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CANADIAN AFTERMARKET FILTERS CLASS ACTION
NATIONAL SETTLEMENT AGREEMENT
Made as o f September 12, 2013
Between
URLIN RENT A CAR LTD. and JEAN-PAUL PERRAULT
(the "Plaintiffs")
and
CHAMPION LABORATORIES, INC., HONEYWELL INTERNATIONAL INC., WIX
FILTRATION PRODUCTS, AFFINIA GROUP INC., CUMMINS FILTRATION INC.,
CUMMINS FILTRATION INTERNATIONAL CORP., CUMMINS INC., CUMMINS
EST D U CANADA/CUMMINS EASTERN CANADA L.P., DONALDSON COMPANY,
INC., BALDWIN FILTERS, INC., ARVINMERITOR INC., ARVINMERITOR FILTERS
OPERATING COMPANY LLC (F/K/A PUROLATOR PRODUCTS NA, LLC),
ARVINMERITOR HOLDING COMPANY (F/K/A PUROLATOR PRODUCTS
COMPANY LLC) AND ARVINMERITOR CANADA.
(the "Defendants")
3012775
CANADIAN AFTERMARKET FILTERS CLASS ACTION
NATIONAL SETTLEMENT AGREEMENT
TABLE OF CONTENTS
RECITALS
1
SECTION 1 - DEFINITIONS
3
SECTION 2 - SETTLEMENT APPROVAL
2.1
Best Efforts
2.2
Motions Seeking Approval o f Notice and Certification or Authorization
2.3
Motions Seeking Approval o f the Settlement
7
7
7
7
SECTION 3 - SETTLEMENT BENEFITS
3.1
Payment o f Settlement Amount
3.2
Taxes and Interest
8
8
9
SECTION 4 - DISTRIBUTION OF THE SETTLEMENT AMOUNT AND ACCRUED
INTEREST
10
4.1
Distribution Protocol
10
4.2
No Responsibility for Administration or Fees
10
SECTION 5 - TERMINATION OF SETTLEMENT AGREEMENT
5.1
Right o f Termination
5.2
I f Settlement Agreement is Terminated
5.3
Allocation o f Settlement Amount Following Termination
5.4
Survival o f Provisions After Termination
10
10
11
12
12
SECTION 6 - RELEASES AND DISMISSALS
6.1
Release o f Releasees
6.2
Release by Releasees
6.3
N o Further Claims
6.4
Dismissal o f the Proceedings
6.5
Dismissal o f Other Actions
6.6
Material Term
12
12
13
13
13
13
14
SECTION 7 - EFFECT OF SETTLEMENT
7.1
No Admission o f Liability
7.2
Agreement Not Evidence
7.3
N o Further Litigation
14
14
14
15
SECTION 8 - CERTIFICATION OR AUTHORIZATION FOR SETTLEMENT ONLY.15
SECTION 9 - NOTICE TO SETTLEMENT CLASSES
9.1
Notices Required
9.2
Form and Distribution o f Notices
15
15
16
SECTION 10 - OPTING OUT
10.1
Procedure
16
16
3012775
-11 10.2
Opt-Out Report
17
SECTION 11 - ADMINISTRATION AND IMPLEMENTATION
11.1
Mechanics o f Administration
17
17
SECTION 12 - CLASS COUNSEL FEES AND ADMINISTRATION EXPENSES
18
SECTION 13 - MISCELLANEOUS
13.1
Motions for Directions
13.2
Releasees Have No Liability for Administration
13.3
Headings, etc
13.4
Computation o f Time
13.5
Ongoing Jurisdiction
13.6
Governing Law
13.7
Entire Agreement
13.8
Amendments
13.9
Binding Effect
13.10 Counterparts
13.11 Negotiated Agreement
13.12 Language
13.13 Transaction
13.14 Recitals
13.15 Schedules
13.16 Acknowledgements
13.17 Authorized Signatures
13.18 Notice
13.19 Date o f Execution
18
18
19
19
19
20
20
20
21
21
21
21
21
22
22
22
22
23
23
24
SCHEDULE "A"
28
SCHEDULE "B"
30
SCHEDULE "C"
33
3012775
-1 -
CANADIAN AFTERMARKET FILTERS CLASS ACTION
NATIONAL SETTLEMENT AGREEMENT
RECITALS
A.
WHEREAS Proceedings have been commenced by the Plaintiffs in Quebec and Ontario
which allege that the Defendants participated in an unlawful conspiracy to raise, fix, maintain or
stabilize the price o f Aftermarket Filters in Canada and/or to allocate markets and customers for
the sale o f Aftermarket Filters in Canada, contrary to Part VI o f the Competition Act and the
common law and/or the civil law;
B.
WHEREAS the Defendants do not admit, through the execution o f this Settlement
Agreement or otherwise, any allegation o f unlawful conduct alleged in the Proceedings or
otherwise;
C.
WHEREAS the Plaintiffs, Class Counsel and the Defendants agree that neither this
Settlement Agreement nor any statement made in the negotiation thereof shall be deemed or
construed to be an admission by or evidence against the Releasees or evidence o f the truth o f any
o f the Plaintiffs' allegations against the Releasees, which allegations are expressly denied by the
Defendants;
D.
WHEREAS the Defendants are entering into this Settlement Agreement in order to
achieve a final and nation-wide resolution o f all claims asserted or which could have been
asserted against the Releasees by the Plaintiffs and the Settlement Class in the Proceedings, and
to avoid further expense, inconvenience and the distraction o f burdensome and protracted
litigation;
E.
WHEREAS the Defendants do not hereby attorn to the jurisdiction o f the Courts or any
other court or tribunal in respect o f any civil, criminal or administrative process except to the
extent expressly provided in this Settlement Agreement with respect to the Proceedings;
F.
WHEREAS counsel for the Defendants and counsel for the Plaintiffs have engaged in
arm's-length settlement discussions and negotiations, resulting in this Settlement Agreement
relating to Canada;
3012775
-2G.
WHEREAS as a result o f these settlement discussions and negotiations, the Defendants
and the Plaintiffs have entered into this Settlement Agreement, which embodies all o f the terms
and conditions o f the settlement between the Defendants and the Plaintiffs, both individually and
on behalf o f the classes they seek to represent, subject to approval o f the Courts;
H.
WHEREAS the Plaintiffs and Class Counsel have reviewed and fully understand the
terms o f this Settlement Agreement and, based on their analyses o f the facts and law applicable
to the Plaintiffs' claims, having regard to the burdens and expense in prosecuting the
Proceedings, including the risks and uncertainties associated with trials and appeals, and having
regard to the value o f the Settlement Agreement, the Plaintiffs and Class Counsel have
concluded that this Settlement Agreement is fair, reasonable and in the best interests o f the
Plaintiffs and the classes they seek to represent;
I.
WHEREAS the Parties therefore wish to and hereby finally resolve on a national basis,
without admission o f liability, the Proceedings as against the Defendants;
J.
WHEREAS the Parties consent to certification or authorization o f the Proceedings as
class proceedings and to the Settlement Classes and a Common Issue in respect o f each o f the
Proceedings solely for the purposes o f implementing this Settlement Agreement in a coordinated
and consistent manner across Canada and contingent on approvals by the Courts as provided for
in this Settlement Agreement, on the express understanding that such certification or
authorization shall not derogate from the respective rights o f the Parties in the event that this
Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any
reason; and
K.
WHEREAS the Plaintiffs assert that they are adequate class representatives for the
classes they seek to represent and will seek to be appointed representative plaintiffs in their
respective Proceedings;
N O W THEREFORE, in consideration o f the covenants, agreements and releases set forth and for
other good and valuable consideration, the receipt and sufficiency o f which are acknowledged, it
is agreed by the Parties that the Proceedings be settled and dismissed with prejudice and without
costs, subject to the approval o f the Courts, on the following terms and conditions:
3012775
-3 Section 1 - Definitions
For the purposes o f this Settlement Agreement only, including the Recitals and Schedules
hereto:
(1)
Administration Expenses means all fees, disbursements, expenses, costs, taxes and any
other amounts incurred or payable by the Plaintiffs, Class Counsel or otherwise for the approval,
implementation and operation o f this Settlement Agreement, including the costs o f notices but
excluding Class Counsel Fees.
