Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following: (a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the Proceeding); (b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim: (i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise; (ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and (iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the Proceeding, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding and shall not be binding on the Releasees in any other proceeding; (c) after the Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding: (i) documentary discovery and affidavit(s) of documents from Settling Defendant(s) in accordance with that Ontario Rules of Civil Procedure; (ii) oral discovery of representative(s) of Settling Defendant(s), the transcript of which may be read in at trial; (iii) leave to serve a request(s) to admit on Settling Defendant(s) in respect of factual matters; and/or (iv) the production of a representative(s) of Settling Defendant(s) to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants. (d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c); (e) on any motion brought pursuant to Section 8.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate; (f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant; (g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and (h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for the Settling Defendants.
Appears in 3 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement, Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order orders from the Federal Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding or any Other ActionsAction, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant Releasee or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, Defendant or any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant, Releasee or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingAction);
(b) if the Federal Court ultimately determines that there is a claim for right of contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:otherwise,
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include onlyinclude, and shall only seek be entitled to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those only claims for damages (including punitive damages, if any), restitutionary awardawards, disgorgement of profits, costs, and interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted to the extent provided by law; and
(iii) the Federal Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingAction, whether or not the Releasees remain in the Proceeding Action or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding Action and any determination by the Federal Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding Action and shall not be binding on the Releasees in any other proceeding;; and
(civ) after a Non-Settling Defendant may, on motion to the Proceeding Federal Court, determined as if the Settling Defendant and Released Defendants remained parties to the Action, and on at least ten (10) days’ notice to counsel for the Settling Defendant and the Released Defendants, and not to be brought unless and until the Action against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendantsexhausted, a Non-Settling Defendant may, on motion to the Court seeking an Order seek Orders for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(iA) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendant and the Released Defendants in accordance with that Ontario Rules of Civil Procedurethe Federal Courts Rules;
(iiB) oral discovery of representative(s) a representative of the Settling Defendant(s)Defendant and the Released Defendants, the transcript of which may be read in at trial;
(iiiC) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendant and the Released Defendants in respect of factual matters; and/or
(ivD) the production of a representative(s) representative of the Settling Defendant(s) Defendant and the Released Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(dv) the Settling Defendant and the Released Defendants retain all rights to oppose any motion such motion(s) brought pursuant to Section 8.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial8.2. Moreover, nothing herein restricts the Settling Defendant or the Released Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c8.1(b)(iv);
(e) . Notwithstanding any provision in the Court order approving this Settlement Agreement, on any motion brought pursuant to Section 8.1(1)(c)8.2, the Court Federal Court, as applicable, may make such orders as to costs and other terms as it considers appropriate;.
(fvi) a Non-Settling Defendant may serve the motion(s) referred to in Section 8.2 on the Settling Defendant and the Released Defendants by service on counsel for the Settling Defendant and the Released Defendants in the Action.
(vii) to the extent that such an order is granted pursuant to Section 8.2 and discovery is provided to a Non- the Non-Settling DefendantDefendants, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants Defendant to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;Defendant(s).
(gc) the Court will retain an ongoing supervisory role over the discovery process Settling Defendant and the Settling Released Defendants will attorn shall retain and reserve all rights to the jurisdiction of the Court for these purposes; and
(h) a oppose any motion by Non-Settling Defendants to seek discovery from the Settling Defendant may effect service or the Released Defendants.
(2) The Parties acknowledge that the bar orders shall be considered a material term of the motion(s) referred Settlement Agreement and the failure of the Federal Court to in approve the bar orders contemplated herein shall give rise to a right of termination pursuant to Section 8.1(1)(c) on a Settling Defendant by service on Counsel for 5.1 of the Settling DefendantsSettlement Agreement.
