On November 16, 2011, the Québec Court of Appeal
authorized the institution of a class action on behalf of persons
who allegedly suffered damages due to allegations of conspiracy to
fix the prices of dynamic random-access memory (DRAM) in Option
consommateurs v. Infineon Technologies AG et al. To
read the decision, click here.
This case originated in the United States when the respondents,
DRAM manufacturers, pleaded guilty to having participated in a
conspiracy to fix the prices of random-access memory in the United
States and Europe. Dynamic random-access memory is a component of
such equipment as personal computers, printers, hard drives, cell
phones and MP3 players. The class action authorized by the Court of
Appeal includes as class members both direct purchasers (persons
that purchased dynamic random-access memory, in other words
computer equipment manufacturers), and indirect purchasers (persons
that purchased products equipped with dynamic random-access memory,
for example, Québec consumers).
The Court of Appeal ruling provides, among other things,
even if documents from the United States Department of Justice
and the U.S. courts relied upon by the plaintiffs do not refer to a
conspiracy in Canada, they do refer to an international conspiracy,
and that is sufficient to justify the jurisdiction of Québec
courts at the stage of authorizing the class action;
although none of the manufacturers has a place of business in
Québec and all of their head offices are located outside
Canada, the Court of Appeal confirmed that Québec courts
have jurisdiction to hear the class action since the members of the
group suffered damages in Québec;
the action authorized is for extra-contractual liability (art.
1457 C.C.Q.) for an offence under section 45 of the Competition
Act (as drafted at the time) prohibiting any conspiracy to
unduly lessen competition;
the indirect purchasers' claim rests on the what is known
as the "passing on" theory, which holds that the price
increase resulting from the existence of a conspiracy is ultimately
passed on to consumers. If evidence of "passing on" is
brought, that could be sufficient to establish that the indirect
purchasers suffered direct damages;
Option Consommateurs is claiming a lump sum for the
prejudice suffered by both direct and indirect purchasers. Evidence
of the damages incurred by the direct and indirect purchasers, as
the case may be, will have to be brought during trial; and
although the designated person is only an indirect purchaser,
she has sufficient interest to represent all members of the group,
including direct purchasers, since members of the group all share
the same interest due to the fact that they allegedly suffered
damages resulting from a conspiracy to fix prices. The interests of
the direct and indirect purchasers therefore do not conflict at
this stage of the action, but this might no longer be the case when
the time comes to award damages.
Considering that the British Columbia Court of Appeal refused to
certify two indirect purchaser class actions in Pro-Sys
Consultants Ltd. v. Microsoft, 2011 BCCA 186 and
Sun-Rype Products Ltd. v. Archer Daniels Midland
Company, 2011 BCCA 187, and an application for leave to appeal
before the Supreme Court of Canada is currently pending in these
matters, it is possible that some of the questions raised in this
case will be submitted to the highest court of the land in the near
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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