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Technologies. All three involve allegations of anti-competitive conduct that arose from class actions predicated on the fact there were parallel actions in the U.S. that resulted in tens of millions of dollars in settlements. The issue is whether similar conduct violated the law in Canada and whether there are similar remedies in law for that conduct in Canada. In the Sun-Rype proceedings in British Columbia, the plaintiffs alleged the existence of a horizontal conspiracy to fix the price of high-fructose corn syrup and sought to certify a class of direct and indirect purchasers. In Microsoft, the plaintiffs alleged the existence of a vertical conspiracy to fix the price of branded software products and sought to certify a class of indirect purchasers only. At first instance, the B.C. Supreme Court certified both cases. However, on appeal, the B.C. Court of Appeal reversed on the basis there was no cause of action for indirect purchasers. It set aside the certification order and remitted the certification application to the B.C. Supreme Court for further consideration in Sun-Rype and rejected certification entirely in Microsoft. These decisions created an immediate appellate conflict, since the B.C. Court of Appeal had previously certified a direct and indirect case a number of months earlier. In addition, the decisions created an appellate conflict within other provinces, since Ontario courts had certified direct and indirect classes in other cases. Infinion is a case seeking to authorize a proposed price-fixing class action on behalf of Quebec class members against foreign manufacturers of dynamic random access memory chips, a type of semiconductor memory chip found in electronic devices. whether the SCC grants leave to appeal and, ultimately, affirms or overturns them. If upheld the effect of the decisions might be to limit the number and scope of competition class actions in Canada. The SCC is expected to deliver its decisions in early 2013 and will hopefully address the question as to what a plaintiff has to prove to bring these sorts of claims. Naudie says the appeals coincide with a ���perfect storm��� of issues related to class certification, cross border litigation, and access to justice for consumers. ���The real issue in these cases is whether in this type of conduct the consumer has a remedy in Canada and whether our law in Canada should be similar to the law in the United States.��� What general counsel need to know L egal observers will no doubt be watching the SCC decisions closely, but the cases also rep- Look around and if you���re in a category that looks like it will be the subject of other cases make sure your house is in order to the maximum extent that you can.��� Patrick Garver, Good Governance Group The long-term impact of the decisions in these cases will depend on resent a keen lesson for Canadian inhouse counsel. ���You have to keep your Your lawyer. Your law firm. Your business advisor. BennettJones_IH_Dec_12.indd 1 ca na dia nl awy e rm a g . c o m / i n h o u s E December 2012/January 12-11-29 10:33 AM 2013 ��� 25

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