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: (i) in violation of any law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, 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 regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction; or (ii) 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 the Plaintiffs and Settlement Class Members the following cooperation: (a) 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 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, 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 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 shall not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings against the Non-Settling Defendants and for no other purpose whatsoever. (b) 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: (i) provide to Class Counsel, to the extent reasonably available and subject to compliance with any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, electronic copies of transaction data of the Settling Defendants produced by the Settling Defendants related to FX Trading by Canadian residents relevant to these Proceedings, which shall be produced, to the extent that such records still exist and are available, in a form mutually acceptable to the Parties; (ii) provide reasonable assistance to Class Counsel in understanding the transactional data produced by the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts; (iii) provide electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling Defendants in the 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 such information shall not 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 Settling Defendants of having done so. (6) 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 use reasonable efforts to produce at trial or through acceptable affidavits for use at trial: (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional data provided pursuant to Section 4.1(3)(b)(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 without a live witness); and (iii) a maximum of three representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit this requirement to a single witness, and alternatively to one witness each on behalf of Barclays Bank PLC, Barclays Capital Inc. and Barclays Capital 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, employee or former employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any of the Settling Defendants’ cooperation obligations require any current or former employees of the Settling Defendants to travel from their principal place of business to another location, Class Counsel shall reimburse the Settling Defendants for half of the reasonable travel expenses incurred by any such person in connection with fulfilling the Settling Defendants’ cooperation 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. (7) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal, processing or disclosure of any documents or information, which would violate the law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction. (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 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, instruction or policy, rule or law of Ontario, Quebec or any other jurisdiction, or subject to any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. (9) If any documents protected by any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, and/or any privacy law or other rule or law of Ontario, Quebec or any other jurisdiction, are accidentally or inadvertently disclosed or produced, such documents shall be promptly returned to the Settling Defendants and the documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such documents. (10) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgments in the Proceedings against all Defendants. (11) Subject to Sections 4.1(12) and (13), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees or their current or former officers, directors or employees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (12) 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 the desire to limit the burden and expense of this litigation. Accordingly, 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 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 4 contracts

Samples: Settlement Agreement, 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: (i) in violation of any law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, 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 regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction; or (ii) 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 the Plaintiffs and Settlement Class Members the following cooperation: (a) Within sixty (60) days of after 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 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, 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 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 shall not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings against the Non-Settling Defendants and for no other purpose whatsoever. (b) 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: (i) provide to Class Counsel, to the extent reasonably available and subject to compliance with any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, electronic copies of transaction data of the Settling Defendants produced by the Settling Defendants related to FX Trading by Canadian residents relevant to these Proceedings, which shall be produced, to the extent that such records still exist and are available, in a form mutually acceptable to the Parties; (ii) provide reasonable assistance to Class Counsel in understanding the transactional data produced by the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts; (iii) provide electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling Defendants in the 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~~ Provided that counsel for the U.S. Litigation class has no objection, 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~~ any such 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 such information shall not 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 Settling Defendants of having done so. (6) 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 use reasonable efforts to produce at trial or through acceptable affidavits for use at trial: (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional data provided pursuant to Section 4.1(3)(b)(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 without a live witness); and (iii) a maximum of three representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit this requirement to a single witness~~, and alternatively to one witness each on behalf of Barclays Bank PLC, Barclays Capital Inc. and Barclays Capital 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, employee or former employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any of the Settling Defendants’ cooperation obligations require any current or former employees of the Settling Defendants to travel from their principal