Definitions

For the purposes of this Settlement Agreement, including its recitals and schedules, the following definitions apply:

“Account” means a special interest bearing trust account under the control of the Claims Administrator at a Schedule 1 chartered Canadian bank into which the Compensation Fund shall be paid by the Defendants and on which the interest accrued will be added to the Compensation Fund.

“Administration Costs” means the costs of giving the Notice of Certification, Notice of Settlement Approval Hearing, and the Notice of Settlement Approval and the amounts invoiced to administer and distribute the Compensation Fund, including the expenses and professional fees of the Notice Provider, Claims Officer, and the Claims Administrator.

“Allegations” means the assertions of fact or law, causes of action, injuries, and damages that were pleaded in the Amended Amended Statement of Claim, filed January 9th, 2019.

“Certification Order” means the Order (Class Certification) of the Honorable Associate Chief Justice Rooke, pronounced November 17th, 2022 and filed December 19th, 2022.

“Claim” means the claim made by a Claimant in accordance with the procedure in the Distribution Protocol, which is attached hereto as Schedule “D”.

“Claimant Child” means a Class Member who was born with a Qualifying Congenital Malformation, or his or her estate or legal representative, who files a Claim pursuant to the terms hereof.

“Claimant Mother” means a Class Member who was prescribed Paxil® or Paxil CR™ in Canada and subsequently aborted, delivered, or miscarried children with Qualifying Congenital Malformations after ingesting Paxil® or Paxil CR™ while pregnant, or her estate or legal representative, who files a Claim pursuant to the terms hereof.

“Claims Administrator” means Trilogy Class Action Services, the person or entity agreed to by the Parties and approved by the Court to assist the Claims Officer with the administration of the claims process in accordance with the Distribution Protocol.

“Claims Deadline” means 90 days from the publication of the Notice of Settlement Approval, unless extended as provided for in the Settlement Approval Order.

“Claims Officer” means a qualified and independent physician agreed to by the Parties who will determine, inter alia: whether a Claimant was born with a Qualifying Congenital Malformation; identify the category in the Distribution Protocol within which each Claim falls; and assign a points value within the range identified in the Distribution Protocol.

“Claims Perfection Deadline” means 90 days after the Claims Deadline.

“Class” means women who were prescribed Paxil® or Paxil CR™ in Canada and subsequently aborted, delivered, or miscarried children with congenital malformations after ingesting Paxil® or Paxil CR™ while pregnant; family members who may make claims under Family Compensation Legislation following the death of, or injury in relation to the congenital malformations; children born alive to such women; and provincial and territorial governments who paid health care costs on their behalf.

“Class Counsel” means

  1. Casey R. Churko, practicing through KoT Law Professional Corporation; and
  2. Clint Docken, K.C., practicing through Clint Docken Professional Corporation.

“Class Counsel Disbursements” means the agreed amount of legitimate and reasonable disbursements incurred by or at the request of Class Counsel and Former Class Counsel between the filing of this Class Proceeding (and no other class action or class proceeding filed anywhere in Canada at any time relating to the prescription or use of Paxil®, Paxil CR™, or paroxetine) and the Effective Date; except that the disbursements that may be claimed by Former Class Counsel shall further be limited to those incurred before April 12th, 2019, being the date that the Plaintiffs served a Notice of Change of Representation. The amount of disbursements as agreed to is: $175,000 for Napoli Shkolnik Canada; and $175,000 for Merchant Law Group LLP.

“Class Counsel Fees” is CDN $2,000,000, separate and apart from Lawyers’ Fees, to be paid as follows:

  1. $850,000, to be paid to KoT Law Professional Corporation;
  2. $50,000, to be paid to Clint Docken Professional Corporation; and
  3. $1,100,000, to be paid to Former Class Counsel in full and final satisfaction of the undertaking that the Honourable Associate Chief Justice J.D. Rooke referenced at ¶38 of Singh v Glaxosmithkline Inc., 2021 ABQB 316.

“Class Member” means any person, or his/her estate or legal representative, who is a member of the Class and did not deliver an Opt-Out Form to the Notice Provider on or before April 8th, 2024.

“Class Period” means the period that runs from January 1st, 1993 to April 8th, 2024.

