The declarant testified that she is entrusted with the Respondent with all matters relating to the processing of information that the Respondent receives from sites that make use of the said tools (see pp. 152-153of the minutes of the hearing). This testimony was not concealed.
No contradictory opinion or evidence was presented on behalf of the Applicant and therefore I accept the Respondent's argument in this matter.
- It follows from all of the above that with regard to the aspects relating to the claim, from the moment the applicant opened a Facebook account at the time, even though he used a different name, and did not act to close it, he cannot be considered a person who is not a registered user of Facebook.
The conclusion that arises from this is that the applicant does not have a cause of action for a personal claim, the applicant is not a member of the class and cannot represent it.
The Request for the Replacement of an Applicant
- In response to the Request for Certification and in the Applicant's summaries, the Applicant argued that even if he finds that the Applicant cannot serve as a class plaintiff, this does not lead to the rejection of the Motion for Approval. This is due to the authority given to the court by law to order the location of an alternative plaintiff.
- The Respondent noted in its summaries that this is not the type of case in which it is appropriate to order the replacement of a class plaintiff, since in accordance with the rule, the replacement of a class plaintiff is a possibility that the court will consider only in cases where, due to circumstances that could not have been reasonably foreseeable in advance, the original plaintiff did not have a personal cause and referred tothe High Court of Justice 62/13 Turgeman v. the National Labor Court (published in the databases, [Nevo], 28 January 2013). She further argued that in this case, the applicant and his counsel already knew at the time of filing the motion for approval that the applicant lacked a personal cause of action, but concealed it. The Respondent also referred to the aforementioned other Municipality Applications 7125/20 Success for the Promotion of a Fair Company v. UBS AG (published in the Databases, [Nevo], January 2, 2025, paragraph 225 of the judgment of the Honorable Justice Kabub) and the importance of strictly adhering to the existence of a personal claim.
- It should be noted that I did not find in the Applicant's summaries a real answer in this context. In this case, we are not dealing with a matter that became known only after the application for approval was filed, or in a situation in which the group was limited in a decision to certify in a way that the specific applicant did not fall within its definition, but rather a fact that was known to the applicant and his representatives from the outset and before the application for approval was filed.
- In accordance with section 8(c)(2) of the Law, an applicant must be ordered to be replaced in a situation where: "The court finds that all the conditions stated in subsection (a) have been met, but the conditions in section 4(a)(1) to (3) are not met, as the case may be, the court will approve the class action but will order in its decision to replace the representative plaintiff." In other words, it is required that all the conditions for the approval of the motion as a class action be met in order to replace the applicant.
- The law stipulates that in order to approve a class action, the following conditions must be met:
"8. (a) The court may approve a class action, if it finds that all of the following have been met: