Teck / Cominco Class Action FAQs

General Questions About the Lawsuit

1. What is this lawsuit about?

This lawsuit is about a pension conversion that Cominco (now Teck Metals) did for certain employees in 1992/1993. Some employees converted their pension plan from a defined benefit plan to a defined contribution plan. The lawsuit claims that Teck Metals/Cominco and Towers (the actuaries hired to help Cominco/Teck Metals) used false statements to encourage people to convert their pension, and that as a result people lost money

2. What is a defined benefit (DB) pension plan?

A defined benefit pension plan (or a DB plan) is a pension that guarantees a certain amount of money each year when you retire.

3. What is a defined contribution (DC) pension plan?

A defined contribution pension plan (or a DC plan) is like a retirement savings plan where the employer contributes to your savings.

4. When did the conversion happen?

Cominco/Teck Metals started talking to class members about converting in 1992. The actual conversion happened on January 1, 1993.

5. Why is this lawsuit a class action?

This lawsuit is a class action because that way the claims of many people can be resolved together in an efficient way.

In a class action, “representative plaintiffs” or “class representatives” sue on behalf of all “class members” or the “class”. In this class action, it was alleged that all class members converted the pension plans and lost money as a result. This group is the “class” and is composed of “class members”.

Jim Weldon and Len Bleier are the “representative plaintiffs.” This means they represent all class members and run the lawsuit on their behalf. See FAQs #40 & 41 for more information.

A class action allows the courts to resolve the issues for all class members affected, except for those who choose to exclude themselves (opt out) from the class.

6. How do I know if I am included in the class?

If you live in BC, you are a class member if you are:

  1. a salaried, pension-eligible, non-union employee of Teck Metals Ltd., Teck Resources Limited, Cominco Resources International Limited, CESL Limited or Agrium Inc.,or
  2. a former salaried, pension-eligible, non-union employee of Teck Metals Ltd., Teck Resources Limited, Cominco Resources International Limited, CESL Limited or Agrium Inc., who terminated employment, by retirement or otherwise, in such a manner that you would have been entitled to defined pension benefits if you had remained a member of the defined benefit pension plan,

AND you converted from the defined benefit pension plan to the defined contribution pension plan.

If you live outside of BC and fall into category (a) or (b) above and you converted from the DB to the DC plan, you are a class member if you previously “opted in” or told class counsel that you want to participate.

Personal representatives of deceased people who would have fallen under (a) or (b) above are also class members.

Questions About the Settlement Agreement

7. How did you calculate the settlement amount?

We did not calculate the settlement amount. It is the result of negotiation. Negotiation is more of an art than a science, and settling is about trading risk for certainty.

If we had gone to trial, we might have obtained more money. But we might also have obtained less, or nothing at all. That is the “risk” of going to trial. In addition, going to trial is expensive in both lawyers’ time and in money (expert fees and other out of pocket expenses).

A settlement is much more certain – the amount is set. We lose the opportunity to get more, but we also no longer have the possibility of getting less or nothing at all.
We start out by calculating what we think we would win after trial if we won absolutely every argument. This is our best case scenario.

Then we think about how likely we are to get that amount, and what amounts are more likely.

Then we negotiate back and forth with the defendants.

In the end, we try to get to a number that is within the range of reasonable outcomes at trial. That is where we consider this settlement amount to be.

8. Why did you agree to this settlement?

As Class Counsel, we do not agree to a settlement – but we do recommend that clients agree to a settlement if we think it is a good idea.

As described in the answer to FAQ#7, the settlement amount is not “calculated” in the sense that most people would understand.

We recommended this settlement because:

  • the settlement amount of $4M (plus up to $300,000 to cover the expenses incurred on behalf of the class members in the course of the litigation) is within the range of reasonable outcomes at trial;
  • there were lots of risks if we had gone to trial (see FAQs #10-14), which means that while we might have gotten more after a trial, we might also have gotten much less or nothing at all; and
  • there is a benefit in getting the money sooner (now) instead of having to wait for the end of a trial and possible appeals (see FAQ#13).
9. Why did the representative plaintiffs agree to this settlement?

The representative plaintiffs met with class counsel to hear why we recommended the settlement. Then they also met with a retired judge, who was completely independent, and discussed the settlement with him without Class Counsel present.

In the end, the representative plaintiffs agreed with class counsel that this settlement was a good idea because there were many risks at trial (see FAQs #10-14), and there is a benefit to getting the money sooner(see FAQ#13).

10. What is reliance risk?

Reliance risk has to do with whether a claimant made the decision to convert from the DB to the DC plan because they relied on what Teck Metals/Cominco and Towers told them.
One of the plaintiffs’ main arguments in this case was Teck Metals/Cominco and Towers made some misleading statements in encouraging people to convert to the DC plan. These statements are called “misrepresentations”.