“Class Proceeding” means the proceeding commenced by Muzzafar Hussain, by his Mother and Litigation Guardian, Fiona Singh, and the said Fiona Singh, in the Court of King’s Bench of Alberta against the Defendants (Court File No. 1201-12838), and that was certified as a class proceeding by the Certification Order.

“Compensation Fund” means the Settlement Fund after deducting: Administration Costs incurred before the Settlement Approval Order is made; $525,000 to resolve Health Insurer Claims; the Class Counsel Fees and Class Counsel Disbursements and applicable taxes thereon; and the Honorarium; and after adding the interest while the Settlement Fund is held in the Account. After deductions, the Administration Costs incurred after the Settlement Approval Order and Compensatory Payments will be fully paid from the remainder of the Compensation Fund.

“Compensatory Payments” means the amounts that are allocated to Eligible Claimants out of the Compensation Fund, including the amounts allocated for Lawyers’ Fees.

“Court” means the Court of King’s Bench of Alberta.

“Court Approval Date” means the later of September 24th, 2024 and the date on which the Court approves the Settlement Agreement.

“Damages” means all claims for pain and suffering, loss of guidance, care and companionship, non-pecuniary claims, in trust claims, subrogated claims (in the form of claims of Health Insurers and non-governmental insurers), past and future income loss claims, past and future care claims, aggravated or punitive damages, and special damages.

“Distribution Protocol” means the plan setting out a Class Member’s entitlement to make a Claim under this Settlement Agreement and how Compensatory Payments to Eligible Claimants and Lawyers’ Fees shall be determined and distributed, as approved by the Court as part of the Settlement Approval Hearing, a draft of which is attached hereto as Schedule “D”.

“Effective Date” means the later of:

  1. 60 days after the Court Approval Date if there is no appeal from the Settlement Approval Order; and
  2. the date on which any appeals from the Settlement Approval Order have been quashed or finally disposed of.

“Eligible Claimant” means a Claimant, or his or her estate representative, who has satisfied the Claims Officer that he or she is a Class Member who is eligible for a Compensatory Payment, and, in particular that:

  1. the Claimant Mother or the biological mother of a Claimant Child was prescribed Paxil® or Paxil CR™ for use during her First Trimester of pregnancy;
  2. the Claimant Mother or the biological mother of a Claimant Child took Paxil® or Paxil CR™ during the Class Period while in her First Trimester of pregnancy who delivered a Claimant Child, born alive, who has been diagnosed with one or more Qualifying Congenital Malformations; and
  3. there is a medical or other reliable record or affidavit indicating that (1) a physician determined that the Claimant Child had or has one or more Qualifying Congenital Malformations, and (2) the biological mother of the Claimant Child took Paxil® or Paxil CR™ (and not generic paroxetine) during her First Trimester of pregnancy.
Further information with respect to eligibility is contained within the Distribution Protocol.

“First Trimester” means the first 13 weeks of pregnancy calculated from the date of the last menstrual period.

“Former Class Counsel” means E.F. Anthony Merchant, K.C. of Merchant Law Group LLP (being Class Counsel before April 12th, 2019).

“Health Insurers” means all of the provincial and territorial ministries of health or governmental bodies that provide publicly funded plans of health care in Canada.

“Health Insurer Claims” means the entitlement of the Health Insurers to any subrogated or direct claims arising from the provision of health care services to Class Members in relation to the Allegations, and pursuant to legislation that permits the recovery of health care costs or medical expenses from third parties.

“Honorarium” means the amount of CDN $50,000.

“Lawyers’ Fees” are, subject to section 8.5, up to 35% of Compensatory Payments paid to Eligible Claimants who are represented by Class Counsel or another lawyer of their choosing who has a valid and enforceable retainer agreement with an Eligible Claimant. Lawyers’ Fees paid to lawyers other than Class Counsel shall not exceed 25% where the retainers were executed before the Notice of Settlement Approval Hearing is given and 10% where the retainers were executed after. Class Counsel will receive 15% of Compensatory Payments that are made to Eligible Claimants who are unrepresented.

“Notice Provider” means Trilogy Class Action Services, who provided the Notice of Certification and the Notice of Settlement Approval Hearing and will provide the Notice of Settlement Approval.

