Extent of Cooperation. (1) Within ninety (90) days of the Effective Date, or at a time mutually agreed upon by the Parties, provided that Class Counsel confirms that the requests are required in good faith as reasonably necessary for the prosecution of the proceeding at trial (or summary judgment), and subject to any confidentiality order in the BC Action and the other provisions of this Settlement Agreement, the Settling Defendants shall, only insofar as such production is not prohibited by law, use reasonable efforts to provide to Class Counsel: (a) electronic copies of any Documents (including transactional data) that were produced in the U.S. Litigation by the Settling Defendants including, but not limited to, any such Documents provided to U.S. plaintiffs pursuant to any U.S. Settlement Agreements, and any pre-existing translations of such documents; (b) electronic copies of transcripts of all depositions or other testimony of current or former employees, officers or directors of the Settling Defendants taken in the U.S. Litigation, including (to the extent they form part of the transcripts or can otherwise be readily located) all exhibits originating from the Settling Defendants, any pre-existing translations, corresponding errata sheets, and confidentiality designation letters, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a); (c) electronic copies of any responses to written interrogatories by the Settling Defendants in the U.S. Litigation, including all schedules thereto and any pre- existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a); (d) electronic copies of any responses to requests to admit by the Settling Defendants in the U.S. Litigation, including all schedules thereto and any pre-existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a); (e) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Settling Defendants, including all schedules thereto and any pre-existing translations of those declarations or affidavits, in the U.S. Litigation or produced in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a); and (f) reasonable assistance in understanding the transactional sales and cost data produced by the Settling Defendants pursuant to Section 4.1(1) or otherwise in the BC Action. (2) The obligation to provide Documents pursuant to Section 4.1(1) shall be a continuing obligation to the extent Documents that are required to be provided under Section 4.1(1) are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement. (3) As to additional Documents in the Settling Defendants’ possession, custody, or control, the Settling Defendants will consider in good faith, but without obligation, any reasonable request by the Plaintiff to collect and produce such documents, provided the request would not impose an undue burden on the Settling Defendants. (4) Documents provided to Class Counsel in accordance with this Section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged electronic coding. In addition, where the documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each document. (5) Nothing in this Settlement Agreement shall require or be construed to require the Releasees, or any of their present, former or future officers, directors or employees to perform any act, including the production or disclosure of any Documents or information: (a) which would violate or breach any federal, provincial, state, local or foreign law (including without limitation, any privacy or bank secrecy law, and including common law, civil law, statutes, policies, rules and regulations); (b) which would violate or breach any Court or regulatory order, directive, instruction (including, without limitation, any protective order granted in the U.S. Litigation, and instructions or directives from the U.S. Department of Justice or any other regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction), in any applicable jurisdiction, including but not limited to Canada, and the United States; (c) which is subject to solicitor-client privilege, litigation privilege or any other privilege, doctrine or law; or (d) not within the possession, custody or control of the Releasees; (6) If Counsel for the Settling Defendants have produced a relevant privilege log in the U.S. Litigation and not already produced it in the BC Action, the Settling Defendants will provide Class Counsel with a copy of such log. (7) If any Documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States are accidentally or inadvertently 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 or protection attached to such Documents. (8) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts to provide or obtain affidavits for use at trial or as the Parties may otherwise agree in the BC Action for the sole purpose of supporting the submission into evidence of any information, transactional data and/or Documents provided by the Settling Defendants in accordance with this Settlement Agreement or as otherwise produced by the Settling Defendants in the BC Action. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information, transactional data and/or Documents produced by the Settling Defendants, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or as the Parties may otherwise agree in the BC Action such current or former employees of the Settling Defendants as reasonably necessary for the purpose of admitting into evidence any information, transactional data and/or Documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein. If a witness is required to travel for the purposes of giving the evidence described in this Section 4.1(8), the witness’s obligation to travel is conditional on (i) the travel being safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and (ii) the witness’s right to refuse to travel for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this Section 4.1(8), the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The Plaintiff will work to minimize any burden on the Settling Defendants pursuant to this section. (9) The obligations of the Settling Defendants to cooperate as particularized in this Section 4 shall not be affected by the release provisions contained in Section 7.1 of this Settlement Agreement. If Class Counsel reach a settlement with all of the Non-Settling Defendants and any such settlement becomes effective in accordance with its terms or obtain final judgment against each of them in the BC Action, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect. For greater certainty, the Plaintiff’s failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this Section 4 is not a waiver of the cooperation rights granted by Section 4. (10) The Plaintiff may exercise any rights he has to seek to obtain discovery in the BC Action as against knowledgeable employees of the Settling Defendants, if such individual(s) fails to cooperate in accordance with Subsection 4.1(8) and the provisions of this Settlement Agreement. (11) Subject to Sections 4.1(10) and 4.1(12), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiff, Class Counsel and Settlement Class Members may obtain discovery or information or Documents from the Releasees or their current or former officers, directors, employees, agents or counsel. The Plaintiff, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the 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. (12) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiff may move before the Court to enforce the terms of this Settlement Agreement, seek an order setting aside Section 4.1(11) and allowing the Plaintiff to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the BC Action, or seek such other remedy that is available at law. (13) A material factor influencing the decision by the Settling Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiff and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree to avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue, unreasonable or disproportionate burden or expense on the Releasees. (14) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize prices, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold in Canada during the Class Period.
