In connection with the distribution of settlement funds, certain individuals have indicated either to TevlinGleadle, Faskens, solicitors for Freightliner, or the actuaries who are handling the distribution that they feel entitled to share in the distribution, even though they are not currently class members. As we understand it, there are currently 14 individuals who have indicated a concern of this sort. These individuals advise, in the main, that they were employees of Freightliner, residing and working in the US at the time of the certification of the action as a class proceeding. They all say they did not receive a mail out in accordance with the Certification Order. Freightliner itself handled the mail out. These 14 individuals say they did not have the opportunity to opt-in that they should have had if notice was given properly. The individuals seek to be included in the distribution of the funds now held for the current class. The actuaries have estimated the claims of the 14 persons who wish to be included in the distribution to be approximately $182,000.
As matters currently stand, the class is constituted according to the certification process mandated by the court. The class currently sharing in the distribution includes 116 non-BC residents who opted in, after learning of the class proceeding and the opt-in process required by the Certification Order.
There is potentially a large group of non-residents who did not opt in. The 14 individuals who now seek to be included may be the only ones who did not receive a mail out, but there may be others.
Freightliner’s counsel has advised TevlinGleadle that Freightliner intends to propose to the court that the balance of settlement funds held for distribution to those who are currently class members be used to pay the claims of persons who did not opt in due to problems with the mail out.
TevlinGleadle, the actuaries, and Peter Gregg, representative plaintiff are all of the view that if certain individuals did not receive a mail out from Freightliner as required by the Certification Order, Freightliner itself should address the concerns of the said individuals itself, by voluntarily paying the proportionate claims of those individuals, if valid (and any valid claims of others who may not have received a proper mail out).
If the claims of non-BC residents who did not opt in are not addressed in this way, their claims could be pursued in separate litigation, as the Certification Order did not deal with their claims.
Class counsel, and counsel from Faskens will appear before the Case Management Judge, Madam Justice Ballance, on either May 31st or June 1st, 2010, to address the issue of what process ought to be followed to determine if any other persons should be allowed to advance a claim to share in the distribution due to lack of proper notification at the Certification stage.