Civil Case (Center) 14545-07-23 Philip Roitman v. Cortica Ltd. - part 2

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The plaintiff's arguments

21. In accordance with the provisions of the agreement, the plaintiff is entitled to payment of a commission if he has made acquaintance between Cortica and Tamasek, without any additional conditions.
22. Even if the receipt of the commission was contingent on the performance of additional actions, the defendants are silenced and prevented from relying on this provision, because they themselves thwarted its existence.
23. Concealing the negotiations with Temasek from the plaintiff is an independent breach of the agreement, which in itself entitles the plaintiff to a commission.
24. The plaintiff fulfilled his duty to make acquaintances between Cortica and Temasek, in the framework of meetings held between representatives of Temask and representatives of Cortica. The defendants' claim that there were other parties that helped promote the deal between Autobraines and Tamasek was not proven.
25. Autobrian is an affiliated entity of Cortica and therefore the agreement applies to it.
26. Autobrayns was founded by Cortica's decision to split into different corporations/activities, each of which works to monetize Cortica's technology in a different field, with the help of Cortica's human capital. Autobrayns has used technology in the automotive sector. The fact that the companies are "related companies" is attested to by the name of the companies, the relocation of the shareholders, the identical address, the identity of the founders, the identity of the officers, the identity of the employees, and the inclusion of the intellectual property.
27. The defendants are also silenced from claiming otherwise due to judicial estoppel and/or the confession of a litigant, since they themselves present the companies to third parties, as "related" companies.
28. The agreement was not limited in time, was not limited to a specific investment round, and was not abandoned with the passage of time.
29. The defendants violated clauses 2 and 9 of the agreement, and the plaintiff is entitled to enforce the agreement.
30. The consolidation of a significant part of Cortica's activity in a new company, while relocating its human capital, technology and ownership, and continuing to use Cortica's reputation and technology, and finally disavowing Cortica's debts on the grounds that it is a new and independent company, is a clear lack of good faith in fulfilling the agreement.
31. The defendants also enriched themselves at the plaintiff's expense, contrary to a legal right.
32. Yigal's personal liability stems from four heads: tort liability (in the tort of negligence and in the tort of causing breach of contract); unjust enrichment; Contractual liability through the duty of good faith and corporate liability on the grounds of "lifting the veil".

The defendants' arguments

33. The defendants filed separate statements of defense, through various counsel, but most of the claims made were identical in relation to all of them. Therefore, the arguments will be detailed jointly, with reference to the defendants' claims, all of them.
34. According to the defendants, the agreement was canceled and is no longer valid. Clause 13 of the agreement establishes a mechanism that allows the agreement to be terminated upon notice by one party to the other. In addition, clause 13 stipulates a "tail period" that entitles the plaintiff to payment of commission for a transaction that was executed up to 18 months after the end of the agreement.
35. After Temasek sent a waiver notice on September 2, 2014, Cortica turned to raise capital through other channels, and the agreement was terminated. Yigal reiterated the termination of the agreement on both June 28, 2015, and February 9, 2016, in the framework of e-mails in which he responded to the plaintiff's inquiries. Therefore, the agreement between the parties was finally annulled, at the latest, in 2016, with a clear notice to the plaintiff.
36. Temasek invested in Autobrians in 2021, about seven years after the expiration of the agreement and long after the "tail period" had passed. A demand for a commission for a transaction executed after the "tail period" is contrary to the provisions of the agreement.
37. Autobrayns was established as a separate company without any connection to the plaintiff and the agreement with him, in light of the demand of the automotive giants, who demanded its establishment as a separate independent company, as a condition for their investment in it.
38. It has been proven that Autobrains and Cortica differ in their conduct, holdings (neither holds even one share of the other, each with dozens of different shareholders), management, customers, business model and activity, including dozens of Autobrains patents. Therefore, Autobrians is not a company affiliated with Cortica, the agreement does not apply to it, and the claim has no cause of action and no rivalry with respect to it.
39. Even if the agreement is valid and applies to Autobrians, the plaintiff has not been able to prove that he was the effective factor in formulating the investment transaction by virtue of which he is a plaintiff, in accordance with the tests set out in the case law, which were applied even in the case of a business locating agreement.
40. The plaintiff admits that he was not involved in the transaction and claims that he learned about it from reading it in the newspaper. The plaintiff admitted that until 2019, he had not made any contact and had no conduct with any party. He also admitted that his contact with Yigal in 2019 was in the name and context of another investment company called Drake Starr and not on behalf of Temasek, which he did not mention at all.
41. The plaintiff concealed that he contacted Yigal in 2019, 2020 and 2022 and asked to work with Autobrians as a consultant, without claiming that he had any agreement by virtue of which he was entitled to a commission. In addition, the plaintiff had details about AutoBrains' previous funding rounds and the current round in which the deal with Temasek was concluded, and despite his knowledge, did not demand a commission in real time.
42. The transaction that is the subject of the agreement was a concrete investment in Cortica's online advertising business in 2014. Temasek invested in Autobrians' automotive business in 2021. The ownership relationship does not bridge the gap between the various transactions that were made in completely different fields of activity and in different periods of time.
43. The deal that the plaintiff tried to promote never progressed beyond the stage of the initial meeting. The amounts, payment terms and rates were not discussed at all and were not agreed upon.
44. The plaintiff did not take steps to formulate the transaction. Those who brought Tamasek to invest in Autobrians were other parties and not the plaintiff, led by Mr. Howie Giulianito, who received a total of $1,250,000 for the transaction. Other parties were involved in formulating the deal, including leading international banks, and they also received handsome commissions.
45. The transaction in 2021 did not rely in any way on the plaintiff. The parties that the plaintiff presented to Cortica in 2014 rejected the investment offer in Cortica at a preliminary stage, and the plaintiff has no claim that any of the parties mentioned in Tamasek were involved in the 2021 transaction. The same parties who were in contact with the plaintiff did not work at Tamasek for years prior to the investment transaction, with the exception of one who also left shortly after the investment transaction and was not involved in it at all.  Negotiations in 2021 began from scratch with completely different parties at Tamasek, which is a huge investment body.
46. There was no need to report the transaction to the plaintiff in 2021 because the negotiations took place with another entity, in connection with another transaction and through another intermediary.
47. The plaintiff is not entitled to payment even from a moral point of view. Apart from traveling to New York at Cortica's expense, the plaintiff invested almost nothing in his attempt to connect Tamasek and Cortica.
48. The opinion submitted by the plaintiff has no value. The issues in dispute do not require expertise; The person giving the opinion notes his acquaintance with the plaintiff. The opinion does not have the power to assist the plaintiff, where he did not first present evidence of meeting the burden of proving that he was the effective factor in the transaction.
49. The plaintiff has no personal cause of action against Yigal. Yigal is not a party to the agreement with the plaintiff and has no obligation to him. The existence of exceptional circumstances that allow the veil to be lifted against Yigal has not been proven.

