Indeed, at certain points Noy's testimony was characterized by caution, excessive caution, while refraining from decisive statements even when one might have expected them (e.g., p. 6272).  However, I did not find that any of these would undermine the conclusion as to the reliability of his testimony in our case.  Nor is this a change that was included in the list of prosecution witnesses in the indictment, and that the accuser did not summon him to testify on her behalf – an argument that the defense repeated repeatedly – in order to change the conclusion in our case.

At the end of the day, no written and timely evidence was presented to support the claim that NATAP and Mapi had already closed the final price, the winning price, in the Mapi tender.  This included no correspondence between NetApp and Mappi, any reference in the correspondence that NetApp made to the price of submission to Mappi, or any connection between NetApp and the price submitted by Wei.

It should be noted that NetApp gave Levi and E.M.T. identical offers at a price of $27,000 per shelf without giving priority to any of the suppliers (see paragraph 792 above).  In any case, each of the suppliers could have submitted a competitive offer, on the basis of the profitability it sought to achieve, in a way that also reflects the claim of closing a final price between NetApp and Mapi.

444. Rubinstein also referred in her testimony to the argument in question of Wei and Oshri. As may be recalled, Shahar sent the corresponding email message (P/82) to Rubinstein after the conclusion that Wei would win the Mapi tender and purchase the shelves from A.M.T.  The defense's arguments rely to a large extent on the second sentence that Shachar wrote to Rubinstein in this statement: "Regarding the price, we will agree later after we understand from Ronen [Noy] what was closed with Alex [Koren] from mapping."  Rubinstein testified that in her understanding the intention was that Noy gave Koren a price estimate in relation to the cost, an estimate in relation to the budget, and that she was not aware of any other alleged agreement between Noy and Koren (p. 3688, para. 14 - p. 3689, para. 18).  These statements are consistent with the testimonies of Koren and Noy and also undermine the defense's arguments.
445. Oshri who was addressed on the corresponding email message (P/82) testified in relation to the trial in question that "apparently" that Koren asked for a special price subscription or that they had agreed on a price or were about to agree on a price (p. 4575, paras. 15-18). From his own testimony it emerged that he had no knowledge of the matter and that his words were only an assumption or a conjecture (there, Oshri noted that he did not know and did not know the details, p. 4759, paras. 11-12, where he also noted that this was an assumption).  To this must be added the problems and difficulties raised by Oshri's version in all that is stated in his claims regarding the Mapi tender and NetAP's involvement in it (see paragraph 819 onwards above).  In any event, in his interrogation with the Authority, Oshri claimed in connection with the Pesach tender that "...  I wasn't involved.  I was not in contact with NetApp, not with Emet, and not with the client" (P/214, paras. 508-509).  In any case, this is sufficient to undermine any argument from his mouth as to any agreement between Koren and Noy – with whom he claimed that he was not in contact – regarding the tender in question (in addition to the difficulties that arose in relation to his version of the conversation between him and Noy, which were discussed above).
446. Wei and Oshri also sought to construct passages in Shachar's testimony according to which Noy dictated to him the price of Wee's bid for the Mapi tender after he closed it with Mapi (p. 3058, paras. 17-25, p. 2895, s. 30 - p. 2896, s. 21 see also Shahar's testimony, p. 3196, s. 16 - p. 3197, s. 2). The testimony of Shachar that she tried to divert the fire with regard to the tender from the Israel Land Registry to NetApp was difficult and unreliable (as was immediately evident in the hearing of the second claim).  It was not supported by real-time evidence between NetApp and Wee, including regarding any involvement of NetApp in the price of Wee's offer.  It was done out of a clear interest in assisting Wei and Oshri and to reduce the burden of a clear coordination arrangement in which Wey, Shachar and Oshri were on the side.  It cannot be accepted and cannot change.
447. Therefore, the claim that NetApp closed with Mapi the final price at which Mapi would purchase the shelves that are the subject of the Mapi tender should be rejected. In any event, the aforesaid does not support the defense's claim that the Mapi tender was fictitious.

The claim that NetApp instructed Levi to purchase the shelves from EMET and that it was she who organized the coordination

448. As stated above, another argument raised by Wei and Oshri is that it was NetApp that dictated the outline in which the parties acted, it was it that instructed Levi to purchase the shelves that are the subject of a tender from EMET and not directly from NetApp, and it was it that organized the course of events in order for EMET to enable Levi to win the transaction (for example, paragraphs 317, 319-320, 338, 341-343 of Wee's summaries). In other words, because it was NetApp that initiated the coordination arrangement and stood behind it.

