Extent of Cooperation. (1) Within sixty (60) days of the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts to: (a) Produce the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing; (b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims; (c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and (d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure. (2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree 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 the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section. (3) 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 metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each Document. (4) 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 or applicable non-disclosure agreements. (5) 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, or any other privilege, 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 or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements. (6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure. (7) 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 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) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants. (9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law. (10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement. (11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the 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 Settling Defendants 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) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.
Appears in 3 contracts
Samples: Settlement Agreement, Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within sixty (60) days of the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, Counsel for the Settling Defendants will meet with Class Counsel in Canada, or at some other location mutually agreed to by the Parties, 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 Parties agree that there shall be no audio or video recordings or written transcription of any statements made or information provided by Counsel for the Settling Defendants at the proffer. Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that any such written notes, and 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, and will not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings.
(2) Within sixty (60) days of the Effective Date or at a time mutually agreed upon by the Parties, the Settling Defendants agree to use reasonable efforts to:
(a) Produce the Sony Disclosure. To to the extent that Plaintiffs later wish available, provide to obtain video recordings Class Counsel transactional sales data of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (related to Lithium Batteries and/or Lithium Battery Products for the period of January 1, 2000 to December 31, 2013, sold in Canada, the United States or retain a third party elsewhere, if and to edit) the extent such video recordings before disclosing them sales relate to Lithium Batteries and/or Lithium Battery Products that are known or expected to have been resold into Canada. The transactional sales data will be provided in order to comply with Excel or such other format as agreed upon by the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing processParties, and Plaintiffs agree shall be delivered as a separate production from the other Documents to promptly reimburse be delivered pursuant to section (2) or identified by xxxxx number as part of the Settling Defendants for the reasonable costs production of such editingDocuments to be delivered pursuant to section (2);
(b) Identify by way to the extent available, provide to Class Counsel transactional costs data of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support related to Lithium Batteries and Lithium Battery Products for the Plaintiffs’ claimsperiod of January 1, 2000 to December 31, 2013, sold in Canada, the United States or elsewhere, if and to the extent such sales relate to Lithium Batteries and/or Lithium Battery Products that are known or expected to have been resold into Canada. The transactional costs 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 section (2) or identified by xxxxx number as part of the production of Documents to be delivered pursuant to section (2);
(c) provide the same letters of reasonable assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production transactional sales and cost data produced by the Settling Defendants; and, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(d) provide electronic copies of any Documents relating to Canadian sales which were considered produced by the Settling Defendants in the negotiation U.S. Litigation, including any Documents produced by the Settling Defendants pursuant to any U.S. Settlement Agreement, and any pre-existing translations of those Documents;
(e) provide electronic copies of transcripts and video recordings (to the extent copies are in the possession of the Settling Defendants or their agent) of all depositions and other testimony of current or former employees, officers or directors of the Settling Defendants, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations of those transcripts;
(f) provide electronic copies of any responses to written interrogatories provided by the Settling Defendants in the U.S. Litigation;
(g) provide electronic copies of any Documents produced by the Settling Defendants to the Canadian Competition Bureau, the United States Department of Justice, the European Commission, and/or any other antitrust authority concerning the allegations raised in the Proceedings, including any pre-existing translations of those Documents, but excluding any Documents created for the purpose of being so provided (without the need to identify to which government authority any particular Document was produced); and
(h) answer any questions or requests for information from Class Counsel that arise from the Documents provided to Class Counsel by the Settling Defendants, including information originating with the Settling Defendants and being within their possession relating to the allegations in the Proceedings including, without limitation, information with respect to dates, locations, subject matter, and identities of participants in any meetings or discussions between competitors relating to the purchase, sale, pricing, discounting, marketing or distributing of Lithium Batteries and Lithium Battery Products for the period of January 1, 2000 to December 31, 2013.
(3) The obligation to produce Documents pursuant to section (2) shall be a continuing obligation to the extent additional Documents are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement.
(4) The Settling Defendants make no representation regarding and shall bear no liability with respect to the accuracy of or that they have, can or will produce a complete set of any of the Documents described in section (2), and the failure to do so shall not constitute a breach or violation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(5) Documents provided to Class Counsel in accordance with section (2) will be provided in the format in which they were produced in the U.S. Litigation, to the Canadian Competition Bureau, the United States Department of Justice, the European Commission and/or any other antitrust authority, and will include any pre-existing and non-privileged electronic coding. In addition, to the extent reasonably possible, where the Documents previously produced in the U.S. Litigation contain xxxxx stamps on their face, a field will be produced containing the corresponding xxxxx stamps of the first page of each Document.
(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 any U.S. Settlement Agreements. The Settling Defendants shall, where possible, endeavor to provide notice to Class Counsel thirty (30) days before such proffers and/or interviews.
(7) It is understood that the evidentiary proffers and/or interviews described in section 4.1(6) 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 Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a Court. In order to give effect to this agreement, Class Counsel agrees to 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 Defendants of having done so.
(8) In the event that Class Counsel are unable to participate in the interviews that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements and/or no interviews occur within sixty (60) days of the Effective Date, the Settling Defendants shall, at the request of Class Counsel, upon reasonable notice, and subject to any legal restrictions, endeavor (to the extent able) to make available at a mutually convenient time, up to two (2) current or former officers, directors or employees of the Settling Defendants who have knowledge of the allegations raised 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. Such personal interviews shall not exceed one (1) business day or seven (7) hours for each individual. The employees shall be made available via videoconference or in Canada or such other place as agreed to by Counsel for the Settling Defendants and Class Counsel. Costs incurred by, and the expenses of, the employees of the Settling Defendants in relation to such interviews shall be the responsibility of the Settling Defendants and costs of an interpreter or otherwise related to foreign language translation in connection with interviews shall be the responsibility of Class Counsel. If an employee refuses to provide information, or otherwise cooperate, the Settling Defendants shall endeavor (to the extent able) to make him/her available for an interview with Class Counsel and/or experts retained by Class Counsel. The failure of an 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.
(9) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon the Settling Defendants shall endeavor (to the extent able) to produce at least eight trial or through an acceptable affidavit, current and/or former representatives qualified to establish for admission into evidence the following: (8) weeks’ notice to i) the Settling Defendants, the Settling Defendants agree ’ transactional data provided pursuant to use reasonable section 4.1(2)(a) (after Class Counsel has used best efforts to provide affidavits authenticate the transactional data for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, without a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings live witness); and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) 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 metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each Document.
(4) 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 or applicable non-disclosure agreements.
(5) 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, or any other privilege, 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 or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) 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 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) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the 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 Settling Defendants 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) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.
Appears in 3 contracts
Samples: Settlement Agreement, Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Following the execution of this Settlement Agreement but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendants shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and counsel for the Settling Defendants, including their U.S. litigation counsel, which will set out the Settling Defendants' relevant and non-privileged information derived from their investigation and factual inquiries in respect of the matters at issue in the Proceedings, including information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), including, without limitation, their knowledge of how the alleged conspiracy was formed, implemented and enforced; and,
(b) the timing and location of the oral evidentiary proffer shall be determined based on a reasonable agreement between the Settling Defendants, the Plaintiffs and the Parties’ Counsel.
(2) Within sixty thirty (6030) days of after the Effective Date, or at a time mutually agreed upon by the Parties, the Settling Defendants shall:
(a) provide to Class Counsel:
(i) copies of ordinary course of business Documents produced by the Settling Defendants to the U.S. DOJ, together with any translations of those Documents provided to the U.S. DOJ;
(ii) copies of all ordinary course of business Documents produced to any other foreign regulator with any English translations of those Documents provided to the foreign regulator, to the extent that any Documents falling into this category are not already disclosed pursuant to subsection 4.1(2)(a)(i);
(iii) sales data for the Settling Defendants of Film Capacitors, by customer and by date, to be provided in electronic form if available;
(iv) all non-privileged Documents produced by the Settling Defendants through discovery in the US Proceedings, which Documents would include non-privileged business documents of the Settling Defendants which are relevant to the alleged conspiracy;
(v) information regarding major customers of the Settling Defendants during the Class Period, specifically including OEMs who manufacture finished products; and
(vi) a list of the Settling Defendants’ top customers, broken out by OEMs and distributors, along with information, to the extent the Settling Defendants have it, that shows what types of products the customers make that incorporate the Settling Defendants’ capacitors and, to the extent the Settling Defendants know, where such products are re-sold.
(b) make available, upon reasonable notice and subject to any legal restrictions, up to two employees of the Settling Defendants with relevant knowledge for a personal interview with Class Counsel and/or experts retained by Class Counsel at a mutually convenient time. The employees shall be made available at a location to be mutually agreed upon having respect for the cost to the Settling Defendants. Subject to subsection 4.1(2)(e), costs incurred by, and the expenses of, the employees of the Settling Defendants in relation to such interviews shall be the responsibility of the Settling Defendants. All other costs, including costs of an interpreter or expenses otherwise related to foreign language translation in connection with the interviews, shall be the responsibility of Class Counsel;
(c) make available one employee to testify at the Plaintiff's certification motion and at trial to support the submission into evidence of any information provided by the Settling Defendants pursuant to this Settlement Agreement and to provide authentication and foundation for documents to be used in connection with the prosecution of the case against the Non-Settling Defendants. Subject to subsection 4.1(2)(e), costs incurred by, and the expenses of, the employee of the Settling Defendants in relation to such testimony shall be the responsibility of the Settling Defendants;
(d) the Parties shall make reasonable efforts to minimize the Settling Defendants’ costs in providing the cooperation referenced in subsections 4.1(2)(b) and (c) by, inter alia, attempting to coordinate the travel contemplated in such subsections to correspond with the cooperation based travel obligations arising from the settlement reached by the Settling Defendants and the plaintiffs in the U.S. Proceedings, to the extent that the Parties agree that such coordination is viable; and
(e) Notwithstanding anything to the contrary in this Settlement Agreement, the Settling Defendants shall be responsible for no more than CDN $30,000 in travel costs for providing the cooperation referenced in subsections 4.1(2)(b) and (c). Travel costs reasonably incurred in excess of this amount shall be the responsibility of the Plaintiffs.
