A class-action lawsuit seeking compensation related to an alleged price-fixing conspiracy that resulted in British Columbian being overcharged for vehicles has been given the green light to proceed from the Court of Appeal.
Justice Mary Saunders, in a May 29 judgment in Vancouver related to Darren Ewert versus Nippon Yusen Kaushiki Kaisha et al, overturned the decision of a lower court judge who declined to certify the litigation as class action under the Class Proceedings Act after finding Ewert’s expert failed to determine if data needed to assess if an overcharge had been passed through to indirect purchasers was available.
“I would allow the appeal in part and certify the action as a class proceeding in respect of the direct and indirect purchasers of the vehicle carrier services provided by the defendants during the class period,” Saunders decided, with Justices Harvey Groberman and John Hunter concurring.
The appeal court found that the lower court judge erred by imposing a standard to identify data that exceeded statutory requirements. The litigation centres on the allegation of a price-fixing conspiracy of marine shippers who bring automobiles and other vehicles across the oceans to Canada. Ewert claims this resulted in higher costs to himself and others who bought vehicles in B.C.
“To succeed in the litigation,” Saunders noted, “he will have to establish that the conspiracy existed, that it resulted in excess shipping charges, and that those charges were passed on to him and to others in a like position. He seeks to certify the action as a class action.”
The defendants are vehicle carriers that transport cars, trucks and other equipment by ocean to Canada, including Vancouver, using specialized cargo ships known as roll on/roll off vessels. Ewert claims that between Feb. 1, 1997 and Dec. 31, 2012 they made illegal price-fixing agreements that artificially inflated the price of transporting the vehicles.
“The plaintiff’s theory is that as a consequence of these price-fixing agreements, the cost of transporting these vehicles was artificially and unreasonably enhanced, and that the extra cost was passed on to purchasers of the vehicles resulting in an overcharge for those vehicles,” Saunders explained. “He seeks to bring a class proceeding to recover for himself and other similarly situated persons the loss caused by the alleged conspiracy, or a proportionate share of the benefits realized by the defendants as a result of the alleged conspiracy.”
The plaintiff also claims punitive damages.
Saunders noted Ewert has led evidence that all of the defendants “have pled guilty, sought amnesty or reached compromise agreements” in the U.S. and Japan “in repect of anti-competition wrongs arising from agreements relating to international shipping services to North America.”
There is a long list of defendants. They are Nippon Yusen Kabushiki Kaisha, NYK Line Inc. (North America and Canada), Mitsui O.S.K. Lines Ltd., Mitsui O.S.K. Bulk Shipping (U.S.A.) Inc., Kawasaki Kisen Kaisha, Ltd., “K” Line America Inc., Eukor Car Carriers Inc., Wilh. Wilhelmsen Logistics Americas LLC, Wallenius Wilhelmsen Logistics AS, Wallenius Lines AB, WWL Vehicle Services Canada Ltd., Toyfuji Shipping Co. Ltd., Compania Sud Americana De Vapores S.A., CSAV Agency North America LLC, Nissan Motor Car Carrier Co. Ltd, World Logistics Service (USA) Inc., Hoegh Autoliners AS and Hoegh Autoliners Inc.
A dozen lawyers were heard in the appeal case.
The judge noted the “central issue” is whether Ewert has a “plausible methodology to prove that any excess charges were passed on to vehicle purchasers and not simply absorbed along the supply chain.”