Private Litigation

Last verified on Wednesday 15th July 2020

Private Litigation: Israel

Talya Solomon and Iris Achmon

Herzog Fox & Neeman

Effect of public proceedings

1. What is your country’s primary competition authority?

Israel

Israel’s primary competition authority is the Israeli Competition Authority (ICA), which was formerly the Israeli Antitrust Authority. It is headed by the Israeli Competition Commissioner. The Commissioner’s decisions are subject to review by the Competition Tribunal. All criminal antitrust litigation is conducted in the Jerusalem District Court.

Answer contributed by Talya Solomon and Iris Achmon

2. Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?

Israel

The ICA has considerable investigatory powers. The ICA may initiate a criminal investigation with or without support from the Israeli police; detain suspects; summon witnesses; seize documents, materials and computers (including mobile phones); and bring criminal charges before the Jerusalem District Court.

Answer contributed by Talya Solomon and Iris Achmon

3. Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?

Israel

Yes. There is nothing in the law to prevent parallel litigation.

Answer contributed by Talya Solomon and Iris Achmon

4. Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?

Israel

The general rule is that a stand-alone private claim will not be stayed. Nonetheless, it is not uncommon after the claim has been filed, for the defendants to file a motion to stay the civil proceedings until a decision is reached in the administrative or criminal case. The court has discretion to grant such a motion if special considerations exist such as obstruction of justice concerns.

Answer contributed by Talya Solomon and Iris Achmon

5. Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?

Israel

‘Determinations of breach’ issued by the Commissioner under the Economic Competition Law, 1988 (ECL) serve as prima facie evidence in any legal proceedings. Nonetheless, the parties to the civil litigation are entitled to submit contradictory evidence. Findings and conclusions of a conclusive incriminating verdict may also serve as prima facie evidence in a civil case against the defendant, or someone whose liability stems from that of the defendant. Contradictory evidence may only be filed subject to the court’s specific permission.

Certain documents produced by foreign official authorities, including courts, may be considered as admissible ‘public certificates’, according to the Israeli Evidence Ordinance [New Version], 1971. In addition, foreign enforcers’ decisions may be considered under general estoppel or impediments laws. To date, there is no binding precedent regarding competition authorities’ decisions, and the admissibility of such decisions has been termed by an Israeli District Court ‘a difficult question’. Decisions made by sector-specific regulators can be used by private claimants as evidence, under specific circumstances.

Answer contributed by Talya Solomon and Iris Achmon

6. Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?

Israel

No. The Israeli Leniency Programme for Cartel Offences only refers to pressing criminal charges. Furthermore, unless otherwise agreed under the leniency settlement, the Commissioner may issue an administrative determination of breach against the leniency applicant, thereby creating prima facie evidence against the applicant in civil follow-on litigation.

Answer contributed by Talya Solomon and Iris Achmon

7. Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?

Israel

With regard to documents and data collected during the ICA’s administrative proceedings – plaintiffs may file with the ICA a request for information under the Freedom of Information Law, 1998 (FOIL). The general rule under the FOIL is disclosure, but exceptions include considerations of the Authority’s resources and efficiency; state security; trade secrets and business interests.

With regard to documents and data collected during the ICA’s criminal proceedings, the data will not be disclosed during the investigation, and will usually not be disclosed during the criminal trial, to prevent obstruction of justice. Once the trial has ended, the court’s underlying preference is for disclosure of the court file. A motion for disclosure of the court file will be examined in three stages: Does the law prevent the disclosure? If not, is there is a justification for disclosure, taking into consideration the public interest, the applicants’ interest, and the interests of third parties, as well as the parties to the proceedings? If the court finds that there is a justification for disclosure, then it will take measures to minimise harm to the parties who objected to the disclosure.

Answer contributed by Talya Solomon and Iris Achmon

8. Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?

Israel

There is no privilege for information submitted by leniency applicants with the ICA. If the leniency applicant is a party to the civil antitrust litigation, their leniency information may be requested directly from them within the framework of civil litigation discovery proceedings (no direct court ruling exists with respect to this particular issue). To avoid discovery, the leniency applicant must demonstrate that a recognised privilege applies to the evidence or that it is irrelevant.

