The Meeting
- The evidence shows that at some point prior to May 5, 2009, a meeting was held between representatives of Wee, Harel and Triple C, who, as stated above, were authorized suppliers of IBM products to IAI.
The meeting took place in Zeiger's office in Harel (testimony of Shachar, p. 2642, paras. 9-12; P/557(8), paras. 61-63, 90-91; this was also confirmed by Zeiger in his statement P/222, paras. 778-783, 821-823, even though in his testimony he claimed that the meeting was not held in his office but in Harel's offices, p. 5815, paras. 1-6; p. 5322, paras. 8-18).
Four participants took part in the meeting: Zeiger and Gilad Maharel, Shahar Movi, and Naveh from Triple C (testimony of Shachar, p. 2677, paras. 13-22; p. 3138, paras. 6-12; testimony of Naveh, p. 70, paras. 11; testimony of Zeiger, p. 5322, paras. 8-18). Zeiger, who was at the time a sales manager for the public sector team at Harel, was the most senior of the participants in the meeting (P/222, S. 779). Shachar testified that Zeiger was the one who initiated the meeting (p. 3338, paras. 21-22). The meeting lasted about an hour (Testimony of Naveh, p. 70, s. 2).
The post-meeting email message (P/1)
- On 5 May 2009, after the meeting, Shahar sent the rest of the participants in the meeting - Zeiger, Gilad and Naveh - the summary of the meeting (P/1). The email was accompanied by a file - a table - called "Division of Labor by Agreement". In the body of the email, Shahar wrote: "Following our meeting attached with the summary, please note that there is no correlation and the numbers need to be balanced, I prefer to do it in the meeting and not by email" (underline added).
The attached summary, titled "Division of Labor by Agreement", was prepared in an Excel table (attached as P/1). The table includes several columns, including the name of IAI's project; Specifying an amount in relation to each project under the column that has been labeled "Leader" of the project (Wii, Harel, or Triple C); Indicate an amount under a column labeled "Purchasing equipment from" one of the companies, as well as a column that refers to the expected execution quarter (Q2 or Q3). Below the table are the total amounts of the business of each of the companies, whether as a carrier or as the company from which the equipment was purchased. Here's what the summary looks like:
- The email correspondence sent following the meeting and the table attached to it support the facts attributed in the first indictment. The documents indicate that this was an agreement between representatives of the three defendant companies, which are major authorized suppliers of IBM equipment to IAI, regarding the distribution of projects at IAI. According to the summary: one company, the leader, will win the project and it will buy equipment from others for a certain amount, so that in summary, each company will receive a similar amount of business (and since there are discrepancies between the total sums at the bottom of the table, Shahar wanted to balance the numbers).
The testimonies regarding the summary and the manner in which it was supposed to be carried out
- Three of the four participants in the meeting testified at the trial: Shahar, Naveh and Zeiger. The testimonies support both that the arrangement was made as attributed and in relation to the content of the arrangement.
- Naveh noted in his testimony that at the meeting there was a "summary" of projects in which one of the companies had won in the past, and that the civil appeal was asking for a price quote for the continuation "to try to allow the continuation" (p. 78, paras. 1-3; p. 71, paras. 17-25, based on his statement Bat/2, paras. 140-142; These statements that are contrary to the interest should be preferred to his attempts to qualify the meaning of the words elsewhere). Naveh explained that the way to "allow" a company that has won the "continuation" in the past is so that the parties will talk to each other and the other companies will not submit a price quote on their behalf or submit a high price quote so that "whoever should win will win" and that it is determined who will submit how much (p. 73, paras. 19-20, paras. 23-25; p. 78, paras. 4-6; Here, too, we should prefer these statements that were made against the interest). In his testimony, Naveh referred to the summary as "more understandings" and not as an agreement (p. 81, paras. 12-17; Following his remarks, Bat/2, para. 175). As stated above in the normative section, the term "order" has been interpreted broadly, and "understandings" as stated are easily within its boundaries.
- In his testimony, Shahar confirmed, more than once based on what he said in his statements during the interrogation, that what is meant by "division of labor according to an agreement" is that where one company began working with a civil appeal on a certain project, the other companies would "compliment it," would not "disturb it" and let it "continue to work" (p. 2632, paras. 5-9; p. 2652, paras. 7-9; p. 2644, paras. 16-23). According to Shahar, it was Zeiger who asked for it at the meeting. Shahar noted that each of the parties prepared a list of places where he works and Zeiger asked for value and Triple C will not interfere with Harel in the places where she works, and in return Harel will not interfere with Levi and Triple C in the places where they work. When asked about the summary, the subject of this indictment in his testimony confirmed this and said, "I think that by and large this is the reason we all gathered here because it is true" (p. 2644, paras. 16-23; This testimony should be preferred to what he said in other places, more than once in a clear attempt to adapt his answers to the interest of the defense and with an almost automatic approval of what was offered to him by the defense; See also Shachar's testimony regarding Naveh's addition to the correspondence regarding the second charge (P/377, P/17) that "in some of the projects it was agreed that Yaakov [Triple C] would win, so he [Gilad] apparently wants to show him that we are okay, we are not stepping on each other", p. 2678, paras. 16-18).