place of business to another location, Class Counsel shall reimburse the Settling Defendants for half of the reasonable travel expenses incurred by any such person in connection with fulfilling the Settling Defendants’ cooperation 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. (7) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal, processing or disclosure of any documents or information, which would violate the law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction. (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 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, instruction or policy, rule or law of Ontario, Quebec or any other jurisdiction, or subject to any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. (9) If any documents protected by any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, and/or any privacy law or other rule or law of Ontario, Quebec or any other jurisdiction, are accidentally or inadvertently disclosed or produced, such documents shall be promptly returned to the Settling Defendants and the documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such documents. (10) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgments in the Proceedings against all Defendants. (11) Subject to Sections 4.1(12) and (13), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees or their current or former officers, directors or employees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (12) 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 the desire to limit the burden and expense of this litigation. Accordingly, 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 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) To the extent not previously provided to the Plaintiffs and subject to the limitations set forth in this Settlement Agreement, the Settling ~~Defendants agree~~ Defendant agrees to provide the cooperation set out in this section of the Settlement Agreement, provided, however, that the Settling ~~Defendants~~ Defendant shall not be required to provide cooperation: (i) in violation of any law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, 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 regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction; or (ii) 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~~ Defendant will provide the Plaintiffs and Settlement Class Members the following cooperation: (a) ~~Within~~ The Settling Defendant shall advise the Plaintiffs of the timing of the evidentiary proffer(s) that it will be making in the U.S. Litigation pursuant to the U.S. Settlement Agreement and Class Counsel will make best efforts to attend if possible. The Settling Defendant will not object to Class Counsel participating in any such evidentiary proffer(s). The Parties agree that Class Counsel’s participation in any evidentiary proffer(s) that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreement will be all that the Settling Defendant is required to provide by way of evidentiary proffer pursuant to this Settlement Agreement. (b) In the event (and only in the event) that Class Counsel, despite its best efforts, is unable to participate in any evidentiary proffer(s) that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreement, then 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~~ Defendant will meet with Class Counsel in Canada, or at a location mutually agreed to by the Parties, to provide an evidentiary proffer which will include information originating with the Settling ~~Defendants~~ Defendant that is not 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. . (c) The Parties agree that at any evidentiary proffer(s) that takes place, 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~~ Defendant 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~~ Defendant are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, and shall not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings against the Non-Settling Defendants and for no other purpose whatsoever. (bd) 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~~ Defendant agree to use reasonable efforts to: (i) provide to Class Counsel, to the extent reasonably available and subject to compliance with any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, electronic copies of transaction data of the Settling ~~Defendants~~ Defendant produced by the Settling ~~Defendants~~ Defendant related to FX Trading by Canadian residents (that is, customers of the Settling Defendant that have provided the Settling Defendant with an address located in Canada) relevant to these Proceedings, which shall be produced, to the extent that such records still exist and are available, in a form mutually acceptable to the Parties; (ii) provide reasonable assistance to Class Counsel in understanding the transactional data produced by the Settling ~~Defendants~~Defendant, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts; (iii) provide electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling ~~Defendants~~ Defendant in the U.S. Litigation, including any documents produced by the Settling ~~Defendants~~ Defendant pursuant to the U.S. Settlement ~~Agreements~~Agreement, and any pre-existing translations of those documents produced in the U.S. Litigation, but excluding transaction data of the Settling Defendant produced by the Settling Defendant related to FX Trading by U.S. residents; 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~~ Defendant in the U.S. Litigation, within sixty (60) business days of said production in the U.S. Litigation (in the format produced therein);; and (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~~ Defendant shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling ~~Defendants’~~ Defendant’s representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement ~~Agreements~~Agreement. The Settling ~~Defendants~~ Defendant shall, where possible, provide notice to Class Counsel ten (10) days before the interview of representatives of the Settling ~~Defendants~~Defendant. (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~~ Defendant as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling ~~Defendants~~ Defendant or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind. 