To the court's question, do I think that when the National Lottery says such a message, is it telling the truth [...] I answer that yes, it is true. Of course, in my personal opinion."
- However, this personal opinion is not supported by the position of the professionals. Dr. Regev and Prof. Pfebich both agreed that there are no combinations that have a higher probability of winning the lottery. Mr. Chen himself admitted that his judgment is "not necessarily scientific". Creating a representation according to which the use of the method increases the chances of winning, as a statistical conclusion, constitutes a representation that is ostensibly misleading.
- As stated, the representation that the Respondent is assisted by a team of experts and statisticians also raises a difficulty when the team appoints one person, Mr. Gabi Schlesinger, who was not summoned to testify, with all that this entails.
- For the sake of completeness, it should be noted that the Respondent also states in its Articles of Association that "the Subscriber declares that he is aware that the lotteries are conducted by the Lottery, and Club 4 U has no control over them at all." The Subscriber hereby declares and agrees that Club 4U does not guarantee any winning of any prize and is not even responsible for the chances of success of the Subscriber in any lottery or any prize of the Lottery." and that "the Client declares that it is clear to him that the Company is not and cannot be responsible for the Client's chances of success in any lottery or prize. The chances of success are subject to the theory of probabilities over which the Company has no control." However, this general statement does not change the general representation made by the Respondent on its website and in its Articles of Association, and this creates a reasonable chance of determining that this Respondent is also making such a misleading representation.
- As for a conversation that took place between a researcher on behalf of the applicant and a representative of respondent No. 5, in which the representative was asked directly whether the use of the respondent's methods increases the chances of winning the prize, the representative emphasized that "we are not prophets and we do not pretend to predict the numbers in the lottery. We do promise one thing. Participation in all the lotteries, the number of tables and the higher chances of winning thanks to perseverance. The moment you persevere, the chances of winning are great." The representative also noted, when asked about the advantage of choosing numbers from the respondent's database of numbers, that "[...] And beyond that, I explained to you that there is a database of numbers that was actually prepared by statisticians using all kinds of engineering series, calculations that they claim that the chances of winning there are slightly higher, even though I tell you that in the lottery nothing is expected."
- Even if the representative, when asked about this directly, clarified that the advantages of the Respondent's statistical methods are negligible, this does not negate the Respondent's representations as they are visible to the public on the Respondent's website and which create the impression that the Respondent has special statistical methods that increase the chances of winning.
- In summary, it appears that respondent No. 5's representations, regarding improving the chances of winning and the use of statistical methods, with the assistance of a team of experts, are prima facie liable to mislead its clients regarding a material interest in the transaction, and there is a reasonable chance that in this matter the Applicant's claim will be accepted in the main proceeding.
Respondent 6 - Lotto Six
- The website of respondent 6 declares that "the club offers customers a variety of unique and attractive tracks, in which their chances of winning the lottery game increase." In the details of the routes on the website, it is stated that there is also a "special bonus for joiners! Every Tuesday, you also participate in a program that includes 100 lottery tables (fixed numbers, to be selected from advanced statistical software) with a group of participants that includes 100 members." In the engagement agreement with the Respondent, it is explained that the software is "an advanced statistical software containing game data from recent decades in the Israeli and global lottery lotteries, filling out the forms using the software is a trade secret of the company" (emphases added – the undersigned).
- Alon Shiri, the witness on behalf of respondent 6, was asked during the interrogation about the advanced statistical software allegedly used by the respondent (p. 119 of the transcript):
"Q. Tell us about your advanced statistical software
- As I said, it was done 20 years ago and I don't remember how it was done
[...]
- And if that person had asked about that advanced software, what information would have been provided?
- I'll tell him that it's 100 group lottery tables. At the time, when these tracks came out, the company was bigger and had more professionals and managers, and that's not my area of expertise. I'm sure someone whose field of work can give you a better answer as to how these forms were executed.
- And who is he?
- Ofer Alfasi
- He is your partner to this day
- The business of the two of us. [...].
- Alfasi's familiarity with that better software
- He was in contact with people at the time. As for the statistical software – I don't have an answer to that. That was Ofer's field of work. He was in contact with people at the time. I don't know how to explain it, and these are also things from 20 years ago."
Mr. Shiri did not know how to answer about that alleged advanced statistical software, and referred the questions to Mr. Ofer Alfasi, his partner in the Respondent's business, who according to him dealt with the matters of the statistical software in the past. On behalf of Mr. Alfasi, he did not attach an affidavit and he did not testify before me.