Without derogating from all of the above, it was argued that in any event, within the framework of section 25 of the Consumer Protection Law, 5741-1981 (hereinafter: the "Consumer Protection Law"), supervisory responsibility is imposed on elements in the corporation for violations committed in the corporation, and the provision of this section shifts the burden to them to prove that they did everything possible in order to prevent the violation. It was argued that this clause applies to Shabbat because he is a director, an active manager who decided to close Global and showed proficiency and involvement in its matter.
- In light of all this, it was argued that the defendants, jointly and severally, should be instructed to pay the plaintiff the sum of $1,100,760, which constitutes the sum of her total deposits in OFM , net of withdrawals, and the sum of $17,797.84 in respect of bank fees, plus linkage differentials and interest on the aforementioned amounts from the date of the cause of action - which can be determined on November 1, 2015 (the middle of the deposit periods). It was also claimed that the plaintiff is entitled to punitive damages. Finally, it was argued that the plaintiff should be awarded a fee of 25% + tax appeal from the amount to be awarded in addition to ₪1,170 and the court fee paid in the sum of ILS 73,781.
the defendants' claims;
- The defendants, on the other hand, claim that the lawsuit should be dismissed.
At the beginning of their arguments, the defendants point out that in the framework of its summaries, the plaintiff abandoned most of her claims and causes of action and focused only on allegations of fraud, deception and misrepresentation - which have also undergone changes, which constitute an expansion of the front that must be rejected.
As a starting point for the hearing, the defendants refer to the heavy burden placed on those who claim fraud. With regard to this, it was argued that the plaintiff did not lift the burden imposed on her, since in fact the only evidence presented by her was her testimony, which constitutes the only testimony in a civil proceeding. In this context, it was argued that the Skype correspondence presented by the plaintiff should not be accepted as evidence, since its source files were not presented in a manner that casts doubt on its reliability. In addition, the defendants refer to the plaintiff's waiver of the testimony of witnesses, which, according to her, were also required in order to prove her version. Moreover, it was argued that the plaintiff did not bear the burden of proving that she was deceived, when in the course of the proceeding it became clear that she was aware of all the risks involved in trading in binary options, took upon herself these risks, enjoyed the thrill of trading, and by the way, earned money that she chose not to withdraw and continued the trading activity even after she believed in real time that it was fraudulent activity. In these circumstances, it was argued that the plaintiff's claims in the lawsuit constitute "wisdom after the fact" and contradict her conduct in real time.
- In more detail, the plaintiffs begin by detailing that in order to prove her claims, the plaintiff had to prove that the realization of the risk due to which she is a plaintiff did not stem from conscious risk-taking on her part, but rather from the misrepresentations that were presented to her. However, according to the defendants, it was actually proven that the plaintiff's alleged financial loss was not related to a false representation that was allegedly presented to her, and that the plaintiff knew and agreed to take on the risk that she might lose her money. In these circumstances, it was argued that there is no prerequisite for proving fraud, which is that "the plaintiff committed an act that would not have been performed without the representation." In support of this, the defendants refer to the plaintiff's testimony, in which she confirmed that the initial contact with OFM was made on her own initiative and after consulting with friends regarding it. The defendants further claim in this context that even prior to the engagement, the plaintiff was aware of the risks involved in the investment. This is supported by what she said in the article, according to which even before the engagement she was concerned and which was confirmed by her in her testimony, in which she confirmed her words and tried to explain that any investment causes her to be disturbed. It was argued that in addition, already in the first e-mail message that the plaintiff received from OFM on 22/7/15 - even before she carried out any trading transaction - a warning was noted at the bottom in capital letters that this was a speculative investment at high risk and that the client was liable to lose his money. It was claimed that similar warnings were found both in an e-mail message relating to a training program for the plaintiff, which the plaintiff also signed and confirmed, inter alia, the risk, and in a declaration of deposit (DOD) document that the plaintiff signed manually shortly after making each deposit in her account.
- Moreover, it was claimed that the plaintiff's conduct during the trading shows that the plaintiff was aware of the risk, including the possibility of losing her money, agreed to it, and the trading even excited and excited her. As for this, the defendants refer to the output of the customer management system (CRM), which shows that the plaintiff earned money in some cases. It was claimed that contrary to the plaintiff's claims, she had direct access to her account both for the purpose of carrying out all the trading activities - which were carried out only by her - and for the purpose of examining her balance and withdrawing funds. It was argued that the aforesaid was also consistent with an e-mail message dated April 27, 2016 (P/6), in which the OFM representative explained to the plaintiff how to withdraw the balance of her funds through simple actions. It was argued that additional support for the aforesaid can be found in the fact that the plaintiff did withdraw, in two cases, during the trading period from her account in OFM, a total of $89,298,000. It was argued that in these circumstances, the plaintiff's claims regarding the status of her account and the prevention of the possibility of withdrawing her money have no basis.
Moreover, it was claimed that it became clear that the plaintiff traded and deposited money even after she lost, while in the framework of her correspondence with Collins, this explicitly clarifies to her that she will not always make money, and the plaintiff agrees to this and even testifies to herself that she is an "expert in losses" - that is, that she is aware of the risk and that this has even happened to her in the past. In this context, the defendants further claim that from the correspondence between the plaintiff and Collins, both on Skype and in the e-mails, it became clear that the plaintiff was aware of the risks involved in trading and withdrawing and depositing funds after losses. The defendants also refer to the plaintiff's testimony, from which it emerged that during the trading she approached Attorney Paul Clark, who was the trustee of her late father's estate and who refused to give her money for the purpose of trading due to the risk involved, referred her to an intern lawyer who also advised her not to make the deposits and file a lawsuit, but even afterwards the plaintiff continued to deposit additional funds. Moreover, it was claimed that the plaintiff continued to make investments even after it became clear to her that Collins' promises turned out to be incorrect because she had lost her money, and moreover, after it became clear to her that Collins was defrauding her. It was argued that this conduct of the plaintiff indicates a state of mind from the beginning of the trading period and during it, and shows that the plaintiff was not misled or deceived and at least accepted the risk. With regard to this, it was argued that it is clear that a person who claims to know that he is being deceived does not return and deposit money with the fraudster, unless that person was not deceived in the first place. In this context, it was argued that there is no substance in the explanation given by the plaintiff according to which she was told that it was a convalescence account, since the plaintiff did not present a shred of evidence indicating that her subsequent actions were carried out on the basis of such a representation, and moreover, since it was not clarified how exactly the convalescence account differed from the account that had been managed so far.