Extent of Cooperation. (1) Within thirty (30) days after the Execution Date or at a time mutually agreed upon by the Parties acting reasonably, but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendants shall provide to Class Counsel: (a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel for the Settling Defendants, including their U.S. Litigation counsel, which will set out the Settling Defendants’ relevant and non-privileged information derived from their investigation and factual inquiries in respect of the matters at issue in the Proceedings, including information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), including, without limitation: (i) any information regarding how the alleged electrolytic and film conspiracies were formed, implemented and enforced, including specific examples of methods employed by the Defendants in furtherance of the alleged conspiracy; (ii) any information regarding the scope of the alleged conspiracies; (iii) any information regarding the duration of the alleged conspiracies; (iv) answers to Class Counsel’s questions and identification of the conduct, involvement, and role of each Defendant, to the extent known, in the alleged conspiracies, including Defendants tolled in the Proceedings; (v) disclose to Class Counsel the identities and any known particulars (if permitted by law) of the key former officers, directors, and employees who witnessed and/or participated in the alleged conspiracies; (vi) the identification and description of “key” documents relevant to the alleged conspiracies and to the conduct of specific Defendants as requested and to the extent known, and, to the extent in the Settling Defendants’ possession, the provision of copies of those documents to Class Counsel; and (vii) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance that was provided by way of proffer to plaintiffs’ counsel in the U.S. Litigation. (b) The method and meeting place of the oral evidentiary proffer shall be agreed upon between the Parties due to the COVID-19 Pandemic and may be conducted virtually through a secure virtual meeting platform. The oral evidentiary proffer may last up to one full business day. Counsel for the Settling Defendants shall make themselves available for reasonable follow-up questions by Class Counsel. (c) Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants as part of the oral evidentiary proffer are privileged, will be kept strictly confidential, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court or unless there is an agreement between the Plaintiffs and the Settling Defendants to make such disclosure. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use information obtained from the proffer in the prosecution of the Proceedings, including for the purpose of developing the Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a court order, the Plaintiffs shall not introduce any information from a proffer into the record or subpoena any Counsel for the Settling Defendants related to a proffer. (2) It is understood that the evidentiary proffer described in Section 4.1(1) might take place before the Effective Date. In such event: (a) any Documents or information provided in the course of that evidentiary proffer shall be subject to the terms and protections of this Settlement Agreement; and (b) in the event that this Settlement Agreement is not approved, is terminated, or otherwise fails to take effect for any reason, the Documents and information provided during the evidentiary proffer shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a court. In order to give effect to this agreement, Class Counsel agrees to make reasonable efforts to return all copies of any Documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), the evidentiary proffer and to provide written confirmation to the Settling Defendants of having done so. (3) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall make reasonable efforts to provide to Class Counsel: (a) copies of all Documents, together with any pre-existing translations of those Documents, produced by the Settling Defendants to the Canadian Competition Bureau, the U.S. Department of Justice, any other governmental antitrust authority, and/or in the U.S. Litigation, all to be provided in electronic form if available. The U.S. Litigation Documents will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation and shall include any pre-existing and non-privileged electronic coding or metadata produced in the U.S. Litigation; (b) any deposition transcripts for depositions of current or former employees, officers or directors of the Releasees in the U.S. Litigation (including exhibits thereto), including deposition transcripts of any future depositions given by the Settling Defendants in the U.S. Litigation, all to be provided in electronic form if available and any pre-existing translations of the foregoing; (c) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations; electronic copies of any responses to written interrogatories by the Releasees, including all schedules thereto, taken in the U.S. Litigation, and any pre-existing translations into English; (d) any answers to interrogatories provided by the Settling Defendants in the U.S. Litigation and any pre-existing translations of the foregoing; (e) electronic copies of any responses to requests to admit provided by the Releasees in the U.S. Litigation and any pre-existing translations into English; (f) disclosure of any finished Capacitor product dataset and Capacitor product demand forecast dataset procured and maintained by the Defendant Sanyo Electric Co., Ltd. including any such data compiled by any third party vendors for use by it and/or the alleged cartel participants during the Class Period; (g) disclosure of all customer and sales data produced in the US Litigation. The Settling Defendants agree to provide reasonable assistance to Class Counsel and to answer reasonable questions in respect of the sales and customer data that is produced; (h) to the extent not included in the above, any relevant Documents that are specific to the Settling Defendants’ sales and conduct regarding Electrolytic and Film Capacitors in Canada during the Class Period; and (i) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance and disclosure that was provided to plaintiffs’ counsel in the U.S. Litigation. (4) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall provide to Class Counsel reasonable ongoing access to a member of the Settling Defendants’ external legal counsel team to answer Class Counsel’s reasonable questions relating to the Proceedings. Class Counsel’s access to external counsel as a knowledgeable representative of the Settling Defendants shall be equivalent in nature and scope to the access provided by the Settling Defendants in the U.S. Litigation. For greater certainty, the Settling Defendant’s obligation to provide the access begins no later than thirty (30) days after the Effective Date and shall continue on an ongoing basis until the Settling Defendants’ cooperation obligations cease per section 4.1(12). (5) Within ninety (90) days of a request from Class Counsel, which shall not be made until the earlier of (i) a finalized discovery plan in the Ontario Electrolytic or Film Actions, as applicable, or (ii) a finalized litigation protocol that provides for the production of documents in the Québec Action, unless it is otherwise agreed by the Parties that the request may be made on other reasonable grounds at an earlier time, the Settling Defendants agree to make reasonable efforts to provide: (a) to the extent it is not produced under s. 4.1(3) and is reasonably available in electronic form, production of data pertaining to the Settling Defendants’ global sales of Electrolytic Capacitors and/or Film Capacitors, including information regarding the Settling Defendants’ sales of Electrolytic Capacitors and/or Film Capacitors in North America, specifically including all customer and sales data regarding sales of Electrolytic and Film Capacitors to Canadian customers, for the full duration of the Class Period plus two years before and after it and cost information associated with those sales; (b) disclosure to Class Counsel of the identities and any known general particulars of the major global original equipment manufacturers reasonably known to the Settling Defendants that purchased Electrolytic Capacitors and/or Film Capacitors which were incorporated into products sold in Canada within the Class Period; and (c) a reasonable amount of explanation, documentation and information possessed by and available to the Settling Defendants that reveal the details of the incorporation of Electrolytic Capacitors and/or Film Capacitors throughout the Settling Defendants’ vertically integrated chain of production into finished products sold in Canada by the Settling Defendants or any affiliated company during the Class Period. This information shall include reasonable and relevant documentation and information regarding a selection of some specific products or product categories sold by the Settling Defendants or their subsidiaries or related companies in Canada during the Class Period, including, but not limited to, product lists, costing and sales data. The Settling Defendants shall make available reasonable information to assist with the selection. The parties shall agree upon the selection acting reasonably. (6) Within ninety (90) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants agree to the conduct of a witness interview by the Plaintiffs with one (1) current employee of the Settling Defendants with knowledge of the alleged conspiracy. The interview may last up to two (2) full business days and will occur by videoconference using a virtual meeting platform unless applicable COVID-19 related restrictions have been lifted and in such case the interview may occur in person in Japan, unless Panasonic consents to an in-person interview outside of Japan. For greater certainty, the witness interview will mirror the process taken in the U.S. Litigation. The interview shall not be under oath. Costs incurred by, and the expenses of, the employee(s) of the Settling Defendants in relation to such interview, including any cost for a translator, shall be the responsibility of the Settling Defendants. (7) The Settling Defendants agree to use reasonable efforts to authenticate any of their Documents or data produced in accordance with subsections 4.1(1), (3) and (5) to the extent the Settling Defendants can establish their authenticity and that the Plaintiffs require their authentication for their admission and use at any point in the Proceedings. (8) The Settling Defendants agree to make available two (2) current employees of the Settling Defendants with relevant knowledge of the alleged conspiracy to provide affidavit or live testimonial evidence on the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree (in the Electrolytic Proceedings and the Film Proceedings), to the extent that such evidence is required by the Plaintiffs, at a location to be mutually agreed upon as the circumstances require, and provided that such witness’s travel to and from the location of the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree is safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and provided that the witness’s participation is subject to such witness’s right to refuse to travel to the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this paragraph, the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The parties agree to collaborate to minimize the costs incurred by, and the expenses of, the employee of the Settling Defendants in relation to such testimony, including any cost for a translator, and agree that Class Counsel shall assume these costs. (9) The obligation to produce and authenticate Documents produced pursuant to subsection 4.1(3) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendants to the Canadian Competition Bureau, the U.S. Department of Justice or in the context of the U.S. Litigation regarding Electrolytic Capacitors and/or Film Capacitors which are at issue in the Proceedings. Class Counsel and the Plaintiffs shall, in reference to this continuing obligation, consult with Counsel for the Settling Defendants and seek to utilize the least burdensome, costly and intrusive means for the Settling Defendants to discharge their obligation under this provision. (10) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants, or any representative or employee of the Settling Defendants, to disclose or produce any Documents or information that is legally privileged or to disclose or produce any Documents or information in breach of any order, non-disclosure, privacy or confidentiality obligation, regulatory directive, rule or law of this or any jurisdiction, it being understood and agreed that no non-disclosure or confidentiality obligation applies or shall apply to prevent the productions contemplated by sections 4.1(1), (3), (5) and (6). (11) If any of the Documents referenced in 4.1(10) are accidentally or inadvertently disclosed or produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used, directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such Documents. (12) The obligations of the Settling Defendants to cooperate as particularized in Section 4.1 shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. The obligations of the Settling Defendants to cooperate shall cease at the date of