Appears in 1 contract
Sources: National Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Proceeding, the Second Ontario Action or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingProceeding and the Second Ontario Action);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingProceeding or the Second Ontario Action, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding or the Second Ontario Action and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding or the Second Ontario Action, as applicable, and shall not be binding on the Releasees in any other proceeding;
(c) after the Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking seek an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(i) documentary discovery and affidavit(s) of documents from Settling Defendant(s) in accordance with that the Ontario Rules of Civil Procedure;
(ii) oral discovery of representative(s) of Settling Defendant(s), the transcript of which may be read in at trial;
(iii) leave to serve a request(s) to admit on Settling Defendant(s) in respect of factual matters; and/or
(iv) the production of a representative(s) of Settling Defendant(s) to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants Releasees from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all documentary discovery providedand the transcripts of any oral discovery shall, whether oral or documentary in natureat the expense of Class Counsel, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten thirty (1030) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order orders from the Federal Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Action or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, Defendant or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingAction);
(b) if the Federal Court ultimately determines that there is a claim for right of contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:otherwise,
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include onlyinclude, and shall only seek be entitled to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those only claims for damages (including punitive damages, if any), restitutionary awardawards, disgorgement of profits, costs, and interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted to the extent provided by law; and
(iii) the Federal Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingAction, whether or not the Releasees remain in the Proceeding Action or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding Action and any determination by the Federal Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding Action and shall not be binding on the Releasees in any other proceeding;; and
(civ) after a Non-Settling Defendant may, on motion to the Proceeding Federal Court, determined as if the Settling Defendants remained parties to the Action, and on at least thirty (30) days’ notice to counsel for the Settling Defendants, and not to be brought unless and until the Action against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendantsexhausted, a Non-Settling Defendant may, on motion to the Court seeking an Order seek Orders for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(iA) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendants in accordance with that Ontario Rules of Civil Procedurethe Federal Courts Rules;
(iiB) oral discovery of representative(s) a representative of the Settling Defendant(s)Defendants, the transcript of which may be read in at trial;
(iiiC) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendants in respect of factual matters; and/or
(ivD) the production of a representative(s) representative of the Settling Defendant(s) Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(dv) the Settling Defendants retain all rights to oppose any motion such motion(s) brought pursuant to Section 8.1(1)(c6.2(1)(b)(iv), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c6.2(1)(b)(iv);
(e) . Notwithstanding any provision in the Court order approving this Settlement Agreement, on any motion brought pursuant to Section 8.1(1)(c6.2(1)(b)(iv), the Court Federal Court, as applicable, may make such orders as to costs and other terms as it considers appropriate;.
(fvi) a Non-Settling Defendant may serve the motion(s) referred to in Section 6.2(1)(b)(iv) on the Settling Defendants by service on counsel for the Settling Defendants in the Action.
(vii) to the extent that such an order is granted pursuant to Section 6.2(1)(b)(iv) and discovery is provided to a Non- the Non-Settling DefendantDefendants, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;Defendant(s).
(gc) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn shall retain and reserve all rights to the jurisdiction of the Court for these purposes; and
(h) a oppose any motion by Non-Settling Defendant may effect service of the motion(s) referred Defendants to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for seek discovery from the Settling Defendants.
Appears in 1 contract
Sources: Canadian Ssa Bonds Class Action National Settlement Agreement
Bar Order.
(1) Class Counsel shall seek a bar order orders from the Federal Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Action or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, Defendant or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingAction);
(b) if the Federal Court ultimately determines that there is a claim for right of contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:otherwise,
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include onlyinclude, and shall only seek be entitled to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those only claims for damages (including punitive damages, if any), restitutionary awardawards, disgorgement of profits, costs, and interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted to the extent provided by law; and
(iii) the Federal Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingAction, whether or not the Releasees remain in the Proceeding Action or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding Action and any determination by the Federal Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding Action and shall not be binding on the Releasees in any other proceeding;; and
(civ) after a Non-Settling Defendant may, on motion to the Proceeding Federal Court, determined as if the Settling Defendants remained parties to the Action, and on at least thirty (30) days’ notice to counsel for the Settling Defendants, and not to be brought unless and until the Action against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendantsexhausted, a Non-Settling Defendant may, on motion to the Court seeking an Order seek Orders for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(iA) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendants in accordance with that Ontario Rules of Civil Procedurethe Federal Courts Rules;
(iiB) oral discovery of representative(s) a representative of the Settling Defendant(s)Defendants, the transcript of which may be read in at trial;
(iiiC) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendants in respect of factual matters; and/or
(ivD) the production of a representative(s) representative of the Settling Defendant(s) Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(dv) the Settling Defendants retain all rights to oppose any motion such motion(s) brought pursuant to Section 8.1(1)(c7.2(1)(b)(iv), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c7.2(1)(b)(iv);
(e) . Notwithstanding any provision in the Court order approving this Settlement Agreement, on any motion brought pursuant to Section 8.1(1)(c7.2(1)(b)(iv), the Court Federal Court, as applicable, may make such orders as to costs and other terms as it considers appropriate;.