Answer contributed by Talya Solomon and Iris Achmon

9. Is information submitted in a cartel settlement protected from disclosure?

Israel

There is no specific privilege for information submitted in a cartel settlement and that information is subject to the general rules (see question 7).

Answer contributed by Talya Solomon and Iris Achmon

10. How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?

Israel

As explained above (see question 7), the hearing court will aim to achieve a balance between the third party’s interest in confidentiality and the litigating parties’ interest in disclosure. The third party will have locus standi in court to defend its interests. The court has discretion on how to handle such information, including such measures as an order that the proceedings should be held in camera or a protective order.

Answer contributed by Talya Solomon and Iris Achmon

Commencing a private antitrust action

11. On what grounds does a private antitrust cause of action arise?

Israel

Any act or omission in breach of the ECL is also a tort under Israeli Tort Ordinance. In addition, according to the Class Actions Law, 2006, class actions may be filed with regard to any breach of the ECL. Such breaches may also be considered infringement of other laws, such as unjust enrichment or deception.

Answer contributed by Talya Solomon and Iris Achmon

12. What forms of monetary relief may private claimants seek?

Israel

Private claimants may seek their actual damages and under special circumstances may also seek punitive damages. There are no double or treble damages in Israel. Nonetheless, a Bill has been initiated by the ICA to amend the law and set treble damages. This issue was not included in the 2019 ECL reform.

Answer contributed by Talya Solomon and Iris Achmon

13. What forms of non-monetary relief may private claimants seek?

Israel

Private claimants may seek a mandatory (affirmation) injunction or prohibitory injunction to end or prevent any breach of the ECL. Claimants may also seek a declaratory judgment with regard to an antitrust breach.

Answer contributed by Talya Solomon and Iris Achmon

14. Who has standing to bring claims?

Israel

Any person who suffered damage as a result of an alleged breach of the ECL may bring claims. There is no binding Supreme Court precedent as to the legal standing or otherwise of indirect purchasers. Although in the District Court, indirect purchasers’ claims have been accepted, the Court has cautioned that such standing cannot be extended to endless circles of indirect purchasers and there must be some ‘rivalry’ or ‘proximity’ between the claimant and the defendant.

Answer contributed by Talya Solomon and Iris Achmon

15. In what fora can private antitrust claims be brought in your country?

Israel

Private antitrust claims are brought before the regular civil courts system.

Answer contributed by Talya Solomon and Iris Achmon

16. What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?

Israel

The main principle regarding international and venue jurisdiction in Israel is the territorial principle, namely, that the courts have jurisdiction over defendants who are present within the Israeli territory and who receive service in Israel. Accordingly, service of a claim outside the Israeli jurisdiction requires obtaining leave for service from a court, in accordance with one of the alternatives stipulated in Regulation 500 of the Israeli Civil Procedure Regulations, 1984 (the Regulations). For example, a court may allow such service if the claim concerns an ‘act or omission’ in Israel (Regulation 500(7)). Under Israeli law, which was recently confirmed by an Israeli Supreme Court ruling dealing with an alleged international cartel, if only the damage occurred in Israel (as opposed to the act or omission that constitutes the claim) Regulation 500(7) will not apply and service outside the jurisdiction will not be allowed.

However, under Regulation 482 of the Regulations, an Israeli court may find that service to a person (including an entity) in Israel with whom the foreign defendant has an ‘intensive connection’, such as a local agent, distributor or representative, suffices as service to the foreign defendant itself. The test applied by the courts in this regard is not whether the foreign defendant had practically been made aware of the claim, but rather whether the nature of the foreign defendant’s relationship with the local entity is such that it should be assumed that the Israeli entity would notify the foreign defendant about the claim. A recent amendment to the Regulations appears to have narrowed this way of service, only to situations where the Israeli entity, at the time of service, deals, on behalf of the defendant, in the same business that is the subject of the litigation.

