Civil Case (Center) 14545-07-23 Philip Roitman v. Cortica Ltd. - part 5

Asher - as CFO during a certain period of time for both of them at the same time (see: Asher's testimony at p.  106 of the transcript of questions 1-5 and at p.  110 of questions 16-20).  He confirmed in his testimony that he had moved to Autobrains without applying for the position and without undergoing an interview (see: p.  106 of the transcript of Q.  6-21), a fact that testifies to the close relationship between the two companies.

1. The identity of the employees - In their testimony, Yigal and Asher admitted that all the first ten employees of Autobrians, had previously worked at Cortica (Yigal at p. 148 of the transcript of Q.  29-30 and at p.  149, Q.  2-7, and Asher at p.  110, S.  22, S.  30 and P.  111, S.  1-10).

• Mixing of Intellectual Property Assets - As stated above, Yigal and Asher confirmed that Autobrines "sprouted" out of Cortica and that there is a circulation between the companies in terms of intellectual property to this day. The fact that Cortica dealt in the field of advertising and Autobrines in the automotive field, and they have separate customers, does not indicate the absence of a connection between the companies, since Autobrains is in fact the application of Cortica's technology in the automotive field, and as emerged from the totality of the evidence, without that technology, it has no product.

92. In light of the above, Autobrain is an "affliated entity" and as such the agreement applies to it as well.

Was the plaintiff the effective factor in entering into the transaction?

93. According to the agreement, the plaintiff is entitled to a commission if he made an acquaintance between Cortica (and related companies) and Temasek (clause 2 of the agreement).
94. In addition, in accordance with the provisions of clause 9 of the agreement, Cortica is entitled to negotiate directly with the potential investor introduced to it by the plaintiff, without the plaintiff's involvement, but this does not deprive the plaintiff of his entitlement to the commission, insofar as a deal is formulated with that investor.
95. Relying on these clauses, as well as on the expert opinion who also notes that there is no obligation for the "locator" to be an active party in the relationship with the parties after the initial acquaintance, the plaintiff claims that he fulfilled his duty in the agreement by making an acquaintance between Cortica and Temasek, and therefore he is entitled to a commission.
96. However, according to the case law, it is not enough for the plaintiff to prove that there is only factual causation between his actions and the agreement that was concluded at the end of the day. The plaintiff must prove that he was the "effective factor" in the transaction, i.e., that his actions were the ones that enabled and led to the conclusion of the transaction. According to the Supreme Court in the Moskowitz case:

"The requirement of the case law is, as stated, that the action of the mediator will be the effective factor in the contractual engagement.  The test is a test of causality.  The realtor does not fulfill his duty by proving factual causation.  It is not enough that the mediator is a certain factor in the causal chain, in the sense of a cause-without-non-cause.  The demand is for the entity that is the most effective."

97. Other Municipality Applications 2708/14 Israeli v. Aharoni, paragraph 8 of the judgment (Nevo, December 6, 2015), the court ruled that with respect to the question of whether the realtor was an effective factor that:

"This question derives from the totality of the circumstances of the transaction.  When we are dealing with a simple brokerage transaction, in which the realtor brought the parties together and as a result a contract was concluded between them, it is easy to show that the broker was the effective factor in bringing the parties to enter into a contract.  The question arises for discussion when there is a certain gap between the brokerage activities and the agreement that was entered into - whether due to a time gap, or due to a gap between the content of the contract that was concluded and the one for which the broker brokered, or due to the involvement of other parties."

