- What are the class action lawsuits about? - Top
A number of class action lawsuits were started across Canada against Mars, Nestlé, Cadbury and Hershey entities (the “Manufacturing Defendants”), and ITWAL Limited (a distributor). The lawsuits were brought on behalf of purchasers of Chocolate Products in Canada between February 1, 2001 and December 31, 2008 and alleged that the defendants conspired to fix or maintain prices for Chocolate Products in Canada, causing chocolate buyers to pay artificially high prices for those products (collectively, the “Alleged Claims”).
- What are “Chocolate Products”? - Top
“Chocolate Products” are defined as Cadbury, Hershey, Mars or Nestlé chocolate confectionary products.
In Canada, Cadbury Adams, Hershey Canada, Mars Canada and Nestlé Canada sell chocolate confectionary products under the following brand names:
• Cadbury Adams: Dairy Milk, Crunchie, Crispy Crunch, Wunderbar, Mr Big, Caramilk, Flake, Cream Egg, Mini Eggs
• Hershey Canada: Hershey, Hershey’s Kisses, Oh Henry!, Reese, Skor, Eat-More, Glossette, Pot of Gold
• Mars Canada: Mars, Twix, M&Ms, Maltesers, Snickers, Bounty, 3 Musketeers, Dove
• Nestlé Canada: Areo, Big Turk, Butterfinger, Coffee Crisp, Kit Kat, Mirage, Nestlé Crunch, Rolo, Smarties, Turtles, After Eight, Black Magic, Quality Street
- What settlements have been achieved in the class action lawsuits? - Top
The class action lawsuits have now been settled, and the settlements were approved by the courts in Ontario, British Columbia and Quebec. Together, the defendants, Cadbury Adams Canada Inc., Mars Canada Inc., Hershey Canada Inc., and Nestlé Canada Inc., paid $23.2 million for the benefit of the Settlement Class (see Question #4 below). After deduction of court-approved expenses, there is approximately $17.3 million available for distribution to Settlement Class Members, or for their benefit.
The following settlements have been achieved in the litigation:
• ITWAL Limited. Under the terms of the ITWAL settlement, ITWAL assigned to the Settlement Class any and all claims that it may have against the other Defendants in relation to the Alleged Claims in exchange for a release of the Alleged Claims against it and its member or related entities. ITWAL Settlement
• Cadbury Adams. Under the terms of the Cadbury settlement, Cadbury Adams paid $5.7 million for the benefit of Settlement Class Members in exchange for a release of the Alleged Claims against it and its related entities, including Cadbury Holdings Limited (successor to Cadbury Schweppes plc). Cadbury Adams Settlement
• Hershey Canada. Under the terms of the Hershey settlement, Hershey Canada paid $5.3 million for the benefit of Settlement Class Members in exchange for a release of the Alleged Claims against it and its related entities, including The Hershey Company. Hershey Canada Settlement
• Mars Canada. Under the terms of the Mars settlement, Mars Canada paid $3.2 million for the benefit of Settlement Class Members in exchange for a release of the Alleged Claims against it and its related entities, including Mars, Incorporated. Mars Canada Settlement
• Nestlé Canada. Under the terms of the Nestlé settlement, Nestlé Canada paid $9 million for the benefit of Settlement Class Members in exchange for a release of the Alleged Claims against it and its related entities, including Nestlé S.A. Nestlé Canada Settlement
The settlements represent a compromise of disputed claims. The defendants do not admit any wrongdoing. The settlements have been approved by the Ontario, British Columbia, and Quebec courts as being fair, reasonable, and in the best interests of Settlement Class Members.
- Who is affected by the settlements? - Top
Class proceedings lawsuits apply to all persons who fall within the definition of the certified “class”, unless those persons choose to opt out (exclude themselves) within a prescribed period.
In this case, the Ontario, British Columbia and Quebec courts have certified the following Settlement Class for settlement purposes: “all Persons in Canada who, between February 1, 2001 and December 31, 2008, purchased Chocolate Products in Canada”.