The plaintiffs also argued that if Teck Metals/Cominco and Towers had not made these misrepresentations, fewer people would have converted their pensions. This is called “reliance” – each class member must have relied on the misrepresentations to be entitled to any money for their losses.

The law also requires people to act reasonably. In the context of misrepresentations, it has to be reasonable for a person to have relied on the misrepresentations.

If this lawsuit had gone to trial, each class member would have had to prove that they relied on the misrepresentations. This also means that each class member would have had to prove that (acting reasonably) they would not have converted their pensions if there had been no misrepresentations. This is the reliance risk – the risk that class members would not be able to prove that they relied on the misrepresentations.

Class Counsel concluded that it would have been easier for some class members to prove this than others. For instance, for a class member who was young in 1992, it was reasonable to decide to convert. That is because a young class member is more likely to change careers or employers before retiring, and there are benefits to being in a DC plan if you expect to change careers or employers. This will make it harder for young class members to prove that they reasonably relied on the misrepresentations.

In contrast, for a class member who was nearing retirement in 1992, converting was much less reasonable. It would have been easier for older class members to prove that they relied on the misrepresentations.

11. What is limitation risk?

Limitation risk is about how long it took to start this lawsuit after the conversion.
In law, you have only a specific number of years after something happens to start a lawsuit about it. This is called a “limitation period”. If you wait too long, your lawsuit is thrown out and you lose completely.

If we had gone to trial in this case, there was a serious risk that the court would decide that we had missed our limitation period. If so, we would have lost the case entirely. That is the “limitation risk”.

12. What is litigation risk?

There are always risks involved in bringing lawsuits – this is called “litigation risk”. In this case, the main risk was that the defendants might be able to prove at trial that they did nothing wrong.

13. What is appeals risk?

Even after a trial, the lawsuit may not be over. The losing side can appeal the decision. This is the “appeals risk”.

If one side appeals the decision it can take years to resolve the lawsuit.

14. Why do these risks affect different people differently?

The limitation risk, litigation risk, and appeals risk all apply to all class members in the same way.

However, reliance risk applies differently to some class members than to others (see FAQ#10).

Class Counsel think it would have been easier for class members approaching retirement to prove that they reasonably relied on misrepresentations. In contrast, it would be harder for young class members to do so.

15. Does this mean that Teck Metals/Cominco and Towers admitted that they did something wrong?

No. In a settlement, the defendants always never admit that they did anything wrong. In this lawsuit Teck Metals/Cominco and Towers specifically say that they do not admit they did anything wrong.

16. I do not agree with the settlement agreement. What do I do?

First, please contact Class Counsel by emailing or phoning Kimberley Hill at khill@cfmlawyers.ca or 1-800-689-2322. Class Counsel may be able to answer your question or resolve your concern.

You may also consider participating in the webcast “town hall” meeting (see FAQ#51) or listening to the recorded webcast (audio only) (see FAQ#54).

If you still do not agree, you have the right to object to the Court. The Court will consider any comments or objections it receives. You can object by sending your objection in writing to Class Counsel (see FAQ#44 for names and addresses) by July 17, 2015.

You can also come to the Court hearing. It will be held on July 24, 2015, starting at 10:00 a.m., in the Vancouver Courthouse at 800 Smithe Street. If you come, you may be allowed to speak to the Court.

 

General Questions About Sharing the Settlement Funds (Distribution Protocol Questions)

17. Do I automatically get a share of the settlement if I am included in the class?

Not quite. You get a share of the settlement funds if:

  1. you are included in the class (see FAQ#6)
    AND
  2. you sent a claim form to Class Counsel
    AND
  3. class counsel are reasonably certain, based on our experts’ calculations, that you actually suffered a loss (see FAQ#24).

If you meet all three of those criteria, you will get a share of the settlement funds. An estimate of the amount you will get is set out in your June letter.

18. How do I receive a share of the settlement funds?

To get a share of the settlement funds, you had to have sent in a claim form to Class Counsel. If you did so, you should have already received a letter from Class Counsel explaining how much we estimate you will get.

Some people who sent in claim forms will get $0. See FAQ#24 for an explanation of why some people will get $0.

If you sent in a claim form and did not get a letter from Class Counsel, please contact us (see FAQ#44).

19. How much money will I get?

Only class members who sent in claim forms will get any money. See FAQ#17.
We will not know the exact amounts that anyone will receive until after the Court hearing on July 24. This is because the exact amounts will depend on what the Court approves.

However, Class Counsel has estimated what people will receive. Your amount is set out in the letter sent to you in June. If you sent in a claim form and did not receive a letter, please contact us (see FAQ#44).