“Notice of Certification” means the form of notice, approved by the Court on February 8th, 2024 that informed Class Members of certification of the Class Proceeding.

“Notice of Settlement Approval” means the form of notice, agreed to by the Parties and approved by the Court, and to be given within 30 days of the Court Approval Date, that informs Class Members, including Health Insurers, of the approval of this Settlement Agreement, the process for making Claims, and the Distribution Protocol, a draft of which is attached hereto as Schedule “A”.

“Notice of Settlement Approval Hearing” means the form of notice, approved by the Court as Schedule 1 to the Order (Settlement Approval Hearing Notice) pronounced June 5th, 2024 and filed June 10th, 2024, that informed Class Members, including Health Insurers, of the Settlement Approval Hearing.

“Notice Plan for Notice of Settlement Approval” is the means used for giving the Notice of Settlement Approval, attached hereto as Schedule “B”.

“Opt-Out Form” means the form approved by the Court as Schedule 2 to the Order (Certification Notice), pronounced February 8th, 2024 and filed February 9th, 2024.

“Parties” means the Representative Plaintiff and the Defendants.

“Qualifying Congenital Malformations” as defined include only the following structural congenital malformations (birth defects):

  1. anencephaly;
  2. spina bifida;
  3. encephalocele;
  4. craniosynostosis;
  5. cleft lip;
  6. cleft palate;
  7. structural cardiovascular defects;
  8. diaphragmatic hernia;
  9. gastroschisis;
  10. omphalocele;
  11. hypospadias;
  12. undescended testes; and
  13. club foot.

“Released Claims” means any and all claims, demands, actions, suits, causes of action, whether class, individual, or otherwise in nature, whether personal or subrogated, whenever incurred for liabilities of any nature whatsoever, including without limitation claims, demands, actions, suits or causes of action for personal injuries, general damages, special damages, punitive damages, interest, costs, expenses, penalties, and lawyers’ fees, whether such claims, demands, actions, suits or causes of action are known or unknown, suspected or unsuspected, arise in law, under statute or in equity, that the Plaintiffs, the Releasors, Class Members, or any of them, whether directly, indirectly, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or may have relating directly or indirectly, to the production, manufacture, design, sale, marketing, advertising, sale, possession, handling, ingestion, exposure, or use of Paxil® or Paxil CR™ as they relate to the conduct of the proceedings or in any other manner whatsoever to the Allegations.

“Releasees” means, jointly and severally, the Defendants, GlaxoSmithKline Inc., GlaxoSmithKline LLC, and GlaxoSmithKline PLC, and their respective present and former parents, subsidiaries, affiliates, officers, directors, employees, insurers, agents, attorneys, servants, representatives, and the successors, predecessors, heirs, executors, administrators, trustees, and assigns of each of the foregoing as well as anyone involved in the distribution, prescription or dispensation of Paxil® or Paxil CR™ to the Class Member and it is agreed that to the extent that a Releasee is not a Party to the Settlement Agreement all such releases are intended third party beneficiaries of the Settlement Agreement.

“Releasors” means, jointly and severally, individually and collectively, the Plaintiffs, Class Members (excluding provincial and territorial governments who paid health care costs), and their respective successors, heirs, executors, insurers, benefits providers, administrators, trustees, and assigns.

“Representative Plaintiff” means Fiona Singh.

“Settlement Agreement” means this agreement, as executed by Class Counsel, Former Class Counsel and counsel for the Defendants on behalf of, respectively, the Representative Plaintiff and the Defendants, and by the Health Authorities.

“Settlement Approval Hearing” means the hearing at the Court to approve the dismissal of the Class Proceeding, the settlement, and the terms of this Settlement Agreement (including its Schedules).

“Settlement Approval Order” means the Order of the Court approving the dismissal of the Action, the settlement, and the terms of this Settlement Agreement, which shall be substantially in the form attached as Schedule “C”.

“Settlement Fund” means CDN $7,500,000, and for greater clarity, will be the maximum amount paid by the Defendants in any and all circumstances, as described herein.

“Trilogy Invoices” means the invoices delivered by Trilogy Class Action Services from time to time for services rendered as the Notice Provider and Claims Administrator in the implementation of this Settlement Agreement, including for services already provided respecting the Notice of Certification and the Notice of Settlement Approval Hearing.