In addition to the above, a foreign defendant may object to the court’s international jurisdiction, based on the well-known forum non conveniens doctrine. In this regard, the court will examine, inter alia, a number of considerations, such as the parties’ place of residence and business, access to evidence, the feasibility of summoning witnesses and the expenses involved in such summoning. The party raising the forum non conveniens argument is required to convince the court that the balance clearly tilts towards the foreign jurisdiction. Courts do not often accept a forum non conveniens argument.

Answer contributed by Talya Solomon and Iris Achmon

17. Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?

Israel

Theoretically the answer is in the positive. In practice, until now, antitrust claims have been based on the Israeli ECL, which is a cogent in rem law.

Answer contributed by Talya Solomon and Iris Achmon

18. Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?

Israel

The preliminary requirements for initiating a claim are as follows: a filing fee between 1 per cent and 2.5 per cent of the claim or a filing fee applicable to the specific procedure. Security may also be required in a case of a claim for an injunction. Filings fees are not required with regard to class actions although a pending Bill aims to set such filing fees.

The statement of claim must include, in addition to technical details, the main facts giving rise to the claim, the origin of the claim and when it first arose (see question 21), facts demonstrating jurisdiction of the court over the claim, the relief claimed, the value of the claim (to the extent it can be valued) and any sums the claimant agrees to offset or waive.

Service of claim to the defendants should be made by the plaintiff (service must be in accordance with the Regulations).

Answer contributed by Talya Solomon and Iris Achmon

19. What is the limitation period for private antitrust claims?

Israel

The period of limitation for private claims is seven years. The period generally commences on the day when the claim first arose, but may start later or be suspended (see questions 21 and 22).

Answer contributed by Talya Solomon and Iris Achmon

20. Are those time limits procedural or part of the substantive law? What is the effect of their expiry?

Israel

The limitation period for civil claims in Israel is procedural and not substantive. Claims with regard to which the period of limitation has elapsed may be raised as defence, counter-claim or a claim of set-off.

Answer contributed by Talya Solomon and Iris Achmon

21. When does the limitation period start to run?

Israel

Subject to certain exceptions (see question 22), the limitation period under Israeli law is seven years, which are counted as of the day in which the relevant act or omission occurred (and for an ongoing act or omission, the day it ceased). When the claim is based on damage caused by an act or omission, the limitation period will commence on the later of: the day when the damage occurred or the day it first became known, but no more than 10 years from its occurrence. Admission of liability by the defendant (in writing, in court or by way of an act constituting partial performance) restarts the limitation period.

Answer contributed by Talya Solomon and Iris Achmon

22. What, if anything, can suspend the running of the limitation period?

Israel

Exceptions to the general rules regarding the period of limitation include: where the claimant refrains from filing an action because the defendant (or anyone on its behalf) knowingly misleads the claimant, forces, threatens or exploits hsi or her weakness, in which case the period of limitation will commence on the date on which the facts constituting the cause of action became known to the claimant; where the facts constituting the cause of action were unknown to the claimant for reasons beyond the claimant’s control and which the claimant could not have eliminated, even by exercising reasonable care, in which case the period of limitation will commence on the date on which the facts constituting the cause of action became known to the claimant. Filing the claim also suspends the limitation period.

Answer contributed by Talya Solomon and Iris Achmon

23. What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?

Israel

The facts stated in the statement of claim must give rise to the stated cause. In this regard, if, even assuming all the facts stated in the claim were proven to be correct, but the facts would not give rise to the claimed breach, then the claim would be dismissed.

Answer contributed by Talya Solomon and Iris Achmon

24. Is interim relief available? What must plaintiffs show for the court to grant interim relief?

Israel

A plaintiff who seeks interim relief must convince the court that: there is prima facie evidence to prove the claim and that the claim has a good prospect of succeeding; and that the ‘balance of convenience’ tends toward granting the interim relief (such that the expected damage to the plaintiff if not granted temporary relief, and if the court eventually accepts the claim, is greater than the expected damage to the defendant if the temporary injunction is granted and the claim is eventually rejected). These two conditions are not examined separately, but are weighed together.

According to a Supreme Court precedent, when considering interim relief, the court will not decide on complex factual questions, such as the competitive analysis of agreements or actions. Consequently, interim relief is rarely granted in antitrust cases.

