Extent of Cooperation. (1) Within ten (10) days of the Date of Execution, Counsel for the Settling Defendants will meet with Class Counsel in Canada or the United States, to provide an oral evidentiary proffer which will include information originating with the Settling Defendants that is not covered by privilege relating to the allegations in the Proceedings. The total number of proffers in the Canadian Settlements shall not exceed two (2) meetings of one (1) business day each. Notwithstanding the forgoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional proffers to assist with litigation against Non-Settling Defendants. 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 are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court. 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 an allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may 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) Within ten (10) days of the Effective Date, the Settling Defendants shall provide Class Counsel with the identity of all current and former employees, directors and officers of the Releasees: (a) who were interviewed by the U.S. Department of Justice, Japanese Fair Trade Commission and/or European Commission in connection to alleged anti- competitive activity concerning Anti-Vibration Rubber Parts; or (b) who appeared before the grand jury in the U.S. Department of Justice investigation of conduct concerning Anti-Vibration Rubber Parts. (3) Within thirty (30) days from the Effective Date, or at a time mutually agreed upon by the Parties, the Settling Defendants shall provide to Class Counsel: (a) transactional sales data for the sale of Anti-Vibration Rubber Parts by the Settling Defendants from January 1, 1995 until December 31, 2014, but only to the extent that it exists, is reasonably accessible in the Settling Defendants’ electronic databases, and that such sales were associated with Anti-Vibration Rubber Parts incorporated into Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Sections 4.1(3)(d)-(f) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1); (b) reasonable assistance to Class Counsel in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel; (c) identify Automotive Vehicles containing Anti-Vibration Rubber Parts supplied by the Settling Defendants in Canada between January 1, 1995 and December 31, 2014 that may have been affected by conduct that is the subject of the Proceedings; (d) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Anti-Vibration Rubber Parts produced or made available by the Settling Defendants in the U.S. Litigation, including pursuant to the terms of the U.S. Settlement Agreements, or that have been produced as of the Date of Execution by the Settling Defendants in the U.S. Litigation pursuant to the terms of the U.S. Settlement Agreements, and any pre-existing translations of those documents that were produced in the U.S. Litigation and any pre-existing and non- privileged electronic coding or metadata produced in the U.S. Litigation. 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; (e) electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto and any pre-existing translations of those transcripts, taken in the U.S. Litigation, within ten (10) business days of said transcripts becoming available, but only to the extent permitted under the U.S. Protective Order; and (f) electronic copies of any responses to written interrogatories by the Releasees 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. (4) After the Certification Date, at the request of Class Counsel acting in good faith and as reasonably necessary for the ongoing prosecution of the Proceedings, the Settling Defendants shall make reasonable efforts to provide to Class Counsel, within ninety (90) days of receiving the request, or at a time mutually agreed upon by the Parties, the following: (a) transactional cost data for the production of Anti-Vibration Rubber Parts between January 1, 1995 and December 31, 2014, that were known or expected to be included in Automotive Vehicles that were sold in Canada. Class Counsel may request, and the Settling Defendants shall make reasonable efforts to provide, additional transactional cost data for the period between January 1, 2015 and the Effective Date if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the Proceedings. The transactional cost data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(3)(d) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(3)(a); (b) to the extent not previously produced pursuant to Section 4.1(3)(a), transactional sales data relating to the Settling Defendants’ sales of Anti-Vibration Rubber Parts for use in Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel; and (c) reasonable assistance to Class Counsel in understanding the transactional cost and/or sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel. (5) The obligation to produce documents pursuant to Sections 4.1(3) and 4.1(4) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants and the Releasees who are named as Defendants following the initial productions pursuant to this Settlement Agreement. (6) The Settling Defendants shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling Defendants’ representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements. The Settling Defendants shall, where possible, provide notice to Class Counsel thirty (30) days before any evidentiary proffer or interview of representatives of the Settling Defendants that occurs in the U.S. Litigation pursuant to the U.S. Settlement Agreements. (7) It is understood that the evidentiary proffer described in Section 4.1(1) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(9) might take place before the Effective Date. In such event: (a) any documents or information provided in the course of those evidentiary proffers and/or interviews 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 proffers and/or interviews 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 Defendant as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendant 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 return all copies of any documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendant of having done so. (8) In the event that any employee interviews provided for in the U.S. Settlement Agreements: (i) have already occurred; (ii) occur within six (6) months of the Effective Date, but Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of the interviews; or (iii) do not occur within six (6) months of the Effective Date, the Settling Defendants shall, at the request of Class Counsel, upon at least thirty (30) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, a current or former officer, director or employee of the Settling Defendants who has knowledge about the allegations in the Proceedings to provide information regarding the allegations raised in the Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel. Class Counsel shall use reasonable efforts to limit this requirement to a single current employee. Notwithstanding the foregoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional interviews to assist with litigation against Non-Settling Defendants. Such personal interviews shall take place at a location agreed upon by the Parties, acting reasonably, and shall not exceed one (1) business day or seven (7) hours for each interviewee. Costs incurred by, and the expenses of, the interviewee in relation to such interviews shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per interviewee. Costs of an interpreter or otherwise related to foreign language translation in connection with such interviews shall be the responsibility of Class Counsel. The failure of a proposed interviewee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement provided that Settling Defendants made reasonable efforts to secure such interviewee’s cooperation. (9) Subject to the rules of evidence, any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agrees to use reasonable efforts to produce at trial or otherwise in the Proceedings (including through affidavit evidence): (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to Sections 4.1(3) and 4.1(4); (ii) a representative qualified to establish for admission into evidence any of the Settling Defendants’ documents provided as cooperation pursuant to Section 4.1(1) of this Settlement Agreement that is reasonable and necessary for the prosecution of the Proceedings (with Class Counsel using its best efforts to authenticate documents for use at trial or otherwise without use of a live witness); and (iii) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit the number of witnesses. To the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial or otherwise contemplated by this Section. The failure of a specific officer, director or employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. Reasonable costs incurred by, and the expenses of, the representatives in relation to fulfilling their obligations under this Section, including but not limited to the lowest-available cost at time of booking business class airfare, shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per representative. (10) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction. (11) 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 prepared by or for Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, 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, joint defence privilege or any other privilege, doctrine, or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, or Counsel for the Settling Defendants has created a pre-existing relevant privilege log, the Settling Defendants will provide Class Counsel with a copy of such log or document. (12) If any documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction 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. (13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants. (14) Subject to Sections 4.1(15) and 4.1(16), the provisions set forth in this Section 4.1 are the exclusive means by which the P
Appears in 1 contract
Sources: National Settlement Agreement
Extent of Cooperation. (1) Within ten (10) days of the Date of Execution, Counsel for the Settling Defendants will meet with Class Counsel in Canada or the United States, to provide an oral evidentiary proffer which will include information originating with the Settling Defendants that is not covered by privilege relating to the allegations in the ProceedingsProceeding. The total number of proffers in the Canadian Settlements shall not exceed two (2) meetings of one (1) business day each. Notwithstanding the forgoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional proffers to assist with litigation against Non-Settling Defendants. 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 are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a the Court. 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 ProceedingsProceeding, including for the purpose of developing an allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may rely on such information to certify that, to the best of Class Counsel’s '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) Within ten (10) days of the Effective Date, the Settling Defendants shall provide Class Counsel with the identity of all current and former employees, directors and officers of the Releasees:
(a) who were interviewed by the U.S. Department of Justice, Japanese Fair Trade Commission and/or European Commission in connection to alleged anti- competitive activity concerning Anti-Vibration Rubber Parts; or
(b) who appeared before the grand jury in the U.S. Department of Justice investigation of conduct concerning Anti-Vibration Rubber Parts.
(3) Within thirty (30) days from the Effective Date, or at a time mutually agreed upon by the Parties, the Settling Defendants shall provide to Class Counsel:
(a) transactional sales data for the sale of Anti-Vibration Rubber Parts by the Settling Defendants from January 1, 1995 until December 31, 2014, but only to the extent that it exists, is reasonably accessible in the Settling Defendants’ electronic databases, and that such sales were associated with Anti-Vibration Rubber Parts incorporated into Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Sections 4.1(3)(d)-(f) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1);
(b) reasonable assistance to Class Counsel in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(c) identify Automotive Vehicles containing Anti-Vibration Rubber Parts supplied by the Settling Defendants in Canada between January 1, 1995 and December 31, 2014 that may have been affected by conduct that is the subject of the Proceedings;
(d) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Anti-Vibration Rubber Parts produced or made available by the Settling Defendants in the U.S. Litigation, including pursuant to the terms of the U.S. Settlement Agreements, or that have been produced as of the Date of Execution by the Settling Defendants in the U.S. Litigation pursuant to the terms of the U.S. Settlement Agreements, and any pre-existing translations of those documents that were produced in the U.S. Litigation and any pre-existing and non- privileged electronic coding or metadata produced in the U.S. Litigation. 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;
(e) electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto and any pre-existing translations of those transcripts, taken in the U.S. Litigation, within ten (10) business days of said transcripts becoming available, but only to the extent permitted under the U.S. Protective Order; and
(f) electronic copies of any responses to written interrogatories by the Releasees 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.
