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Microsoft responds to major competition class action on behalf of indirect purchasers of PC software from Microsoft

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Microsoft Corporation and Microsoft Canada Co.

The Plaintiffs alleged that beginning in 1988 Microsoft engaged in wrongful and anti-competitive behaviour and, as a result, engaged in overcharging for its Intel-compatible PC operating systems and Intel-compatible PC applications software. The Plaintiffs sought approximately $5 billion in damages.

Fasken began representing Microsoft post-certification. Since we assumed conduct, the SCC reconsidered and reversed its decision to award costs of the certification application and appeal. The trial judge found in favour of Microsoft on numerous motions, including decisions refusing the Plaintiff’s application for documents from the Canadian Competition Bureau; refusing the Plaintiffs’ applications for an affidavit of documents  and for a litigation hold; and, three applications relating to the admissibility of American deposition evidence.  We were successful in a motion to strike the Plaintiffs’ claim for damages in the amount of $718 million arising from security patch issues, resulting in the striking of that claim, and portions of the Plaintiffs’ written memorial and expert reports relating to this claim.

After the exchange of written memorials, expert reports and witness statements, Microsoft reached a Canada-wide settlement of approximately $500 million with the plaintiffs and obtained approval in the courts of British Columbia, Ontario and Quebec in December 2018. As part of the settlement, Microsoft will provide class members with cash, or vouchers to purchase Microsoft products. A claims administrator will soon be designated, and class members will then be able to begin submitting claims. After class members receive their individual settlements, a portion of the remaining settlement, likely tens of millions of dollars, will be distributed to Canadian schools.  Fasken will continue to be involved in the execution of the settlement. 

Microsoft Corporation and Microsoft Canada Co. were represented by Geoffrey Cowper, QC, Andrew Borrell, and Alexandra Mitretodis.



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