Wei and Oshri pointed to various pieces of evidence that they believe supports the claim.  In this context, we referred, inter alia, to the testimony of Oshri according to which Noy asked him (from Oshri) that Wei purchase the shelves through A.M.T. (p. 5174, paras. 16-20; p. 5155, s. 21 - p. 5156, s. 5).  They also referred to Shachar's version in his testimony that it was NetApp that initiated or organized the course of events.  Shahar testified that Rubinstein, M.A.T., was the one who began work on the purchase transaction that is the subject of a tender from the Israel Land Authority, that NetApp asked Rubinstein to withdraw from the transaction and that Rubinstein conditioned its agreement on Value purchasing the shelves from A.M.T., when "NetApp organized it" and instructed Levi to purchase from A.M.T. (p. 3197, paras. 3-15).  The defense raised arguments regarding the reliability of Noy's testimony and tried to find in some of his answers any support for its claims (pp. 6272-6274).

449. The arguments are to be rejected. They have no basis.  In any event, they do not justify coordination or legitimize it.
450. As to Oshri's version at the time of the testimony that Noy was the one who asked him for the value of the purchase of the shelves from A.M.T., we noted above that it was unreliable, suppressed and unacceptable (see paragraphs 819-824 above). To this, it should be added that Rubinstein testified – testimony that was reliable and contrary to interest – that she knew nothing about the fact that Noy forced Wei to purchase the shelves from A.M.T. and that she was not part of the matter (p. 3699, paras. 1-4).  Rubinstein's ignorance, which ostensibly had an interest in having the shelves purchased from EMET and that Snap would take care of it, undermines the logic of the version and creates an additional difficulty for the defense's version.
451. Shachar's version of testimony is also not accepted. Shahar claimed in his testimony that it was Rubinstein, from A.M.T., that had begun to work on the purchase transaction that was the subject of a tender from the Israel Development Authority, but then NetApp asked Rubinstein to withdraw from the transaction and that Rubinstein conditioned its agreement on Vivi purchasing the shelves from A.M.T., when "NetApp organized it" and ordered Lewe to purchase from A.M.T. (p. 3197, paras. 3-15).  This is a completely unreliable version.  It contradicts documents from real time, which show that the idea and the initiative for coordination were born among Wee's people, and that it was Shahar who took it upon himself to deal with the matter on Wee's part and to "close the corner" of Mapi vis-à-vis the other suppliers (P/319 and see paragraph 793 above).  It contradicts what Shachar himself said elsewhere in his testimony, based on his statements from the Authority's interrogation, that he (Shahar) acted to coordinate the price quotes at Oshri (and in Bayan) (p. 2894, paras. 21, p. 2895, paras. 3-5, paras. 14-17, in continuation of P/557(10), paras. 255-262; and see paragraph 793 above; subsequently, Shahar even sent Rubinstein, with a copy to Oshri, the e-mail message containing the summary of the coordination (P/82)).  It contradicts Shachar's statement in his interrogation with the Authority that he approached Rubinstein for the purpose of coordination (at the request of Oshri and Bayan), that the idea arose in light of A.M.T. (Varel's) intention to approach the tender, without raising any claim that Nettap or Rubinstein initiated the matter (P/557(10), paras. 206-265; and also in the reference to the tender from P.I. Bet/557(2) S. 1104 onwards, there is no claim that he made at the time of the testimony as stated above).  All of this is sufficient to lay the groundwork under this version of Shachar, including all that is said about NetApp's involvement in the coordination, or as if it was NetApp that instructed Levi to purchase the shelves from EMET as part of the coordination.  Rubinstein also testified that Shachar's version in the context at hand was "false and false" (p. 3653, paras. 9-14) that it was Shahar who contacted her (Rubinstein) regarding the coordination and she agreed that Shahar was the only one with whom she spoke (p. 3654, paras. 4-22) and that Noy did not contact her (p. 3655, paras. 5).  This testimony, which was reliable, also undermines the defense's arguments regarding NetApp's involvement.
452. Noy himself testified that he was not aware of the coordination that was made between Wii and EMET (p. 6271, para. 19). His testimony is consistent with the documents from real time.  The coordination correspondence was all made between Wii and EMET without any change or NetApp being a party to any of them and without any evidence linking Noy or NetApp to the coordination arrangement or that could indicate NetApp's involvement or knowledge of the coordination (we saw above that Rubinstein testified that she spoke only with Shachar, and not with Noy, p. 3654, paras. 4-22,  3655, s. 5; Rubinstein further testified that she did not know whether Noy knew about the coordination, p. 3656, paras. 1-2).  The attempt to construct answers that Noy gave at certain stages in his testimony, which were characterized by excessive caution (e.g., p. 6272), does not change the conclusion that arises from the evidence.
453. Therefore, the defense's arguments that NetApp was involved in the coordination arrangement, or that it knew about it, should be rejected, and that it was NetApp that instructed Levy to purchase the shelves from EMAT.