(4) After the Certification Date, at the request of Class Counsel acting in good faith and as reasonably necessary for the ongoing prosecution of the Proceedings, the Settling Defendants shall make reasonable efforts to provide to Class Counsel, within ninety (90) days of receiving the request, or at a time mutually agreed upon by the Parties, the following:
(a) transactional cost data for the production of Anti-Vibration Rubber Parts between January 1, 1995 and December 31, 2014, that were known or expected to be included in Automotive Vehicles that were sold in Canada. Class Counsel may request, and the Settling Defendants shall make reasonable efforts to provide, additional transactional cost data for the period between January 1, 2015 and the Effective Date if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the Proceedings. The transactional cost data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(3)(d) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(3)(a);
(b) to the extent not previously produced pursuant to Section 4.1(3)(a), transactional sales data relating to the Settling Defendants’ sales of Anti-Vibration Rubber Parts for use in Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel; and
(c) reasonable assistance to Class Counsel in understanding the transactional cost and/or sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel.
(5) The obligation to produce documents pursuant to Sections 4.1(3) and 4.1(4) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants and the Releasees who are named as Defendants following the initial productions pursuant to this Settlement Agreement.
(6) The Settling Defendants shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling Defendants’ representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements. The Settling Defendants shall, where possible, provide notice to Class Counsel thirty (30) days before any evidentiary proffer or interview of representatives of the Settling Defendants that occurs in the U.S. Litigation pursuant to the U.S. Settlement Agreements.
(7) It is understood that the evidentiary proffer described in Section 4.1(1) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(9) might take place before the Effective Date. In such event:
(a) any documents or information provided in the course of those evidentiary proffers and/or interviews 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 proffers and/or interviews 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 Defendant as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendant 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 return all copies of any documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendant of having done so.
(8) In the event that any employee interviews provided for in the U.S. Settlement Agreements:
(i) have already occurred; (ii) occur within six (6) months of the Effective Date, but Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of the interviews; or (iii) do not occur within six (6) months of the Effective Date, the Settling Defendants shall, at the request of Class Counsel, upon at least thirty (30) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, a current or former officer, director or employee of the Settling Defendants who has knowledge about the allegations in the Proceedings to provide information regarding the allegations raised in the Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel. Class Counsel shall use reasonable efforts to limit this requirement to a single current employee. Notwithstanding the foregoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional interviews to assist with litigation against Non-Settling Defendants. Such personal interviews shall take place at a location agreed upon by the Parties, acting reasonably, and shall not exceed one (1) business day or seven (7) hours for each interviewee. Costs incurred by, and the expenses of, the interviewee in relation to such interviews shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per interviewee. Costs of an interpreter or otherwise related to foreign language translation in connection with such interviews shall be the responsibility of Class Counsel. The failure of a proposed interviewee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement provided that Settling Defendants made reasonable efforts to secure such interviewee’s cooperation.
(9) Subject to the rules of evidence, any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agrees to use reasonable efforts to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to Sections 4.1(3) and 4.1(4); (ii) a representative qualified to establish for admission into evidence any of the Settling Defendants’ documents provided as cooperation pursuant to Section 4.1(1) of this Settlement Agreement that is reasonable and necessary for the prosecution of the Proceedings (with Class Counsel using its best efforts to authenticate documents for use at trial or otherwise without use of a live witness); and (iii) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit the number of witnesses. To the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial or otherwise contemplated by this Section. The failure of a specific officer, director or employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. Reasonable costs incurred by, and the expenses of, the representatives in relation to fulfilling their obligations under this Section, including but not limited to the lowest-available cost at time of booking business class airfare, shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per representative.
(10) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction.
(11) 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 prepared by or for Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, 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, joint defence privilege or any other privilege, doctrine, or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, or Counsel for the Settling Defendants has created a pre-existing relevant privilege log, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) If any documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction 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.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and 4.1(16), the provisions set forth in this Section 4.1 are the exclusive means by which the P
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Within ten (10) days of the Date of ExecutionPrior to December 31, 2017, Counsel for the Settling Defendants will meet met with Class Counsel in Canada or the United States, to provide an oral evidentiary proffer which will include included information originating with the Settling Defendants that is was not covered by privilege relating to the allegations in the Proceedings. The total number of proffers in Proceedings and the Canadian Settlements shall not exceed two (2) meetings of one (1) business day each. Notwithstanding the forgoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional proffers to assist with litigation against Non-Settling DefendantsSecond Ontario Action. 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 are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court. 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 ProceedingsProceedings and the Second Ontario Action, including for the purpose of developing an allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may 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) Within ten (10) days of After the Effective Date, at the request of Class Counsel, the Settling Defendants shall provide to Class Counsel with the identity of all current and former employeesCounsel, directors and officers of the Releasees:
within ninety (a) who were interviewed by the U.S. Department of Justice, Japanese Fair Trade Commission and/or European Commission in connection to alleged anti- competitive activity concerning Anti-Vibration Rubber Parts; or
(b) who appeared before the grand jury in the U.S. Department of Justice investigation of conduct concerning Anti-Vibration Rubber Parts.
