FEDERAL COURT OF AUSTRALIA
Wright Rubber Pty Ltd v Bayer AG (No 3) [2011] FCA 1172
Citation: Wright Rubber Products Pty Ltd v Bayer AG (No 3) [2011] FCA 1172 Parties: WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075 384 100) v BAYER AG, BAYER AUSTRALIA LTD (ACN 000 138 714), CHEMTURA CORPORATION, CROMPTON MANUFACTURING COMPANY, INC and CHEMTURA AUSTRALIA PTY LTD (ACN 005 225 507) File number: VID 882 of 2007 Judge: TRACEY J Date of judgment: 20 October 2011 Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZF, 50, Part IVA
Trade Practices Act 1974 (Cth) ss 4D, 45, 45A
United States Bankruptcy Code Ch 11Practice Note CM 17
Cases cited: Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2011] FCA 671 compared
Taylor v Telstra Corporation [2007] FCA 2008 cited, appliedDate of hearing: 2 September 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 25 Counsel for the Applicant: Mr I S Wylie Solicitor for the Applicant: Maurice Blackburn Counsel for the First and Second Respondents: Mr C A Moore Solicitor for the First and Second Respondents: Baker & Mackenzie Counsel for the Third and Fifth Respondents: Mr L Merritt Solicitor for the Third and Fifth Respondents: Mallesons Stephen Jaques
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 882 of 2007
BETWEEN: WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075 384 100)
ApplicantAND: BAYER AG
First RespondentBAYER AUSTRALIA LTD (ACN 000 138 714)
Second RespondentCHEMTURA CORPORATION
Third RespondentCROMPTON MANUFACTURING COMPANY, INC
Fourth RespondentCHEMTURA AUSTRALIA PTY LTD (ACN 005 225 507)
Fifth Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
2 SEPTEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (“the Act”), the settlement of the proceeding upon the terms set out in the settlement agreement and in the proposed settlement distribution scheme, being annexures “A”, “C” and “D” respectively to the affidavit of Brooke Wendy Dellavedova sworn 28 June 2011, be approved.
2.Pursuant to s 50 of the Act, the confidential exhibits to the affidavit of Brooke Wendy Dellavedova sworn 23 August 2011, being the exhibits set out below, be sealed and filed with the Court as confidential exhibits and marked “Not to be opened without leave of the Court or a Judge”;
· Confidential Exhibit “BD6”
· Confidential Exhibit “BD22”
· Confidential Exhibit “BD23”
· Confidential Exhibit “BD24”
· Confidential Exhibit “BD25”
· Confidential Exhibit “BD26”
· Confidential Exhibit “BD28”
· Confidential Exhibit “BD29”
· Confidential Exhibit “BD30”
· Confidential Exhibit “BD33”
· Confidential Exhibit “BD34”
· Confidential Exhibit “BD35”
3.Pursuant to ss 33X and 33Y of the Act, the form and content of the Notice of Settlement to group members (Notice of Settlement) attached to these orders is approved.
4.Within five (5) days of the approval of the form and contents of the Notice of Settlement by the Court the solicitors for the Applicant cause the…
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- Case
- [2011] FCA 1172
- Decision Date
CaseChat Overview and Summary
The court approved the settlement of the proceeding, noting that the settlement amount, which includes contributions from the Bayer Respondents and Chemtura Corporation, would be distributed among the Applicant and other class members according to a Settlement Distribution Scheme. The court also approved the form and content of the Notice of Settlement to group members and ordered that certain confidential exhibits be sealed and filed with the Court as confidential exhibits. The court further ordered that the Notice of Settlement and Settlement Distribution Scheme be displayed on various platforms and made available for inspection at the offices of the Applicant’s solicitors throughout Australia.
The court's approval of the settlement, distribution scheme, and other related orders ensures that the proceeding is resolved in a manner that is fair and just for all parties involved. The orders also provide for the protection of confidential information and the efficient distribution of settlement funds to eligible class members.
Orders
Orders of the court
1. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (“the Act”), the settlement of the proceeding upon the terms set out in the settlement agreement and in the proposed settlement distribution scheme, being annexures “A”, “C” and “D” respectively to the affidavit of Brooke Wendy Dellavedova sworn 28 June 2011, be approved.