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Within ninety thirty (9030) days of the Effective Date, or at a time mutually agreed upon by the Parties, provided that Class Counsel confirms that the requests are required in good faith as reasonably necessary for the prosecution of the proceeding at trial (or summary judgment), and subject to any confidentiality order in the BC Action these Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants shall, only shall insofar as such production has not already occurred and production is not prohibited by law, use reasonable efforts to provide to Class Counsel:
(a) electronic copies of any Documents (including transactional data) that were produced in the U.S. Litigation by the Settling Defendants and Releasees who are named as Defendants including, but not limited to, any such Documents provided to U.S. plaintiffs pursuant to any U.S. Settlement Agreements, Agreements and any pre-pre- existing translations of such documents;
(b) to the extent that transactional sales and costs data of the Settling Defendants and other Releasees who are named as Defendants is contained in the production delivered pursuant to Section 4.1(1), ▇▇▇▇▇ numbers and/or file name identifying the relevant records;
(c) electronic copies of transcripts of all depositions or other testimony of current or former employees, officers or directors of the Settling Defendants Releasees taken in the U.S. Litigation, including (to the extent they form part of the transcripts or can otherwise be readily located) all exhibits originating from the Settling Defendants, any pre-existing translations, corresponding errata sheets, and confidentiality designation letters, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(c) electronic copies of any responses to written interrogatories by the Settling Defendants in the U.S. Litigation, including all schedules thereto and any pre- existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(d) electronic copies of any responses to requests to admit Documents previously produced by the Settling Defendants Releasees to the Canadian Competition Bureau or the United States Department of Justice that are relevant to the allegations in the U.S. LitigationProceedings (excluding Documents created for the purpose of being so provided), including all schedules thereto and any pre-existing pre•existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a)such Documents;
(e) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Settling Defendants, including all schedules thereto and any pre-existing translations of those declarations or affidavits, in the U.S. Litigation or produced in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a); and
(f) reasonable assistance in understanding the transactional sales and cost data produced by the Settling Defendants pursuant to Section 4.1(1) or otherwise in the BC ActionProceedings, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(f) an evidentiary proffer, provided at a meeting between Counsel for the Settling Defendants and Class Counsel in Canada, or at a location mutually agreed to by the Parties, limited to relevant information with respect to Non-Settling Defendants, of up to seven (7) hours duration, which will not include information originating with the Settling Defendants that is covered by privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, relating to the allegations in the Proceedings. The Plaintiffs and Class Counsel agree they will not use the information provided in the proffer under this paragraph for any purpose other than the pursuit of the Proceedings, and will not publicize any information beyond that which is reasonably necessary for the prosecution of the Proceedings or as otherwise required by law. Further, absent a Court order, Class Counsel will not attribute any information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing and other terms of this Settlement Agreement, Class Counsel may use information obtained from the proffer as guidance to obtain evidence to prosecute the Proceeding against Non-Settling Defendants. The Parties agree that the proffer itself is settlement privileged, does not constitute evidence, that there shall be no audio or video recording or written transcription or record of any statements made or information provided by Counsel for the Settling Defendants at the proffer, and that Class Counsel may only make written notes of their own thoughts and impressions at the proffer for the purpose of formulating legal advice, pursuing litigation and/or for the purpose of advancing settlement discussions in the interests of the Settlement Classes.
(2) The obligation to provide Documents pursuant to Section 4.1(1) shall be a continuing obligation to the extent Documents that are required to be provided under Section 4.1(1) are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement, but in no event shall the Settling Defendants be obliged to provide Documents in addition to those listed in Section 4.1(1).
(3) As to additional Documents in the Settling Defendants’ possession, custody, or control, the Settling Defendants will consider in good faith, but without obligation, any reasonable request by the Plaintiff to collect and produce such documents, provided the request would not impose an undue burden on the Settling Defendants.