20. How did you decide how much money to give each claimant?

Class Counsel’s main goal in deciding how much money to give each claimant was to share the settlement funds fairly and with regard to how much each claimant could reasonably expect to get if this lawsuit had gone to trial.

Class Counsel were essentially trying to answer one of the fundamental questions in the lawsuit: “How much did class members lose because of the misrepresentations?” This is not the same as asking “How much did class members lose because of converting to the DC plan?” The risks discussed above, especially reliance risk (see FAQs #10-14) make up the difference between these two questions.

Class Counsel hired actuaries to help us calculate how much money to give claimants.
The amounts are calculated in four steps:

  1. estimating of each claimant’s gross loss from converting to the DC plan
  2. applying the risks, especially reliance risk (see FAQs #10-14)
  3. adding prejudgment interest for some class members
    and
  4. reducing everyone’s amounts to fit all claims within the available settlement funds.
    Each step is described below, along with Class Counsel’s reasons for it.

Step (a): Estimating Gross Losses

This part of the calculations looks at the difference between what you would have had if you had stayed in the DB plan, and what you have instead after converting to the DC plan. Basically it answers the question “How much did class members lose because of converting to the DC plan?”.

As noted above, that question on its own is not enough to fairly divide the settlement funds among claimants with regard to what each claimant could reasonably have received if this lawsuit had gone to trial. However, it does provide us with a number to which we can apply the risks, especially reliance risk (see FAQs #10-14) to get us closer to a fair division.

The actuaries did this calculation using the information that Teck Metals/Cominco and Agrium provided and some assumptions (see FAQs # 21&22 for more information about the assumptions and why we used them).

All of the calculations are based on one of two dates:

  • For information that is as of the date of conversion, we used January 1, 1993, (that is the date when the conversion happened)
  • For information that is triggered when a person ended their employment with Teck Metals/Cominco or Agrium, either their actual end date (if they have already ended employment) or September 30, 2014 (for people who were still working for Teck Metals or Agrium on that date).

We separated claimants into groups based on their ages in 1992 and number of years of service in 1992. The groups are for five-year brackets. For each group the experts calculated the losses as a percentage of that cohort’s average 1992 salary.
To get each claimant’s gross losses, the experts multiplied that percentage by the person’s salary in 1992 and the number of years they worked for Teck Metals/Cominco and/or Agrium.

It is important to remember that your gross loss is not the amount you will get from the settlement. This is because there are other factors besides this calculation that affect what the law would say that you lost. Those factors include the risks discussed in FAQs #10-14.

When we calculated this step, we found that some claimants seem to have actually done better in the DC plan than they would have in the DB plan. That is, they have more money now than they would have had if they had stayed in the DB plan. If the Court approves the distribution protocol, the claimants who Class Counsel is reasonably confident did at least 25% better under the DC plan than they would have under the DB plan will get $0. See FAQ#24 for more information. The rest of the calculation steps described below do not apply to these claimants.

Step (b): Adjusting for Risks

This step is important because it reflects the different risks that different class members faced. As described in FAQs # 10&14, some class members faced more risk that others. In particular, younger class members faced a large risk that they would not be able to prove that they relied on the misrepresentations. In contrast, class members who were nearing retirement faced a smaller risk on the same issue.

To accommodate for this, we set up “adjustment groups” based on the ages of class members in 1992.

Adjustment Group Age Bracket in 1992 Percentage of Gross Claim
A 20-24 5%
B 25-29 10%
C 30-34 15%
D 35-39 18%
E 40-44 21%
F 45-49 24%
G 50-54 27%
H 55-59 30%
I 60-64 30%

These percentages are largely based on the estimates that Towers made before the conversion of how many people of different ages would actually convert. So, for instance, Towers expected almost everyone aged 20-24 to convert. Therefore we calculated that only 5% of people converted because of the misrepresentations.
To carry out this step of the calculation, the experts applied the adjustment risk percentage for each claimant to that claimant’s gross claim. For example, for a claimant who was 33 in 1992, the calculation at this step would give them 15% of their gross claim from step (a).

Applying these risk adjustments does mean that the claimants who actually converted only receive a percentage of their losses, while claimants who would have converted anyway get money that they would not get after a trial. Class Counsel still think this is the right way to do this calculation because it would take a long time and be very expensive for us to get all claimants to prove that they converted because of the misrepresentations, and to decide who makes the cut and who does not.

Step (c): Prejudgment Interest

If we had gone to trial, claimants who left their employment before September 30, 2014 would have been entitled to a small amount of interest. This is called pre-judgment interest. We have added it where appropriate so that the amounts reflect what claimants would have received at trial.

Step (d): Pro-Rating to Fit Within the Settlement Funds

There is a very important difference between what claimants could have gotten if this lawsuit had gone to trial, and what we actually got in settlement. The difference is that the settlement is a fixed amount – there is no more money. But our calculations in steps (a)-(c) result in a larger total number than we have in settlement funds. This is because, as discussed in FAQ#7, the settlement amount is not calculated.

