthe Releasees;
R.
AND WHEREAS for the purposes ofsettlement only and contingent on approvals by the Courts
as provided for in this Settlement Agreement, the Parlies haye consented to certification or
authorization ofthe Main Proceedings as ctoss proceedings and have consentedto a Settlement
Classand a Common Issue ineachofthe Main Proceedings;
S.
AND WHEREAS for the purposes ofsettlement only and contingent on approvals by the Courts
as provided for in this Settlement Agreement, the Main Plaintiffs have consented to a dismissal ofthe
Main Proceedings as against any and all Releasees named as Defendants in the Main Proceedings,
and the Additional Plaintiffs have consented to a dismissal ofthe Additional Proceedings as against
any and all Releasees named as Defendants in the Additional Proceedings;
T.
AND WHEREAS the Main Plaintiffs assert thai they are adequate class representatives for
the Settlement Class and will seek to be appointed representative plaintiffs in their respective Main
Proceedings;
U.
AND WHEREAS the deadline tor Settlement Class Members to opt-out of the Main
Proceedings has passed, with no opt-outs occurring;
V.
NOW THEREFORE, in consideration of the covenants, agreements and releases set forth
herein and forother good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is agreed by the Parties that the Canadian Proceedings be settled and dismissed
wilh prejudice as to all Releasees, without costs, subject to the approval of the Courts, on the
following terms and conditions:
SECTION I -DEFINITIONS
For the purpose of this Settlement Agreement only, including the Recitals and Schedules hereto:
(I)
Additional Counsel means counsel for the Additional Plaintiffs.
(2)
Additional Plaintiffs mean the individuals and entilies named as plaintiffs in the Additional
Proceedings.
(3)
Additional Proceedings mean the actions or proceedings listed in Schedule "A" to the Settlement
Agreement.
(4)
Administration Expenses mean all fees, disbursements, expenses, costs, taxes (including any
applicable taxes) and any olhcr amounts incurred or payable by tlie Canadian Plaintiffs, Class Counsel,
Additional Counsel or otherwise for the approval, implementation and operation of the Settlement
Agreement, including ihc costs of Notices, the Escrow Agent, and claims administration but excluding
Class Counsel Fees.
(5)
Approval and Certification Hearings mean llic hearings ofIhe motions brought by Class Counsel
for the certification ofthe Main Proceedings as against the Settling Defendant and for the Courts' approval
of theSettlement Agreement.
(6)
BC Counsel means Camp Fiorante Matthews and Branch MacMaster LLP.
(7)
BC Court means Ihe Supreme Court ofBritish Columbia.
(S)
BCProceeding means the proceeding commenced by Jacob Stuart Main in the form ofan action
filed in ihe BC Court (Vancouver registry), Court File No. S078807, filed on December 24,2007, and in
respect ofwhich Jennifer Maynard was added as a plainlilfon May 22,2012.
(9)
BC Setllemenl Class means all Persons resident in British Columbia who, during flic Settlement
Class Period, purclwsed Chocolate Products in Canada, except the Excluded Persons.
(10)
Canadian Plaintiffs mean theMain Plaintiffs and tlw Additional Plaintiffs.
(11)
Canadian Proceedings mean the Main Proceedings and the Additional Proceedings.
(12)
Chocolate Products mean any and all chocolate confectionary products ofthe Defendants sold in
Canada.
(13)
ClaimsAdministrator means the Person proposed byClass Counsel and appointed byIhe Courts to
administer tlw Settlement Agreement, including the claims process, inaccordance with the provisions of this
Settlement Agreement and the Distribution Protocol, and any employees ofsuch Peison.
(14)
Class Counsel means Ontario Counsel, Quebec Counsel and BC Counsel who aci asclass counsel
in theMain Proceedings.
(15)
Class Counsel Fees include the fees, disbursements, costs, interest, and other applicable taxes or
charges ofClass Counsel, including any applicable GST, l-ISTor QST.
(16)
Common Issue in each Main Proceeding means: Dkl the Settling Defendant conspire to raise,
maintain, fix or stabilize the prices of; or allocate markets and customers lor, Chocolate Products in
Canada during llie Settlement Class Period? Ifso,what damages didSettlement Class Members suffer?
(17)
Courts mean the Ontario Court, the Quebec Court and tlie BC Court.
(IS)
Defendants mean the individuals and entities named as defendants in the Main Proceedings asset
out inSchedule"B" to thisSettlementAgreement.
(19)
Document has the meaning given to that term in rule 30.01(1 X») ofthe Ontario Rules ofCivil
Pwcedwv,
(20)
Distribution Protocol means the plan developed by Class Counsel for distributing the Settlement
Amount and accrued interest, in whole orpart, asapproved by tlic Courts.
(21)
Effective Date means the date immediately when llie Final Orders have been received from the
Courts approving the Settlement Agreement.
(22)
EscrowAgent means the Person agreed toby the Settling Defendant and Class Counsel tohold and
administer the Trust Account.
(23)
Excluded Pemm means each Defendant, the directors and officers of each Defendant. Ihe
subsidiaries or affiliates ofeach Defendant, the entities in which each Defendant or any ofthat Defendant's
subsidiaries or affiliates have a controlling interest mid Ihe legal representatives, heirs, successors and
6
assigns of each of Hie foregoing. For greater certainly, Excluded Person shall not include a purchaser of
Chocolate Products fiom ITWAL, and Excluded Person shall not include a Person that has received an
assignment of rights under the terms ofthe ITWAL Settlement Agreement.
(24)
Fund Order means a final order made by a Court in respect ofthe approval ofthe Settlement
Agreement once the lime toappeal such order has expired without any appeal being taken, ifan appeal lies,
or once there lias beenaffirmation of Iheapproval ofthe Settlement Agreement upona final disposition of
all appeals.
(25)
ITWAL means ITWAL Limited.
(26)
ITWAL Claims mean any and all manner of claims, demands, actions, suits, causes of action,
whether class, individual or otherwise in nature, whellier personal or subrogated, damages whenever
incurred, damages ofanykind including compensatory, punitive or oilier damages, liabilities ofanynature
whatsoever, including interest, costs, expenses, class administration expenses (including Administration
Expenses), penalties, and lawyers' fces (including Class Counsel Fees), known or unknown, suspected or
unsuspected, foreseen or unforeseen, actual or contingent, and liquidated or unliquidated, in law, under
slalute or in equity, including for certainly, thai llie ITWAL Entities, or any of them, whether directly,
indirectly, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or may have,
relating in any way to any conduct occurring anywhere, from the beginning of lime lo the date hereof, in
respect of the purchase, sale, pricing, discounting, marketing or distributing of Chocolate Products, or
relating toany conduct alleged (or which could have been alleged) in tlie Canadian Proceedings orthe Other
Actions including, without limitation, any such claims which have been asserted, would have been asserted,
or could have been asserted, directly or indirectly, whether in Canada or elsewhere, as a result of or in
connection with an alleged conspiracy or other unlawful agreement or combination or as a result ofor in
connection with any other alleged unlawful horizontal or vertical anti-competitive conduct in connection
with the'purchase, sale, pricing, discounting, marketing or distributing of Chocolate Products in Canada
and including, witiwut limitation, any claims for consequential, subsequent or follow-on harm that arises
after the date liereofinrespect ofany agreement or conduct that occurred prior toIhe date hereof.
(27)
ITWAL Defendants means ITWAL and Glenn Stevens.
7
(28)
fflVAL Entities mean, jointly and severally, individually and collectively, theITWAL Defendants
and their respective parents, subsidiaries, predecessors, successors, Iieirs, executors, administrators, insurers
andassigns.
(29)
ITWAL Settlement Agreement means llic executed settlement agreement made between (lie
Canadian Plaintiffs and ITWAL in respect ofthe Canadian Proceedings, dated October 2,2009, including
the recitals and schedules to lliat agreement, and the executed amending agreement made between the
Canadian Plaintiffs, Cadbury Adams Canada Inc., Cadbury Holdings Limited and ITWAL, dated April 19,
2010.
(30)
Main Plaintiffs mean the individuals and entities named as plaintiffs in the Main Proceedings.
(31)
Main Proceedings mean the Ontario Proceeding, the Quebec Proceeding and tlie BC Proceeding
listed inSchedule "B" to thisSettlement Agreement.
(32) Non-Settling Defendant means any Defendant HkiI is not a Releasee or a Settled Defendant, and
includes any Defendant that lemiinales its own setllemenl agreement in accordance with its terms orwliosc
settlement otherwise fails to take effect for any reason, wlietlier or not such selllement agreement is in
existence at llicdateof execution of thisSettlement Agreement.
(33)
Notice ofApproval and Certification Hearings means the form orforms ofnotice, agreed to by the
Main Plaintiffs and theSettling Defendant, or such other fomi or forms as may be approved by llic Courts,
which inform llie Settlement Class ofthe dates and locations of llic Approval and Certification Hearings and
the principal elements ofIhe Settlement Agreement.
(34)
Notice ofSettlementApproval and Claims Procedure means the form or forms ofnotice, agreed to
by the Main Plaintiffs and the Settling Defendant, orsuch oilier form or forms as inay be approved by the
Courts, which informs tlie Settlement Class of: (I) the approval ofthe Settlement Agreement; (ii) the
certification or authorization oftheMain Proceedings asclass proceedings asagainst the Settling Defendant
for settlement purposes; and (iii) the process by which Settlement Class Members may apply to obtain
compensation from theSettlement Amount.
(35)
Notices mean the Notice of Approval and Certification Hearings, the Notice of Settlement
Approval and Claims Procedure, and any notice oftemiination.
(36)
Ontario Counsel means Sutts, Strosbcrg LLP and Siskinds LLP.
(37)
Ontario Court means the Ontario Superior Court ofJustice.
(38) Ontario Proceeding means Ihe proceeding commenced by David Osmun and Metro (Windsor)
Enterprises Inc. in tlie form ofa Notice of Action and Statement of Claim filed in the Ontario Court
(Toronto registry), Court File No. 08-CV-347263PD2 (Toronto), filed respectively onJanuary 17,2008 and
on February!, 2008.
(39) Ontario Settlement Class means all Persons in Canada who, during tlie Settlement Class Period,
purchased Chocolate Products in Canada, except the Excluded Persons and Persons who are included in
the Quebec Settlement Class orthe BC Settlement Class.
(40) Other Actions mean actions or proceedings, other than the Main Proceedings and Additional
Proceedings, relating to tlie Released Claims commenced by a Settlement Class Member eilhcr before or
after the Effective Date.
(41)
Parties mean the Canadian Plaintiffs, tlie Settlement Class Members and tlie Settling Defendant.
(42) Person means an individual, corporation, partnership, limited partnership, limited liability
company, association, joint stock company, estate, legal representative, trust, trustee, executor, beneficiary,
unincorporated association, government or any political subdivision or agency thereof, and any other
business orlegal entity and their Iieirs, predecessors, successors, representatives, orassignees.
(43)
Pivportioimle Liability means the proportion ofany judgment thai, had they not settled, the Ontario
or BC Court would have apportioned tothe Releasees.
(44)
Quebec Counsel means Siskinds Desmeules S.E.N.C.R.L.
(45)
Quebec Court means the Superior Court ofQuebec.
(46)
Quebec Proceeding means the proceeding commenced by Caelan Roy in the form of an
application for authorization (la Requcte pour obtenir âuthorisation d'exerccr un rccours collcctif) in the
Quebec Superior Court (Quebec City registry), Court File No. 200-06-000094-071, filed on November 28,
2007.
(47)
Quebec Settlement Class means all individuals resident in Quebec who, during the Settlement
Class Period, purchased Chocolate Products in Canada, as well as any legal person resident in Quebec
established for a private interest, partnership or association which, at all times between November 28,2006
andNovember 28,2007,had under itsdirectfon or control no more than 50 persons bound to it bya contract
ofemployment, who, during tlie Settlement Class Period, purcliascd Chocolate Products in Canada, except
the Excluded Peisons.
(48)
Released Claims mean any and all manner of claims, demands, actions, suits, causes of action,
wlielher class, individual or otherwise in nature, whether persona! or subrogated, damages wlienever
incurred, damages of any kind including compensatory, punitive or oilier danvigcs, liabilities of anynature
whatsoever, including interest, costs, expenses, class administration expenses (including Administration
Expenses), penalties, and lawyers' fees (including Class Counsel Fees), known or unknown, suspected or
unsuspected, foreseen or unforeseen, actual or contingent, and liquidated or unliquidated, in law, under
statute or in equity (including for certainty the ITWAL Claims tliat have been absolutely and
unconditionally assigned to the Settlement Class under the ITWAL Settlement Agreement) that Releasors,
or any of iheni. whether directly, indirectly, derivatively, or in any other capacity, ever had, now haw, or
hereafter can, shall, or may Invc, relating in any way to any conduct occurring anywhere, from the
beginning of time to tlie date hereof, in respect oftlie purchase, sale, pricing, discounting, marketing or
distributing of Chocolate Products in Canada, orrelating to any conduct alleged (orwhich could have been
alleged) in Ihe Canadian Proceedings orOther Actions including, without limitation, any such claims which
lmvc been asserted, would have been asserted, orcould have been asserted, directly or indirectly, whether in
Canada or elsewhere, asa result ofor inconnection with analleged conspiracy or otlier unlawful agreement
or combination or as a result ofor inconnection with anyother alleged unlawful horizontal or vertical anti
competitive conduct in connection with tlie purchase, sale, pricing, discounting, marketing ordistributing of
Chocolate Products in Canada and including, without limitation, any claims for consequential, subsequent
10
or follow-on hannthat arises aller tlie date liercofin respect ofanyagreement or conduct that occurred prior
to Ihe dale hereof
(49)
Releasees mean, jointly and severally, individually and collectively, tlie Settling Defendant and all
of its present and former, direct and indirect, parents, subsidiaries, divisions, affiliates, partners, insurers, and
all other Persons, partnerships or con»ralions with whom any of tlie former have been, or are now,
affiliated (including willwul limitation, Nestle S.A. and any of its direct or iixlirecl subsidiaries and/or
affiliates), and all of Iheir respective past, present and future officers, directors, employees, agents,
shareliolders, attorneys, trustees, servants and representatives; and the predecessors, successors, purcliasers,
heirs, executors, administrators and assigns of each of tlie foregoing (excluding always any Non-Settling
Defendant or Settled Defendant and their respective affiliates that arc not also affiliates of Ihe Settling
Defendant).
(50)
Releasor: mean, jointly and severally, individually ami collectively, the Canadian Plaintiffs and the
Settlement Class Members ami llvcir ies|iectivc parents, subsidiaries, predecessors, successors, heirs,
executors, administrators, insurers, and assigns.
(51)
Settled Defendants mean any Defendant other than the Settling Defendant who has settled the
Canadian Proceedings ami whose settlement has obtained final approval ofthe Courts.
(52)
SettlementAgreement means this agreement, including the recitals and schedules.
(53)
SettlementAmount means the sum ofCDN $9 million.
(54)
Settlement Class means all Persons included in the Ontario Settlement Class, the Quebec
Settlement Class and tlie BC Settlement Class (considering that no member validly opted out of (lie
Settlement Class in accordance with the orderofthe Ontaiio Court,dated December 30,2009, the order of
the BC Court dated January 10, 2010 or tlie order of the Quebec Court, daied February A, 2010, as
appropriate). '
(55)
Settlement Class Member means a Person who is a member of the Settlement Class.
