Boys and Girls Club of London Foundation c. Molson Coors Brewing Company						2010 QCCS 6306
JC 2373    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTREAL
No:		500-06-000314-050
DATE:	December 22, 2010
______________________________________________________________________
IN THE PRESENCE OF:				THE HONOURABLE	LOUIS-PAUL CULLEN, J.S.C.
______________________________________________________________________
BOYS AND GIRLS CLUB OF LONDON FOUNDATION
and
EDELTRAUD T. LEISSER
Petitioners
v.
MOLSON COORS BREWING COMPANY
and
PETER H. COORS
and
W. LEO KIELY III
and
CHARLES M. HERINGTON
and
FRANKLIN W. HOBBS
and
RANDAL OLIPHANT
and
PAMELA PATSLEY
and
WAYNE SANDERS
and
ALBERT C. YATES
and
DAVID D.G. BARNES
and
PETER M.R. KENDALL
and
TIMOTHY V. WOLF
Respondents
______________________________________________________________________
JUDGMENT
______________________________________________________________________

[1]   By Motion dated December 7, 2010 (the "Motion"), the Petitioners are asking the Court to allow the inclusion of late claims filed by Canadian Class members under the Settlement Agreement and to authorize the claims distribution accordingly.

Background

[2]   Following a merger in 2005 between Adolph Coors Company and Molson Inc. to form Molson Coors Brewing Company, litigation commenced in Ontario, Quebec and various jurisdictions in the United States alleging, among other things, that Molson shareholders had been misled about the merger's benefits.

[3]   In November 2008, a Stipulation and Settlement Agreement (the "Settlement") was executed on behalf of all parties, whereby a global settlement in principle was reached for USD$6,000,000.00. 

[4]   On December 12, 2008, the Court authorized the present class action for the sole purpose of submitting the Settlement for approval with respect to claims by members of the Canadian Class.  Several orders and declarations were also issued, including the following:

ORDERS that the "Canadian Class" be defined as:

All persons and entities resident or domiciled in Canada: (i) that, as former shareholders of Molson, received shares of Molson Coors as a result of the February 9, 2005 merger of Molson and Coors; (ii) that were open market purchasers of the common stock of Coors from July 22, 2004 through February 9, 2005, inclusive; or (iii) that were open market purchasers of the common stock of Molson Coors, from the completion of the merger of Molson and Coors through April 27, 2005, inclusive, and who were allegedly damaged thereby, and including the plaintiffs in the Additional Canadian Actions and all persons and entities resident or domiciled in Canada included within the putative classes on whose behalf the Additional Canadian Actions were brought.  Legal persons established for a private interest, partnership or association, who employed more than 50 persons at any time during the period from October 25, 2004 to October 25, 2005, and who otherwise fit the above description, are not included in the Canadian Class.  Such persons are however, included in the U.S. Class.  Excluded from the Canadian Class are the Excluded Persons.

ASCRIBES to Boys and Girls Club of London Foundation and to Edeltraud T. Leisser the status of representatives of the "Canadian Class", solely for the purpose of settlement;

AUTHORIZES and ORDERS notification in accordance with the Plan of Notice appended to the present judgment;

ORDERS that both an English and French version of the Notice and of the Proof of Claim forms shall be mailed by first class mail, postage prepaid, on or before the Notice Date to those individuals and entities with a Canadian address;

ORDERS that the deadline for filing an objection to the Settlement is March 19, 2009;

ORDERS that the deadline for filing a Proof of Claim is March 19, 2009;

DECLARES that Class Members may file an objection whether or not they file a Proof of Claim;

ORDERS that the deadline for opting-out of the Canadian Class is March 19, 2009;

DECLARES that any Canadian Class Member who has not validly opted out of the Canadian Class described in the Settlement will be bound by both the Settlement and any and all judgments authorizing the class action for settlement purposes only and approving the Settlement;