(2)
Aftermarket Filters means oil, air, fuel and transmission filters sold as replacement filters
for automobiles, trucks and other vehicles.
(3)
Class Counsel means Ontario Counsel and Quebec Counsel.
(4)
Class Counsel Fees means the fees, disbursements, costs, interest, and/or charges of
Class Counsel, and any GST, HST and other applicable taxes or charges thereon, including any
amounts payable by Class Counsel or the Settlement Class Members to any other body or person,
including the Fonds d'aide aux recours collectif in Quebec.
(5)
Class Period means January 1, 1999 to April 24, 2008.
(6)
Common Issue means: Did the Defendants conspire to fix, raise, maintain or stabilize the
prices of, or allocate markets and customers for, Aftermarket Filters directly or indirectly in
Canada during the Class Period? I f so, what damages, if any, did Settlement Class Members
suffer?
(7)
Courts means the Ontario Court and the Quebec Court.
(8)
Date o f Execution means the date on the cover page as o f which the Parties have
executed this Settlement Agreement.
(9)
Defendants means the entities named as defendants in any o f the Proceedings as set out
in Schedule A.
3012775
-4(10)
Distribution Protocol means the plan for distributing the Settlement Amount and accrued
interest, in whole or in part, as approved by the Courts.
(11)
Effective Date means the date when Final Orders have been received from all Courts
approving this Settlement Agreement.
(12)
Excluded Person means each Defendant, the directors and officers o f each Defendant,
the subsidiaries or affiliates o f each Defendant, the entities in which each Defendant or any of
that Defendant's subsidiaries or affiliates have a controlling interest and the legal representatives,
heirs, successors and assigns o f each o f the foregoing, and those Persons who validly and timely
opt-out o f the Proceedings in accordance with the orders o f the Courts certifying or authorizing
the Proceedings commenced in their respective jurisdictions as a class proceeding against the
Defendants (for settlement purposes only).
(13)
Final Order means the later o f a final judgment entered by a Court approving this
Settlement Agreement, once the time to appeal such judgment has expired without any appeal
being taken, if an appeal lies, or once there has been affirmation o f the approval o f this
Settlement Agreement upon a final disposition o f all appeals.
(14)
Ontario Action means the Ontario Action as defined in Schedule A.
(15)
Ontario Counsel means Siskinds LLP.
(16)
Ontario Court means the Ontario Superior Court o f Justice.
(17)
Opt-Out Deadline means the date which is sixty (60) days after the date on which the
notice described in Section 9.1(1) is first published.
(18)
Opt-Out Threshold means an amount agreed upon by the Parties in a separate document
which will be executed by the Parties, delivered to the Courts under seal and kept confidential by
the Parties and the Courts.
(19)
Other Actions means actions or proceedings, excluding the Proceedings, relating to
Released Claims commenced by a Settlement Class Member either before or after the Effective
Date.
3012775
-5 (20)
Parties means the Defendants, the Plaintiffs, and, where necessary, the Settlement Class
Members.
(21)
Person means an individual, corporation, partnership, limited partnership, limited
liability company, association, joint stock company, estate, legal representative, trust, trustee,
executor, beneficiary, unincorporated association, government or any political subdivision or
agency thereof, and any other business or legal entity and their heirs, predecessors, successors,
representatives, or assignees.
(22)
Plaintiffs means the individuals and entities named as plaintiffs in the Proceedings as set
out in Schedule A.
(23)
Proceedings means the Quebec Action and the Ontario Action.
(24)
Purchase Price means the price paid by Settlement Class Members for Aftermarket
Filters purchased during the Class Period, less any rebates, delivery or shipping charges, taxes
and any other form o f discounts.
(25)
Quebec Action means the Quebec Action as defined in Schedule A.
(26)
Quebec Counsel means Siskinds Desmeules s.e.n.c.r.l.
(27)
Quebec Court means the Superior Court o f Quebec.
(28)
Released Claims means any and all manner o f claims, demands, actions, suits, causes of
action, whether class, individual or otherwise in nature, whether personal or subrogated, damages
o f any kind (including compensatory, punitive or other damages) whenever incurred, liabilities
o f any nature whatsoever, including interest, costs, expenses, class administration expenses
(including Administration Expenses), penalties, and lawyers' fees (including Class Counsel
Fees), known or unknown, suspected or unsuspected, actual or contingent, and liquidated or
unliquidated, in law, under statute or in equity, relating in any way to any conduct anywhere,
during the period from January 1, 1999 to the date hereof, in respect o f the purchase, sale,
pricing, discounting, marketing or distributing o f Aftermarket Filters in or to Canada or relating
to any conduct alleged (or which was previously or could have been alleged) in the Proceedings
including, without limitation, any such claims which have been asserted or could have been
3012775
-6asserted, directly or indirectly, whether in Canada or elsewhere, in respect o f the purchase, sale,
pricing, discounting, marketing or distributing o f Aftermarket Filters in or to Canada, including,
without limitation, any claims for consequential, subsequent or follow-on harm that arises after
the Class Period in respect o f any agreement, combination or conduct that occurred during the
Class Period. However, nothing herein shall be construed to release any alleged product defect,
breach o f contract, or similar claim between the Parties that relates to Aftermarket Filters that is
unrelated to alleged anti-competitive conduct.
(29)
Releasees means, jointly and severally, individually and collectively, the Defendants,
Purolator Filters N.A. L.L.C., Donaldson Company, Inc. and all o f their present and former,
direct and indirect, parents, subsidiaries, divisions, affiliates, partners, insurers, and all other
Persons, partnerships or corporations with whom any o f the former have been, or are now,
affiliated, and all o f their respective past, present and future officers, directors, employees,
agents, shareholders, attorneys, trustees, servants and representatives, and the predecessors,
successors, purchasers, heirs, executors, administrators and assigns o f each o f the foregoing.
(30)
Releasors means, jointly and severally, individually and collectively, the Plaintiffs and
the Settlement Class Members and their respective parents, subsidiaries, affiliates, predecessors,
successors, heirs, executors, administrators, insurers and assigns.
(31)
Settlement Agreement means this agreement, including the recitals and schedules.
(32)
Settlement Amount mams CDN$350,00Q.
(33)
Settlement Class means, in respect o f each Proceeding, the settlement class defined in
Schedule A.
(34)
Settlement Class Member means a member o f a Settlement Class.
(35)
Trust Account means an interest-bearing trust account at a Canadian Schedule 1 bank
under the control o f Ontario Counsel for the benefit o f the Settlement Class Members, as
provided for in this Settlement Agreement.
3012775
-7Section 2 - Settlement Approval
2.1
Best Efforts
(1)
The Parties shall use their best efforts to effectuate this settlement and to secure the
prompt, complete and final dismissal with prejudice o f the Ontario Action as against the
Defendants, and a prompt, complete and final declaration o f settlement out o f court o f the
Quebec Action.
2.2
Motions Seeking Approval o f Notice and Certification or Authorization
(1)
The Plaintiffs shall bring motions before the Courts, as soon as practicable after the
Settlement Agreement is executed, for orders approving the notices described in Section 9.1(1)
and certifying or authorizing each o f the Proceedings commenced in their respective jurisdictions
as a class proceeding as against the Defendants (for settlement purposes only).
(2)
The Ontario order approving the notices described in Section 9.1(1) and certifying the
Ontario Action for settlement purposes shall be substantially in the form attached as Schedule B.
The Quebec order approving the notices described in Section 9.1(1) and authorizing the Quebec
Action for settlement purposes shall be agreed upon by the Parties and shall mirror the substance
and, where possible, the form o f the Ontario order.
2.3
Motions Seeking Approval o f the Settlement
(1)
The Plaintiffs shall bring motions before the Courts for orders approving this Settlement
Agreement, to be heard as soon as practicable after:
(a)
the orders referred to in Section 2.2(2) have been granted;
(b)
the notices described in Section 9.1(1) have been published; and
(c)
the deadline for terminating the Settlement Agreement on the basis that the OptOut Threshold has been exceeded has expired.
