In the District Court Civil File 163/04
In Haifa
The claimants:
1. Cartel Survivor Ltd
(Formerly Pikanti Israel Food Industries Ltd.
No. 7-081160-51
2. Pikanti Meat Industries (1982) Ltd.
No. 5-095323-51
Both by Mr. Moshe Badash
At Attorney A. Vardi, Ben-Gurion Rd. 24
Lidag House, Ramat Gan
Tel: 03-5726633, Fax: 03-7526888
A cause of Claim
- against –
The Defendants:
1. Nestle – owner of Osem Food Industries Ltd, No. 1-0455071-51, Jabotinsky 61, Petah Tikva, 49517
2. Nestle -owner of Froumin (Marketing) 1975 Ltd. No. 4-072096-51, Jabotinsky 61, Petah Tikva 49517
3. Tnuva Cooperative Center for Agricultural Product Marketing in Israel Ltd, No. 0-002570- 57, Glilot Junction, Ramat Hasharon, 47100
4. Tnuva Food Industries, Agricultural Cooperative Association in Israel Ltd., No. 0-002570-57, Glilot Junction, Ramat Hasharon 47100
5. Gitam B. B. D. O. Ltd., No. 4-202234-51, Aba Hillel 3, Ramat Gan 52520
6. Gitam Image Systems Ltd, No. 7-081363-51, Aba Hillel 3, Ramat Gan 52520
7. Haifa Poultry Partnership 1992, No. 9-017820-54, Gezel 224, Shemen Beach Haifa
8. Frutarom Commerce & Marketing (1990) Ltd., No. 0-152537-51, Hashaish 25 Haifa Bay 26291
9. Extra Marketing Consumer Goods Marketing Ltd. No. 1-145493, Balfour 9 Tel Aviv 65211
10. Guri Import & Distributing Ltd. No. 6-062591 Zrifin 60930
11. Danir Dannenberg Ltd. 6-147623-51, No. Hayetzira 16, Petah Tikva 49512
12. Hashahar Haole Sweets Industries Ltd. No. 8-019115-51, Haluutzei Hata'asiya 41, Haifa Bay
13. Nestle owner of Nestle-Noga Ice Cream Ltd. Partnership, No. 7-001588-55, Industrial Zone, Beer Tuvia
14. Leiman Schlussel Ltd. No. 8-057150-51, Nahal Poleg 5 Yavneh
15. The Southern Marketing Co. Ltd. – Sano , No. 7-018362-51, Industrial Zone Neve Ne'eman Hod Hasharon 26211
16. Unilever- Lever Distribution of Personal Care & cleaning Products Ltd., No. 4- 071761-51 Deshanim Rd. Kiryat Ata, Haifa 26211
17. Nestle owner of Nestle-Astiv Ltd. (formerly Prostiv), No. 3-2034461 Leshem 3 Petah Tikva
18. Schestowitz S. Ltd. No. 4-043612-51, Keren Hayesod St. Industrial Zone Tirat Hacarmel 39026
19. Tara Cooperative Agriculture Production Association in Nahalat Yitzhak Ltd. No. 3-000447-57
20. Tempo Beer Industries Ltd. No. 8-003284-52, Giborie Israel 2 Netanya
21. Wissotsky Tea (Israel) Ltd. No. 190146-51-4 Hahashmonaim 103 Tel Aviv 67133
22. Willi Food International Ltd. No. 9-004320-52 Nahal Snir 3, N. Industrial Zone Yavne 81224
23. Gad Dairy (Marketing 1989), No. 4-174957-51 Hasolelim 7 Bat Yam 59597
24. Kimberly Klark Co. controller of Hogla Kimberly Ltd., No.1-039032-51, Hshiloah 2 Petah Tikva 49517
25. Careline (Pharmagis) Ltd. of Agis Group controller of Agis Distribution & Marketing (1989) Ltd., No. 6-141895-51 P.O.B 333 Petah Tikva 49102
26. Unilever-Lever Bestfoods Israel Ltd. (Blue Band – Telma) – Unilever-Lever, No. 9-266539-51 Medinat Hayehudim 91 Herzelia 46766
27. Coca Cola, -The Central Bottling co. Ltd., No. 6-0482213-51 Kahanman 129 Bnei Bra, 51641
28. Danshar Marketing (1974) Ltd. No. 2-067642-51, Hamelacha 12 Rosh Ha'ayeen
29. Vita Quality Foods Ltd, No.8-018050-51 Gal Ed 6 Petah Tikva 49101
Essence of claim: Financial-contractual-damages (including negligence, inducement for a breach of contract, a breach of lawful debit, slander, and intended falsehood) restitution.