(3) Within thirty (3090) days from of receiving the Effective Daterequest, or at a time mutually agreed upon by the Parties, the Settling Defendants shall provide to Class Counselfollowing:
(a) transactional sales data for the sale of Anti-Vibration Rubber Parts produced by the Settling Defendants from January 1, 1995 until December 31, 2014, but only pursuant to the extent that it exists, is reasonably accessible in the Settling Defendants’ electronic databases, and that such sales were associated with Anti-Vibration Rubber Parts incorporated into Automotive Vehicles that were sold in CanadaU.S. Settlement Agreements. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Sections 4.1(3)(d)-(f4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(14.1(2);
(b) reasonable assistance to Class Counsel in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(c) identify Automotive Vehicles containing Anti-Vibration Rubber Parts supplied by the Settling Defendants in Canada between January 1, 1995 and December 31, 2014 that may have been affected by conduct that is the subject of the Proceedings;
(d) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Anti-Vibration Rubber Parts Alternators produced or made available by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the terms of the U.S. Settlement Agreements, or that have been produced as of the Date of Execution by the Settling Defendants in the U.S. Litigation pursuant to the terms of the U.S. Settlement Agreementsincluding at any future date, and any pre-existing translations of those documents that were produced in the U.S. Litigation and any pre-pre- existing and non- non-privileged electronic coding or metadata produced in the U.S. Litigationcoding. 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;
(ed) electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto and any pre-existing translations of those transcripts, taken in the U.S. Litigation, within ten (10) business days of said transcripts becoming available, but only to the extent permitted under the U.S. Protective OrderOrder (as defined in Section 4.2(4) below); and
(fe) electronic copies of any responses to written interrogatories by documents (as defined in Rule 30.01 of the Releasees in the U.S. LitigationOntario Rules of Civil Procedure), including all schedules thereto and any pre-existing translations into English of those responses documents, produced by the Settling Defendants to the plaintiffs in Canadian Competition Bureau and the U.S. LitigationUnited States Department of Justice, to the extent such productions are not duplicative.
(43) After the Certification Date, at the request of Class Counsel acting in good faith and as reasonably necessary for the ongoing prosecution of the ProceedingsProceedings or the Second Ontario Action, the Settling Defendants shall make reasonable efforts to provide to Class Counsel, within ninety (90) days of receiving the request, or at a time mutually agreed upon by the Parties, the following:
(a) transactional cost data for the global production and sale of Anti-Vibration Rubber Parts Alternators between January 1, 1995 and 1998 and, at least, December 31, 20142013, that were to the extent such data relates to Alternators known or expected to be included in Automotive Vehicles that were sold in Canada. Class Counsel may request, and the Settling Defendants shall make reasonable efforts to provide, additional transactional cost data for the period between January 1, 2015 2014 and the Effective Date March 20, 2017, if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the ProceedingsProceedings and/or the Second Ontario Action. The transactional cost data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(3)(d) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(3)(a4.1(3);
(b) to the extent not previously produced pursuant to Section 4.1(3)(a4.1(2)(a), transactional sales data relating to the Settling Defendants’ global sales of Anti-Vibration Rubber Parts for use Alternators, to the extent such data relates to Alternators known or expected to be included in Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel; and;
(c) reasonable assistance to Class Counsel in understanding the transactional cost and/or sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel; and
(d) to the extent not already produced, any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure), including any pre-existing translations of those documents, that are relevant to the allegations in the Proceedings or the Second Ontario Action.
(54) The obligation to produce documents pursuant to Sections 4.1(34.1(2) and 4.1(4(3) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants and the Releasees who are named as Defendants following the initial productions pursuant to this Settlement AgreementAgreement or are produced in the U.S. Litigation.
(65) The Settling Defendants shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling Defendants’ representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements. The Settling Defendants shall, where possible, provide notice to Class Counsel thirty (30) days before any evidentiary proffer or interview of representatives of the Settling Defendants that occurs in the U.S. Litigation pursuant to the U.S. Settlement Agreements.
