Appointment of a tester
- Section 19(b)(1) of the Class Actions Law states as follows:
(b) (1) The court shall not approve a settlement until it has received an opinion from a person it has appointed for this purpose, who has expertise in the field in which the motion for certification or the class action deals with (in this section – an examiner), unless the court is of the opinion that the opinion is not required, for special reasons to be recorded; The salary and expenses of an examiner, as well as the manner of their payment, shall be determined by the Minister.
- In the explanatory notes to the Class Actions Bill, 5766-2006 (Government Bill 234 of January 26, 2006, at p. 269), it is stated with reference to sections 18 and 19 of the Class Actions Law:
The purpose of this section [referring to section 18 – M. N] and section 19 is to regulate cases in which the parties settle the dispute between them by way of a settlement arrangement, and this arrangement binds all the members of the class. The concern in these cases is that there is a conspiracy between the representative plaintiff and the defendant, so that the representative plaintiff will derive personal benefit from the settlement at the expense of the class members. In fact, in situations where a settlement is reached, a conflict of interest arises between the plaintiff's personal interest and the interests of the class, which justifies increased supervision by both the court and the class members.
- For more on the considerations involved in the appointment of an examiner, see the judgment of the Honorable Justice (as described at the time) A. Hayut in Civil Appeal Authority 1644/15 Eyal Gur v. Dor Alon Energy in Israel (1998) Ltd., para. 9 (published in Nevo, May 27, 2015); as well as the judgments of the Honorable Judge H. Kabub in Class Action 1714/08 Einav Kaplan Bashari v. Bank Leumi Le-Israel (published in Nevo, May 31, 2015) and in derivative action (Tel Aviv) 815-09-13 Barry Lenoel v. Galia Maor, paragraphs 83-86 (published in Nevo, September 14, 2016).
- For the advantages and disadvantages of appointing an examiner, as well as the positive and negative criticisms of it, see: Alon Clement, Compromise and Withdrawal in the Class Action Mishpatim 41:5,44-49 (2011); Elad Ophir, Class Actions in Israel 207-212 (2017)].
- In the circumstances of the matter before me, I have come to the conclusion that there is no need to appoint an examiner. This is not a complex financial arrangement that justifies the appointment of an examiner (in this regard, see class action 31280-04-16 Maayan Solomon v. Anipet Ltd. (published in Nevo, April 30, 2019)).
- The main part of the settlement agreement is the provision of a benefit to the public in the total amount of NIS 1,950,000 in the form of a variety of branded toys that are in the Respondent's franchise, with the average value of the toys that are the subject of the donation in terms of cost to the consumer will be between NIS 15-40.
- Taking into account the fact that the dispute in the framework of the motion for approval is mainly legal and that the nature of the settlement does not require any calculations, but is based on a judicial assessment, there is no reason to appoint an examiner in the case before me. In this regard, see Class Action (Center) 33359-06-12 Zubeida Yahya v. Beilinson Hospital (published in Nevo, November 7, 2013); Class Action (Center) 42344-12-10 Sagi Kershover v. Meir Hab for Cars and Trucks Ltd. (published in Nevo, July 7, 2013); 60199-01-17 Keidar v. S. Shostowitz Ltd. et al. (published in Nevo, November 10, 2019); Class Action (Tel Aviv) 10769-12-16 Danit Yehezkel v. Southern Marketing Company Ltd. (published in Nevo, November 18, 2019); Class Action 40158-09-17 Bahat v. Carmi Zvi Brothers Segal Ltd. (published in Nevo, May 16, 2022).
Approval of the Settlement
- The manner of approval of a settlement and the data that the court must examine when approving it are regulated in sections 19(a) and 19(c) of the Class Actions Law, as follows:
Section 19(a):