Appears in 5 contracts
Sources: Settlement Agreement, Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within thirty (30) days after the Execution Date or at a time mutually agreed upon by the Parties acting reasonably, but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendants shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel for the Settling Defendants, including their U.S. Litigation counselcounsel if the Settling Defendants so elect, which will set out summarize relevant information originating with the Settling Defendants that is not covered by privilege relating to the allegations in the Proceedings. The information shall be derived from the Settling Defendants’ relevant and nonpre-privileged information derived from their investigation existing work product, investigations, interviews and factual inquiries in respect of the matters at issue in the Proceedings. To the extent known, including the information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), includingwill include, without limitation:
(i) any information regarding how the alleged electrolytic substance and film conspiracies were formedchronology of contacts, implemented meetings and enforcedcommunications during the Class Period that are relevant to the allegations in the Proceedings and that occurred between, among or including the Settling Defendants and other Defendants in respect of Electrolytic Capacitors sold to customers in the industry segments in which the Settling Defendants operated, including specific examples without limitation, the sale of methods employed by Electrolytic Capacitors in the Defendants in furtherance of the alleged conspiracyautomotive industry segment;
(ii) any information regarding the scope conduct of other Defendants in respect of the alleged conspiraciescontacts, meetings and communications described in (i);
(iii) any information regarding the duration of the alleged conspiracies;
(iv) answers to Class Counsel’s questions and identification of the conduct, involvement, and role of each Defendant, to the extent known, in the alleged conspiracies, including Defendants tolled in the Proceedings;
(v) disclose disclosure to Class Counsel of the identities and any known particulars (if permitted by law) of the key “key” former officers, directors, and employees of the Settling Defendants who witnessed and/or participated in conduct relevant to the alleged conspiracies;allegations in the Proceedings; and
(viiv) the identification and description of “key” documents possessed by the Settling Defendants in respect of conduct relevant to the alleged conspiracies and to the conduct of specific Defendants as requested and to the extent known, and, to the extent allegations in the Settling Defendants’ possession, the provision of copies of those documents to Class Counsel; and
(vii) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance that was provided by way of proffer to plaintiffs’ counsel in the U.S. LitigationProceedings.
(b) The method and meeting place of the oral evidentiary proffer shall be agreed upon between the Parties due having regard to the COVID-19 Pandemic and may be conducted virtually through a secure virtual meeting platform. The oral evidentiary proffer may last up to one full business day. Counsel for the Settling Defendants shall make themselves available for reasonable follow-up questions by Class Counsel. Class Counsel may request a meeting with Counsel for the Settling Defendants, which shall not exceed two (2) hours, for the purpose of discussing Class Counsel’s consolidated reasonable follow-up questions.
(c) Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants as part of the oral evidentiary proffer and follow-up questioning are privileged, will be kept strictly confidential, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court or unless there is an agreement between the Plaintiffs and the Settling Defendants to make such disclosure. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer or follow-up questioning to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use information obtained from the proffer and or follow-up questioning for their own internal use in connection with the prosecution of the Proceedings, including in confidential without prejudice settlement discussions with Non-Settling Defendants and for the purpose of developing the Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except in respect of the prosecution of any claims against Releasees; and (ii) rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a court orderorder sought and obtained by another person, the Plaintiffs shall not introduce any information from a proffer or follow-up questioning into the record or subpoena any Counsel for the Settling Defendants related to a profferproffer or follow-up questioning.
(2) It is understood that the evidentiary proffer and follow-up questioning described in Section 4.1(1) might take place before the Effective Date. In such event:
(a) any Documents or information provided in the course of that evidentiary proffer or follow-up questioning, including depictions of Documents, shall be subject to the terms and protections of this Settlement Agreement; and
(b) in the event that this Settlement Agreement is not approved, is terminated, or otherwise fails to take effect for any reason, the Documents and information provided during the evidentiary proffer or follow-up questioning shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a court. In order to give effect to this agreement, Class Counsel agrees to make reasonable efforts to return all copies of any Documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), the evidentiary proffer and follow- up questioning and to provide written confirmation to the Settling Defendants of having done so.
(3) Within thirty sixty (3060) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall make reasonable efforts to provide to Class Counsel, to the extent permitted by relevant protective or other court orders in the U.S. Litigation:
(a) copies of all Documents, together with any pre-existing translations of those Documents, produced by the Settling Defendants to the Canadian Competition Bureau, the U.S. Department of Justice, any other governmental antitrust authority, Justice and/or in the U.S. Litigation, all to be provided in electronic form if available. The U.S. Litigation Documents will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation and shall include any pre-existing and non-privileged electronic coding or metadata produced in the U.S. Litigation;
(b) any deposition transcripts for depositions of current or former employees, officers or directors of the Releasees produced by the Settling Defendants in the U.S. Litigation (including exhibits theretothereto which originated from the Settling Defendants), including deposition transcripts of any future depositions given by the Settling Defendants in the U.S. Litigation, all to be provided in electronic form if available and any pre-existing translations of the foregoing;
(c) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. LitigationLitigation and produced by the Settling Defendants, and any pre-existing translations; electronic copies of any responses to written interrogatories by the Releasees, including all schedules thereto, taken in the U.S. Litigation, and any pre-existing translations into English;
(d) any answers to interrogatories provided by the Settling Defendants in the U.S. Litigation and any pre-existing translations of the foregoing;
(e) electronic copies of any responses to requests to admit provided by the Releasees Settling Defendants in the U.S. Litigation and any pre-existing translations into English;
(f) disclosure of any finished Capacitor product dataset and Capacitor product demand forecast dataset procured and maintained by the Defendant Sanyo Electric Co., Ltd. including any such data compiled by any third party vendors for use by it and/or the alleged cartel participants during the Class Period;
(g) disclosure of all customer and sales data produced in the US LitigationU.S. Litigation by the Settling Defendants in addition to disclosure of customer and sales data concerning the Settling Defendants’ direct sales of Electrolytic Capacitors to customers in Canada during the Class Period. The Settling Defendants agree to provide reasonable assistance to Class Counsel and to answer reasonable questions in respect of the sales and customer data that is produced;
(hg) to the extent not included in the above, any relevant Documents that are specific to a summary of the Settling Defendants’ best information concerning its global sales and conduct regarding statistics for Electrolytic and Film Capacitors in Canada during the Class Period; and
(ih) disclosure to Class Counsel of any reasonably known general particulars of North American downstream uses of the extent not included in Settling Defendants’ Electrolytic Capacitors including the above, identity of major original equipment manufacturers reasonably known to the Settling Defendants shall provide to have purchased Electrolytic Capacitors which were incorporated into products sold in Canada within the Class Counsel all equivalent assistance and disclosure that was provided to plaintiffs’ counsel in the U.S. LitigationPeriod.
(4) Within thirty The disclosures contemplated by subsections 4.1(3)(g) and (30h) days after the Effective Date, or at a time mutually agreed upon and responses to questions contemplated by the Parties acting reasonably, subsection 4.1(3)(f) shall be given by way of oral evidentiary proffer by Counsel for the Settling Defendants shall provide to Class Counsel reasonable ongoing access to a member of the Settling Defendants’ external legal counsel team to answer Class Counsel’s reasonable questions relating and are subject to the Proceedings. Class Counsel’s access to external counsel as a knowledgeable representative of the Settling Defendants shall be equivalent terms and conditions set out in nature and scope to the access provided by the Settling Defendants in the U.S. Litigation. For greater certainty, the Settling Defendant’s obligation to provide the access begins no later than thirty (30) days after the Effective Date and shall continue on an ongoing basis until the Settling Defendants’ cooperation obligations cease per section 4.1(12subsection 4.1(1)(c).