(76) It is understood that the evidentiary proffer described in Section 4.1(1) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(94.1(5) might take place before the Effective Date. In such event:
(a) any documents or information provided in the course of those evidentiary proffers and/or interviews 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 proffers and/or interviews 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 Defendant Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendant Defendants or of the truth of any claims or allegations in the ProceedingsProceedings or the Second Ontario Action, 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 return all copies of any documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendant Defendants of having done so.
(8) 7) In the event that any employee interviews provided for in the U.S. Settlement Agreements:
: (i) have already occurred; (ii) occur within six (6) months of the Effective Date, but Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of the interviews; or (iii) do not occur within six (6) months of the Effective Date, the Settling Defendants shall, at the request of Class Counsel, upon at least thirty sixty (3060) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, a up to five (5) current or former officerofficers, director directors or employee employees of the Settling Defendants who has have knowledge about the allegations in the Proceedings and the Second Ontario Action to provide information regarding the allegations raised in the Proceedings and the Second Ontario Action in a personal interview with Class Counsel and/or experts retained by Class Counsel. Class Counsel shall use reasonable efforts to limit this requirement to a single current employee. Notwithstanding the foregoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional interviews to assist with litigation against Non-Settling Defendants. Such personal interviews shall take place at in a North American location agreed upon by the Parties, acting reasonably, and shall not exceed one (1) business day or seven (7) hours for each intervieweeindividual. Costs incurred by, and the expenses of, the interviewee employees of the Settling Defendants in relation to such interviews shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per interviewee. Costs costs of an interpreter or otherwise related to foreign language translation in connection with such interviews shall be the responsibility of the Settling Defendants. If an employee refuses to provide information, or otherwise cooperate, the Settling Defendants shall use all reasonable efforts to make him/her available for an interview with Class Counsel and/or experts retained by Class Counsel. The failure of a proposed interviewee current or former employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement provided that Settling Defendants made reasonable efforts to secure such interviewee’s cooperationAgreement.
(9) 8) Subject to the rules of evidence, any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agrees agree to use reasonable efforts to produce at trial or otherwise in the Proceedings or Second Ontario Action (including through affidavit evidence):
): (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to Sections 4.1(34.1(2)(a) and 4.1(4(3)(a); (ii) a representative qualified to establish for admission into evidence any of the Settling Defendants’ documents provided as cooperation pursuant to Section 4.1(14.1(2) and (3) of this Settlement Agreement that is reasonable and necessary for the prosecution of the Proceedings and the Second Ontario Action (with Class Counsel using its best efforts to authenticate documents for use at trial or otherwise without use of a live witness); and (iii) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit the number of witnesses. To the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial or otherwise contemplated by this Section. The failure of a specific officer, director or employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. Reasonable costs incurred by, and the expenses of, the representatives in relation to fulfilling their obligations under this Section, including but not limited to the lowest-available cost at time of booking business class airfare, shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per representative.
(10) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction.
(11) 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 prepared by or for Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, 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, joint defence privilege or any other privilege, doctrine, or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, or Counsel for the Settling Defendants has created a pre-existing relevant privilege log, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) If any documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction 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.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and 4.1(16), the provisions set forth in this Section 4.1 are the exclusive means by which the Pand
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Within ten (10) days of the Date of ExecutionPrior to December 31, 2017, Counsel for the Settling Defendants will meet met with Class Counsel in Canada or the United States, to provide an oral evidentiary proffer which will include included information originating with the Settling Defendants that is was not covered by privilege relating to the allegations in the Proceedings. The total number of proffers in Proceedings and the Canadian Settlements shall not exceed two (2) meetings of one (1) business day each. Notwithstanding the forgoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional proffers to assist with litigation against Non-Settling DefendantsSecond Ontario Action. 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 are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court. 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 ProceedingsProceedings and the Second Ontario Action, including for the purpose of developing an allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may 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) Within ten (10) days of After the Effective Date, at the request of Class Counsel, the Settling Defendants shall provide to Class Counsel with the identity of all current and former employeesCounsel, directors and officers of the Releasees:
within ninety (a) who were interviewed by the U.S. Department of Justice, Japanese Fair Trade Commission and/or European Commission in connection to alleged anti- competitive activity concerning Anti-Vibration Rubber Parts; or
(b) who appeared before the grand jury in the U.S. Department of Justice investigation of conduct concerning Anti-Vibration Rubber Parts.
