Therefore, we are of the opinion that the appellants are plaintiffs for appropriate representations to manage the claim.
- As to the conduct of the proceeding, during the hearing before us, we noted to the appellants' counsel about mistakes that had been made, in our impression, in the conduct of the proceeding so far. It is evident that these errors made it difficult for the trial court to conduct the hearing in a simple and quick manner, and even led it, as will be recalled, to the conclusion that the motion to certify the class action should be rejected. Counsel for the appellants did indeed demonstrate great proficiency in the extensive material that was before her. However, the overcrowding of the issues and the mixing of causes made it difficult to sort out the main and relevant ones. Therefore, in order to manage the claim in an appropriate and efficient manner, we consider making use of the authority granted to us In Section 8(c)(1) to give instructions regarding the representation and management of the interests of the class members, and to order the addition of a representative with experience in conducting such a proceeding to the ranks of the appellants' counsel.
Towards the end
- After writing these words, I read the comments of my colleague the Vice President, A. Rivlin. My colleague is of the opinion that the conduct of a class proceeding should also be approved in relation to the grounds for breach of duty of care and duty of fiduciary duty in accordance with the Sections 96-9628 to the command. In the circumstances of the case, in view of the artificiality of the attempt to disconnect between the discriminatory behavior and the breach of the duties of trust and care of the officers, I saw fit to join his position. However, it should be remembered that the approval of a class proceeding in these causes of action raises additional questions that must be considered. This is in view of the fact that a class action may only be filed on the personal causes of action of the shareholders, and not for wrongs committed against the company. As a rule, the duty of loyalty and the duty of care of the officers are towards the company itself, and not towards the shareholders, and accordingly their breach will give rise to a derivative claim and not to a personal claim. At the same time, the mentioned clauses (as well as Sections 252(b) and254(b) 30Companies Law Today) do not rule out the existence of a parallel obligation towards "another person", including a specific shareholder or group of shareholders. However, the circumstances in which such a duty arose towards shareholders have not yet been fully defined in case law (see, Civil Appeal 741/01 Meir Kot v. Estate of Yeshayahu Eitan z"l, Piskei Din 57(4) 171 (2003); עניין Makhteshim-Basin, paragraph 3). In the circumstances of the present case, due to the reasons I enumerated in paragraph 39 of my opinion, I am of the opinion that a class action can be approved for breach of duty of care and duty of fiduciary, and therefore I concur with the opinion of my colleague.
Conclusion
- In view of all that has been said above, the appeal is therefore accepted. The motion to certify the class action is hereby granted using the authority granted to us In section 13 30Class Actions Law Approve a class action with changes, and the authority granted to us In section 10(c) The Class Actions Law defines a subclass if it is found that questions of fact or law arise regarding some of the class members, which are not common to all the class members. We have also seen the use of the permanent authority In Section 8(c)(1) to give instructions for the purpose of ensuring the representation and management of the affairs of the class members in an appropriate manner, as detailed above. The proceeding is therefore returned to the District Court in order for it to be heard as a class action.
- Counsel for the appellants shall notify the District Court within 45 days of whom the appellants have chosen to join it as representative counsel, and shall also notify each of the appellants if, taking into account his holdings in the shares of Elsynt on the relevant dates of the suit, he is suitable to serve as a class plaintiff for one or both of the groups. After receiving the notice, the District Court will draft, based on the determinations in our judgment, a detailed notice to the Director of Courts for registration in the Class Actions Register (as required In section 14(b) to the law). As noted above, the groups in whose name the class action will be conducted are those who held Elsynt shares prior to February 25, 1999 (the date of signing and reporting the agreement for the sale of control), excluding the respondents, and those who held Elsynt shares prior to September 9, 1999 (the date of signing and reporting of the hotel and marina transactions), excluding the respondents. It should be noted that the date of the sale of the shares by each shareholder is not relevant to the question of his belonging to the group represented in the proceeding (see paragraph 43 above). However, it may be important when assessing the extent of the damage caused. The causes of action that the class action will deal with are the discrimination of the minority shareholders of Alcinet in the following ways: the sale of corrupt control and the engagement of transactions that are tainted by the controlling shareholder's personal interest, while avoiding the distribution of a dividend. In addition, the lawsuit will examine the claim that the officers of Elcinet violated the duty of fiduciary duty and the duty of care imposed on them by their conduct. The remedy claimed in the action is monetary compensation for the damages caused, according to the claim, to the appellants and the other members of the groups. After drafting the notice, the District Court will give the parties instructions regarding the publication of notices to the members of the groups in accordance with theSection 25(a)(1) to the law. The charge of expenses imposed on the appellants in the trial court is void, and the respondent groups will bear the appellants' expenses and their attorneys' fees in the sum of ILS 50,000 each.
The President (Ret.)