(56)
Settlement Class Period means February 1,2001 lo December 31,2008.
II
(57)
Settling Defendant means Nestle Canada Inc.
(58)
Trust Account means an interest bearing trust account at a Canadian Schedule 1 bank in Ontario
under thecontrol oftlieEscrow Agent for llic benefit of Settlement Class Members.
SECTION 2 - SETTLEMENT APPROVAL
2.1
Best Efforts
(1)
The Parties shall use their best efforts to effectuate this settlement and to secure the
prompt, complete and final dismissal with prejudice ofthe Canadian Proceedings as against the
Settling Defendant and any and all Releasees named asdefendants in the Canadian Proceedings.
2.2
MotionsApproving Notice and Authorizing and Certifying Actions
(1)
At a time mutually agreed to by the Main Plaintiffs and the Settling Defendant after this
Settlement Agreement is executed, the Main Plainliffs shall bring motions before Ihe Courts for
orders approving the Notice ofApproval and Certification Hearings described in section 10.1.
(2)
As soon as practicable after the orders referred to in sections 2.2(1) are granted, and after
the Notice of Approval and Certification Hearings has been published, the Main Plaintiffs shall
bring motions before the Courts for orders certifying or authorizing as against the Settling
Defendant each ofthe Main Proceedings commenced in their respective jurisdictions as a class
proceeding for settlement purposes only and approving and enforcing the Settlement Agreement.
2.3
Agreemcn I on Form of Orders
(I)
It is a fundamental term of this Settlement Agreement that the Main Plaintiffs and the
Settling Defendant must agree on the form and content ofthe orders to be sought pursuant to
sections 2.2(1) and 2.2(2), including the form of notice, and every order and notice must be
consistent with the terms ofthe Settlement Agreement. If agreement on the form and content of
theorders, including the related form of notice, is not reached within a reasonable period of lime,
ihe Settling Defendant and the Main Plaintiffs shall have a right of termination pursuant to
section 13.1.
12
(2)
The form and content ofthe orders agreed upon pursuant to section 2,3(1) shall be
considered a material term of Ihe Settlement Agreement and Ihe failure of any Court to approve
the form and content ofthe orders agreed upon shall give rise to a right of terminntion pursuant
lo section 13.1.
2.4
Pre-Motion Confidentiality
(1)
Until the first ofthe motions required by section 2.2(1) is brought, the Parties shall keep
the execution of and all of Ihe terms of the Settlement Agreement, and any information or
Documents related thereto, confidential and shall not disclose them without the prior written
consent of counsel for the Settling Defendant and Class Counsel, as the case may be, except as
required for the purposes of financial reporting or the preparation of financial records (including
tax returns and financial statements) or as otherwise required by law. After llic first motion is
brought, if any press release is issued by the Canadian Plaintiffs, Class Counsel or Additional
Counsel, its form and content will first be agreed to by the Settling Defendant and Class Counsel.
2.5
Sequence of Motions
(1)
The Main Plaintiffs and Settling Defendant agree to request that the Courts hold joint
hearings to consider ihe motions required by section 2.2 consistent with the principles ofthe
Canadian
Bar
Association's
Canadian
Judicial
Protocol
for
the
Managcmeni
of
Multijurisdictional Class Actions.
(2)
If Ihe Courts do not agree to hold joint hearings pursuant to section 2.5(1), the Main
Plaintiffs in Quebec and British Columbia shall not proceed with a motion to certify or authorize
the Quebec and BC Proceedings and approve the Settlement Agreement unless and until the
Ontario Court certifies the Ontario Proceeding as against Ihe Settling Defendant for settlement
purposes and approves the Settlement Agreement. The certification or authorization and approval
motions may be tiled in Quebec and British Columbia, but, if necessary, Quebec and BC
Counsel will seek an adjournment of their hearings lo permit the Ontario Court to first render its
decision on the certification and settlement approval motion. The Settling Defendant may agree
lo waive this provision.
13
SECTION 3 - SETTLEMENT BENEFITS
3.1
Payment of Settlement Amount
(1)
The Releasees have no obligation to pay any amount other than the Settlement Amount,
for any reason, pursuant to or in furtherance ofthe Settlement Agreement.
(2)
Within 30 days of execution ofthe Settlement Agreement, the Settling Defendant shall
pay the Settlement Amount to the Escrow Agent, which payment shall be in full salisfaction of
all settlement payment obligations under Ihe Settlement Agreement and in full satisfaction of ihe
Released Claims against the Releasees.
(3)
The Escrow Agent shall maintain the Trust Account as provided for in the Settlement
Agreement. The Escrow Agent shall not pay out all or part ofthe monies in the Trust Account,
except in accordance with the Settlement Agreement or in accordance with an order of the
Courts obtained on motion, and in any event, shall not pay out all or part of the monies in the
Trust Account before the Effective Date, except the costs ofthe Escrow Agent and the costs of
Ihe Notices required bysection 10.1.
3.2
Taxes and Interest
(1)
Except as hereinafter provided, all interest earned on the Settlement Amount shall accrue
to Ihe benefit ofthe Settlement Class and shall become and remain part ofthe Trust Account.
(2)
Subject lo section 3.2(3), all taxes payable on any interest which accrues on Ihe
Settlement Amount in the Trust Account or otherwise in relation to the Settlement Amount shall
be the responsibility ofthe Settlement Class. The Escrow Agent shall be solely responsible to
fulfill all tax reporting and payment requirements arising from the Settlement Amount in the
Trust Account, including any obligation lo report taxable income and make lax payments. All
taxes (including interest and penalties) due with respect to the income earned on the Settlement
Amount shall be paid from the Trust Account.
(3)
The Settling Defendant shall have no responsibility lo make any filings relating to the
Trust Account and will have no responsibility to pay tax on any income earned by the Settlement
14
Amount or pay any taxes on the monies in (he Trust Account, unless this Settlement Agreement
is terminaied, in which case the interest earned on the Settlement Amount in the Trust Account
or otherwise shall be paid to the Settling Defendant who, in such case, shall be responsible for
the payment of all taxes on such interest.
SECTION 4- DISTRIBUTION OF SETTLEMENT AMOUNT AND INTEREST
4.1
Distribution Protocol
(1)
At a lime within the discretion ofClass Counsel, Class Counsel will seek orders from Ihe
Courts approving the Distribution Protocol.
4.2
No Responsibility for Administration or Fees
(I)
The Settling Defendant shall not have any responsibility, financial obligations or liability
whatsoever with respect to the investment, distribution or administration of monies in the Trust
Account including, but not limited lo. Administration Expenses and Class Counsel Fees.
SECTION 5 - ITWAL SETTLEMENT AGREEMENT
5.1
Representations and Warranties Regarding the ITWALSettlement Agrcemen t
(I)
The Main Plaintiffs and Class Counsel hereby represent and warrant that the ITWAL
Entities have absolutely and unconditionally assigned and transferred to the Settlement Class any
and all right, title and interest that the ITWAL Entities have ever held, now hold or may hereafter
hold in respect ofthe ITWAL Claims on the ITWAL Effective Date. The Main Plaintiffs and
Class Counsel also agree, represent and warrant that they will not take any steps to detract,
diminish or further transfer the rights, titles and/or interests that have been assigned and
transferred to the Settlement Class under the ITWAL Settlement Agreement.
SECTION 6 - RELEASES AND DISMISSALS
6.1
Release o f Releas ees
(I)
Upon the Effective Date, and in consideration of payment of Ihe Settlement Amount and
lor other valuable consideration set forth in the Settlement Agreement, the Releasors forever nnd
absolutely release the Releasees from the Released Claims.
15
6.2
Covenant Not To Sue
(I)
Notwitlistanding section 6.1(1), for any Settlement Class Members resident in any
province or territory where the release of one tortfeasor is a release of ali other tortfeasors, the
Releasors do not release the Releasees but instead covenant and undertake not to make any claim
in any way or lo threaten, commence, participate in, or continue any proceeding in any
jurisdiction against the Releasees in respect ofor in relation to the Released Claims.
