The defendants further claim that the evidence showed that there were cases in which the plaintiff carried out transactions that were not coordinated with Collins, and thus their claim that the trading activities were carried out by the customers themselves should be supported. Moreover, it was claimed that during the trading period, the plaintiff also traded on a number of other platforms - a fact that indicates the plaintiff's love of risk.
In addition, the defendants claim that from the correspondence and testimony of the plaintiff, it emerged that the plaintiff traded in funds that were not her own and that she illegally took from her mother's account.
- Moreover, according to the defendants, it became clear that the plaintiff's claims regarding an alleged conflict of interest related to the employment mechanism and the remuneration of Global's employees also had no substance. This is because the plaintiff failed to prove the existence of this employment mechanism, because she did not bring other employees to testify, and because she did not prove what Collins' employment mechanism was. It was argued that on the other hand, it became clear that Avisror received a commission based on achievements based on the fact that customers continue to deposit funds and carry out trading activities, but it was argued that there is nothing wrong with this mechanism. This is primarily because Global customers knew that this is a commercial company that does not operate for the sake of Heaven, and moreover, since it is a matter of aligned interests - since a satisfied customer, who is successful in his trading operations, is interested in carrying out additional trading activities, and therefore, there is nothing wrong with this method of remuneration. Moreover, it was argued that in any event, the commission is not paid directly from the account of one customer or another, but rather from the company's total income. It was further claimed that in Shabbat's testimony it became clear that the plaintiff was wrong in describing the model of collecting fees by Global, since the fee charged by Global stems from the gap between the client's position and the position of the other party - i.e., it is not related to deposits, withdrawals or movements within the client's account, but rather that Global receives a commission by virtue of the existence of the trade. The defendants further argue that in the context of the issue of commissions, the plaintiff's new claim in her summaries that Collins presented her with a representation that he did not charge her a commission at all, and in addition, due to the widening of the façade, the plaintiff's claim that Collins presented that he received receipt from the profits should be rejected - a claim that even contradicts the claim that Collins made a representation that he does not receive commissions at all.
The defendants further argue that the plaintiff's claims that she was misrepresented regarding the bonus, which was presented as a benefit when in fact its purpose was to lock the client's money into the account, should be rejected. In this regard, it was argued that this argument was refuted in Shabbat's testimony, in which it was explained that the granting of the bonus does not prevent the client from withdrawing his own investment money, but only when a client reaches a certain transaction cycle can he also withdraw the bonus money.
- According to the defendants, additional support for the fact that the plaintiff was not deceived by them at all can be found in her conduct after the termination of the trade through OFM. In this regard, the defendants refer to the plaintiff's testimony, which shows that even after she stopped trading through OFM and lost considerable sums of money, she resumed trading through other platforms, and moreover, she also did so through a platform which, according to her testimony, she was told that the representative who contacted her for the purpose of trading, received her contact details from OFM.
- As a matter of fact, it was argued that even if the plaintiff was presented with false representations - as to the geographical location from which Collins operated, his professional skills and experience, as well as cooperation with recognized corporations and the purchase of contracts - a fact that is denied and which was claimed to have not been proven - in any case it was proven that this had nothing to do with the plaintiff's alleged loss. This is because the plaintiff lost her money after she carried out the investment activities herself, of her own free will, and while taking upon herself time and again the risk involved. It was further claimed that the plaintiff confirmed in writing and in conduct that she was aware of the risk involved in trading and continued to deposit funds, both after she lost and after she claimed that she realized that she had been deceived. It was further argued that it was proven that the plaintiff had full access to her account and that she could have withdrawn funds from it, as she had done in practice. It was further argued that it was proven that there was no conflict of interest between Collins and the plaintiff, who was aware that he was a representative of a commercial company that did not provide services to it for the sake of Heaven. Moreover, it was proven that the plaintiff was not misled regarding the bonuses, and in any case it was not a bonus that "locks" the investment money in the account.
- Moreover, according to the defendants, in any case it was proven that the plaintiff carried out the trading activities herself, and it was not proven by her that there was a causal connection between the actions and her loss. This is because the plaintiff tries to rely only on the result test, without presenting an opinion or evidence linking a specific trading transaction to a concrete representation presented to her, which establishes that the actions taken by the plaintiff deviate from the risk she assumed.
- It was argued that in these circumstances, the claim should be dismissed, or at least that the plaintiff should be charged with contributory fault at a high rate that exceeds 100%.
- Without derogating from the aforesaid, the defendants claim that the personal claims against Avisror and Shabbat should be dismissed. As for Avisror, it was first argued that there is nothing wrong with using generic stage names for the purpose of protecting the privacy of employees. It was also claimed that although he admitted to using the name Stephen Collins, he was not the only one who did so, and the plaintiff did not prove that specific statements were made by him. Moreover, it was argued that the plaintiff's claims that all the correspondence was with Avisror are based on a kind of "induction" proof - first, the plaintiff seeks to show that Avisror corresponded with her on February 18, 2016 by cross-referencing Collins' statements against Avisror's testimony in the proceeding, and afterwards, the plaintiff builds a construction that is built only on the fact that on a specific day Avisror corresponded with her and that it was a "verified day". In this context, the defendants argue that the plaintiff's attempt to point to indications that supposedly repeat on verified dates should be rejected, when in practice the alleged indications do not appear on all dates. It was argued that this attempt should also be rejected since Shavisror testified that relevant data about the customers is stored in the system for the use of other representatives, and therefore, the mere information regarding the customer brought by "Collins" does not indicate that it is the same "Collins". And finally, Collins' errors in English only highlight the fact that the plaintiff, whose mother tongue is English, was indifferent to Collins' origins. Moreover, it was argued that even to the extent that the plaintiff proved that Avisror was indeed in contact with her on February 18, 2016, she did not show that it was Avisror on the dates on which the alleged misrepresentations were presented to her. In this regard, it was further argued that no evidence was brought linking the number 459 - which appears in the CRM report - to a specific "Collins", moreover Avisror denied that this number referred to him, whereas it was specifically Shabbat who knew how to explain about the CRM output, the plaintiff did not ask anything on this issue.