Because of that, we have to fit all claimants’ payments within the amount of money we have to distribute.

The amount to distribute will not be $4 million. Class Counsel’s fees and expenses, as well as some other costs, have to be paid out first. See FAQ#37, 42, 47 & 48 for more information on what else will be paid from the settlement funds.

To fit all claimants’ payments within the amount of money we have to distribute, we calculated the total after steps (a)-(c). Then, for each claimant, we calculated what percentage their amount after steps (a)-(c) was of the total.

For the estimates in the June letters, we then multiplied that percentage by the amount we estimate we will have to distribute. As discussed in FAQ#25, and except the claimants who will get $0 (see FAQ#24), claimants will get a minimum of $500.

After the July 24 hearing, once we know what the Court orders, we will calculate the actual amounts for each claimant.

21. What did you assume when you calculated how much money to give each claimant?

We made a few assumptions when we calculated how to divide up the settlement amount. These assumptions apply to calculation step (a) from FAQ#20. With all of these assumptions, our goal was to divide the money in a way that was fair and reasonable.

The important assumptions are:

  • Salaries from 1992 forward increased to match the Average Industrial Wage Index (because this is the most widely used measure of salaries and wages in Canada, used in many contexts including by the CPP);
  • In calculating how much claimants would have had if they had stayed in the DB plan (see step (a) from FAQ#20, the actuary experts used the methods and assumptions prescribed by the Canadian Institute of Actuaries (because their methods and assumptions are the universal standard for these kinds of calculations); and
  • In calculating what claimants now have under the DC plan, we assumed that all funds were invested in the PH&N “Balanced Trust” Fund (because the law requires claimants to invest reasonably – see FAQ#26 for more information).
22. Why did you make assumptions instead of asking people how much money they lost?

We made assumptions instead of asking people how much they lost for two main reasons.

First, and most importantly, the law requires people to act reasonably. For this lawsuit, this means that if we had gone to trial, each class member’s losses would have been calculated as the difference between what they would have had under the DB plan and what they should have under the DC plan if they invested reasonably. We assumed that all funds were invested in the PH&N “Balanced Trust” Fund because this was the fund recommended to class members, and because it was the most reasonable investment for class members to make. See also FAQ#26 for more information.

Second, it would take a long time and be very expensive to try to calculate each claimant’s losses without using some assumptions and averages. Doing it this way saves the class money.

We did use some information that is specific to each class member. This is the information that is set out in the June letters.

23. Why are there different adjustment percentages for different people?

Some risks were larger for some class members than for others. See FAQ#14 for more information.

24. Why am I getting $0?

Some people lost a lot of money because of the misrepresentations. Other lost very little, or even none at all. This FAQ explains why some people lost no money.

Because we have a limited amount of money to distribute, Class Counsel thought it was not fair for people who actually did better to take money away from people with large losses.

When the conversion happened, Teck Metals/Cominco put an amount of money into each claimant’s new DC plan account. This is called the initial account value, or IAV. One of the ways that Teck Metals/Cominco and Agrium encouraged people to convert was by being generous in the IAV amounts.

When we did the calculations described in FAQ#20, especially step (a), it became clear that because the IAVs were generous, some class members actually did better with the DC plan than they would have if they had stayed in the DB plan. This is particularly true for people who left employment with Teck Metals/Cominco or Agrium within a few years of the conversion.
Other people have large losses.

The experts estimated how much better or worse each claimant did due to converting. Class Counsel decided that any claimant who ended up 25% or more better off would get $0. We chose “25% better” as the cut-off because the numbers are estimates. We want to make sure that any class member who did lose money gets something from the settlement. Class Counsel are reasonably sure that anyone who did at least 25% better under the DC plan did not lose money.

25. Why am I getting $500?

When the conversion happened, Teck Metals/Cominco put an amount of money into each claimant’s new DC plan account. This is called the initial account value, or IAV. One of the ways that Teck Metals/Cominco and Agrium encouraged people to convert was by being generous in the IAV amounts.

When we did the calculations described in FAQ#20, especially step (a), it became clear that claimants’ losses varied from no or very small losses to very large losses.

Class Counsel wanted to make sure that all claimants who lost money get something from the settlement funds. As a result anyone who does not fall in the $0 category (see FAQ#24 for an explanation) will get a minimum of $500.

26. I lost a lot more money than the amount my letter says I am getting from the settlement. Why is that?

There are a few reasons why you are not getting the same amount of money as you think you lost.

One main reason is that the law requires us to assume that everyone acted reasonably. In particular, we have to assume that everyone invested reasonably (see FAQ#22-23). We assumed that everyone invested using the default investment that was recommended for anyone who was not comfortable making their own investment decisions. This makes it a reasonable place to have invested.