(4) Documents provided to Class Counsel in accordance with this Section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, to the Canadian Competition Bureau or the United States Department of Justice, and will include any pre-existing and non-privileged electronic coding. In addition, where the documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each document.
(54) Nothing in this Settlement Agreement shall require or be construed to require the Releasees, or any of their present, former or future officers, directors or employees to perform any act, including the production or disclosure of any Documents or information:
(a) which would violate or breach any federal, provincial, state, local or foreign law (including without limitation, any privacy or bank secrecy law, and including common law, civil law, statutes, policies, rules and regulations);
(b) which would violate or breach any Court or regulatory order, directive, instruction (including, without limitation, any protective order granted in the U.S. Litigation, and instructions or directives from the U.S. Department of Justice or any other regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction), in any applicable jurisdiction, including but not limited to Canada, and the United States;; or
(c) which is subject to solicitor-client privilege, litigation privilege or any other privilege, doctrine or law; or
(d) not within the possession, custody or control of the Releasees;
(65) If Counsel for the Settling Defendants have produced a relevant privilege log in the U.S. Litigation and not already produced it in the BC ActionLitigation, the Settling Defendants will provide Class Counsel with a copy of such log.
(76) If any Documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States are accidentally or inadvertently 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 or protection attached to such Documents.
(8) 7) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts to provide or obtain affidavits for use at trial or as the Parties may otherwise agree in the BC Action Proceedings for the sole purpose of supporting the submission into evidence of any information, transactional data and/or Documents provided by the Settling Defendants Releasees in accordance with this Settlement Agreement or as otherwise produced by and for the Settling Defendants in prosecution of the BC ActionProceedings. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information, transactional data and/or Documents produced by the Settling DefendantsReleasees, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or as the Parties may otherwise agree in the BC Action such appropriate current or former officers, directors and/or employees of the Settling Defendants Releasees, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence any information, transactional data and/or Documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein. If a witness is required to travel for the purposes of giving the evidence described in this Section 4.1(8), the witness’s obligation to travel is conditional on (i) the travel being safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and (ii) the witness’s right to refuse to travel for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this Section 4.1(8), the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The Plaintiff Plaintiffs will work to minimize any burden on the Settling Defendants Releasees pursuant to this section.
(9) 8) The obligations of the Settling Defendants to cooperate as particularized in this Section 4 shall not be affected by the release provisions contained in Section 7.1 of this Settlement Agreement. If Class Counsel reach a settlement with all of the Non-Settling Defendants and any such settlement becomes effective in accordance with its terms or obtain final judgment against each of them in each of the BC ActionProceedings, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect. For greater certainty, the Plaintiff’s failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this Section 4 is not a waiver of the cooperation rights granted by Section 4.
(109) The Plaintiff Plaintiffs may exercise any rights he has they have to seek to obtain discovery in the BC Action Proceedings as against knowledgeable officers, directors and/or employees of the Settling Defendants, if such individual(s) fails to cooperate in accordance with Subsection 4.1(84.1(7) and the provisions of this Settlement Agreement.
(1110) Subject to Sections 4.1(104.1(9) and 4.1(124.1(11), the provisions set forth in this Section 4.1 are the exclusive means by which the PlaintiffPlaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or Documents from the Releasees or their current or former officers, directors, employees, agents or counsel. The PlaintiffPlaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the 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.
(1211) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiff Plaintiffs may move before the Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside Section 4.1(11) and allowing the Plaintiff to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the BC Action, or seek such other remedy that is available at law.
(1312) A material factor influencing the decision by the Settling Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiff Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree to avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue, unreasonable or disproportionate burden or expense on the Releasees.
(1413) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize prices, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold in Canada during the Class Period, subject to Sections 4.1(1) and 4.1(2).
