The Respondent argued that for this reason these arguments and evidence should not be addressed, which are not mentioned in the motion for approval and in the application to determine the methods of invention.
I am unable to accept the Respondent's arguments.
- As a rule, a person who wishes to certify a class action is required to specify in the framework of the motion for approval the cause of action, as well as to attach the evidence supporting it. The case law discussed the question of which arguments the applicant must specify already in the framework of the request for approval, and which of them can be raised in the framework of a response to the request for approval, and the test that was set is the test of the "direct response" to the claims raised in the respondent's response (Civil Appeal Authority 141/23 Danny (Daniel) Brenner v. Sunny Communications in a Tax Appeal [Nevo] (April 20, 2023), hereinafter: Brenner, paragraph 13 of the judgment). In the same matter, the Supreme Court noted that "it is the applicants who define the front of the dispute between the parties. However, when the defendant responds to the arguments raised in the motion for approval, he creates a kind of 'second-order demarcation,' if we like, within the procedural framework that was drawn up when the motion for approval was filed. This is because, as a rule, the defendant chooses the battles he wishes to conduct... The main and most significant points of contention in the claim are defined and delimited first and foremost by those who submitted the application for approval, but their final refinement (which sometimes even amounts to reframing) is done by the defendant in the framework of his response" (ibid., at paragraph 14). In the spirit of these words, I am of the opinion that as a rule, a plaintiff who files a motion to certify a class action based on Israeli law should not be expected to include a full and detailed argument on the subject of the applicable law already in the framework of the motion for approval. In this regard, I fully accept the words of this Court (the Honorable Justice Stav) in Tetz (Center) 41409-03-21 Yaniv Granot v. Google LLC [Nevo] (April 30, 2024), hereinafter: Granot):
00 "I am of the opinion that when the application for approval is based on Israeli law, the applicant is not required to address in the framework of the application for approval a possible claim of the applicability of a foreign law, even if it is based on a choice of law clause. This approach is based on two main reasons: first, the characteristics of the claim of the applicability of foreign law as a defense claim. When a proceeding is filed in a court in Israel, the king's way is that it will be based on Israeli law. Insofar as a claim arises that Israeli law does not apply, it is a defense argument in nature, which the natural place to deal with is after it has been raised, i.e., in the framework of the response to the response (compare, Civil Appeal Authority 2224/17 Israel Electric Corporation in Tax Appeal v. Freudman, paragraph 3 [Nevo] (June 27, 2017)). Second, for reasons of efficiency, since at the stage of filing the application for approval, the applicant cannot know with certainty whether the respondent will claim the applicability of the foreign law. Even if in a case where there is a choice of law clause it is a reasonable assumption, it is not necessary, since it is possible that in a certain case the respondent will believe that Israeli law is more convenient for it or that it will prefer, for these or other considerations, not to rely on the choice of law clause...