Another main reason is that, if we had gone to trial, Teck Metals/Cominco and Towers would only have to pay for losses that are their fault. The settlement funds are divided on the basis of what is fair to everyone and what people would likely have gotten at trial. If you lost more money than that because of something like your investment decisions, that is not Teck Metals’/Cominco’s or Towers’ fault.

A third important reason is the risks that apply to different class members. See FAQs #10-14 for more information.

A fourth reason is that the amount of money in the settlement is fixed, and must be divided among everyone. This means that no-one is getting the total amount that they lost.

27. Can I see the detailed calculations of my share/of everyone’s shares?

We are happy to send you detailed information about the calculation of your share. Please contact Kimberley Hill at khill@cfmlawyers.ca or 1-800-689=2322.
We cannot send you the details of the calculations of other claimants’ shares due to privacy concerns.

28. Why are people who didn’t submit their forms on time getting some of the money?

In a class action (such as this lawsuit), Class Counsel and the Court are required to be fair to all class members – both those who submitted their forms on time, and those who submitted their forms late.

The claimants who submitted their forms late have good excuses for doing so. Class counsel think it would be unfair to exclude them.

There are only a few claimants who submitted their forms late. Class Counsel and the experts checked how much difference it would make to the claimants who submitted their forms on time if we included the claimants who submitted their forms late. The difference is very small. Because of this, Class Counsel think that it is not unfair to the claimants who submitted their forms on time.

 

29. How many people are getting $0/$500/another amount?

Due to privacy concerns, we cannot post exact numbers on the website. However, we can advise that the payouts break down into four approximately equal groups:

• roughly 1/4 of claimants are receiving $0;
• roughly 1/4 of claimants are receiving $500;
• roughly 1/4 of claimants are receiving between $500 and $10,000; and
• roughly 1/4 of claimants are receiving more than $10,000.

30. What do I have to do to get a share of the settlement funds? Do I need to provide any information?

If you sent in your claim form (and as long as your letter does not say you are getting $0 – see FAQ#24), they you do not need to do anything more. After the July 24 hearing, and based on what the Court decides, Class Counsel will do a final calculation of what each claimant’s share is.

If each claimant’s share is close to or more than the estimate in their June letter, we will send you another letter confirming the amount and enclosing a cheque. We expect this to be the most likely outcome.

If each claimant’s share has dropped substantially, we may have to go back to Court to decide what to do. In that case we will send you a further letter.

31. Will it cost me anything to get a share of the settlement funds?

No. you do not have to pay anything. Class Counsel and the experts are paid out of the settlement.

32. Do I have to pay taxes on my share of the settlement fund or put it into my DC account/RRSP/pension?

It is not clear at law whether receipt of the settlement funds could attract income tax.

You can do whatever you want with your share of the settlement funds. However, it is possible that the CRA will view this as a pension withdrawal. Putting it in one of those places will avoid the risk.

We recommend that, if you have further questions about this, you should get tax advice.

33. The information about me in my June letter is wrong. What do I do?

Please email or call Kimberly Hill of CFM at khill@cfmlawyers.ca or 1-800-689-2322. Kimberly will explain what you need to do to correct the information. The sooner you call her the better, but you will have 30 days after the Court approves the distribution plan to do so.

34. What if I do not agree with the amount of money you are giving me?

If you do not agree because the information about you in your June letter is wrong, please email or call Kimberly Hill of CFM at khill@cfmlawyers.ca or 1-800-689-2322. Kimberly will explain what you need to do to correct the information. The sooner you call her the better, but you will have 30 days after the Court approves the distribution plan to do so.

If you do not agree for some other reason, please contact Class Counsel by emailing or phoning Kimberley Hill at khill@cfmlawyers.ca or 1-800-689-2322. Class Counsel may be able to answer your question or resolve your concern.

You may also consider participating in the webcast “town hall” meeting (see FAQ#51) or listening to the recorded webcast (audio only) (see FAQ#54).

If you still do not agree, you have the right to object to the Court. The Court will consider any comments or objections it receives. You can object by sending your objection in writing to Class Counsel (see FAQ#44 for names and addresses) by July 17, 2015.

You can also come to the Court hearing. It will be held on July 24, 2015, starting at 10:00 a.m., in the Vancouver Courthouse at 800 Smithe Street. If you come, you may be allowed to speak to the Court.

35. When will I get paid?

The earliest we will be able to issue cheques is late August or early September.

If anything does not go exactly as we hope, it will take us longer.

36. How will I get paid?

We will send you a letter confirming the amount and enclosing a cheque.

37. Will I be paid the amount of money set out in my letter? Are there any deductions from the amount set out in my letter for the lawyers?