(2)
The Ontario order approving this Settlement Agreement shall be substantially in the form
attached as Schedule C. The Quebec order approving this Settlement Agreement shall be agreed
3012775
-8upon by the Parties and shall mirror the substance and, where possible, the form o f the Ontario
order.
(3)
This Settlement Agreement shall only become final on the Effective Date.
Section 3 - Settlement Benefits
3.1
Payment o f Settlement Amount
(1)
Within 30 days o f execution o f the Settlement Agreement, each Defendant shall pay its
share o f the Settlement Amount, as set out in section 3.1(2) below, to Ontario Counsel for
deposit into the Trust Account to be held for the benefit o f Settlement Class Members, which
payments shall be in full satisfaction o f all settlement payment obligations under the Settlement
Agreement and in full satisfaction o f the Released Claims against the Releasees. The Releasees
have no obligation to pay any amount other than the Settlement Amount, for any reason,
pursuant to or in furtherance o f the Settlement Agreement.
(2)
Defendants
Share o f Settlement
Amount
Champion Laboratories Inc.
$100,000.00
Honeywell International Inc.
$64,500.00
Wix Filtration Products/Affinia Group Inc.
$40,500.00
Cummins Filtration Inc., Cummins Filtration
International Corp., Cummins Inc., Cummins Est du
Canada/Cummins Eastern Canada L.P.
$15,000.00
ArvinMeritor Inc., ArvinMeritor Filters Operating
Company LLC, ArvinMeritor Holding Company and
ArvinMeritor Canada
$100,000.00
Donaldson Company, Inc.
$15,000.00
3012775
-9-
Defendants
Baldwin Filters, Inc.
(3)
Share o f Settlement
Amount
$15,000.00
The Defendants' obligations to pay their respective share o f the Settlement Amount, as
set out in section 3.1(2) above, are several only, and not joint and several, and no Defendant shall
for any reason be responsible for or the subject o f a claim regarding any deficiency by another
Defendant in paying that other Defendant's share o f the Settlement Amount.
(4)
Ontario Counsel shall maintain the Trust Account as provided for in the Settlement
Agreement. Ontario Counsel shall not pay out all or part o f the monies in the Trust Account,
except in accordance with the Settlement Agreement or in accordance with an order o f the
Courts obtained on notice to the Defendants.
3.2
Taxes and Interest
(1)
Except as hereinafter provided, all interest earned on the Settlement Amount shall accrue
to the benefit o f the Settlement Class and shall become and remain part o f the Trust Account.
(2)
Subject to section 3.2(3), all taxes payable on any interest which accrues on the
Settlement Amount in the Trust Account or otherwise in relation to the Settlement Amount shall
be the responsibility o f the Settlement Class. Ontario Counsel shall be solely responsible to
fulfill all tax reporting and payment requirements arising from the Settlement Amount in the
Trust Account, including any obligation to report taxable income and make tax payments. All
taxes (including interest and penalties) due with respect to the income earned on the Settlement
Amount shall be paid from the Trust Account.
(3)
The Defendants shall have no responsibility to make any filings relating to the Trust
Account and will have no responsibility to pay tax on any income earned by the Settlement
Amount or pay any taxes on the monies in the Trust Account, unless this Settlement Agreement
is terminated, in which case the interest earned on the Settlement Amount in the Trust Account
or otherwise shall be paid to the Defendants in such portions as set out in a direction signed by
3012775
- 10all Defendants and, in such case, the Defendants shall be responsible for the payment o f all taxes
on such interest not previously paid by Ontario Counsel.
Section 4 - Distribution o f the Settlement Amount
and Accrued Interest
4.1
Distribution Protocol
(1)
At the same time as the motions contemplated in Section 2.3(1), Class Counsel will bring
motions seeking orders from the Courts approving the Distribution Protocol.
The orders
approving the Distribution Protocol shall be conditional on the Effective Date occurring.
4.2
No Responsibility for Administration or Fees
(1)
The Defendants shall not have any responsibility, financial obligations or liability
whatsoever with respect to the investment, distribution or administration o f monies in the Trust
Account including, but not limited to, Administration Expenses and Class Counsel Fees.
Section 5 - Termination o f Settlement Agreement
5.1
Right o f Termination
(1)
In the event that:
(a)
any Court declines to certify or authorize the Settlement Class;
(b)
any Court declines to dismiss the Proceedings against the Defendants and approve
this Settlement Agreement or any material part hereof;
(c)
any Court approves this Settlement Agreement in a materially modified form;
(d)
the Parties do not reach agreement on the form and content o f any order required
by this Settlement Agreement, or the agreed order is approved by a Court in a
materially modified form;
(e)
any orders approving this Settlement Agreement made by the Ontario Court or the
Quebec Court do not become Final Orders; or
3012775
-11 (f)
the total Purchase Price for potential Settlement Class Members who opt-out of
the Proceedings exceeds the Opt-Out Threshold;
both the Defendants and the Plaintiffs (each acting as a group) shall have the right to terminate
this Settlement Agreement (except that only the Defendants have the right to terminate under
section 5.1(l)(f) above) by delivering a written notice pursuant to Section 13.18, within 30 days
following the event described above.
(2)
Except as provided for in Section 5.4 below, if a right to terminate is exercised, the
Settlement Agreement shall be null and void and have no further force or effect, shall not be
binding on the Parties, and shall not be used as evidence or otherwise in any litigation.
(3)
Any order, ruling or determination made (or rejected) by any Court with respect to Class
Counsel Fees or the Distribution Protocol shall not be deemed to be a material modification of
all, or a part, o f this Settlement Agreement and shall not provide any basis for the termination of
this Settlement Agreement.
(4)
Any dispute between the Parties as to whether a right to terminate exists, including
whether the Opt-Out Threshold has been exceeded, shall be resolved by the Ontario Court and,
in the case o f whether the Opt-Out Threshold has been exceeded, on a confidential basis.
5.2
I f Settlement Agreement is Terminated
(1)
I f this Settlement Agreement is not approved, is terminated in accordance with its terms
or otherwise fails to take effect for any reason:
(a)
no motion to certify or authorize any o f the Proceedings as a class proceeding on
the basis o f this Settlement Agreement, or to approve this Settlement Agreement,
which has not been decided, shall proceed;
(b)
any order certifying or authorizing a Proceeding as a class proceeding on the basis
o f the Settlement Agreement or approving this Settlement Agreement shall be set
aside and declared null and void and o f no force or effect, and anyone shall be
estopped from asserting otherwise; and
31)12775
- 12(c)
any prior certification or authorization o f a Proceeding as a class proceeding on
the basis o f this Settlement Agreement, including the definitions o f the Settlement
Class and the Common Issue pursuant to this Settlement Agreement, shall be
without prejudice to any position that any o f the Parties or Releasees may later
take on any issue in the Proceedings or any other litigation.
5.3
Allocation o f Settlement Amount Following Termination
(1)
If the Settlement Agreement is terminated, Ontario Counsel shall, within thirty (30)
business days o f the written notice advising that the Settlement Agreement has been terminated
in accordance with its terms, pay to each Defendant, its share o f the Settlement Amount as set
out in section 3.1(2) plus all accrued interest thereon, less its proportionate share o f the costs of
the notices required by Section 9.1(1) which are intended to be paid out o f the Trust Account and
not yet paid.
5.4
Survival o f Provisions After Termination
(1)
I f this Settlement Agreement is terminated or otherwise fails to take effect for any reason,
the provisions o f Sections 3.2(3), 5.1(2), 5.2(1), 5.3, 5.4, 7.1, 7.2, 7.3 and 11.2(4) and the
definitions and Schedules applicable thereto shall survive the termination and continue in full
force and effect. The definitions and Schedules shall survive only for the limited purpose o f the
interpretation o f Sections 3.2(3), 5.1(2), 5.2(1), 5.3, 5.4, 7.1, 7.2, 7.3 and 11.2(4) within the
meaning o f this Settlement Agreement, but for no other purposes. All other provisions o f this
Settlement Agreement and all other obligations pursuant to this Settlement Agreement shall
cease immediately.
Section 6 - Releases and Dismissals
6.1
Release o f Releasees
(1)
Upon the Effective Date, and in consideration o f payment o f the Settlement Amount and
for other valuable consideration set forth in the Settlement Agreement, the Releasors forever and
absolutely release the Releasees from the Released Claims that any o f them, whether directly,
indirectly, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or
may have.
