SETTLEMENT
- What is the Atlas Class Action about?
- Who are the Defendants?
- Who is a Class Member?
- Who is an Excluded Person?
- Are employees of Atlas excluded from the Settlement?
- Are Trust Units Purchased through the Atlas Employee Purchase Plan eligible under the Settlement?
- What is the Class Period?
- Who are Class Counsel?
- How did the Settlement come about?
- What is the amount of the Settlement?
- What are the Released Claims?
- Have the Defendants admitted liability?
- What compensation will a Class Member receive under the Settlement?
- Can the Settlement be terminated?
- How can I find out more about the specific terms of the Settlement Agreement?
- Has the Court approved the Settlement Agreement?
- How has the public been notified about the Settlement?
REGISTERING A CLAIM
- Who should register a claim for compensation under the Settlement?
- How do I take part in this Settlement?
- How do I submit a claim if I do not have access to a computer with an internet connection?
- What is the Claims Bar Deadline?
- Do I have to pay to take part in this Settlement?
- Can I amend my claim form after it has been submitted to the Administrator?
OPTING OUT
CLASS COUNSEL FEES HEARING
- What fees are Class Counsel seeking?
- Do I have to pay fees?
- Has the Court awarded Class Counsel their fees?
CLAIMS ADMINISTRATION
- Who is the Administrator?
- What does the Administrator do?
- How was the Administrator appointed?
- How do I contact the Administrator?
- When will I find out about the Administrator’s evaluation of my claim?
- If I disagree with the Administrator’s calculation of my compensation from the Settlement, what do I do?
- Who is the Referee and what does the Referee do?
- What is the cost of having a Referee review the Administrator’s decision of my claim?
- When will Class Members receive compensation from the Settlement Fund?
What is the Atlas Class Action about? [top]
In 2004, the plaintiffs commenced a class action against Atlas Cold Storage Holdings Inc. (“Atlas”) and others in the Ontario Superior Court of Justice. The plaintiffs alleged that Atlas and others misrepresented the earnings of Atlas causing damages to the Class Members.
Who are the Defendants? [top]
The Defendants are Atlas Cold Storage Holdings Inc., Patrick Gouveia, Susan Elizabeth Peters, as Executrix of the Estate of Andrew W. Peters, deceased, Ronald Perryman, Joseph Wiley, Robert W. Martin, Albrecht W.A. Bellstedt, J. Nicholas Ross, Michael H. Wilson, Ernst & Young LLP and BMO Nesbitt Burns Inc.
Who is a Class Member? [top]
Class or Class Members means all persons, other than Excluded Persons, who purchased or acquired Trust Units during the Class Period under the terms of a prospectus offering, on the TSX, or in any other fashion and held some or all of those Trust Units at the close of trading on the TSX on August 29, 2003.
Who is an Excluded Person? [top]
"Excluded Person" means: Atlas Cold Storage Holdings Inc. and Eimskip Atlas Canada, Inc., and any entities in which they have a legal interest, and their directors, officers, subsidiaries and affiliates; Ernst & Young LLP, Patrick Gouveia, Susan Elizabeth Peters, as Executrix of Estate of Andrew W. Peters, deceased, Ronald Perryman, Joseph Wiley, Robert W. Martin, Albrecht W.A. Bellstedt, J. Nicholas Ross, Michael H. Wilson, and any entities in which any of them has a legal interest; HF-Eimskipafelag Island and Avion Group, and their directors, officers, subsidiaries and affiliates; and, the legal representatives, trustees, heirs, predecessors, successors and assigns of any one of these persons or entities.
Are employees of Atlas excluded from the Settlement?[top]
An employee or former employee of Atlas who owned Trust Units, who was not an officer or director of Atlas or its related companies, is eligible to make a claim under the Settlement.
Are Trust Units purchased through the Atlas Employee Purchase Plan eligible under the Settlement?[top]
So long as the owner of the Trust Units purchased through the Atlas Employee Purchase Plan was not an officer or director of Atlas or otherwise an Excluded person, the Trust Units purchased in the Class Period are included under the Settlement. You should contact the Administrator to determine if the claim should be made by you or the plan trustee.