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Within ninety thirty (9030) days of the Effective Date, or at a time mutually agreed upon by the Parties, provided that Class Counsel confirms that the requests are required in good faith as reasonably necessary for the prosecution of the proceeding at trial (or summary judgment), and subject to any confidentiality order in the BC Action these Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants shall, only shall insofar as such production has not already occurred and production is not prohibited by law, use reasonable efforts to provide to Class Counsel:
(a) electronic copies of any Documents (including transactional data) that were produced in the U.S. Litigation by the Settling Defendants and Releasees who are named as Defendants including, but not limited to, any such Documents provided to U.S. plaintiffs pursuant to any U.S. Settlement Agreements, Agreements and any pre-pre- existing translations of such documents;
(b) to the extent that transactional sales and costs data of the Settling Defendants and other Releasees who are named as Defendants is contained in the production delivered pursuant to Section 4.1(1), ▇▇▇▇▇ numbers and/or file name identifying the relevant records;
(c) electronic copies of transcripts of all depositions or other testimony of current or former employees, officers or directors of the Settling Defendants Releasees taken in the U.S. Litigation, including (to the extent they form part of the transcripts or can otherwise be readily located) all exhibits originating from the Settling Defendants, any pre-existing translations, corresponding errata sheets, and confidentiality designation letters, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(c) electronic copies of any responses to written interrogatories by the Settling Defendants in the U.S. Litigation, including all schedules thereto and any pre- existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(d) electronic copies of any responses to requests to admit Documents previously produced by the Settling Defendants Releasees to the Canadian Competition Bureau or the United States Department of Justice that are relevant to the allegations in the U.S. LitigationProceedings (excluding Documents created for the purpose of being so provided), including all schedules thereto and any pre-existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(e) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Settling Defendants, including all schedules thereto and any pre-existing translations of those declarations or affidavits, in the U.S. Litigation or produced in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a); andsuch Documents;
(fe) reasonable assistance in understanding the transactional sales and cost data produced by the Settling Defendants pursuant to Section 4.1(1) or otherwise in the BC ActionProceedings, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(f) an evidentiary proffer, provided at a meeting between Counsel for the Settling Defendants and Class Counsel in Canada, or at a location mutually agreed to by the Parties, limited to relevant information with respect to Non-Settling Defendants, of up to seven (7) hours duration, which will not include information originating with the Settling Defendants that is covered by privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, relating to the allegations in the Proceedings. The Plaintiffs and Class Counsel agree they will not use the information provided in the proffer under this paragraph for any purpose other than the pursuit of the Proceedings, and will not publicize any information beyond that which is reasonably necessary for the prosecution of the Proceedings or as otherwise required by law. Further, absent a Court order, Class Counsel will not attribute any information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing and other terms of this Settlement Agreement, Class Counsel may use information obtained from the proffer as guidance to obtain evidence to prosecute the Proceeding against Non-Settling Defendants. The Parties agree that the proffer itself is settlement privileged, does not constitute evidence, that there shall be no audio or video recording or written transcription or record of any statements made or information provided by Counsel for the Settling Defendants at the proffer, and that Class Counsel may only make written notes of their own thoughts and impressions at the proffer for the purpose of formulating legal advice, pursuing litigation and/or for the purpose of advancing settlement discussions in the interests of the Settlement Classes.
(2) The obligation to provide Documents pursuant to Section 4.1(1) shall be a continuing obligation to the extent Documents that are required to be provided under Section 4.1(1) are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement, but in no event shall the Settling Defendants be obliged to provide Documents in addition to those listed in Section 4.1(1).
(3) As to additional Documents in the Settling Defendants’ possession, custody, or control, the Settling Defendants will consider in good faith, but without obligation, any reasonable request by the Plaintiff to collect and produce such documents, provided the request would not impose an undue burden on the Settling Defendants.
(4) Documents provided to Class Counsel in accordance with this Section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, to the Canadian Competition Bureau or the United States Department of Justice, and will include any pre-existing and non-privileged electronic coding. In addition, where the documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each document.
(54) Nothing in this Settlement Agreement shall require or be construed to require the Releasees, or any of their present, former or future officers, directors or employees to perform any act, including the production or disclosure of any Documents or information:
(a) which would violate or breach any federal, provincial, state, local or foreign law (including without limitation, any privacy or bank secrecy law, and including common law, civil law, statutes, policies, rules and regulations);
(b) which would violate or breach any Court or regulatory order, directive, instruction (including, without limitation, any protective order granted in the U.S. Litigation, and instructions or directives from the U.S. Department of Justice or any other regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction), in any applicable jurisdiction, including but not limited to Canada, and the United States;; or
(c) which is subject to solicitor-client privilege, litigation privilege or any other privilege, doctrine or law; or
(d) not within the possession, custody or control of the Releasees;
(65) If Counsel for the Settling Defendants have produced a relevant privilege log in the U.S. Litigation and not already produced it in the BC ActionLitigation, the Settling Defendants will provide Class Counsel with a copy of such log.
(76) If any Documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States are accidentally or inadvertently 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 or protection attached to such Documents.
