The claim that Harel had an advantage in view of the agreement with it stands in contrast to Wee's claim that her win was assured from the outset in light of the actions she took vis-à-vis the project's entities. As stated above, Knitork explained in his testimony that it was precisely the fact that each company had a comparative advantage that put the acquisition of ELTA in a better position in terms of competition. In any event, allegations of contractual breach or bullying conduct as aforesaid cannot establish a justification for coordinating proposals (as opposed to the possibility of taking legal measures; see and compare the discussion in paragraph 180 above).
- Therefore, Harel's arguments should not be accepted and do not change the incriminating conclusion.
The Third 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 third indictment – VMware Lab – between Wei and Oshri and Harel, all as described in the third indictment. Therefore, I convict Wei and Oshri and Harel 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. In addition, for the reasons detailed above, I convict Oshri, Wei and Harel of the offense of fraudulent receipt under aggravated circumstances, an offense under section 415 of the Penal Law. With respect to the defendant companies – Wei and Harel – 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 third indictment, Oshri was also charged with an offense under Section 48 of the Competition Law, in addition to the offense of a party to a restrictive arrangement discussed above.
- For the reasons detailed above in the discussion of section 48 in relation to the previous charges (paragraphs 108-118, 216-218 above) – here too it was proven that the elements of the offense under section 48 of the Competition Law were satisfied with respect to the third charge and the date on which it was committed: he is 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. As determined above (ibid.), there is no impediment to convicting a defendant of the offense of breach of the duty of supervision even to a defendant who was a party to the restrictive arrangement, when the elements of this offense are also met, as was found above in relation to Oshri.
The Fourth Charge
The Fourth Charge: The Baltimore Project - Balm from January 2010
- The fourth indictment was directed at Shachar and Wee, Gilad and Harel, Naveh and Triple C. According to the indictment, in January 2010 or thereabouts, ELTA approached a number of companies to receive bids for the Baltimore project. The aforementioned defendants were credited with being a party to an arrangement whereby V and Triple C would submit bids higher than Harel's offer in order to enable Harel to win Baltimore for about $500,000. According to the allegations, the parties submitted their proposals in accordance with the settlement. Oshri and Nahum are credited with not supervising and doing everything possible to prevent an offense under the Competition Law. The case of Shahar, Gilad and Naveh ended, as stated above, in plea bargains. All three were convicted of a felony of a party to a restrictive settlement in Baltimore. The remaining companies – V, Harel and Triple C – are attributed an offense by a party to 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 together with section 23(a)(2) of the Penal Law. Oshri and Nahum are attributed the responsibility of officers by virtue of Section 48 of the Competition Law.
Discussion