The requirement to hold an in-depth hearing and to prove prima facie the causes of action already at the stage of certifying the class action was not merely determined, but was intended to bring about an intelligent use of the class instrument (Civil Appeal Authority 3489/09 Migdal Insurance Company in a Tax Appeal v. Expected Metals Emek Zevulun Ltd., paragraph 41 of the opinion of Judge D. Barak-Erez (April 11, 2013), hereinafter: the Migdal case). In this context, on the one hand, care must be taken against setting too high a barrier to certifying a class action, in order not to chill the incentives for filing proper class actions (the words of Justice T. Strasberg-Cohen in Civil Appeal 2967/95 Magen and Keshet in a Tax Appeal v. Tempo Beer Industries Ltd., IsrSC 51(2) 312, 329-330 (1997)); On the other hand, the approval stage is intended to "filter" those claims that are not suitable to be turned out to be class actions, as well as to prevent misuse of the class mechanism. In this context, the words of Justice Y. Danziger in the Migdal case are appropriate:
"It is precise, in my opinion, appropriate to prevent situations in which anyone who wishes to conduct a class action can do so even without having fulfilled his duty to establish the cause of action with prima facie evidence. Relief beyond what is required with regard to the evidentiary threshold that the class plaintiff must meet is liable to entail results that have undesirable systemic consequences, both on the legal system and on the economy and on commercial and economic life. Therefore, the courts must ensure that only a claim that has been laid on a prima facie evidentiary basis to establish its cause of action will be allowed to be conducted as a class action in the framework of the main proceeding."
It should be emphasized that the conditions for certifying a class action set forth in section 8(a) of the Class Actions Law, including the requirement to prove prima facie the cause of action claimed, apply uniformly to any motion to certify a class action – regardless of the nature of the cause of action on which the class action is based, or the degree of complexity or novelty of the issues that arise in the proceeding (compare: Shaham case, paragraph 29). In the meantime, according to the Reiss case, the requirement to prove prima facie of the alleged cause of action also applies explicitly in relation to the cause of excessive price, despite the complexity of this cause of action (ibid., at pp. 710 and 716). This was also expressed in Civil Appeal Authority 729/04 State of Israel v. Line of Thought in a Tax Appeal (April 26, 2010), which also revolved around a cause of action by virtue of section 29A of the Competition Law....(ibid., paragraph 49)
- This is how other municipal applications were ruled 7928/12 R.M. Technologies in Tax Appeal v. Partner Communications in Tax Appeal et al. (published in Nevo, January 22, 2015) that:
The rule is that the applicant for approval of a class action is required to present a prima facie basis that is examined according to rules according to which it is not possible to suffice with the facts alleged in the statement of claim, but rather to present in the prima facie arguments and evidence a real basis – factual and legal – that supports the claim (Civil Appeal 5378/11 Arthur Frank v. Allsale, paragraph 3 of the judgment of Judge Hayut (September 22, 2014)) (hereinafter: the Allsale case). It was also held that the court was required to "go into the thick of the matter and examine the claim on its merits, whether it reveals good cause and if there is a reasonable chance of a decision in favor of the plaintiffs", in order to be convinced that there is a reasonable possibility that the legal questions will be decided in favor of the class (Civil Appeal 6343/95 Avner Oil and Gas in Tax Appeal v. Eban, IsrSC 35(1) 115, 118 (1999)). All of this, in accordance with the conditions set forth in sections 3, 4 and 8 of the Class Actions Law, 5766-2006 (hereinafter: the Law), which the class members are required to prove (ibid., paragraph 23).
- Similarly, Civil Appeal 3489/09 Migdal Insurance Company v. Emek Zevulun Metal Coating Company (published in Nevo, April 11, 2013) ruled that:
The purpose of this preliminary stage is to prevent the approval of frivolous claims, without deterring plaintiffs from filing just class actions. In the case law of this court, it was held that a person who wishes to certify a class action must convince the court with the appropriate degree of reasonableness – and not only according to what is stated in the statement of claim – that he meets all the conditions for certifying a class action, including the requirement for a personal cause of action (see: Magen and Keshet, at pp. 326-330; Reichert, at pp. 291-293; Civil Appeal 1509/04 Danosh v. Chrysler Corporation (November 22, 2007), paragraphs 12-14; Civil Appeal 458/06 Stendel v. Bezeq International inTax Appeal [published in Nevo] (May 6, 2009)). The tests for the approval of a class action are stricter than those according to which a motion for summary dismissal of an ordinary action is examined. The class plaintiff must provide the court with a legal and evidentiary basis that ostensibly supports his claim. Unlike the plaintiff in a regular lawsuit, a person who wishes to certify a class action cannot be satisfied with the facts alleged in the statement of claim, but he is obligated to prove them in a prima facie manner. If necessary, the applicant should support his claims with affidavits and the relevant documents. The court hearing the application is required to go into the thick of the matter and carefully examine – legally and factually – whether the conditions for certifying the class action are met (Magen and Keshet, at p. 328; Reichert, at pp. 291-292). These tests were not determined in isolation, but were intended to bring about an intelligent use of the class action tool, in view of its decisive impact on the defendants and their business conduct, as explained above (ibid., paragraph 41).