Amount of statement of claim: 1,000,000,000 NS (one billion NS, fees only)
Foreword
1. This statement of claim, which unfolds the matter of the suppliers' cartel, led by Nestle-Osem, Tnuva, Coca Cola and other corporations in the Israeli market, against the Pikanti Concern, is the updated, extended, and improved version of the statement of claim presented to the District Court in Haifa (CF 1014/01) (hereinafter: "the early version").
2. Over the two years that have passed between the two submissions of the statements of claim, a real revolution took place of fundamental concepts in the Israeli market, and in the consumers' ability to claim their rights, and also in the firm way the state deals with trade restraint criminals such as the defendants.
3. If two years ago the claims may have been considered by a cultivated person, who is not familiar with the depth of the food market, as far reaching claims, the last two intensive years have proved that the voice of the claimants was not hallucinatory, deceiving or conspiratorial, but a genuine, critical, conscientious, precise and profound voice that had seen the whole picture early on and cautioned of the existence of a new criminal class in Israel – the trade restraint criminals.
4. Somewhat late, the state authorities had also recognized the claims of the Pikanti concern, which appeared in the early version. Since the publication of the early version, the restraint of trade controller, Dror Shtrum, publicized a profound report of the cartel map in supermarkets. The report of the restraint of trade controller justifies and verifies the Pikanti Concern claims of the tight grip the food giants have on the food market. The report goes on to detail the exclusion and wiping out techniques the cartel criminals use when they come to keep away their small competitors from the relevant market, and the damage caused by this violent, artificial market malfunctioning.
5. Suspecting the food manufactures of taking advantage of their power, the restraint of trade controller launched an investigation of the relations between the big food manufactures and the marketing chains, and the mini markets and neighborhood discounted convenience stores. Owners of large mini markets and network mini markets maintained before the representatives of the restraint authority that dominant food manufactures use pressure and their monopoly power to wipe out competitors, push them away or block them while creating entrance blocks to small manufactures. The restraint of trade controller report is attached as supplement A1.
6. Among other things, the restraint of trade controller, Dror Shtrum, ruled that the big food manufactures used their monopolistic power being responsible to arrange categories, especially by using their ushers to arrange the goods at the food chains. Using such and many other unacceptable methods, the big companies achieved large portions of the market at the expense of the competitors, with the big manufactures pushing out the competitors and gaining extra market portions. Exactly as Tnuva, Nestle-Osem and Coca Cola used to do to Pikanti in the past and as they still do.
7. Another authority that recognized Pikanti's claims of the damage to the small consumer, due to the artificial limitations the big food manufactures place and which dictate unnecessary, blown up market prices, was The Ministry of Industry and Trade.
The Ministry's professionals - with firm backup of the minister, Ehud Olmart, determined that in face of the above market failures, which cause many food products to be sold in Israel at three times and over their realistic price, there is an urgent and supreme need to establish maximum prices to a list of tens of food products which are today marketed by the big monopoles. The new price bar will be tens of percents lower than the price of those products today.
8. Widely using economic and cooperative law principles, the Israeli government, in fact, justified the claims of the Pikanti concern which argued that the Israeli food market should not maintain high, unnecessarily blown market prices, cut off from the global food market. It should subjugate itself to the global free, developed economy.