Answer contributed by Talya Solomon and Iris Achmon

25. What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?

Israel

The defendant may:

  • file a statement of defence;
  • file a motion to dismiss the claim on preliminary grounds; for example, if the claim fails to demonstrate cause, if the court has no jurisdiction, if the applicable limitation period has elapsed, if res judicata exists between the parties in the matter, or if the filing fee paid is insufficient;
  • file a counterclaim against the defendant; and
  • file a third-party notice against a third party, arguing that if the defendant is found liable, then the third party will be liable towards the defendant with respect to the plaintiff’s claim or part thereof.

The likelihood of motions to dismiss being granted depends on the nature of the arguments raised, although generally speaking, courts do not often grant such motions.. The court may decide to hear the preliminary arguments either before or with the arguments on the merits of the case, and may decide on such preliminary arguments either separately, prior to the adjudication of the case, or together with its ruling in the case, at the end of the trial.

Answer contributed by Talya Solomon and Iris Achmon

Disclosure/discovery

26. What types of disclosure/discovery are available? Describe any limitations and the courts' usual practice in ordering disclosure/ discovery.

Israel

After filing the pleadings, the parties conduct discovery proceedings that may include questionnaires and requests for the disclosure of documents. Each party may file motions to the court for further disclosure if they consider the other party’s disclosure lacking, including when legal claims raised therein, such as claims of privilege, are inapplicable. The court’s decision will be based, first and foremost, on the principle of maximum disclosure of information that is relevant to the case. The court will also consider procedural efficiency, the legitimate interests of the disclosing parties and third parties’ interests in the documents subject to disclosure between the parties.

Answer contributed by Talya Solomon and Iris Achmon

27. How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?

Israel

Where commercially sensitive information is relevant to the dispute, the court will tend to order its disclosure. Nonetheless, the court may take measures to protect the information, such as partial disclosure or an order that in camera discussions should take place.

Answer contributed by Talya Solomon and Iris Achmon

28. What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?

Israel

Attorney–client communications that have substantive connection to the professional legal service enjoy a privilege that is absolute and may be waived only by the client. Absolute privilege is also granted to religious confessions. Additionally, there are several ‘relative’ privileges. Such privileges may be removed where the courts deem that the interest of justice overrides the need for such privilege. Examples are communications with doctors, psychologists and banking institutions. Privileges developed by Israeli courts include a reporters’ privilege, and a privilege for documents that were prepared in relation to or in anticipation of legal proceedings. For trade secrets, the rule is disclosure, but the court may order non-disclosure with regard to evidence containing trade secrets if it finds that the need to do so supersedes the need to disclose the evidence for the sake of justice, and if other measures such as an order of confidentiality are insufficient to protect the trade secret.

Answer contributed by Talya Solomon and Iris Achmon

Trial

29. Describe the trial process.

Israel

The hearing court may order a pretrial to review and order corrections to be made to the parties’ pleadings, summon additional parties, decide on disclosure issues, and other procedural and evidentiary matters such as the appointment of experts. Once disclosure procedures (see questions 26–28) have been completed, primary testimony including relevant documents is filed in writing by way of affidavits or expert opinions, first by the claimants, and then by the defendants. The parties may file response affidavits if permitted by the court. At the trial, each party cross-examines the other party’s witnesses – first the claimant’s witnesses and then the defendant’s witnesses. Eventually, each party makes their closing arguments. Although the default is oral argument, the court may order that the closing arguments should be written or in accordance with any combination of the two.

Answer contributed by Talya Solomon and Iris Achmon

30. How is evidence given or admitted at trial?

Israel

In civil antitrust litigation, evidence is usually given in writing by way of affidavits or expert opinions. At the trial, each party cross-examines the other party’s witnesses. Evidence may be presented to witnesses in cross-examination if such evidence was included in the disclosure proceedings, and even if it was not included in the primary testimony affidavits.

Answer contributed by Talya Solomon and Iris Achmon

31. Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?

Israel

The main kind of experts who appear in antitrust litigation are economic experts who give opinions on market definition, the economic effects of a specific practice, quantifying the damages and related matters. Usually, each party appoints its own expert. However, on occasions, the court will appoint an expert to review a specific issue.