An opportunity to opt out (or exclude oneself) of these proceedings was provided in connection with the earlier Cadbury and ITWAL settlements. The deadline for opting out of the proceedings passed and no one opted out. As a result, all persons who fall within the definition of the Settlement Class are Settlement Class Members and are bound by the terms of the settlement agreements, including the full releases (see Question #2 above).
- Who is eligible to receive money under the settlements? - Top
To be eligible for payment, you must have submitted a timely and valid claim form, and otherwise met the requrements for filing a claim. The deadline for filing a claim has now passed.
To meet the requirements for filing a claim, you must have purchased Chocolate Product between October 2005 and September 30, 2007 (the "Critical Period"). For consumers to claim, they must have purchased at least $1,000 in Chocolate Products during that period.
- Why is there a $1,000 threshold for consumers to be eligible to file a claim? - Top
The $1,000 threshold was approved by the Ontario, British Columbia and Quebec courts. The threshold exists because it is not economical to administer claims and issue payments in respect of very small claims. The alleged price increases were only a small percentage of the price of Chocolate Products, and Settlement Class Members are therefore only entitled to a small percentage of their Chocolate Product purchases during the Critical Period. As such, if you purchased a small volume of Chocolate Products, the cost of administering your claim and issuing payment would exceed the amount of your settlement benefits. As explained in Question #12 below, there are amounts being paid to non-profit organizations to account for the fact that even those who purchased small volumes of Chocolate Products were injured as well.
- How are settlement funds being allocated? - Top
The Ontario, British Columbia and Quebec courts approved a protocol for distributing the settlement funds, plus accrued interest, less court approved legal fees and other expenses (the “Net Settlement Amounts”). An ammended protocol was approved by the Ontario court. The Net Settlement Amounts equal approximately $17.3 million. Payments to Quebec Settlement Class Members are subject to additional deductions payable to the Fonds d’aide aux recours collectifs, calculated in accordance with the governing regulations. A copy of the distribution protocol (the “Protocol”) is available here.
The Protocol was prepared taking into account the information provided by the Defendants regarding sales and prices of Chocolate Products. As a result of that information, it was Class Counsel’s view that the case for liability was stronger during the Critical Period, and therefore the settlement amounts paid by the Manufacturing Defendants were calculated as a percentage of Chocolate Product sales during the same period. Payment of settlement benefits to Settlement Class Members is consistent with this approach.
The Protocol is based on an expert economic opinion regarding the extent to which the alleged overcharges were paid by the different types of buyers of Chocolate Products, as well as a mediation process conducted by Class Counsel with an experienced class action judge. As a result of that process, it was determined that 90% of the Net Settlement Amount should be allocated for direct compensation to Settlement Class Members. The remaining 10% is allocated for indirect compensation to Settlement Class Members (see Question #12 below).
- I am a consumer. How will my payment be calculated? - Top
For the purposes of the distribution of settlement funds, “Consumers” are defined as Settlement Class Members who purchased Chocolate Products not for commercial resale. This includes, for example, persons purchasing Chocolate Products for personal consumption or on behalf of sports teams, schools, and other non-profit organizations for gratuitous distribution, and commercial entities purchasing Chocolate Products for their own use or for promotional use and not for resale.
Payments to eligible Consumers will be calculated as follows:
- Consumer claims not supported by proofs of purchase will be calculated on the basis of 2.529% of the Consumers’ Chocolate Products purchases during the Critical Period. Each Consumer can only receive up to $50 for unsupported Consumer claims.
- Consumer claims supported by proofs of purchase will be calculated on the basis of 2.975% of the Consumers’ Chocolate Products purchases during the Critical Period.
Families residing in the same household were allowed to combine their purchases and file claim as one unit. The claim will be treated as the claim of a single consumer for the purposes of the $50 maximum for unsupported claims, and settlement benefits will be paid to the claiming individual.
