The picture that emerges in relation to the conduct of the meeting and the exchange in it - the preparation of a list of projects for the purpose of distributing them among the companies, in order to prevent "disruption" or competition over them, including with regard to projects that any of the companies have already begun to handle - clearly supports the evidence regarding the arrangement and is consistent with the real-time document (P/1) that was sent following the meeting and referred to the "summary", "balance" and was crowned, as recalled, "division of labor according to an agreement".
Reference to the defense's arguments
- In their summaries, the defendants, mainly Wei and Oshri, Harel and Zeiger, claimed that no restrictive arrangement was made as alleged in the first indictment. Among other things, the defendants referred to Zeiger's testimony, according to which the purpose of the meeting was to gather business intelligence about his competitors and to estimate the size of the market, and to various statements by Shahar and Naveh that the meeting was intended to map future projects in a civil appeal and that nothing was agreed upon in the definition.
- These claims must be rejected.
- Indeed, Zeiger testified that he participated in the meeting only in order to gather information from his competitors - V and Triple C - in order to know where his competitors were acting in a civil appeal in order to try to "steal" deals from them; and also in order to obtain information regarding the scope of the expected activity of IBM products in a civil appeal in order to assess the feasibility of continuing Harel's activity in the face of a civil appeal within the framework of the Comptroller General's agreement (for example, p. 5324, paras. 19-23, p. 5323, para. 23 - p. 5324, para. 15). According to his version, during the meeting, each of the participants told what projects he was working on in the civil appeal, what the future was like, and thus the meeting ended without any agreement or understanding on a division (p. 5326, s. 1-4, s. 18-25, p. 5856, s. 4-10).
However, these words of Zeiger in his testimony are very difficult. They did not make a reliable impression and should not be accepted.
- To begin with, in his interrogation with the Competition Authority, Zeiger denied the very existence of the meeting and his participation in it (P/222, paras. 602-610, and immediately afterwards even gave explanations to Table A/1 that they tried to distance it from the meeting; see also paras. 656-657 ibid.). The explanation he tried to give in his testimony as if he denied the meeting because he was nervous during the interrogation raised questions (p. 5324, para. 25 - p. 5325, para. 3). If the purpose of the meeting was innocent or legitimate, as claimed, it is not clear why Zeiger would have been nervous when asked about it and why he denied it while not telling the truth. Zeiger's attempt to deny the meeting and the fact that he participated in it and his answers in the interrogation that he did not remember such a meeting also raised a difficulty, taking into account that he was the most senior participant in it, that it took place in his office in Harel, and taking into account his own testimony, which showed that this was an unusual event, since there were no other meetings of this kind between him and his competitors (see, p. 5816, s. 7 - p. 5818, S. 25, and his attempt to explain there why he denied the existence of the meeting also raised questions). This has implications for the weight of the answers and the version he gave in relation to the meeting only later and in his testimony.
- In addition, Zeiger did not know how to explain in his testimony why the meeting was convened and what its purpose was as it was presented to the participants, whether before or during the meeting. After all, as Zeiger himself confirmed in his testimony, that Zeiger did not tell the other participants in the meeting, his competitors, that his purpose was to obtain information from them about the projects in which they were operating in order to "steal" them from them (p. 5860, paras. 14-19, p. 5862, paras. 1-5). When asked about this more than once, even by the court, he did not have any real answers and he did not know how the meeting was convened and what was presented - to others or to himself - as the purpose for which the meeting was held, and for what purpose each participant in the meeting presented to his competitors the projects in which he was working and the outlook for the future (p. 5861, paras. 5-6, para. 5; there he reiterated that he did not know what the purpose of the meeting was; the casual answer should not be accepted later on, as if the purpose was "to present" projects" and define the "size of the market", since the reason for this has not been clarified and since it is inconsistent with logic or evidence). Zeiger's testimony in this context raised eyebrows. This is all the more so when you take into account that the meeting took place at Zeiger himself in his office in Harel and that he was the most senior of its participants.
- In their summaries, the defendants tried to construct certain things that Naveh and Shahar said in their testimonies regarding the purpose of the meeting. This included references to statements made by Naveh and Shahar, according to which the purpose of the meeting was only to gather the information in relation to the projects at IAI, to map the projects, between existing projects that one of the companies has already begun to handle, between future projects, and to assess the financial scope of the projects so that each of the companies can know the scope of the possible business in a civil appeal and that beyond the exchange of such information, nothing was agreed upon (for example, Testimony of Naveh, p. 70, paras. 10-14; P/2, paras. 128-129; S. 244-246; Testimony of Shachar, p. 3337, S., pp. 13-15; p. 3461, paras. 3-4). They also referred to Shahar's testimony in which he confirmed that he intended to take on as many projects as possible and run over the competitors (p. 3342, paras. 12-14, p. 3341, paras. 20-22). However, the impression that arose from the testimonies of Naveh and Shahar was that in these statements they tried to minimize the content of the meeting in which they took part and to give it and their actions a legitimate aspect. Moreover, the statements referred to by the defendants contradict other statements, both by Naveh and Shahar detailed above, according to which, inter alia, the parties reached an agreement or understandings not to interfere with each other so that where one of the companies began to work with a certain project, the other companies would enable it to win the project by way of coordinating proposals while balancing the division of the projects between the companies (see paragraphs 81-84 above). Clear preference should be given to these last statements, which were made in clear contradiction to the interest, and which are also consistent with the email message and the real-time table (P/1), which clearly spoke in the "summary", "division of labor according to an agreement" and the "balance" of the scope of the activity. The claims that the meeting dealt only with the mapping of information in relation to the projects are prima facie inconsistent with another claim, which will be discussed below, according to which all the information as compiled in Table A/1 was incorrect and worthless, as well as with the very fact that a table was prepared while attributing projects, including future ones, to the companies accused in this charge.