(5) Within ninety (90) days of a request from Class Counsel, which shall not be made until the earlier of (i) a finalized discovery plan in the Ontario Electrolytic or Film Actions, as applicable, Capacitors Action or (ii) a finalized litigation protocol that provides for the production of documents in the Québec Action, unless it is otherwise agreed by the Parties that the request may be made on other reasonable grounds at an earlier time, the Settling Defendants agree to make reasonable efforts to provide:
(a) to the extent it is not produced under s. 4.1(3) and is reasonably available in electronic form, production of data pertaining to the Settling Defendants’ global sales of Electrolytic Capacitors and/or Film Capacitors, including information regarding the Settling Defendants’ sales of Electrolytic Capacitors and/or Film Capacitors in North America, specifically including all customer and sales data regarding sales of Electrolytic and Film Capacitors to Canadian customers, for the full duration of the Class Period plus two years before and after it and cost information associated with those sales;
(b) disclosure to Class Counsel of the identities and any known general particulars of the major global original equipment manufacturers reasonably known to the Settling Defendants that purchased Electrolytic Capacitors and/or Film Capacitors which were incorporated into products sold in Canada within the Class Period; and
(c) a reasonable amount of explanation, documentation and information possessed by and available to the Settling Defendants that reveal the details of the incorporation of Electrolytic Capacitors and/or Film Capacitors throughout the Settling Defendants’ vertically integrated chain of production into finished products sold in Canada by the Settling Defendants or any affiliated company during the Class Period. This information shall include reasonable and relevant documentation and information regarding a selection of some specific products or product categories sold by the Settling Defendants or their subsidiaries or related companies in Canada during the Class Period, including, but not limited to, product lists, costing and sales data. The Settling Defendants shall make available reasonable information to assist with the selection. The parties shall agree upon the selection acting reasonably.
(6) Within ninety (90) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants agree to the conduct of a witness interview by the Plaintiffs with one (1) current employee of the Settling Defendants with knowledge of conduct relevant to the alleged conspiracyallegations made in the Proceedings. The interview may last up to two (2) full business days and will occur by videoconference using a virtual meeting platform unless platform. If applicable COVID-19 related restrictions have been lifted and lifted, the Plaintiffs may seek to conduct the interview in such person, in which case the interview may will occur in person in Japan, unless Panasonic consents the Settling Defendants consent to an in-person interview outside of Japan. For greater certainty, the witness interview will mirror the process taken in the U.S. Litigation. The interview shall not be under oath, shall not be recorded and shall be subject to the terms and conditions set out in subsection 4.1(1)(c) as if the information provided by the witness in the interview was by way of proffer given by Counsel for the Settling Defendants. Costs incurred by, and the expenses of, the employee(s) of the Settling Defendants in relation to such interview, including any cost for a translator, shall be the responsibility of the Settling Defendants. Absent a court order sought and obtained by another person, the Plaintiffs shall not introduce any information obtained from the interview into the record or subpoena the witness to testify in respect of the content of the interview. If such employee refuses to provide information, or otherwise cooperate, the Settling Defendants shall use reasonable efforts to make him or her available for the interview, where “reasonable efforts” shall not include disciplining or terminating their employment. While the Plaintiffs may pursue enforcement of any or all of their rights to receive the witness interview and related cooperation under this clause, the failure of an employee to agree to make himself or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(76) The Settling Defendants agree to use reasonable efforts to make available one (1) individual to authenticate any of their Documents or data produced in accordance with subsections 4.1(1), (3) and (5subsection 4.1(3) to the extent the Settling Defendants can establish their authenticity and that the Plaintiffs Plaintiffs, acting reasonably, require their authentication for their admission and use at any point in the Proceedings.
(8) 7) The Settling Defendants agree to use reasonable efforts make available two one (21) current employees employee of the Settling Defendants with relevant knowledge of conduct relevant to the alleged conspiracy to provide affidavit or live testimonial evidence on the certification motion, summary judgment and/or at the trial or in such other circumstances allegations made in the litigation as Proceedings for the Parties may otherwise agree (in the Electrolytic Proceedings and the Film Proceedings)purposes of giving trial testimony solely by videoconference from his or her country of residence, to the extent that such evidence is reasonably required by the Plaintiffs, at a location . The Plaintiffs shall use reasonable efforts to arrange that such trial testimony be allowed to be mutually agreed upon as given by videoconference; however, if the circumstances require, and provided that Court does not agree to allow such witness’s travel trial testimony to and from the location of the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree is safe and permitted be received by applicable national, regional, and local laws, rules, and regulations regarding travel, and provided that the witness’s participation is subject to such witness’s right to refuse to travel to the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this paragraphvideoconference, the Parties shall Settling Defendants agree on another satisfactory means of obtaining to use reasonable efforts to make the witness’s evidencecurrent employee available to give in-person testimony at trial in Canada. The parties Parties agree to collaborate to minimize the costs and inconvenience incurred by, and the expenses of, the employee of the Settling Defendants in relation to providing such testimony, including any cost for a translator, and agree that Class Counsel the Plaintiffs shall assume these those costs. If such employee refuses to testify, the Settling Defendants shall use reasonable efforts to make him or her available to testify by videoconference or in-person, as the case may be, where “reasonable efforts” shall not include disciplining or terminating their employment. The failure of an employee to agree to make himself or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(9) 8) The obligation to produce and authenticate Documents produced pursuant to subsection 4.1(34.1(6) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendants to the Canadian Competition Bureau, the U.S. Department of Justice or in the context of the U.S. Litigation regarding Electrolytic Capacitors and/or Film Capacitors which are at issue in the Proceedings. Class Counsel and the Plaintiffs shall, in reference to this continuing obligation, consult with Counsel for the Settling Defendants and seek to utilize the least burdensome, costly and intrusive means for the Settling Defendants to discharge their obligation under this provision.
(109) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants, or any representative or employee of the Settling Defendants, to disclose or produce any Documents or information that is legally privileged or to disclose or produce any Documents or information in breach of any order, non-disclosure, privacy or confidentiality obligation, regulatory directive, rule or law of this or any jurisdiction, it being understood and agreed that no non-disclosure or confidentiality obligation applies or shall apply to prevent the productions contemplated by sections 4.1(1), (3), (5) and (6subsection 4.1(3).
(1110) If any of the Documents referenced in 4.1(10) section 4.1 are accidentally or inadvertently disclosed or produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used, directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such Documents.
(1211) The obligations of the Settling Defendants to cooperate as particularized in Section section 4.1 shall not be affected by the release provisions contained in Section section 7 of this Settlement Agreement. The obligations of the Settling Defendants to cooperate shall cease at the date ofof final judgment in the Proceedings as against all Defendants. For greater certainty, the Plaintiffs’ failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this section 4.1 is not a waiver of the cooperation rights granted by section 4.1.
(12) The cooperation obligations outlined herein are essential and material terms of the Settlement Agreement. Subject to subsections 4.1(5) and (7), if the Settling Defendants materially breach this Section, the Plaintiffs may move before the Courts to enforce the terms of this Settlement Agreement and may exercise any rights they have to seek or obtain testimony, discovery, information or Documents from current officers, directors and/or employees of the Settling Defendants.