(3) The obligation to produce Documents pursuant to subsection 4.1(2)(a)(i) and (ii) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendants to the U.S. DOJ, or any foreign governmental regulator relevant to the alleged conspiracy regarding Film Capacitors which is at issue in the Proceedings.
(4) Subject to the rules of evidence and any other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts to:
(a) Produce the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits authenticate for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings trial, discovery, summary judgment motions and/or certification/authorization motions, any of the Sony Disclosure Documents and information provided by the Settling Defendants in accordance with as cooperation pursuant to subsection 4.1 of this Settlement Agreement and/or and, to the extent possible, any Documents produced by the Parties other Defendants in connection with the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of originated from the Settling Defendants, as is reasonably necessary for provided that the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) Documents provided Plaintiffs will work 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 minimize any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps burden on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each Document.
(4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants pursuant to perform any actthis obligation including by, including inter alia, endeavouring to deal with authentication issues by consent among the transmittal or disclosure of any informationparties who remain in the proceedings so that this burden would not be imposed on Okaya unless, which would violate and only to the law of this or any jurisdiction or applicable non-disclosure agreementsextent that, it is necessary.
(5) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants Defendants, or any representative or employee of the Settling Defendants 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, 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, work product doctrine, common interest privilege, attorney-client privilege, joint defence privilege or any other privilege, or to disclose or produce any information or Documents they the Settling Defendants obtained on a privileged or co-operative cooperative basis from any party to any action or proceeding who is not a Releasee Releasee. Moreover, nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants, or any representative or employee of the Settling Defendants, to disclose or produce any confidential Documents or information protected by applicable non-disclosure agreements. To the extent that the Settling Defendants are required to disclose hold under commercial arrangements where such disclosure or produce Documents or information pursuant to this Settlement Agreementproduction would potentially result, in the reasonable judgment of the Settling Defendants will be allowed and their counsel, in a reasonable amount breach of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementscontract.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days If any of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part types of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7referenced in subsection 4.1(5) 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 produceddisclosed or produced by the Settling Defendants to the Plaintiffs or Class Counsel, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used 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 privilege, doctrine, law, or protection attached to such Documents.
(8) 7) The obligations of the Settling Defendants’ obligations Defendants to cooperate as particularized in this section subsection 4.1 shall not be affected by section 8 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 reasons, The obligations of the Settling Defendants’ obligations Defendants to cooperate shall cease at the date of final judgment in the Proceedings as against all Defendants.
(9) In the event that 8) If the Settling Defendants materially breach this section Section 4.1, the Plaintiffs may move before the appropriate Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this the Settlement AgreementAgreement or a part thereof. Additionally, or seek such other remedy that is available at law.
if the Settling Defendants are unable to provide the cooperation referred to in subsection 4.1(2)(b) and (10) The c), the Plaintiffs may exercise any rights they have to seek to obtain discovery in testimony at trial from the Proceedings as against knowledgable current and former officers, directors and/or employees of the Settling DefendantsDefendants and Releasees, if for the employee exclusive purpose of assisting the Plaintiffs with the prosecution of the case against the Non-Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement AgreementDefendants.
(119) Subject to sections 4.1(9subsection 4.1(8), the provisions set forth in section this subsection 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel may obtain discovery, information, information or Documents from the Settling Defendants and other Releasees or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants and the other Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(1210) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling Defendants.
Appears in 3 contracts
Samples: Class Action Settlement Agreement, Class Action Settlement Agreement, Class Action Settlement Agreement
Extent of Cooperation. (1) Within sixty Subject to section 4.1(11), and no later than forty five (6045) days of after the Effective Date, or at a time mutually agreed upon by the Parties, and subject to any confidentiality order in these Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts toshall insofar as such production has not already been produced and production is not prohibited by law:
(a) Produce provide any pre-existing documents relevant to the Sony Disclosure. To the extent Released Claims that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that were produced by the Settling Defendants may edit (or retain a third party in the U.S. Litigation including, but not limited to edit) any such video recordings before disclosing them documents provided to counsel for the plaintiffs in order the U.S. Litigation pursuant to comply with any settlement agreements entered into between the plaintiffs in the U.S. Litigation and the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way provide to Class Counsel such transactional data of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support related to the Plaintiffs’ claimssubject matter of the Proceedings for the period of the Class Period and two years after the Class Period, as Class Counsel will, prior to the Effective Date, have identified and requested in writing be compiled and produced pursuant to this paragraph, in a form mutually acceptable to the Parties;
(c) provide the same letters of reasonable assistance to Class Counsel as were provided to US the Class Counsel in the US Litigation in understanding the transactional, production and cost transactional data produced by the Settling Defendants; and, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(d) provide electronic copies of transcripts of all depositions of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation; and to the extent relevant to the allegations in the Proceedings, provide electronic copies of any Documents relating additional depositions of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken at any future date in the U.S. Litigation within ten (10) business days of said transcripts becoming available; and
(e) the Settling Defendants will instruct their counsel and use reasonable efforts to Canadian sales which were considered answer any questions or requests for information from Class Counsel that arise from the documents provided to Class Counsel by the Settling Defendants, including information originating with the Settling Defendants and being within their possession relating to the allegations in the negotiation of this Settlement AgreementProceedings including, without limitation, information with respect to dates, locations, subject matter, and that are not included identities of participants in any meetings or discussions between competitors relating to the Sony Disclosurepurchase, sale, pricing, discounting, marketing or distributing of ODD and ODD Products for the period of the Class Period and two years after the Class Period.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of Unless expressly provided otherwise in this Settlement Agreement, Section 4.1 constitutes the exclusive means by which the Plaintiffs, Settlement Class Members and upon at least eight (8) weeks’ notice to the Settling Defendants, Class Counsel may obtain discovery or information or documents from the Settling Defendants agree 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 the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created bytheir present, sent toformer or future officers, directors or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectionemployees.
(3) 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 metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each Document.
(4) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require or be construed to require the Settling Defendants or any of their present, former or future officers, directors or employees to perform any act, including the transmittal or disclosure of any information, which would violate the any federal, provincial, state or local privacy law, any law of this a foreign jurisdiction, or any jurisdiction or applicable non-disclosure agreementscourt order.
(54) Nothing in Section 4.1 or any other section of 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 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 Defendantstheir counsel, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdictionapplicable jurisdiction including but not limited to Canada and the United States, or subject to solicitor-solicitor- client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee Settling Defendant.
(5) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants to disclose or produce any Documents documents or information protected by applicable non-disclosure agreements. To the extent if the Settling Defendants are required reasonably believe that said disclosure or production will endanger any of their applications or agreements with government authorities in Canada or elsewhere in connection with any regulatory or criminal investigations relating to disclose ODD and ODD Products (without admitting that such applications or produce Documents agreements exist). If any documents or information pursuant to are withheld under this Settlement Agreementparagraph, the Settling Defendants will be allowed shall provide Class Counsel with a reasonable amount summary of time to conduct a review that ensures they receive the benefit types of this sectiondocuments and information withheld and the basis for withholding such information. The Settling Defendants shallshall act in good faith in supporting the efforts of the Plaintiffs to obtain permission from such government authorities to disclose the documents and information that have been withheld under this paragraph. If such permission is not obtained, prior said documents and information will continue to disclosure or production, review be withheld unless any of the Documents or information to determine if they are protected by applicable non-disclosure agreementsCourts order otherwise.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents 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 US are accidentally or inadvertently produced, such Documents documents shall be promptly returned to the Settling Defendants and the Documents 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 documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documentsdocuments.
(7) If, in the course of the Proceedings, the Plaintiffs and/or Class Counsel conclude that it is reasonably necessary to disclose information or documents obtained from the Settling Defendants under Section 4.1, which are not otherwise publically available, to any of the Non- Settling Defendants or any other entities, the Plaintiffs and/or Class Counsel shall provide the Settling Defendants with a thirty (30)-day advance notice in writing setting out the proposed disclosure. The Settling Defendants reserve the right to oppose the proposed disclosure and/or take steps to protect their interests with respect of the information or documents in accordance with this Settlement Agreement and/or the order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States.
(8) The 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 affidavits for use at trial in the 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 and for the prosecution of the Proceedings. If, and only if, a court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information and/or documents produced by the Settling Defendants’ , the Settling Defendants agree to use reasonable efforts to make available for testimony at trial an appropriate current officer or employee of the Settling Defendants at the expense of Class Counsel, but solely as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence any information and/or documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein.
(9) The obligations of the Settling Defendants to cooperate as particularized in this section Section 4.1 shall not be affected by section 8 the release provisions contained in Section 8.1 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section Section 4.1, the Plaintiffs Class Counsel may move before the appropriate Court Courts, on notice to the Settling Defendants, to either enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the 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 Settling Defendants 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) A material factor influencing the decision by the Settling Defendants’ decision Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not Defendants and to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue undue, unreasonable or unreasonable disproportionate burden or expense on the Settling Defendants. If Class Counsel reach a settlement with all of the Non-Settling Defendants or obtain final judgment against each of them in each of the BC Action, the Quebec Action and the Ontario Action, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect.
(11) The scope of the Settling Defendants' cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize price, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold during the Class Period, subject to the requirements of Section 4.1(1)(b)..
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Extent of Cooperation.
(1) Within sixty thirty (6030) days of the Effective DateDate of Execution, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, the Settling Defendants will use shall make reasonable best efforts to:to:
(a) Produce provide to Class Counsel existing electronic transactional data for sales by the Sony Disclosure. To Settling Defendants of Foam Products delivered in Canada during the Settlement Class Period, to the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions such data exists and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them is in order to comply with the Settling Defendants’ confidentiality power, possession or control, and disclosure obligationsto the extent that such data has not previously been provided pursuant to Section 12.2(1). Plaintiffs further agree that Counsel for the Settling Defendants shall have control over that editing process, and Plaintiffs agree agrees to promptly reimburse be reasonably available as necessary to respond to Class Counsel's questions regarding the electronic transactional data produced by the Settling Defendants for the reasonable costs of such editingDefendants;
(b) Identify by way provide to Class Counsel the transcript of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that 30(b)(6) examination of the Settling Defendants believe may support in the PlaintiffsU.S. Litigation, and if requested by Class Counsel, and at Class Counsel’s expense, any transcripts or video recordings of depositions of the Settling Defendants’ claimsemployees, directors or officers taken in the course of the U.S. Litigation;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data any documents produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement AgreementU.S. Litigation, other than productions from the Urethane Litigation produced in the U.S. Litigation, together with indices or a production log, if such exists and is in the Settling Defendants’ power, possession or control, failing which the Settling Defendants will not oppose any motion brought in the U.S. litigation for such production , and that are if requested by Class Counsel, and at Class Counsel’s expense, any productions by the Settling Defendants from the Urethane Litigation also produced in the U.S. Litigation;
(d) to the extent not included in the Sony Disclosure.