9. In a global market, where raw material prices are unified, there is no justification for the price of basic products to be three or four times higher than in less faltering countries than Israel, such as the U.S.A., Canada and Western European countries. Pikanti has claimed so for years. Only now, after years of stammering, impotency and apple polishing flattery to the big food manufactures, do the seniors at The Ministry of Trade and Commerce say the exact same words. It seems that the generation of grey, exilic, frightened government clerks is dying out, and instead we find an educated, researching, critical and assertive generation of clerks who is determined to meet its obligations according to the law and to watch the fat cat guarding the cream with the intention of drinking it all by himself.
10. Another state authority that so far has justified Pikanti's claims was The Ministry of Finance that backed up Pikanti's claims of Tnuva's mischief in the milk market. The Minister of Finance, Mr. Benjamin Netanyahu, directed his office to act to remove the limitations that Tnuva put up and which prevent the milk market to act as a healthy, sophisticated, competitive market.
11. Israel Katz, the Minister of Agriculture, also announced that he means to disassemble the Israel Dairy Board and the monopoly of the milk market byTnuva and the Kibutzim, in order to bring about a decline in product prices to the consumer. Tnuva was declared a monopoly for the production of milk and basic cheeses, products that are under government supervision. The minister explained that Tnuva became rich at the expense of small dairy farmers in villages and that she has no intention of becoming more efficient. Yet all this did not surprise Pikanti who continually claimed those problems to no effect and now her claims are proved one by one for the whole world to see.
12. In the meantime, The Israeli courts recognized that the collapse of Pikanti was not her managers' fault but was due to external causes, as detailed in this statement of claim.
13. The accumulation of these events proves that the public and its emissaries in the halls of government understand that the time of dusty oligarchy of a few tens of families who strangled the Israeli market, destroying every fine field in its path, grasping government budgets and land, and taking care of its own people, is over.
14. This may seem a paradox but, the more the economical and social reality in Israel worsens, the more the small consumer becomes sophisticated and aware of his rights.
If in the past not every average citizen could understand the tight link between the suppliers' boycott which led to the closing of Pikanti's supermarkets, and the raise in pastrami prices – today it seems less necessary to enlighten the public eyes as to how the system works and what is the direct path the coin leaving the citizen Buzaglo's pocket crosses, to reach Tnuva's Erick Reichman's pocket. President Lincoln referred to the danger the aggressive corporations are to society when he said in 1864:
"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country…corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.."
15. Yet in spite of the great ramifications Pikanti's claims and this statement of claim have on every consumer in Israel – still Pikanti has no pretension to be Israel's defense attorney, but mainly to concentrate on crimes and injustice she suffered by the defendants. It is only natural, though, that the above claim brings to light a necessary discussion of issues concerning highly important legal, economic, moral and social issues, the elucidation of which is essential in a modern democratic regime.
16. In this version of the statement of claim, the claimants acted to widen, update and detail the rational for their claim, in light of the direction and learned remarks made of the honorable court (the honorable Vice President Ginat) in its appeal debate 001173/03. Thus, for example, the claimants widened the description of their damage and described the agreement and damages systems between the sides in detail, as best they could. It was not an easy job to prepare a statement of claim against 29 suppliers, keeping in mind the fact that collecting the above mentioned data was made by reconstruction, which was essential due to the fire that occurred in the Pikanti offices close to the outburst of the boycott.
17. In addition, a financial report prepared by Eng. Dr.Benjamin Ilan, a former member of the Bar Ilan University staff, was attached to this claim. It describes in detail and calculates the damage deliberations and their measures, damages that the claimants suffered as a result of the defendants' behavior. The expert opinion is marked attachment supplement A2.
18. The claimants made an effort not to make any changes in the original statement of claim (the early version). The list of defendants remained as was, in the same order. Most claims and phrases remained in their original wording.
19. In addition, clauses which can demonstrate that the defendants' behavior was not random but systematic businesslike criminality, were developed and widened. Examples were brought of the behavior of the cartel chiefs towards the consumers of their own products, their employees, and their business competitors, to prove that we deal with a system.
20. A fairly large amount of economic data was inserted, about relevant markets, because in economic criminality, the economic spectrum where the crime is committed, plays an important role.