(13) Subject to subsection 4.1(13), the provisions set forth in this subsection are the exclusive means by which the Plaintiffs and Class Counsel may obtain discovery, information or Documents from the Settling Defendants and other Releasees, including the officers, directors or employees of the Settling Defendants and other Releasees as at the Effective Date, and the Plaintiffs and Class Counsel agree t
Appears in 4 contracts
Sources: Settlement Agreement, Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within thirty (30) days after Following the Execution Date or at a time mutually agreed upon by the Parties acting reasonably, execution of this Settlement Agreement but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendants shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel counsel for the Settling Defendants, including their U.S. Litigation litigation counsel, which will set out the Settling Defendants’ ' relevant and non-privileged information derived from their investigation and factual inquiries in respect of the matters at issue in the Proceedings, including information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), including, without limitation:
(i) any information regarding , their knowledge of how the alleged electrolytic and film conspiracies were conspiracy was formed, implemented and enforced, including specific examples of methods employed by the Defendants in furtherance of the alleged conspiracy;
(ii) any information regarding the scope of the alleged conspiracies;
(iii) any information regarding the duration of the alleged conspiracies;
(iv) answers to Class Counsel’s questions and identification of the conduct, involvement, and role of each Defendant, to the extent known, in the alleged conspiracies, including Defendants tolled in the Proceedings;
(v) disclose to Class Counsel the identities and any known particulars (if permitted by law) of the key former officers, directors, and employees who witnessed and/or participated in the alleged conspiracies;
(vi) the identification and description of “key” documents relevant to the alleged conspiracies and to the conduct of specific Defendants as requested and to the extent known, and, to the extent in the Settling Defendants’ possession, the provision of copies of those documents to Class Counsel; and
(vii) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance that was provided by way of proffer to plaintiffs’ counsel in the U.S. Litigation.,
(b) The method the timing and meeting place location of the oral evidentiary proffer shall be agreed upon determined based on a reasonable agreement between the Parties due to Settling Defendants, the COVID-19 Pandemic Plaintiffs and may be conducted virtually through a secure virtual meeting platform. The oral evidentiary proffer may last up to one full business day. Counsel for the Settling Defendants shall make themselves available for reasonable follow-up questions by Class Parties’ Counsel.
(c) Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants as part of the oral evidentiary proffer are privileged, will be kept strictly confidential, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court or unless there is an agreement between the Plaintiffs and the Settling Defendants to make such disclosure. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use information obtained from the proffer in the prosecution of the Proceedings, including for the purpose of developing the Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a court order, the Plaintiffs shall not introduce any information from a proffer into the record or subpoena any Counsel for the Settling Defendants related to a proffer.
(2) It is understood that the evidentiary proffer described in Section 4.1(1) might take place before the Effective Date. In such event:
(a) any Documents or information provided in the course of that evidentiary proffer shall be subject to the terms and protections of this Settlement Agreement; and
(b) in the event that this Settlement Agreement is not approved, is terminated, or otherwise fails to take effect for any reason, the Documents and information provided during the evidentiary proffer shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a court. In order to give effect to this agreement, Class Counsel agrees to make reasonable efforts to return all copies of any Documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), the evidentiary proffer and to provide written confirmation to the Settling Defendants of having done so.
(3) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonablyParties, the Settling Defendants shall make reasonable efforts to shall:
(a) provide to Class Counsel:
(ai) copies of all Documents, together with any pre-existing translations ordinary course of those Documents, business Documents produced by the Settling Defendants to the Canadian Competition BureauU.S. DOJ, together with any translations of those Documents provided to the U.S. Department DOJ;
(ii) copies of Justice, all ordinary course of business Documents produced to any other governmental antitrust authorityforeign regulator with any English translations of those Documents provided to the foreign regulator, and/or in to the U.S. Litigationextent that any Documents falling into this category are not already disclosed pursuant to subsection 4.1(2)(a)(i);
(iii) sales data for the Settling Defendants of Film Capacitors, all by customer and by date, to be provided in electronic form if available. The U.S. Litigation Documents will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation and shall include any pre-existing and ;
(iv) all non-privileged electronic coding or metadata Documents produced in the U.S. Litigation;
(b) any deposition transcripts for depositions of current or former employees, officers or directors of the Releasees in the U.S. Litigation (including exhibits thereto), including deposition transcripts of any future depositions given by the Settling Defendants through discovery in the U.S. LitigationUS Proceedings, all to be provided in electronic form if available and any prewhich Documents would include non-existing translations privileged business documents of the foregoingSettling Defendants which are relevant to the alleged conspiracy;
(cv) electronic copies information regarding major customers of any declarations or affidavits of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations; electronic copies of any responses to written interrogatories by the Releasees, including all schedules thereto, taken in the U.S. Litigation, and any pre-existing translations into English;
(d) any answers to interrogatories provided by the Settling Defendants in the U.S. Litigation and any pre-existing translations of the foregoing;
(e) electronic copies of any responses to requests to admit provided by the Releasees in the U.S. Litigation and any pre-existing translations into English;
(f) disclosure of any finished Capacitor product dataset and Capacitor product demand forecast dataset procured and maintained by the Defendant Sanyo Electric Co., Ltd. including any such data compiled by any third party vendors for use by it and/or the alleged cartel participants during the Class Period;
(g) disclosure of all customer and sales data produced in the US Litigation. The Settling Defendants agree to provide reasonable assistance to Class Counsel and to answer reasonable questions in respect of the sales and customer data that is produced;
(h) to the extent not included in the above, any relevant Documents that are specific to the Settling Defendants’ sales and conduct regarding Electrolytic and Film Capacitors in Canada during the Class Periodspecifically including OEMs who manufacture finished products; and
(ivi) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance and disclosure that was provided to plaintiffs’ counsel in the U.S. Litigation.
(4) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall provide to Class Counsel reasonable ongoing access to a member list of the Settling Defendants’ external legal counsel team to answer Class Counsel’s reasonable questions relating top customers, broken out by OEMs and distributors, along with information, to the Proceedings. Class Counsel’s access to external counsel as a knowledgeable representative of extent the Settling Defendants shall be equivalent in nature and scope to have it, that shows what types of products the access provided by the Settling Defendants in the U.S. Litigation. For greater certainty, the Settling Defendant’s obligation to provide the access begins no later than thirty (30) days after the Effective Date and shall continue on an ongoing basis until customers make that incorporate the Settling Defendants’ cooperation obligations cease per section 4.1(12).
(5) Within ninety (90) days of a request from Class Counselcapacitors and, which shall not be made until to the earlier of (i) a finalized discovery plan in the Ontario Electrolytic or Film Actions, as applicable, or (ii) a finalized litigation protocol that provides for the production of documents in the Québec Action, unless it is otherwise agreed by the Parties that the request may be made on other reasonable grounds at an earlier time, extent the Settling Defendants agree to make reasonable efforts to provide:
(a) to the extent it is not produced under s. 4.1(3) and is reasonably available in electronic formknow, production of data pertaining to the Settling Defendants’ global sales of Electrolytic Capacitors and/or Film Capacitors, including information regarding the Settling Defendants’ sales of Electrolytic Capacitors and/or Film Capacitors in North America, specifically including all customer and sales data regarding sales of Electrolytic and Film Capacitors to Canadian customers, for the full duration of the Class Period plus two years before and after it and cost information associated with those sales;where such products are re-sold.
(b) disclosure make available, upon reasonable notice and subject to Class Counsel of the identities and any known general particulars of the major global original equipment manufacturers reasonably known legal restrictions, up to the Settling Defendants that purchased Electrolytic Capacitors and/or Film Capacitors which were incorporated into products sold in Canada within the Class Period; and
(c) a reasonable amount of explanation, documentation and information possessed by and available to the Settling Defendants that reveal the details of the incorporation of Electrolytic Capacitors and/or Film Capacitors throughout the Settling Defendants’ vertically integrated chain of production into finished products sold in Canada by the Settling Defendants or any affiliated company during the Class Period. This information shall include reasonable and relevant documentation and information regarding a selection of some specific products or product categories sold by the Settling Defendants or their subsidiaries or related companies in Canada during the Class Period, including, but not limited to, product lists, costing and sales data. The Settling Defendants shall make available reasonable information to assist with the selection. The parties shall agree upon the selection acting reasonably.
(6) Within ninety (90) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants agree to the conduct of a witness interview by the Plaintiffs with one (1) current employee two employees of the Settling Defendants with relevant knowledge of the alleged conspiracyfor a personal interview with Class Counsel and/or experts retained by Class Counsel at a mutually convenient time. The interview may last up employees shall be made available at a location to two (2) full business days and will occur by videoconference using a virtual meeting platform unless applicable COVID-19 related restrictions have been lifted and in such case be mutually agreed upon having respect for the interview may occur in person in Japancost to the Settling Defendants. Subject to subsection 4.1(2)(e), unless Panasonic consents to an in-person interview outside of Japan. For greater certainty, the witness interview will mirror the process taken in the U.S. Litigation. The interview shall not be under oath. Costs costs incurred by, and the expenses of, the employee(s) employees of the Settling Defendants in relation to such interview, including any cost for a translator, interviews shall be the responsibility of the Settling Defendants.. All other costs, including costs of an interpreter or expenses otherwise related to foreign language translation in connection with the interviews, shall be the responsibility of Class Counsel;
(7c) The Settling Defendants agree make available one employee to use reasonable efforts testify at the Plaintiff's certification motion and at trial to authenticate support the submission into evidence of any of their Documents or data produced in accordance with subsections 4.1(1), (3) and (5) to the extent information provided by the Settling Defendants can establish their authenticity pursuant to this Settlement Agreement and that to provide authentication and foundation for documents to be used in connection with the Plaintiffs require their authentication for their admission and use at any point in the Proceedings.