(2) Subject to the rules of evidenceproduction under Section 4.1(1)(c), provide any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree 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 the Sony Disclosure records provided by the Settling Defendants to the United States Department of Justice, or the Canadian Competition Bureau, concerning the allegations raised in accordance the Proceedings, including if available any indexes or listing of “hot documents”;
(e) through a meeting between counsel for the Settling Defendants and Class Counsel, that shall take place on a single day and last no more than five (5) hours, provide an evidentiary proffer, which will include information originating with this Settlement Agreement and/or any Documents produced by the Parties Settling Defendants and being within its possession relating to the allegations in the Proceedings that were created byincluding, sent towithout limitation, or received by the Settling Defendants. Ifinformation with respect to dates, locations, subject matter, and only ifparticipants in any meetings or discussions between competitors relating to the purchase, a Court should determine that affidavits are inadequate for the purpose sale, pricing, discounting, marketing or distributing of submitting into evidence of such information or documents, the Settling Defendants agree to use Foam Products in Canada;
(f) make reasonable best efforts to make available for testimony at trial up to three (3) current or otherwise appropriate current former directors, officers or employees of the Settling Defendants, selected by the Settling Defendants in good faith consultation with Class Counsel, which individuals shall have knowledge of the allegations in the Proceedings to provide information relating to the allegations in the Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel in the Proceedings, at a location to be reasonably agreed. Each such interview shall take place on a single day and shall last no more than eight (8) hours, except for good cause, and counsel for the Settling Defendants shall be entitled to attend such interviews. The failure or refusal of any such current or former director, officer or employee to agree to make him or herself available or to otherwise cooperate with the Plaintiffs, shall not constitute a breach or violation of the obligations of the Settling Defendants under this Settlement Agreement, and shall not provide any basis for the termination of this Settlement Agreement, so long as the Settling Defendants comply with their obligations under this Section. In the event of such a failure or refusal, the Plaintiffs may seek orders from the appropriate Court requiring such current or former director, officer and/or employee to provide such information or otherwise cooperate pursuant to this Settlement Agreement; and
(g) where there is reasonably necessary a reasonable necessity for the evidence of the current or former directors, officers or employees of the Settling Defendants in the prosecution of the Proceedings andas determined by Class Counsel, specificallymake reasonable best efforts to make up to three (3) current or former directors, officers or employees of the Settling Defendants who have knowledge of the allegations in the Proceedings available to provide evidence at trial of the Proceedings in Canada, or to provide an affidavit or declaration and attend at a cross-examination in support of the certification or authorization motion or a summary judgment motion in the Proceedings. The failure or refusal of any such current or former director, officer or employee to agree to make him or herself available, to provide testimony, to provide an affidavit or declaration, to attend at a cross-examination or to otherwise cooperate with the Plaintiffs shall not constitute a breach or violation of the obligations of the Settling Defendants under this Settlement Agreement, and shall not provide any basis for the purpose termination of admitting into evidence this Settlement Agreement, so long as the Settling Defendants comply with their obligations under this Section. In the event of such failure or refusal, the Plaintiffs may seek orders from the appropriate Court requiring such current or former director, officer and/or employee to provide such information and/or Documents. The or otherwise cooperate pursuant to this Settlement Agreement.
(2) In addition to the other obligations to cooperate set out in this Section, the Settling Defendants shall be responsible for all associated costs incurred also, within thirty (30) days of the Date of Execution or at a time mutually agreed upon by such representatives in connection with fulfilling the Parties, make reasonable best efforts to provide existing expert reports commissioned by the Settling Defendants’ obligations under this section.Defendants to assess the effect or impact of the conduct alleged in the Proceedings, including any data underlying those reports.
(3) Documents provided The obligation to Class Counsel in accordance with provide documents pursuant to this section 4.1(1) will Section shall be provided in a continuing obligation to the format in which they were extent documents are produced in by the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced Settling Defendants in the U.S. Litigation contain Xxxxx stamps on their faceor to the United States Department of Justice, a field will be produced containing or the corresponding Xxxxx stamps of Canadian Competition Bureau, following the first page of each Documentinitial productions pursuant to this Settlement Agreement.
(4) 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 or applicable non-disclosure agreementsjurisdiction.
(5) Nothing Except as provided in Section 4.1(1) and (2), nothing in this Settlement Agreement Section 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 documents or information prepared by or for counsel 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 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 documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementsReleasee.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents 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 documents shall be promptly returned to the Settling Defendants and the Documents documents and the information contained therein shall not be disclosed or used directly or indirectly, except except with the express written permission of the Settling Defendants, and the production of such Documents documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documentsdocuments.
(8) 7) The Settling Defendants’ obligations to cooperate as particularized in this section Section shall not be affected by section 8 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 reasons, the The Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) . In the event that the Settling Defendants materially breach this section 4.1Section 4, the Plaintiffs Class Counsel may move before the appropriate Court Courts to either enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, Agreement or seek such other remedy that is available at lawpart thereof.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the 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 Settling Defendants 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) 8) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their its desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not Defendants and to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling Defendants.
(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 agree to produce at trial or through acceptable affidavits or other testimony in the Proceedings (including in relation to the certification and authorization motions), representatives qualified to establish for admission into evidence any of the Settling Defendants’ documents and information provided as cooperation pursuant to this Settlement Agreement, and agree to authenticate documents produced by the Defendants that were created by, sent to, or received by the Settling Defendants.
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) To the extent not previously provided to the Plaintiffs and subject to the limitations set forth in this Settlement Agreement, the Settling Defendants agree to provide the cooperation set out in this section of the Settlement Agreement, provided, however, that the Settling Defendants shall not be required to provide cooperation in violation of any law or in contravention of the terms of any protective order in the U.S. Litigation or similar order(s) in the Proceedings or an instruction or directive to the contrary from the United States Department of Justice (“DOJ”) or any other governmental body in the United States or elsewhere or with regard to conduct outside the scope of the Released Claims.
(2) All cooperation shall be coordinated in such a manner so that all unnecessary duplication and expense is avoided.
(3) Subject to the foregoing paragraphs, the Settling Defendants will provide Class Plaintiffs and Class Members the following cooperation:
(a) Within thirty (30) days of the Date of Execution, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, counsel for the Settling Defendants will meet with Class Counsel, at a location mutually agreed to by the Parties, to provide a preliminary evidentiary proffer of no longer than two (2) hours which will include information originating with the Settling Defendants that is not covered by privilege relating to the allegations in the Proceedings. The Parties agree 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. Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that any such written notes, and 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, and will not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings.
(b) Within sixty (60) days of the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, counsel for the Settling Defendants will meet with Class Counsel, at a location mutually agreed to by the Parties, to provide an 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 Parties agree 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. Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that any such written notes, and 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, and will not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings.
(c) Within ninety (90) days after the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement and the terms of any protective order in the U.S. Litigation or similar order(s) in the Proceedings, the Settling Defendants agree to use reasonable efforts to:
(ai) Produce the Sony Disclosure. To provide to Class Counsel, to the extent that Plaintiffs later wish reasonably available and subject to obtain video recordings compliance with federal and provincial privacy legislation, transaction data of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain related to FX Trading by Canadian residents relevant to these Proceedings, which shall be produced, if so available, in a third party form mutually acceptable to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;Parties.
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(cii) provide the same letters of reasonable assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost transactional data produced by the Settling Defendants; and, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts;
(diii) provide electronic copies of any Documents relating to Canadian sales which were considered documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling Defendants in the negotiation U.S. Litigation, including any documents produced by the Settling Defendants pursuant to the U.S. Settlement Agreements, and any pre-existing translations of those documents produced in the U.S. Litigation; and provide to the extent relevant to the allegations in the Proceedings copies of any additional documents produced at any future date by the Settling Defendants in the U.S. Litigation, within sixty (60) business days of said production in the U.S. Litigation (in the format produced therein);
(iv) provide electronic copies of transcripts of all depositions, if any, of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation; and to the extent relevant to the allegations in the Proceedings, provide electronic copies of any additional depositions of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken at any future date in the U.S. Litigation within ten (10) business days of said transcripts becoming available; and
(v) to the extent not included in production under subsections 4.1(3)(c)(i)-(iv), provide electronic copies of any pre-existing documents (“document” being defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling Defendants to the Canadian Competition Bureau concerning the allegations raised in the Proceedings, to the extent not prohibited by any order of the Court, or other rule of any governmental body protecting disclosure of such documents or of the fact of such production.
(4) 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 ten (10) days before the interview of representatives of the Settling Defendants.
(5) It is understood that the evidentiary proffer described in Section 4.1(3)(a) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(4) 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 in any way, including without limiting the generality of the foregoing, against the Settling Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and that are such information shall not included in be discoverable by any Person or treated as evidence of any kind. Class Counsel shall 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 Sony DisclosureSettling Defendants of having done so.
