Max Stock further pointed out in the amended version of the Ashdod claim an exchange of letters in which Top-Team claimed that Mr. Max had failed in his role as a director of Max Ashdod, and hence disagreements arose with respect to the management of the company, which justify the use of clause 11(a)(4) of the Ashdod Agreement, which deals, as may be recalled, a case of "disagreements regarding the management of the company and/or the operation of the store".
Alternatively, and just as a precaution, she petitioned that the court order the separation of the parties in any other way, by which Max Stock would acquire Top Team's shares in Max Ashdod.
- The hearing of the concession claim and the Ashdod claim was consolidated, and two evidentiary hearings were held in their matter:
- On behalf of Max, Mr. Max and Investigator Aviani were questioned about their affidavits.
- Shimshon testified on behalf of the defendants in the franchise suit and in the Ashdod suit, and the counter-plaintiffs, Mr. Shimshon; Mr. Shiror - the shareholder of the Merger Center Company; Mr. Yaniv Zebihi - one of the franchisees in the Bat Yam branch; Dr. Tal Mofkadi, who was questioned about his economic opinion; and Mr. Yigal Shitrit - a director of the Superstock company, with whom the conversation was recorded by the investigator Aviani.
- The parties submitted written summaries, and now the time has come for a decision.
The main arguments of the parties
- The arguments of the parties are many and complex. I will present their main points below and address others later on. In the rest of the way, I have not found any justification for deviating from the conclusions I have reached.
Max's main claims
- According to Max Buss, it was established that the contractual system between the parties was violated, and this has consequences. From the outset, Mr. Shimshon was the living spirit behind the formulation of all the agreements. In these agreements, in the sense of kill and inviolable, confidentiality and non-compete clauses were determined.
And now, out of greed, Mr. Shimshon decided to enter as a partner in a competing chain, namely the Superstock chain. Knowing that this was forbidden, he acted cleverly and became a "shadow partner" through a straw man on his behalf - his brother Michael. Mr. Shimshon owns 20% of this chain, and his real activity can be learned, first and foremost, from the transcript of the meeting that Investigator Aviani held with Mr. Shitrit. The latter introduced himself as the CEO of the Super Stock Company, and it is clear that he knows who its real owner is. The conversation that took place with him indicates that the loan that Michael supposedly received was fictitious. What was stated in Mr. Sheetrit's testimony in court, where he tried to give compelling explanations for his words, should be rejected. This testimony was unreliable.
- Max acted responsibly. At first, rumors reached him from suppliers andservice providers about Mr. Shimshon's involvement in the competing company. But he made do with them. He hired a private investigator and acted only after the findings of the investigation arrived. The cancellation of the agreements was therefore done lawfully, in light of the severity of the findings, and without delay.
Contrary to the defendants' position, his knowledge of the cause of cancellation was formed shortly after the cancellation letters were issued. The defendants try to claim that Mr. Max learned about Mr. Shimshon's involvement in Superstock from a lawsuit filed by Mr. Haimovitz, a former employee of Max Stock. The defendant filed a lawsuit against it, which was clarified in the Haifa Labor Court (labor dispute 44899-11-17). However, an examination of the said statement of claim reveals that it does not reflect Mr. Shimshon's improper involvement, and this was established, as stated, only following the findings of the private investigator.