6.3
No Further Claims
(I)
The Releasors shall not now or hereafter institute, continue, maintain or assert, either
directly or indirectly, whether in Canada or elsewhere, on their own behalf or on behalf of any
class or any other Person, any action, suit, causeof action, claim or demand against any Releasee
or against any oilier Person who may claim contribution or indemnity, or other claims over relief,
from any Releasee in respect of any Released Claim or any matterrelated thereto, except for Ihe
continuation of the Main Proceedings or Additional Proceedings against the Non-Settling
Defendants or unnamed alleged co-conspirators that are not Releasees.
6.4
Scope of Released Claims
(I)
For greater certainly, pursuant to ilie definition of Released Claims insection 1 of this Settlement
Agreement, the releases, covenants and undertakings granted and given bytlie Releasors in respect ofthe
Released Claims on the Effective Date under sections 6.1, 6.2 and 6.3, shall include, without limitation,
the ITWAL Claims that are held bythe Settlement Class as Releasors onthe Effective Date.
6.5
Dismissal of Ihe Main Proceedings
(I)
The Main Proceedings shall be dismissed with prejudice and without costs as against any
and all Releasees that are defendants in Ihe MainProceedings.
6.6
Dismissal of the Additional Proceedings ,
(I)
Upon the Effective Date, lo the extent that they have not already been dismissed, the
Additional Proceedings listed in Schedule "A" shall be dismissed without costs and with
prejudice against anyand allReleasees that are defendants in the Additional Proceedings.
16
(2)
Upon the Effective Date, each Additional Plaintiffshall be deemed to irrevocably consent
to the dismissal, without costs and with prejudice, of his, her or its Additional Proceedings
against any and all ofthe Releasees.
(3)
The Main Plaintiffs and Settling Defendant agree lo request that Ihe Canadian courts in
which Additional Proceedings have been commenced hold joint hearings to consider the
dismissals required by section 6.6(1), consistent with the principles of the Canadian Bar
Association's Canadian Judicial Protocol for the Management of Multijurisdictional Class
Actions. If the Canadian courts do not agree to hold joint hearings, the Additional Plaintiffs shall
bring separate motions or applications to obtain the dismissals required by section 6.6(1).
6.7
Dismissal of the Other Actions
(1)
Upon the Effective Date, Ihe Other Actions that were commenced in Ontario, British
Columbia or any other jurisdiction in Canada except Quebec by any Settlement Class Member
shall be dismissed against any and all Releasees who me named as defendants, without costs and
with prejudice.
(2)
Upon the Effective Date, each member ofthe Ontario Settlement Class and Ihe British
Columbia Settlement Class shall be deemed lo irrevocably consent to the dismissal, without costs
and with prejudice, ofhis, her or its Other Actions against the Releasees.
(3)
Each member ofthe Quebec Settlement Class who makes a claim under this Settlement
Agreement shall be deemed to irrevocably consent to the dismissal, without costs and without
reservation, ofhis, her or its Other Actions against the Releasees.
(4)
Each Other Action commenced in Quebec by a member ofthe Quebec Settlement Class
who makes a claim under this Settlement Agreement shall be dismissed against the Releasees,
without costs and without reservation.
17
6.8
Claims Against Other Entities Reserved
(1)
Except as provided herein, the Settlement Agreement does not settle, compromise,
release or limit in any way whatsoever any claim by Settlement Class Members against any
Person other than the Releasees.
6.9
No Assistance to Other Plaintiffs
(I)
As of Ihe date ofthe execution ofthe Settlement Agreement, the Canadian Plaintiffs, the
Settlement Class Members, Class Counsel, and Additional Counselshall not, without the express
written consent of the Settling Defendant, provide any direct or indirect assistance to any
plaintiff or any plaintiffs counsel that assert or seek lo assert claims or make allegations that
relate lo, are in connection with or arise from the Released Claims againsi any ofthe Releasees,
except in the event that a court in Canada expressly directs the Canadian Plaintiffs, Ihc
Settlement Class Members, Class Counsel, or Additional Counsel to provide such assistance. In
no circumstances, however, may the Canadian Plaintiffs, the Settlement Class Members, Class
Counsel, and/or Additional Counsel apply for or consent lo such an order, and promptly upon
becoming aware of an application for such an order, Class Counsel shall immediately notify the
Settling Defendant of the application in order that any Releasee may intervene in such
proceedings. As of the date of the execution of the Settlement Agreement, the Canadian
Plaintiffs, Class Counsel and Additional Counsel severally represent and warrant that, lo the best
of his, her or its knowledge, there are no proceedings in Canada that assert or seek to assert
claims or make allegations thai relate lo, arc in connection with or arise from the Released
Claims agninsl any of the Releasees other than the Main Proceedings and the Additional
Proceedings.
6.10
Releases
(1)
The releases contemplated in this section shall be considered a material term of the
Settlement Agreement and the failure of any Court to approve Ihe releases contemplated herein
shall give rise to a right of termination pursuant losection 13.1 ofthe Settlement Agreement.
18
SECTION 7 -BAR ORDER AND OTHER CLAIMS
7.1
Ontario and British Columbia Bar Order
(I)
The Main Plaintiffs in Ihc Ontario Proceeding and the BC Proceeding shall seek a bar
order from the Ontario and BC Courts providing for the following:
(a)
All claims for contribution, indemnity or other claims over, whether asserted,
unasserted or asserted in a representative capacity, inclusive of interest, taxes and
costs, relating to the Released Claims which were or could have been brought in
the Canadian Proceedings or otherwise, by any Non-Settling Defendant or any
other Person or parly, against a Releasee, or by a Releasee against any Non-
ScltJing Defendant or any other Person or parly (excepting (i) a claim by a
Releasee against any Person excluded in writing from the definition of Releasees;
and (ii) a claim by a Releasee pursuant to a policy of insurance, provided any such
claim involves no right of subrogation against any Non-Settling Defendant), arc
barred, prohibited and enjoined in accordance with the terms ofthe order.
(b)
If the Ontario or BC Courl determines that there is a right of contribution and
indemnity or other claim over, whether inequity or in law, by statute or otherwise:
(i)
the Ontario or BC Settlement Class Members shall not be entitled to claim
or recover fiom the Non-Settling Defendants that portion of any damages
(including punitive damages, if any), reslilutionary award, disgorgement
of profits, interest and costs (including investigative costs claimed
pursuant to section 36 of the Competition Act) that corresponds to the
Proportionate Liability ofthe Releasees proven at trial or otherwise; and,
(ii)
ihc Ontario or BC Court shall have lull authority to determine the
Proportionate Liability ofthe Releasees at the trial or other disposition of
the Ontario or BC Proceeding, whether or not the Releasees appear at the
trial or olher disposition and the Proportionate Liability ofthe Releasees
shall be determined as if the Releasees are parties to the Ontario or BC
19
Proceeding and any determination by the Ontario or BC Court in respect
of the Proportionate Liability of the Releasees shall only apply in the
Ontario or BC Proceedings and shall not be binding on the Releasees in
any other proceedings.
(c)
A Non-Settling Defendant may, on motion to the Ontario or BC Court brought on
at least ten (10) duys notice and to be determined as if the Settling Defendant is a
party to the Ontario or BC Proceeding, not to be brought unless and until the
Ontario or BC Proceeding against the Non-Settling Defendants has been certified
and all appeals or limes to appeal from such certification have been exhausted,
seek orders for the following:
(i)
documentary discovery and an affidavit of documents in accordance with
therelevant rules ofcivilprocedure from the Settling Defendant;
(ii)
oral discovery of a representative of the Settling Defendant, tin transcript of which
maybe read in at trial;
(iii)
leave to savea request to admit ontlie Settling Defendant in respect of factual matters;
and/or
(iv)
the production of a representative ofthe Settling Defendant to testify at
trial, with suchwitness lo be subject to cross-examination by counsel for the Non-
Settling Defendant.