454. Indeed, it appears that at the end of the day, Noy knew that Wei had purchased the shelves from A.M.T., since Netup had sold the shelves to A.M.T. (see Rubinstein's testimony that Noy knew that Shachar was buying the shelves from her (from Rubinstein), p. 3656, paras. 1-2; the impression that arose from the testimony is that this was knowledge after the fact, after winning the tender from the Mapi and at the time of the procurement was carried out, ibid., see also: 3682, s. 15 - p. 2683, s. 2 (relating to the procurement stage); p. 3648, paras. 6-18 (relating to Rubinstein's conversation with Noy at the stage of purchasing the shelves, even though Rubinstein noted that she did not remember the stage at which Noy knew about it); P. 3650, paras. 1-18 (from which the impression also arises that the discourse between Rubinstein and Noy took place at the stage of purchasing the shelves; elsewhere in her testimony, Rubinstein did not remember to place Noy's knowledge on the timeline (e.g., p. 3649, para. 6)).  Hence, there is no evidence to show that Noy or NetApp knew of the coordination arrangement between Wei and EMET at the time it was made, or of their agreement that as part of it, WMT would purchase the shelves.  The fact that he knew after the ornamental act that NetApp sold the shelves to A.M.T., in order for the latter to sell them as an accompaniment for the Mapi tender, does not attest to the fact that he knew of this at the time the arrangement was made or that he knew of the coordination arrangement (and also that Netup gave an additional discount to A.M.T. at the end of the road (as it appears in P/561) does not change this matter; and see in general,  Noy, p. 6245, paras. 9-20, in any case does not attest to any knowledge or involvement prior to the submission of the proposals).  As noted, the claim regarding NetApp's involvement or her knowledge was not supported by the evidence.
455. In any event, even regardless of the rejection of the claims, the manufacturer's involvement or knowledge of a coordination arrangement between the suppliers cannot justify or legitimize a restrictive arrangement for price coordination. The manufacturer is not a party that can permit the parties to make a restrictive arrangement or exempt them from the burden of the Competition Law.
456. Similarly, even if the claim that Noy had instructed Levi to purchase the shelves from EMET – and we saw that the claim was rejected – this would not have justified or legitimized the price coordination arrangement between WI and EMET in connection with the submission of bids for the MAPI tender and the submission of a coordinated false bid by EMAT. Such an arrangement falls within the scope of absolute presumptions.  Ignoring this, too, he sets up libels to harm competition.  Suffice it to note that if EMET had independently decided not to submit a bid for a tender, Mapi could have planned its steps and examined the options open to it with respect to the engagement on the basis of the knowledge that it had received a single bid and on the basis of a true picture of the situation.
457. Therefore, all of the claims raised by Wei in connection with NetApp's involvement or knowledge should also be rejected.
458. A supplementary note with respect to the accuser's claim regarding the harm to the Mapi - more than necessary, we will refer to another argument that was raised. The accuser claimed that the prices at which Wei sold the shelves to the Mapi attest to the damage caused to the Mapi as a result of the coordination.  In this context, it pointed out that NetApp sold the shelves to A.M.T. at a price of $24,000 per shelf (P/561), that EMET sold each shelf at a price of $28,500 (P/561), while Value sold the shelves to Mapi at a price of over $38,000 per shelf (according to the winning price in the Mapi tender and in accordance with the dollar rate as of the winning date - October 11, 2011).  This price reflects a margin of more than 50%, which was divided between Wii and EMET, hence the accuser's claim for the damage caused by the coordination.  On the face of it, it seems that there is truth to the claim that the prices attest to the harm of coordination.  In this context, it is possible to take into account Zeiger's real-time estimate, according to which the estimate of profitability in the tender was about 10%-12%, and it appears that the said prices reflect profitability beyond what was stated (Wei and Oshri did not deal in their summaries in a real way with the accuser's claim for damage, see paragraph 352 there).  However, the tender also included installation and maintenance services of the shelves.  The accuser did not address in her argument the cost involved in these services.  The infrastructure that was brought is therefore incomplete.  At the same time, we saw above that Wei agreed to pay EMET for each shelf a price that exceeded the price at which it could have purchased the shelf directly from Tap ($28,500 vs. $27,000 per shelf, see paragraph 804 above).  This excess consideration was paid to A.M.T. in exchange for its consent to the coordination and can serve as an indication that the coordination caused harm.  In any event, in the circumstances of the case, since harm to competition and damage are not among the elements of the restrictive arrangement offense, this is said above necessity.
459. A note regarding the failure to prosecute Babian and Reshef – we saw above that both Babayan, who was a salesman at Wei, and Reshef, who was a salesman at EMET, were involved to one degree or another in coordinating the bids in connection with the Mapi tender. Bayan and Reshef were not prosecuted for lack of public interest.  The accuser chose to prosecute Rubinstein, to whom Reshef was subordinate, and who was at the forefront of the conspiracy with Wei and with whom she reached an agreement; Shachar, who was the central figure in the relationship with the competing suppliers, both in general and in the indictment in question; and my happiness due to his involvement and his more senior position in the company.  In the circumstances of the case, these are relevant and relevant considerations that do not establish a basis for a claim of discrimination (see also the discussion in paragraph 738 above).