21. The causes of claim as appear in the various chapters of the claim, should be added in accordance to the detailed causes of claim which appears in the chapter devoted to each and every defendant,
Introduction
Pikanti's basic fight
22. In a culture where money is God, and where the strong and the violent rule –the honest are persecuted up to their necks.
23. The work of over 10,000 Pikanti employees was came to an end because of the cartel. Over night, veteran employees lost their honor and their livelihood. Under the circumstances they were helplessly thrown to the street while it was not in their employers' power to prevent the pain and stinging humiliation. The Israeli society absorbed not only the need to cope with price-raise and business-hooliganism, but also the need to cope with a serious social problem, namely, to take care of hundreds of former employees who fell upon bad times, their only sin the wish to earn their bread from an employer who wanted to compete with the food giants.
24. Many of those employers became a burden on society. Pikanti gave them a framework of stability, peace of mind, economic safety and a tangible possibility to provide for themselves and their basic needs. Yet when they came to crush Pikanti, the cartel criminals did not mind crushing along a thousand families of Pikanti's employees. Many employees turned into shadows of their former selves. Many were inflicted with malignant diseases. One worker committed suicide. Others became terminally ill or turned mentally ill, and many more tragedies of the kind which do not appear in newspapers chronicles, yet should strike a chord with any intelligent and honest human being who believes in humanistic values and social solidarity.
25. This is the story of the ugly war iniquities by Nestle-Osem, Tnuva, Coca Cola, and their cartel associates, against Pikanti. The nature of such fights is that the bigger and more violent destroys the smaller, silences him for many years, while threatening him to keep still forever.
26. This is not the case of Pikanti. The whole story will be told, and the cry it raises will reverberate for a long time after the criminals involved will be thrown behind bars.
27. In the past, Pikanti proved she is guided by a vision that encourages free competition, a struggle for civil rights, equal economy, fair consuming, free enterprise and free expression. Those were not mere empty slogans but a well outlined vision.
28. Pikanti's ideological fight for a fundamental price- cut in the Israeli food markets, has aggravated the huge conglomerates, the food giants, who unnecessarily exploit the consumer. They fear competitors such as Pikanti, who proves the unvarnished truth when it sells certain products for less than half the competitions' price, and still makes a profit without exploiting the hard working citizen.
29. Thus, the fight for Pikanti's economic independence, as expressed in this claim, is not the only struggle. It is not just another narrow legal claim. This is a fight for a principle, for Pikanti's crystallized vision, its essence, almost its raison d'etre.
30. Even if the reader finds it somewhat odd, this is a pungent and resolute claim, with fundamental, moral and legal unprecedented significance. It presents to the layman reader the growing abscess in the Israeli business world, for him to examine and to judge.
31. The reader may use some procedural plea to ignore the abscess, or he may courageously cope with it. It is up to him.
32. The basis for this claim is the occurrences throughout the month of July, 1997. In just a few days, the suppliers stopped supplying goods to firms that until then manufactured and distributed Pikanti's trademark products. This stoppage occurred with no economic, legal, moral or any other justification.
33. Up to that point in time, there were proper trade relations between the firms that manufactured or marketed Pikanti's products, and defendants 1-4, and 7-29. Over the years they sold merchandize in hundreds of millions of IS and made large profits.
The cause of action for the cartel: The production of the Makarena snack.
34. The food cartel started its activity following the production of the "Makarena" snack, and production plans for a chain of other competing Pikanti products. Had this plan been completed, the price bar would have come down considerably, and the masters of the food business, who today tightly grasp the market with high prices, would have had to make do with a normal profit as fit for an industrialist in a free market based on free competition.
35. Cutting prices was not a secret plan. It was widely publicized in the Israeli press, and reached the masters of the food business as well. They refused to remain indifferent to Pikanti's price-cut plan.
36. During the month of May '97 or thereabouts, Pikanti started to produce and market a peanut snack named "Makarena". It had some resemblance to "Bamba" produced by Nestle-Osem, but was a unique product of Pikanti's, with its unique flavor and quality.
37. Like other Pikanti products, the "Makarena" snack was 2/3 less expensive than "Bamba" while better in quality.
38. In spite of Nestle-Osem's efforts to disrupt the production of the "Makarena" and its marketing, before the formation of the cartel, the snack continued to accumulate a large and growing number of clients.