3i)l2775
- 136.2
Release by Releasees
(1)
Upon the Effective Date, each Releasee forever and absolutely releases each o f the other
Releasees from any and all claims for contribution, indemnity or other claims over with respect
to the Released Claims.
6.3
No Further Claims
(1)
Upon the Effective Date, the Releasors shall not now or hereafter institute, continue,
maintain or assert, either directly or indirectly, whether in Canada or elsewhere, on their own
behalf or on behalf o f any class or any other Person, any action, suit, cause o f action, claim or
demand against any Releasee, or any other Person who may claim contribution or indemnity or
other claims over relief from any Releasee, in respect o f any Released Claim or any matter
related thereto.
6.4
Dismissal o f the Proceedings
(1)
Upon the Effective Date, the Ontario Action shall be dismissed with prejudice and
without costs.
(2)
Upon the Effective Date, the Quebec Action shall be settled, without costs and without
reservation, and the Parties shall sign and file a declaration o f settlement out o f court with the
Quebec Court.
6.5
Dismissal o f Other Actions
(1)
Upon the Effective Date, each member o f the Ontario Settlement Class shall be deemed
to irrevocably consent to the dismissal, without costs and with prejudice, o f his, her or its Other
Actions against the Releasees.
(2)
Upon the Effective Date, all Other Actions commenced in Ontario by any Settlement
Class Member shall be dismissed against the Releasees, without costs and with prejudice.
(3)
Each member o f the Quebec Settlement Class who makes a claim under this Settlement
Agreement shall be deemed to irrevocably consent to the dismissal, without costs and without
reservation, o f his, her or its Other Actions against the Releasees.
3012775
- 14(4)
Each Other Action commenced in Quebec by a member o f the Quebec Settlement Class
who makes a claim under this Settlement Agreement shall be dismissed as against the Releasees,
without costs and without reservation.
6.6
Material Term
(1)
The releases contemplated in this Section shall be considered a material term o f the
Settlement Agreement and the failure o f any Court to approve the releases contemplated herein
shall give rise to a right o f termination pursuant to Section 5.1 o f the Settlement Agreement.
Section 7- Effect o f Settlement
7.1
No Admission o f Liability
(1)
The Plaintiffs and the Releasees expressly reserve all o f their rights if the Settlement
Agreement is not approved, is terminated or otherwise fails to take effect for any reason.
Further, whether or not the Settlement Agreement is finally approved, is terminated, or otherwise
fails to take effect for any reason, this Settlement Agreement and anything contained herein, and
any and all negotiations, documents, discussions and proceedings associated with this Settlement
Agreement, and any action taken to carry out this Settlement Agreement, shall not be deemed,
construed or interpreted to be an admission o f any violation o f any statute or law, or o f any
wrongdoing or liability by the Defendants, or o f the truth o f any o f the claims or allegations
contained in the Proceedings or any other pleading filed by the Plaintiffs.
7.2
Agreement Not Evidence
(1)
The Parties agree that, whether or not it is terminated, this Settlement Agreement and
anything contained herein, and any and all negotiations, documents, discussions and proceedings
associated with this Settlement Agreement, and any action taken to carry out this Settlement
Agreement, shall not be referred to, offered as evidence or received in evidence in any pending
or future civil, criminal or administrative action or proceeding, except in a proceeding to approve
and/or enforce this Settlement Agreement, to defend against the assertion o f Released Claims, in
any insurance-related proceeding, or as otherwise required by law.
3012775
- 157.3
No Further Litigation
(1)
No Class Counsel, nor anyone currently or hereafter employed by or a partner with Class
Counsel, may directly or indirectly participate or be involved in or in any way assist with respect
to any claim made or action commenced by any person which relates to or arises from the
Released Claims. Moreover, these persons may not divulge to anyone for any purpose any
information obtained in the course o f the Proceedings or the negotiation and preparation o f this
Settlement Agreement, except to the extent such information is otherwise publicly available or
unless ordered to do so by a court. Class Counsel agree that the obligations in this paragraph
extend to all firms or lawyers formerly or currently associated with Class Counsel in the
prosecution o f the Proceedings, including Sutts Strosberg LLP, and hereby undertakes and agrees
to obtain such firm's/lawyer's written confirmation o f same.
Section 8 - Certification or Authorization
for Settlement Only
(1)
The Parties agree that the Proceedings shall be certified or authorized as class
proceedings as against the Defendants solely for purposes o f settlement o f the Proceedings and
the approval o f this Settlement Agreement by the Courts.
(2)
The Plaintiffs agree that, in the motions for certification or authorization o f the
Proceedings as class proceedings for settlement purposes, the only common issue they will seek
to define is the Common Issue and the only classes that they will assert are the Settlement
Classes.
Section 9 - Notice to Settlement Classes
9,1
Notices Required
(1)
The proposed Settlement Classes shall be given a single notice o f (i) the certification or
authorization o f the Proceedings as class proceedings as against the Defendants for settlement
purposes; (ii) the hearings at which the Courts will be asked to approve the Settlement
Agreement; and (iii) the hearings at which the Courts will be asked to approve Class Counsel
Fees and the Distribution Protocol.
.
iiil2?75
- 169.2
Form and Distribution o f Notices
(1)
The notices shall be in a form agreed upon by the Parties and approved by the Courts or,
i f the Parties cannot agree on the form o f the notices, the notices shall be in a form ordered by
the Courts.
(2)
The notices shall be disseminated by a method agreed upon by the Parties and approved
by the Courts or, if the Parties cannot agree on a method for disseminating the notices, the
notices shall be disseminated by a method ordered by the Courts.
Section 10 - Opting Out
10.1
Procedure
(1)
A Person may opt-out o f the Proceedings by sending a written election to opt-out, signed
by the Person or the Person's designee, by pre-paid mail, courier, fax, or email to Ontario
Counsel at an address to be identified in the notice described in Section 9.1(1). Residents of
Quebec must also send the written election to opt-out by pre-paid mail or courier to the Quebec
Court at an address to be identified in the notice described in Section 9.1(1).
(2)
An election to opt-out will only be effective i f it is postmarked on or before the Opt-Out
Deadline. Where the postmark is not visible or legible, the election to opt-out shall be deemed to
have been postmarked on the date that it is received by Ontario Counsel.
(3)
The written election to opt-out must contain the following information in order to be
effective:
(a)
the Person's full name, current address and telephone number;
(b)
the name(s) o f each entity from whom the Person purchased Aftermarket Filters
during the Class Period;
(c)
the total Purchase Price paid by that Person and the name(s) o f the Aftermarket
Filters that it purchased
(d)
a statement to the effect that the Person wishes to be excluded from the
Proceedings; and
3012775
-17(e)
(4)
the reasons for opting out.
Quebec Class Members who have commenced proceedings or commence proceedings
and fail to discontinue such proceedings by the Opt-Out Deadline shall be deemed to have opted
out. Quebec Counsel warrant and represent that, to the best o f their knowledge, no such action
has been commenced as o f the Date o f Execution.
10.2
Opt-Out Report
(1)
Within thirty (30) days o f the Opt-Out Deadline, Ontario Counsel shall provide to the
Defendants a report containing the names o f each Person who has validly and timely opted out of
the Proceedings, the reasons for the opt-out, if known, its best estimate o f the total Purchase
Price paid by each Person who opted out and a summary o f the information delivered by each of
them pursuant to section 10.1. The 30 day time period specified in section 5.1(1) commences on
the date this report is provided to the Defendants.
Section 11 - Administration and Implementation
11.1
Mechanics o f Administration
(1)
Except to the extent provided for in this Settlement Agreement, the mechanics o f the
implementation and administration o f this Settlement Agreement and Distribution Protocol shall
be determined by the Courts on motions brought by Class Counsel.
11.2
Information for Notice and Claims Administration
(1)
The Defendants agree to make reasonable best efforts to provide the names and, where
available, the addresses o f and total Purchase Price paid by, any Persons in Canada who the
Defendants reasonably believe purchased more than $1 million o f Aftermarket Filters directly
from them during the Class Period.