DECLARES that any Canadian Class Member who does not discontinue any suit he or she has brought concerning claims which judgment in the within action would decide, prior to the expiry of the date for exclusion from the Canadian Class, shall be deemed to have opted out, except for the plaintiffs or petitioners, as the case may be, in the Additional Canadian Actions;

SETS the hearing for the motion for approval of the class action Settlement and approval of attorney fees as between the Petitioners and their counsel at 9:30 a.m. on April 2, 2009 at the Montreal Courthouse, 1 Notre Dame Street East, Montreal, in a room to be determined by the court;

AUTHORIZES AND ORDERS that Notices materially identical to those appended to the present judgment be published pursuant to the Plan of Notice filed into the Court record; 

                                                                                      (Emphasis added.)

[5]   On April 9, 2009, the Court approved the Settlement as well as the request for fees and issued the following orders:

ORDERS Paul Mulholland, President of Strategic Claims Services, to ensure the proper execution by Strategic Claims Services of the distribution of the Net Settlement Funds to Authorized Claimants as these terms are defined in exhibit RA-1, in the manner described in exhibits RA-2, RA-4, RA-3 and RA-5;

ORDERS Paul Mulholland to ensure the withholding by Strategic Claims Services from the claims of Canadian Class members residing in Quebec of the following percentages for the sole benefit of the Fonds d'aide aux recours Collectifs:

(a)      2 % from any liquidated claim less than 2 000 $;

(b)      5 % from any liquidated claim exceeding 2 000 $ but less than 5 000 $;

(c)      10 % from any liquidated claim exceeding 5 000 $.

[6]   The Motion is supported by the affidavits that Mr. Mulholland executed on September 30, 2010 (with attached exhibits) and October 4, 2010.  His description of the administrative procedures performed to process the claims as well as their result may be summarized as follows:

6.1. To provide notice of the Settlement, the "Notice of Class Actions and Proposed Settlement" and the "Proof of Claim and Release form" (hereafter together, the Notice and Claim Form") were mailed first class to all individuals and organizations identified on the records of Molson Coors' transfer agent for the period from July 22, 2004 to April 27, 2005. 

6.2. The Notice and Claim Form were also mailed to all of the brokerage companies, banks and trust companies contained in the master mailing list of Strategic Claims Services, LLC  (hereafter, "SCS") which may have traded Molson, Coors, and/or Molson Coors' common stock in their clients' or their own accounts during the relevant period, as well as to all of the Canadian institutional holders of such shares, as identified by Targeted, Inc., a Canadian research firm. 

6.3. These mailings were completed by December 19, 2008.

6.4. In addition, the Notice and Claim Form were made available to the public at a website (www.molsoncoorssettlement.com) and a link to this website was placed on SCS's own website.

6.5. A Canadian national depository and a U.S. consulting firm having access to over 2,000 institutional investor clients worldwide along with the Nominee Account Holders and Institutional Groups were asked to either forward the Notice and Claim Form directly or to provide the names and addresses of actual or beneficial holders so that SCS could mail these documents itself. 

6.6. Nominee Account Holders who did not respond by January 29, 2009 were sent a second reminder.

6.7. SCS contacted by phone Institutional Holders identified by Targeted, Inc., as having holdings greater than 1,000 shares and large U.S. Institutional Groups who filed Form 13F's with the U.S. Securities and Exchange Commission during the relevant period.

6.8. In all, 41,050 Notice and Claim Forms were mailed, of which 978 were returned as undeliverable.  29 had forwarding addresses, and SCS immediately re-mailed to these the Notice and Claim Form.  SCS attempted to locate the other 949 potential class members, which resulted in 82 updated addresses. SCS re-mailed the Notice and Claim Form to those addresses.

6.9. As had been ordered by the Court on December 12, 2008, the Publication Notice was published in English in the national edition of the Investor's Business Daily and in the business/legal section of the National Post.  Il was also published in French in the business section of La Presse and Le Journal de Québec. Additionally, the Publication Notice was published electronically in French over Marketwire and in English over Marketwire and Globe Newswire.  All publications were made on or before January 29, 2009.