What is the Class Period? [top]
The Class Period commences on March 1, 2002 and ends on August 29, 2003.
Who are Class Counsel? [top]
The action was litigated by the following law firms, collectively known as Class Counsel:
Joseph Groia
Groia & Company
Professional Corporation
The Sterling Tower
372 Bay Street, Suite 1000
Toronto, ON M5H 2W9
Telephone: 416.203.2115
Facsimile: 416.203.9231
Email: jgroia@groiaco.com
Kirk M. Baert
Koskie Minsky LLP
20 Queen Street West
Suite 900, Box 52
Toronto, ON M5H 3R3
Telephone: 416.595.2117
Facsimile: 416.204.2889
Email: kbaert@kmlaw.ca
Harvey T. Strosberg, Q.C.
Sutts, Strosberg LLP
Barristers and Solicitors
600-251 Goyeau Street
Windsor, ON N9A 6V1
Telephone: 519.561.6296
Facsimile: 519.561.6203
Email: harvey@strosbergco.com
How did the Settlement come about? [top]
After protracted arm’s length negotiations between Class Counsel, on behalf of the Class Members, and representatives of the Defendants, the parties in the Class Action entered into a definitive Settlement Agreement on June 9, 2008.
What is the amount of the settlement? [top]
Some of the Defendants have agreed to pay, collectively, the sum of $40 million to settle the claims of all Class Members and the costs of the litigation and administration (the “Settlement Fund”). The Court has approved the Settlement as fair and reasonable and in the best interests of Class Members.
What are the Released Claims? [top]
Released Claims means any and all manner of claims, demands, actions, suits, causes of action, whether class, individual or otherwise in nature, whether personal or subrogated, damages whenever incurred, and liabilities of any nature whatsoever, including interest, costs, expenses, Administration Expenses, penalties, Class Counsel Fees and lawyers’ fees, known or unknown, suspected or unsuspected, in law, under statute or in equity, that Releasors, or any of them, whether directly, indirectly, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or may have as against the Releasees, relating in any way to the purchase, sale, pricing, marketing or distributing of Atlas Trust Units, or relating to any conduct alleged (or which could have been alleged) in the Atlas Class Action, including, without limitation, any such claims which have been asserted, would have been asserted or could have been asserted, whether in Canada or elsewhere, as a result of the purchase of Atlas Trust Units or the leveraged buyout of Atlas Cold Storage Holdings Inc. by Hf-E and Avion and the financing of that buyout.
Have the Defendants admitted liability? [top]
The Defendants expressly deny any wrongdoing or liability but some of them have agreed to pay $40 million in settlement monies.
What compensation will a Class Member receive under the Settlement? [top]
Class Members who register a valid claim with the Claims Administrator will be eligible for compensation from the Settlement Fund if they sustained a net loss on their Eligible Trust Units.
The amount of each Class Member’s actual Net Loss to a maximum of $4.50 per Eligible Trust Unit will be calculated according to the formula, set forth in greater detail, in the Distribution Protocol. A Class Member’s Net Loss may then be pro rated to determine the actual compensation to be paid if the value of all valid claims exceeds the value of the Settlement Fund net of all expenses.