2. Pursuant to s 50 of the Act, the confidential exhibits to the affidavit of Brooke Wendy Dellavedova sworn 23 August 2011, being the exhibits set out below, be sealed and filed with the Court as confidential exhibits and marked “Not to be opened without leave of the Court or a Judge”;
· Confidential Exhibit “BD6”
· Confidential Exhibit “BD22”
· Confidential Exhibit “BD23”
· Confidential Exhibit “BD24”
· Confidential Exhibit “BD25”
· Confidential Exhibit “BD26”
· Confidential Exhibit “BD28”
· Confidential Exhibit “BD29”
· Confidential Exhibit “BD30”
· Confidential Exhibit “BD33”
· Confidential Exhibit “BD34”
· Confidential Exhibit “BD35”
3. Pursuant to ss 33X and 33Y of the Act, the form and content of the Notice of Settlement to group members (Notice of Settlement) attached to these orders is approved.
4. Within five (5) days of the approval of the form and contents of the Notice of Settlement by the Court the solicitors for the Applicant cause the Notice of Settlement to be:
(a) Sent by email or prepaid post to the last known address of persons who have lodged a registration of interest form with the Applicant’s solicitors in relation to these proceedings;
(b) Sent by the Australasian Plastics & Rubber Institute (APRI) to all members and all subscribers to its Journal;
(c) Displayed on the website of Maurice Blackburn and to remain displayed continuously up to and including 3 October 2011; and
(d) Made available for inspection at the offices of the Applicant’s solicitors throughout Australia up to and including 3 October 2011.
5. Within five (5) days of approval of the form and contents of the Notice of Settlement by the Court, the District Registrar of the Victorian District Registry of the Federal Court of Australia cause the Notice of Settlement to be displayed on the Federal Court website and to remain displayed up to and including 3 October 2011.
6. Within five (5) days of the date on which orders are made approving the settlement of this proceeding, the solicitors for the Applicant cause the settlement distribution scheme and Proof of Claim form to be:
(a) Displayed on the website of Maurice Blackburn and to remain displayed up to and including 3 October 2011; and
(b) Available for inspection at the offices of the Applicant’s solicitors throughout Australia up to and including 3 October 2011.
7. All cost orders made in this proceeding prior to these orders be set aside.
8. There be no order as to the costs of the Applicant’s notice of motion dated 28 June 2011.
9. The solicitors for the Applicant have liberty to apply.
10. Such further or other orders as the Court deems appropriate.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
NOTICE OF SETTLEMENT – “RUBBER CHEMICALS CLASS ACTION”
In 2007 a class action was commenced in the Federal Court of Australia (Proceeding) by Wright Rubber Products Pty Ltd (the Applicant) against Bayer AG, Bayer Australia Ltd, Chemtura Corporation and Chemtura Australia Pty Ltd (the Respondents). The Proceeding arises out of an alleged cartel to fix the price of certain rubber chemicals (Rubber Chemicals) between 1 July 1995 and 31 December 2001 (the Cartel Period). The Second Amended Statement of Claim details the claims (which the Respondents deny) and includes a full list of the Rubber Chemicals.
The Proceeding is brought by the Applicant on its own behalf and on behalf of all persons who are class members as defined in the Proceeding. Class members are bound by any judgment or settlement entered into in the Proceeding unless they have opted out of the Proceeding.
This notice is being published in accordance with an order made by the Federal Court of Australia on 2 September 2011.
ARE YOU A CLASS MEMBER?
You are a class member if you were a commercial manufacturer of Rubber Compounds and/or Rubber Products who, during the Cartel Period:
paid at least AU$5,000 for Rubber Chemicals or at least AU$10,000 for Rubber Compounds; and
were ordinarily resident in or carrying on business in Australia, not a Justice or Registrar of the High Court of Australia or the Federal Court of Australia and not a Respondent in this Proceeding or an entity related to such a person within the meaning of the Corporations Act 2001.
Rubber Compounds means compounds of natural or synthetic rubber and other raw materials manufactured using Rubber Chemicals. Rubber Products means intermediate and/or finished products manufactured using Rubber Compounds for manufacturers and consumers.