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 Settling ~~Defendants~~ Defendant of having done so. (6) 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~~ Defendant agrees to use reasonable efforts to produce at trial or through an acceptable ~~affidavits for use at trial: (i)~~ affidavit, a single current representative qualified to establish for admission into evidence the following: (i) the Settling ~~Defendants’~~ Defendant’s transactional data provided pursuant to Section ~~4.1(3)(b)(i~~4.1(3)(d)(i); and (ii) ~~a representative qualified to establish for admission into evidence~~ any of the Settling ~~Defendants’~~ Defendant’s documents provided as cooperation pursuant to Section ~~4.1(3~~4.1(3)(d)(iii) of this Settlement Agreement (after Class Counsel has used best efforts to authenticate documents for use at trial without a live witness); and (iii) a maximum of three representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit this requirement to a single witness, and alternatively to one witness each on behalf of Barclays Bank PLC, Barclays Capital Inc. and Barclays Capital 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, employee or former employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any of the Settling ~~Defendants’~~ Defendant’s cooperation obligations require any current or former employees of the Settling ~~Defendants~~ Defendant to travel from their principal place of business to another location, Class Counsel shall reimburse the Settling ~~Defendants~~ Defendant for half of the reasonable travel expenses incurred by any such person in connection with fulfilling the Settling ~~Defendants’~~ Defendant’s cooperation 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. (7) Nothing in this Settlement Agreement shall be construed to require the Settling ~~Defendants~~ Defendant to perform any act, including the transmittal, processing or disclosure of any documents or information, which would violate the law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction. (8) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling ~~Defendants~~ Defendant 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~~Defendant, 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, instruction or policy, rule or law of Ontario, Quebec or any other jurisdiction, or subject to any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, or to disclose or produce any information or documents ~~they~~ it obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. (9) If any documents protected by any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, and/or any privacy law or other rule or law of Ontario, Quebec or any other 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 directly or indirectly, except with the express written permission of the Settling ~~Defendants~~Defendant, and the production of such documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such documents. (10) The Settling ~~Defendants’~~ Defendant’s obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling ~~Defendants’~~ Defendant’s obligations to cooperate shall cease at the date of final judgments in the Proceedings against all ~~Defendants~~Defendants named in the Proceedings as constituted on the Date of Execution. (11) Subject to Sections 4.1(12) and (13), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees or their current or former officers, directors or employees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (12) 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~~ Defendant 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~~ Defendant fails to cooperate in accordance with that Section and the provisions of this Settlement Agreement. (13) In the event that the Settling ~~Defendants~~ Defendant materially ~~breach~~ breaches 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’~~ Defendant’s decision to execute this Settlement Agreement is the desire to limit the burden and expense of this litigation. Accordingly, Class Counsel agree to exercise good faith in seeking cooperation from the Settling ~~Defendants~~Defendant, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burdens or expense on the Settling ~~Defendants~~Defendant. (15) The scope of the Settling ~~Defendants’~~ Defendant’s cooperation under this Settlement Agreement shall be limited to the allegations asserted in the Proceedings as presently filed. (16) The Settling ~~Defendants make~~ Defendant makes 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) To the extent not previously provided to the Plaintiffs and subject to the limitations set forth in this Settlement Agreement, the Settling ~~Defendants agree~~ Defendant agrees to provide the cooperation set out in this section of the Settlement Agreement, provided, however, that the Settling ~~Defendants~~ Defendant shall not be required to provide cooperation: (i) in violation of any law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other Canadian or foreign jurisdiction, 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 regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction; or (ii) 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~~ Defendant will provide the Plaintiffs and Settlement Class Members the following cooperation: (a) Within sixty (60) days of after 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~~ Defendant will meet with Class Counsel in Canada, or at a location mutually agreed to by the Parties, to provide an evidentiary proffer which will include information originating with the Settling Defendant directed towards the involvement of the remaining Defendants to the Proceedings, including the proposed Defendants Bank of Montreal and the Toronto Dominion Bank, that is not 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 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~~ Defendant 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~~ Defendant are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, and shall not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings against the Non-Settling Defendants and for no other purpose whatsoever. (b) 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~~ Defendant agrees to use reasonable efforts to: (i) provide to Class Counsel, to the extent reasonably available and subject to compliance with any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other Canadian or foreign jurisdiction, electronic copies of transaction data of the Settling ~~Defendants~~ Defendant produced by the Settling ~~Defendants~~ Defendant related to FX Trading by ~~Canadian residents~~ Settlement Class Members relevant to these Proceedings, which shall be produced, to the extent that such records still exist and are available, in a form mutually acceptable to the Parties; (ii) provide reasonable assistance to Class Counsel in understanding the transactional data produced by the Settling ~~Defendants~~Defendant, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts; (iii) provide electronic copies of any documents to the extent relevant to the allegations in the Proceedings (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling Defendants in the U.S. Litigation, including any documents produced by the Settling ~~Defendants~~ Defendant 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~~ Defendant in the U.S. Litigation, within sixty (60) business days of said production in the U.S. Litigation (in the format produced therein);; and (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~~ Provided that counsel for the U.S. Litigation class has no objection, the Settling ~~Defendants~~ Defendant shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling ~~Defendants’~~ Defendant’s representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement ~~Agreements~~Agreements provided that the Plaintiffs in good faith determine that such proffer or interview is likely to elicit evidence directly relevant to the proceedings. The Settling ~~Defendants~~ Defendant shall, where possible, provide notice to Class Counsel ten (10) days before ~~the~~ any such interview of representatives of the Settling ~~Defendants~~Defendant. (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~~ Releasees who are named as Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the ~~Settling~~ Releasees who are named as 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. 