With regard to the group of savers, the indirect injured parties, which is relevant to our case, the Supreme Court ruled, unanimously, for the first time, that a cause of action for an indirect injured party by virtue of competition law should be recognized in principle, where damage caused by a restrictive arrangement was transferred to it.
At the same time, the Honorable Justice Kabub (who wrote the majority justices' position) was of the opinion that boundaries and qualifications should be established for this cause of action, while emphasizing the priority of filing the claim by the direct victims, and making its filing by the indirect victims conditional on prior contact with them. The Honorable Justice Kabub noted that in that matter, the Applicants did not contact the institutional entities at all prior to the filing of the claim, and therefore the question of whether there was any damage to the financial assets held by these entities was not sufficiently clarified, and as a result, even the opinion that the Applicants attached to the application for approval, which is based on a preliminary and limited estimate, is not sufficient to establish the basis of the damage to the extent required at the stage of the hearing of the application for approval.
The Honorable Justice Mintz was also of the opinion that the motion for certification filed on behalf of the indirect injured parties in the same matter should be dismissed in limine. However, he found that there was no precedent regarding the existence of a duty to contact the direct injured party in advance, and instead determined that the answer lies in ensuring that the applicant meets the preliminary conditions required for the certification of the class action , including the presentation of a minimal evidentiary basis regarding the damage caused to the savers. In the same matter, the Honorable Justice Mintz was of the opinion that the Applicants did not meet this burden, since they did not lay a sufficient minimum basis with regard to the question of whether the investors suffered damage at all and what its nature was, since the opinion submitted on their behalf was based on a very limited evidentiary basis and was prepared solely by way of an estimate, and therefore it was justified to dismiss the application for approval in limine.