British Columbia certification motion defeated

Stikeman Elliott's Litigation Group was successful in defeating certification of a proposed class action in British Columbia alleging price-fixing in silicon memory chips (known as DRAM).

The plaintiff brought the case on behalf of all persons resident in B.C. who purchased DRAM or products containing DRAM from April 1999 to June 30, 2002. Companion class actions have also been brought in Ontario and Quebec. DRAM is a memory chip with many applications, the largest of which is computers, but it is also found in a broad range of products such as mobile phones, digital music players, and automobile GPS systems. Stikeman Elliott LLP represents Infineon Technologies, one of five defendants to the action. The Stikeman's team on this case was Katherine Kay, Eliot Kolers and Mark Walli.

The decision is the first consideration by a B.C. court of a certification motion in a price-fixing case. The motion for certification was argued over 7 days in August and November 2007 before Justice Masuhara of the British Columbia Supreme Court. Katherine Kay took the lead in the oral argument on behalf of all of the defendants before the B.C. court.

The proposed class was large, consisting principally of millions of users of products containing DRAM. Justice Masuhara concluded that the central issue of liability could not be determined on a class-wide basis, finding that the case "dissolves into a series of individualized inquiries that would overwhelm the common aspects of the case". Justice Masuhara carefully reviewed the expert evidence submitted by both sides of the case, and concluded that the plaintiff's proposed methodologies for dealing with the case on a class basis were not workable. The judge then moved to consider whether proceeding by way of class action would be the preferable procedure and, after addressing head-on the plaintiff's contention that preferability favours a class action to no litigation, concluded that it would not be the preferable procedure to have this case move forward as a class action.

As the plaintiff's counsel repeatedly urged Justice Masuhara, the clear trend in B.C. has been to certify cases to proceed as class actions, with any problems to be addressed "in the laboratory of the trial court" (a practice that Justice Masuhara noted in his reasons and quickly discarded as being "inconsistent with judicial economy or fairness in a case such as this"). This decision challenges that trend and contains a lengthy and thorough consideration of many certification decisions throughout Canada. It is a highly significant decision not only in the competition area, but also provides useful judicial consideration of the principles regarding certification in all class actions.