ISRAEL Law and Practice Contributed by: Talya Solomon, Iris Achmon, Ekaterina Yaremchuk and Niva Orion, Herzog Fox & Neeman
dent regarding the calculation of antitrust dam - ages. The required burden of proof for damages is a preponderance of the evidence. 6.2 Collective Action As mentioned, tort lawsuits can be brought as class actions if they meet the conditions men - tioned earlier. Class actions may be brought by any person that suffered damage, including competitors and organisations representing spe - cific interest groups, or by consumer groups that have been approved by the Minister of Justice. See 1.3 Private Enforcement regarding the con - ditions for certifying a class action. 6.3 Indirect Purchasers and “Passing On” Defences There is no binding precedent from the Israeli Supreme Court with regard to the passing-on defence. However, district court decisions tend to uphold indirect purchasers’ claims, at least in some cases. This is also the position of Israel’s Attorney General. Therefore, if the Supreme Court turns the district courts’ tendency into binding precedent, it will also give rise to a pass- on claim by defendants. 6.4 Evidence Obtained From Governmental Investigations/ Proceedings See 5.3 Effect of Liability Being Established . 6.5 Frequency of Completion of Litigation Most private antitrust claims end in a settlement. In a class action, the approval of the settlement is subject to the district court’s review, including a settlement in which the plaintiff withdraws from the claim.
In class actions, the court is obligated, by law, to receive a written opinion from “settlement exam- iner” with expertise in the relevant field before approving the settlement. The court may decide that an examiner is not required for special rea - sons, which shall be documented. Under Israeli law, the Attorney General may choose, at her own discretion, to join every civil litigation if she deems that important public inter - ests are at issue or if an important policy ques - tion is at issue. If the Attorney General chooses to do so, she can file pleadings regarding the position and participate in hearings. Generally speaking, other regulators (such as the ICA or the Bank of Israel) will not join the proceedings independently. If they wish to present their posi - tion in a specific proceeding, they will likely do so through the Attorney General. Eventually, the court may or may not accept the Attorney Gen - eral’s position. However, courts do tend to take such positions very seriously. In the review, the court has to approve the attorney fees, consider - ing the benefit and public value of the procedure, its complexity, etc. In ordinary civil actions, the court may force certain changes in the settlement to grant it the force of a court verdict. A civil lawsuit may take years from inception to completion; sometimes as many as ten years and even more. 6.6 Attorneys’ Fees The winning party in civil lawsuits may be award - ed with attorney fees depending on the judge’s decision. The sum is decided by the judge and needs to be calculated in accordance with some considerations set by law, such as the remedy’s sum ruled by the judge and compared to the initially requested remedy, the complexity of the
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