(26) Subject to the rules of evidence, any Court court order with regard respect to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide produce at trial or through an acceptable affidavits (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional data provided pursuant to Section 4.1(3)(c)(i); (ii) a representative qualified to establish for admission into evidence any of the Settling Defendants’ documents provided as cooperation pursuant to Section 4.1(3) of this Settlement Agreement (after Class Counsel has used best efforts to authenticate documents for use at trial or otherwise in the Proceedings without a live witness); and (iii) a maximum of four representatives qualified to establish for the purpose of supporting the submission admission into evidence information provided in the Proceedings cooperation pursuant to Section 4 of the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or Agreement, provided that Class Counsel shall use all reasonable efforts to limit this requirement to a single witness, and alternatively to one witness each on behalf of Citigroup Inc., Citibank, N.A., Citibank Canada, and Citigroup Global Markets Canada Inc. To the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial contemplated by this paragraph. The failure of a specific officer, director or employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by of the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information ’ cooperation obligations require any current or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current former employees of the Settling DefendantsDefendants to travel from their principal place of business to another location, as is reasonably necessary Class Counsel shall reimburse the Settling Defendants for the prosecution half of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs reasonable travel expenses incurred by any such representatives person in connection with fulfilling the Settling Defendants’ obligations under this sectioncooperation obligations. Such reimbursement of travel expenses as set forth herein shall not exceed CAD$10,000 per person per event requiring travel. In no event shall Class Counsel be responsible for reimbursing such persons for time or services rendered.
(3) 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 metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each Document.
(47) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any documents or information, which would violate the law law, including without limiting the generality of the foregoing, any privacy laws of this or any jurisdiction or applicable non-disclosure agreementsjurisdiction.
(5) 8) 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 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 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 documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementsReleasee.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(79) If any Documents 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 documents shall be promptly returned to the Settling Defendants and the Documents 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 documents shall in no way be construed to have waived in any manner any privilege privilege, doctrine, law, or protection attached to such Documentsdocuments.
(8) 10) The Settling Defendants’ obligations to cooperate as particularized in this section Section shall not be affected by section 8 the 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 reasonsreason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(94.1(12) and (13), the provisions set forth in section this Section 4.1 are the exclusive means by which the Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel may obtain discovery, information, discovery or Documents information or documents from the Settling Defendants Releasees or their current or former officers, directors or employees, and the . The Plaintiffs, the 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 Settling Defendants 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) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against the officers, directors and/or employees of the Settling Defendants put forward to participate in employee interviews or provide testimony at trial or otherwise pursuant to Section 4.1(6), if the current or former officer, director or employee of the Settling Defendants fails to cooperate in accordance with that Section and the provisions of this Settlement Agreement.
(13) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiffs may move before the Courts to enforce the terms of this Settlement Agreement.
(14) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their the desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling Defendants.
(15) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to the allegations asserted in the Proceedings as presently filed.
(16) The Settling Defendants make no representation regarding, and shall bear no liability with respect to, the accuracy of, or that they have, can or will produce a complete set of any of the documents or information described in this Section 4.1, and the failure to do so shall not constitute a breach or violation of this Settlement Agreement.
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within sixty thirty (6030) days of the Effective Date, or at a time mutually agreed upon by the Parties, and subject to any confidentiality order in these Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants will shall insofar as such production has not already occurred and production is not prohibited by law, use reasonable efforts toto provide to Class Counsel:
(a) Produce electronic copies of any Documents (including transactional data) that were produced in the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that U.S. Litigation by the Settling Defendants may edit (or retain a third party and Releasees who are named as Defendants including, but not limited to, any such Documents provided to edit) such video recordings before disclosing them in order U.S. plaintiffs pursuant to comply with the Settling Defendants’ confidentiality any U.S. Settlement Agreements and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs any pre- existing translations of such editingdocuments;
(b) Identify by way to the extent that transactional sales and costs data of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support and other Releasees who are named as Defendants is contained in the Plaintiffs’ claimsproduction delivered pursuant to Section 4.1(1), xxxxx numbers and/or file name identifying the relevant records;
(c) provide electronic copies of transcripts of all depositions of current or former employees, officers or directors of the same letters of assistance to Class Counsel as were provided to US Class Counsel Releasees taken in the US Litigation U.S. Litigation, including all exhibits originating from the Settling Defendants, any pre-existing translations, corresponding errata sheets, and confidentiality designation letters;
(d) electronic copies of any Documents previously produced by the Releasees to the Canadian Competition Bureau or the United States Department of Justice that are relevant to the allegations in the Proceedings (excluding Documents created for the purpose of being so provided), and any pre•existing translations of such Documents;
(e) reasonable assistance in understanding the transactional, production transactional sales and cost data produced by the Settling Defendants; and
(dDefendants pursuant to Section 4.1(1) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise in the Proceedings Proceedings, 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 purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided by the Settling Defendants and Class Counsel in accordance with this Settlement Agreement and/or any Documents produced Canada, or at a location mutually agreed to by the Parties in the Proceedings that were created byParties, sent to, or received by the limited to relevant information with respect to Non-Settling Defendants. If, and only ifof up to seven (7) hours duration, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such which will not include information or documents, 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 to they will not use reasonable efforts to make available the information provided in the proffer under this paragraph for testimony at trial or otherwise appropriate current employees any purpose other than the pursuit of the Settling DefendantsProceedings, as and will not publicize any information beyond that which is reasonably necessary for the prosecution of the Proceedings andor as otherwise required by law. Further, specificallyabsent 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 admitting into evidence such information formulating legal advice, pursuing litigation and/or Documents. 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 be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectionDefendants be obliged to provide Documents in addition to those listed in Section 4.1(1).
(3) Documents provided to Class Counsel in accordance with this section 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 metadataelectronic coding. In addition, where the Documents documents previously produced in the U.S. Litigation contain Xxxxx xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx xxxxx stamps of the first page of each Documentdocument.
(4) Nothing in this Settlement Agreement shall require or be construed to require the Settling Defendants Releasees, or any of their present, former or future officers, directors or employees to perform any act, including the transmittal 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 law U.S. Litigation, and instructions or directives from the U.S. Department of this Justice or any jurisdiction other regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction), in any applicable non-disclosure agreements.jurisdiction, including but not limited to Canada, and the United States; or
(5c) Nothing in this Settlement Agreement shall requirewhich is subject to solicitor-client privilege, or shall be construed to require, the Settling Defendants litigation privilege or any representative other privilege, doctrine 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 law; or
(d) 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, or any other privilege, 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 or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent Releasees;
(5) If Counsel for the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreementhave produced a relevant privilege log in the U.S. Litigation, the Settling Defendants will be allowed provide Class Counsel with a reasonable amount copy of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementssuch log.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(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.
(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 otherwise in the Proceedings for the sole purpose of supporting the submission into evidence of any information, transactional data and/or Documents provided by the Releasees in accordance with this Settlement Agreement and for the prosecution of the Proceedings. 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 Releasees, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current officers, directors and/or employees of the 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. The Plaintiffs will work to minimize any burden on the Releasees pursuant to this section.
(8) The obligations of the Settling Defendants’ obligations Defendants to cooperate as particularized in this section Section 4 shall not be affected by section 8 the release provisions contained in Section 7.1 of this Settlement Agreement. Unless If Class Counsel reach a settlement with all of the Non-Settling Defendants or obtain final judgment against each of them in each of the Proceedings, then all obligations under this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate Section 4 shall cease at the date and this Section 4 shall be of final judgment in the Proceedings against all Defendantsno further force or effect.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable knowledgeable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants such individual(s) fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and Subsection 4.1(7) and the provisions of this Settlement Agreement.
(1110) Subject to sections Sections 4.1(9) and 4.1(11), the provisions set forth in section this Section 4.1 are the exclusive means by which the Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel may obtain discovery, information, discovery or information or Documents from the Settling Defendants Releasees or their current or former officers, directors or directors, employees, and the agents or counsel. The Plaintiffs, the 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 Settling Defendants 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.
(11) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiffs may move before the Courts to enforce the terms of this Settlement Agreement.
(12) A material factor influencing the decision by the Settling Defendants’ decision Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue undue, unreasonable or unreasonable disproportionate burden or expense on the Releasees.
(13) 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 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within sixty Upon execution of the Settlement Agreement, and in any case no later than seven (607) days from the execution of the Settlement Agreement but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendant shall provide to Class Counsel:
(a) an initial written evidentiary proffer (the “Proffer”), on a confidential basis, supported by any documentation that the Settling Defendant wishes to provide at that time, which will provide a summary of the Settling Defendant’s knowledge of (i) the range, scope, nature, duration and impact of the alleged conspiracy by the defendants; and (ii) to the extent it is not provided in item (1) above, the details of Marine Acquisition’s role in the alleged conspiracy
(b) an opportunity to conduct a 1 hour interview (the “Initial Interview”) to answer questions about the Proffer. The Initial Interview shall not be transcribed and the Initial Interview (or notes or summaries relating to it) shall not be shared with anyone by Class Counsel until the Effective Date. After the Effective Date, Class Counsel may share notes/summaries of the Interview with counsel for the Intervenor but may not publicly file or otherwise disclose those note/summaries. The notes/summaries or any other information about the Initial Interview may only be used by Class Counsel and counsel for the Intervenor for purposes of evaluating the Actions and/or negotiating with the Non-Settling Defendants. For clarity, Class Counsel may use the information discussed in the Initial Interview in discussions with the Non-Settling Defendants prior to the Effective Date;
(c) Class Counsel shall be permitted to provide the Proffer to the the Intervener and the Non-Settling Defendants and their counsel on a confidential basis; and,
(2) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties, subject to any other provisions of this Settlement Agreement and any other legal restrictions, the Settling Defendant shall:
(a) make himself available, for video conferences or telephone conferences always as agreed between his lawyer and Class Counsel to provide information and to answer questions in respect of the matters at issue in the Actions, including, without limitation, his knowledge of the alleged conspiracy;
(b) the video conferences or telephone conferences referred to in sub- paragraph (b) above shall not exceed a total of 24 hours. Given that Xx. Xxxxxxxx does not reside in Ontario, Class Counsel shall attempt to have the video or telephone conferences on consecutive days and in increments of no less than 6 hours for any one telephone or video conference;
(c) produce any Documents in his power, possession or control except to the extent that doing so would contravene a law or court order.
(3) The obligation to produce Documents pursuant to subsection 3.1(2)(c) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendant to the U.S. DOJ, the Canadian Competition Bureau or any foreign governmental regulator relevant to the alleged conspiracy regarding Parking Heaters which is at issue in the Actions.
