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Supreme Court of Canada decision keeps big companies from thwarting class action

Sep 20, 2019 1:45 PM

An effort by a a long list of powerful consumer electronics companies to prevent certification of a class action lawsuit against them for price fixing has been rejected by the Supreme Court of Canada.
Consumers Council of Canada, represented by Harrison-Pensa LLP, intervened in the case, because it dealt with a range of issues vital to the protection of Canadian consumers seeking redress in the case and in the future through class action lawsuits.
“Consumers Council of Canada applauds the decisive judgement of the court in this case,” said Council President Don Mercer. “The decision means that consumers and other claimants who are victims of price-fixing will not find the courtroom doors closed to them on technical and procedural grounds. Big companies who fix prices and hurt consumer markets will have to face the claims against them on their merits – just as it should be.”
The case, still before the courts, involves allegations of price fixing involving optical disc drives and related products against Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp. Korea, Toshiba of Canada Ltd., Toshiba America Information Systems, Inc., Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc., Samsung Electronics America, Inc., Koninklijke Philips Electronics N.V., Lite‑On IT Corporation of Taiwan, Philips & Lite‑On Digital Solutions Corporation, Philips & Lite‑On Digital Solutions USA, Inc., Philips Electronics Ltd., Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., BENQ Corporation, BENQ America Corporation and BENQ Canada Corp.
In summary, the majority of the Supreme Court of Canada held that:

  • The class action could proceed (ie. certification was upheld).
  • Consumers who bought from other companies besides the defendants (called “umbrella purchasers”) could be part of the class.
  • The deadline to file a lawsuit (called a limitation period) could be extended if the conspiracy was not discoverable, or if it was concealed by the defendants.
  • Two avenues of legal redress, under the Competition Act and under the common law, did not exclude each other and could both be advanced.
  • In order to have a common issue related to proof of loss certified, the plaintiff needed only establish a methodology that was sufficiently credible or plausible to establish loss reached the requisite purchaser level (ie. the plaintiff did not, at the certification stage, need to show a methodology for proving that the conspiracy harmed every member of the class).

The complete decision is available at:

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