(fvi) a Non-Settling Defendant may serve the motion(s) referred to in Section 7.2(1)(b)(iv) on the Settling Defendants by service on counsel for the Settling Defendants in the Action.
(vii) to the extent that such an order is granted pursuant to Section 7.2(1)(b)(iv) and discovery is provided to a Non- the Non-Settling DefendantDefendants, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;Defendant(s).
(gc) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn shall retain and reserve all rights to the jurisdiction of the Court for these purposes; and
(h) a oppose any motion by Non-Settling Defendant may effect service of the motion(s) referred Defendants to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for seek discovery from the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims overover relief, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section 8.1 (unless such claim is made in respect of a claim by a Person who has validly opted out of the Proceeding);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim overover relief, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act, RSC 1985, c C-34) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the Proceeding, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding and shall not be binding on the Releasees in any other proceeding;
(c) after the Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(i) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendants in accordance with that the Ontario Rules of Civil Procedure;
(ii) oral discovery of a representative(s) of the Settling Defendant(s)Defendants, the transcript transcripts of which may be read in at trial;
(iii) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendants in respect of factual matters; and/or
(iv) the production of a representative(s) of the Settling Defendant(s) Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten thirty (1030) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c) on a the Settling Defendant Defendants by service on Counsel for the Settling Defendants.
Appears in 1 contract
Sources: National Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Proceeding, the Second Ontario Action or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the Proceeding);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the Proceeding, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding or the Second Ontario Action and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding or the Second Ontario Action and shall not be binding on the Releasees in any other proceeding;
(c) after the Proceeding and/or Second Ontario Action against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the ProceedingProceeding and was a party to the Second Ontario Action:
(i) documentary discovery and affidavit(s) of documents from Settling Defendant(s) in accordance with that Ontario Rules of Civil Procedure;
(ii) oral discovery of representative(s) of Settling Defendant(s), the transcript of which may be read in at trial;
(iii) leave to serve a request(s) to admit on Settling Defendant(s) in respect of factual matters; and/or
(iv) the production of a representative(s) of Settling Defendant(s) to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order.
(1) Class Counsel shall seek a bar order orders from the Federal Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Action or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, Defendant or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingAction);
(b) if the Federal Court ultimately determines that there is a claim for right of contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:otherwise,
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include onlyinclude, and shall only seek be entitled to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those only claims for damages (including punitive damages, if any), restitutionary awardawards, disgorgement of profits, costs, and interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted to the extent provided by law; and
(iii) the Federal Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingAction, whether or not the Releasees remain in the Proceeding Action or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding Action and any determination by the Federal Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding Action and shall not be binding on the Releasees in any other proceeding;; and
(civ) after a Non-Settling Defendant may, on motion to the Proceeding Federal Court, determined as if the Settling Defendants remained parties to the Action, and on at least thirty (30) days’ notice to counsel for the Settling Defendants, and not to be brought unless and until the Action against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendantsexhausted, a Non-Settling Defendant may, on motion to the Court seeking an Order seek Orders for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(iA) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendants in accordance with that Ontario Rules of Civil Procedurethe Federal Courts Rules;
(iiB) oral discovery of representative(s) a representative of the Settling Defendant(s)Defendants, the transcript of which may be read in at trial;
(iiiC) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendants in respect of factual matters; and/or
(ivD) the production of a representative(s) representative of the Settling Defendant(s) Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(dv) the Settling Defendants retain all rights to oppose any motion such motion(s) brought pursuant to Section 8.1(1)(c6.2(1)(b)(iv), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c6.2(1)(b)(iv);
(e) . Notwithstanding any provision in the Court order approving this Settlement Agreement, on any motion brought pursuant to Section 8.1(1)(c6.2(1)(b)(iv), the Court Federal Court, as applicable, may make such orders as to costs and other terms as it considers appropriate;.