The amount of money set out in your letter is an estimate only. We will not be able to calculate the actual amount until after the Court hearing, based on what the Court approves.

The lawyers’ fees and expenses were deducted before we calculated the amount in your letter. If we have estimated correctly, and if the Court approves everything that the lawyers are proposing, you will get the amount set out in your letter.

We will confirm our calculations after the July 24 hearing. If your share is close to or more than the estimate in your June letter, we will send you a letter confirming the amount and enclosing a cheque. We expect this to be the most likely outcome.

If your share has dropped substantially, we may have to go back to Court to decide what to do. In that case we will send you a letter explaining what has happened.

38. Will there be any money left over after paying each claimant’s share and the lawyers’ fees?

The lawyers have designed the distribution so that there is no money left over. We will write cheques to claimants for all of the money other than legal fees. We want as much of the money as possible to go to claimants.

There is a chance that some claimants will not deposit their cheques. If there is enough money from uncashed cheques, we will likely send out second cheques. Before we do anything with the money from uncashed cheques, we will send letters to all claimants to let them know what we are proposing to do. We will also have to get the Court to approve what we propose to do.

39. I do not agree with the distribution plan. What do I do?

First, please contact Class Counsel by emailing or phoning Kimberley Hill at khill@cfmlawyers.ca or 1-800-689-2322. Class Counsel may be able to answer your question or resolve your concern.

You may also consider participating in the webcast “town hall” meeting (see FAQ#51) or listening to the recorded webcast (audio only) (see FAQ#54).

If you still do not agree, you have the right to object to the Court. The Court will consider any comments or objections it receives. You can object by sending your objection in writing to Class Counsel (see FAQ#44 for names and addresses) by July 17, 2015.

You can also come to the Court hearing. It will be held on July 24, 2015, starting at 10:00 a.m., in the Vancouver Courthouse at 800 Smithe Street. If you come, you may be allowed to speak to the Court.

 

General Questions About the Representative Plaintiffs

40. Who are Mr. Weldon and Mr. Bleier?

James Weldon is a current employee of Teck Metals and Leonard Bleier is a retired employee. They agreed to be the “representative plaintiffs” for this lawsuit. That means that they did everything needed to keep this lawsuit going, so that each individual class member did not have to do anything.

They have put in many days organizing this lawsuit, talking with us, meeting with the defendants, answering your questions, and doing the many other things to keep this lawsuit going.

41. Why do Mr. Weldon and Mr. Bleier get to decide on what happens in the lawsuit?

The way a class action works is that one or a couple of people, called representative plaintiffs, do all the work for all the class members.

In this lawsuit, there are a few hundred class members. In a lawsuit that is not a class action, all the plaintiffs have to agree for anything to happen. It would not be possible to get all of the class members to agree on anything in a reasonable period of time. Because of this, class actions have representative plaintiffs instead.

The representative plaintiffs have to do a substantial amount of work. They meet with the lawyers, answer questions that the lawyers or other class members have, and generally make themselves available. In exchange for doing all of this work, they get to decide what happens in the lawsuit.

42. Why are you asking for extra compensation for Mr. Weldon and Mr. Bleier?

Mr. Weldon and Mr. Bleier have done a lot of work on your behalf. Unless we ask the Court to give them extra compensation, they do not get anything for doing all this work. They just get the same amount as all other claimants.

In 2008, Mr. Weldon took on a leadership role when he learned that other non-union employees at Trail Operations who had transferred to DC Plan shared his unhappiness with how far their prospective pensions were falling behind those of employees who had stayed on the DB Plan. He was instrumental in gathering together some of those employees to raise those concerns with Cominco management.

When Cominco management did not respond to those concerns he led the fundraising needed for legal advice. He then volunteered to be the representative plaintiff despite the fact that, as a current Cominco employee, he had apprehensions about the impact of suing Cominco on his employment at Cominco (to Cominco’s credit, it turned out not to have any effect on his employment).

Starting the lawsuit in Mr. Weldon’s name exposed him to the risk of legal costs as the action proceeded.

As representative plaintiff Mr. Weldon received and acted on all of Class Counsel’s requests for information. In particular he took on the time-consuming and difficult task of finding employees who had transferred to the DC Plan (most of whom he did not know well, or at all) and persuading enough of them to provide personal information to Class Counsel for us to estimate class members’ losses.

After the BC Court of Appeal issued its decision limiting the causes of action on which the action could proceed, Mr. Bleier volunteered to act as a representative plaintiff for the employees who had retired before 2009. Mr. Bleier volunteered and therefore also incurred a potential liability for costs.

Mr. Bleier also worked with Class Counsel to contact other employees and to find class members for whom no contact information was available.