6.10.             9,562 Proof of Claims were submitted as of September 30, 2010.

6.11.             SCS initially found 2,286 claims to be deficient because of insufficient supporting documentation.  Each such claimant was notified and given an opportunity to cure.  1,625 were cured.  The remaining 661 deficient claimants were sent rejection notices.  None contested.

6.12.             SCS also identified 3,858 claims that it deemed ineligible for the following reasons: claims with no Recognized Loss (2,406), claims with no purchases of relevant stock during the relevant period (832), duplicates (486), claims regarding shares that had been sold short (75), claims for shares that were not purchased (50), claims for other securities (8) and claims filed by a Defendant (1).  Each rejected claimant was sent a notice indicating the reason for the rejection and the procedure to contest.  No rejected claimant has contested.

6.13.             SCS ultimately deemed that 5,043 Proof of Claims were properly documented valid claims for Recognized Losses totalling $58,005,566.28 for common stock.

6.14.             However, 84 of the 5,043 properly documented valid claims were submitted after the filing deadline of March 19, 2009.  These 84 late claims represent total Recognized Losses of $2,369,006.64 for common stock, or 4.1% of the total Recognized Losses. 

6.15.             Each Authorized Claimant shall be allocated a percentage of the Net Settlement Fund based upon the Authorized Claimant's claim as compared to the total claim of all 4,959 Authorized Claimants increased by those late claims that the Court and the U.S. court may deem valid, if any.

6.16.             Exclusion of any late claim would increase the sum distributed to the claimants whose properly documented valid claims were submitted before the filing deadline by an amount equal to the percentage that would otherwise be allocated to such late claim.

6.17.             The Defendants do not object to the inclusion of the 84 late claims, as this would not require that they further contribute to the Gross Settlement Fund.

[7]   The Motion is also supported by an affidavit dated December 20, 2010 signed by Charles Wright, one of the attorneys of the Petitioners: the number of shares on account of which valid claims were made totals 36,580,652 out of an estimated 53,606,863 relevant shares, or approximately 68% of the total estimated damaged shares, 2,180 claims were submitted on behalf of members of the Canadian Class and, of the 84 late but otherwise valid claims, 27 were made by Canadian Class members representing 1.2% of the claims filed by such members.

[8]   On December 9, 2010, the United States District Court for the District of Delaware deemed timely the "otherwise eligible claims that were submitted after the March 19, 2009 filing deadline" and authorized their inclusion in the Settlement and distribution.

DISCUSSION

[9]   The evidence shows that the claims were processed properly and diligently.

[10]        Allocating to the late but otherwise valid claims their prorated share of the Net Settlement Funds would not affect the total amount of the Settlement.  In such case, the claimants having submitted valid claims within the deadline would receive a fair compensation for their prejudice equal to their prorated share in the Settlement; however, their compensation would not be increased as a result of the exclusion of the late but otherwise valid claims.

[11]         On the other hand, excluding the late but otherwise valid claims would deprive the claimants having filed such claims of any participation whatsoever in the Settlement.  Their proven prejudice would be left entirely uncompensated.  Justice would not be served.

[12]        Pursuant to article 46 C.C.P., the Court may extend the March 19, 2009 filing deadline.[1]  Given that this will not affect the total amount of the Settlement, such an extension is justified here, particularly in light of the authorization already granted by the United States District Court for the District of Delaware to allow inclusion of the late but otherwise valid claims in the Settlement and distribution as well as the overarching requirement that the allocation and distribution of the Net Settlement Funds be fair to all members.

FOR THESE REASONS, THE COURT:

ALLOWS the inclusion of the late claims filed by Canadian Class members under the Settlement Agreement;

AUTHORIZES the distribution of the Net Settlement Funds;

WITHOUT COSTS.

	__________________________________ LOUIS-PAUL CULLEN, J.S.C.
Me Karine St-Louis
PAQUETTE GADLER INC.
Attorneys for the Petitioners
Me François Giroux
MCCARTHY TÉTRAULT
Attorneys for the Respondents