Answer contributed by Talya Solomon and Iris Achmon

32. What must private claimants prove to obtain a final judgment in their favour?

Israel

A private claimant must prove the facts giving rise to the cause, the damage, and the factual and the legal causal connection between them.

Answer contributed by Talya Solomon and Iris Achmon

33. Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?

Israel

Antitrust-specific defences include:

  • with regard to restrictive arrangements, the existence of a statutory exemption or block exemption, including, inter alia: an act of state exemption for arrangements that stem entirely from the provisions of a law or regulation (similar to the Noerr-Pennington doctrine), exemptions for certain agreements concerning intellectual property, exemptions for certain agreements within a single economic unit and exemptions for specific industries (agriculture, defence, transportation); and
  • the passing-on defence, which has been briefly considered in one Supreme Court case (in obiter dicta) and recent District Court decisions have tended to uphold indirect purchasers’ claims (thereby potentially giving rise to pass-on claims by defendants) but as of the time of writing there is no binding precedent on the matter (see question 14).

In addition, there are some general defences in tort law such as absence of rivalry or contributory negligence. For example, the District Court has dismissed the claim of a party to a restrictive arrangement who sought damages for the same restrictive arrangement to which it was a party.

In each of these cases, the burden of proof lies on the party that is seeking to raise the defence.

Answer contributed by Talya Solomon and Iris Achmon

34. How long do private antitrust cases usually last (not counting appeals)?

Israel

Private antitrust cases usually last several years, not including appeals.

Answer contributed by Talya Solomon and Iris Achmon

35. Who is the decision-maker at trial?

Israel

In general, decisions are made by a single professional judge. Appeals are usually heard by a panel of three or more judges, except with regard to interim decisions. Israel has no jury system.

Answer contributed by Talya Solomon and Iris Achmon

Damages, costs and funding

36. What is the evidentiary burden on plaintiffs to quantify the damages?

Israel

As in most civil cases, the burden of persuasion that applies is a preponderance of the evidence. This standard requires the judge to rule in favour of the claimant if the claimant is able to demonstrate that a particular fact or event was more likely than not to have occurred. The same burden applies with regard to damages.

Answer contributed by Talya Solomon and Iris Achmon

37. How are damages calculated?

Israel

Since most private antitrust claims end in a settlement, there is little precedent with regard to the calculation of damages. In cases of cartel or excessive monopoly pricing, the damages have been viewed as the gap between the actual purchase price and the estimated purchase price if effective competition existed. One method of estimating the counterfactual competitive price is to compare prices or profitability with equivalent markets where effective competition does in fact exist, such as overseas markets or similar product markets. Another method is estimating the expected price by examining the costs and allowing for a reasonable profit, as accepted in the relevant industry.

Answer contributed by Talya Solomon and Iris Achmon

38. Does your country recognise joint and several liabilities for private antitrust claims?

Israel

Israel recognises joint and several liability for private claims. In fact, the default in tort claims is joint and several liability

Answer contributed by Talya Solomon and Iris Achmon

39. Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?

Israel

A defendant may file a third-party action against co-defendants or third parties. There is no antitrust-specific precedent in this regard and we are not aware of such lawsuits among the members of a cartel.

Answer contributed by Talya Solomon and Iris Achmon

40. Can prevailing parties recover attorneys’ and court fees and other costs? How are costs calculated?

Israel

Prevailing parties are entitled to attorney’s fees and other costs, including court fees according to the hearing court’s discretion. Nonetheless, attorney’s fees prescribed by the courts almost never cover the actual costs of the trial.

Answer contributed by Talya Solomon and Iris Achmon

41. Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?

Israel

The court may refrain from imposing costs according to its discretion. The court may consider the parties’ conduct during the trial in this regard.

Answer contributed by Talya Solomon and Iris Achmon

42. May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?

Israel

With regard to antitrust claims, fees are calculated as decided between the attorney and their clients.

Answer contributed by Talya Solomon and Iris Achmon

43. Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?