(fvi) a Non-Settling Defendant may serve the motion(s) referred to in Section 6.2(1)(b)(iv) on the Settling Defendants by service on counsel for the Settling Defendants in the Action.
(vii) to the extent that such an order is granted pursuant to Section 6.2(1)(b)(iv) and discovery is provided to a Non- the Non-Settling DefendantDefendants, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;Defendant(s).
(gc) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn shall retain and reserve all rights to the jurisdiction of the Court for these purposes; and
(h) a oppose any motion by Non-Settling Defendant may effect service of the motion(s) referred Defendants to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for seek discovery from the Settling Defendants.
(2) The Parties acknowledge that the bar orders shall be considered a material term of the Settlement Agreement and the failure of the Federal Court to approve the bar orders contemplated herein shall give rise to a right of termination pursuant to Section 4.1 of the Settlement Agreement.
Appears in 1 contract
Sources: Canadian Ssa Bonds Class Action National Settlement Agreement
Bar Order.
(1) Class Counsel shall seek a bar order orders from the Federal Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Action or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, Defendant or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingAction);
(b) if the Federal Court ultimately determines that there is a claim for right of contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:otherwise,
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include onlyinclude, and shall only seek be entitled to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those only claims for damages (including punitive damages, if any), restitutionary awardawards, disgorgement of profits, costs, and interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted to the extent provided by law; and
(iii) the Federal Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingAction, whether or not the Releasees remain in the Proceeding Action or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding Action and any determination by the Federal Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding Action and shall not be binding on the Releasees in any other proceeding;; and
(civ) after a Non-Settling Defendant may, on motion to the Proceeding Federal Court, determined as if the Settling Defendant and Nomura Securities International, Inc. remained parties to the Action, and on at least thirty (30) days’ notice to Counsel for the Settling Defendant and Counsel for Nomura Securities International, Inc., and not to be brought unless and until the Action against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendantsexhausted, a Non-Settling Defendant may, on motion to the Court seeking an Order seek Orders for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(iA) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendant and Nomura Securities International, Inc. in accordance with that Ontario Rules of Civil Procedurethe Federal Courts Rules;
(iiB) oral discovery of representative(s) a representative of the Settling Defendant(s)Defendant and Nomura Securities International, Inc., the transcript of which may be read in at trial;
(iiiC) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendant and Nomura Securities International, Inc. in respect of factual matters; and/or
(ivD) the production of a representative(s) representative of the Settling Defendant(s) Defendant and Nomura Securities International, Inc. to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Non- Settling Defendants.
(dv) the Settling Defendants Defendant and Nomura Securities International, Inc. retain all rights to oppose any motion such motion(s) brought pursuant to Section 8.1(1)(c7.2(1)(b)(iv), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants Defendant or Nomura Securities International, Inc. from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c7.2(1)(b)(iv);
(e) . Notwithstanding any provision in the Court order approving this Settlement Agreement, on any motion brought pursuant to Section 8.1(1)(c7.2(1)(b)(iv), the Federal Court may make such orders as to costs and other terms as it considers appropriate;.
(fvi) a Non-Settling Defendant may serve the motion(s) referred to in Section 7.2(1)(b)(iv) on the Settling Defendant or Nomura Securities International by service on Counsel for the Settling Defendant or Counsel for Nomura Securities International, Inc. in the Action, as applicable.
(vii) to the extent that such an order is granted pursuant to Section 7.2(1)(b)(iv) and discovery is provided to a Non- the Non-Settling DefendantDefendants, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants Defendant and Nomura Securities International, Inc. to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;Defendant(s).