The Thirteenth Charge: The Result

460. The result of the aforesaid is that it has been proven, beyond a reasonable doubt, that the coordination and restrictive arrangement that is the subject of the thirteenth indictment – the Mapi tender – Shavi and Oshri were parties to it, and the attempt to coordinate with Wee vis-à-vis Harel. Therefore, and in view of the reasons detailed above, I convict Wei and Oshri of the offense of being a party to a restrictive arrangement under section 47(a)(1) of the Competition Law, as drafted on the eve of the commencement of Amendment No. 21, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55A of the Competition Law, as well as the offense of fraudulent receipt under aggravated circumstances, under section 415 of the Penal Law.  I also convict Wei of the offense of attempting to make a restrictive arrangement under section 47(a)(1) of the Law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55a(b) of the Competition Law and section 25 of the Penal Law.  Wei's conviction is also based on section 23(a)(2) of the Penal Law.

Oshri - Section 48 of the Competition Law - Officer's Liability

461. As part of the thirteenth indictment currently under consideration, an offense was attributed to Oshri under Section 48 of the Competition Law.
462. For the reasons detailed above in the hearing at paragraph 48 in connection with the previous charges, here too it was proven that Oshri had the elements of the offense under section 48 of the Competition Law in relation to the thirteenth charge and the date on which it was committed: Oshri was an active manager of Wey; Wei was convicted of the offense of a party to a restrictive arrangement in the charge herein and of the offense of attempting to reach a restrictive arrangement; And Oshri was not able to prove that he did what was necessary for the purpose of supervision and to prevent violations of the Competition Law.

The Fourteenth Charge

The Fourteenth Charge: Old Servers for Elta - November 2011

463. The fourteenth indictment was directed at Shahar, Wei, Gilad and Harel. According to the indictment, during the month of November 2011, ELTA approached a number of companies with a request for a price quote for a number of servers.  The aforementioned defendants were attributed to having been a party to the arrangement whereby Harel would submit a higher bid than Wee's in order to enable Levi to win a server company.  According to the allegations, the parties submitted their proposals in accordance with the settlement, with Wie submitting a bid in the amount of approximately $60,000.  Oshri is credited with not being supervised and did everything possible to prevent an offense under the Competition Law.

Shahar and Gilad's case ended, as stated above, in plea bargains.  The charge in question was not included in the plea bargains with Shahar and Gilad, and the facts that are the subject of this indictment were not attributed to them.  As noted above, the aforesaid does not negate the possibility of convicting Wei and Harel of the offenses attributed to them, to the extent that guilt is proven at the required level (see the discussion at paragraphs 201-214 above).