Israel

There is nothing under applicable law to prevent funding of another party’s litigation costs. In fact, the state grants funding to certain class actions with ‘public and social importance’. Private parties may cover the litigation fees for other private parties.

Tort claims cannot be sold to others according to the Tort Ordinance. This includes antitrust claims under the ECL (see question 11).

Answer contributed by Talya Solomon and Iris Achmon

44. May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?

Israel

There is no express legal provision against such insurance. Nonetheless, as a matter of practice, Israeli insurance companies do not generally insure against this kind of risk. A bona fide breach might be covered by professional liability insurance.

Answer contributed by Talya Solomon and Iris Achmon

Appeal

45. Is there a right to appeal or is permission required?

Israel

For final rulings, there is a right to a single appeal to a court of higher instance. A second appeal can only be filed with the appellate instance’s permission. Certain types of interim decisions cannot be appealed before the rendering of a final ruling, while an appeal on other types of interim decisions requires specific permission.

Answer contributed by Talya Solomon and Iris Achmon

46. Who hears appeals? Is further appeal possible?

Israel

If the first instance is the District Court, then the appellate instance is the Israeli Supreme Court, from where no further appeal is possible. In rare cases, the Supreme Court may conduct an additional hearing before an extended panel of judges. If the hearing court is the Magistrates’ Court, then the parties may appeal to the District Court, whose decision may be appealed with specific permission, to the Supreme Court. An appeal regarding a court registrar’s decision may be heard by a judge of the same court.

Answer contributed by Talya Solomon and Iris Achmon

47. What are the grounds for appeal against a decision of a private enforcement action?

Israel

Generally speaking, the appellate instance will not concern itself with factual findings of the hearing court. Accordingly, the grounds for appeal will normally concern errors of law.

Answer contributed by Talya Solomon and Iris Achmon

Collective, representative and class actions

48. Does your country have a collective, representative or class action process in private antitrust cases? How common are they?

Israel

Yes, breaches of the ECL are subject to class action proceedings.

Answer contributed by Talya Solomon and Iris Achmon

49. Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?

Israel

The following persons are entitled to file a motion to certify: an individual who has a personal claim; a public agency with respect to one of the areas of its public purposes; and a non-profit organisation with respect to one of the areas of its public purposes, and only if the court determines that there is difficulty in having an individual claimant file the motion to certify the claim as a class action.

Answer contributed by Talya Solomon and Iris Achmon

50. What is the standard for establishing a class or group?

Israel

To establish a class or a group, the applicant is required to demonstrate that there are substantive questions of fact and law, which are common to all class members.

Answer contributed by Talya Solomon and Iris Achmon

51. Are there any other threshold criteria that have to be met?

Israel

The court may certify a claim as a class action only if it finds that all of the following conditions are met:

  • the lawsuit raises substantial questions of fact or law that are common to the class, and there is a reasonable likelihood that such questions would be decided in favour of the class;
  • a class action is the efficient and appropriate means of resolving the dispute under the circumstances
  • a reasonable basis exists to assume that the interests of all members of the class will be properly represented and managed; and
  • a reasonable basis exists to assume that the interests of all members of the class will be represented and managed in good faith.

In addition, it should be established that the plaintiffs have a personal claim against the defendants, unless the motion to certify the class action was filed by a public agency or non-profit organisation. The court may accept the motion to certify, accept it subject to certain conditions, reject it or replace the plaintiff. As opposed to regular civil litigation, an applicant filing a motion to certify a claim as a class action must submit all relevant evidence with his or her motion, including affidavits and expert opinions.

Answer contributed by Talya Solomon and Iris Achmon

52. How are damages or assessed in these types of actions?

Israel

The distribution of damages depends on the court’s decision or on the settlement achieved. In many cases, damages include compensation for the public in the form of discounts, coupons, or a sum of money to be distributed among relevant non-profit organisations. They will also include a fair sum to be given to the class action plaintiff and attorney fees to the plaintiff’s counsel.

Answer contributed by Talya Solomon and Iris Achmon

53. Describe the process for settling these claims, including how damages or settlement amounts are apportioned and distributed.