(3) Within thirty (3090) days from of receiving the Effective Daterequest, or at a time mutually agreed upon by the Parties, the Settling Defendants shall provide to Class Counselfollowing:
(a) transactional sales data for the sale of Anti-Vibration Rubber Parts produced by the Settling Defendants from January 1, 1995 until December 31, 2014, but only pursuant to the extent that it exists, is reasonably accessible in the Settling Defendants’ electronic databases, and that such sales were associated with Anti-Vibration Rubber Parts incorporated into Automotive Vehicles that were sold in CanadaU.S. Settlement Agreements. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Sections 4.1(3)(d)-(f4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(14.1(2);
(b) reasonable assistance to Class Counsel in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(c) identify Automotive Vehicles containing Anti-Vibration Rubber Parts supplied by the Settling Defendants in Canada between January 1, 1995 and December 31, 2014 that may have been affected by conduct that is the subject of the Proceedings;
(d) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Anti-Vibration Rubber Parts Ignition Coils produced or made available by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the terms of the U.S. Settlement Agreements, or that have been produced as of the Date of Execution by the Settling Defendants in the U.S. Litigation pursuant to the terms of the U.S. Settlement Agreementsincluding at any future date, and any pre-existing translations of those documents that were produced in the U.S. Litigation and any pre-pre- existing and non- non-privileged electronic coding or metadata produced in the U.S. Litigationcoding. 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;
(ed) electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto and any pre-existing translations of those transcripts, taken in the U.S. Litigation, within ten (10) business days of said transcripts becoming available, but only to the extent permitted under the U.S. Protective OrderOrder (as defined in Section 4.2(4) below); and
(fe) electronic copies of any responses to written interrogatories by documents (as defined in Rule 30.01 of the Releasees in the U.S. LitigationOntario Rules of Civil Procedure), including all schedules thereto and any pre-existing translations into English of those responses documents, produced by the Settling Defendants to the plaintiffs in Canadian Competition Bureau and the U.S. LitigationUnited States Department of Justice, to the extent such productions are not duplicative.
(43) After the Certification Date, at the request of Class Counsel acting in good faith and as reasonably necessary for the ongoing prosecution of the ProceedingsProceedings or the Second Ontario Action, the Settling Defendants shall make reasonable efforts to provide to Class Counsel, within ninety (90) days of receiving the request, or at a time mutually agreed upon by the Parties, the following:
(a) transactional cost data for the global production and sale of Anti-Vibration Rubber Parts Ignition Coils between January 1, 1995 and 1998 and, at least, December 31, 20142013, that were to the extent such data relates to Ignition Coils known or expected to be included in Automotive Vehicles that were sold in Canada. Class Counsel may request, and the Settling Defendants shall make reasonable efforts to provide, additional transactional cost data for the period between January 1, 2015 2014 and the Effective Date March 20, 2017, if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the ProceedingsProceedings and/or the Second Ontario Action. The transactional cost data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(3)(d) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(3)(a4.1(3);
(b) to the extent not previously produced pursuant to Section 4.1(3)(a4.1(2)(a), transactional sales data relating to the Settling Defendants’ global sales of Anti-Vibration Rubber Parts for use Ignition Coils, to the extent such data relates to Ignition Coils known or expected to be included in Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel; and;
(c) reasonable assistance to Class Counsel in understanding the transactional cost and/or sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel; and
(d) to the extent not already produced, any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure), including any pre-existing translations of those documents, that are relevant to the allegations in the Proceedings or the Second Ontario Action.
(54) The obligation to produce documents pursuant to Sections 4.1(34.1(2) and 4.1(4(3) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants and the Releasees who are named as Defendants following the initial productions pursuant to this Settlement AgreementAgreement or are produced in the U.S. Litigation.
(65) The Settling Defendants shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling Defendants’ representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements. The Settling Defendants shall, where possible, provide notice to Class Counsel thirty (30) days before any evidentiary proffer or interview of representatives of the Settling Defendants that occurs in the U.S. Litigation pursuant to the U.S. Settlement Agreements.
(76) It is understood that the evidentiary proffer described in Section 4.1(1) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(94.1(5) might take place before the Effective Date. In such event:
(a) any documents or information provided in the course of those evidentiary proffers and/or interviews 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 proffers and/or interviews 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 Defendant Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendant Defendants or of the truth of any claims or allegations in the ProceedingsProceedings or the Second Ontario Action, 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 return all copies of any documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendant Defendants of having done so.