Both Mr. Weldon and Mr. Bleier acted as the communicators between Class Counsel and class members. They arranged meetings for Class Counsel with plan members in Trail to gather information and identify possible trial witnesses.

Both Mr. Weldon and Mr. Bleier were examined for discovery. This means that they had to travel to Vancouver to answer the defendants’ questions under oath. Ahead of time they had to review many documents.

Because the tentative settlement was not concluded until a few days before trial, both Mr. Weldon and Mr. Bleier had already travelled to Vancouver and prepared to be witnesses at trial.

When settlement negotiations were ongoing, they both had to make themselves available to discuss whether the settlement proposals were acceptable from the perspective of the class – not from their own perspective. This required Mr. Weldon and Mr. Bleier to learn legal concepts and make their decisions after considering all of the risks of continuing the action rather than settling.

The contributions of Mr. Weldon and Mr. Bleier did not end with the settlement of the action. They have continued to assist Class Counsel in reviewing drafts of all our communications with class members. We expect they will continue to help class members obtain accurate information about the settlement and the proposed plan to distribute the settlement funds.

Class Counsel think Mr. Weldon and Mr. Bleier have been exemplary representative plaintiffs and have worked diligently to support this action. It would have been significantly more difficult for Class Counsel to conduct this action without their contributions of their time, effort organizing skills and good judgment. For all of this, Class Counsel think it is more fair for Mr. Weldon and Mr. Bleier to get some extra compensation.

43. I do not agree with giving Mr. Weldon and Mr. Bleier extra compensation. What do I do?

First, please contact Class Counsel by emailing or phoning Kimberley Hill at khill@cfmlawyers.ca or 1-800-689-2322. Class Counsel may be able to answer your question or resolve your concern.

You may also consider participating in the webcast “town hall” meeting (see FAQ#51) or listening to the recorded webcast (audio only) (see FAQ#54).

If you still do not agree, you have the right to object to the Court. The Court will consider any comments or objections it receives. You can object by sending your objection in writing to Class Counsel (see FAQ#44 for names and addresses) by July 17, 2015.

You can also come to the Court hearing. It will be held on July 24, 2015, starting at 10:00 a.m., in the Vancouver Courthouse at 800 Smithe Street. If you come, you may be allowed to speak to the Court.

 

General Questions About the Class Counsel (the Lawyers) and the Experts

44. Who are Class Counsel? How can I contact them?

Class Counsel are your lawyers in this lawsuit. The law firms are Camp Fiorante Matthews Mogerman and Victory Square Law Office. You can contact them at the following:

Camp Fiorante Matthews Mogerman
400-856 Homer Street
Vancouver, BC V6B 2W5
Attention: Kimberly Hill
email: khill@cfmlawyers.ca
facsimile: 604-689-7554
Victory Square Law Office LLP
#500-128 West Pender Street
Vancouver, BC V6B 1R8
Attention: Diane Irvine
email: dirvine@vslo.bc.ca
facsimile: 604-684-8427

There are a few lawyers and staff at each firm working on this case. Kimberley and Diane will direct your question to the right person.

45. Who are the Experts?

The experts are actuaries hired by Class Counsel to help with the lawsuit and with deciding how to share the settlement funds among claimants.

46. Do I have to pay Class Counsel?

No. Class Counsel is paid a percentage of the settlement funds, plus expenses and taxes. The Court has to approve the amount of the lawyers’ fees and expenses to be paid from the settlement.

47. How much will Class Counsel get paid?

Class Counsel is paid a percentage of the settlement funds, plus expenses and taxes. The Court has to approve the amount of the lawyers’ fees and expenses to be paid from the settlement.

As the lawyers for the class, Class Counsel is asking for 1/3 of the settlement funds (or $1,333,333.33), plus expenses and taxes. This will be shared between Camp Fiorante Matthews Mogerman and Victory Square Law Office.

The representative plaintiffs agreed in a document called a “contingency fee agreement” to pay Class Counsel up to 1/3 of any money received in the lawsuit (whether from a settlement or after trial). The percentage goes up as the lawsuit moves closer to trial. This lawsuit settled very shortly before trial started, so Class Counsel is asking for the full 1/3.

If Class Counsel had been charging by the hour, as most lawyers do, our fee could have been higher.

48. Why do Class Counsel get both 1/3 of the settlement and an additional $250,000 to be the claims administrator?

Class Counsel are acting in two different roles – one role is as the lawyers for the class members, and the other role is as the claims administrator.

The fee of 1/3 of the settlement is for acting as the lawyers for the class members. See FAQ#47 for more information about this fee.

There are specialized firms that do claims administration. Class Counsel asked one of those firms for a price to do this work. The price was higher than $250,000. Class counsel therefore decided to do it ourselves. In our experience, if we billed at our usual hourly rates it would cost us more than $250,000 to properly administer the claims process.

