After reviewing the arguments of the parties, as well as the provisions of the law and relevant case law, I have come to the conclusion that the application should be granted. My reasons are below;
Summary Disposal - General
- In accordance with case law, dismissal of a claim in limine is an exceptional and extreme remedy, which will be granted sparingly and rarely, only when it is clear that there is no chance that the claim will be accepted, even on the assumption that the plaintiff will be able to prove everything he claims in his claim.
- All the more so when it comes to dismissal in limine of a motion to certify a class action - a preliminary proceeding in itself. In accordance with case law, such a request should be considered together with the application for approval itself, since splitting the hearing is liable to impair the effectiveness of the proceedings and lead to the complexity of the proceeding (see, for example, Civil Appeals Authority 8268/96 Reichert v. Shemesh, IsrSC 55(5) 276 (2001); Civil Appeal Authority 7667/17 Rosenzweig v. Hazan [Nevo] (December 3, 2018); Civil Appeals Authority 2094/16 El Al Israel Airlines in Tax Appeal v. Success of the Consumer Movement for the Advancement of a Fair Economic Society [Nevo] (March 30, 2016); Civil Appeal Authority 2022/07 First International Bank of Israel in Tax Appeal v. On Investments in Tax Appeal [Nevo] (August 13, 2007).
- Notwithstanding the above, there are exceptional cases that will justify the dismissal of a motion to certify a class action. Thus, for example, when it comes to a relatively simple factual or legal clarification, and when the arguments raised are sufficient to lay the groundwork under the motion to certify the class action in its entirety (see Civil Appeal Authority 8268/96 above; Civil Appeal Authority 2022/07 above; Appeal (Nazareth) 33846-01-16 Grand Forum Insurance Agency 2001 in Tax Appeal v. Israel Police [Nevo] (March 7, 2017)).
- In our case, I found that the application of respondents 3-5 should be examined separately from the application for approval, in view of the existence of a legal question that underlies the application, the clarification of which is relatively simple, and the decision thereof may make the need to clarify the application on its merits obsolete. I will elaborate;
Filing an indictment as prima facie evidence in a civil proceeding
- Section 8(a) The Class Actions Law establishes the conditions for the approval of a class action, including the existence of a reasonable possibility that the action will be decided in favor of the class.
- In order to establish a class action concerning restrictive arrangements, the existence of those arrangements must be proved, first and foremost, while meeting the usual burden of proof, which is customary in civil proceedings (tilting the balance of probability). When it comes to a class action, the case law states that the burden is even more softened, in view of the information gaps between the parties and the inherent difficulty in proving a claim of this kind (see Doug (Center) 10538-02-13 Success Association for the Promotion of a Fair Society v. El Al Israel Airlines in a Tax Appeal [Nevo] (January 19, 2020)).
- The applicant is not required to present evidence that is sufficient to prove the claim, but only such that, if proven, there is a reasonable chance that the claim will be accepted.
- In our case, there is no dispute that the claim is based, exclusively, on the fact that an indictment was filed against the respondents, due to the existence of alleged restrictive arrangements, which were exposed by the Competition Authority.
The question that arises is whether the very filing of an indictment is sufficient to serve as prima facie evidence, which is sufficient for the purpose of filing a class action.