- It was not substantially and in detail claimed by the Applicants in the application for approval, in their affidavits, or by the experts on their behalf, as well as in their summaries, that there was difficulty in locating evidence. Taking into account the material brought before me by the experts (mainly on behalf of the respondents) and their argument in court, it appears that it was possible to locate (open) evidence in simple information collection procedures, and this is mainly the case with monitoring reports by the Ministry of Environmental Protection and various reports issued by this Ministry and the Ministry of Health, regarding the air quality in Haifa Bay (see and compare to: Civil Appeals Authority 979/13 Landmark Group in Tax Appeal v. Harel Pia Mutual Funds (published in Nevo, 6.15); Class Action (Haifa) 35983-12-20 HaGalili v. Chevron Mediterranean Ltd. (published in Nevo, February 7, 2024), section 43 (hereinafter: "Chevron Affair"); Alon Clement and Ruth Ronen, "Examination of the cause of action and its chances at the stage of approving the class action", Iyunei Mishpat 42 66 (2019)). See, for example, in this regard: also the documents and data that were attached to Kantor's affidavit, to the expert opinion on behalf of the Respondents, and to those that were attached to the Applicants' response.
- In our case, taking into account the extensive range of witnesses, experts, evidence and exhibits brought by the parties and the scope of the written summaries, it seems that there is no choice but to "get into the thick of the matter" factual and legal, and to conduct an informed and serious examination of whether the Applicants have been able to meet all the conditions required for the certification of the class action.
Publications in the press, on websites, etc. - are they admissible evidence?
- At the outset of the decision, I will address the evidentiary validity of various types of press clippings, which were attached to the motion for approval, the reply, the opinion and the affidavit of Kantor.
- A year ago, the Supreme Court ruled many years ago in other municipal motions 114/64 Case v. Krinitsi, IsrSC 18(4) 378, inter alia that:
I would like to emphasize in this context that if a newspaper attributes, in an article or in an article or in an advertisement, a certain speech to a certain person, there is not the slightest proof, even prima facie, that the same speech did indeed come from that person. The newspaper, when submitted as evidence, may be used against the owner or editor or printer of the newspaper, or for the purposes of the provisions of section 21(b) and section 22 of the Civil Torts Ordinance , 1944, or for the purpose of proving that the publication in question was distributed to the public, or perhaps for other legitimate purposes of the like; but the newspaper is not a valid evidence to prove the truth of what is stated therein. I have not come to innovate in this matter (ibid., pp. 387a-b).
- This was also determined by the Authority of Civil Appeal 8562/06 Popik v. Pazgas 1993 (published in Nevo, April 15, 2007) in this context, inter alia:
The phenomenon of motions to certify a class action that are filed without a proper evidentiary basis, such as motions filed on the basis of a newspaper article and nothing more (see and compare, High Court of Justice 2148/94 Gelbert v. President of the Supreme Court, IsrSC 48(3) 573, 600). Attempts to cast content into hollow motions to certify a class action should not be permitted during the approval process. Therefore, as a rule, it is not permissible to submit evidence that could, with due diligence, be submitted together with the motion to certify a class action (ibid., paragraph 8).
- Class Action (Economic) 43013-08-15 Yossi Reich v. Bank Hapoalim; Class Action 11305-01-16 Primac v. First International Bank of Israel in a Tax Appeal (published in Nevo, May 26, 2019), it was ruled regarding the admissibility of newspaper articles in class actions, inter alia that:
As a rule, newspaper articles are inadmissible under Israeli law. The status of the articles in Israeli law is as evidenced by hearsay, where they are not accompanied by an affidavit on behalf of the author of the article, and therefore cannot be admissible, except in special cases [...]