(4) Subject to the rules of evidence and any other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts to:
(a) Produce the Sony Disclosure. To the extent that Plaintiffs later wish Defendant agrees to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits authenticate for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings trial, discovery, summary judgment motions and/or certification motions, any of the Sony Disclosure provided by Documents and, to the Settling Defendants in accordance with this Settlement Agreement and/or extent possible, any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling other Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Actions that were received by or originated from the Settling Defendants’ obligations under Defendant by way of an affidavit, unless the court orders otherwise. The Plaintiffs will work to minimize any burden on the Settling Defendant pursuant to this section.
(35) Documents provided The Settling Defendant also agrees to Class Counsel provide testimony at trial, by way of video conference, 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 metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each DocumentOntario, BC or Quebec Actions as may be required unless otherwise ordered by the court. The Ontario and BC Plaintiffs and the Intervener agree to work to minimize any burden or inconvenience to the Settling Defendant pursuant to this section.
(4) 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 or applicable non-disclosure agreements.
(56) 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 Defendant 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, 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, including the deemed undertaking rule, or subject to solicitor-client privilege, litigation privilege, work product doctrine, common interest privilege, joint defence privilege or any other privilege, or to disclose or produce any information or Documents they the Settling Defendant obtained on a privileged or co-operative cooperative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony DisclosureReleasee.
(7) If any Documents are 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 Defendant and the Documents and the information contained therein shall not be disclosed or used 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) The obligations of the Settling Defendants’ obligations Defendant to cooperate as particularized in this section subsection 3.1 shall not be affected by section 8 the release provisions contained in Section 5 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, The obligations of the Settling Defendants’ obligations Defendant to cooperate shall cease at the date of final judgment in the Proceedings Actions as against all Defendants.
(9) In the event that If the Settling Defendants Defendant materially breach breaches this section 4.1Section 3.1, the Plaintiffs may move before the appropriate Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this the Settlement Agreement, Agreement or seek such other remedy that is available at lawa part thereof.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9subsection 3.1(8), the provisions set forth in section 4.1 this subsection 3.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel may obtain discovery, information, information or Documents from the Settling Defendants or their current or former officers, directors or employees, Defendant and the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, Defendant whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(1211) A material factor influencing the Settling Defendants’ Defendant’s decision to execute this Settlement Agreement is their his desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling DefendantsDefendant, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling DefendantsDefendant.
(12) The Plaintiffs shall reimburse the Settling Defendant for all reasonably incurred costs (excluding legal fees) in connection with, or in any way related to, the Settling Defendant’s obligations to provide evidence under this Agreement, including, without limitation, the costs of establishing any video-conference or teleconference connections and any necessary travel costs. The Settling Defendant’s counsel shall co-ordinate with the Plaintiffs’ counsel to make all necessary arrangements for the provision of the Settling Defendant’s evidence in advance on an agreed basis.
(13) In the event that the Settling Defendant is required to provide evidence at the request of the Non-Settling Defendants for any reason separately from the obligations to provide evidence under this agreement, the Settling Defendant reserves all rights to seek full reimbursement from the Non-Settling Defendants of any costs incurred in connection with the provision of such evidence and to otherwise establish the terms under which any such evidence might be provided.
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Extent of Cooperation.
(1) Within sixty Subject to section 4.1(11), if requested by Class Counsel during the period beginning on the Effective Date and ending forty five (6045) days of the Effective Datethereafter, or at a time mutually agreed upon by the Parties, and subject to any confidentiality order in this Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts toshall insofar as such production has not already been produced and production is not prohibited by law:
(a) Produce provide any pre-existing documents relevant to the Sony Disclosure. To the extent Released Claims that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation U.S. Litigation including, but not limited to any such documents provided to counsel for the plaintiffs in the U’S Litigation pursuant to any settlement agreements entered into between the plaintiffs in the U.S. Litigation and the Settling Defendants, but excluding any such documents that have already been produced by the Settling Defendants to Class Counsel in the context of the DRAM litigation (and in respect of such documents, the Settling Defendants hereby authorize Class Counsel to use such documents as if they had also been provided pursuant to this Settlement Agreement); and
(b) the Settling Defendants will instruct their counsel and use reasonable efforts to answer any questions or requests for information from Class Counsel that arise from the documents provided to Class Counsel by the Settling Defendants, including information originating with the Settling Defendants and being within their possession relating to the allegations in the Proceedings including, without limitation, information with respect to dates, locations, subject matter, and that are not included identities of participants in any meetings or discussions between competitors relating to the Sony Disclosurepurchase, sale, pricing, discounting, marketing or distributing of SRAM Products during the Class Period.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of Unless expressly provided otherwise in this Settlement Agreement, Section 4.1 constitutes the exclusive means by which the Plaintiffs, Settlement Class Members and upon at least eight (8) weeks’ notice to the Settling Defendants, Class Counsel may obtain discovery or information or documents from the Settling Defendants agree 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 the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created bytheir present, sent toformer or future officers, directors or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectionemployees.
(3) 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 metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each Document.
(4) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require or be construed to require the Settling Defendants or any of their present, former or future officers, directors or employees to perform any act, including the transmittal or disclosure of any information, which would violate the any federal, provincial, state or local privacy law, any law of this a foreign jurisdiction, or any jurisdiction or applicable non-disclosure agreementscourt order.
(54) Nothing in Section 4.1 or any other section of 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 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 Defendantstheir counsel, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdictionapplicable jurisdiction including but not limited to Canada and the United States, or subject to solicitor-solicitor- client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee Settling Defendant.
(5) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants to disclose or produce any Documents documents or information protected by applicable non-disclosure agreements. To the extent if the Settling Defendants are required reasonably believe that said disclosure or production will endanger any of their applications or agreements with government authorities in Canada or elsewhere in connection with any regulatory or criminal investigations relating to disclose SRAM Products (without admitting that such applications or produce Documents agreements exist). If any documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure are withheld under Section 4.1(4) or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained4.1(5), the Settling Defendants shall be entitled to remove all affected provide Class Counsel with a summary of the types of documents from and information withheld and the Sony Disclosurebasis for withholding such information. The Settling Defendants shall produce act in good faith in supporting the remaining, unaffected documents efforts of the Sony Disclosure.Plaintiffs to obtain permission from such government authorities to disclose the documents and information that have been withheld under Section 4.1(4) or 4.1(5). If such permission is not obtained, said documents and information will continue to be withheld unless any of the Courts order otherwise.
(76) If any Documents 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 US are accidentally or inadvertently produced, such Documents documents shall be promptly returned to the Settling Defendants and the Documents documents and the information contained therein 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 documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documentsdocuments.
(7) If, in the course of the Proceedings, the Plaintiffs and/or Class Counsel conclude that it is reasonably necessary to disclose information or documents obtained from the Settling Defendants under Section 4.1 which are not otherwise publically available information or documents to any of the Non-Settling Defendants or any other entities, the Plaintiffs and/or Class Counsel shall provide the Settling Defendants with a thirty (30)-day advance notice in writing setting out the proposed disclosure. The Settling Defendants reserve the right to oppose the proposed disclosure and/or take steps to protect their interests with respect of the information or documents in accordance with this Settlement Agreement and/or the order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States.
(8) The 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 affidavits for use at trial in the Proceedings for the sole purpose of supporting the submission into evidence of any information and/or documents provided by the Settling Defendants in accordance with this Settlement Agreement and for the prosecution of the Proceedings. If, and only if, a court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information and/or documents produced by the Settling Defendants’ , the Settling Defendants agree to use reasonable efforts to make available for testimony at trial an appropriate current officer or employee of the Settling Defendants at the expense of Class Counsel, but solely as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence any information and/or documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein.
(9) The obligations of the Settling Defendants to cooperate as particularized in this section Section 4.1 shall not be affected by section 8 the release provisions contained in Section 7.1 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section Section 4.1, the Plaintiffs Class Counsel may move before the appropriate Court Courts, on notice to the Settling Defendants, to either enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the 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 Settling Defendants 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) A material factor influencing the decision by the Settling Defendants’ decision Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not Defendants and to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue undue, unreasonable or unreasonable disproportionate burden or expense on the Settling Defendants. If Class Counsel reach a settlement with all of the Non-Settling Defendants or obtain final judgment against each of them in each of the BC Action, the Quebec Action and the Ontario Action, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect.
(11) The scope of the Settling Defendants' cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize price, allocate markets or customers or restrict output or capacity, of SRAM Products sold during the Class Period.
Appears in 1 contract
Samples: Settlement Agreement
Extent of Cooperation. (1) Within sixty Subject to section 4.1(11), if requested by Class Counsel during the period beginning on the Effective Date and ending forty five (6045) days of the Effective Datethereafter, or at a time mutually agreed upon by the Parties, and subject to any confidentiality order in this Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts toshall insofar as such production has not already been produced and production is not prohibited by law:
(a) Produce provide any pre-existing documents relevant to the Sony Disclosure. To the extent Released Claims that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation U.S. Litigation including, but not limited to any such documents provided to counsel for the plaintiffs in the U’S Litigation pursuant to any settlement agreements entered into between the plaintiffs in the U.S. Litigation and the Settling Defendants, but excluding any such documents that have already been produced by the Settling Defendants to Class Counsel in the context of the DRAM litigation (and in respect of such documents, the Settling Defendants hereby authorize Class Counsel to use such documents as if they had also been provided pursuant to this Settlement Agreement); and
(b) the Settling Defendants will instruct their counsel and use reasonable efforts to answer any questions or requests for information from Class Counsel that arise from the documents provided to Class Counsel by the Settling Defendants, including information originating with the Settling Defendants and being within their possession relating to the allegations in the Proceedings including, without limitation, information with respect to dates, locations, subject matter, and that are not included identities of participants in any meetings or discussions between competitors relating to the Sony Disclosurepurchase, sale, pricing, discounting, marketing or distributing of SRAM Products during the Class Period.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of Unless expressly provided otherwise in this Settlement Agreement, Section 4.1 constitutes the exclusive means by which the Plaintiffs, Settlement Class Members and upon at least eight (8) weeks’ notice to the Settling Defendants, Class Counsel may obtain discovery or information or documents from the Settling Defendants agree 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 the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created bytheir present, sent toformer or future officers, directors or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectionemployees.
