In my opinion, the answer to this question is negative.
- I will preface by noting that as long as respondents 3-5 have not been convicted, they have a 'presumption of innocence', and they cannot be seen as having indeed entered into restrictive arrangements.
- Moreover, Section 42A(a) of the Evidence Act (New Version), 5731-1971 (hereinafter: "the Evidence Ordinance") states that "the findings and conclusions of a final judgment in a criminal trial, which convicts the defendant, will be admissible in a civil trial as prima facie evidence of whether the convict or his successor or a person whose responsibility derives from the responsibility of the convict, including the person who is liable for the judgment, is a litigant in civil law."
This section indicates that only a final judgment convicting the defendant can be used as prima facie evidence in a civil proceeding in which the convicted person or his successor is a litigant, and in the filing of an indictment, it is not enough.
- It is not superfluous to note that the applicant was not exposed to the investigative materials that served as the basis for the filing of the indictment, and in any case did not present them, and therefore what is stated in the application is prima facie 'hearsay testimony'.
- I will add and note that in accordance with Section 43(a)(1) of the Economic Competition Law, 5748-1988 (hereinafter: the "Competition Law"), the Commissioner of Competition has the administrative authority to determine the existence of a business limitation, as defined in Section 1 of the Economic Competition Law.
- Although this is a determination of a quasi-judicial nature, it does not prevent the authority that gave it (the Commissioner) from re-examining it, canceling it, amending or changing it, and the court is also authorized to do so. In addition, the Director-General's own determination does not constitute a conviction or imposition of liability (see section 43(d) of the Economic Competition Law, as well as High Court of Justice 326/96 Caspi et al. Antitrust Commissioner et al. [Nevo] (December 2, 1996)).
- It should be noted that the Applicant himself hardly addressed this significant issue in the framework of his reply, except for 3 lines in the chapter on misdeeds, and it seems that for good reason.
- It was not identified by the rulings of the Honorable Supreme Court on the aforementioned issue, and the parties did not refer to such rulings, but it appears from the rulings of the district courts that they found that the very filing of an indictment was not recognized as reliable evidence in a civil proceeding.
- Thus, for example, in Class Action (Nazareth) 33846-01-16 Grand Forum Insurance Agency 2001 in Tax Appeal v. Israel Police [Nevo] (March 7, 2017), the court ordered the summary deletion of the motion to certify a class action, while ruling that there is no room to discuss the question of the legality of traffic fines imposed on a defendant in the framework of a class action proceeding before final determinations regarding the invalidity of fines have been made in the Traffic Court.
- In Miscellaneous Applications Civil (Tel Aviv) 12571/09 Keshet Broadcasting in a Tax Appeal v. David (Dudu) Goldenberg Topaz [Nevo] (July 20, 2009), the court ruled that the very filing of an indictment cannot be regarded as prima facie reliable evidence for the purpose of granting interim relief in a civil proceeding, and the court further ruled that if additional evidence is presented, alongside the indictment, these two can, in certain circumstances, constitute the prima facie fabric of evidence necessary for the purpose of granting the order.
- In Class Action (Tel Aviv) 59088-09-19 Asher v. Hillel [Nevo] (October 19, 2022), to which the Applicant himself referred, the Court discussed this issue at length, noting that "... It appears that at the present time, the existing legal situation in Israeli law does not allow for the use of evidence that is part of the pending criminal proceeding and stands in parallel with the civil proceedings that are being conducted as aforesaid at that time and in the same matter, in contrast to the procedure customary in the United States."
- The court notes that in the context of economic competition law, there is a problem, where the plaintiff knows of the existence of prima facie evidence that can serve as a basis for a claim under the Competition Law, but he does not have procedural tools that would enable him to lay before the court a reasonable factual basis for proving his claim at the required level, and that this would render meaningless the legislator's intention to create effective private enforcement of the economic competition laws.
He goes on to note that: "...On the face of it, it seems that the current reality in the courts is immeasurably different from the reality that prevailed when the legislature amended Amendment 2 to the Evidence Ordinance some fifty years ago. It seems that at the present time, civil proceedings that are related to criminal proceedings are more complex, and relate, inter alia, to causes of action and damages that are different from those discussed decades ago, grounds that for the most part dealt with tort claims relating to negligence and bodily injury, and not with proceedings that developed naturally over the years with the development of the global economy, communications and commerce, and with them legislation. Against this background, the question of the relationship between criminal and civil proceedings in the context of complex economic claims whose matter is immeasurably broader than proceedings that are at the door of two parties to a negligence claim or another claim for bodily injury arises even more strongly.
However, it is impossible to ignore the significance of Sections 42A to the Evidence Ordinance and of Article 43 to the Economic Competition Law. A combined reading of these two provisions of the law clearly shows that only the determination of the Commissioner regarding a restrictive arrangement or a judgment convicting of such an offense can serve as prima facie evidence in the civil proceeding. To emphasize that in our case, there is no incriminating verdict, nor is there a determination made by the Commissioner, and therefore the indictment does not constitute prima facie evidence of its contents." (emphasis not in the original - H.S.).
- Ultimately, although in the framework of the judgment in class action (Tel Aviv) 59088-09-19 above, the motion to certify the class action was approved, it follows that, contrary to the Applicant's claim, the court's decision was not based solely on the indictment and the economic opinion, but also on additional evidence. The court notes as follows in its decision:
"... In our case, the relevant question, and I will even say that the substantive question that arose is what is the place and what is the weight in the framework of the present proceeding, of the indictment in the parallel criminal proceeding in which the same prima facie set of facts was discussed? This question is not at all simple, but it is important to note that contrary to the respondents' claim, I am under the impression that the motion for certiorari is not based solely on the indictment as the sole 'evidence'. I am of the opinion that at this stage, the Applicants were able to show a sufficiently sufficient basis that establishes a reasonable chance of deciding the material questions in favor of the class, taking into account the fact that in our case opinions were prepared by the parties dealing with the question of the alleged damage, and also taking into account the evidentiary process (which is relatively comprehensive at this stage of the application for approval) that took place in our case, during which I heard many witnesses who relate in the first person to the question of the existence or non-existence of this or that restrictive arrangement. Hence, I was under the impression, as I will detail below, that this basis is sufficient to reach the conclusion that the condition set forth in section 8(a)(1) is fulfilled in our case" (emphasis not in the original - H.S.).
- In the margins, it should be noted that conducting a civil proceeding, alongside the criminal proceeding, is liable to lead to contradictory decisions - an outcome that is not preferable, and which the legislature also sought to avoid.
- In view of my conclusions above, I find that it is not possible to certify a class action based solely on an indictment, and therefore it seems that the discussion of the other reasons for the motion is also superfluous.
However, and in the context of the above necessity and in order that my decision will not be found to be lacking, I will also briefly address the other arguments raised by the parties.