(8) The Settling Defendants agree to make available two (2) current employees prosecution of the case against the Non-Settling Defendants with relevant knowledge of the alleged conspiracy Defendants. Subject to provide affidavit or live testimonial evidence on the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree (in the Electrolytic Proceedings and the Film Proceedingssubsection 4.1(2)(e), to the extent that such evidence is required by the Plaintiffs, at a location to be mutually agreed upon as the circumstances require, and provided that such witness’s travel to and from the location of the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree is safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and provided that the witness’s participation is subject to such witness’s right to refuse to travel to the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this paragraph, the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The parties agree to collaborate to minimize the costs incurred by, and the expenses of, the employee of the Settling Defendants in relation to such testimonytestimony shall be the responsibility of the Settling Defendants;
(d) the Parties shall make reasonable efforts to minimize the Settling Defendants’ costs in providing the cooperation referenced in subsections 4.1(2)(b) and (c) by, including any cost for a translatorinter alia, attempting to coordinate the travel contemplated in such subsections to correspond with the cooperation based travel obligations arising from the settlement reached by the Settling Defendants and the plaintiffs in the U.S. Proceedings, to the extent that the Parties agree that Class Counsel such coordination is viable; and
(e) Notwithstanding anything to the contrary in this Settlement Agreement, the Settling Defendants shall assume these costsbe responsible for no more than CDN $30,000 in travel costs for providing the cooperation referenced in subsections 4.1(2)(b) and (c). Travel costs reasonably incurred in excess of this amount shall be the responsibility of the Plaintiffs.
(93) The obligation to produce and authenticate Documents produced pursuant to subsection 4.1(34.1(2)(a)(i) and (ii) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendants to the Canadian Competition BureauU.S. DOJ, or any foreign governmental regulator relevant to the U.S. Department of Justice or in the context of the U.S. Litigation alleged conspiracy regarding Electrolytic Capacitors and/or Film Capacitors which are is at issue in the Proceedings. Class Counsel .
(4) Subject to the rules of evidence and the Plaintiffs shallany other provisions of this Settlement Agreement, in reference to this continuing obligation, consult with Counsel for the Settling Defendants agree to use reasonable efforts to authenticate for use at trial, discovery, summary judgment motions and/or certification/authorization motions, any of the Documents and seek information provided as cooperation pursuant to utilize subsection 4.1 of this Settlement Agreement and, to the least burdensomeextent possible, costly and intrusive means for any Documents produced by other Defendants in connection with the Proceedings that were received by or originated from the Settling Defendants, provided that the Plaintiffs will work to minimize any burden on the Settling Defendants pursuant to discharge their this obligation under including by, inter alia, endeavouring to deal with authentication issues by consent among the parties who remain in the proceedings so that this provisionburden would not be imposed on Okaya unless, and only to the extent that, it is necessary.
(105) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants, or any representative or employee of the Settling Defendants, to disclose or produce any Documents or information that is legally privileged prepared by or for counsel for the Settling Defendants or to disclose or produce any Documents or information in breach of any order, non-disclosure, privacy or confidentiality obligation, regulatory directive, rule or law of this or any jurisdiction, it being understood and agreed or subject to solicitor-client privilege, litigation privilege, work product doctrine, common interest privilege, attorney-client privilege, joint defence privilege or any other privilege, or to disclose or produce any information or Documents the Settling Defendants obtained on a privileged or cooperative basis from any party to any action or proceeding who is not a Releasee. Moreover, nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants, or any representative or employee of the Settling Defendants, to disclose or produce any confidential Documents or information that no non-the Settling Defendants hold under commercial arrangements where such disclosure or confidentiality obligation applies or shall apply to prevent production would potentially result, in the productions contemplated by sections 4.1(1)reasonable judgment of the Settling Defendants and their counsel, (3), (5) and (6)in a breach of contract.
(116) If any of the types of Documents referenced in 4.1(10subsection 4.1(5) are accidentally or inadvertently disclosed or producedproduced by the Settling Defendants to the Plaintiffs or Class Counsel, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used, directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such Documents.
(127) The obligations of the Settling Defendants to cooperate as particularized in Section this subsection 4.1 shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. The obligations of the Settling Defendants to cooperate shall cease at the date of final judgment in the Proceedings as against all Defendants.
(8) If the Settling Defendants materially breach this Section 4.1, the Plaintiffs may move before the Courts to enforce the terms of this Settlement Agreement or set aside the approval of the Settlement Agreement or a part thereof. Additionally, if the Settling Defendants are unable to provide the cooperation referred to in subsection 4.1(2)(b) and (c), the Plaintiffs may exercise any rights they have to seek to obtain testimony at trial from the current and former officers, directors and/or employees of the Settling Defendants and Releasees, for the exclusive purpose of assisting the Plaintiffs with the prosecution of the case against the Non-Settling Defendants.
(9) Subject to subsection 4.1(8), the provisions set forth in this subsection 4.1 are the exclusive means by which the Plaintiffs and Class Counsel may obtain discovery, information or Documents from the Settling Defendants and other Releasees or their current or former officers, directors or employees, and the Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants and the other Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(10) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, or duplicative and agree otherwise to avoid imposing undue or unreasonable burdens or expense on the Settling Defendants.
Appears in 3 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement, Class Action Settlement Agreement
Extent of Cooperation. (1) Within thirty (30) days after the Execution Date or at a time mutually agreed upon by the Parties acting reasonably, but prior to the settlement approval motions contemplated in subsection 2.3hearing of the first motion to approve the Settlement Agreement, the Settling Defendants shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel for the Settling Defendants, including (if so elected by the Settling Defendants) their U.S. Litigation counsel, which will set out the Settling Defendants’ relevant and non-privileged information derived from their any investigation and factual inquiries made by them in respect of the matters at issue in the Proceedings, including information including, to the extent applicable, derived from business records, testimonial transcripts and employee or witness interviews (if applicable)interviews. The proffer will include, includingto the extent such matters are within the Settling Defendants’ knowledge/possession and are readily accessible, without limitationand disclosure is not otherwise prohibited by law:
(i) any information regarding how the alleged electrolytic and film conspiracies were conspiracy was formed, implemented and enforced, including specific examples of methods employed by the Defendants in furtherance of the alleged conspiracy;
(ii) any information regarding the scope duration of the alleged conspiraciesconspiracy;
(iii) any information regarding the duration of the alleged conspiracies;
(iv) answers to Class Counsel’s questions and identification of the conduct, involvement, and role of each Defendant, to the extent known, products involved in the alleged conspiracies, including Defendants tolled in conspiracy and the Proceedings;
(v) disclose to Class Counsel the identities and any known particulars (if permitted by law) source of the key former officers, directors, and employees who witnessed and/or participated in the alleged conspiracies;
(vi) the identification and description of “key” documents relevant to the alleged conspiracies and to the conduct of specific Defendants as requested and to the extent known, that information and, to the extent in the Settling Defendants’ possession, the provision of copies of any readily available source documents to Class Counsel;
(iv) answers to Class Counsel’s questions about, and identification of, the conduct, involvement, and role of each Defendant (including any Defendant against whom the action has been tolled), in the alleged conspiracy;
(v) disclosure to Class Counsel of the identities and any known particulars of the key former officers, directors, and employees of the Settling Defendants, if any, who witnessed and/or participated in the alleged conspiracy; and,
(vi) the identification of “key” documents relevant to the alleged conspiracy in Canada and to the conduct of specific Defendants as requested, and the provision of copies of those documents to Class Counsel; and
(vii) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance that was provided by way of proffer to plaintiffs’ counsel in the U.S. Litigation.
(b) The method and meeting place of the oral evidentiary proffer shall be agreed upon between the Parties due to Parties, in light of the COVID-19 Pandemic Pandemic, and may be conducted virtually through a secure virtual meeting platform. The oral evidentiary proffer may last up to one full business day. Counsel for the Settling Defendants shall make themselves available for reasonable follow-up questions by Class CounselCounsel arising out of the oral evidentiary proffer and made promptly thereafter up to a maximum of 2 hours.