98. The need to prove that the realtor is the effective factor is inversely proportional to the quantity and quality of services provided by the realtor. When we are dealing with a broker who is a "Finder", i.e., a broker whose role is to locate potential business partners for his clients, to present, get to know and bring together the parties to the potential transaction so that they can continue the work of negotiating a contract on their own, as in our case, there is an increasing need to require supplementary tests in order to establish his entitlement to commission (for more on the definition of a finder vs. a broker, see also: Civil Appeal (Tel Aviv) 54298-11-17 Gali Naveh-Stern v.  FIMI Energy (Nevo, 29.12.2021)).
99. The case law listed an inexhaustible list of considerations in order to decide whether a particular broker was indeed the "effective factor" that led to the transaction.  In the Moskowitz case, it was held that a decision regarding the identity of the effective party will be determined according to the degree of similarity between the original offer in which the broker was involved and the final contract; the degree of closeness between the original proposal and the final contract in terms of the terms and rates of payment; the passage of time between the date of the original offer and the date of termination of the transaction; the degree of intensity of the broker's actions; the existence of another party that assisted the parties in obtaining the contract and the degree of its involvement; the payment of the brokerage fees by the other party to the transaction and their rate; the identity of the parties conducting the negotiations as indicating the preservation of the causal link; and the parties' reliance on prior knowledge of the negotiations (see also: Civil Appeal 3384/16 Mizrahi v.  Markovitz, paragraph 36 of the judgment (Nevo, July 5, 2018)).
100. In our case, the totality of the evidence shows that in 2014 there was indeed an initial contact between Cortica and Temasek through the plaintiff, however, later on, and especially during the period when Temasek's investment deal in Autobrians was promoted and concluded, the plaintiff's involvement was not at all evident.
101. The plaintiff admitted in his interrogation that from the date of Temasek's announcement in September 2014 that it was not interested in investing in Cortica at that stage (and from December 2014 at the latest, as indicated by another version of the plaintiff, which was not proven) until 2019, he was not in contact with Temasek in relation to Cortica (see: the plaintiff's testimony at p. 87 of the transcript of Q.  2-4 in relation to the period from September 2014 to June 2015; the plaintiff's testimony at p.  98 of the transcript of Q.  7-11 in relation to the period from June 2015 to February 2016 and the plaintiff's testimony at p.  32 of the transcript, paras.  3-4, p.  102, paras.  12-14 in relation to the period from February 2016 to 2019).
102. The plaintiff later admitted that his contact with Yigal in February 2019 (email message dated February 20, 2019 - Exhibit 6 of Autobrains) was also in connection with Drake Starr's investment in Autobrains, without connection to Tamasek (p. 32 of the transcript, paras.  20-21).
103. The plaintiff's claim that in 2019 he spoke with Yigal, inter alia, about the possibility that Tamasek would invest in Autobriines (paragraph 36 of the plaintiff's affidavit and p. 25 of the transcript of Q.  5-8), was not proven, and even contradicted, when the plaintiff confirmed that he did not contact Tamasek at all in 2019 in relation to Cortica or Autobrians (p.  30 of the transcript of Q.  18-19).
104. The evidence shows that even in the years preceding the transaction, from 2019 until the date of Tamasek's investment transaction in Autobrains, the plaintiff was not in contact with Tamasek in relation to Cortica and Autobrians, and was not in contact with them in relation to the investment by any investor in them (p. 37 of the transcript of Q.  21-28, p.  52, Q.  30 and P.  53 Q.  2-3).
105. The plaintiff admitted that he was not involved, in real time, in the Tamasek-Autobrains deal, was not aware of its details, and claimed that he learned about it from the newspaper (p. 38 of the transcript of Q.  8-17), even though his interrogation revealed that he knew about the fundraising round for Autobrians, that he had details about the previous rounds of fundraising for Autobrians and the current round of funding (as appears from exhibits 32 and 43 of the plaintiff's exhibits and his testimony on page 41 of the transcript of Q.  20-23) and even tried to integrate himself into working at Autobrians during those years.  without mentioning Tamasek or the agreement (as emerges, inter alia, from his testimony at p.  49 of the transcript of Q.  4-7).
106. In addition, the plaintiff's testimony indicates that the same officials at Tamasek with whom he was in contact in 2014 were not involved in the 2021 investment transaction, and in fact, most of them had completed their work at Tamasek years earlier (p. 53 of the transcript of Q.  9-13, p.  54, Q.  15-22).  According to his claim that he was in contact with other parties in Tamasek near the transaction (p.  54 of the transcript of Q.  3-5), no evidence was presented.  Had there been a Temasek official, as stated, with whom he was in contact in 2021, there would have been no impediment to the plaintiff requesting an affidavit from that party or summoning him to testify, however, as he admitted in his testimony, he chose not to do so (p.  56 of the transcript, paras.  9-14).  In addition, the plaintiff admitted that he did not present a document that was in contact with any entity in Tamasek in the years 2019 onwards (p.  58 of the transcript of Q.  28-30 and p.  59 of Q.  1-3).
107. Admittedly, the defendants' claim that other parties, headed by Howie Giulianito, made the acquaintance between Autobraines and Tamasek in 2021 was not proven, since Mr. Giulianito was not brought to testify and the claims in relation to him were not supported by sufficient evidence, while in relation to the other parties, it was proven that the commission paid to them was due to their involvement in the negotiations and not due to the acquaintance they made between Autobraines and Tamasek, however, at the end of the day, The burden of proof is on the plaintiff to prove that he created the connection that led to the transaction and thus, as stated, he failed when it was proven that in real time he had no contact with anyone from Tamasek in relation to Autobrains.
108. Added to this are other considerations that lead to the conclusion that the plaintiff was not the "effective factor" that led to the transaction, including: the passage of time between the date on which the plaintiff presented Tamasek in 2014 and the investment in 2021, andthe fact that he applied for a commission only in 2023, even though the transaction was already published in 2021 and it was proven that he knew about the fundraising round.
109. In light of the aforesaid , the plaintiff was unable to prove that he was an effective factor in concluding the transaction, and that there is a causal connection between the brief and initial acquaintance that he initiated between the parties in 2014 and Temasek's investment transaction in Autobrians in 2021.
110. In these circumstances, and since the conditions for proving his entitlement to the commission are cumulative, the plaintiff did not meet the burden imposed on him to prove his claim.
111. Even from the perspective of the plaintiff's proper remuneration and from the perspective of the law of enrichment, I did not find that the plaintiff is entitled to any monetary consideration, in light of the fact that the agreement is based on success and the plaintiff's involvement and contribution to the transaction.
112. In the meantime, since the plaintiff's claims against Cortica and Autobrians, including the allegations of breach of agreement and unlawful enrichment, are also dismissed, the personal claim against Yigal, which is based on these grounds, is also dismissed. In any event, the claims against him regarding bad faith in conducting negotiations and lifting the curtain are also rejected, while the plaintiff's claim that the defendants used Autobrines in order to evade debts was not proven and even contradicted by the defendants.

The Result

113. In light of the above, the claim is dismissed.
114. Since some of the plaintiff's arguments were accepted (although in the end they did not lead to the acceptance of his claim), I found that he should be charged with reduced expenses in the total amount of ILS 75,000 (half of them for defendant 1 and half for defendants 2+3).
115. The right to appeal to the Supreme Court as a matter of law.

Given today, 12 Nissan 5786, March 30, 2026, in the absence of the parties.