The available name and address information shall be
provided within fifteen (15) days o f the Date o f Execution and the Purchase Price information
shall be provided within fifteen (15) days o f the Effective Date.
(2)
Class Counsel shall maintain the information provided under section 11.2(1) as
confidential, and may only use or disclose this information to the extent necessary for the sole
3012775
- 18purpose o f facilitating the dissemination o f the notices required by Section 9.1 and the claims
administration process.
(3)
The Defendants make no representations and shall bear no liability with respect to the
completeness or accuracy o f the information provided pursuant to Section 11.2(1).
(4)
I f this Settlement Agreement is terminated, all information provided by the Defendants
pursuant to Section 11.2(1) shall be returned or destroyed forthwith, no record o f the information
so provided shall be retained by Class Counsel in any form whatsoever, and the information so
provided may not be used or disclosed, directly or indirectly, in any form or manner by Class
Counsel.
Section 12 - Class Counsel Fees and
Administration Expenses
(1)
Class Counsel may seek the Courts' approval to pay Class Counsel Fees and
Administration Expenses contemporaneous with seeking approval o f this Settlement Agreement
or at such other time as they may determine in their sole discretion.
(2)
The Defendants shall not be liable for any fees, disbursements or taxes o f any the
lawyers, experts, advisors, agents, or representatives retained by Class Counsel, the Plaintiffs or
the Settlement Class Members, any amounts to which the Fonds d'aide aux recours collectif in
Quebec may be entitled, or any lien o f any Person on any payment to any Settlement Class
Member from the Settlement Amount.
Section 13 - Miscellaneous
13.1
Motions for Directions
(1)
Class Counsel or the Defendants may apply to the Ontario Court and/or such other Courts
as may be required by the Courts for directions in respect o f the interpretation, implementation
and administration o f this Settlement Agreement. Unless the Courts order otherwise, motions for
directions that do not relate specifically to the matters affecting the Quebec Action or/and
Settlement Class Members in the Quebec Action shall be determined by the Ontario Court.
3012775
- 19(2)
All motions contemplated by this Settlement Agreement shall be on notice to the Parties,
without prejudice to the Plaintiffs' position that the Defendants do not have standing on those
motions concerned only with the implementation and administration o f the Distribution Protocol.
13.2
Releasees Have No Liability for Administration
(1)
The Releasees have no responsibility for and no liability whatsoever with respect to the
administration o f the Settlement Agreement or Distribution Protocol.
13.3
Headings, etc.
(1)
In this Settlement Agreement:
(a)
the division o f the Settlement Agreement into sections and the insertion of
headings are for convenience o f reference only and shall not affect the
construction or interpretation o f this Settlement Agreement; and
(b)
the terms "this Settlement Agreement", "hereof, "hereunder", "herein", and
similar expressions refer to this Settlement Agreement and not to any particular
section or other portion o f this Settlement Agreement.
13.4
Computation o f Time
(1)
In the computation o f time in this Settlement Agreement, except where a contrary
intention appears,
(a)
where there is a reference to a number o f days between two events, the number of
days shall be counted by excluding the day on which the first event happens and
including the day on which the second event happens, including all calendar days;
and
(b)
only in the case where the time for doing an act expires on a holiday as "holiday"
is defined in the Interpretation Act, RSC 1985, c 1-21, the act may be done on the
next day that is not a holiday.
3012775
-2013.5
Ongoing Jurisdiction
(1)
Each o f the Courts shall retain exclusive jurisdiction over the Proceeding commenced in
its jurisdiction, the Parties and the Class Counsel Fees in that Proceeding.
(2)
No Party shall ask a Court to make any order or give any direction in respect o f any
matter o f shared jurisdiction unless that order or direction is conditional upon a complementary
order or direction being made or given by the other Court with which it shares jurisdiction over
that matter.
(3)
Notwithstanding Section 13.5(1) and (2), the Ontario Court shall exercise jurisdiction
with respect to implementation, administration, interpretation and enforcement o f the terms of
this Settlement Agreement, and the Plaintiffs and Settlement Class Members attorn to the
jurisdiction o f the Ontario Court for such purposes. Issues related to the administration o f this
Settlement Agreement, the Trust Account, and other matters not specifically related to the claim
o f a Settlement Class Member in the Quebec Action shall be determined by the Ontario Court.
(4)
Notwithstanding Section 13.6(1), for matters relating specifically to the claim o f a
Settlement Class Member in the Quebec Action or to the Quebec Action, the Quebec Court shall
apply the law o f its own jurisdiction.
13.6
Governing Law
(1)
This Settlement Agreement shall be governed by and construed and interpreted in
accordance with the laws o f the Province o f Ontario.
13.7
Entire Agreement
(1)
This Settlement Agreement constitutes the entire agreement among the Parties, and
supersedes
all
prior
and
contemporaneous
understandings,
undertakings,
negotiations,
representations, promises, agreements, agreements in principle and memoranda o f understanding
in connection herewith. None o f the Parties will be bound by any prior obligations, conditions or
representations with respect to the subject matter o f this Settlement Agreement, unless expressly
incorporated herein.
3012775
-21 13.8
Amendments
(1)
This Settlement Agreement may not be modified or amended except in writing and on
consent o f all Parties and any such modification or amendment must be approved by the Courts
with jurisdiction over the matter to which the amendment relates.
13.9
Binding Effect
(1)
This Settlement Agreement shall be binding upon, and enure to the benefit of, the
Plaintiffs, the Settlement Class Members, the Defendants, the Releasors, the Releasees and all of
their successors and assigns. Without limiting the generality o f the foregoing, each and every
covenant and agreement made by the Plaintiffs shall be binding upon all Releasors and each and
every covenant and agreement made by the Defendants shall be binding upon all o f the
Releasees.
13.10 Counterparts
(1)
This Settlement Agreement may be executed in counterparts, all o f which taken together
will be deemed to constitute one and the same agreement, and a facsimile or PDF signature shall
be deemed an original signature for purposes o f executing this Settlement Agreement.
13.11 Negotiated Agreement
(1)
This Settlement Agreement has been the subject o f negotiations and discussions among
the undersigned, each o f which has been represented and advised by competent counsel, so that
any statute, case law, or rule o f interpretation or construction that would or might cause any
provision to be construed against the drafter o f this Settlement Agreement shall have no force
and effect. The Parties further agree that the language contained in or not contained in previous
drafts o f this Settlement Agreement, or any agreement in principle, shall have no bearing upon
the proper interpretation o f this Settlement Agreement.
13.12 Language
(1)
The Parties acknowledge that they have required and consented that this Settlement
Agreement and all related documents be prepared in English; les parties reconnaissent avoir
exige que la presente convention et tous les documents connexes soient rediges en anglais.
Nevertheless, i f required by the Courts, Class Counsel and/or a translation firm selected by Class
3012775
-22Counsel shall prepare a French translation o f the Settlement Agreement, the cost o f which shall
be paid from the Settlement Amount. In the event o f any dispute as to the interpretation or
application o f this Settlement Agreement, only the English version shall govern.
13.13 Transaction
(1)
The present Settlement Agreement constitutes a transaction in accordance with Articles
2631 and following o f the Civil Code o f Quebec, and the Parties are hereby renouncing to any
errors o f fact, o f law and/or o f calculation.
13.14 Recitals
(1)
The recitals to this Settlement Agreement are true and form part o f the Settlement
Agreement.
13.15 Schedules
(1)
The Schedules annexed hereto form part o f this Settlement Agreement.
13.16 Acknowledgements
(1)
Each o f the Parties hereby affirms and acknowledges that:
(a)
he, she or a representative o f the Party with the authority to bind the Party with
respect to the matters set forth herein has read and understood the Settlement
Agreement;
(b)
the terms o f this Settlement Agreement and the effects thereof have been fully
explained to him, her or the Party's representative by his, her or its counsel;
(c)
he, she or the Party's representative fully understands each term o f the Settlement
Agreement and its effect; and
(d)
no Party has relied upon any statement, representation or inducement (whether
material, false, negligently made or otherwise) o f any other Party, beyond the
terms o f the Settlement Agreement, with respect to the first Party's decision to
execute this Settlement Agreement.