(c) Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants as part of the oral evidentiary proffer are privileged, will be kept strictly confidential, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court or unless there is an agreement between the Plaintiffs and the Settling Defendants to make such disclosureCourt. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use information obtained from the proffer in the prosecution of the Proceedings, including for the purpose of developing the Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a court order, the Plaintiffs shall not introduce any information from a proffer into the record or subpoena any Counsel for the Settling Defendants related to a profferDefendants.
(2) It is understood that the oral evidentiary proffer described in Section 4.1(1) might take place before the Effective Date. In such event:
(a) any Documents or information provided in the course of that evidentiary proffer shall be subject to the terms and protections of this Settlement Agreement; and
(b) in the event that this Settlement Agreement is not approved, is terminated, or otherwise fails to take effect for any reason, the Documents and information provided during the evidentiary proffer shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants Defendants, as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a courtCourt. In order to give effect to this agreement, Class Counsel agrees to make reasonable efforts to return all copies of any Documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), the evidentiary proffer and to provide written confirmation to the Settling Defendants of having done so.
(3) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall make reasonable efforts to provide to Class Counsel:
(a) copies of all Documents, including transactional data, together with any pre-pre- existing translations of those Documents, that were produced by the Settling Defendants to the Canadian Competition Bureau, the U.S. Department of Justice, any other governmental antitrust authority, Justice and/or in the U.S. Litigation, all to be provided in electronic form if available. The Documents produced in the U.S. Litigation Documents Litigation, to the Canadian Competition Bureau and/or to the U.S. Department of Justice will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation Litigation, in respect of the Canadian Competition Bureau and/or the U.S. Department of Justice and shall include include, where available, any pre-existing and non-privileged electronic coding or metadata produced in the U.S. Litigation, to the Canadian Competition Bureau and/or the U.S. Department of Justice. The Settling Defendants agree to answer, to the extent answers are readily known or can be reasonably ascertained at the time the questions are asked, reasonable questions from Class Counsel in respect of any transactional data that is provided pursuant to this sub-section;
(b) copies of any deposition transcripts for depositions of current or former employees, officers or directors of the Releasees Settling Defendants that were taken in the U.S. Litigation (including exhibits thereto), including deposition transcripts of any future depositions given by the Settling Defendants in the U.S. Litigation, all to be provided in electronic form if available and any pre-existing translations of the foregoing;
(c) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the ReleaseesSettling Defendants, including all exhibits thereto, that were taken in the U.S. Litigation, and any pre-existing translations; electronic copies of any responses to written interrogatories by the ReleaseesSettling Defendants, including all schedules thereto, taken that were provided in the U.S. Litigation, and any pre-existing translations into English;
(d) electronic copies of any answers responses to interrogatories requests to admit that were provided by the Settling Defendants in the U.S. Litigation and any pre-existing translations of the foregoing;into English;and
(e) electronic copies disclosure of any responses the Settling Defendants’ largest 15 customers globally (by volume of Linear Resistors commerce) and its volume of sales to requests them for the period 2001- 2016, to admit provided by the Releasees in the U.S. Litigation extent such information exists and any pre-existing translations into English;is reasonably available; and
(f) disclosure of any finished Capacitor product dataset and Capacitor product demand forecast dataset procured and maintained by the Defendant Sanyo Electric Co., Ltd. including any such data compiled by any third party vendors for use by it and/or identities of the alleged cartel participants during major global original equipment manufacturers that purchased Linear Resistors that were incorporated into products sold to customers in Canada within the Class Period;
(g) disclosure of all customer and sales data produced in the US Litigation. The Settling Defendants agree to provide reasonable assistance to Class Counsel and to answer reasonable questions in respect of the sales and customer data that is produced;
(h) , to the extent not included in the above, any relevant Documents that are specific to such information is within the Settling Defendants’ sales knowledge and conduct regarding Electrolytic and Film Capacitors in Canada during the Class Period; and
(i) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance and disclosure that was provided to plaintiffs’ counsel in the U.S. Litigationreasonably available.
(4) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall provide to Class Counsel reasonable ongoing access to a member of the Settling Defendants’ external legal counsel team to answer Class Counsel’s reasonable questions relating to the Proceedings. Class Counsel’s access to external counsel as a knowledgeable representative of the Settling Defendants shall be equivalent in nature and scope to the access provided by the Settling Defendants in the U.S. Litigation. For greater certainty, the Settling Defendant’s obligation to provide the access begins no later than thirty (30) days after the Effective Date and shall continue on an ongoing basis until the Settling Defendants’ cooperation obligations cease per section 4.1(12).
(5) Within ninety (90) days of a request from Class Counsel, which shall not to be made until the earlier of (i) Proceedings are certified or authorized on a finalized discovery plan in contested basis against the Ontario Electrolytic or Film Actions, as applicable, or (ii) a finalized litigation protocol that provides for the production of documents in the Québec Action, unless it is otherwise agreed by the Parties that the request may be made on other reasonable grounds at an earlier time, the Settling Defendants agree to make reasonable efforts to provide:
(a) to the extent it is not produced under s. 4.1(3) and is reasonably available in electronic form, production of data pertaining to the Non-Settling Defendants’ global sales of Electrolytic Capacitors and/or Film Capacitors, including information regarding the Settling Defendants’ sales of Electrolytic Capacitors and/or Film Capacitors in North America, specifically including all customer and sales data regarding sales of Electrolytic and Film Capacitors to Canadian customers, for the full duration of the Class Period plus two years before and after it and cost information associated with those sales;
(b) disclosure to Class Counsel of the identities and any known general particulars of the major global original equipment manufacturers reasonably known to the Settling Defendants that purchased Electrolytic Capacitors and/or Film Capacitors which were incorporated into products sold in Canada within the Class Period; and
(c) a reasonable amount of explanation, documentation and information possessed by and available to the Settling Defendants that reveal the details of the incorporation of Electrolytic Capacitors and/or Film Capacitors throughout the Settling Defendants’ vertically integrated chain of production into finished products sold in Canada by the Settling Defendants or any affiliated company during the Class Period. This information shall include reasonable and relevant documentation and information regarding a selection of some specific products or product categories sold by the Settling Defendants or their subsidiaries or related companies in Canada during the Class Period, including, but not limited to, product lists, costing and sales data. The Settling Defendants shall make available reasonable information to assist with the selection. The parties shall agree upon the selection acting reasonably.
(6) Within ninety (90) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants agree to make reasonable efforts to provide, to the conduct extent not already provided under Section 4.1(3)(a) and to the extent such information exists and is reasonably available, sales transactional data for the Settling Defendants’ sales of Linear Resistors in North America for the Class Period plus two years before and after it, and information about the costs of those sales and/or the input costs of production of the Linear Resistors that are the subject of those sales.
(5) If not otherwise provided pursuant to this agreement, within thirty (30) days of a witness interview request from Class Counsel, not to be made until Class Counsel proposes to distribute funds to Settlement Class Members through the Distribution Protocol, or at a time mutually agreed upon by the Plaintiffs with Parties acting reasonably, the Settling Defendants agree to use reasonable efforts to provide their best information, if any, regarding the finished products containing Linear Resistors manufactured by them that were sold in Canada during the Class Period.
(6) The Documents to be delivered pursuant to Section 4.1(3)(b)-(3)(f) shall be delivered as a separate production from the Documents to be delivered pursuant to Section 4.1(3)(a) or identified by ▇▇▇▇▇ number as part of the production of Documents to be delivered pursuant to Section 4.1(3)(a).
(7) If requested by Class Counsel, the Settling Defendants agree to make reasonable efforts to produce one (1) current employee of the Settling Defendants with who has relevant knowledge of the alleged conspiracyconspiracy for a video or telephone interview, within sixty (60) days after the Effective Date or at a time mutually agreed upon by the Parties. The interview may last up to two (2) full business days and Counsel for the Settling Defendants will occur by videoconference using a virtual meeting platform unless applicable COVID-19 related restrictions have been lifted and participate in such case the interview may occur in person in Japan, unless Panasonic consents to an in-person interview outside of Japan. For greater certainty, the witness interview will mirror the process taken in the U.S. Litigation. The interview which shall not be under oathoath but may be recorded by electronic means, provided the Plaintiffs so elect and provide thirty (30) days advance notice to Counsel for the Settling Defendants of such election. Costs incurred by, and the expenses of, the employee(s) employee of the Settling Defendants in relation to any such interview, including any cost for a translator, shall be the responsibility of the Settling Defendants. The interview date and time shall be mutually agreed upon by the Parties acting reasonably.