(2)
The Settling Defendant retains all rights to oppose any motion(s) brought under section
7.1(0(c).
(3)
A Non-Settling Defendant mayserve the motion(s) referred to in section 7.1 (l)(c) on the
Settling Defendant by service on counsel of record for (he Settling Defendant in the Main
Proceedings.
!
i
20
(4)
To tlie extent that an order is granted pursuant to section 7.1(l)(c) and discovery is
provided lo a Non-Settling Defendant, a copy of all discovery provided, whether oral or
documentary in nature, shall promptly be provided by the Settling Defendant to the Main
Plaintiffs and Class Counsel.
7.2
Quebec Bar Order
(I)
The Main Plaintiffs in the Quebec Proceeding shall seek a bar order from the Quebec
Court providing forthe following:
(a)
llic Main Plaintiffs in Quebec and the Quebec Settlement Class Members
expressly waive and renounce Ihe benefit of solidarity against the Non-Settling
Defendants with respect to the facts and deeds ofthe Releasees;
(b)
(he Main Plaintiffs in Quebec and Ihc Quebec Settlement Class Members shall
henceforth only be able to claim and recover damages, including punitive
damages, attributable to the conduct of and/or sales by the Non-Settling
Defendants;
(c)
any action in warranty or other joinder of parlies lo obtain any contribution or
indemnity from the Releasees or relating to the Released Claims (including,
without limitation, the ITWAL Claims held and released by the Settlement Class
as Released Claims) shall be inadmissible and void in llic context ofthe Quebec
Proceeding; and
(d)
that any fuliire right by the Non-Settling Defendants to examine on discovery a
representative of the Settling Defendant will be determined according to the
provisions of the Code of Civil Procedure, and the Settling Defendant shall
reserve its right to oppose such an examination under the Code of Civil
Procedure.
21
7.3
Material Term
(I)
The form and content ofthe bar orders contemplated in this section 7 shall be considered
a material term ofthe Settlement Agreement and Ihc failure of any Courl lo approve the bar
orders contemplated herein shall give rise loa right of terminal ion pursuant to section 13.1 ofthe
Settlement Agreement.
SECTION 8 - EFFECT OF SETTLEMENT
8.1
No Admission of Liability
(1)
The Canadian Plaintiffs and the Releasees expressly reserve all of their rights if the
Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any
reason. Further, whether or not the Settlement Agreement is finally approved, is terminaied, or
otherwise fails to lake effect for any reason, the Settlement Agreement and anything contained
herein, and any and all negotiations, Documents, discussions and proceedings associated with the
Settlement Agreement, and any action taken lo carry out Die Settlement Agreement, shall not be
deemed, construed or interpreted to be an admission of any violation of any statute or law, or of
any wrongdoing or liability by any Releasee, or ofthe truth of any ofthe claims or allegations
contained in the Canadian Proceedings, the Other Actions, or any other pleading filed by the
Canadian Plaintiffs or any other Settlement Class Member.
8.2
Agreement Not Evidence
(I)
Whether or not it is terminated, the Settlement Agreement and anything contained herein,
and any and all negotiations, Documents, discussions and proceedings associated with the
Settlement Agreement, and an)'action taken to cany out the Settlement Agreement, shall not be
referred to, offered as evidence or received in evidence in any present, pending or future civil,
criminal or administrative action or proceeding, except: (a) by the Parlies in a proceeding lo
approve or enforce the Settlement Agreement; (b) by a Releasee lo defend against the assertion
of a Released Claim; (c) by a Releasee in any insurance-related proceeding; or (d) as otherwise
required by lawor as provided in this Settlement Agreement.
22
8.3
No Further Litigation
(1)
Except as provided in sections 8.3(2) and 8.3(4) of this Settlement Agreement, no Class
Counsel, no Canadian Plaintiff, no Settlement Class Member, no Additional Counsel, nor anyone
currently or hereafter employed by, associated with, or a partner with Class Counsel or
Additional Counsel, may directly or indirectly participate or be involved in or in anyway assist
with respect to any claim made or action commenced by any Person which relates lo, is in
connection with or arises from the Released Claims.
(2)
Sections 6.9(1) and 8.3(1) ofthe Settlement Agreement, and only sections 6.9(1) and
8.3(1), shall be inoperative to the extent that they require any lawyer who is a member ofthe
Law Society of British Columbia (the "LSBC") to breach hisor her obligations under Rule 4.7 of
the LSBCs Professional Conduct Handbook by refraining from participation or involvement in
any claim or action in a British Columbia court. This section 8.3(2) shall not affect or render
inoperative any other section or provision oftheSettlement Agreement.
(3)
No Class Counsel, no Canadian Plaintiff, no Settlement Class Member, no Additional
Counsel, nor anyone currently or hereafter employed by, associated with, or a partnerwith Class
Counsel or Additional Counsel may divulge to any Person for any purpose any information
obtained from a Releasee in Ihc course of the Canadian Proceedings or the negotiation and
preparation of the Settlement Agreement, except to Ihe extent such information is otherwise
publicly available or otherwise ordered bya court in Canada.
(4)
Section 8.3(1) does not apply fo the involvement of any Person in the continued
prosecution ofthe Main Proceedings against any Non-Settling Defendant or unnamed alleged
co-conspirators whoare not Releasees.
23
SECTION 9 - CERTIFICATION OR AUTHORIZATION FOR SETTLEMENT ONLY
9.1
Settlement Class and Common Issue
(1) The Parties agree that the Main Proceedings shall be certified or authorb.ed as class
proceedings solely for purposes ofsettlement ofthe Canadian Proceedings and the approval of
the Settlement Agreement by the Courts.
(2) The Main Plaintiffs agree that, in the motions for certification or authorization of Hie
Main Proceedings as class proceedings and for the approval of the Settlement Agreement, the
only common issue that they will seek to define is the Common Issue and the only class thai they
will assert is the Settlement Class. The Main Plaintiffs and Additional Plaintiffs acknowledge
that the Settling Defendant agrees to the definition of the Common Issue for purposes of
settlement only.
9.2
Certification or Authorization Without Prejudice
(I)
In the event the Settlement Agreement is not approved, is terminaied in accordance with
its terms or otherwise fails lo lake effect, the Parties agree that any prior certification or
authorization of a Main Proceeding as a class proceeding, including the definition of Ihc
Settlement Class and the statement of the Common Issue, shall be without prejudice to any
position that any ofthe Parties or any Releasee may later take on any issue in the Canadian
Proceedings, the Other Actions, or any other litigation.
SECTION 10 - NOTICE TO SETTLEMENT CLASS
10.1
Notice Required
(1)
The Settlement Class shall be given the following Notices: (i) Notice of Approval and
Certification Hearings; (ii) Notice of Settlement Approval and Claims Procedure; and (iii)
termination of this Settlement Agreement if it is terminated after notice provided in accordance
with (i) above or as otherwise ordered by Ihe Courts.
24
10.2
Form and Distribution of Notice
(I)
The form ofthe Notices referred to in section 10.1 and the manner of their publication
and distribution shall be as agreed to by Ihe Main Plaintiffs and the Settling Defendant and
approved by the Courts.
10.3
Notice of Distribution
(1)
Except to the extent provided for in the Settlement Agreement, the Courts shall determine
the form of notice in respect of the administration of the Settlement Agreement and the
Distribution Protocol, on motions brought by Class Counsel.
SECTION 11 -ADMINISTRATION AND IMPLEMENTATION
11.1
Mechanics of Administration
(1)
Except to the extent provided for in the Setllemenl Agreement, the mechanics of the
implementation and administration of the Settlement Agreement and the Distribution Protocol
shall be determined by Ihc Courts on motions brought by ClassCounsel.