(gc) the Court will Settling Defendant and Nomura Securities International, Inc. shall retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn reserve all rights to the jurisdiction of the Court for these purposes; and
(h) a oppose any motion by Non-Settling Defendant may effect service of Defendants to seek discovery from the motion(s) referred to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for the Settling Defendants.or Nomura Securities International, Inc.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Non- Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted opted-out of the Proceeding);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest interest, and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the Proceeding, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding and shall not be binding on the Releasees in any other proceeding;
(c) after the Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted exhausted, and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(i) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendants in accordance with that the Ontario Rules of Civil Procedure;
(ii) oral discovery of a representative(s) of the Settling Defendant(s)Defendants, the transcript of which may be read in at trial;
(iii) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendants in respect of factual matters; and/or
(iv) the production of a representative(s) of the Settling Defendant(s) Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c7.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c7.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c7.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c7.1(1)(c) on a the Settling Defendant Defendants by service on Counsel for the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order.
(1) Class Counsel shall seek a bar order orders from the Federal Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Action or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, Defendant or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingAction);
(b) if the Federal Court ultimately determines that there is a claim for right of contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:otherwise,
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include onlyinclude, and shall only seek be entitled to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those only claims for damages (including punitive damages, if any), restitutionary awardawards, disgorgement of profits, costs, and interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted to the extent provided by law; and
(iii) the Federal Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingAction, whether or not the Releasees remain in the Proceeding Action or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding Action and any determination by the Federal Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding Action and shall not be binding on the Releasees in any other proceeding;; and
(civ) after a Non-Settling Defendant may, on motion to the Proceeding Federal Court, determined as if the Settling Defendants remained parties to the Action, and on at least thirty (30) days’ notice to counsel for the Settling Defendants, and not to be brought unless and until the Action against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendantsexhausted, a Non-Settling Defendant may, on motion to the Court seeking an Order seek Orders for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(iA) documentary discovery and affidavit(s) an affidavit of documents from the Settling Defendant(s) Defendants in accordance with that Ontario Rules of Civil Procedurethe Federal Courts Rules;
(iiB) oral discovery of representative(s) a representative of the Settling Defendant(s)Defendants, the transcript of which may be read in at trial;
(iiiC) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendants in respect of factual matters; and/or
(ivD) the production of a representative(s) representative of the Settling Defendant(s) Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(dv) the Settling Defendants retain all rights to oppose any motion such motion(s) brought pursuant to Section 8.1(1)(c7.2(1)(b)(iv), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c7.2(1)(b)(iv);
(e) . Notwithstanding any provision in the Court order approving this Settlement Agreement, on any motion brought pursuant to Section 8.1(1)(c7.2(1)(b)(iv), the Court Federal Court, as applicable, may make such orders as to costs and other terms as it considers appropriate;.
(fvi) a Non-Settling Defendant may serve the motion(s) referred to in Section 7.2(1)(b)(iv) on the Settling Defendants by service on counsel for the Settling Defendants in the Action.
(vii) to the extent that such an order is granted pursuant to Section 7.2(1)(b)(iv) and discovery is provided to a Non- the Non-Settling DefendantDefendants, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;Defendant(s).
(gc) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn shall retain and reserve all rights to the jurisdiction of the Court for these purposes; and
(h) a oppose any motion by Non-Settling Defendant may effect service of the motion(s) referred Defendants to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for seek discovery from the Settling Defendants.
(2) The Parties acknowledge that the bar orders shall be considered a material term of the Settlement Agreement and the failure of the Federal Court to approve the bar orders contemplated herein shall give rise to a right of termination pursuant to Section 5.1 of the Settlement Agreement.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Proceeding, the Second Ontario Action, or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingProceeding and the Second Ontario Action);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingProceeding or the Second Ontario Action, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding or the Second Ontario Action and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding or the Second Ontario Action, as applicable, and shall not be binding on the Releasees in any other proceeding;
(c) after the Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking seek an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:
(i) documentary discovery and affidavit(s) of documents from Settling Defendant(s) in accordance with that the Ontario Rules of Civil Procedure;
(ii) oral discovery of representative(s) of Settling Defendant(s), the transcript of which may be read in at trial;
(iii) leave to serve a request(s) to admit on Settling Defendant(s) in respect of factual matters; and/or
(iv) the production of a representative(s) of Settling Defendant(s) to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c7.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants Releasees from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c7.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c7.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all documentary discovery providedand the transcripts of any oral discovery shall, whether oral or documentary in natureat the expense of Class Counsel, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten thirty (1030) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c7.1(1)(c) on a Settling Defendant by service on Counsel for the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) Class Counsel shall The Plaintiffs shall, in the Approval Motion, seek a bar order from the Court providing for the following:
(a) All claims, direct and indirect, including but not limited to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, Claims and any other claims which were or could have been brought in the Proceeding this Action or any Other Actions, or otherwise, otherwise by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, Defendant are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the Proceeding);Agreement.
