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Feb 2, 2022

McMillan successfully represented the Micron defendants in the Canadian DRAM class actions in defeating the plaintiffs’ class certification motion in the Federal Court of Canada, as well as the authorization motion in the Quebec Superior Court.  The claims were based on a theory, rejected by the courts, of alleged public statement “signaling” with respect to production capacity.

This was a notable success for defendants, given the Canadian approach to certification/authorization.  The dismissals were based on a careful consideration of defence arguments that conscious parallelism is lawful, and that the pleading failed to allege material facts supporting a valid cause of action.  The courts also found that the claims lacked the necessary ‘some basis in fact’ for the proposed common issues.

The decisions demonstrate a willingness by the courts to carefully consider cases which, when scrutinized, are not well founded, and are a reminder that while it may often appear otherwise, the Canadian certification test is not a mere formality or foregone conclusion.  Defendants can defeat certification by insisting that claims be carefully examined, and courts should deny certification when the claim does not clear the bar.

The case has won the 2022 Global Competition Review (GCR) Award for Litigation of the Year – Cartel Defence. More here.

See GCR coverage for the case here.