39 "Makarena" was sold to the customers for much less than the Nestle-Osem's" snack was. Nestle-Osem's price was between 3.5 and 3.7 NS (80 grams package). Pikanti's price was about 1 NS (same package-size).
40. The "Makarena" product struck hard at Nestle-Osem. "Bamba" was its most profitable product.
41. 33% of Nestle-Osem's" profits come from the "Bamba" product.
42. Trying to cut its losses, Nestle-Osem initiated a cartel against Pikanti and against the crusader companies – that marketed Pikanti's products – and against store owners who sold Pikanti's products, while conducting a similar fight against "Strauss" in the ice cream business.
43. Ever since the snacks were marketed in Pikanti's and other stores, Nestle-Osem started its total war against Pikanti, threatening store owners that should they sell Pikanti's snack – Nestle-Osem would stop providing them with discount and sale products.
44. Another means they used in this war was to spread rumors as if Pikanti was bankrupt and the like.
45. The unavoidable outcome was as described above, and it happened with lightening speed. The result was devastating for the crusader companies that marketed Pikanti's products, and in a fast chain reaction process, brought about an economic collapse.
Pikanti Honored all Her Obligations.
46. On 7.14.97, just like that, the suppliers involved in the cartel, stopped providing goods to Pikanti.
47. This contradicted the valid signed contracts, which had been honored for years up to that date.
48. Stopping the supply of goods to the crusaders resulted in uncertainty for the clients as well as the crusader companies that marketed Pikanti products. Hundreds of Pikanti employees found themselves in an impossible situation.
49. In spite of the cartel, as of 7.14.97 and for the next month and a half, Pikanti and the crusader companies honored all their obligations to the suppliers with not one check returned. Claimant no. 1 continued to honor its obligations until 10.1.1997.
50. In the mean time, a considerable effort was made, on various management levels, to understand the reasoning of each of the suppliers' behavior.
51. In some cases the sales managers evaded the buyers' telephone calls or instead, deceitfully claimed that should a certain check be honored – they would again supply products, and in this way made the claimants believe their lies.
52. Some suppliers used the rumors about the financial situation of the crusader companies – that marketed the Pikanti's products - to justify their sudden move, and promised to supply them again when the check last they received was honored. Some demanded personal guarantees for their goods. However, when the check was honored on payment time, defendants 1-4 and 7-29 did not supply goods and evaded giving proper answers.
53. Companies demanding personal guarantees for continuing the supply, received such guarantees, but under the condition that they continue to provide goods.
54. As it turned out, those companies had no intention to continue the supply. Their demand was directed at getting a tricky guarantee for goods supplied in the past, under trade and payment regulations acceptable in the business.
55. The truth behind the refusal to supply goods was that throughout the month of June or thereabout, Nestle-Osem and Tnuva started to spread baseless rumors among the various suppliers to the crusader companies – marketing for and to Pikanti – as if those companies were in financial trouble, their checks return by the bank and so forth.
56. These rumors were, of course, baseless. Pikanti and the crusader companies – that marketed its products – fully honored all their payment obligations.
57. Checking with various suppliers, who naturally approached Pikanti and its crusader companies – the companies that marketed Pikanti products – to find out their conditioned, it became clear that the source of the rumors was in the Nestle-Osem group and/or its employees, and/or its dispatches, and/or other on its behalf.
58. Thus, for example, Nestle-Osem contacted the bookkeeping of the Vita Company and told them that "Pikanti's checks returned and that Pikanti had no money to pay".
59. A regional manager of Nestle - Mota Ice Cream (owned by Nestle-Osem), said on 7.21.97 that "Pikanti checks returned…". The source of the above rumors…her direct manager (at Mota Ice Cream) who told her so."
60. Pikanti and the crusader companies – the companies that marketed "Pikanti's products – approached the Nestle-Osem group (and defendants 2-4 7-29) many times and protested of the damage they causes them, by stopping the product supply, despite the fact that they honored all their payments throughout that time.
