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The Acting President (retired), the Honorable Justice Vogelman, in the minority, was of the opinion that the request for approval of savers should not be dismissed out of hand, but rather that the decision on the various questions, including the existence of prima facie damage, should be left to the stage of the hearing of the application for approval on its merits.
A motion for an additional hearing in the judgment in the LIBOR case was rejected by the Honorable President Amit, noting that with regard to the criteria for the summary dismissal of a motion to certify a class action, no new precedent was established in the judgment, but rather that the judges of the panel applied the criteria customary to the circumstances of the case, while the majority justices were of the opinion that the motion for approval filed on behalf of the group of savers was filed without laying a minimum sufficient basis for the question of whether damage was caused to those savers at all (Additional Civil Hearing 46246-01-25 Success - For the Promotion of a Fair Company (NPO) v. UBS AG (March 5, 2025).
Thus, in the LIBOR case, the three members of the panel unanimously ruled that an indirect victim of an international cartel had a cause of action under the laws of competition, where the damage caused as a result of the cartel was rolled over to him; At the same time, the majority justices ruled that the applicants in that case, whose claim for the rollover of the damages relied on the economic opinion of the expert, Mr. Sharon, which was based, to a considerable extent, Estimates and conjectures - does not constitute a sufficient evidentiary basis in order to pass the minimum threshold required to prove the damage component in order to prevent the claim from being dismissed out of hand. In the judgment given in the additional hearing, it was argued that this determination of the majority justices is not a new rule, but rather an application of the customary rule regarding the evidentiary standard required at the stage of summary disposal, to the circumstances of the concrete case.
- The application of these words to our case, taking into account the case law that is customary in the matter of the evidentiary standard required for the procedural stage in which we have been for a long time, leads, in my opinion, to the conclusion that the application meets the relatively low threshold of a claim worthy of argument, with regard to the fulfillment of the requirements for the application for approval to be produced outside the field, and in particular with regard to the possibility of the existence of damage that was rolled over to the shoulders of the Israeli consumer.
There is no denying that the Respondent has many arguments that on the face of it are not without weight, with regard to the remoteness of the damage and the probability of its rollover, in whole or in part, up to the Israeli consumer. At the same time, it is also not possible to ignore the fact that at this stage of the proceedings, the Respondent does not deny the existence of the cartel, nor does it deny that it caused damage to the direct consumer, who is the purchaser of the assemblies (a section referred to by the Respondent as the HSA segment, which it claims was omitted by the Applicant and the expert on his behalf). It should be said at once that on this point, our case differed substantially from the matter discussed in theLIBOR case, in which, in view of the unique characteristics of the cartel in question, it was not at all clear whether any damage was caused to the "direct consumers" (who are the institutional bodies, which are claimed to be the direct victims who passed on their damage to the savers, who are the indirect victims). This is because the alleged influence of the cartel discussed in that case was not uniform, so that in some cases it acted to the detriment of the "direct consumers" and in other cases it acted in their favor, in accordance with the position of the panelists, and therefore it was first necessary to substantiate the claim that the institutional bodies, which were claimed to be the direct victims, did indeed cause damage, which could have been passed on to the indirect victims. This unique characteristic was a significant reason for the majority justices' position, according to which the evidentiary basis laid in that case was not sufficient to prove the very existence of damage to the members of the class (see paragraphs 211-216 of the judgment of the Honorable Justice Kabub, and paragraphs 17-18 of the judgment of the Honorable Justice Mintz; as may be recalled, the minority judge, the Honorable Acting President Fogelman, also held in the same matter that the arguments regarding the failure to prove the damage do not justify the dismissal of the proceeding in limine and should be clarified in the framework of the proceeding the main one).