"Parallel to the solution that section [198A, R.R.] For those potential plaintiffs who wish to sue infringing defendants, the section may also be used by other plaintiffs, who file claims against defendants who have not violated the provisions of the law (whether for reasons of extortion or for other reasons). It is clear that such motions, filed against defendants who do not infringe, are problematic because they impose risk and expenses on those who acted lawfully. Such expenses are undesirable, neither from the perspective of the defendants nor from the perspective of the company as a whole."
- Although the requirement for the existence of a preliminary evidentiary basis is, as stated, a limited requirement, its existence is intended to prevent potential applicants from misusing the derivative claim process in general and the document discovery process in particular. This requirement constitutes an obstacle that the applicant must overcome, and it is of particular importance in a request for disclosure that is filed, as in the present case, before filing an application to certify a derivative claim (see The Yifat Matter, In paragraph 16; The Gazit-Globe Matter In paragraph 7; LCA 6122/14 Bank Hapoalim Ltd. v. Nesher [Published in Nevo] (6.5.2015).
Therefore, when discussing requests for disclosure of documents under section 198a, care must be taken that only requests in which the applicant has met the required evidentiary threshold will be accepted, while other requests – which are not even based on the low level required by the procedure under section 198A of the Companies Law – will be rejected.
In light of the above, the circumstances of the case at hand will be examined below.
Did the applicant meet the required evidentiary threshold?
- The application for approval is based on the Applicant's claim that Bezeq's officers are responsible for the damage caused to it as a result of the imposition of the financial sanction. The fact that a financial sanction was imposed on Bezeq is not in dispute, and Bezeq does not deny that at the end of the supervision process, it was determined that it violated the provisions of the service portfolio that apply to it. The dispute between the parties therefore relates to the question of whether the Applicant presented an evidentiary basis at the level required at this stage of the hearing, for the existence of a cause of action by Bezeq against the officers in connection with the damage caused by the financial sanction.
- In general, when a company is liable for legal liability, including when it is subject to a financial sanction for its action, this naturally stems from the actions, acts and intentions of human beings acting in the name and for the company, and whose actions and intentions are attributed to it (see also the Article 47 to the Companies Law, which states that the actions and intentions of the organ are the actions and intentions of the company). The company itself, which has an artificial legal personality, cannot carry out actions on its own, and of course it has no intentions and desires.
According to the theory of organs, although the liability is imposed on the company as a result of the acts or omissions of the organ, it is generally not possible to impose personal liability on an organ towards third parties just because such liability has been imposed on the company. The general rule is that the company – as an independent legal entity – is the one that bears responsibility for the actions of the organ when these actions created legal liability for it (see also Irit Haviv-Segal , Corporate Law , vol. 1, p. 139 (2007)).
- However, the aforementioned relates to the liability of the company and the possible liability of the organs towards third parties. The present application, on the other hand, relates to a different issue: the possible liability of the organs of the company for whose actions it was held liable (at the administrative or criminal level); Towards the company itself. The question of the liability of the company's organs for the damage caused to it as a result of their actions may Wake up on the civil level as well – for example, when the company breaches a contract and is obligated to pay compensation. However, the question of the liability of officers in connection with civil damages that it is required to pay deviates from the discussion that is the subject of the application at hand, and therefore there is no room to elaborate on it.
- In my opinion, and as will be detailed below, a violation Intentional of the law by an officer, as a result of which it was determined that the company violated the provisions of the law (on the administrative or criminal level*), may establish for the company against the officer Cause of action for violation The duty of care or breach Duty of Loyalty his towards her.
- The duty of care - Companies Law Requires the officers of the company to act for the benefit of the company while complying with the duty of care and the duty of fiduciary duty imposed on them. The duty of care is fixed Sections 252 And-253 to the Companies Law, which applies to an officer the general duty of care by virtue of The Torts Ordinance [New Version] (Hereinafter: "The Torts Ordinance"), while determining (Sec. 253) Because the officer "will act at the level of skill at which a reasonable officer would have acted, in the same position and under the same circumstances".
Officers were subject to the law of negligence many years before the explicit enshrinment of the duty in the Companies Law (see, for example, CA 333/59 Rotlevy v. Barshai, IsrSC 14 1156, 1160 (1960); CA 817/79 Kosui v. Y.L. Bank Feuchtwanger Ltd., IsrSC 38(3) 253, 278 (1984)). The rule held that by virtue of the officer's duty of care, he is obligated to take reasonable precautions in order to prevent damage to the company (see CA 610/94 Buchbinder v. Official Receiver in his capacity as liquidator of the Bank of North America, IsrSC 57(4) 289, 310-311 (2003)). The officer is no different from other potential wrongdoers, in the sense that his behavior is objectively examined taking into account the circumstances of the case. At the same time, the determining test regarding the officer's action is the test of the "reasonable officer", as opposed to the test of the "reasonable person" (see also Y. Gross, Directors and Officers in the Era of Corporate Governance 177 (2nd ed., 2011)).