If you are, or think you might be, a class member then you should read this notice carefully, as it may affect your rights. If you have entered into a settlement agreement with some or all of the Respondents, you may not have a claim in the Proceeding.
SETTLEMENT OF CLASS ACTION
The parties have agreed to settle the Proceeding. The Federal Court has approved the settlement, and also approved a “Settlement Distribution Scheme” for distributing the settlement money among the Applicant and other class members.
Under the settlement:
· The Bayer Respondents have paid AU$750,000;
· Chemtura Corporation will pay AU$750,000[1] by a combination of approximately:
(a) 14% (AU$105,000) in cash; and
(b) 86% (AU$645,000) in new common stock in the reorganized Chemtura Corporation. The number of shares allocated will be based on a valuation of US$13.45[2] per share. The stock will then be sold by the Applicant and the proceeds will become part of the settlement sum.
· The sum of AU$1.1m will be paid to the Applicant’s solicitors, Maurice Blackburn, as partial payment for costs and disbursements incurred in this matter. Those amounts (which were subject to verification by an independent legal costs assessor and Court approval) are inclusive of all costs and disbursements incurred by the Applicant since the case was commenced in 2007, including in relation to an appeal, and settlement approval and administration. Maurice Blackburn will forego a significant portion of its costs and disbursements.
· By way of example, on 31 August 2011 approximately AU$389,929.37 (being the total of the payment from the Bayer Respondents and the value of the Chemtura settlement as at that date (AU$1,489,929.37) less the AU$1.1m partial reimbursement to Maurice Blackburn on account of costs and disbursements incurred) would have been available for distribution to class members who lodge eligible claims supported by business records.
· The sum of AU$25,040 will be paid to the Applicant by way of compensation and reimbursement for time and expenditure reasonably incurred in a representative capacity.
· The remainder of the settlement amount will be available for distribution to class members who lodge eligible claims supported by business records, described in the “Proof of Claim” form which can be viewed at the website below.
· Class members are entitled to a maximum of 6% of the value of their purchases of Rubber Chemicals and 0.4% of their purchases of Rubber Compounds during the Cartel Period.
· If the entitlement of all claimants exceeds the amount available for distribution, then the amount will be distributed to claimants in proportion to each claimant’s claim. If the entitlement of all claimants is less than the amount available, the remainder will be paid to Maurice Blackburn towards payment of the Applicant’s unpaid costs and disbursements.
· If a class member is dissatisfied with the amount assessed for its claim under the Settlement Scheme then it may request a review by an independent barrister, who will charge the class member a fee.
· Maurice Blackburn will not charge class members any costs in relation to the class action or for participating in the settlement. If any class member wishes to engage separate solicitors then it will need to enter a separate costs arrangement with those solicitors.
· The full terms of the settlement and Settlement Distribution Scheme may be by obtained by contacting Maurice Blackburn.
WHAT YOU MUST DO
If you are a class member and you do want to participate in the settlement then you must submit a properly completed “Proof of Claim” form to Maurice Blackburn by 3 October 2011. You can obtain the Proof of Claim by contacting Maurice Blackburn. You can submit your Proof of Claim by mail, facsimile or e-mail.
Class members who do not submit a properly completed Proof of Claim form by the deadline will lose the right to make any claim under the settlement agreement or against the Respondents in respect of the alleged cartel.
If you are a class member but you do not want to participate in the settlement then there is nothing you need to do. After the deadline passes on 3 October 2011 you will lose the right to make any claim under the settlement agreement or against the Respondents in respect of the alleged cartel.
FURTHER INFORMATION
If you are not sure whether you are a class member, are not sure whether to complete and return the Proof of Claim, or have any other questions, you may contact the Applicants’ lawyers or visit the Maurice Blackburn website or seek your own legal advice.
You should act quickly. Class members who wish to make a claim must submit their completed Proof of Claim form by 3 October 2011 or they will lose their rights.
MB CONTACT DETAILS
Website: http://www.mauriceblackburn.com.au/rubber-chemicals-class-action.aspx
Email: rubberchemicalsclassaction@mauriceblackburn.com.au
Telephone: (03) 9605 2892
Fax: (03) 9258 9610
Contact: Erdem Ozyurek
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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