11.2
Informntion and Assistance
(1)
The Settling Defendant will make reasonable efforts to compile a list ofthe names and
addresses of Persons in Canada who purchased Chocolate Products directly from the Settling
Defendant in Canada during the Settlement Class Period, together with information regarding the
value of sales ofChocolate Products to those Persons during the Settlement Class Period.
(2)
The information required by section 11.2(1) shall be delivered lo Class Counsel within
thirty (30) business days ofthe date ofexecution ofthe Settlement Agreement.
(3)
Class Counsel shall maintain the information provided under section 11.2(2) as
confidential, and may only use this information for the following purposes:
(a)
to facilitate the dissemination of Ihe notices required in section 10.1(1);
25
(b)
to advise Persons in Canada who purchased Chocolate Products from the Settling
Defendant in Canada during the Settlement Class Period of any subsequent
settlement agreement reached in the Main Proceedings, any related approval
hearings, and any other major steps in the Main Proceedings; and
(c)
to facilitate the claims administration process with respect to this Settlement
Agreement and any othersettlement agreement uchieved in the Main Proceedings.
(4)
If this Settlement Agreement is terminated, all information provided by the Settling
Defendant pursuant to section 11.2 shall be returned or destroyed forthwith, no record ofthe
information so provided shall be retained by Class Counsel or the Claims Administrator in any
form whatsoever, and the information so provided may not be used or disclosed, directly or
indirectly, in any form or manner by ClassCounsel or by the ClaimsAdministrator.
SECTION 12 - CLASS COUNSEL FEES AND ADMINISTRATION EXPENSES
(1)
The Escrow Agent shall pay the costs ofthe Notices required by section 10.1 Ironi the
Trust Account.
(2)
Class Counsel may seek the Courts' approval to pay Class Counsel Fees and
Administration Expenses contemporaneous with seeking approval ofthe Settlement Agreement,
or at such oilier lime as they shall determine in their sole discretion.
(3)
Except as provided in sections 12(1) and 12(2), Class Counsel Fees and Administration
Expenses may only bepaid out ofthe Trust Account after the Effective Date.
(4)
The Releasees shall not be liable for any fees, disbursements or taxes, including but not
limited lo any fees, disbursements or taxes of Class Counsel's, Additional Counsel's, the Main
Plaintiffs', the Additional Plaintiffs' or any Settlement Class Member's respective lawyers,
experts, advisors, agents, or representatives.
26
SECTION 13-TERMINATION OF SETTLEMENT AGREEMENT
13.1
Right of Termination
(1)
The Settling Defendant or the Main Plaintiffs may terminate this Settlement Agreement
in the event that,
(a)
The Parlies do not reach agreement on the form and content of anyorderor notice
pursuant to section 2.3(1);
(b)
the form and content of any of Ihe Final Orders approved by the Ontario Courl,
the BC Courl and the Quebec Court departs from the form and content or the
orders agreed upon by the Main Plaintiffs and the Settling Defendant under
section 2.3(1);
(c)
any Courl declines lo certify or authorize the Settlement Class;
(d)
any Court declines to approve the Settlement Agreement or any material term or
parthereof;
(e)
any Court approves theSettlement Agreement in a materially modified form; or
(I)
any orders approving Ihe Settlement Agreement made by the Ontaiio Court, ihe
BC Courl or the Quebec Court do not become Final Orders; or
(g)
(2)
any court declines to dismiss an Additional Proceeding ugainst the Releasees.
To exercise a right of terminal ion under section 13.1(1), a terminating parly shall deliver
a written notice of termination pursuant to section 14.15 ofthe Settlement Agreement. Upon
delivery of such a written notice, the Settlemeni Agreement shall be terminated and, except as
provided for insection 13.4, it shall be null and void and have no further force or effect, shall not
be binding on the Parties, and shall not be used as evidence or otherwise in any litigation.
(3)
Any order, ruling or determination made by any Court that is not substantially in the form
and content ofthe respective Final Order, as agreed upon by the Main Plainlilfs and Ihe Settling
27
Defendant in accordance with section 2.3(1), shall be deemed to be a material modification of
the Settlement Agreement and shall provide a basis for the termination of the Settlement
Agreement, provided however that the Settling Defendant may agree to waive this provision.
(4)
Any order, ruling or determination made by any Court with respect to Class Counsel Fees
or Ihe Distribution Protocol shall not be deemed lo be a material modification of all, or a part, of
the Settlement Agreement and shall not provide any basis for the termination ofthe Settlement
Agreement.
13.2
If Settlement Agreement is Terminated
(1)
In the event the Settlement Agreement is not approved, is lerminated in accordance with
its termsor otherwise fails to take effect for any reason, the Parties agree that:
(a)
no motion to certify or authorb.e any of the Main Proceedings as a class
proceeding on the basis ofthe Settlement Agreement or to approve Ihe Settlement
Agreement, which has not been decided, shall proceed;
(b)
any order certifying or authorizing a Main Proceeding as a class proceeding on
the basis ofthe Setllemenl Agreement or approving the Settlement Agreement
shall be set aside and declared mill and void and of no force and effect, and
anyone shall be estopped from asserting otherwise;
(c)
any prior certification or authorization of a Main Proceeding as a class
proceeding, including ihe definitions ofthe Settlement Class and tlie Common
Issue, shall be without prejudice to any position that any of the Parties or
Releasees may later lake on any issue in the Canadian Proceedings or any other
litigation; and
(d)
the Parties shall negotiate in good faith lo determine a new timetable, if the
Canadian Proceedings are lo continue against any ofthe Releasees who arc named
as Defendants.
28
13.3
Allocation of Monies in the Trust Account Following Termination
(1)
If the Settlement Agreement is terminated, the Escrow Agent shall pay to ihe Settling
Defendant Ihe Settlement Amount plus all accrued interest thereon, less Ihc costs ofthe Escrow
Agent, and less Ihe costs ofthe Notices required by section 10.1 (or the Settling Defendant's pro
rata share ofthe costs ofthe Notices if they also gave notice of other settlements), within thirty
(30) business days ofthe Escrow Agent being advised in writing that the Settlement Agreement
has been terminated in accordance with its terms. The Releasees and the Canadian Plaintiffs
expressly reserve alloftheir respective rights ifthe Settlement Agreement is terminated.
13.4
Survival of Provisions After Termination
(1)
If this Settlement Agreement is terminated orotherwise fails to lake effect for any reason,
the provisions of sections 3.2, 8, 9.2, 10, 11.2(4), 12(1), 12(4) and 13 shall survive the
termination and continue in full force and effect. The definitions and Schedules shall survive
only for the limited purpose ofthe interpretation of these surviving sections within the meaning
ofthe Settlement Agreement, but for no other purposes. All other provisions ofthe Settlement
Agreement and all other obligations pursuant to the Settlemeni Agreement shall cease
immediately.
SECTION 14-MISCELLANEOUS
(4.1
Releasees Have No Liability for Administration
(1)
The Releasees have no responsibility for and no liability whatsoever with respect to the
administration ofthe Settlement Agreement or the Distribution Protocol.
14.2
Motions for Directions
(I)
The Settling Defendant or the Main Plaintiffs may apply to the Ontario Court for
directions in respect ofthe interpretation, implementation and administration ofthe Settlement
Agreement. Unless the Courts order otherwise, motions for directions that do not relate
specifically to the matters affecting the BC or Quebec Proceeding or/and BC or Quebec
Settlement Class Members shall be determined by ihc Ontario Court.
29
(2)
Class Counsel may apply to the Courts for directions in respect of the Distribution
Protocol.