(8) 7) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts to provide or obtain affidavits for use at trial or as the Parties may otherwise agree in the BC Action Proceedings for the sole purpose of supporting the submission into evidence of any information, transactional data and/or Documents provided by the Settling Defendants Releasees in accordance with this Settlement Agreement or as otherwise produced by and for the Settling Defendants in prosecution of the BC ActionProceedings. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information, transactional data and/or Documents produced by the Settling DefendantsReleasees, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or as the Parties may otherwise agree in the BC Action such appropriate current or former officers, directors and/or employees of the Settling Defendants Releasees, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence any information, transactional data and/or Documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein. If a witness is required to travel for the purposes of giving the evidence described in this Section 4.1(8), the witness’s obligation to travel is conditional on (i) the travel being safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and (ii) the witness’s right to refuse to travel for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this Section 4.1(8), the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The Plaintiff Plaintiffs will work to minimize any burden on the Settling Defendants Releasees pursuant to this section.
(9) 8) The obligations of the Settling Defendants to cooperate as particularized in this Section 4 shall not be affected by the release provisions contained in Section 7.1 of this Settlement Agreement. If Class Counsel reach a settlement with all of the Non-Settling Defendants and any such settlement becomes effective in accordance with its terms or obtain final judgment against each of them in each of the BC ActionProceedings, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect. For greater certainty, the Plaintiff’s failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this Section 4 is not a waiver of the cooperation rights granted by Section 4.
(109) The Plaintiff Plaintiffs may exercise any rights he has they have to seek to obtain discovery in the BC Action Proceedings as against knowledgeable officers, directors and/or employees of the Settling Defendants, if such individual(s) fails to cooperate in accordance with Subsection 4.1(84.1(7) and the provisions of this Settlement Agreement.
(1110) Subject to Sections 4.1(104.1(9) and 4.1(124.1(11), the provisions set forth in this Section 4.1 are the exclusive means by which the PlaintiffPlaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or Documents from the Releasees or their current or former officers, directors, employees, agents or counsel. The PlaintiffPlaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the 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.
(1211) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiff Plaintiffs may move before the Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside Section 4.1(11) and allowing the Plaintiff to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the BC Action, or seek such other remedy that is available at law.
(1312) A material factor influencing the decision by the Settling Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiff Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree to avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue, unreasonable or disproportionate burden or expense on the Releasees.
(1413) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize prices, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold in Canada during the Class Period, subject to Sections 4.1(1) and 4.1(2).
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Within ninety (90) days of the Effective Date, or at a time mutually agreed upon by the Parties, provided that Class Counsel confirms that the requests are required in good faith as reasonably necessary for the prosecution of the proceeding at trial (or summary judgment), and subject to any confidentiality order in the BC Action these Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants shall, only insofar as such production has not already occurred in the BC Action and production is not prohibited by law, use reasonable efforts to provide to Class Counsel:
(a) electronic copies of any Documents (including transactional data) that were produced in the U.S. Litigation by the Settling Defendants including, but not limited to, any such Documents provided to U.S. plaintiffs pursuant to any U.S. Settlement Agreements, Agreements and any pre-existing translations of such documents;
(b) the Settling Defendants’ Canadian sales and costs data related to ODD and ODD Products sold in Canada from January 1, 2002 to January 1, 2012. The transactional data will be provided in Excel or such other format as agreed upon by the Parties, and shall be delivered as a separate production from the other Documents to be delivered pursuant to this section 4.1(1) or be identified by ▇▇▇▇▇ number and/or file name identifying the relevant records;
(c) electronic copies of transcripts of all depositions or other testimony of current or former employees, officers or directors of the Settling Defendants taken in the U.S. Litigation, including (to the extent they form part of the transcripts or can otherwise be readily located) all exhibits originating from the Settling Defendants, any pre-existing translations, corresponding errata sheets, and confidentiality designation letters, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(cd) electronic copies of any responses to written interrogatories by the Settling Defendants in the U.S. Litigation, including all schedules thereto and any pre- existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(de) electronic copies of any responses to requests to admit by the Settling Defendants in the U.S. Litigation, including all schedules thereto and any pre-existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(e) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Settling Defendants, including all schedules thereto and any pre-existing translations of those declarations or affidavits, in the U.S. Litigation or produced in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a); and
(f) reasonable assistance in understanding the transactional sales and cost data produced by the Settling Defendants pursuant to Section 4.1(1) or otherwise in the BC ActionProceedings.
(2) The obligation to provide Documents pursuant to Section 4.1(1) shall be a continuing obligation to the extent Documents that are required to be provided under Section 4.1(1) are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement, but in no event shall the Settling Defendants be obligated to provide Documents in addition to those listed in Section 4.1(1).
(3) As to additional Documents in the Settling Defendants’ possession, custody, or control, the Settling Defendants will consider in good faith, but without obligation, any reasonable request by the Plaintiff Plaintiffs to collect and produce such documents, provided the request would not impose an undue burden on the Settling Defendants.
