Class Action (Center) 56624-02-25 Gal Barir v. Victory Supermarkets Chain Ltd.

Judgment

Motion to Dismiss a motion to certify a class action in limine.
In the background of the proceeding is a class action that was filed against Victory Supermarkets in a tax appeal (hereinafter: "Victory") M.  Yochananoff & Sons (1998) in a tax appeal (hereinafter: "Yochananof") and Sofer Barkat Retail in a Tax Appeal (hereinafter: "Super Barkat") (all three together hereinafter: "Respondents") and functionaries therein, for being ostensibly a party to restrictive arrangements.

The motion to certify the class action

1. In the framework of the motion to certify a class action, it was claimed that the respondents, large food retail chains, entered into restrictive arrangements with each other that were intended to harm competition and bring about an increase in prices in their chains, as well as in competing chains. These arrangements included, inter alia, price adjustment, cancellation of promotions and profit adjustment (hereinafter: the "Restrictive Arrangements").
2. The Applicant based his application on the very filing of an indictment by the Competition Authority against the Respondents, in connection with the restrictive arrangements.
3. According to the Applicant, the very filing of the indictment is sufficient to constitute the prima facie evidentiary basis required for the filing of a class action.

The Motion for Summary Disposal

4. Respondents 3-5, Yochananoff and its officers (hereinafter: "Respondents 3-5") filed a motion to dismiss in limine the motion to certify the class action, insofar as it relates to them, and alternatively, to order that the hearing on the motion for certification be split, in the most efficient and fair manner, as the court deems appropriate.
5. According to respondents 3-5, the motion to certify the class action relies entirely and exclusively on the indictment, which in itself does not constitute admissible evidence in the civil proceeding, and beyond that, not a single additional piece of evidence was attached to support the applicants' claims.
6. It was further argued that in the absence of any additional evidence, the Applicant filed the motion for certification as a whole, even though the indictment allegedly includes six separate factual affairs, different from each other, which relate to different corporations and different periods. As a result, the vast majority of the motion for certiorari ostensibly deals with five different affairs, to which the respondents have nothing to do with them, while the portion attributed to the respondents is very limited.
7. According to respondents 3-5, their binding in a single action with the other respondents is inconsistent with the requirements of section 8 of the Class Actions Law, 5766-2006 (hereinafter: "the Law" or the "Class Actions Law") regarding the existence of substantive questions of fact or law that are common to all members of the class. In fact, we are dealing with a number of different requests that have been artificially grouped together, and each of them has different circumstances that require individual clarification.  The filing of the claim and the motion, as they were filed, is likely to harm the efficiency of the proceedings, burden the respondents and force them to defend themselves in a complex and complex proceeding.  In addition, it was claimed that the potential group of respondents is also different and separate in relation to each of the charges.
8. Respondents 3-5 further argued that the application should also be dismissed in limine for non-payment of a fee lawfully, when a fee was paid in respect of a single application, instead of paying the required fee for filing a number of separate applications for approval, in separate proceedings, as should have been done.

The Ottoman Settlement [Old Version] 1916The Applicant's Response

9. 12-34-56-78 Chekhov v. State of Israel, P.D.  51 (2)As part of the response, it was argued that, as a rule, there is no room to discuss a motion for summary dismissal, separately from the hearing of the motion for approval on its merits, except in exceptional and extreme cases, in which it is clear that there is nothing in the application - and this is not the case in our case.
10. On the merits of the matter, it was argued that the basis of the claim is common factual and legal questions, including the involvement of the respondents in restrictive arrangements that led to an increase in prices in the retail chains, as detailed in the action.
11. The decision to bind all the respondents to a single claim was based on considerations of efficiency and the prevention of contradictory decisions. This is inter alia, where all of the restrictive arrangements that are the subject of the lawsuit were carried out against the background of common characteristics of the retail market in Israel, and it is not possible to discuss each of them separately, without addressing these characteristics.  Victory's respondents are a party to each of the restrictive arrangements that are the subject of the action, and this is also sufficient to prevent the splitting of the claim.  In addition, each of the restrictive arrangements that are the subject of the lawsuit is part of a prohibited set of coordination, which is intended to harm competition and bring about an increase in prices, and the fact that each of them relates to a different product does not prevent them from being treated as a whole while examining their aggregate harm.  These arguments are reinforced where the state itself chose to bind all the affairs that are the subject of the prosecution into a single indictment.
12. The Applicants further argued that where the claim that they should have split the claim into a number of separate claims should be dismissed, in any case the claim regarding underpayment of the fee also falls, and in any event, the question of whether it is a single act or a series of acts is a complex question that must be decided on the basis of the factual and legal basis that will be laid out in the framework of the examination of the proceeding on its merits.
13. With regard to the argument that it is not possible to file a motion to certify a class action based solely on an indictment, the respondents referred to a case law in which, according to them, a class action was approved, based solely on an indictment and an opinion.

Response to the answer

14. Respondents 3-5 submitted a response to the reply, in which they reiterated that the claim relates to a number of separate affairs that are unrelated, have no common legal or factual questions, cannot be defined as an 'ongoing violation of competition law', and there is no procedural efficiency in managing them together.
15. In addition, they wished to note and emphasize that a motion to certify a class action was never approved on the basis of an indictment alone, including in the framework of the proceeding to which the applicant referred.

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