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Class Action Updates

February 14, 2018

Settlements have been reached with the TEAC, NEC and Hitachi-LG Defendants.

January 5, 2018

The trial phase of this action has commenced. The parties have agreed to a modified trial structure where the cases-in-chief will be exchanged in writing,…

November 7, 2017

Settlements have been reached with the defendants in the following actions: Automotive Wire Harness Systems: Yazaki Systems Technologies GmbH (formerly S-Y Systems Technologies Europe, GmbH)…

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16. I do not agree with the settlement agreement. What do I do?

16. I do not agree with the settlement agreement. What do I do?

First, please contact Class Counsel by emailing or phoning Kimberley Hill at khill@cfmlawyers.ca or 1-800-689-2322. Class Counsel may be able to answer your question or resolve your concern.

You may also consider participating in the webcast “town hall” meeting (see FAQ#51) or listening to the recorded webcast (audio only) (see FAQ#54).

If you still do not agree, you have the right to object to the Court. The Court will consider any comments or objections it receives. You can object by sending your objection in writing to Class Counsel (see FAQ#44 for names and addresses) by July 17, 2015.

You can also come to the Court hearing. It will be held on July 24, 2015, starting at 10:00 a.m., in the Vancouver Courthouse at 800 Smithe Street. If you come, you may be allowed to speak to the Court.

15. Does this mean that Teck Metals/Cominco and Towers admitted that they did something wrong?

No. In a settlement, the defendants always never admit that they did anything wrong. In this lawsuit Teck Metals/Cominco and Towers specifically say that they do not admit they did anything wrong.

14. Why do these risks affect different people differently?

The limitation risk, litigation risk, and appeals risk all apply to all class members in the same way.

However, reliance risk applies differently to some class members than to others (see FAQ#10).

Class Counsel think it would have been easier for class members approaching retirement to prove that they reasonably relied on misrepresentations. In contrast, it would be harder for young class members to do so.

 

13. What is appeals risk?

Even after a trial, the lawsuit may not be over. The losing side can appeal the decision. This is the “appeals risk”.

If one side appeals the decision it can take years to resolve the lawsuit.

12. What is litigation risk?

There are always risks involved in bringing lawsuits – this is called “litigation risk”. In this case, the main risk was that the defendants might be able to prove at trial that they did nothing wrong.

11. What is limitation risk?

Limitation risk is about how long it took to start this lawsuit after the conversion.

In law, you have only a specific number of years after something happens to start a lawsuit about it. This is called a “limitation period”. If you wait too long, your lawsuit is thrown out and you lose completely.

If we had gone to trial in this case, there was a serious risk that the court would decide that we had missed our limitation period. If so, we would have lost the case entirely. That is the “limitation risk”.

10. What is reliance risk?

Reliance risk has to do with whether a claimant made the decision to convert from the DB to the DC plan because they relied on what Teck Metals/Cominco and Towers told them.

One of the plaintiffs’ main arguments in this case was Teck Metals/Cominco and Towers made some misleading statements in encouraging people to convert to the DC plan. These statements are called “misrepresentations”.

The plaintiffs also argued that if Teck Metals/Cominco and Towers had not made these misrepresentations, fewer people would have converted their pensions. This is called “reliance” – each class member must have relied on the misrepresentations to be entitled to any money for their losses.

The law also requires people to act reasonably. In the context of misrepresentations, it has to be reasonable for a person to have relied on the misrepresentations.

If this lawsuit had gone to trial, each class member would have had to prove that they relied on the misrepresentations. This also means that each class member would have had to prove that (acting reasonably) they would not have converted their pensions if there had been no misrepresentations. This is the reliance risk – the risk that class members would not be able to prove that they relied on the misrepresentations.

Class Counsel concluded that it would have been easier for some class members to prove this than others. For instance, for a class member who was young in 1992, it was reasonable to decide to convert. That is because a young class member is more likely to change careers or employers before retiring, and there are benefits to being in a DC plan if you expect to change careers or employers. This will make it harder for young class members to prove that they reasonably relied on the misrepresentations.

In contrast, for a class member who was nearing retirement in 1992, converting was much less reasonable. It would have been easier for older class members to prove that they relied on the misrepresentations.

9. Why did the representative plaintiffs agree to this settlement?

The representative plaintiffs met with Class Counsel to hear why we recommended the settlement. Then they also met with a retired judge, who was completely independent, and discussed the settlement with him without Class Counsel present.

In the end, the representative plaintiffs agreed with Class Counsel that this settlement was a good idea because there were many risks at trial (see FAQs #10-14), and there is a benefit to getting the money sooner(see FAQ#13).

8. Why did you agree to this settlement?

As Class Counsel, we do not agree to a settlement – but we do recommend that clients agree to a settlement if we think it is a good idea.

As described in the answer to FAQ#7, the settlement amount is not “calculated” in the sense that most people would understand.

We recommended this settlement because:

  • the settlement amount of $4M (plus up to $300,000 to cover the expenses incurred on behalf of the class members in the course of the litigation) is within the range of reasonable outcomes at trial;
  • there were lots of risks if we had gone to trial (see FAQs #10-14), which means that while we might have gotten more after a trial, we might also have gotten much less or nothing at all; and
  • there is a benefit in getting the money sooner (now) instead of having to wait for the end of a trial and possible appeals (see FAQ#13).

7. How did you calculate the settlement amount?

We did not calculate the settlement amount. It is the result of negotiation. Negotiation is more of an art than a science, and settling is about trading risk for certainty.

If we had gone to trial, we might have obtained more money. But we might also have obtained less, or nothing at all. That is the “risk” of going to trial. In addition, going to trial is expensive in both lawyers’ time and in money (expert fees and other out of pocket expenses).

A settlement is much more certain – the amount is set. We lose the opportunity to get more, but we also no longer have the possibility of getting less or nothing at all.

We start out by calculating what we think we would win after trial if we won absolutely every argument. This is our best case scenario.

Then we think about how likely we are to get that amount, and what amounts are more likely.

Then we negotiate back and forth with the defendants.

In the end, we try to get to a number that is within the range of reasonable outcomes at trial. That is where we consider this settlement amount to be.

 

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