SCC gives OK to Microsoft, Infineon price-fixing suits, but not Sun Rype

Consumers may join class action lawsuits against Microsoft Corp and Infineon Technologies AG over allegations of unfair pricing for computer products, the Supreme Court of Canada ruled this morning.

But the high court refused the go-ahead in Sun-Rype Products Ltd v. Archer Daniels Midland Co., a class action against Archer Daniels Midland Co. and Cargill Inc. over alleged price-fixing on high-fructose corn syrup used in soft drinks and baked goods.

The Supreme Court, in the linked decisions Pro-Sys Consultants Ltd. v. Microsoft Corp. andInfineon Technologies AG v. Option consommateurs, certified separate class actions against the companies.

The cases deal primarily with whether consumers have the right to join a class action even if they were only indirect purchasers, not buying directly from the companies involved. None of the cases was at the point of establishing liability.

The class suing Microsoft is any British Columbia resident who bought Microsoft operating systems or applications software for their own use from 1994 on. Typically, once the principle is established, suits could be launched in other provinces.

The suit in Quebec against Infineon alleges it conspired to inflate the price of a broadly used product, dynamic random-access memory chips (DRAM), used in computers made by companies such as Dell Inc and Hewlett-Packard Co.

The companies argued if both the consumers and the retailers or intermediaries who sold those products were allowed to recover damages, the companies risked having to pay the same damages twice.

In the Microsoft and Infineon cases, the court said the risk of duplicate recoveries could be managed by the courts.

In the Sun-Rype decision, the court agreed while class actions by consumers can proceed in principle, consumers would not be able to identify what sweetener was used in each drink or baked good they consumed over the years. A class action cannot therefore be certified, it ruled.

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