(b) if If the Court ultimately determines that there is a claim for right of contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claimbetween any or all of the Defendants:
(i) i. the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary awardrestitution, disgorgement of profitsdisgorgement, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) ii. the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the ProceedingAction, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, disposition and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding Action and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding Action and shall not be binding on the Releasees in any other proceeding;proceedings.
(c) after The form and content of the Proceeding against bar order contemplated in this Section shall be considered a material term of this Agreement and the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to failure of the Court seeking an Order for to approve the following, which bar order contemplated herein shall be determined as if the Settling Defendants remained parties to the Proceeding:
(i) documentary discovery and affidavit(s) of documents from Settling Defendant(s) in accordance with that Ontario Rules of Civil Procedure;
(ii) oral discovery of representative(s) of Settling Defendant(s), the transcript of which may be read in at trial;
(iii) leave to serve a request(s) to admit on Settling Defendant(s) in respect of factual matters; and/or
(iv) the production of a representative(s) of Settling Defendant(s) to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided give rise to a Non- Settling Defendant, a copy right of all discovery provided, whether oral or documentary in nature, shall be provided termination by the Settling Defendants pursuant to the Plaintiffs and Class Counsel within ten (10) days Section 10 of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c) on a Settling Defendant by service on Counsel for the Settling Defendantsthis Settlement Agreement.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) The Plaintiff, Class Counsel shall seek and the Settling Defendant agree that the order approving this Settlement Agreement must include a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been or could in the future have been brought in the Proceeding or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-co- conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section 8.1 (unless such claim is made in respect of a claim by a Person who has validly opted opted-out of the Proceeding);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs Plaintiff and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act, RSC 1985, c C-34) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs Plaintiff and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest interest, and costs (including investigative costs claimed pursuant to section 36 of the Competition Act, RSC 1985, c C-34) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs Plaintiff and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the relevant Proceeding, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the relevant Proceeding and shall not be binding on the Releasees in any other proceeding;
(c) after the Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted exhausted, and on at least twenty (20) days’ notice to Counsel for the Settling DefendantsDefendant, a Non-Settling Defendant may, on motion to the Court seeking an Order for the following, which order shall be determined as if the Settling Defendants Defendant remained parties a party to the Proceeding:
(i) documentary discovery and affidavit(s) of documents from the Settling Defendant(s) Defendant in accordance with that Ontario Rules the Court’s rules of Civil Procedureprocedure;
(ii) oral discovery of a representative(s) of the Settling Defendant(s)Defendant, the transcript transcript(s) of which may be read in at trial;
(iii) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendant in respect of factual matters; and/or
(iv) the production of a representative(s) of the Settling Defendant(s) Defendant to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain Defendant retains all rights to oppose any motion brought pursuant to Section 8.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants Defendant to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants Defendant from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants Defendant to the Plaintiffs Plaintiff and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants Defendant will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c) on a the Settling Defendant Defendants by service on Counsel for the Settling DefendantsDefendant.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Proceeding, or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Non- Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section (unless such claim is made in respect of a claim by a Person who has validly opted out of the Proceeding);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) attributable to the aggregate of the several liability of the Non-Non- Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Non- Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the Proceeding, whether or not the Releasees remain in the Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the Proceeding and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the Proceeding and shall not be binding on the Releasees in any other proceeding;
(c) after the Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the Proceeding:.