31)12775
-2313.17 Authorized Signatures
(1)
Each o f the undersigned represents that he or she is fully authorized to enter into the
terms and conditions of, and to execute, this Settlement Agreement on behalf o f the Parties
identified above their respective signatures and their law firms.
13.18 Notice
(1)
Where this Settlement Agreement requires a Party to provide notice or any other
communication or document to another, such notice, communication or document shall be
provided by email, facsimile or letter by overnight delivery to the representatives for the Party t o
whom notice is being provided, as identified below:
For the Plaintiffs and for Class Counsel in the Proceedings:
Charles M. Wright and Linda Visser
LLP
Simon Hebert
SISKINDS
Barristers and Solicitors
680 Waterloo Street
London, ON N6A 3V8
SISKINDS DESMEULES s.e.n.c.r.l.
Les promenades du Vieux-Quebec
43 rue Buade, bureau 320
Quebec City, QC G1R. 4A2
Tel:
519-660-7753
Fax: 519-672-6065
Email: [email protected]
[email protected]
Tel:
418-694-2009
Fax: 418-694-0281
Email: [email protected]
For the Defendants:
Robert E. Kwinter and Calvin Goldman
BLAKE, CASSELS & GRAYDON
199 Bay Street
Suite 4000, Commerce Court West
Toronto ON M5L 1A9
LLP
Tel:
416-863-2400
Fax: 416-863-2653
Email: [email protected]
[email protected]
Lawyers for the Defendants Champion
Laboratories, Inc.
Donald Houston
MCCARTHY TETRAULT
P
LL
Suite 5300, TD Bank Tower
Box 48, 66 Wellington Street West
Toronto ON M5K 1E6
Tel:
416-362-1812
Fax: 416-868-0673
Email: [email protected]
Lawyers for the Defendants ArvinMeritor
Inc., ArvinMeritor Filters Operating
Company LLC (f/k/a Purolator Products NA,
LLC), ArvinMeritor Holding Company (f/k/a
Purolator Products Company LLC) and
ArvinMeritor Canada
3012775
-24-
Sandra Forbes
David Kent and Neil Campbell
DAVIES WARD PHILLIPS & VINEBERG
155 Wellington Street West
Toronto, O N M5V 3J7
LL
P
Tel:
416-863-0900
Fax: 416-863-0871
Email: [email protected]
MCMILLAN
LLP
Brookfield Place, Suite 4 4 0 0
181 Bay Street
Toronto, ON M 5 J 2T3
Tel:
416-865-7000
Fax: 4 1 6 . 8 6 5 . 7 0 4 8
Email: [email protected]
[email protected]
Lawyers for the Defendant Honeywell
International Inc.
Lawyers for the Defendants Wix Filtration
Products, Affinia Group Inc.
Paul Martin and Laura Cooper
FASKEN MARTINEAU DuMOULIN
333 Bay Street, Suite 2400
Bay Adelaide Centre, Box 20
Toronto, ON M5H 2T6
LLP
Charles Gastle and Elizabeth Bennett-Martin
BENNETT GASTLE PROFESSIONAL
CORPORATION
27 Old Kingston Road,
Toronto, ON M I E 3 J 6
Tel:
416-366-8381
Fax: 416-364-7813
Email: [email protected]
[email protected]
Tel:
416-361-3319
Fax: 416-361-1530
Email: [email protected]
[email protected]
Lawyers for the Defendants Cummins Filtration
Inc., Cummins Filtration International Corp.,
Cummins Inc., and Cummins Est du
Canada/Cummins Eastern Canada L.P.
Lawyers for the Defendant Donaldson
Company, Inc.
David Gadsden and Cherrine Chow
BAKER & McKENZIE LLP
Brookfield Place
Bay/Wellington Tower
181 Bay Street, Suite 2100
Toronto, Ontario M5J 2T3
Tel:
416-863-1221
Fax: 416-863-6275
Email: [email protected]
[email protected]
Lawyers for the Defendant Baldwin Filters, Inc.
13.19 Date o f Execution
(1)
The Parties have executed this Settlement Agreement as o f the date on the cover page.
3012775
-25-
URLIN R E N T A C A R LTD. a n d JEAN-PAUL P E R R A U L T on their own
behalf and on behalf o f the Settlement Class, by their counsel
h
//
Signature o f Authorized Signatory:
1
Name o f Authorized Signatory: p c f Charles M. Wright
LLP
•
Siskinds
Ontario Counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Simon Hebert
Siskinds Desmeules s.e.n.c.r.l
Quebec Counsel
C H A M P I O N LABORATORIES, INC., H O N E Y W E L L I N T E R N A T I O N A L
INC., WIX F I L T R A T I O N PRODUCTS, A F F I N I A G R O U P INC.,
C U M M I N S F I L T R A T I O N INC., CUMMINS F I L T R A T I O N
I N T E R N A T I O N A L CORP., C U M M I N S INC., DONALDSON C O M P A N Y ,
INC., B A L D W I N FILTERS, INC., A R V I N M E R I T O R INC.,
A R V I N M E R I T O R F I L T E R S O P E R A T I N G C O M P A N Y L L C (F/K/A
P U R O L A T O R P R O D U C T S NA, LLC), A R V I N M E R I T O R H O L D I N G
C O M P A N Y (F/K/A P U R O L A T O R P R O D U C T S C O M P A N Y L L C ) AND
A R V I N M E R I T O R CANADA, by their counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Robert E. Kwinter
Blake, Cassels & Graydon
>
LLF
Lawyers for the Defendants Champion
Laboratories, Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Donald Houston
McCarthy Tetrault
LL
P
Lawyers for the Defendants ArvinMeritor
Inc., ArvinMeritor Filters Operating
Company LLC (f/k/a Purolator Products
NA, LLC), ArvinMeritor Holding
Company (f/k/a Purolator Products
Company LLC) and ArvinMeritor Canada
3012775
-25
URLIN R E N T A C A R LTD. a n d JEAN-PAUL P E R R A U L T on their own
behalf and on behalf o f the Settlement Class, by their counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Charles M. Wright
Siskinds LLP
Ontario Counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Siskinds Desmeules s.e.n.c,r.l
Quebec Counsel
CHAMPION LABORATORIES, INC., HONEYWELL INTERNATIONAL
INC., WIX FILTRATION PRODUCTS, AFFINIA GROUP INC.,
CUMMINS FILTRATION INC., CUMMINS FILTRATION
INTERNATIONAL CORP., CUMMINS INC., DONALDSON COMPANY,
INC., BALDWIN FILTERS, INC., ARVINMERITOR INC.,
ARVINMERITOR FILTERS OPERATING COMPANY LLC (F/K/A
PUROLATOR PRODUCTS NA, LLC), ARVINMERITOR HOLDING
COMPANY (F/K/A PUROLATOR PRODUCTS COMPANY LLC) AND
ARVINMERITOR CANADA, by their counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Robert E. Kwinter
Blake, Cassels & Graydon
PLL
Lawyers for the Defendants Champion
Laboratories, Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Donald Houston
McCarthy Tetrault
LL
P
Lawyers for the Defendants ArvinMeritor
Inc., ArvinMeritor Filters Operating
Company LLC (f/k/a Purolator Products
NA, LLC), ArvinMeritor Holding
Company (f/k/a Purolator Products
Company LLC) and ArvinMeritor Canada
3012775
-25URLESf RENT A CAR LTD. and JEAN-PAUL PERRAULT on their own
behalf and on behalf o f the Settlement Class, by their counsel
Signature o f Authorized Signatory:
"Name o f Authorized Signatory:
Charles M . Wright
Siskinds 1>lL'
Ontario Counsel
Signature o f Authorized Signatory:
•Name o f Authorized Signatory:
Simon Hebert
Siskinds Desmeules s.e.n.c.r.l
Qucbcc Counsel
CHAMPION LABORATORIES, INC., HONEYWELL INTERNATIONAL
INC., WIX FILTRATION PRODUCTS, AFFINIA GROUP INC.,
CUMMINS FILTRATION INC., CUMMINS FILTRATION
INTERNATIONAL CORP., CUMMINS INC., DONALDSON COMPANY,
INC., BALDWIN FILTERS, INC., ARVINMERITOR INC.,
ARVINMERITOR FILTERS OPERATING COMPANY LLC (F/K/A
PUROLATOR PRODUCTS NA, LLC), ARVINMERITOR HOLDING
COMPANY (F/K/A PUROLATOR PRODUCTS COMPANY LLC) AND
ARVINMERITOR CANADA, by their counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Robert E. Kwinter
Blake, Cassels & Graydon pu '
Lawyers for the Defendants Champion
Laboratories, Inc.
