November 26, 2021
Practical Law Canada Competition, of which I am a Lawyer Editor, has published a new Legal Update, which discusses a recent decision by the Federal Court to dismiss a motion for certification of a class action in relation to sections 45 and 46 of the Competition Act. Below is an excerpt with a link to the full Legal Update.
____________________
This Legal Update discusses a decision by the Federal Court to dismiss a motion for certification of a class action in relation to sections 45 and 46 of the Competition Act, R.S.C. 1985, c. C-34. The Court dismissed the motion by holding that the plaintiffs failed to sufficiently prove the existence of an express or tacit conspiracy agreement between the defendants and, therefore, failed to disclose a reasonable cause of action or raise a common question of law or fact, which are essential to certify a class action under Rule 334.16(1) of the Federal Courts Rules, SOR/98-106.
On November 5, 2021, the Federal Court issued a decision dismissing a motion to certify a class action in relation to an alleged criminal conspiracy under sections 45 and 46 of the Competition Act, R.S.C., 1985, c. C-34 (Competition Act) to suppress the supply of Dynamic Random Access Memory chips (DRAM): a type of semiconductor memory chip used in most computer products (see Jensen v. Samsung Electronics Co. Ltd., 2021 CarswellNat 4914 (F.C.) (Jensen)).
The representative plaintiffs in this case alleged that the three defendants, who were estimated to have collectively manufactured 96-98% of DRAM sold globally in 2017-2018, conspired, through direct private communications and through public statements (that is, by “signaling” to each other at industry conferences, investor calls and earning calls), to suppress the supply of DRAM and increase DRAM prices.
Under section 36 of the Competition Act, the plaintiffs sought $1 billion in damages for Canadians that had purchased products containing DRAM between June 1, 2016 and February 1, 2018.
In dismissing the plaintiffs’ motion, the Court, per Gascon J., found that the plaintiffs had failed to meet two of the five required conditions for certification under Rule 334.16(1) of the Federal Courts Rules, SOR/98-106, namely that the pleadings disclose a reasonable cause of action and that the claims raise common questions of law or fact.
At the core of the Court’s dismissal of the plaintiffs’ certification motion was their failure to establish the minimal evidentiary basis (that is, the “material facts”) required to support the existence of an express or tacit conspiracy agreement to suppress the supply of DRAM either under section 45 (conspiracy) or section 46 (foreign directed conspiracies) of the Competition Act.
(…)
For the full Legal Update, see: Federal Court Denies Certification in DRAM Output Restriction Conspiracy Case.
********************
SERVICES AND CONTACT
We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