(3)
All motions contemplated by or referred lo in this Settlement Agreement (including the
motions referred to in section 10.3(1)) shall be on notice to the Main Plaintiffs and the Settling
Defendant, it being agreed that the Settling Defendant does not have standing on n motion
dealing solely with the distribution of the Settlement Amount as between Settlement Class
Members.
14.3
Headings, etc.
(I)
In the Settlement Agreement:
(a)
the division of the Settlement Agreement into sections and the insertion of
headings arc for convenience of reference only and shall not affect the
construct tonor interpretation of theSettlement Agreement; and
(b)
the terms "the Setllemenl Agreement", "hereof, "hereunder", "herein" and similar
expressions refer to the Settlement Agreement and not loany particular section oroilier
portion ofthe Settlement Agreement.
14.4
Computation of Time
(I)
In Ihe computation of time in the Settlement Agreement, except where a contrary
intention appears,
(a)
where there is a reference to a number of"days between two events, Ihc numberof
days shall be counted by excluding the day on which the first event happens and
including the day on which the second event happens, including all calendar days;
and
(b)
only in the case where the lime for doing an act expires on a holiday, the act may
be done on the next day thai is not a holiday.
30
14.5
Ongoing Jurisdiction
(1)
Notwithstanding section 14.2(1), each of Ihe Courts shall retain exclusive jurisdiction
over Ihe Main Proceeding commenced in ils jurisdiction, the parlies thereto and Class Counsel
Fees in that Main Proceeding.
(2)
The Main Plaintiffs and the Settling Defendant agree that no Court shall make any order
or give a direction in respect of any matter of shared jurisdiction unless that order ordirection is
conditional upon a complementary order or direction being made or given by the other Courts
with which it sharesjurisdiction over that matter. Notwithstanding the above, the Ontario Court
shall exercise jurisdiction with respect to implementation, administration, and enforcement ofthe
terms of the Settlement Agreement, and the Canadian Plaintiffs, the Settlement Class Members
and the Settling Defendant submit lo the jurisdiction of the Ontario Court for purposes of*
implementing, administering, and enforcing the Settlement Agreement. Issues related lo Ihe
administration of the Settlement Agreement, Ihe Trust Account, and other matters not
specifically related to the claim ofa BC Settlement Class Member or a Quebec Settlement Class
Member shall be determined by the Ontario Courl.
14.6
Governing Law
(1)
The Settlement Agreement shall be governed by and construed and interpreted in
accordance with the laws ofthe Province of Ontario.
14.7
Entire Agreement
(1)
The Settlement Agreement constitutes the entire agreement among the Parties and
supersedes all prior and contemporaneous understandings, undertakings, negotiations,
representations, promises, agreements, agreements in principle and memoranda of understanding
in connection herewith. None ofthe Parlies will bebound by any prior obligations, conditions or
representations with respect to the subjeel matter ofthe Settlement Agreement, unless expressly
incorporated herein.
31
14.8
Amendments
(1)
The Settlemeni Agreement may not be modified or amended except in writing and on
consent of ail Parties hereto. The Courts with jurisdiction over the matter to which the
amendment relates must approve any such modification or amendment.
14.9
Binding Effect
(I)
The Settlement Agreement shall be binding upon, and enure lo Ihc benefit of, the
Canadian Plaintiffs, the Settling Defendant, the Settlement Class Members, the Releasors, tlie
Releasees, and all of their successors and assigns. Without limiting the generality of ihe
foregoing, each and every covenant and agreement made herein by the Canadian Plaintiffs shall
be binding upon all Releasors and each and every covenant and agreement made herein by the
Settling Defendant shall be binding upon all ofthe Releasees.
14.10 Counterparts
(1)
The Settlement Agreement may be executed in counterparts, all of which taken together
will be deemed to constitute one and Ihe same agreement, and a facsimile or PDF signature shall
be deemed an original signature for purposes of executing the Settlement Agreement.
14.11 Interpretation
(1)
The Settlement Agreement has been the subject of negotiations and discussions among
the undersigned, each of which has been represented and advised by competent counsel, so thai
any statute, case law. or rule of interpretation or construction that would or might cause any
provision to be construed against the drafter ofthe Settlement Agreement shall have no force and
effect. The Parties further agree that (he language contained in or not contained in previous drafts
ofthe Settlement Agreement, or any agreement in principle, all have no bearing upon the proper
interpretation ofthe Settlement Agreement.
(2)
The Parties acknowledge thai they have required and consented that the Settlemeni
Agreement and all related documents be prepared in English; les parties reconnaissent avoir
exige" que la prcsentc convention et tous les documents connexes soient r^diges en anglais.
32
Nevertheless, the Settling Defendant shall prepare a French translation of the Settlement
Agreement including the Schedules at its expense. The Parlies agree that such translation is for
convenience only. In the event of any dispute as to the interpretation or application ofthe
Settlement Agreement,only the English version shall be considered.
14.12 Transaction
(J)
The present Settlement Agreement constitutes a transaction in accordance with Articles
2631 and following ofthe Civil Code of Quebec, and ihe parties are hereby renouncing to any
errorsof fact, of law and/or ofcalculation.
14.13 Recitals
(I)
The recitals to the Settlement Agreement are true and form part ofthe Settlement
Agreement.
14.14 Schedules
(I)
The Schedules annexed hereto form part ofthe Settlement Agreement.
14.15 Notice
(I)
Any and all notices, requests, directives, or communications required by Ihc Settlement
Agreement shall be in writing and shall, unless otherwise expressly provided herein, be given
personally, by express courier, by postage prepaid mail, by facsimile transmission, or by email
PDF tiles, and shall be addressed as follows:
33
For the Main Plaintifls and for Class Counsel:
Charles M.Wright
Headier Rumble Peterson
SISKINDS LLP
SUITS, STROSBERG LLP
Barristers and Solicitors
Bairister and Solicitors
680 Waterloo Street
600-251 Goyeau Street
London, ON N6A3V8
Windsor, ON N9A 6V4
Tel:
Fax:
519-660-7753
519-672-6065
Tel:
Fax:
519-258-9333
519-258-9527
Enwil:chnrles.wright(?j)siskinds.com
Email: hpetci1son-g)strosbergco.com
J.J.Cnmp,Q.C.
Ward Branch
CAMP FIORANTE MATT! 1EWS
400-856 Homer Street
BRANCH MACMASIER LLP
Vancouver, BCV6B2W5
Vancouver, BC V7G 3E2
Tel:
Fax:
604-689-7555
604-689-7554
1410-777 Hornby Street
Tel:
Fax:
Email: jicampfifcI'mlawvcrs.ca
604-654-2966
604-684-3429
Email: [email protected]
For theSettlingDefendant:
Rolled Kwinter
BLAKE, CASSELS & GRAYDON LLP
199BayStreet
Suite 4000
Toronto, ON M5L1A9
Tel:
Fax:
416-863-2400
416-863-2653
Email: robert.kwmter(fi).blakes.coni
14.16 Acknowledgements
(1)
Each ofthe Parties hereby affirms and acknowledges that:
34
(a)
he, she or a representative ofthe Party with the authority lo bind the Party with
respect to the matters set forth herein has read and understood the Settlement
Agreement;
(b)
the terms of the Settlement Agreement and the effects thereof have been fully
explained to him, her or the Parly's representative by his, her or its counsel;'
(c)
he, she or the Party's representative fully understands each term ofthe Settlement
Agreement and itseffect; and
(d)
no Parly lias relied upon any statement, representation or inducement (whether
material, false, negligently made or otherwise) of any other Party, beyond the
terms of tlie Settlement Agreement, with respect to the first Party's decision to
execute the Settlement Agreement.
14.17 Authorized Signatures
(1)
Each of the undersigned represents that he or she is fully authorized to enter into the
terms and conditions of, and to execute, the Settlement Agreement on behalf of the Parties
identified below their respective signatures.