61. All payments were met even though there was an argument about the debt, including and not only, the damage the Nestle-Osem group caused, and which caused the rest of the defendants to breach contracts with the Pikanti companies.
62. Even though the cartel members stopped supplying goods close to 7.14.97, the companies continued to honor their obligations up to 9.2.97, and finally collapsed like a self fulfilling prophecy.
63. As a result of the Nestle-Osem group activities and the cartel its managers organized, the crusader companies – the companies that marketed "Pikanti's products – reached a state when they could not pay, they sold their business, and Pikanti (claimant no. 1) approached the court in a request to liquidate the companies under liquidation file 590/97, 3757/97.
64. What is hereinafter described may seem at first glance as a description carried away by a conspiracy theory woven against the crusader companies – the companies that, marketed Pikanti's products. But an unprejudiced examination of the contacts, affinities, and commitments s of the organizations and people active in the cartel, will draw the outlines of an organization with many reciprocal contacts on various levels of commitment among its parts – a description that my sow seeds of concern amidst all who consider the existence of a valuable and fair trade culture to be a milestone in their philosophy.
65. The following description of the circumstantial system may bring about, as it already has, an erroneous view on the situation, it being unique, unusual and complex.
66. Yet only a detailed, patient, broad, and deep examination of the facts, described hereinafter, can solve the puzzle, which looks, at face value, to the outsider, as an impossible paradox.
67. To drive the point home it will be mentioned at this stage, that during the months of July-August (ever since the boycott began), the crusader companies – the companies that marketed Pikanti's products – paid the suppliers tens of millions of NS even though they received at that time no goods, with the hope that was dashed, that the suppliers would renew the product supply.
68. It is well known that in the food market every business exists on suppliers'-credit, as is customary in the branch. Stopping the supply caused a drastic fall in sales volume, a fact that created an economic chain reaction which was too much for the crusader companies – the companies that marketed Pikanti's products.
69. At that time obligations to the suppliers were paid in a totaling sum of tens of millions, and at the same time goods were not supplied, so the honoring of obligations then was, in fact, to prefer the suppliers over the crusader companies – the companies that marketed Pikanti's products.
70. Had the suppliers behaved in this way towards the big food marketing networks such as "Super-Sal" or "Co-Op", they would have collapsed just as well. If out of the blue the suppliers had decided to weave a plot against them, the corporations would have collapsed within a short time, even though the sales' volume of the first company reaches 1.2 billion NS in a quarter.
71. The big banks as well could not have survived a situation in which most of their clients – who are in fact their suppliers - would withdraw their money all at once. As the American banking system collapsed in 1929 due to such urgent behavior – so the Israeli banks would have collapsed, let alone smaller companies like the crusader companies – the companies that marketed Pikanti's products.
So, for the sake of comparison, if the Bank of Commerce Development had not been partly own by the State of Israel, it would have, in all probability, collapsed in face of rumors about its condition.
72. In a suspicious market, lacking a real tradition and given to caprices of many interested factors in the Israeli economy, it is not difficult to destabilize economic bodies by spreading baseless rumors about their "difficult condition". In a country where a junior clerk in a commercial bank can wipe out in a single blow a whole bank by transferring loans unlawfully to her compulsive gambling brother – there is a feeling that anything is possible, and that no organization is immune to collapse which will leave its creditors empty handed. No manufacturer, supplier, mediator or other economic factor will remain indifferent in face of a rumor that spreads like wild fire and which says so-and-so "is going bankrupt".
73. This is not a textbook dynamic but rather a simple practice of merchants and tradesmen in a small unstable country, that pretends to be enlightened and with an economic orientation like the most developed countries. Yet in fact, as far as its trade trust and payment ethics go– it belongs to the worst economies.
74. With the number of returned checks in Israel which does not shame countries like Sierra Leona, Nigeria and Albania – no wonder "everyone is a suspect", and any small rumor uttered by a spiteful bush telegraph is enough to paint another with the wrong colors. The defendants in this statement of claim took advantage of the constant atmosphere of economic unstableness in the Israeli economy to set fire to this flammable thorn field.