Two calculations are provided here as examples:
DAMAGES CALCULATION – Example #1 |
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Number of Trust Units purchased or acquired in the period March 1, 2002 to August 29, 2003. |
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Box 1 |
500 |
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Number of Trust Units sold or disposed of in the period March 1, 2002 to August 29, 2003, whenever purchased. |
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Box 2 |
200 |
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Number of “Eligible Trust Units” (subtract the number in Box 2 from the number in Box 1). |
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Box 3 |
300 |
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Number of Trust Units sold or disposed of after August 29, 2003. |
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Box 4 |
300 |
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Acquisition Cost per Trust Unit purchased or acquired in the period March 1, 2002 to August 29, 2003 inclusive of brokerage fees.* |
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Box 5 |
10.80 |
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Disposition Proceeds per Trust Unit sold or disposed of after August 29, 2003 less brokerage fees.* |
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Box 6 |
8.80 |
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Net Loss per Trust Unit (subtract the number in Box 6 from the number in Box 5). |
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Box 7 |
2.00 |
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An Eligible Class Member’s Net Loss is the lower of the following two calculations: |
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600 |
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1,350 |
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Each Eligible Class Member will be paid his/her/its Net Loss ($600) as calculated above or, if the value of all valid claims exceeds the value of the Compensation Fund, each Eligible Class Member will be paid a share of the Compensation Fund calculated as the ratio of his/her/its Net Loss ($600) to the total Net Loss of all Eligible Class Members multiplied by the amount of the Compensation Fund. |
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DAMAGES CALCULATION – Example #2 |
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Number of Trust Units purchased or acquired in the period March 1, 2002 to August 29, 2003. |
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Box 1 |
800 |
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Number of Trust Units sold or disposed of in the period March 1, 2002 to August 29, 2003, even if the Trust Units sold were purchased before March 1, 2002. |
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Box 2 |
300 |
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Number of “Eligible Trust Units” (subtract the number in Box 2 from the number in Box 1). |
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Box 3 |
500 |
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Number of Trust Units sold or disposed of after August 29, 2003, regardless of when they were purchased. |
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Box 4 |
500 |
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Acquisition Cost per Trust Unit purchased or acquired in the period March 1, 2002 to August 29, 2003 inclusive of brokerage fees.* |
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Box 5 |
11.50 |
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Disposition Proceeds per Trust Unit sold or disposed of after August 29, 2003 less brokerage fees.* |
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Box 6 |
6.50 |
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Net Loss per Trust Unit (subtract the number in Box 6 from the number in Box 5). |
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Box 7 |
5.00 |
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An Eligible Class Member’s Net Loss is the lower of the following two calculations: |
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2,500 |
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2,250 |
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Each Eligible Class Member will be paid his/her/its Net Loss ($2,250) as calculated above or, if the value of all valid claims exceeds the value of the Compensation Fund, each Eligible Class Member will be paid a share of the Compensation Fund calculated as the ratio of his/her/its Net Loss ($2,250) to the total Net Loss of all Eligible Class Members multiplied by the amount of the Compensation Fund. |
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* If Trust Units were acquired and/or disposed of on more than one occasion a weighted average must be used to calculate these values.
Can the Settlement be terminated? [top]
Yes. The Defendants have negotiated an Opt Out Threshold into the Settlement Agreement. If the Opt Out Threshold is exceeded, that is, if Class Members holding a significant number of Trust Units purchased in the Class Period opt out of the Settlement, Atlas Holdings may exercise its discretion to terminate the Settlement Agreement.
How can I find out more about the specific terms of the Settlement Agreement? [top]
Copies of the Settlement Agreement, as well as the Distribution Protocol, draft judgment and Notices concerning this settlement may be downloaded from the Document page of this website. Click here to reach the Document page.
Has the Court approved the Settlement Agreement? [top]
The settlement has been approved by the Ontario Superior Court of Justice.
How has the public been notified about the Settlement? [top]
Class Members were first notified of this settlement during the court approved notice program, which took place in June, 2008. This notice program, which advised Class Members of the hearing date on which the approval of the Settlement Agreement would be sought and their right to make objections, involved publishing the first notice in certain newspapers and posting the first notice on the website www.atlasclassaction.com.
Following the approval of this Settlement Agreement, a similar notice program was established to advise Class Members of claim and opt out procedures. In addition to the notice mechanisms noted above, the second notice will be electronically transmitted to brokers for dissemination to their clients and mailed to Class Members identified by Computershare Limited and Broadridge Financial Solutions Inc. as having an interest in the Trust Units.
Who should register a claim for compensation under the Settlement? [top]
Anyone other than the Excluded Persons who purchased Atlas Trust Units during the Class Period is eligible for compensation pursuant to the Settlement Agreement so long as they held Eligible Trust Units at the end of the Class Period.
