In our case, and in a substantial difference from the case discussed in the LIBOR case, there is no dispute, at least at this stage of the proceedings, that the direct consumers were indeed caused, as a result of the cartel, damage of the type of overcharge, and the only dispute is regarding its incarnation. Therefore, the respondent's argument that from what was determined in the LIBOR case, the conclusion is also necessary in our case that the foundation that was laid is not sufficient to prove the very existence of damage (as opposed to its amount), and that the adequacy of the evidentiary basis that was laid must be examined, in accordance with the rules set out in case law with regard to this stage of the proceedings.
In my opinion, an examination of the evidentiary basis laid by the applicant in accordance with these rules leads to the conclusion that the application passes the threshold required to prove the rollover of the damage at the level of a claim worthy of argument.
- The request for approval is supported, as stated, by the opinion of Mr. Sharon, who expressed his opinion that "the structural characteristics of the field of HDDSA production , as well as the characteristics of the cartelistic agreement, show that as a result of the existence of the said cartel, damage was caused to the purchasers of products in which HDDSA is embedded." and that "given the existence of harm to HDDSA consumers ... Thus, there was inevitably damage to the next segments of the production chain that was rolled over to the end consumer in Israel. Since there is fierce competition in the various segments down the production chain, it is reasonable to assume that the damage caused to the cartel customers has been fully rolled over down the production chain to the final consumer in Israel."
In this context, I will mention that even at the stage of the application for approval on its merits, the burden on the applicant with regard to proving the damage component is not heavy, and as a rule, he is required to prove that there is a reasonable possibility of the very existence of damage, and to propose a methodology according to which it will be possible to determine the relief due to the group, but he is not required to prove the extent of the damage (see, for example, class action (center) 10538-02-13 Success Association for the Promotion of a Fair Society v. El Al Israel Airlines Ltd. (January 19, 2020) (Request for leave to appeal was deleted) On the recommendation of the Supreme Court Panel - Civil Appeal Authority 3183/20, judgment of June 2, 2022 (hereinafter: the Cargo Cartel Case), in paragraphs 76-77 of the judgment).