About a Thousand employees Lost Their Jobs Due to the Cartel
75. The collapse of the crusader companies – the companies that marketed Pikanti's products – under the threats of the companies organized in a cartel against them, took, whilst doing so, the bread out of the mouth of about a thousand workers who lost their jobs just before the holiday season.
76. Over its numerous years, Pikanti was a home to its workers. Skilled workers were recognized and were given suitable positions. Unskilled workers were sent to educational programs and professional training. New Immigrants who were not fluent in Hebrew received Hebrew lessons within the Pikanti bounds. An art gallery was put up to encourage artistic employees to develop their talents, and many more such initiatives and activities for the workers' benefit. This turned Pikanti into a warm, united family. Lone workers found their home at Pikanti.
77. And then, one day, out of the blue, the dream was destroyed, and over a thousand workers were left without a home that was burned down in a mysterious fire and/or was wiped out by the cartel criminals. With no salary, no co-workers, no creative and productive working environment, many turned into a shadow of their former selves, and found it hard to re enter the working cycle. Chefs and bakers, cooks and sales persons, managers and supervisors, publicists and graphic artists, all were thrown into a dark and gloomy abyss of existence with no respect. Some managed to rehabilitate. Others did not.
78. The cartel companies were not satisfied with "while they took counsel together against me, they devised to take away my life" (Psalms, 31). After they realized their scheme and destroyed the companies, by spreading systematic evil rumors, and by stopping the supply of goods, breaching contracts, and forcing other companies to join them and act in the same way, the cartel companies with Nestle-Osem on top, acted in the "Has thou killed and also taken possession" method, and they wanted to prey on the corpses of the companies which were no more, to make sure, among other things, that they would not come back to life and would not again be an object for free economic competition benefiting the consumer and the state's economy.
79. The cartel companies wanted, also, to enjoy the remains of the companies, as much as possible, not only for mere financial profit, but also to signal to other potential competitors, that should they dare compete with them, they will not only kill them, but they will pock their carcass in the same way, for "They shall not be ashamed in the time of evil; and in the days of famine they shall be satisfied" (psalms 37).
80. Pikanti was one of the suppliers that supplied goods to the companies that marketed the Pikanti goods (hereinafter: the crusader companies – the companies that marketed the Pikanti goods). Naturally, she did not take part in the suppliers' boycott, yet was severely damaged by it. Public regulation makes it essential to well examine a supplier's behavior, including that of Pikanti, close to the time of the crusader companies' collapse. Such an examination will uncover the lack of innocence with most suppliers and even malice on various levels.
81. The defendants caused severe damage to Pikanti's and its owners rights of property. The value of the crusader companies' shares came down until the claimants gave out their shares for no return whatsoever. Therefore, the claimants are entitled to restoration on the basis of the damage in the value of the crusader companies' shares.
82. Moreover, the defendants caused a torturous inducement for a breach of contract in causing a series of damages to the contract system which existed between the defendants and the crusaders, and between the defendants and other companies.
83. A large number of the defendants, such as Tnuva, Nestle-Osem, Sano, Tene Nestle-Noga, Nestle- Froumin, Kimberly-klark Hogla, Danir Danenberg, and Leiman Schlussel opened futile legal processes against the claimants, by doing so they oppressed them in the sense of oppression in the damages order.
84. The damage caused by the defendants to Pikanti can also be calculated according to the loss caused to Pikanti on the basis of loosing a single place of work times the number of Pikanti's employees. Benjamin Pepperman, manager of The Manpower Planning Authority at the Ministry of Work and Welfare, checked and found out that the cost of creating a realistic single workplace was 400,000 NS in 1991 terms. Economist Dr. Linda Efroni says that in 1999 term it is about 1,000,000 Ns per employee (Dr. Linda Efroni, Suffice Real Working Places, "Globs", 12.27.1999). Based on this calculation, in 1999 – Pikanti's loss equaled the value of over a billion NS. In 2004 terms, Pikanti's loss equaled the value of over 1.2 billion NS. Therefore this claim requests, in addition to all other above mentioned remedies, also a remedy of restitution (in light of the fact that it is impossible at this stage to quantify the exact value of lost assets, a remedy of restitution is called for. The measured value of this schematically calculated return is about one billion NS at leas)t: that means, the defendants are asked to restore to the claimants the manufacturing plants that went down the drain, including the 1,000 employees.