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 Settling ~~Defendants~~ Defendant of having done so. (6) 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~~ Defendant agrees to use reasonable efforts to produce at trial or through acceptable affidavits for use at trial: (i) a current representative qualified to establish for admission into evidence the Settling ~~Defendants’~~ Defendant’s transactional data provided pursuant to Section 4.1(3)(b)(i); (ii) a representative qualified to establish for admission into evidence any of the Settling ~~Defendants’~~ Defendant’s 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 without a live witness); and (iii) a maximum of three representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit this requirement to a single witness~~, and alternatively to one witness each on behalf of Barclays Bank PLC, Barclays Capital Inc. and Barclays Capital 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, employee or former employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any of the Settling ~~Defendants’~~ Defendant’s cooperation obligations require any current or former employees of the Settling Defendants to travel from their principal place of business to another location, Class Counsel shall reimburse the Settling ~~Defendants~~ Defendant for half of the reasonable travel expenses incurred by any such person in connection with fulfilling the Settling ~~Defendants’~~ Defendant’s cooperation 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. (7) Nothing in this Settlement Agreement shall be construed to require the Settling ~~Defendants~~ Defendant to perform any act, including the transmittal, processing or disclosure of any documents or information, which would violate the law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other Canadian or foreign jurisdiction. (8) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling ~~Defendants~~ Defendant 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~~Defendant, 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, instruction or policy, rule or law of Ontario, Quebec or any other Canadian or foreign jurisdiction, or subject to any privilege, including solicitor-client, litigation, attorney work product, settlement, ~~common-~~common- interest or joint defence privilege, or any other privilege, doctrine or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. (9) If any documents protected by any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, and/or any privacy law or other rule or law of Ontario, Quebec or any other Canadian or foreign 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 directly or indirectly, except with the express written permission of the Settling ~~Defendants~~Defendant, and the production of such documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such documents. (10) The Settling ~~Defendants’~~ Defendant’s obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in ~~Section 7 of~~ this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling ~~Defendants’~~ Defendant’s obligations to cooperate shall cease at the date of final judgments in the Proceedings against all Defendants. (11) Subject to Sections 4.1(12) and (13), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees or their current or former officers, directors or employees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (12) 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~~ Defendant 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~~ Defendant fails to cooperate in accordance with that Section and the provisions of this Settlement Agreement. (13) In the event that the Settling ~~Defendants~~ Defendant 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 the desire to limit the burden and expense of this litigation. Accordingly, Class Counsel agree to exercise good faith in seeking cooperation from the Settling ~~Defendants~~Defendant, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burdens or expense on the Settling ~~Defendants~~Defendant. (15) The scope of the Settling ~~Defendants’~~ Defendant’s cooperation under this Settlement Agreement shall be limited to the allegations asserted in the Proceedings as presently filed. (16) The Settling ~~Defendants make~~ Defendant makes 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 1 contract

Samples: 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: (i) in violation of any law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, 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 regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction; or (ii) 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 the Plaintiffs and Settlement Class Members the following ~~cooperation:~~cooperation:‌ (a) 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 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, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other ~~privilege,~~ privilege,‌ doctrine or law, 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 shall not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings against the Non-Settling Defendants and for no other purpose whatsoever. (b) 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: (i) provide to Class Counsel, to the extent reasonably available and subject to compliance with any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, electronic copies of transaction data of the Settling Defendants produced by the Settling Defendants related to FX Trading by Canadian residents relevant to these Proceedings, which shall be produced, to the extent that such records still exist and are available, in a form mutually acceptable to the Parties; (ii) provide reasonable assistance to Class Counsel in understanding the transactional data produced by the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts; (iii) provide electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling Defendants in the 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);; and (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.~~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 such information shall not 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 Settling Defendants of having done so. (6) 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 use reasonable efforts to produce at trial or through acceptable affidavits for use at trial: (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional data provided pursuant to Section 4.1(3)(b)(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 without a live witness); and (iii) a maximum of ~~three~~ two representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit this requirement to a single witness, and alternatively to one witness each on behalf of ~~Barclays Bank PLC, Barclays Capital~~ RBS Securities Inc. and ~~Barclays Capital Canada Inc.