(7) The 8) If requested by Class Counsel, the Settling Defendants agree to use make reasonable efforts to to:
(a) authenticate any of their Documents or data produced in accordance with subsections 4.1(1), (3) and (5subsection 4.1(3) to the extent the Settling Defendants can establish their authenticity and that the Plaintiffs require their authentication for their admission and use at any point in during the merits stage of the Proceedings.; and
(8) The Settling Defendants agree to b) make available two (2) one current employees employee, officer or director of the Settling Defendants with who has relevant knowledge of the alleged conspiracy conspiracy, to provide affidavit affiant or live testimonial evidence on the certification motion, a summary judgment motion and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree (in the Electrolytic Proceedings and the Film Proceedings)agree, to the extent that such evidence is required by the Plaintiffs, at a location and in a format to be mutually agreed upon as the circumstances require, and provided that such witness’s travel to and from the location of the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree is safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and provided that the witness’s participation is subject to such witness’s right to refuse to travel to the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this paragraph, the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The parties Parties agree to collaborate to minimize the costs incurred by, and the expenses of, the employee of the Settling Defendants in relation to such testimony, including any cost for a translator, and agree that Class Counsel shall assume these costs.
(9) The obligation to produce and authenticate Documents produced pursuant to subsection 4.1(3) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendants to the Canadian Competition Bureau, Bureau or the U.S. Department of Justice or in the context of the U.S. Litigation regarding Electrolytic Capacitors and/or Film Capacitors which are at issue in the ProceedingsJustice. Class Counsel and the Plaintiffs shall, in reference to this continuing obligation, consult with Counsel for the Settling Defendants and seek to utilize the least burdensome, costly and intrusive means for the Settling Defendants to discharge their obligation under this provision.
(10) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants, or any representative or employee of the Settling Defendants, to disclose or produce any Documents or information that is legally privileged or to disclose or produce any Documents or information in breach of any order, non-disclosure, privacy or confidentiality obligation, regulatory directive, rule or law of this or any jurisdiction, it being understood and agreed that no non-disclosure or confidentiality obligation applies or shall apply to prevent the productions contemplated by sections 4.1(1), (3), (5) and (6).
(11) If any of the Documents referenced in 4.1(10) are accidentally or inadvertently disclosed or produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used, directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such Documents.
(12) The obligations of the Settling Defendants to cooperate as particularized in Section 4.1 shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. The obligations of the Settling Defendants to cooperate shall cease at the date of final judgment in the Proceedings as against all Defendants, except in respect of the obligations in Section 4.1(5) which shall cease one year from the date of final judgment in the Proceedings as against all Defendants.
(13) If the Settling Defendants materially breach this Section 4.1, the Plaintiffs may move before the Courts to enforce the terms of this Settlement Agreement or set aside the approval of the Settlement Agreement or a part thereof. In addition, if the Settling Defendants are unable to provide the cooperation referred to in 4.1(7) or 4.1(8)(b), the Plaintiffs may exercise any rights they have to seek or obtain testimony at trial from current or former officers, directors and/or employees of the Settling Defendants.
(14) Subject to subsection 4.1(13), the provisions set forth in this subsection 4.1 are the exclusive means by which the Plaintiffs and Class Counsel may obtain discovery, information or Documents from the Settling Defendants and other Releasees, including their future, current and former officers, directors or employees, and the Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants and the other Releasees or their future, current and former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of any Canadian or foreign jurisdiction.
(15) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary or duplicative and agree otherwise to avoid imposing undue or unreasonable burdens or expense on the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation.
(1) Within thirty (30) days after the Execution Date or at a time mutually agreed upon by the Parties acting reasonably, but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendants shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel for the Settling Defendants, including their U.S. Litigation counsel, which will set out the Settling Defendants’ relevant and non-privileged information derived from their investigation and factual inquiries in respect of the matters at issue in the Proceedings, including information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), including, without limitation:
(i) any information regarding how the alleged electrolytic and film conspiracies were conspiracy was formed, implemented and enforced, including specific examples of methods employed by the Defendants in furtherance of the alleged conspiracy;
(ii) any information regarding the scope duration of the alleged conspiraciesconspiracy;
(iii) any information regarding the duration of products involved in the alleged conspiraciesconspiracy and the source of that information, and, to the extent in the Settling Defendants’ possession, the provision of copies of those source documents to Class Counsel;
(iv) answers to Class Counsel’s questions and identification of the conduct, involvement, and role of each Defendant, to the extent known, in the alleged conspiracies, including Defendants tolled in the Proceedingsconspiracy;
(v) disclose to Class Counsel the identities and any known particulars (if permitted by law) of the key former officers, directors, and employees who witnessed and/or participated in the alleged conspiracies;conspiracy; and,
(vi) the identification and description of “key” documents relevant to the alleged conspiracies conspiracy in Canada and to the conduct of specific Defendants as requested and to the extent known, and, to the extent in the Settling Defendants’ possession, the provision of copies of those documents to Class Counsel; and
(vii) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance that was provided by way of proffer to plaintiffs’ counsel in the U.S. Litigation.
(b) The method and meeting place of the oral evidentiary proffer shall be agreed upon between the Parties due to the COVID-19 Pandemic and may be conducted virtually through a secure virtual meeting platform. The oral evidentiary proffer may last up to one full business day. Counsel for the Settling Defendants shall make themselves available for reasonable follow-up questions by Class Counsel.
(c) Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants as part of the oral evidentiary proffer are privileged, will be kept strictly confidential, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court or unless there is an agreement between the Plaintiffs and the Settling Defendants to make such disclosureCourt. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use information obtained from the proffer in the prosecution of the Proceedings, including for the purpose of developing the Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a court order, the Plaintiffs shall not introduce any information from a proffer into the record or subpoena any Counsel for the Settling Defendants related to a proffer.
(2) It is understood that the evidentiary proffer described in Section 4.1(1) might take place before the Effective Date. In such event:
(a) any Documents or information provided in the course of that evidentiary proffer shall be subject to the terms and protections of this Settlement Agreement; and
(b) in the event that this Settlement Agreement is not approved, is terminated, or otherwise fails to take effect for any reason, the Documents and information provided during the evidentiary proffer shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a courtCourt. In order to give effect to this agreement, Class Counsel agrees to make reasonable efforts to return all copies of any Documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), the evidentiary proffer and to provide written confirmation to the Settling Defendants of having done so.
(3) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall make reasonable efforts to provide to Class Counsel:
(a) copies of all Documents, together with any pre-existing translations of those Documents, produced by the Settling Defendants to the Canadian Competition Bureau, the U.S. Department of Justice, any other governmental antitrust authority, Justice and/or in the U.S. Litigation, all to be provided in electronic form if available. The U.S. Litigation Documents will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation and shall include any pre-existing and non-privileged electronic coding or metadata produced in the U.S. Litigation;
(b) any deposition transcripts for depositions of current or former employees, officers or directors of the Releasees in the U.S. Litigation (including exhibits thereto), including deposition transcripts of any future depositions given by the Settling Defendants in the U.S. Litigation, all to be provided in electronic form if available and any pre-existing translations of the foregoing;
(c) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations; electronic copies of any responses to written interrogatories by the Releasees, including all schedules thereto, taken in the U.S. Litigation, and any pre-existing translations into English;
(d) any answers to interrogatories provided by the Settling Defendants in the U.S. Litigation and any pre-existing translations of the foregoing;
(e) electronic copies of any responses to requests to admit provided by the Releasees in the U.S. Litigation and any pre-existing translations into English;
(f) disclosure of any finished Capacitor product dataset and Capacitor product demand forecast dataset procured and maintained by the Defendant Sanyo Electric Co., Ltd. including any such data compiled by any third party vendors for use by it and/or the alleged cartel participants during the Class Period;
(ge) disclosure of all customer and sales data produced in the US Litigationlitigation. The Settling Defendants agree to provide reasonable assistance to Class Counsel and to answer reasonable questions in respect of the sales and customer data that is produced;
(h) to the extent not included in the above, any relevant Documents that are specific to the Settling Defendants’ sales and conduct regarding Electrolytic and Film Capacitors in Canada during the Class Period; and
(if) disclosure to Class Counsel the extent not included in identities and any known particulars of the above, major global original equipment manufacturers reasonably known to the Settling Defendants shall provide that purchased Linear Resistors that were incorporated into products sold to customers in Canada within the Class Counsel all equivalent assistance and disclosure that was provided to plaintiffs’ counsel in the U.S. LitigationPeriod.