Signature of Authorized Signatory:
Name o f Authorized Signatory:
Doiutld Houston
McCarthy Tetrault u> '
Lawyers for the Defendants ArvinMeritor
Inc., ArvinMeritor Filters Operating
Company LLC (f/k/a Purolator Products
NA, LLC)., ArvinMeritor Holding
Company (f/k/a Purolator Products
Company LLC) and ArvinMeritor Canada
30)277
-25-
URLIN RENT A C A R LTD. and JEAN-PAUL PERRAULT on their own
behalf and on behalf o f the Settlement Class, by their counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Charles M. Wright
Siskinds LLP
Ontario Counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Simon Hebert
Siskinds Desmeules s.e.n.c.rJ
Quebec Counsel
CHAMPION LABORATORIES, INC., HONEYWELL INTERNATIONAL
INC., WIX FILTRATION PRODUCTS, AFFINIA GROUP INC.,
CUMMINS FILTRATION INC., CUMMINS FILTRATION
INTERNATIONAL CORP., CUMMINS INC., DONALDSON COMPANY,
INC., BALDWIN FILTERS, INC., ARVINMERITOR INC.,
ARVINMERITOR FILTERS OPERATING COMPANY L L C (F/K/A
PUROLATOR PRODUCTS NA, LLC), ARVINMERITOR HOLDING
COMPANY (F/K/A PUROLATOR PRODUCTS COMPANY LLC) AND
ARVINMERITOR CANADA, by their counsel
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Robert E. Kwinter
Blake, Cassels & Graydon u!>'
Lawyers for the Defendants Champion
Laboratories, Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Donalal-fouston
McCarthy Tetrault
PLL
Lawyers for the Defendants ArvinMeritor
Inc., ArvinMeritor Filters Operating
Company LLC (f/k/a Purolator Products
NA, LLC), ArvinMeritor Holding
Company (f/k/a Purolator Products
Company LLC) and ArvinMeritor Canada
.26.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Sandra Forbes
Davies Ward Phillips & Vineberg PLL
Lawyers for the Defendant Honeywell
International Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
David Kent
McMillan LLP
Lawyers for the Defendants Wix
Filtration Products, Affinia Group Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Paul Martin
Fasken Martineau DuMoulin
LL
P
Lawyers for the Defendants Cummins
Filtration Inc., Cummins Filtration
International Corp., Cummins Inc., and
Cummins Est du Canada/Cummins
Eastern Canada L.P.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Charles Gastle
Bennett Gastle Professional Corporation
Lawyers for the Defendant Donaldson
Company, Inc.
Tor#: 3012775.1
-26-
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Sandra Forbes
Davies Ward Phillips & Vineberg
PLL
Lawyers for the Defendant Honeywell
International Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
David Kent
P
McMillan LL
Lawyers for the Defendants Wix
Filtration Products, Affinia Group Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Paul Martin
Fasken Martineau DuMoulin p1l*"
Lawyers for the Defendants Cummins
Filtration Inc., Cummins Filtration
International Corp., Cummins Inc., and
Cummins Est du Canada/Cummins
Eastern Canada L.P.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Charles Gastle
Bennett Gastle Professional Corporation
Lawyers for the Defendant Donaldson
Company, Inc.
Tor#; 3012775,1
-26-
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Sandra Forbes
Davies Ward Phillips & Vineberg
PLL
Lawyers for the Defendant Honeywell
International Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
David Kent
McMillan PLL
Lawyers for the Defendants Wix
Filtration Products, Affinia Group Inc.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Paul Martin
Fasken Martineau DuMoulin up '
Lawyers for the Defendants Cummins
Filtration Inc., Cummins Filtration
International Corp., Cummins Inc., and
Cummins Est du Canada/CumcH'ns
EasteMCanitp L.P.
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
Charles Gastle
Bennett Gastle Professional Corporation
Lawyers for the Defendant Donaldson
Company, Inc.
-27-
Signature o f Authorized Signatory:
Name o f Authorized Signatory:
I
--^"David Gadsden
Baker & McKenzie
LLP
Lawyers for the Defendant Baldwin
Filters, Inc.
Turn cWl?77 I
SCHEDULE"A"
Proceedings
Court and
File No.
Plaintiffs'
Counsel
Plaintiff
Named Defendants
Settlement Class
Ontario Action
Ontario
Superior
Court of
Justice
Court File
No. 58276
CP
Siskinds LLP
Urlin Rent a Car
Ltd.
Champion Laboratories, Inc., Honeywell
International Inc., Wix Filtration
Products, Affinia Group Inc., Cummins
Filtration Inc., Cummins Filtration
International Corp., Cummins Inc.,
ArvinMeritor Inc., ArvinMeritor Filters
Operating Company LLC (f/k/a Purolator
Products NA, LLC), ArvinMeritor
Holding Company (f/k/a Purolator
Products Company LLC), ArvinMeritor
Canada, Donaldson Company, Inc. and
Baldwin Filters Inc.
All persons in Canada who
purchased (including as part o f a
service), directly or indirectly,
Aftermarket Filters during the Class
Period, except the Excluded
Persons and persons who are
included in the Quebec Class.
Quebec Action
Superior
Court of
Quebec
(District of
Quebec),
File No.
200-06000098-080
Siskinds
Desmeules
s.e.n.c.r.l.
Jean-Paul
Perrault
Champion Laboratories, Inc., Robert
Bosch Inc., ArvinMeritor, Honeywell
International Inc. (incorrectly named as
Honeywell International), Cummins Est
du Canada/ Cummins Eastern Canada
L.P.
All (i) individuals in Quebec and
(ii) legal persons resident in Quebec
established for a private interest,
partnership or association which
had under its direction or control no
more than 50 persons bound to it by
a contract o f employment who
purchased (including as part o f a
service), directly or indirectly,
Aftermarket Filters during the Class
3012775
Error! Unknown document property name.
Court and
File No.
Plaintiffs'
Counsel
Plaintiff
Named Defendants
Settlement Class
Period, except Excluded Persons.
3012775
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-30SCHEDULE"B"
Court File No. 58276CP
ONTARIO
SUPERIOR COURT OF JUSTICE
THE HONOURABLE
)
, the
day
)
JUSTICE RADY
)
of
,2013
BETWEEN:
URLIN RENT A CAR LTD.
Plaintiff
-and-
CHAMPION LABORATORIES, INC., HONEYWELL INTERNATIONAL INC.,
WIX FILTRATION PRODUCTS, AFFINIA GROUP INC., CUMMINS FILTRATION INC.,
CUMMINS FILTRATION INTERNATIONAL CORP., CUMMINS INC.,
THE DONALDSON COMPANY, BALDWIN FILTERS, INC.,
ARVINMERITOR INC., ARVINMERITOR FILTERS OPERATING COMPANY LLC
(f/k/a PUROLATOR PRODUCTS NA, LLC), ARVINMERITOR HOLDING COMPANY
(f/k/a PUROLATOR PRODUCTS COMPANY LLC) and ARVINMERITOR CANADA.
Defendants
Proceeding under the Class Proceedings Act, 1992
ORDER
THIS MOTION made by the Plaintiff for an Order approving the short-form and longform notice o f settlement approval hearings and the method o f dissemination o f said notices, and
certifying this proceeding as a class proceeding for settlement purposes as against the Defendants
was heard this day at the Courthouse, 80 Dundas Street, London, Ontario.
3012775
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-31 AND O N B E I N G ADVISED that the Plaintiff and the Defendants consent to this Order:
AND O N R E A D I N G the materials filed, including the settlement agreement attached to
this Order as Schedule "A" (the "Settlement Agreement") and on hearing the submissions of
counsel for the Plaintiff and counsel for the Defendants;
1.