(i) documentary discovery and affidavit(s) of documents from Settling Defendant(s) in accordance with that Ontario Rules the Court’s rules of Civil Procedureprocedure;
(ii) oral discovery of representative(s) of Settling Defendant(s), the transcript of which may be read in at trial;
(iii) leave to serve a request(s) to admit on Settling Defendant(s) in respect of factual matters; and/or
(iv) the production of a representative(s) of Settling Defendant(s) to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c7.1(1)(c), including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c7.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c7.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c7.1(1)(c) on a Settling Defendant by service on Counsel for the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement
Bar Order. (1) Class Counsel shall seek a bar order from the Court providing for the following:
(a) to the extent such claims are recognized at law, all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceeding Proceedings, or any Other Actions, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant or any other Person or party against a Releasee, or by a Releasee against any Non-Settling Defendant, any named or unnamed co-conspirator that is not a Releasee, any Settled Defendant, or any other Person or party, are barred, prohibited and enjoined in accordance with the terms of this Section 7.1 (unless such claim is made in respect of a claim by a Person who has validly opted out of the ProceedingProceedings);
(b) if the Court ultimately determines that a claim for contribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise is a legally recognized claim:
(i) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee that portion of any damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act, RSC 1985, c C 34) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise;
(ii) the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee to include only, and shall only seek to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators and/or any other Person or party that is not a Releasee, those claims for damages (including punitive damages, if any), restitutionary award, disgorgement of profits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act, RSC 1985, c C 34) attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co- co-conspirators and/or any other Person or party that is not a Releasee to the Plaintiffs and Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and seek to recover on a joint and several basis as between the Non-Settling Defendants and/or named or unnamed co-co- conspirators and/or any other Person or party that is not a Releasee, if permitted by law; and
(iii) the Court shall have full authority to determine the Proportionate Liability of the Releasees at the trial or other disposition of the relevant Proceeding, whether or not the Releasees remain in the relevant Proceeding or appear at the trial or other disposition, and the Proportionate Liability of the Releasees shall be determined as if the Releasees are parties to the relevant Proceeding and any determination by the Court in respect of the Proportionate Liability of the Releasees shall only apply in the relevant Proceeding and shall not be binding on the Releasees in any other proceeding;
(c) after the relevant Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted and on at least twenty (20) days’ notice to Counsel for the Settling Defendants, a Non-Settling Defendant may, on motion to the Court seeking seek an Order for the following, which order shall be determined as if the Settling Defendants remained parties to the relevant Proceeding:
(i) documentary discovery and affidavit(s) of documents from the Settling Defendant(s) Defendants in accordance with that Ontario Rules Court’s rules of Civil Procedureprocedure;
(ii) oral discovery of a representative(s) of the Settling Defendant(s)Defendants, the transcript transcripts of which may be read in at trial;
(iii) leave to serve a request(s) request to admit on the Settling Defendant(s) Defendants in respect of factual matters; and/or
(iv) the production of a representative(s) of the Settling Defendant(s) Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
(d) the Settling Defendants retain all rights to oppose any motion brought pursuant to Section 8.1(1)(c)7.1(1)(c) , including any such motion brought at trial seeking an order requiring the Settling Defendants to produce a representative to testify at trial. Moreover, nothing herein restricts the Settling Defendants from seeking a protective order to maintain confidentiality and protection of proprietary information in respect of documents to be produced and/or for information obtained from discovery in accordance with Section 8.1(1)(c7.1(1)(c);
(e) on any motion brought pursuant to Section 8.1(1)(c7.1(1)(c), the Court may make such orders as to costs and other terms as it considers appropriate;
(f) to the extent that such an order is granted and discovery is provided to a Non- Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall be provided by the Settling Defendants to the Plaintiffs and Class Counsel within ten (10) days of such discovery being provided to a Non-Settling Defendant;
(g) the Court will retain an ongoing supervisory role over the discovery process and the Settling Defendants will attorn to the jurisdiction of the Court for these purposes; and
(h) a Non-Settling Defendant may effect service of the motion(s) referred to in Section 8.1(1)(c7.1(1)(c) on a the Settling Defendant Defendants by service on Counsel for the Settling Defendants.
Appears in 1 contract
Sources: Settlement Agreement