The Respondent further argued that the Applicant distorts the judgments to which he referres, including the judgment given in the LIBOR case, which determined that a concrete evidentiary basis is required for the existence of damage that was rolled, as well as the decisions made in the United States and Canada, which were given in circumstances in which the standard of proof is much lower than what is required for a cause of action under Regulation 166(5). These decisions did not establish a "presumption of rolling damage" and did not examine the existence of damage in Israel.
- As it emerges from the above, the main dispute between the parties with regard to the question of the existence of a cause of action is the question of whether the Applicant was able to lay a sufficient evidentiary basis for this stage of the proceedings, for the existence of damage to the Israeli consumer (who purchases the hard drive or the finished product in which it is installed), and in fact whether the Applicant was able to lay a sufficient basis for the claim that the damage caused to the direct consumer (the purchasers of the assemblies that manufacture or install the component in which it is integrated and which in turn will serve as an input in the hard drive) is the result of the cartel. The respondents (the manufacturers of the assemblies) rolled down the value chain of the product, until the consumer purchases the hard drive or finished product sold in the Israeli market.
- A central element in the parties' arguments with respect to the evidentiary standard that the applicant is required to meet with regard to proving the damage and its incarnation is the judgment given by the Supreme Court in the LIBOR case, which each of the parties interpreted as supporting its position.
In the LIBOR case, a motion was filed to certify a class action against foreign banks, which were alleged to have been involved in an affair known as the "LIBOR manipulation", in which they carried out prohibited coordination that caused the LIBOR interest rate to be biased, and thus caused damages to the class members, which are expressed in a decrease in the value of the financial assets they held, which were based on the LIBOR interest. The application for approval was filed on behalf of two main groups: the group of direct victims, which are institutional entities that held financial instruments based on LIBOR; and the group of indirect victims, which are the savers who invested their money through those institutional entities, and to whom the damage or part of it was allegedly transferred to them. In the Supreme Court's ruling, the applicants' appeal against the rejection of the motion for approval in limine was rejected.