Executed iu counterparts on August2,2012
ANDREA DE$AY for Siskinds LLP and the
Main Plaintifrs
Dcsmeules ST1TFLC.R.L. and the Main
Plaintiffs
J.J. CAMPf^C. for Camp Fiorante
HEATHE{
Suits, Slrosberg LLP and the Main
Matthews and the Main Plaintiffs
Plaintiffs
35
CstL.
WARD BR/ÎCII for Branch
/wISlBBlM^prrGR-iortlirleffling
Defendant""
MticinnstwLLP, for BranchMacMastcr
LLP, the Main Plaintiffs, the plaintiffs in
theAdditional .Proceedings oilier than
those for whom E.F. Anthony Merchant,
Q.C. issigning this Settlement
Agreement, and the Additional Counsel
oilier than Ihe Merchant Law Group LLP
fr-St
E.F. ALIMONY MERCHANT,Q.C. for
Merchant Law Group LLP and
Additional Plaintiffs in SupremeCourt of
British Columbia (Victoria Registry)
(Conrt File No. 08-0620); Court of
Queen'sBench of Alberta (Judicial
District of Calgary) (Court FileNo.
080101724); Court of Queen's Bench for
Saskatchewan (Judicial Centre of Regtna)
(Courl File No.Q.B.No. 257of 2008);
CourtofQueen's.Bench for Manitoba
(Winnipeg Centre) (Court File No. Cl-0801-55648)
36
SCHEDULE A
ADDITIONAL PROCEEDINGS
#
1
Title of Additional Proceedings
Court and File No.
Christopher Conway and Sheila Dobiev. Hershey Canada
Supreme Court of British
Columbia (Victoria Registry) Inc, The Hershey Company, Mars Canada Inc., Mars
incorporated, Nestle Canada Inc., Ncslte Inc., Cadbury
(Court File No. 08-0620)
Adams Canada Inc., ITWAL Limited, Glenn Stevens,
Robert Leonidas and Eric Lent
2
CourlofQueen's Bench of
Alberta (Judicial District of
Calgary)
(Court File No. 080101724)
Michael Lindcbachand Viktoriya Samarina v. Hershey
Canada Inc., The Hershey Company, Mars Canada Inc.,
Mars Incorporated, Nestle* Canada Inc., Nestld inc.,
Cadbury Adams Canada Inc., CadburySchweppes PLC,
ITWAL Limited, Glenn Stevens, Robert Leonidas and Eric
Lent
3
4
Edmonton)
David William Cowan v. Cadbury Adams Canada Inc.,
Mars, Incorporated, Mars Canada Inc. formerly known as
Effem Inc.,The l-Jershey Company, Hershey Canada Inc.,
Nestle Canada Inc. and ITWAL Limited
Court ofQueen's Bench of
Alberta (Judicial District of
Jeremy Mclntyre and Gavin Crawford v. Hershey Canada
Inc., The Hershey Company,Mars Canada Inc., Mars
Saskatchewan (Judicial
Incorporated, Nestle Canada Inc., Nestle* Inc., Nestle* S.A,
Centre of Rcgina)
(Court File No. Q.B. No. 257 Nestle* USA Inc., Cadbury AdamsCanada Inc., Cadbury
Schweppes PLC, Cadbury Adams USA LLC. ITWAL
of2008)
Court of Queen'sBench for
Limited, Glenn Stevens, Robert Leonidas and Eric Lent
5
6
Court of Queen's Bench for
Saskatchewan (Judicial
Centre ofMelfort)
(Court File No. Q.B.G. No.
12 of2008)
Brian Kjctshusv. Cadbury Adams Canada Inc., The
Hershey Company, Hershey Canada Inc., Nestle* Canada
Inc., Mars, Incorporated, Mars Canada Inc., and ITWAL
Court ofQueen's Bench for
Manitoba (Winnipeg Centre)
(Courl FileNo. CI-08-0155595)
Rosalyn Golfman v. Cadbury Adams Canada Inc., Mars,
Incorporated, Mars Canada Inc. formerly known as Effem
Inc., The Hershey Company, Hershey Canada Inc., Nest\6
Limited
Canada Inc., and ITWAL Limited
2-
n
7
Tide of Additional Proceedings
Court and File No.
Manitoba (Winnipeg Centre)
(Court FileNo. CI-08-0155648)
Daniel Pawiachuk and Beverly Branth v. Hershey Canada
Inc.,The Hershey Company, Mars Canada Inc., Mars
Incorporated, Nestle* Canada Inc., Nestle* Inc., Nestle S.A.,
Nest Id USA, Inc. Cadbury Adams Canada Inc., Cadbury
Schweppes PLC, Cadbury Adams USA LLC, ITWAL
Limited, Glenn Stevens, Robert Leonidas and Eric Lent
9
Supreme Court ofNova
Scotia (Halifax)
Barrett Thompson v. CadburyAdams Canada Inc. Mars,
Incorporated, MarsCanada Inc. formerly known as Effem
Inc., The Hershey Company, Hershey Canada Inc., Nestle
Canada Inc. and ITWAL Limited
10
New Brunswick (Moncton)
(Courl File «MC 0116008)
Rick Thompson v. Cadbury Schweppes PLC, Cadbury
Adams Canada Inc., Mars, Incorporated, Mars Canada Inc.
formerly known as Effem Inc. The Hershey Company,
HersheyCanada Inc., Nestle* Canada Inc. and ITWAL
Limited
II
(Trial Division) (St. John's)
(Court File No. 2008-01-
William Kelly and Gerald Ledresv v. Cadbury Adams
Canada Inc., Mars, Incorporated, Mars Canada Inc.
formerly known as Effem Inc. The Hershey Company,
Hershey Canada Inc., Nestle Canada Inc. and ITWAL
TO650 CP)
Limited
Supreme Courl of
Newfoundland and Labrador
SCHEDULEB
MAIN PROCEEDINGS
Main Proceedings
Settlement Class
a
Court and File No.
i
Supreme Court of British
Jacob Stuart Main and
AH Persons resident in
Columbia (Vancouver
Registry)
(Court File No. S078807)
Jennifer Maynard v. Cadbury
Schweppes pie, Cadbury
British Columbia who,
during Ihe Settlement Class
Adams Canada Inc., Mars,.
Period, purchased Chocolate
Products in Canada, except
Incorporated, Mars Canada
Inc. formerly known as EDem
Inc., The Hershey Company,
Hershey Canada Inc., Nestle
the Excluded Persons.
S.A., Nestle* Canada Inc. and
ITWAL Limited
2
Quebec Superior Court
(Quebec City)
(File No. 200-06-000094071)
Gaetan Roy v. Cadbury
Adams Canada Inc., Hershey
Canada Inc., Mars Canada
Inc., NestIc* Canada Inc.
All individuals resident in
Quebec who, during the
Settlement Class Period,
purchased Chocolate
Products in Canada, as well
as any legal person resident
in Quebec established for a
private interest, partnership
or association which, at all
times between November 28,
2006 and November 28,
2007, had under its direction
or control no more than 50
persons bound to if by a
contract of employment,
who, during the Settlement
Class Period, purchased
Chocolate Products in
Canada, except the Excluded
Persons.
3
Ontario SuperiorCourt of
David Osmun and Metro
Justice (Toronto)
(Court File No. 08-CV0347263 PD2)
(Windsor) Enterprises Inc. v.
Cadbury Adams Canada Inc.,
The Hershey Company,
Hershey Canada, Inc.. Nestle*
Canada, Inc., Mars,
All Persons in Canada who,
during the Settlement Class
Period, purchased Chocolate
Producls in Canada, except
the Excluded Persons and
Persons who are included in
Incorporated, Mars Canada
the Quebec Settlemeni Class
Inc. and ITWAL Limited
and the BC Settlement Class.

Between Defendants Cadbury Schweppes pic and Cadbury Adams

Transcription

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