(3) 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 metadata. In addition, where the Documents previously produced in the U.S. Litigation contain Xxxxx stamps on their face, a field will be produced containing the corresponding Xxxxx stamps of the first page of each Document.
(4) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require or be construed to require the Settling Defendants or any of their present, former or future officers, directors or employees to perform any act, including the transmittal or disclosure of any information, which would violate the any federal, provincial, state or local privacy law, any law of this a foreign jurisdiction, or any jurisdiction or applicable non-disclosure agreementscourt order.
(54) Nothing in Section 4.1 or any other section of 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 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 Defendantstheir counsel, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdictionapplicable jurisdiction including but not limited to Canada and the United States, or subject to solicitor-solicitor- client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee Settling Defendant.
(5) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants to disclose or produce any Documents documents or information protected by applicable non-disclosure agreements. To the extent if the Settling Defendants are required reasonably believe that said disclosure or production will endanger any of their applications or agreements with government authorities in Canada or elsewhere in connection with any regulatory or criminal investigations relating to disclose SRAM Products (without admitting that such applications or produce Documents agreements exist). If any documents or information pursuant to this Settlement Agreementare withheld under Section 4.1(4) or 4.1(5), the Settling Defendants will be allowed shall provide Class Counsel with a reasonable amount summary of time to conduct a review that ensures they receive the benefit types of this sectiondocuments and information withheld and the basis for withholding such information. The Settling Defendants shallshall act in good faith in supporting the efforts of the Plaintiffs to obtain permission from such government authorities to disclose the documents and information that have been withheld under Section 4.1(4) or 4.1(5). If such permission is not obtained, prior said documents and information will continue to disclosure or production, review be withheld unless any of the Documents or information to determine if they are protected by applicable non-disclosure agreementsCourts order otherwise.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents 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 US are accidentally or inadvertently produced, such Documents documents shall be promptly returned to the Settling Defendants and the Documents 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 documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documentsdocuments.
(7) If, in the course of the Proceedings, the Plaintiffs and/or Class Counsel conclude that it is reasonably necessary to disclose information or documents obtained from the Settling Defendants under Section 4.1 which are not otherwise publically available information or documents to any of the Non-Settling Defendants or any other entities, the Plaintiffs and/or Class Counsel shall provide the Settling Defendants with a thirty (30)-day advance notice in writing setting out the proposed disclosure. The Settling Defendants reserve the right to oppose the proposed disclosure and/or take steps to protect their interests with respect of the information or documents in accordance with this Settlement Agreement and/or the order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States.
(8) The 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 affidavits for use at trial in the Proceedings for the sole purpose of supporting the submission into evidence of any information and/or documents provided by the Settling Defendants in accordance with this Settlement Agreement and for the prosecution of the Proceedings. If, and only if, a court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information and/or documents produced by the Settling Defendants’ , the Settling Defendants agree to use reasonable efforts to make available for testimony at trial an appropriate current officer or employee of the Settling Defendants at the expense of Class Counsel, but solely as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence any information and/or documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein.
(9) The obligations of the Settling Defendants to cooperate as particularized in this section Section 4.1 shall not be affected by section 8 the release provisions contained in Section 7.1 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section Section 4.1, the Plaintiffs Class Counsel may move before the appropriate Court Courts, on notice to the Settling Defendants, to either enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the 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 Settling Defendants 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) A material factor influencing the decision by the Settling Defendants’ decision Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not Defendants and to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue undue, unreasonable or unreasonable disproportionate burden or expense on the Settling Defendants. If Class Counsel reach a settlement with all of the Non-Settling Defendants or obtain final judgment against each of them in each of the BC Action, the Quebec Action and the Ontario Action, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect.
(11) The scope of the Settling Defendants' cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize price, allocate markets or customers or restrict output or capacity, of SRAM Products sold during the Class Period.
Appears in 1 contract
Samples: Settlement Agreement
Extent of Cooperation. (1) The co-operation obligations set out in this Settlement Agreement apply only to Holy Stone. No other Settling Defendants have any other cooperation obligations.
(2) Within thirty (30) days after execution of this Settlement Agreement, or at a time mutually agreed upon by the Parties acting reasonably, Holy Stone shall provide to Class Counsel:
(a) copies of all Documents, together with any pre-existing translations of those Documents, produced by Holy Stone to the U.S. Department of Justice and/or in the U.S. Litigation, all to be provided in electronic form if available. Such documents will include sales/transaction data including cost data produced in the U.S. Litigation, which includes transaction data that has “bill to” and “ship to” addresses and names of customers including those in North America, as well as evidence concerning the alleged conspiracy as among the defendants;
(b) all deposition transcripts for depositions given by Holy Stone in the U.S. Litigation, including deposition transcripts of any future depositions given Holy Stone in the U.S. Litigation, all to be provided in electronic form if available, redacted as required to comply with applicable protective orders in the U.S. Litigation; and,
(c) U.S. Litigation Documents will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation redacted as required to comply with applicable protective orders in the U.S. Litigation.
(3) Within thirty (30) days of delivery of the materials set out in 4.1(2), or at a time mutually agreed upon by the parties acting reasonably, Holy Stone shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel for Holy Stone, including their U.S. Litigation counsel, which will set out Holy Stone’s relevant and non-privileged information derived from their investigation and factual inquiries in respect of the matters at issue in the Electrolytic Proceedings, including information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), including, without limitation:
(i) their knowledge of how the alleged conspiracy was formed, implemented and enforced;
(ii) the identification of “key” documents relevant to the alleged conspiracy and to the conduct of specific Defendants as requested and to the extent known;
(iii) answers to Class Counsel’s questions concerning the conduct and involvement of specific Defendants, to the extent known, in the alleged conspiracy; and
(iv) disclose to Class Counsel the identities and any known particulars of Holy Stone’s key former officers, directors and employees who witnessed and/or participated in the alleged conspiracy.
(b) The location of the oral evidentiary proffer shall be as mutually agreed by the Parties.
(4) Within sixty (60) days of after the Effective Date, or at a time mutually agreed upon by the Partiesparties acting reasonably, Holy Stone shall make available, upon reasonable notice and subject to any legal restrictions, a representative of Holy Stone, and/or Holy Stone legal counsel provided that any legal privilege that could frustrate the other provisions delivery of this Settlement Agreementthe required cooperation is waived, with relevant knowledge, with a translator, if necessary, for a personal interview with Class Counsel and/or experts retained by Class Counsel at a mutually convenient time for up to 8 hours. Holy Stone’s representative and/or legal counsel will make reasonable efforts to inform him or herself about the alleged conspiracy, and Holy Stone will make reasonable efforts to prepare and educate the representative and/or legal counsel about the alleged conspiracy and relevant facts, to the extent they are within the knowledge of Holy Stone, including how the overall alleged conspiracy worked, the Settling Defendants will use identity of Holy Stone’s primary Electrolytic Capacitor customers (globally and in North America), and those downstream product(s) to which Electrolytic Capacitors were incorporated. The interview may be recorded by a court reporter under oath, provided the Electrolytic Plaintiffs so elect, and provided reasonable efforts to:
advanced notice of no less than thirty (a30) Produce days is given to Holy Stone, but if the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree witness is legal counsel it is agreed that the Settling Defendants may edit (or retain interview will not be conducted under oath. The witness shall be made available at a third party location to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants be mutually agreed upon having respect for the reasonable costs of such editing;
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants. Costs incurred by, and the expenses of, the Settling Defendants agree employees of Holy Stone in relation to use reasonable efforts such interviews, including a translator if translation services are required, shall be the responsibility of Holy Stone;
(5) Holy Stone agrees to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings authenticate any of the Sony Disclosure provided by the Settling Defendants documents produced in accordance with this Settlement Agreement and/or subsection 4.1(2) to the extent Holy Stone can establish their authenticity and that the Electrolytic Plaintiffs require their authentication for their admission and use at any Documents produced by the Parties point in the Electrolytic Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate including for the purpose purposes of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees trial. Plaintiffs acknowledge that Holy Stone does not have control over persons with direct knowledge of the Settling Defendants, as is reasonably necessary for the prosecution facts of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectioncase and their ability to cooperate is accordingly limited.
(36) The obligation on Holy Stone to produce and authenticate Documents produced pursuant to subsection 4.1(2) shall be a continuing one only to the extent that additional Documents are provided by Holy Stone to Class Counsel in accordance with this section 4.1(1) will be provided the Canadian Competition Bureau, the U.S. Department of Justice or in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in context of the U.S. Litigation contain Xxxxx stamps on their faceregarding Electrolytic Capacitors which is at issue in the Electrolytic Proceedings. Class Counsel and the Electrolytic Plaintiffs shall, a field will be produced containing in reference to this continuing obligation, consult with Counsel for Holy Stone and seek to utilize the corresponding Xxxxx stamps of the first page of each Document.
(4) Nothing in this Settlement Agreement shall be construed to require least burdensome, costly and intrusive means for the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of discharge their obligation under this or any jurisdiction or applicable non-disclosure agreementsprovision.
(57) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants Defendants, or any representative or employee of the Settling Defendants 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 legally privileged (except where legal privilege has been waived in respect of cooperation provided by legal counsel of the Settling DefendantsHoly Stone, as contemplated in 4.1(4)) or to disclose or produce any Documents or information in breach of any order, non-disclosure or confidentiality obligation, 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 privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable it being understood and agreed that no non-disclosure agreements. To or confidentiality obligation applies or shall apply to prevent the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected productions contemplated by applicable non-disclosure agreementssection 4.1(2)(a) and (c).
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days 8) If any of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7referenced in 4.1(8) 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 Holy Stone and the Documents and the information contained therein shall not be disclosed or used used, directly or indirectly, except with the express written permission of the Settling DefendantsHoly Stone, 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) 9) The Settling Defendants’ obligations of Holy Stone to cooperate as particularized in this section subsection 4.1 shall not be affected by section 8 the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approvedOther than the obligation set out at s. 4.1(7), is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations Holy Stone’s obligation to cooperate as particularized in this s. 4.1 shall cease at the date of final judgment once it has fulfilled its obligations as set out in the Proceedings against all Defendantsss. 4.1(2)-(5).