- I am a commercial purchaser. How will my payment be calculated? - Top
For the purposes of the distribution of the settlement funds, there are four categories of Commercial Purchasers:
- A “Direct Commercial Purchaser” means a Settlement Class Member in respect of purchases of Chocolate Products directly from a Manufacturing Defendant by the Settlement Class Member (including purchases by or on behalf of entities owned by the Settlement Class Member) for direct commercial resale to Consumers;
- A “Direct Intermediary Commercial Purchaser” means a Settlement Class Member in respect of purchases of Chocolate Products directly from a Manufacturing Defendant by the Settlement Class Member for commercial resale to entities other than Consumers (including by the Settlement Class Member for resale to its affiliates, licensees and/or franchisees); and
- An "Indirect Intermediary Commercial Purchaser" means a Settlement Class Member in respect of purchases of Chocolate Products from an entity other than a Manufacturing Defendant by the Settlement Class Member for commercial resale to entities other than Consumers (including by the Settlement Class Member for resale to its affiliates, licensees and/or franchisees); and
- A “Secondary Commercial Purchaser” means a Settlement Class Member in respect of purchases of Chocolate Products from an entity other than a Manufacturing Defendant by the Settlement Class Member (including purchases from the Settlement Class Member’s own affiliates, franchisor or licensor) for direct commercial resale to Consumers.
A Commercial Purchaser may fall under two or even three categories, depending on the purchases made. Direct compensation payable to eligible Commercial Purchasers will be calculated based on the total amount of each type of purchase made, as follows:
- 0.875% of the Direct Commercial Purchaser’s Chocolate Products purchases during the Critical Period;
- 0.175% of the Intermediary Commercial Purchaser’s Chocolate Products purchases during the Critical Period; and
- 0.7% of the Secondary Commercial Purchaser’s Chocolate Products purchases during the Critical Period.
If surplus monies remain available for distribution after all eligible Settlement Class Members have been paid, an increased payment will be made to Direct Commercial Purchasers and Direct Intermediary Commercial Purchasers to a maximum of 3.5% of its Chocolate Products purchases. If there are not sufficient monies available to pay the full 3.5%, the settlement benefits payable to such Settlement Class Members shall be reduced proportionally based on the value of the Settlement Class Members' claim relative to the total value of valid claims filed by Direct Commercial Purchasers and Direct Intermediary Commercial Purchasers.
- I am an eligible Settlement Class Member. How do I apply to receive money under the settlements? - Top
December 15, 2013 was the deadline to file a claim for the chocolate class action. We are currently in the process of reviewing all claims submitted.
- What settlement funds are being allocated for indirect compensation and where are these settlement funds going? - Top
Taking into account the many difficulties associated with proving Chocolate Product purchases several years ago and issuing payments in respect of very small claims, at least 10% of the Net Settlement Amount will be paid to the following non-profit organizations.
The initial 10% of the Net Settlement Amounts allocated for cy pres distribution will allocated as follows:
- an initial deduction will be made in respect of deductions payable to the Fonds d’aide aux recours collectifs, calculated in accordance with the governing regulations;
- $300,000 will be distributed to the Consumers Association of Canada. Consumers Association of Canada is a non-profit organization that advocates for consumers rights and interests, and educates consumers on marketplace issues;
- $450,000 will be distributed to the Public Interest Advocacy Centre. Public Interest Advocacy Centre is a charitable organization that provides legal advice, representation, research and advocacy on a non-profit basis to groups and individuals who are representative of public interests concerns. Some of its works have focused on matters relating to consumer protection and redress, and competition law and policy; and
- any remaining amounts will be distributed equally to the following organizations: Phelps Centre for the Study of Government and Business (University of British Columbia); Centre for Interuniversity Research and Analysis of Organizations (“CIRANO”); and Rotman Institute for International Business (University of Toronto). The monies received by these organizations will be used to, among other things, organize conferences and seminars to discuss matters relating to competition law and policy, develop curriculum relating to competition law and policy, and research issues relating to competition law and policy.