How do I take part in this Settlement? [top]
To be eligible to take part in this Settlement, Class Members must submit a Claim Form and all required supporting documents to the Claims Administrator not later than 5:00 p.m. Toronto time on March 2, 2009.
Click here to reach the Online Claims System and begin the online claims submission process.
How do I submit a claim if I do not have access to a computer with an internet connection? [top]
Class Member may commence the claim process by telephoning the Claims Administration Help Line at 1-866-669-6615.
What is the Claims Bar Deadline? [top]
In order to be eligible for compensation pursuant to this Settlement Agreement, Class Members must submit their claim to the Claims Administrator not later than 5:00 p.m. Toronto time on March 2, 2009.
The Administrator must be in receipt of the signed Claim Form and all supporting documentation by the Claims Bar Deadline.
Do I have to pay to take part in this Settlement? [top]
There is no cost to Class Members to submit a Claim Form and receive compensation from the Settlement Fund.
Can I amend my claim form after it has been submitted to the Administrator? [top]
You may ammend your Claim until the Claim Package has been received, reviewed and accepted by the Administrator.
Is it possible to opt out of the Settlement?[top]
The deadline to opt out of this class action has expired. On October 2, 2008, Justice Lax signed an order declaring, among other things, that the Settlement Agreement is final and binding. A copy of the order may be reviewed here.
What fees are Class Counsel seeking?[top]
At a hearing on August 12, 2008, Class Counsel requested the Court to award fees of $12 million plus GST of $600,000 and out-of-pocket expenses paid on behalf of the Class of approximately $450,000.
Do I have to pay fees?[top]
No, you will not pay an individual fee to Class Counsel. Whatever fees the Court awards to Class Counsel, they will be deducted from the $40 million in settlement monies.
Has the Court awarded Class Counsel their fees?[top]
No. When the Court releases the decision concerning Class Counsel fees, it will be posted on this website and at Class Counsel’s website.
Who is the Administrator? [top]
Deloitte and Touche LLP has been appointed by the Court to be the Administrator.
What does the Administrator do? [top]
The Administrator is responsible for overall management of the administrative claims process including: Class Member opt out registration; Class Member claim registration; document collection; communications; help desk management; reminders; form transmission; claim management; claim evaluation; analyses; notifications; reporting; appeal procedures; processing of materials to and from the Referee; distribution analyses; Settlement Fund and audit control; and Class Member payout.
How was the Administrator appointed? [top]
The Administrator was appointed by the Ontario Superior Court of Justice after recommendation by Class Counsel.
How do I contact the Administrator? [top]
Click here to contact the Administrator or call 1-866-669-6615 or write: Deloitte & Touche LLP, Suite 1400, 181 Bay Street, Toronto, Ontario M5J 2V1
When will I find out about the Administrator’s evaluation of my claim? [top]
Within ninety days of the Claims Bar Deadline, the Administrator will complete the evaluation of all claims. Each Claimant will receive notice of the results of this evaluation by this deadline.
If I disagree with the Administrator’s calculation of my compensation from the Settlement, what do I do? [top]
The Distribution Protocol includes a procedure for Class Members to dispute decisions of the Administrator. Class Members may bring the dispute before a Referee appointed by the Court for that purpose.
Who is the Referee and what does the Referee do? [top]
Reva Devins has been appointed by the Court to serve as Referee for this claims administration. It is the Referee’s job to determine any disputes Class Members may have with the decisions of the Administrator.
What is the cost of having a Referee review the Administrator’s decision of my claim? [top]
In order to initiate a review of a dispute, Class Members are required to pay CAN$150 upfront which will be applied to the cost of the reference.
If the Class Member is in any way successful on the reference, the CAN$150 deposit shall be returned to the Class Member, but if totally unsuccessful, the CAN$150 deposit shall be applied to the cost of the reference.
Payment must be made by certified cheque or money order, payable to the Administrator.
When will Class Members receive compensation from the Settlement Fund? [top]
No later than sixty (60) days following the adjudication of all disputes, the Administrator will make final distributions of compensation to the Class Members.
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