(910) In the event that the Settling Defendants If Holy Stone materially breach breaches this section Section 4.1, the Electrolytic Plaintiffs may move before the appropriate Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this the Settlement AgreementAgreement or a part thereof, or seek such other remedy that is available at law.
(10) The Plaintiffs and may exercise any rights they have to seek to or obtain discovery in the Proceedings as against knowledgable testimony, discovery, information or Documents from current officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9subsections 4.1(11) and (13), the provisions set forth in section this subsection 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members Electrolytic Plaintiffs and Class Counsel may obtain discovery, information, information or Documents from the Settling Defendants or their current or former officers, directors or employeesReleasees, and the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, of any of the Settling Defendants or their current or former officers, directors, employees, agents, or counselReleasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) For greater clarity, the Electrolytic Plaintiffs do not waive any rights they may have to seek or obtain testimony, discovery, information or Documents from former officers, directors and/or employees of Holy Stone who also are former officers, directors and/or employees of Hitachi Chemical Co. Ltd. or Hitachi AIC Inc.
(13) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Electrolytic Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling DefendantsHoly Stone, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling DefendantsDefendants and other Releasees.
Appears in 1 contract
Samples: Class Action Settlement Agreement
Extent of Cooperation. (1) The co-operation obligations set out in this Settlement Agreement apply only to Holy Stone. No other Settling Defendants have any other cooperation obligations.
(2) Within thirty (30) days after execution of this Settlement Agreement, or at a time mutually agreed upon by the Parties acting reasonably, Holy Stone shall provide to Class Counsel:
(a) copies of all Documents, together with any pre-existing translations of those Documents, produced by Holy Stone to the U.S. Department of Justice and/or in the U.S. Litigation, all to be provided in electronic form if available. Such documents will include sales/transaction data including cost data produced in the U.S. Litigation, which includes transaction data that has “xxxx to” and “ship to” addresses and names of customers including those in North America, as well as evidence concerning the alleged conspiracy as among the defendants;
(b) all deposition transcripts for depositions given by Holy Stone in the U.S. Litigation, including deposition transcripts of any future depositions given Holy Stone in the U.S. Litigation, all to be provided in electronic form if available, redacted as required to comply with applicable protective orders in the U.S. Litigation; and,
(c) U.S. Litigation Documents will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation redacted as required to comply with applicable protective orders in the U.S. Litigation.
(3) Within thirty (30) days of delivery of the materials set out in 4.1(2), or at a time mutually agreed upon by the parties acting reasonably, Holy Stone shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel for Holy Stone, including their U.S. Litigation counsel, which will set out Holy Stone’s relevant and non-privileged information derived from their investigation and factual inquiries in respect of the matters at issue in the Electrolytic Proceedings, including information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), including, without limitation:
(i) their knowledge of how the alleged conspiracy was formed, implemented and enforced;
(ii) the identification of “key” documents relevant to the alleged conspiracy and to the conduct of specific Defendants as requested and to the extent known;
(iii) answers to Class Counsel’s questions concerning the conduct and involvement of specific Defendants, to the extent known, in the alleged conspiracy; and
(iv) disclose to Class Counsel the identities and any known particulars of Holy Stone’s key former officers, directors and employees who witnessed and/or participated in the alleged conspiracy.
(b) The location of the oral evidentiary proffer shall be as mutually agreed by the Parties.
(4) Within sixty (60) days of after the Effective Date, or at a time mutually agreed upon by the Partiesparties acting reasonably, Holy Stone shall make available, upon reasonable notice and subject to any legal restrictions, a representative of Holy Stone, and/or Holy Stone legal counsel provided that any legal privilege that could frustrate the other provisions delivery of this Settlement Agreementthe required cooperation is waived, with relevant knowledge, with a translator, if necessary, for a personal interview with Class Counsel and/or experts retained by Class Counsel at a mutually convenient time for up to 8 hours. Holy Stone’s representative and/or legal counsel will make reasonable efforts to inform him or herself about the alleged conspiracy, and Holy Stone will make reasonable efforts to prepare and educate the representative and/or legal counsel about the alleged conspiracy and relevant facts, to the extent they are within the knowledge of Holy Stone, including how the overall alleged conspiracy worked, the Settling Defendants will use identity of Holy Stone’s primary Electrolytic Capacitor customers (globally and in North America), and those downstream product(s) to which Electrolytic Capacitors were incorporated. The interview may be recorded by a court reporter under oath, provided the Electrolytic Plaintiffs so elect, and provided reasonable efforts to:
advanced notice of no less than thirty (a30) Produce days is given to Holy Stone, but if the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree witness is legal counsel it is agreed that the Settling Defendants may edit (or retain interview will not be conducted under oath. The witness shall be made available at a third party location to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants be mutually agreed upon having respect for the reasonable costs of such editing;
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants. Costs incurred by, and the expenses of, the Settling Defendants agree employees of Holy Stone in relation to use reasonable efforts such interviews, including a translator if translation services are required, shall be the responsibility of Holy Stone;
(5) Holy Stone agrees to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings authenticate any of the Sony Disclosure provided by the Settling Defendants documents produced in accordance with this Settlement Agreement and/or subsection 4.1(2) to the extent Holy Stone can establish their authenticity and that the Electrolytic Plaintiffs require their authentication for their admission and use at any Documents produced by the Parties point in the Electrolytic Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate including for the purpose purposes of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees trial. Plaintiffs acknowledge that Holy Stone does not have control over persons with direct knowledge of the Settling Defendants, as is reasonably necessary for the prosecution facts of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectioncase and their ability to cooperate is accordingly limited.
(36) The obligation on Holy Stone to produce and authenticate Documents produced pursuant to subsection 4.1(2) shall be a continuing one only to the extent that additional Documents are provided by Holy Stone to Class Counsel in accordance with this section 4.1(1) will be provided the Canadian Competition Bureau, the U.S. Department of Justice or in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in context of the U.S. Litigation contain Xxxxx stamps on their faceregarding Electrolytic Capacitors which is at issue in the Electrolytic Proceedings. Class Counsel and the Electrolytic Plaintiffs shall, a field will be produced containing in reference to this continuing obligation, consult with Counsel for Holy Stone and seek to utilize the corresponding Xxxxx stamps of the first page of each Document.
(4) Nothing in this Settlement Agreement shall be construed to require least burdensome, costly and intrusive means for the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of discharge their obligation under this or any jurisdiction or applicable non-disclosure agreementsprovision.
(57) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants Defendants, or any representative or employee of the Settling Defendants 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 legally privileged (except where legal privilege has been waived in respect of cooperation provided by legal counsel of the Settling DefendantsHoly Stone, as contemplated in 4.1(4)) or to disclose or produce any Documents or information in breach of any order, non-disclosure or confidentiality obligation, 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 privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable it being understood and agreed that no non-disclosure agreements. To or confidentiality obligation applies or shall apply to prevent the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected productions contemplated by applicable non-disclosure agreementssection 4.1(2)(a) and (c).
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days 8) If any of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7referenced in 4.1(8) 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 Holy Stone and the Documents and the information contained therein shall not be disclosed or used used, directly or indirectly, except with the express written permission of the Settling DefendantsHoly Stone, 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) 9) The Settling Defendants’ obligations of Holy Stone to cooperate as particularized in this section subsection 4.1 shall not be affected by section 8 the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approvedOther than the obligation set out at s. 4.1(7), is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations Holy Stone’s obligation to cooperate as particularized in this s. 4.1 shall cease at the date of final judgment once it has fulfilled its obligations as set out in the Proceedings against all Defendantsss. 4.1(2)-(5).
(910) In the event that the Settling Defendants If Holy Stone materially breach breaches this section Section 4.1, the Electrolytic Plaintiffs may move before the appropriate Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this the Settlement AgreementAgreement or a part thereof, or seek such other remedy that is available at law.
(10) The Plaintiffs and may exercise any rights they have to seek to or obtain discovery in the Proceedings as against knowledgable testimony, discovery, information or Documents from current officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9subsections 4.1(11) and (13), the provisions set forth in section this subsection 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members Electrolytic Plaintiffs and Class Counsel may obtain discovery, information, information or Documents from the Settling Defendants or their current or former officers, directors or employeesReleasees, and the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, of any of the Settling Defendants or their current or former officers, directors, employees, agents, or counselReleasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) For greater clarity, the Electrolytic Plaintiffs do not waive any rights they may have to seek or obtain testimony, discovery, information or Documents from former officers, directors and/or employees of Holy Stone who also are former officers, directors and/or employees of Hitachi Chemical Co. Ltd. or Hitachi AIC Inc.
(13) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Electrolytic Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling DefendantsHoly Stone, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling DefendantsDefendants and other Releasees.
Appears in 1 contract
Samples: Class Action Settlement Agreement
Extent of Cooperation. (1) Within sixty thirty (6030) days after the Execution Date or at a time mutually agreed upon by the Parties acting reasonably, but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendants shall provide to Class Counsel:
(a) an oral evidentiary proffer, through a meeting between Class Counsel and Counsel for the Settling Defendants, including their U.S. Litigation counsel, which will set out the Settling Defendants’ relevant and non-privileged information derived from their investigation and factual inquiries in respect of the matters at issue in the Proceedings, including information derived from business records, testimonial transcripts and employee or witness interviews (if applicable), including, without limitation:
(i) any information regarding how the alleged electrolytic and film conspiracies were formed, implemented and enforced, including specific examples of methods employed by the Defendants in furtherance of the alleged conspiracy;
(ii) any information regarding the scope of the alleged conspiracies;
(iii) any information regarding the duration of the alleged conspiracies;
(iv) answers to Class Counsel’s questions and identification of the conduct, involvement, and role of each Defendant, to the extent known, in the alleged conspiracies, including Defendants tolled in the Proceedings;
(v) disclose to Class Counsel the identities and any known particulars (if permitted by law) of the key former officers, directors, and employees who witnessed and/or participated in the alleged conspiracies;
(vi) the identification and description of “key” documents relevant to the alleged conspiracies and to the conduct of specific Defendants as requested and to the extent known, and, to the extent in the Settling Defendants’ possession, the provision of copies of those documents to Class Counsel; and
(vii) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance that was provided by way of proffer to plaintiffs’ counsel in the U.S. Litigation.