(8) 7) In the event that any employee interviews provided for in the U.S. Settlement Agreements:
: (i) have already occurred; (ii) occur within six (6) months of the Effective Date, but Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of the interviews; or (iii) do not occur within six (6) months of the Effective Date, the Settling Defendants shall, at the request of Class Counsel, upon at least thirty sixty (3060) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, a up to five (5) current or former officerofficers, director directors or employee employees of the Settling Defendants who has have knowledge about the allegations in the Proceedings and the Second Ontario Action to provide information regarding the allegations raised in the Proceedings and the Second Ontario Action in a personal interview with Class Counsel and/or experts retained by Class Counsel. Class Counsel shall use reasonable efforts to limit this requirement to a single current employee. Notwithstanding the foregoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional interviews to assist with litigation against Non-Settling Defendants. Such personal interviews shall take place at in a North American location agreed upon by the Parties, acting reasonably, and shall not exceed one (1) business day or seven (7) hours for each intervieweeindividual. Costs incurred by, and the expenses of, the interviewee employees of the Settling Defendants in relation to such interviews shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per interviewee. Costs costs of an interpreter or otherwise related to foreign language translation in connection with such interviews shall be the responsibility of the Settling Defendants. If an employee refuses to provide information, or otherwise cooperate, the Settling Defendants shall use all reasonable efforts to make him/her available for an interview with Class Counsel and/or experts retained by Class Counsel. The failure of a proposed interviewee current or former employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement provided that Settling Defendants made reasonable efforts to secure such interviewee’s cooperationAgreement.
(9) 8) Subject to the rules of evidence, any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agrees agree to use reasonable efforts to produce at trial or otherwise in the Proceedings or Second Ontario Action (including through affidavit evidence):
): (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to Sections 4.1(34.1(2)(a) and 4.1(4(3)(a); (ii) a representative qualified to establish for admission into evidence any of the Settling Defendants’ documents provided as cooperation pursuant to Section 4.1(14.1(2) and (3) of this Settlement Agreement that is reasonable and necessary for the prosecution of the Proceedings and the Second Ontario Action (with Class Counsel using its best efforts to authenticate documents for use at trial or otherwise without use of a live witness); and (iii) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit the number of witnesses. To the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial or otherwise contemplated by this Section. The failure of a specific officer, director or employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. Reasonable costs incurred by, and the expenses of, the representatives in relation to fulfilling their obligations under this Section, including but not limited to the lowest-available cost at time of booking business class airfare, shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per representative.
(10) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction.
(11) 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 prepared by or for Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, 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, joint defence privilege or any other privilege, doctrine, or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, or Counsel for the Settling Defendants has created a pre-existing relevant privilege log, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) If any documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction 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.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and 4.1(16), the provisions set forth in this Section 4.1 are the exclusive means by which the Pand
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Within ten (10) days of the Date of Execution, Counsel for the Settling Defendants will meet with Class Counsel in Canada or the United States, to provide an oral evidentiary proffer which will include information originating with the Settling Defendants that is not covered by privilege relating to the allegations in the ProceedingsProceeding. The total number of proffers in the Canadian Settlements shall not exceed two (2) meetings of one (1) business day each. Notwithstanding the forgoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional proffers to assist with litigation against Non-Settling Defendants. 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 are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a the Court. 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 ProceedingsProceeding, including for the purpose of developing an allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may 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) Within ten (10) days of the Effective Date, the Settling Defendants shall provide Class Counsel with the identity of all current and former employees, directors and officers of the Releasees:
(a) who were interviewed by the U.S. Department of Justice, Japanese Fair Trade Commission and/or European Commission in connection to alleged anti- competitive activity concerning Anti-Vibration Rubber Parts; or
(b) who appeared before the grand jury in the U.S. Department of Justice investigation of conduct concerning Anti-Vibration Rubber Parts.
(3) Within thirty (30) days from the Effective Date, or at a time mutually agreed upon by the Parties, the Settling Defendants shall provide to Class Counsel:
(a) transactional sales data for the sale of Anti-Vibration Rubber Parts by the Settling Defendants from January 1, 1995 until December 31, 2014, but only to the extent that it exists, is reasonably accessible in the Settling Defendants’ electronic databases, and that such sales were associated with Anti-Vibration Rubber Parts incorporated into Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Sections 4.1(3)(d)-(f) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(1);
(b) reasonable assistance to Class Counsel in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(c) identify Automotive Vehicles containing Anti-Vibration Rubber Parts supplied by the Settling Defendants in Canada between January 1, 1995 and December 31, 2014 that may have been affected by conduct that is the subject of the Proceedings;
(d) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Anti-Vibration Rubber Parts produced or made available by the Settling Defendants in the U.S. Litigation, including pursuant to the terms of the U.S. Settlement Agreements, or that have been produced as of the Date of Execution by the Settling Defendants in the U.S. Litigation pursuant to the terms of the U.S. Settlement Agreements, and any pre-existing translations of those documents that were produced in the U.S. Litigation and any pre-existing and non- privileged electronic coding or metadata produced in the U.S. Litigation. 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;
(e) electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto and any pre-existing translations of those transcripts, taken in the U.S. Litigation, within ten (10) business days of said transcripts becoming available, but only to the extent permitted under the U.S. Protective Order; and
(f) electronic copies of any responses to written interrogatories by the Releasees 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.