(4) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall provide to Class Counsel reasonable ongoing access to a member of the Settling Defendants’ external legal counsel team to answer Class Counsel’s reasonable questions relating to the Proceedings. Class Counsel’s access to external counsel as a knowledgeable representative of the Settling Defendants shall be equivalent in nature and scope to the access provided by the Settling Defendants in the U.S. Litigation. For greater certainty, the Settling Defendant’s obligation to provide the access begins no later than thirty (30) days after the Effective Date and shall continue on an ongoing basis until the Settling Defendants’ cooperation obligations cease per section 4.1(12).
(5) Within ninety (90) days of a request from Class Counsel, which shall not to be made until the earlier of (i) Proceedings are certified or authorized on a finalized discovery plan in contested basis against the Ontario Electrolytic or Film Actions, as applicable, or (ii) a finalized litigation protocol that provides for the production of documents in the Québec Action, unless it is otherwise agreed by the Parties that the request may be made on other reasonable grounds at an earlier timeNon-Settling Defendants, the Settling Defendants agree to make reasonable efforts to provide:
(a) to the extent it is not produced under s. 4.1(3) and is reasonably available in electronic form, production of data pertaining to the Settling Defendants’ global sales of Electrolytic Capacitors and/or Film Capacitors, including information regarding the Settling Defendants’ sales of Electrolytic Capacitors and/or Film Capacitors in North America, specifically including all customer and sales data regarding sales of Electrolytic and Film Capacitors to Canadian customers, for the full duration of the Class Period plus two years before and after it and cost information associated with those sales;
(b) disclosure to Class Counsel of the identities and any known general particulars of the major global original equipment manufacturers reasonably known to the Settling Defendants that purchased Electrolytic Capacitors and/or Film Capacitors which were incorporated into products sold in Canada within the Class Period; and
(c) a reasonable amount of explanation, documentation and information possessed by and available to the Settling Defendants that reveal the outlines and/or details of the incorporation of Electrolytic Capacitors and/or Film Capacitors throughout the Settling Defendants’ vertically integrated chain of production into finished products containing Linear Resistors sold in Canada by the Settling Defendants or any affiliated company during the Class Period. This information shall include reasonable and relevant documentation and information regarding a selection of some specific Period including such products or product categories sold by the Settling Defendants or their subsidiaries or related companies in Canada during the Class Period, including, but not limited to, product lists, costing bids and actual sales data. The ; and
(b) to the extent not already provided under Section 4.1(3)(e), additional sales information regarding the Settling Defendants shall make available reasonable Defendants’ sales of Linear Resistors in North America for the full duration of the Class Period plus two years before and after it and cost information to assist associated with the selection. The parties shall agree upon the selection acting reasonablythose sales.
(65) Within ninety thirty (9030) days after of a request from Class Counsel, not to be made until Class Counsel proposes to distribute funds to Settlement Class Members through the Effective Date, or at a time mutually agreed upon by the Parties acting reasonablyDistribution Protocol, the Settling Defendants agree to the conduct use reasonable efforts to provide a list of a witness interview finished products containing Linear Resistors sold by the Plaintiffs Settling Defendants in Canada during the Class Period, the names and contact information for the purchasers of those finished products, and the total units sold and revenues associated with the sale of those finished products.
(6) The Documents to be delivered pursuant to Section 4.1(3)(b)-(3)(f) shall be delivered as a separate production from the Documents to be delivered pursuant to Section 4.1(3)(a) or identified by ▇▇▇▇▇ number as part of the production of Documents to be delivered pursuant to Section 4.1(3)(a).
(7) If requested by Class Counsel, the Settling Defendants agree to provide a voluntary video or telephone interview with Counsel for the Settling Defendants and one (1) current employee of the Settling Defendants with knowledge of the alleged conspiracyconspiracy within sixty (60) days after the Proceedings have been certified on a contested basis. The interview may last up to two (2) full business days and will occur by videoconference using a virtual meeting platform unless applicable COVID-19 related restrictions have been lifted and in such case the interview may occur in person in Japan, unless Panasonic consents to an in-person interview outside of Japan. For greater certainty, the witness interview will mirror the process taken in the U.S. Litigation. The voluntary interview shall not be under oathoath but may be recorded by electronic means, provided the Plaintiffs so elect, and provided reasonable advanced notice of no less than thirty (30) days is given to the Settling Defendants. Costs incurred by, and the expenses of, the employee(s) of the Settling Defendants in relation to such interview, including any cost for a translator, shall be the responsibility of the Settling Defendants. The interview time shall be on a date mutually agreed upon by the Parties acting reasonably.
(7) 8) The Settling Defendants agree to use reasonable efforts to to:
(a) authenticate any of their Documents or data produced in accordance with subsections 4.1(1), (3) and (5subsection 4.1(3) to the extent the Settling Defendants can establish their authenticity and that the Plaintiffs require their authentication for their admission and use at any point in the Proceedings.; and
(8) The Settling Defendants agree to b) make available two (2) one current employees employee, officer or director of the Settling Defendants with relevant knowledge of the alleged conspiracy to provide affidavit affiant or live testimonial evidence on the certification motion, summary judgment and/or or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree (in the Electrolytic Proceedings and the Film Proceedings)agree, to the extent that such evidence is required by the Plaintiffs, at a location to be mutually agreed upon as the circumstances require, and provided that such witness’s travel to and from the location of the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree is safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and provided that the witness’s participation is subject to such witness’s right to refuse to travel to the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this paragraph, the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The parties agree to collaborate to minimize in respect of the costs incurred by, and the expenses of, the employee of the Settling Defendants in relation to such testimony, including any cost for a translator, and agree that Class Counsel shall assume these costs.
(9) The obligation to produce and authenticate Documents produced pursuant to subsection 4.1(3) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendants to the Canadian Competition Bureau, the U.S. Department of Justice or in the context of the U.S. Litigation regarding Electrolytic Capacitors and/or Film Capacitors Linear Resistors which are is at issue in the Proceedings. Class Counsel and the Plaintiffs shall, in reference to this continuing obligation, consult with Counsel for the Settling Defendants and seek to utilize the least burdensome, costly and intrusive means for the Settling Defendants to discharge their obligation under this provision.
(10) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants, or any representative or employee of the Settling Defendants, to disclose or produce any Documents or information that is legally privileged or to disclose or produce any Documents or information in breach of any order, non-disclosure, privacy or confidentiality obligation, regulatory directive, rule or law of this or any jurisdiction, it being understood and agreed that no non-disclosure or confidentiality obligation applies or shall apply to prevent the productions contemplated by sections section 4.1(1), (3), (5) and (64).
(11) If any of the Documents referenced in 4.1(10) are accidentally or inadvertently disclosed or produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used, directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such Documents.
(12) The obligations of the Settling Defendants to cooperate as particularized in Section 4.1 shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. The obligations of the Settling Defendants to cooperate shall cease at the date of final judgment in the Proceedings as against all Defendants. For greater certainty, the Plaintiffs’ failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this Section 4.1 is not a waiver of the cooperation rights granted by Section 4.1.
(13) If the Settling Defendants materially breach this Section 4.1, the Plaintiffs may move before the Courts to enforce the terms of this Settlement Agreement or set aside the approval of the Settlement Agreement or a part thereof, and may exercise any rights they have to seek or obtain testimony, discovery, information or Documents from current officers, directors and/or employees of the Settling Defendants.
(14) Subject to subsection 4.1(13), the provisions set forth in this subsection 4.1 are the exclusive means by which the Plaintiffs and Class Counsel may obtain discovery, information or Documents from the Settling Defendants and other Releasees, including the officers, directors or employees of the Settling Defendants and other Releasees as at the Effective Date, and the Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants and the other Releasees or their current officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of any Canadian or foreign jurisdiction.
(15) For greater clarity, the Plaintiffs do not in any case waive any rights they have to seek or obtain testimony, discovery, information or Documents from those officers, directors and/or employees of the Settling Defendants and other Releasees who, as at the Effective Date, are former officers, directors and/or employees of the Settling Defendants and other Releasees.
Appears in 1 contract
Sources: Settlement Agreement