(b) The method and meeting place of the oral evidentiary proffer shall be agreed upon between the Parties due to the COVID-19 Pandemic and may be conducted virtually through a secure virtual meeting platform. The oral evidentiary proffer may last up to one full business day. Counsel for the Settling Defendants shall make themselves available for reasonable follow-up questions by Class Counsel.
(c) Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants as part of the oral evidentiary proffer are privileged, will be kept strictly confidential, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court or unless there is an agreement between the Plaintiffs and the Settling Defendants to make such disclosure. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use information obtained from the proffer in the prosecution of the Proceedings, including for the purpose of developing the Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a court order, the Plaintiffs shall not introduce any information from a proffer into the record or subpoena any Counsel for the Settling Defendants related to a proffer.
(2) It is understood that the evidentiary proffer described in Section 4.1(1) might take place before the Effective Date. In such event:
(a) any Documents or information provided in the course of that evidentiary proffer shall be subject to the terms and protections of this Settlement Agreement; and
(b) in the event that this Settlement Agreement is not approved, is terminated, or otherwise fails to take effect for any reason, the Documents and information provided during the evidentiary proffer shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a court. In order to give effect to this agreement, Class Counsel agrees to make reasonable efforts to return all copies of any Documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), the evidentiary proffer and to provide written confirmation to the Settling Defendants of having done so.
(3) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement AgreementParties acting reasonably, the Settling Defendants will use shall make reasonable efforts toto provide to Class Counsel:
(a) Produce the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings copies of past and/or future depositions and live testimonyall Documents, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply together with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing processany pre-existing translations of those Documents, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules Canadian Competition Bureau, the U.S. Department of evidenceJustice, any Court order with regard to confidentiality and the other provisions of this Settlement Agreementgovernmental antitrust authority, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree 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 the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) 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, all to be provided in electronic form if available. The U.S. Litigation Documents will, to the extent possible, be produced with the same document numbers utilized in the U.S. Litigation and will shall include any pre-existing and non-privileged metadata. In addition, where the Documents previously electronic coding or metadata produced in the U.S. Litigation contain Xxxxx stamps on their faceLitigation;
(b) any deposition transcripts for depositions of current or former employees, a field will be produced containing the corresponding Xxxxx stamps officers or directors of the first page Releasees in the U.S. Litigation (including exhibits thereto), including deposition transcripts of each Documentany future depositions given by the Settling Defendants in the U.S. Litigation, all to be provided in electronic form if available and any pre-existing translations of the foregoing;
(c) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations; electronic copies of any responses to written interrogatories by the Releasees, including all schedules thereto, taken in the U.S. Litigation, and any pre-existing translations into English;
(d) any answers to interrogatories provided by the Settling Defendants in the U.S. Litigation and any pre-existing translations of the foregoing;
(e) electronic copies of any responses to requests to admit provided by the Releasees in the U.S. Litigation and any pre-existing translations into English;
(f) disclosure of any finished Capacitor product dataset and Capacitor product demand forecast dataset procured and maintained by the Defendant Sanyo Electric Co., Ltd. including any such data compiled by any third party vendors for use by it and/or the alleged cartel participants during the Class Period;
(g) disclosure of all customer and sales data produced in the US Litigation. The Settling Defendants agree to provide reasonable assistance to Class Counsel and to answer reasonable questions in respect of the sales and customer data that is produced;
(h) to the extent not included in the above, any relevant Documents that are specific to the Settling Defendants’ sales and conduct regarding Electrolytic and Film Capacitors in Canada during the Class Period; and
(i) to the extent not included in the above, the Settling Defendants shall provide to Class Counsel all equivalent assistance and disclosure that was provided to plaintiffs’ counsel in the U.S. Litigation.
(4) Nothing Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants shall provide to Class Counsel reasonable ongoing access to a member of the Settling Defendants’ external legal counsel team to answer Class Counsel’s reasonable questions relating to the Proceedings. Class Counsel’s access to external counsel as a knowledgeable representative of the Settling Defendants shall be equivalent in nature and scope to the access provided by the Settling Defendants in the U.S. Litigation. For greater certainty, the Settling Defendant’s obligation to provide the access begins no later than thirty (30) days after the Effective Date and shall continue on an ongoing basis until the Settling Defendants’ cooperation obligations cease per section 4.1(12).
(5) Within ninety (90) days of a request from Class Counsel, which shall not be made until the earlier of (i) a finalized discovery plan in the Ontario Electrolytic or Film Actions, as applicable, or (ii) a finalized litigation protocol that provides for the production of documents in the Québec Action, unless it is otherwise agreed by the Parties that the request may be made on other reasonable grounds at an earlier time, the Settling Defendants agree to make reasonable efforts to provide:
(a) to the extent it is not produced under s. 4.1(3) and is reasonably available in electronic form, production of data pertaining to the Settling Defendants’ global sales of Electrolytic Capacitors and/or Film Capacitors, including information regarding the Settling Defendants’ sales of Electrolytic Capacitors and/or Film Capacitors in North America, specifically including all customer and sales data regarding sales of Electrolytic and Film Capacitors to Canadian customers, for the full duration of the Class Period plus two years before and after it and cost information associated with those sales;
(b) disclosure to Class Counsel of the identities and any known general particulars of the major global original equipment manufacturers reasonably known to the Settling Defendants that purchased Electrolytic Capacitors and/or Film Capacitors which were incorporated into products sold in Canada within the Class Period; and
(c) a reasonable amount of explanation, documentation and information possessed by and available to the Settling Defendants that reveal the details of the incorporation of Electrolytic Capacitors and/or Film Capacitors throughout the Settling Defendants’ vertically integrated chain of production into finished products sold in Canada by the Settling Defendants or any affiliated company during the Class Period. This information shall include reasonable and relevant documentation and information regarding a selection of some specific products or product categories sold by the Settling Defendants or their subsidiaries or related companies in Canada during the Class Period, including, but not limited to, product lists, costing and sales data. The Settling Defendants shall make available reasonable information to assist with the selection. The parties shall agree upon the selection acting reasonably.
(6) Within ninety (90) days after the Effective Date, or at a time mutually agreed upon by the Parties acting reasonably, the Settling Defendants agree to the conduct of a witness interview by the Plaintiffs with one (1) current employee of the Settling Defendants with knowledge of the alleged conspiracy. The interview may last up to two (2) full business days and will occur by videoconference using a virtual meeting platform unless applicable COVID-19 related restrictions have been lifted and in such case the interview may occur in person in Japan, unless Panasonic consents to an in-person interview outside of Japan. For greater certainty, the witness interview will mirror the process taken in the U.S. Litigation. The interview shall not be under oath. Costs incurred by, and the expenses of, the employee(s) of the Settling Defendants in relation to such interview, including any cost for a translator, shall be the responsibility of the Settling Defendants.
(7) The Settling Defendants agree to use reasonable efforts to authenticate any of their Documents or data produced in accordance with subsections 4.1(1), (3) and (5) to the extent the Settling Defendants can establish their authenticity and that the Plaintiffs require their authentication for their admission and use at any point in the Proceedings.
(8) The Settling Defendants agree to make available two (2) current employees of the Settling Defendants with relevant knowledge of the alleged conspiracy to provide affidavit or live testimonial evidence on the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree (in the Electrolytic Proceedings and the Film Proceedings), to the extent that such evidence is required by the Plaintiffs, at a location to be mutually agreed upon as the circumstances require, and provided that such witness’s travel to and from the location of the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree is safe and permitted by applicable national, regional, and local laws, rules, and regulations regarding travel, and provided that the witness’s participation is subject to such witness’s right to refuse to travel to the certification motion, summary judgment and/or at the trial or in such other circumstances in the litigation as the Parties may otherwise agree for legitimate, health-related concerns. If the witness refuses to or is unable to travel for reasons described in this Settlement Agreement paragraph, the Parties shall agree on another satisfactory means of obtaining the witness’s evidence. The parties agree to collaborate to minimize the costs incurred by, and the expenses of, the employee of the Settling Defendants in relation to such testimony, including any cost for a translator, and agree that Class Counsel shall assume these costs.
(9) The obligation to produce and authenticate Documents produced pursuant to subsection 4.1(3) shall be construed a continuing one to require the extent that additional Documents are provided by the Settling Defendants to perform any actthe Canadian Competition Bureau, including the transmittal U.S. Department of Justice or disclosure in the context of any informationthe U.S. Litigation regarding Electrolytic Capacitors and/or Film Capacitors which are at issue in the Proceedings. Class Counsel and the Plaintiffs shall, which would violate in reference to this continuing obligation, consult with Counsel for the law of Settling Defendants and seek to utilize the least burdensome, costly and intrusive means for the Settling Defendants to discharge their obligation under this or any jurisdiction or applicable non-disclosure agreementsprovision.
(510) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants Defendants, or any representative or employee of the Settling Defendants 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, legally privileged or to disclose or produce any Documents or information in breach of any order, non-disclosure, privacy or confidentiality obligation, regulatory directive, rule or law of this or any jurisdiction, 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 privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable it being understood and agreed that no non-disclosure agreements. To or confidentiality obligation applies or shall apply to prevent the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreementproductions contemplated by sections 4.1(1), the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall(3), prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements(5) and (6).
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(711) If any of the Documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction referenced in 4.1(10) are accidentally or inadvertently disclosed or produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used 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 privilege, doctrine, law, or protection attached to such Documents.
(8) 12) The obligations of the Settling Defendants’ obligations Defendants to cooperate as particularized in this section Section 4.1 shall not be affected by section 8 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 reasons, The obligations of the Settling Defendants’ obligations Defendants to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the 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 Settling Defendants 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) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.
Appears in 1 contract
Samples: Settlement Agreement