T H I S C O U R T O R D E R S that for the purposes o f this Order the definitions set out in the
Settlement Agreement apply to and are incorporated into this Order.
2.
T H I S C O U R T O R D E R S that the short-form and long-form o f the notice o f settlement
approval hearings are hereby approved substantially in the form attached respectively
hereto as Schedules "A" and "B."
3.
T H I S C O U R T O R D E R S that the plan o f dissemination for the short-form and longform o f notice o f settlement approval hearings (the "Plan o f Dissemination") is hereby
approved in the form attached hereto as Schedule "C" and that the notice o f settlement
approval hearings shall be disseminated in accordance with the Plan o f Dissemination.
4.
T H I S C O U R T O R D E R S that this action is certified as a class proceeding as against the
Defendants for settlement purposes only.
5.
T H I S C O U R T O R D E R S that the "Ontario Settlement Class" is certified as follows:
All persons in Canada who purchased (including as part o f a
service), directly or indirectly, Aftermarket Filters during the Class
Period, except the Excluded Persons and persons who are included
in the Quebec Class.
6.
T H I S C O U R T O R D E R S that Urlin Rent a Car Ltd. be appointed as the representative
plaintiff for the Ontario Settlement Class.
7.
T H I S C O U R T O R D E R S that the following issue is common to the Ontario Settlement
Class:
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-32Did the Defendants conspire to fix, raise, maintain or stabilize the
prices of, or allocate markets and customers for, Aftermarket
Filters directly or indirectly in Canada during the Class Period? If
so, what damages, i f any, did Class Members suffer?
8.
THIS COURT ORDERS that putative members o f the Ontario Settlement Class can opt
out o f this action by sending a written request to opt out to Ontario Counsel, postmarked
on or before the date that is sixty (60) days from the date o f the first publication o f the
short-form notice o f settlement approval hearings attached hereto as Schedule "B". The
written election to opt-out must include the information specified in the long-form notice
o f settlement approval hearings attached hereto as Schedule "C".
9.
THIS COURT ORDERS that any putative member o f the Ontario Settlement Class who
validly opts out o f this action shall not be able to participate in this action and no further
right to opt out o f this action will be provided.
10.
THIS COURT ORDERS that this Order is contingent upon parallel orders being made
by the Quebec Court, and the terms o f this Order shall not be effective unless and until
such orders are made by the Quebec Court.
Date:
THE HONOURABLE JUSTICE RADY
3012775
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-33-
SCHEDULE"C"
Court File No. 58276CP
ONTARIO
SUPERIOR COURT OF JUSTICE
THE HONOURABLE
)
, the
day
)
JUSTICE RADY
)
of
,2014
BETWEEN:
URLIN RENT A CAR LTD.
Plaintiff
- and -
CHAMPION LABORATORIES, INC., HONEYWELL INTERNATIONAL INC.,
WIX FILTRATION PRODUCTS, AFFINIA GROUP INC., CUMMINS FILTRATION INC.,
CUMMINS FILTRATION INTERNATIONAL CORP., CUMMINS INC.,
THE DONALDSON COMPANY, BALDWIN FILTERS, INC.,
ARVINMERITOR INC., ARVINMERITOR FILTERS OPERATING COMPANY LLC
(f/k/a PUROLATOR PRODUCTS NA, LLC), ARVINMERITOR HOLDING COMPANY
(f/k/a PUROLATOR PRODUCTS COMPANY LLC) and ARVINMERITOR CANADA.
Defendants
Proceeding under the Class Proceedings Act, 1992
ORDER
3012775
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-34THIS MOTION made by the Plaintiff for an Order approving the settlement agreement
entered into with the Defendants and dismissing this action as against the Defendants, was heard
this day at the Court House, 80 Dundas Street, London, Ontario.
ON READING the materials filed, including the settlement agreement dated September
12, 2013 and attached to this Order as Schedule "A" (the "Settlement Agreement"), and on
hearing the submissions o f counsel for the Plaintiff and counsel for the Defendants;
AND ON BEING ADVISED that the deadline for opting out o f this action has passed
and there have been • opt-outs;
AND ON BEING ADVISED that the Plaintiff and the Defendants consent to this Order:
1.
THIS COURT ORDERS that, in addition to the definitions used elsewhere in this
Order, for the purposes o f this Order, the definitions set out in the Settlement Agreement
apply to and are incorporated into this Order.
2. THIS COURT ORDERS that in the event o f a conflict between this Order and the
Settlement Agreement, this Order shall prevail.
3. THIS COURT ORDERS that this Order, including the Settlement Agreement, is
binding upon each Ontario Settlement Class Member including those Persons who are
minors or mentally incapable and the requirements o f Rules 7.04(1) and 7.08(4) o f the
Rules o fCivil Procedure are dispensed with in respect o f this action.
4. THIS COURT ORDERS that the Settlement Agreement is fair, reasonable and in the
best interests o f the Ontario Settlement Class.
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-35 5. THIS COURT ORDERS that the Settlement Agreement is hereby approved pursuant to
s. 29 o f the Class Proceedings Act, 1992 and shall be implemented and enforced in
accordance with its terms.
6. THIS COURT ORDERS that, upon the Effective Date, each Ontario Settlement Class
Member shall consent and shall be deemed to have consented to the dismissal as against
the Releasees o f any Other Actions he, she or it has commenced, without costs and with
prejudice.
7. THIS COURT ORDERS that, upon the Effective Date, each Other Action commenced
in Ontario by any Ontario Settlement Class Member shall be and is hereby dismissed
against the Releasees, without costs and with prejudice.
8. THIS COURT ORDERS that, upon the Effective Date, each Releasor has released and
shall be conclusively deemed to have forever and absolutely released the Releasees from
the Released Claims.
9. THIS COURT ORDERS that, upon the Effective Date, each Releasor shall not now or
hereafter institute, continue, maintain, intervene in or assert, either directly or indirectly,
whether in Canada or elsewhere, on their own behalf or on behalf o f any class or any
other Person, any proceeding, cause o f action, claim or demand against any Releasee, or
any other Person who may claim contribution or indemnity or other claims over relief
from any Releasee, whether pursuant to the Negligence Act, R.S.O. 1990, c. N. 1 or other
legislation or at common law or equity, in respect o f any Released Claim or any matter
related thereto.
10. THIS COURT ORDERS that each Releasee forever and absolutely releases each o f the
other Releasees from any and all claims for contribution, indemnity or other claims over
with respect to the Released Claims.
11. THIS COURT ORDERS that for purposes o f administration and enforcement o f the
Settlement Agreement and this Order, this Court will retain an ongoing supervisory role
JO 12775
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-36and the Defendants acknowledge and attorn to the jurisdiction o f this Court solely for the
purpose o f implementing, administering and enforcing the Settlement Agreement and this
Order, and subject to the terms and conditions set out in the Settlement Agreement and
this Order.
12. T H I S C O U R T O R D E R S that no Releasee shall have any responsibility or liability
whatsoever
relating
to
the
administration
o f the
Settlement
Agreement;
the
administration, investment, or distribution o f the Trust Account; or the Distribution
Protocol.
13. T H I S C O U R T O R D E R S that Ontario Counsel shall hold the Settlement Amount, plus
any accrued interest, in trust for the benefit o f the Settlement Classes pending further
orders o f the Courts.
14. T H I S C O U R T O R D E R S that the approval o f the Settlement Agreement is contingent
upon approval by the Quebec Court, and the terms o f this Order shall not be effective
unless and until the Settlement Agreement is approved by the Quebec Court, and the
Quebec Action has been fully and finally resolved with prejudice and without costs by
the Quebec Court. I f such order is not secured in Quebec, this Order shall be null and
void and without prejudice to the rights o f the parties to proceed with this action and any
agreement between the parties incorporated in this Order shall be deemed in any
subsequent proceedings to have been made without prejudice.
15. T H I S C O U R T O R D E R S that this Order shall be declared null and void on subsequent
motion made on notice in the event that the Settlement Agreement is terminated in
accordance with its terms.
16. T H I S C O U R T O R D E R S that this action is hereby dismissed without costs and with
prejudice.
Date:
3012775
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-37THE HONOURABLE JUSTICE RADY
3012775
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