49. How much of the settlement will be left for class members after Class Counsel are paid?

How much of the settlement will be left depends on what the Court approves and what expenses Class Counsel has to cover between now and the end of July. The rest of this answer is an estimate, based on what Class Counsel will be asking for at the hearing on July 24.

It is also important to remember that there are two separate amounts in the settlement.

First, there is an amount of up to $300,000 that the defendants are paying to cover the expenses incurred on behalf of the class members up to September 21, 2014. In order to get this lawsuit ready for trial, Class Counsel had to pay experts, pay for court reporters, and various other things. Class Counsel also had to pay tax on these expenses. This $300,000 is simply reimbursing Class Counsel for these expenses and the taxes on them.

Second, there is $4,000,000 in general settlement funds. Class Counsel will be asking for a fee of 1/3 for our work as the lawyers for the class, as described in FAQs#47 & 48. That amount is $1,333,333.33. We are required by law to charge 12% tax on our fees. The taxes on our fees will be $160,000, for a total of $1,493,333.33.

As described in FAQ#48, Class Counsel will also be seeking a fee of $250,000 for the work we will do as claims administrator. We are again required by law to charge 12% tax on our fees. The taxes on this amount will be $30,000, for a total of $280,000.

In total, Class Counsel will therefore be asking for fees of $1,743,333.33, including taxes.
Last Class Counsel will be asking the Court to reimburse us for expenses (including the taxes on those expenses) that we have paid since September 21, 2014 and that we continue to pay up to the hearing date. We do not know exactly how much this will be, but we estimate approximately $50,000.

This will leave between $2,100,000 and $2,200,000 to be paid to class members.

50. I do not agree with Class Counsel’ fees. What do I do?

First, please contact Class Counsel by emailing or phoning Kimberley Hill at khill@cfmlawyers.ca or 1-800-689-2322. Class Counsel may be able to answer your question or resolve your concern.

You may also consider participating in the webcast “town hall” meeting (see FAQ#51) or listening to the recorded webcast (audio only) (see FAQ#54).

If you still do not agree, you have the right to object to the Court. The Court will consider any comments or objections it receives. You can object by sending your objection in writing to Class Counsel (see FAQ#44 for names and addresses) by July 17, 2015.

You can also come to the Court hearing. It will be held on July 24, 2015, starting at 10:00 a.m., in the Vancouver Courthouse at 800 Smithe Street. If you come, you may be allowed to speak to the Court.

 

General Questions About the Webcast “Town Hall” Meeting

51. I want to participate in the webcast “town hall” meeting on a computer. What do I need to do?

Please contact Jacinta at Victory Square Law Office by email at jwellwood@vslo.ca or by phone at 1-877-684-8421 for instructions on how to access the webcast.

52. I want to participate in the webcast “town hall” meeting by phone. What do I need to do?

Please contact Jacinta at Victory Square Law Office by email at jwellwood@vslo.ca or by phone at 1-877-684-8421 for instructions on how to participate by phone.

53. I am trying to connect to the webcast and it is not working. What do I do?

Troubleshooting information is available at www.vslo.ca/teck-webcast

54. I want to listen to the recorded webcast “town hall” meeting. What do I do?

Unfortunately, only the audio from the webcast recorded – not the video. This means you can listen to the webcast but there is nothing to watch. However, the audio is the important part.

Please contact Jacinta at Victory Square Law Office by email at jwellwood@vslo.ca or by phone at 1-877-684-8421 for instructions on how to listen to the recorded webcast town hall meeting.

 

General Questions About the Court Hearing

55. When and where is the Court hearing?

The Court hearing is on July 24, 2015 starting at 10:00 a.m. at the Vancouver Courthouse. The Vancouver Courthouse is at 800 Smithe Street. The courtroom number will not be assigned until the morning of July 24.

56. Do I have to come to the Court hearing?

No, you do not have to come to the Court hearing. You are welcome to come if you want to. If you come, the Court may hear any comments or concerns you have.

 

More Questions?

57. Who do I contact if I have more questions?

Please call or email Kimberley Hill from CFM at khill@cfmlawyers.ca or 1-800-689-2322. If Kimberley cannot answer your question she will pass it along to someone who can.

58. Can I contact Teck Metals, Towers or Agrium with my questions?

No. Teck Metals, Towers and Agrium are not allowed to talk to you about the lawsuit, settlement agreement or distribution. Please call or email Kimberley Hill from CFM at khill@cfmlawyers.ca or 1-800-689-2322.

59. Can I contact the court or the judge with my questions?

No. The judge and the court cannot answer any questions about the lawsuit, settlement agreement or distribution. Please call or email Kimberley Hill from CFM at khill@cfmlawyers.ca or 1-800-689-2322.