- Shahar's testimony revealed that the agreement for the "division of labor" also revolved around projects in which one of the companies wanted to work in the future, and not only about a project in which it had already begun to work. Regarding the listing of "Movel" in the table, he testified that "Movel means that the places that Harel wants to work in this project... That you want, yes." (p. 2655, paras. 1-5) and that a "carrier" is "one who wants to win the project" (p. 2660, paras. 16-18 and the amendment he made immediately afterwards and following a comment by one of the lawyers was not convincing). In other words, the summary referred both to projects in which one of the companies began to handle the project and to projects in which one of the companies wanted to work in the future even before it began to work on it (p. 2661, paras. 5-9, where he confirmed what was stated in his notice, P/557(4), paras. 728-729, that the leader is the person who works on the project or who is supposed to work on it "according to our agreement"). This testimony of Shachar is consistent with other things he said in his interrogation, according to which "in the table we listed the person who already works at the place and determined that he would stay to work there without being disturbed, but it may not have been exactly equal between the three companies, so we tried to make changes and divide the projects in an equal manner" (P/557(4), paras. 781-783; We should prefer these words of Shahar, who in his testimony claimed that he did not remember them (p. 2659, para. 12 - p. 2660, para. 5), since they were said in a clear contradiction to the interest, and taking into account that they are consistent with the parts of his testimony that were brought above; See also Zeiger's announcement, P/222, paras. 637-640, where he confirmed that future projects were also addressed, such as the Colibri project (which will be mentioned below) and Zeiger's testimony, at p. 5385, paras. 22-23). In other words, the agreement is also intended to bring about a certain balance in the scope of work of the defendant companies vis-à-vis IAI. As stated above, in the e-mail message that Shachar sent after the meeting (P/1), he also noted the need to "balance" the numbers. In this context, Shahar explained in his testimony that the need to balance stemmed from the fact that Harel was more dominant and wanted more projects, but that it was not fair and the agreement was to balance it by ensuring that the other companies would win some of the projects (p. 2660, paras. 8-15). The summary table also includes reference to the procurement of equipment from one company to another in connection with the projects mentioned, and the financial scope of the procurement is included in the amount of each company's business, which, according to the email message sent by Shahar, "needs to be balanced" (P/1). In this context, Naveh testified that in the framework of the understandings at the meeting, the participants also talked about mutual procurement and the possibility of purchasing from each other (p. 81, paras. 14-17, p. 80, paras. 19-21).
- Thus, from the evidence - the email message on the summary table attached to it (P/1) and the testimonies of Naveh and Shachar - it appears that the parties reached an agreement regarding the division of projects in a civil appeal and the balance of the parties' activities also by means of mutual procurement.
- It should be mentioned, in the context of more than necessary, that Shahar and Naveh confessed to the charges against them in the first charge and were convicted on the basis of their confession (Shahar's testimony, p. 2937, paras. 7-9, P/544; testimony of Naveh, p. 109, paras. 10-13, 20-23, p. 194, s. 29-p. 195, s. 5, p. 19(a)), and that in their testimony before me they reiterated the correctness of the facts relating to them in the indictment in question (ibid.). However, in view of the clear picture that emerges from the evidence regarding the summary of the meeting, I am not required to go into this additional layer.
The testimonies regarding the conduct of the meeting and the exchange in it
- The testimonies regarding the conduct of the participants in the meeting and the exchange during it also support the evidence regarding the privileged arrangement.
Shahar described in his testimony that Zeiger asked them to prepare a list of all the projects, "Zeiger asked us to sit down and put all the projects on the page and see how to divide them" (p. 3137, paras. 21-23, p. 3138, paras. 6-13). Shahar also testified that Zeiger asked the participants of the meeting to prepare a list of which company is working on which project; He also explained that Zeiger understood that "if we fight each other then his profitability will decrease, sometimes to the point of losing" and that Zeiger wanted to prevent this; According to Shachar, this was the purpose of the meeting (p. 2646, paras. 2-10, where he confirmed what he said in the interrogation, P/557(8), paras. 42-52; Zeiger himself testified that in the meeting each of the participants indicated what projects he was working on and what the future was expected to be, p. 5326, paras. 1-4, paras. 18-23, in a manner that was consistent with the aforesaid). Shachar further testified that since it emerged that Harel had won a large part of the projects, Shahar took advantage of the situation and told Zeiger that it was illogical and asked to "balance it out" (p. 3138, paras. 6-13; See also Naveh's testimony, from which it emerged that the issue of balance came up at the meeting, and that it was a general desire of the three companies, p. 210, paras. 4-6, p. 209, paras. 21-28, even though Naveh tried to minimize the significance of the matter and to present that it was also in the interest of Elta; See also Shachar's statements that he and Naveh claimed against Zeiger that he wanted almost everything for Harel and that it was unfair, P/557(8), paras. 83-84; In the circumstances of the case, we should prefer these words, which are consistent with Shachar's testimony in other places as cited above, and taking into account that in relation to this passage, Shachar claimed in his testimony that he did not remember, p. 2645, paras. 1-7). Shachar testified that in the meeting things were said such as, "I will work on this project and you will work on this project" (p. 2628, s. 25 - p. 2629, s. 5) in a way that is consistent with a division. Shachar also testified that since the scope of Triple C's work in a civil appeal at the time was not high, Naveh said at the meeting that if he did not have projects, "he would interfere with them," that is, he would submit competing proposals, which Triple C subsequently received projects on the list (p. 3341, paras. 23-28), although immediately afterwards Shahar was quick to reply, as he had been offered by the defense, that he had no real intention of giving up any project to Nave; See also p. 3339, paras. 18-19, regarding Shachar's statements to Naveh in a meeting in the style of "Come on, take, you have received" of one project or another, even though Shachar tried to disapprove of the remarks and describe them as statements that were not taken seriously and had no meaning). In response to the court's questions, and after trying to disagree with the significance of the meeting and present it as intended only for the exchange of information, Shahar replied that he, too, tried to "balance the numbers" and take more projects for himself, i.e., an accompaniment, so that other projects in the table would be associated with an accompaniment, while explaining that this meant that the other companies "would not compete for them at all" (p. 3342, paras. 15-27, despite his experience immediately afterwards, and in response to questions of defense, except for the meaning of the words in reality).