Israel

Proposed settlement agreements in class actions must be brought to the attention of the court and are subject to the court’s approval.

First, a motion to approve a settlement is filed with the court, and if the court does not find grounds to reject the settlement, it will then order the publication of a public notice concerning the filing of the motion to the members of the class. The court will send the notice and copies of the motion, the proposed settlement and the class action to the Attorney General of Israel, the Administrator of Courts, and to any other person the court may instruct. A person who is a member of a class, a public authority, an organisation, or the Attorney General, may submit an objection to the settlement within 45 days of such publication, and the parties have the right to respond to such objections.

The court will approve a settlement only if it finds that the settlement is proper, fair and reasonable in view of the interests of the class members, and that resolution of the dispute by means of a settlement constitutes the most efficient and fair means of resolving the matter under the circumstances.

The court is barred by law from approving a settlement agreement prior to receiving a written opinion from a ‘settlement examiner’ with expertise in the relevant field. The court may decide that such an examiner is not required in a special written reasoning.

Answer contributed by Talya Solomon and Iris Achmon

54. Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?

Israel

Generally speaking, the only way for a collective settlement is under the Class Actions Law, 2006.

Answer contributed by Talya Solomon and Iris Achmon

55. Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?

Israel

The ICA is generally not involved in private litigation, including class actions. In cases where the Attorney General joins the class action litigation, or responds to a class action settlement, the ICA may be involved in formulating the Attorney General’s response.

Nonetheless, the ICA may reach consent decrees concerning breaches of the ECL, which may include some sort of public redress schemes.

Answer contributed by Talya Solomon and Iris Achmon

Arbitration and ADR

56. Are private antitrust disputes arbitrable under the laws of your country?

Israel

The general rule is that an issue that cannot be the subject of an agreement between the parties, including an illegal agreement, is not arbitrable. Certain private antitrust disputes are arbitrable under Israeli laws, if arbitration is not in contradiction with the general rule.

The Israeli Supreme Court has been reluctant to proclaim arbitration provisions void and has explained that they will only be found to be void when illegality is prima facie evident. In this regard, while the enforcement of an alleged restrictive arrangement will generally not be arbitrated, matters such as damages or restitution, as a result of a breach of the ECL, have been arbitrated, as have restrictive arrangements the illegality of which is not prima facie evident.

Answer contributed by Talya Solomon and Iris Achmon

57. Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?

Israel

The general tendency is to enforce arbitration provisions. The main exception is when the illegality of an agreement is evident. An exception has also been made when a third party was involved who, although not a party to the arbitration provision, challenged the legality of the arbitrated agreement.

Answer contributed by Talya Solomon and Iris Achmon

58. Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?

Israel

The courts will not compel ADR, but may recommend mediation procedures. The results of the ADR may be validated by the court and given the force of a verdict.

Answer contributed by Talya Solomon and Iris Achmon

Advocacy

59. Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?

Israel

The Israeli government maintains a special government fund for financing private class actions. In 2016, for example, 13 per cent of the applications approved were based on ECL breaches.

In addition, the ICA provides general advice to potential plaintiffs. The ICA is also promoting a Bill regarding treble damages in antitrust lawsuits.

In August 2016, the ICA held a roundtable on private antitrust enforcement, where the Commissioner expressed a desire to promote such private enforcement. This arose mainly in light of the small number of antitrust claims proceedings in Israel, with the exception of class actions.

Answer contributed by Talya Solomon and Iris Achmon

Other

60. Give details of any notable features of your country’s private antitrust enforcement regime not covered above.

Israel

As mentioned above, private antitrust enforcement is relatively rare in Israel, with the exception of class actions. This may change if the ICA succeeds in promoting its Bill for treble damages. Antitrust class actions have become popular in recent years. Two prominent trends in this regard are follow-on class actions regarding cartels that have been investigated by authorities in other jurisdictions (such as the LCD-panel antitrust litigation, the CRT antitrust litigation and others) and class actions based on excessive pricing allegations.

The vast majority of antitrust actions are still ongoing or have ended with settlements. The coming years are likely to bring interesting news in this field.

Answer contributed by Talya Solomon and Iris Achmon

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