- Zeiger and Harel claimed that Harel had no interest in agreeing to a division or balance between the competitors. The essence of the argument is that since 2007, when Harel won the Comptroller General's agreement, it was Harel that won most of the sales to civil appeal, and therefore any coordination with the other companies, as alleged, involved a waiver and loss on Harel's part and was not worthwhile for it (e.g., Zeiger Notice, P/222, paras. 812-820). This state of affairs - this is the argument - supports the fact that no arrangement has been made.
I cannot accept these arguments.
- The arguments do not change the clear evidence regarding summation and division. As noted, Zeiger and Harel did not have a logical alternative explanation that could be accepted in relation to the convening of the meeting and its purpose. Beyond that. Indeed, in the first half of 2009, among the authorized suppliers of IBM products to IAI, Harel was the one with the largest volume of sales for civil appeals (p. 5864, paras. 4-5, and Oshri, p. 4329, paras. 2-8; this is despite the fact that in certain aspects Wii was considered to have an advantage in all of the above at its technological level, for example, p. 6173, paras. 21-33, p. 6177, paras. 1-5, there in relation to non-IBM storage products). However, in this situation, it was in the interest of the other companies - V and Triple C - ostensibly to hide information from Harel about projects that Harel did not know about in an attempt to win them, and thus reduce the chances that Harel would win. This undermines the claims that the meeting was intended for a purely exchange of information. It is not for nothing that Zeiger did not have a real answer to the question of what was in Shachar and Naveh's interest in participating in a meeting in which he and Gilad would be presented with details about projects in a civil appeal that he could take advantage of (p. 5323, s. 23; and see the hardened answers, p. 5861, s. 11-13, p. 5862, s. 3-6; and the subsequent attempt to hang on to the court's question and present the meeting as "perhaps" a meeting of "thieves" in which each participant intended to deceive the others. was unreliable).
- Nor should the arguments that Harel had a potential interest in the alleged arrangement be accepted. Shachar testified that Zeiger was the one who initiated the meeting (p. 3338, para. 22). This can be reconciled with the fact that the meeting took place with Zeiger and that he was the most senior of the participants. As already cited above, Shahar testified that Zeiger asked the others 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; Zeiger himself testified that at the meeting, each of the participants noted what projects he was working on and what the future was expected to come, p. 5326, paras. 1-4, paras. 18-23; See also P/222, paras. 767-769, where Zeiger noted that he had recorded the project data for himself). Shachar 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 and that 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; See also Shahar's testimony according to which if Harel had not agreed that some of the projects would be won by other companies, she would have been exposed to price competition on their part and to harm to her profitability, p. 2908, paras. 15-25, where he confirmed the correctness of what he said in his interrogation, P/557(6), paras. 484-490). Shahar's testimony indicates that Harel had an interest in an arrangement that would prevent competition, and that this was Zeiger's position that he asked at the meeting for value and that Triple C would not interfere with Harel in the places where she worked, and in return Harel would not interfere with them where they work (p. 2644, paras. 16-23; see also Shahar's statement in his interrogation that Zeiger was angry that others were interfering with him in certain projects and asked for a meeting on the subject. P/557(4), S. 584-585, S. 592-600; In his testimony, Shachar evaded these words, p. 2637, paras. 1-3; Although in the end he confirmed that this may have been the reason for the meeting, p. 2637, paras. 19-21; and preference should be given to what is stated in the notice, inter alia, since it is consistent with his testimony in other places in relation to the meeting, as detailed above). From the testimonies cited above in relation to the conduct of the meeting and what was said in it, including regarding Harel's large relative share, and regarding "balance" by associating projects with Lewis and Triple C, it is also clear that the interest of the other companies in the arrangement also emerges (see the details in paragraph 86 above).
- An examination of the development of Harel's business vis-à-vis the civil appeal in the period prior to the settlement of the first indictment also shows that the arguments that Harel had no interest in the arrangement and the reduction of competition should not be accepted. We will discuss this in a nutshell.
In the middle of 2007, Zeiger succeeded in signing the civil appeal against the Comptroller General's agreement (p. 5287, paras. 19-24). According to Harel, this meant that when certain conditions were met, a civil appeal was required to purchase certain equipment made by IBM but from Harel, which was one of the winning suppliers in the Accountant General's tender, at a significant discount (N/10, N/77). Zeiger saw this as a big win over his competitors, including Wii and Triple C. Zeiger even called Shachar and told him, "I made you chess," meaning that Zeiger had taken the activity with IAI, and added that from now on Shachar "will not make more money" and "will not sell a screw" at IAI, and that everything will go to Harel (p. 5288, s. 3-6, p. 5592, s. 14-21, p. 5593, s. 15-16, P/222, s. 751-753, s. 774-775). Zeiger estimated that following the agreement of the Comptroller General, Harel would succeed in transferring the decisive majority of the sales to a civil appeal (p. 5484, paras. 1-5, p. 5288, paras. 20-21, p. 5682, paras. 6-12). In practice, down the road, and as already noted above, it was Harel that had the largest volume of sales for a civil appeal (p. 5864, paras. 4-5, and Oshri, p. 4329, paras. 2-8).