- The defendants further argue that the veil should not be lifted in relation to Shabbat - since it is an extreme and far-reaching remedy, which must be used with caution, since it is liable to thwart the legitimate expectations of the parties and undermine the stability of a corporation's legal institution in general. In this context, it was argued that the plaintiff's claims regarding special circumstances that justify lifting the veil should be rejected - since the closure of Global was done as required by a new regulation in the field of binary options and was not intended to evade creditors. In addition, since a global activity in itself does not indicate a purpose to make it difficult to file claims, but rather it is a common and accepted activity based on legitimate considerations such as taxation. It was also argued that it is common for companies that provide customer service to be separate from those that provide the service itself. Moreover, it was argued that the very marketing of binary options is not invalid in itself, as long as it is done subject to regulation. In this context, it was argued that there was no relevance to the proceeding taken against Shabbat in the United States, since it was a proceeding that related to local regulation in the United States - which is not related to OFM's activity - following which Shabbat agreed to pay a fine and the activity there was stopped. Moreover, it was argued that the plaintiff's attempt to bring documents related to the proceedings there as evidence should be rejected, since it is a testimony from hearsay.
It was also argued that the attempt to impose personal liability on Shabbat should be rejected just because he served as an officer of Global. This, since it has not been proven that he was personally involved in the conduct with the plaintiff, there is no dispute that he never had any contact with the plaintiff and that he did not make any representation to her. It was also argued that the allegation regarding so-called commercial agreements for remuneration by trading volume between Global and non-defendant third parties (BDB) was not proven and is baseless. Moreover, it was argued that in any event, the plaintiff did not claim in the affidavit that these alleged commercial agreements were presented to her at all, and that she relied on them, and that she did not prove what those commercial agreements were and why they amounted to fraud or deception towards her. It was further argued that even if it was proven that BDB (which is not the company with which the plaintiff contracted), paid a percentage of its profits to Global for its services, there is no connection between this and the fraudulent acts alleged in the lawsuit, and this certainly does not establish grounds for personal liability. It was further argued that the bonus mechanism that was claimed was also proven to be non-fraudulent and does not justify the imposition of personal liability. Moreover, it was argued that the circumstances of the company's closure in Israel, as well as the justification for the use of generic stage names, and the additional claims relating to the location of the activity, the prefix on the phone, etc., were not fraudulent, had nothing to do with the alleged financial loss, and certainly did not attest to organized, systematic and prolonged conduct in direct involvement of Shabbat.
- Finally, it was argued that the plaintiff's claims of liability under the Consumer Protection Law should be rejected, since this is a piece of legislation that is territorial, intended to protect Israeli consumers, and therefore is not relevant to the case at hand in which a foreign resident who invested in a foreign company.
- In light of all of the above, it was argued that the claim should be dismissed, and in general, it was argued that the demand - which was first brought in the summaries for the imposition of punitive compensation - should be rejected, a relief that was not requested and in any case is not appropriate in the circumstances at hand.
the plaintiff's arguments in the summaries of the reply on her behalf;
- In the summaries of the reply, the plaintiff opens with reference - with regard to the number 459, which indicates that only one Collins was in contact with the plaintiff - to the fact that this is a number that appears under the heading of reception employee ID. With regard to the false representation regarding the status of her account, the plaintiff refers to the fact that in the course of the Skype correspondence, she was not informed even once that her account was being emptied. As to the false representation regarding incentives and conflict of interest, the plaintiff points out that the defendants do not specify that the conflict of interest was disclosed to the plaintiff and do not justify Avisror's representation that he is acting only in her interest. According to the plaintiff, there is no dispute that Collins - who received an incentive to increase trading - incentivized the plaintiff to carry out trading on a huge scale in a manner that caused her to lose money. In addition, it was argued that the plaintiff did indeed know that Avisror did not work for the sake of Heaven, but that he concealed that the salary he received created a conflict of interest for him. Moreover, according to the plaintiff, Global admitted in its summaries that she received trading commissions, and the aforementioned admits that she actually participated in the trading and not only provided services. It was further argued that the argument that was brought in the defendants' summaries that the commission is summarized in the difference in the winning ratios, stands in contrast to Shabbat's testimony, according to which the trading fee is in the gap in the share prices.
With regard to the claims regarding consent to the risk - it was argued that Shavisror and Global operated under a false identity, no consent can be attributed to the plaintiff and in addition it was argued that even if there was full disclosure of the risk, this does not cure the misrepresentations that were presented to the plaintiff and the aforesaid applies in particular with regard to the misrepresentations with regard to Avisror's experience, which presented himself as a financial expert and yes, As to the representations according to which the plaintiff will receive a refund for losing transactions. It was further argued that there is no substance to the claim that the plaintiff could have withdrawn profits, since there were successful transactions in the account, but since the third week of the investment the balance of profit and loss was negative, and therefore, the withdrawals made by the plaintiff were from deposits that had not yet been brokered. The plaintiff further refers to the correspondence at the time when she first discovered that her account had been emptied and discovered suicidal thoughts, at which point Avisror wrote to her that such things were happening, that everything would be fine, that she would build a plan for her with the assistance of the head of the recovery department and that her money was 100% protected and that she would be able to withdraw all her money.