(4) Documents provided to Class Counsel in accordance with this Section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, Litigation and will include any pre-existing and non-privileged electronic coding. In addition, where the documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each document.
(5) Nothing in this Settlement Agreement shall require or be construed to require the Releasees, or any of their present, former or future officers, directors or employees to perform any act, including the production or disclosure of any Documents or information:
(a) which would violate or breach any federal, provincial, state, local or foreign law (including without limitation, any privacy or bank secrecy law, and including common law, civil law, statutes, policies, rules and regulations);
(b) which would violate or breach any Court or regulatory order, directive, instruction (including, without limitation, any protective order granted in the U.S. Litigation, and instructions or directives from the U.S. Department of Justice or any other regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction), in any applicable jurisdiction, including but not limited to Canada, and the United States;
(c) which is subject to solicitor-client privilege, litigation privilege or any other privilege, doctrine or law; or
(d) not within the possession, custody or control of the Releasees;
(6) If Counsel for the Settling Defendants have produced a relevant privilege log in the U.S. Litigation and not already produced it in the BC Action, the Settling Defendants will provide Class Counsel with a copy of such log.
(7) If any Documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States are accidentally or inadvertently 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 or protection attached to such Documents.
(8) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts to provide or obtain affidavits for use at trial or as the Parties may otherwise agree in the BC Action Proceedings for the sole purpose of supporting the submission into evidence of any information, transactional data and/or Documents provided by the Settling Defendants in accordance with this Settlement Agreement or as otherwise produced by the Settling Defendants in the BC ActionProceedings. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information, transactional data and/or Documents produced by the Settling Defendants, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or as the Parties may otherwise agree in the BC Action such Proceedings one current or former employees employee of the Settling Defendants as reasonably necessary for the purpose of admitting into evidence any information, transactional data and/or Documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 4 herein. If a witness is required to travel for the purposes of giving the evidence described in this Section 4.1(8), the witness’s obligation to travel is conditional on (i) the travel being safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and (ii) the witness’s right to refuse to travel for legitimate, health-health- related concerns. If the witness refuses to or is unable to travel for reasons described in this Section 4.1(8), the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The Plaintiff Plaintiffs will work to minimize any burden on the Settling Defendants pursuant to this section.
(9) The obligations of the Settling Defendants to cooperate as particularized in this Section 4 shall not be affected by the release provisions contained in Section 7.1 of this Settlement Agreement. If Class Counsel reach a settlement with all of the Non-Settling Defendants and any such settlement becomes effective in accordance with its terms or obtain final judgment against each of them in each of the BC ActionProceedings, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect. For greater certainty, the Plaintiff’s Plaintiffs’ failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this Section 4 is not a waiver of the cooperation rights granted by Section 4.
(10) The Plaintiff Plaintiffs may exercise any rights he has they have to seek to obtain discovery in the BC Action Proceedings as against knowledgeable employees of the Settling Defendants, if such individual(s) fails to cooperate in accordance with Subsection 4.1(8) and the provisions of this Settlement Agreement.
(11) Subject to Sections 4.1(10) and 4.1(12), the provisions set forth in this Section 4.1 are the exclusive means by which the PlaintiffPlaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or Documents from the Releasees or their current or former officers, directors, employees, agents or counsel. The PlaintiffPlaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the 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.
(12) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiff Plaintiffs may move before the Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside Section 4.1(11) and allowing the Plaintiff Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the BC ActionProceeding, or seek such other remedy that is available at law.
(13) A material factor influencing the decision by the Settling Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiff Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree to avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue, unreasonable or disproportionate burden or expense on the Releasees.
(14) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize prices, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold in Canada during the Class Period.
