Gilad's conduct in real time is enough to dispel any basis for the claim. Not only did Gilad respond positively to Shachar's request for coordination and wrote to him that he was "sticking to the prices" that Shahar had sent him (P/103), but also that later, after Gilad submitted his proposal to Elta (P/101), he forwarded to Shahar Harel's proposal as it had been submitted (P/104). This is not the practice of those who wish to compete. If Gilad had really wanted to compete, he would not have revealed his proposal to Shahar. In fact, and as Shachar testified to the outset, Gilad did so in order to show Shachar that he was acting in accordance with the summary (see paragraph 871 above).
Beyond that, the argument regarding the differences between the proposals should be rejected. Gendelman testified that Wei's proposal also included, of course, and even if this was not explicitly stated, elements of liability and regulation (p. 856, paras. 2-12, p. 870, paras. 4-8, paras. 15-23, p. 871, paras. 8-13). When the claim of differences between the proposals is rejected, the basis on which the defense tried to build the argument that Gilad tried to compete is also dropped. This is despite ignoring the fact that Gilad himself was not brought to testify and that the claim was not raised at all in Harel's response to the indictment.
Finally, and more than necessary, even if it had been found that Gilad had chosen to deviate from the agreement and submit a proposal that included additional components – and we saw that this was not the case – this would not have changed it. This is because the execution of the arrangement is not one of the elements of the offense (and even without requiring that it is sufficient to join the arrangement even for the sake of appearance, see paragraph 11 above).
Therefore, these arguments should also be rejected.
The Fourteenth Charge: The Result
- 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 fourteenth indictment between Wei and Harel has been proven. Therefore, I convict Wei and Harel of the offense of 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. The conviction is also based on section 23(a)(2) of the Penal Law.
Oshri - Section 48 of the Competition Law - Officer's Liability
- As part of the fourteenth indictment currently under consideration, Oshri was charged with an offense under Section 48 of the Competition Law.
- For the reasons detailed above in the discussion of section 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 fourteenth 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 here; 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 Fifteenth Charge
The Fifteenth Charge: Renewal of VMWARE's License - BALM from October-November 2011
- The fifteenth indictment was directed at Shahar, Wei, Gilad and Harel. According to the indictment, during the months of October-November 2011, Maman approached a number of companies with a request for a quote for the renewal of VMware software The aforementioned defendants were credited with being a party to an arrangement whereby Harel would submit an offer higher than Wee's in order to enable Wei to win a license renewal bond. According to the allegations, the parties submitted their proposals in accordance with the settlement. Wee submitted a bid of about $186,000. 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).