The absence of this figure is a misleading detail in the report, but the plaintiff did not prove a causal connection between it and the loss of his investment, which he claimed in full. Because of this, I found that I would not be able to accept his claim.
- Personal Action, Class Action and the Request to Be Based on Determinations in Class Proceedings
- The plaintiff withdrew from the group represented in the request for approval of the purchasers of the shares even before it was approved, by filing a personal claim on his behalf. The defendants are of the opinion that the "driving force" behind the plaintiff's decision to conduct a personal lawsuit and not to join the class action is his attorney. But even if this is the case, the plaintiff has chosen his attorney to manage his affairs independently for him, he is entitled to do so, and his will should be respected (compare: Civil Case (Tel Aviv District) 58016-12-14 Pollak v. Group A. Dori Ltd., paragraph 32 [Nevo] (hereinafter: The Pollak Matter) (9.12.2015)). As stated, before the parties' summaries were submitted, the defendants suggested that the plaintiff return to the group and thus be able to receive compensation as part of the settlement that was submitted, but this offer was rejected.
- The evidentiary basis before me also included the affidavits and testimonies submitted in the framework of a swap request. In doing so, the defendants agreed to the plaintiff's position, who requested that this evidence be included in the case before me. At the same time, there was no agreement that the determinations of the two panels that approved motions to conduct class proceedings, proceedings to which the plaintiff was not a party, would be binding in the framework of this proceeding. The plaintiff's position that the decisions of the panels that heard the motions for approval will be included in my considerations is in fact an argument according to which he is entitled to prove his claim by means of a company that was decided between the defendants and another plaintiff - a claim known as an "offensive estoppel". The case law held that, as a rule, the claim of estoppel of an offensive company will be accepted only in rare and exceptional cases, and only where it is possible to point to a "compensatory value inherent in the need for it" (Civil Appeal Authority 7831/99 Tzuriano v. Tzuriano, IsrSC 57(1) 673, paragraphs 9-10 of the judgment of the Honorable Justice D. Dorner (2002); Civil Appeal 9551/04 Aspen Construction and Development in Tax Appeal v. State of Israel, paragraphs 12-19 of the judgment of the Honorable Judge Y. Danziger [Nevo] (October 12, 2009); Issachar Rosen Zvi The Civil Procedure Reform: Guide of the Perplexed Pages 979-988 (Third Edition - Digital 1.2025) (hereinafter: Rosen Zvi)). On the other hand, In the Pollak case, the court noted, without leaving any rivets, that where we are dealing with a claim relating to the receipt of a judgment in a class action that was determined in a judgment in a class action as creating an estoppel in the proceeding between that defendant and a member of a group who withdrew from it, some of the justifications for this rule are irrelevant or at least of less force (paragraphs 50-56, and see also Rosen Zvi, p. 988).
- Our case does not require an extensive discussion of this issue, since a basic condition for the argument regarding the existence of a company estoppel is that the company was decided in the first proceeding in a final judgment (Appeal Petition/Administrative Claim 8025/06 Anonymous v. Amigur Asset Management Ltd., paragraph 22 [Nevo] (January 17, 2008)). The estoppel of the company was created where the company was put into dispute, discussed on its merits in an adversarial hearing, and decided (Rosen Zvi, pp. 872-874). In our case, the determinations of the panelists who heard the class proceedings were in the framework of decisions to approve the filing of a claim as a class action. A decision approving a motion to file a class action does not definitively determine the rights of the parties, it is decided on the basis of prima facie evidentiary basis, and its determinations are prima facie only (Civil Appeal Authority 1326/18 Smart Club Holdings in Tax Appeal v. Cohen, paragraph 19 [Nevo] (December 31, 2020)). I am of the opinion that this is sufficient to lead to the conclusion that the determinations of the panels that discussed the class proceedings cannot establish a company estoppel in the proceeding before me. It should be noted that the prima facie nature of the determinations and the burden at the stage of the application for approval were also the basis of the stipulation included in the settlement arrangements in the claim of the exercisers of the options and in the claims of the share purchasers, according to which the prima facie determinations would be canceled in the framework of the judgment approving the settlement (Civil Appeal 1582/20 In the matter of Halfon, section 15(d), Civil Case (Tel Aviv District) 13948-08-15 Nachmani v. Oil and Gas Resources Ltd., paragraph 18) [Nevo].
Hence, with regard to factual determinations, these will be determined in this proceeding on the basis of the evidence that was brought before me, including those that were agreed that there would be evidence in the proceeding. At the same time, with regard to legal issues, it is clear that it is possible to learn from the decisions of the panelists who discussed the class proceedings in the matter before me.
- Reference to the defendants' argument regarding the substance of the plaintiff's claims
- Additional preliminary reference is required to the defendants' claim in their summaries that the plaintiff's "true" claim was clarified in his testimony, and it is different from that raised in the pleadings. In their view, it turned out that the plaintiff's claim was that he had purchased oil shares because the title of the report stated that "significant oil marks" had been discovered, and that in doing so he was misled because in fact no oil was found. The defendants believe the plaintiff that he purchased the shares because of what is stated in the title, but claim that in this matter he made a mistake. This is because the expression "significant oil marks" is a term set forth in the eleventh addendum, and does not indicate the ability to produce oil commercially from the reservoir.
- In my opinion, the plaintiff's claim, as it arose in his affidavit and testimony, is different from that described by the defendants.
The plaintiff stated that he had purchased Shemen shares on September 10, 2013 following her reports, and that Halfon had learned that these were false reports. He added, "If I had known that these were false reports and that there were problems with the drilling, I would certainly not have invested and would not have lost my money" (paragraph 2 of the plaintiff's affidavit, emphases added, M.R.). In paragraph 3 of his affidavit, he added: "I relied on the reports reported by the company, that it had found significant signs of oil (emphasis in the original, M.R.), I later found out that the company had hidden information from investors about problems discovered in the drilling, the company's misleading reports caused me to invest large sums when the actual situation showed completely different, and there were no significant signs of oil as they had advertised." (Other emphases added, M.R.)