Appears in 1 contract
Sources: Class Action Settlement Agreement
Extent of Cooperation. (1) Within ninety thirty (9030) days of the Effective Date, or at a time mutually agreed upon by the Parties, provided that Class Counsel confirms that the requests are required in good faith as reasonably necessary for the prosecution of the proceeding at trial (or summary judgment), and subject to any confidentiality order in the BC Action Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants shall, only insofar as such production is not prohibited by law, Defendant agrees to use reasonable efforts to provide to Class Counselto:
(a) electronic copies of provide to Class Counsel transactional sales data in its possession and which is reasonably accessible for any Documents (including transactional data) that were produced in the U.S. Litigation direct sales by the Settling Defendants including, but not limited to, any Defendant to Canadian customers between September 2011 and September 2013. Available transactional data may be provided in Microsoft Excel or such Documents provided to U.S. plaintiffs pursuant to any U.S. Settlement Agreementsother format as agreed upon by the Parties, and any pre-existing translations of such documents;
(b) electronic copies of transcripts of all depositions or other testimony of current or former employees, officers or directors of the Settling Defendants taken in the U.S. Litigation, including (to the extent they form part of the transcripts or can otherwise shall be readily located) all exhibits originating from the Settling Defendants, any pre-existing translations, corresponding errata sheets, and confidentiality designation letters, delivered as a separate production from the documents other Documents to be delivered pursuant to Section 4.1(1)(a4.1(1) or identified by ▇▇▇▇▇ number as part of the production of documents Documents to be delivered pursuant to Section 4.1(1);
(b) provide reasonable assistance to Class Counsel in understanding the transactional data produced by the Settling Defendant pursuant to section 4.1(1)(a), including a reasonable number of written and/or telephonic communications with Class Counsel;
(c) electronic provide to Class Counsel copies of any responses to written interrogatories by the Settling Defendants in the U.S. Litigationtranscripts (electronic, including all schedules thereto if available) and any pre- existing translations into English video recordings of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(d) electronic copies of any responses to requests to admit by the Settling Defendants in the U.S. Litigation, including all schedules thereto and any pre-existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(1)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1)(a);
(e) electronic copies of any declarations or affidavits depositions of current or former employees, officers or directors of the Settling DefendantsDefendant, including all schedules thereto and any pre-existing translations of those declarations or affidavitsexhibits thereto, in the U.S. Litigation or produced taken in the U.S. Litigation, delivered as a separate production from the documents to be delivered including pursuant to Section 4.1(1)(athe terms of any U.S. Settlement Agreement;
(d) or identified provide to Class Counsel copies (electronic, if available) of any Documents produced by ▇▇▇▇▇ number as part of the production of documents Settling Defendant in the U.S. Litigation, including all responses to be delivered interrogatories and any Documents produced by the Settling Defendant pursuant to Section 4.1(1)(a)any U.S. Settlement Agreement; and
(fe) reasonable assistance in understanding the transactional sales and cost data produced provide to Class Counsel copies (electronic, if available) of any declarations filed by the Settling Defendants pursuant to Section 4.1(1) or otherwise Defendant in the BC ActionU.S. Litigation.
(2) The obligation to provide produce Documents pursuant to Section 4.1(1) shall be a continuing obligation to the extent additional Documents that are required to be provided under Section 4.1(1) are identified by the Settling Defendants Defendant following the initial productions pursuant to this Settlement Agreement.
(3) As to additional Documents in the Settling Defendants’ possession, custody, or control, the Settling Defendants will consider in good faith, but without obligation, any reasonable request by the Plaintiff to collect and produce such documents, provided the request would not impose an undue burden on the Settling Defendants.
(4) Documents provided to Class Counsel in accordance with this Section 4.1(14.1(1)(d) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged electronic coding. In addition, where the documents Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each documentDocument.
(4) The Settling Defendant makes no representation regarding and shall bear no liability with respect to the accuracy of or that it has, can or will produce a complete set of any of the Documents described in Section 4.1, and the failure to do so shall not constitute a breach or violation of this Settlement Agreement.
(5) Subject to the rules of evidence, the Settling Defendant agrees to use reasonable efforts to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of any information, transactional data and/or Documents provided by the Settling Defendant in accordance with this Settlement Agreement and for the prosecution of the Proceedings. If, and only if, the Ontario or Quebec Court should determine that affidavits are inadequate for the purpose of submitting into evidence such information, transactional data and/or Documents produced by the Settling Defendant, the Settling Defendant agrees to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendant, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information, transactional data and/or Documents provided by the Settling Defendant pursuant to section 4.1 herein. The Plaintiffs will work to minimize any burden on the Settling Defendant pursuant to this section.
(6) Nothing in this Settlement Agreement shall require or be construed to require the ReleaseesSettling Defendant, or any of their its present, former or future officers, directors or employees employees, to perform any act, including the production transmittal or disclosure of any Documents or information:
(a) , which would violate the law of this or breach any federal, provincial, state, local or foreign law (including without limitation, any privacy or bank secrecy law, and including common law, civil law, statutes, policies, rules and regulations);jurisdiction.
(b7) which would violate Nothing in this Settlement Agreement shall require, or breach any Court or regulatory ordershall be construed to require, directive, instruction (including, without limitation, any protective order granted in the U.S. Litigation, and instructions or directives from the U.S. Department of Justice Settling Defendant or any other regulatory authority representative or governmental body in Canadaemployee of the Settling Defendant to disclose or produce any Documents or information prepared by or for Counsel for the Settling Defendant, the United States, the United Kingdom or any other jurisdiction), in any applicable jurisdiction, including but not limited to Canada, and the United States;
(c) which that is subject to solicitor-client privilege, litigation privilege or any other privilege, doctrine or law; or
(d) not within the possession, custody or control of the Releasees;
(6) If Counsel for the Settling Defendants have produced Defendant, or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor- client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a relevant privilege log in the U.S. Litigation and privileged or co-operative basis from any party to any action or proceeding who is not already produced it in the BC Action, the Settling Defendants will provide Class Counsel with a copy of such logReleasee.
(7) 8) If any Documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States are accidentally or inadvertently disclosed or produced, such Documents shall be promptly returned to the Settling Defendants Defendant 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 DefendantsDefendant, and the production of such Documents shall in no way be construed to have waived in any manner any privilege privilege, doctrine, law, or protection attached to such Documents.
(8) Subject 9) The Settling Defendant’s obligations to cooperate as particularized in this Section 4.1 shall not be affected by the rules of evidence, any Court order with regard to confidentiality and the other release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason;
(a) the Settling Defendant’s cooperation obligations specified in sections 4.1(1), 4.1(2) and 4.1(3) shall cease on the date of the final resolution of the Proceedings against all Defendants or on the date that is one (1) year after the Effective Date, whichever date is earliest, and
(b) the Settling Defendant’s cooperation obligations specified in section 4.1(5) shall cease on the date of the final resolution of the Proceedings against all Defendants or on January 1, 2025, whichever date is earliest.
(10) In the event that the Settling Defendant materially breaches this Section 4.1, the Plaintiffs may move before the Ontario and/or Quebec Courts to enforce the terms of this Settlement Agreement.
(11) This Settlement Agreement does not abrogate any subpeona rights that the Plaintiffs have in respect of current officers, directors and/or employees of the Settling Defendants agree to use reasonable efforts to provide or obtain affidavits for use at trial or as the Parties may otherwise agree Defendant in the BC Action for circumstance where, subsequent to January 1, 2025, the sole purpose of supporting Plaintiffs require evidence to support the submission into evidence in the Proceedings of any information, transactional data and/or Documents provided by the Settling Defendants in accordance with this Settlement Agreement or as otherwise produced by the Settling Defendants in the BC Action. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information, transactional data and/or Documents produced by the Settling Defendants, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or as the Parties may otherwise agree in the BC Action such current or former employees of the Settling Defendants as reasonably necessary for the purpose of admitting into evidence any information, transactional data and/or Documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein. If a witness is required to travel for the purposes of giving the evidence described in this Section 4.1(8), the witness’s obligation to travel is conditional on (i) the travel being safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and (ii) the witness’s right to refuse to travel for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this Section 4.1(8), the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The Plaintiff will work to minimize any burden on the Settling Defendants pursuant to this section.
(9) The obligations of the Settling Defendants to cooperate as particularized in this Section 4 shall not be affected by the release provisions contained in Section 7.1 of this Settlement Agreement. If Class Counsel reach a settlement with all of the Non-Settling Defendants and any such settlement becomes effective in accordance with its terms or obtain final judgment against each of them in the BC Action, then all obligations Defendant under this Section 4 shall cease and this Section 4 shall be of no further force or effect. For greater certainty, the Plaintiff’s failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this Section 4 is not a waiver of the cooperation rights granted by Section 4.
(10) The Plaintiff may exercise any rights he has to seek to obtain discovery in the BC Action as against knowledgeable employees of the Settling Defendants, if such individual(s) fails to cooperate in accordance with Subsection 4.1(8) and the provisions of this Settlement Agreement.
(1112) Subject to Sections 4.1(10) and 4.1(124.1(11), the provisions set forth in this Section 4.1 are the exclusive means by which the PlaintiffPlaintiffs, Class Counsel and the Settlement Class Members and Class Counsel may obtain discovery or information discovery, information, or Documents from the Releasees or their current or former officers, directors, directors or employees, agents or counsel. The Plaintiffand the Plaintiffs, Class Counsel and Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees or their current or former officers, directors, employees, agents agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiff may move before the Court to enforce the terms of this Settlement Agreement, seek an order setting aside Section 4.1(11) and allowing the Plaintiff to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the BC Action, or seek such other remedy that is available at law.
(13) A material factor influencing the Settling Defendant’s decision by the Settling Defendants to execute this Settlement Agreement is their its desire to limit the burden and expense of this litigation. Accordingly, the Plaintiff Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling DefendantsDefendant, agree not to avoid seeking seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue, unreasonable or disproportionate burden or expense on the ReleaseesSettling Defendant.
(14) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize prices, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold in Canada during the Class Period.
Appears in 1 contract
Sources: Settlement Agreement