- What happens after I file a claim? - Top
The Ontario, British Columbia and Quebec courts have appointed NPT RicePoint Class Action Services (an independent third-party) to act as the Claims Administrator and receive and review claims, make determinations in respect of entitlement to direct payment of settlement benefits, and issue payments to eligible Settlement Class Members.
Once all claims are received and processed, decision notices will be sent to all Settlement Class Members who file claims using the contact information provided in the claim form. If you change addresses prior to receiving a decision notice, please make sure to advise the Claims Administrator.
Accurate claims processing claims takes a significant amount of time. You patience is appreciated. Updates on the status of the administration will be posted here.
Questions regarding the claims process should be directed to NPT RicePoint Class Action Services at 1-866-432-5534 or email@example.com.
- What are my options if I disagree with the decision made in respect of my claim? - Top
Settlement Class Members will be granted thirty (30) days from the date the decision notice is sent to them to appeal the rejection (in whole or in part) of their claims. Appeals will be on the basis of written submissions, supported by the documentation provided to the Claims Administrator by the Settlement Class Member as part of the claims process. Appeals will be determined by a bilingual referee appointed by the Ontario, British Columbia and Quebec courts. The referee’s decision is final and binding and shall not be subject to any further appeal or review whatsoever.
More information about the appeal process will be provided with the claims decision.
- When will I get paid? - Top
Payments to consumers and businesses that purchased from an entity other than a chocolate manufacturer will be issued in mid-November. Claims who filed online will receive a direct deposit based on the banking information provided by the claimant. Claimants who filed by mail will receive a cheque by mail.
Payments to businesses that purchased directly from a chocolate manufacturer will be issued late 2014 or early 2015.
Updates on the status of the administration will be posted here.
- Who are the lawyers representing the Settlement Class (Class Counsel) and how will they be paid? - Top
The law firms of Siskinds LLP and Sutts, Strosberg LLP represent Settlement Class Members in Ontario, and in provinces other than British Columbia or Quebec, as well as corporations of more than 50 employees in Quebec:
680 Waterloo Street
London, ON N6A 3V8
1-800-461-6166 ext. 2446
Visit website here
Heather Rumble Peterson
Sutts, Strosberg LLP
600-251 Goyeau Street
Windsor, ON N9A 6V4
1-800-229-5323 ext. 8296
Visit website here
The law firms of Camp Fiorante Matthews Mogerman and Branch MacMaster LLP represent Settlement Class Members in British Columbia:
Camp Fiorante Matthews Mogerman
400 – 856 Homer Street
Vancouver, BC V6B 2W5
Visit website here
Branch MacMaster LLP
1410-777 Hornby Street
Vancouver, BC V6Z 1S4
Visit website here
The law firm of Siskinds Desmeules s.e.n.c.r.l. represents individuals and corporations of 50 or less employees who are Settlement Class Members in Quebec:
Me Simon Hébert
Siskinds Desmeules s.e.n.c.r.l.
Les promenades du Vieux-Quebec
43 rue De Buade, bureau 320
Quebec City, QC G1R 4A2
Visit website here
The legal fees and disbursements to be paid to Class Counsel in connection with these settlements will be paid from the settlement funds; Settlement Class Members will not have to make any out-of-pocket payments for legal fees and disbursements. Class Counsel has collectively received court approval of legal fees in the amount of $5,867,769.79, inclusive of disbursements, plus applicable taxes.
- I still have questions. How can I obtain further information? - Top
If you have further questions regarding the settlements or claims process you may contact the Claims Administrator toll free at 1-866-432-5534 or by email at firstname.lastname@example.org.
- Who has access to my information? - Top
The Court approved Claims Administrator gathers and stores claim submissions using a secure site. NPT RicePoint Class Action Services was appointed as Claims Administrator. More information about NPT RicePoint is available by clicking here.
Claimant data will be destroyed 90 days after distribution of the Settlement Funds.