~~ The Royal Bank of Scotland plc. 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, employee or former employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any of the Settling Defendants’ cooperation obligations require any current or former employees of the Settling Defendants to travel from their principal place of business to another location, Class Counsel shall reimburse the Settling Defendants for half of the reasonable travel expenses incurred by any such person in connection with fulfilling the Settling Defendants’ cooperation 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. (7) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal, processing or disclosure of any documents or information, which would violate the law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction. (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 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, instruction or policy, rule or law of Ontario, Quebec or any other jurisdiction, or subject to any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. (9) If any documents protected by any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, and/or any privacy law or other rule or law of Ontario, Quebec or any other jurisdiction, are accidentally or inadvertently disclosed or produced, such documents shall be promptly returned to the Settling Defendants and the documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such documents. (10) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgments in the Proceedings against all Defendants. (11) Subject to Sections 4.1(12) and (13), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees or their current or former officers, directors or employees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign ~~jurisdiction.~~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.~~Agreement.‌ (14) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is the desire to limit the burden and expense of this litigation. Accordingly, 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 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 1 contract

Samples: Class Action 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: (i) in violation of any law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, 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 regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction; or (ii) 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 the Plaintiffs and Settlement Class Members the following cooperation: (a) 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 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, 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 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 shall not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings against the Non-Settling Defendants and for no other purpose whatsoever. (b) 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: (i) provide to Class Counsel, to the extent reasonably available and subject to compliance with any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction, electronic copies of transaction data of the Settling Defendants produced by the Settling Defendants related to FX Trading by Canadian residents relevant to these Proceedings, which shall be produced, to the extent that such records still exist and are available, in a form mutually acceptable to the Parties; (ii) provide reasonable assistance to Class Counsel in understanding the transactional data produced by the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts; (iii) provide electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) produced by the Settling Defendants in the 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);; and (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 such information shall not 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 Settling Defendants of having done so. (6) 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 use reasonable efforts to produce at trial or through acceptable affidavits for use at trial: (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional data provided pursuant to Section 4.1(3)(b)(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 without a live witness); and (iii) a maximum of ~~three~~ two representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit this requirement to a single witness, and alternatively to one witness each on behalf of ~~Barclays Bank PLC, Barclays Capital~~ RBS Securities Inc. and ~~Barclays Capital Canada Inc.~~ The Royal Bank of Scotland plc. 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, employee or former employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any of the Settling Defendants’ cooperation obligations require any current or former employees of the Settling Defendants to travel from their principal place of business to another location, Class Counsel shall reimburse the Settling Defendants for half of the reasonable travel expenses incurred by any such person in connection with fulfilling the Settling Defendants’ cooperation 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. (7) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal, processing or disclosure of any documents or information, which would violate the law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other jurisdiction. (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 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, instruction or policy, rule or law of Ontario, Quebec or any other jurisdiction, or subject to any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. (9) If any documents protected by any privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, and/or any privacy law or other rule or law of Ontario, Quebec or any other jurisdiction, are accidentally or inadvertently disclosed or produced, such documents shall be promptly returned to the Settling Defendants and the documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such documents shall in no way be construed to have waived in any manner any privilege, doctrine, law, or protection attached to such documents. (10) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgments in the Proceedings against all Defendants. (11) Subject to Sections 4.1(12) and (13), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees or their current or former officers, directors or employees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (12) 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 the desire to limit the burden and expense of this litigation. Accordingly, 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 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 1 contract

Samples: Settlement Agreement

Common use of Extent of Cooperation Clause in Contracts