(4) After the Certification Date, at the request of Class Counsel acting in good faith and as reasonably necessary for the ongoing prosecution of the Proceedings, the Settling Defendants shall make reasonable efforts to provide to Class Counsel, within ninety (90) days of receiving the request, or at a time mutually agreed upon by the Parties, the following:
(a) transactional cost data for the production of Anti-Vibration Rubber Parts between January 1, 1995 and December 31, 2014, that were known or expected to be included in Automotive Vehicles that were sold in Canada. Class Counsel may request, and the Settling Defendants shall make reasonable efforts to provide, additional transactional cost data for the period between January 1, 2015 and the Effective Date if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the Proceedings. The transactional cost data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(3)(d) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(3)(a);
(b) to the extent not previously produced pursuant to Section 4.1(3)(a), transactional sales data relating to the Settling Defendants’ sales of Anti-Vibration Rubber Parts for use in Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel; and
(c) reasonable assistance to Class Counsel in understanding the transactional cost and/or sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel.
(5) The obligation to produce documents pursuant to Sections 4.1(3) and 4.1(4) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants and the Releasees who are named as Defendants following the initial productions pursuant to this Settlement Agreement.
(6) The Settling Defendants shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling Defendants’ representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements. The Settling Defendants shall, where possible, provide notice to Class Counsel thirty (30) days before any evidentiary proffer or interview of representatives of the Settling Defendants that occurs in the U.S. Litigation pursuant to the U.S. Settlement Agreements.
(7) It is understood that the evidentiary proffer described in Section 4.1(1) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(9) might take place before the Effective Date. In such event:
(a) any documents or information provided in the course of those evidentiary proffers and/or interviews 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 proffers and/or interviews 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 Defendant as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendant 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 return all copies of any documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendant of having done so.
(8) In the event that any employee interviews provided for in the U.S. Settlement Agreements:
(i) have already occurred; (ii) occur within six (6) months of the Effective Date, but Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of the interviews; or (iii) do not occur within six (6) months of the Effective Date, the Settling Defendants shall, at the request of Class Counsel, upon at least thirty (30) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, a current or former officer, director or employee of the Settling Defendants who has knowledge about the allegations in the Proceedings to provide information regarding the allegations raised in the Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel. Class Counsel shall use reasonable efforts to limit this requirement to a single current employee. Notwithstanding the foregoing, the Settling Defendants will consider in good faith any reasonable request by Plaintiffs for additional interviews to assist with litigation against Non-Settling Defendants. Such personal interviews shall take place at a location agreed upon by the Parties, acting reasonably, and shall not exceed one (1) business day or seven (7) hours for each interviewee. Costs incurred by, and the expenses of, the interviewee in relation to such interviews shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per interviewee. Costs of an interpreter or otherwise related to foreign language translation in connection with such interviews shall be the responsibility of Class Counsel. The failure of a proposed interviewee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement provided that Settling Defendants made reasonable efforts to secure such interviewee’s cooperation.
(9) Subject to the rules of evidence, any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agrees to use reasonable efforts to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to Sections 4.1(3) and 4.1(4); (ii) a representative qualified to establish for admission into evidence any of the Settling Defendants’ documents provided as cooperation pursuant to Section 4.1(1) of this Settlement Agreement that is reasonable and necessary for the prosecution of the Proceedings (with Class Counsel using its best efforts to authenticate documents for use at trial or otherwise without use of a live witness); and (iii) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit the number of witnesses. To the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial or otherwise contemplated by this Section. The failure of a specific officer, director or employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. Reasonable costs incurred by, and the expenses of, the representatives in relation to fulfilling their obligations under this Section, including but not limited to the lowest-available cost at time of booking business class airfare, shall be shared equally by the Settling Defendants and Class Counsel. Reimbursable expenses shall not exceed $5,000.00 per representative.
(10) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction.
(11) 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 prepared by or for Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, 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, joint defence privilege or any other privilege, doctrine, or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, or Counsel for the Settling Defendants has created a pre-existing relevant privilege log, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) If any documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction 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.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and 4.1(16), the provisions set forth in this Section 4.1 are the exclusive means by which the P
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Sources: Settlement Agreement