The Evidence

50. The plaintiff testified only on behalf of the plaintiff.
51. In addition, an expert opinion was submitted by the plaintiff - Mr. Asael Karfil, whose cross-examination was waived by the defendants. It should be noted that since the disputes between the parties are factual and legal disputes that do not require special expertise, the opinion does not add a real contribution to the clarification of the dispute, and its evidentiary weight is low.
52. On behalf of the defendants, Asher and Yigal testified.
53. The reference to the transcript of the evidentiary hearing of April 28, 2025 will be made to the scanned transcript in the file and not to the transcription provided to the parties by the transcription company, which some of the parties used despite my decisions of July 7, 2025 and July 14, 2025.

Discussion and Decision

54. The plaintiff claims that he is entitled to a commission by virtue of the agreement, which is a locating agreement, in which Cortica (and its affiliated companies) undertook to pay him a commission for a financial investment made by Temasek in Cortica, or in any other company related to it, if he made an acquaintance between Cortica and Temasek, without any additional conditions.
55. In accordance with the case law, the claimant to be entitled to brokerage fees must prove two cumulative conditions: (a) that a brokerage contract was entered into between him and one or both of the parties to the transaction. (b) that he was the effective factor in entering into the transaction (Civil Appeal 2144/91 Moskowitz v. Beer as the executor of the estate of the late Tuvia Beer, IsrSC 48 (3) 116, 122-123 (hereinafter: "the Moskowitz case")).
56. Although the conditions of the effective factor are enshrined in the Real Estate Brokers Law, 5756-1996, which is not relevant to our case, as it relates to business brokerage, the case law has determined that even in the field of business brokerage, despite the inherent differences between this field and real estate brokerage, and the changes and adjustments necessitated by these differences, it is necessary to prove the existence of an effective factor in the transaction as a condition for eligibility to pay brokerage fees. Thus, according to Justice Hayut, Other Municipality Applications 5876/06 Vertical Integration in a Tax Appeal v. Rada Electronics Industries in a Tax Appeal (Nevo, February 4, 2009) in paragraph 17:

"...  The activity of business brokers may indeed differ in nature and requirements from the activity of real estate brokers whose matter is regulated in the Real Estate Brokers Law, 5756-1996 (hereinafter: the Real Estate Brokers Law).  This possible difference is derived from the inherent difference that exists between business contracts with all the wide and complex variety included in this type of contract, and real estate contracts (which in themselves are also many and varied, and include, in addition to simple rental transactions, complex and expensive real estate transactions).  Thus, for example, without underestimating the value of a person, it is difficult to compare the skills, abilities and resources required of a broker in an international transaction for the sale of defense equipment with the skills, abilities and resources required of a broker in a transaction for the sale of land from its owner to a building contractor.  Therefore, there is a degree of justice in the appellant's argument that it is appropriate to draw appropriate distinctions between the various types of brokerage, and as a result, there may also be distinctions as to the conditions relating to the broker-client relationship in the business field.  At the same time, it seems to me that it is possible, as a rule, to apply to all types of brokerage (with the exception of real estate brokerage to which the Real Estate Brokers Law currently applies) a general framework outline, according to which a realtor is required to prove the fulfillment of two main conditions in his claim for brokerage fees: (a) the existence of a brokerage agreement, explicit or implied, and (b) the fact that he is the effective factor in entering into the transaction...".