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, that:

  • 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 future.

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