85. The amount of government grants given in Israel to big employers, based on the number of employees, supports the above calculations. Those calculations are accepted in most countries which calculate the value of businesses for the sake of allocating them with workers employment.
Settling the Score with the Consumer- Criminals as Obligated by Constitutional and Valuable Interests
86. Public regulations oblige an additional examination of this unprecedented case on behalf of basic believes by the enlighten public in Israel, who prefer to keep nurturing the free competition tendencies, breaking up monopolies, and narrowing down cartels – tendencies that are at the basis of Pikanti's social and economic world.
87. Hence, the acceptance of this statement of claim is not only the proper legal solution, legally and economic, but a saying with a touch of value on part of the system in charge of law enforcement in Israel.
88. Responding to this statement of claim will reduce the scope of damage the claimants suffered, and it is called for, in addition to legal rules customary in Israel, and to natural justice, also because of the principal of equality, which is a basic principal in justice, that is: Pikanti's legal status towards the crusader companies – the companies that marketed Pikanti's products – equals the status of the rest of the suppliers by virtue of the trade relations between Pikanti and the defendants. However, Pikanti's normative status is higher than that of the other suppliers, as the latter acted in an improper way and unlawfully towards the crusader companies, while Pikanti was one of the few suppliers that continued to supply goods to the crusader companies until close to the time of their collapse.
89. This statement of claim, apart from being a regular legal economic claim, enfolds within its lines a moral accusation against the suppliers involved in the food cartel, and against the authorities and organizations, inside and outside the establishment, that were supposed to withhold the cartelistic unionizing which led to the collapse of the crusader companies – the companies that marketed Pikanti's products.
Prosecution reasons
The claimants
1. Claimant no. 1, Pikanti Cartel Survivor Ltd. is a lawful company in Israel, established in 1979. The meaning of its name is that it is a survivor of the cartel led by Nestle-Osem, defendant no. 1.
2. Claimant no. 2, Pikanti Meat Industry (1982), is a lawful company in Israel, established in 1982. This company also supplied products to the crusader companies – the companies that marketed Pikanti's products, and due to its agreements with Pikanti and the crusader companies – companies that marketed "Pikanti's products – was severely damaged by the food cartel.
3. Due to the complexity of this statement of claim, both claimants and the crusader companies – the companies marketing Pikanti's products – will be named Pikanti, whenever there is no hindrance to do so in context, to ease the reading.
The defendants
4. Defendant no. 1, Nestle-Osem Israeli Food Industries Ltd., is a lawfully unionized company in Israel, controlled by Swiss "Nestle", which historic research proved that cooperated with the Nazis who exterminated Jews. In August 1990, Nestle admitted to employing 200 coercion workers during the Holocaust. In 97', the historian Michael Bar Zohar revealed that the heads of Nestle declared to the Germans that the company's managers were "pure Arians".
5. Nestle-Osem Israeli Food Industries Ltd. and Nestle-Froumin (Marketing) 1975 Inc. (hereinafter "the Nestle-Osem group"), manufacture and market various food products including pasta, "Bamba" snacks and more.
6. Nestle-Osem was declared a monopoly for the dry pasta products under the Trade Restraint Law, 1988.
7. As will be specified hereinafter, the Nestle-Osem group together with other defendants caused severe financial damage, which started when they organized a cartel against Pikanti, stopped supplying goods, intentionally collapsing a number of companies linked to the claimant, administrating futile processes against Pikanti and the same companies, handing in a false affidavit by Joshua Meroz, the secretary of Nestle-Osem Food Industries Ltd., cheating, misleading and acting allegedly criminally.
8. Defendants no. 3-29 are corporations unionized according to the law in Israel, and that took part in the cartel led by the Nestle-Osem group.
9. All defendants, with the exception of defendants 5-6, were suppliers of the Pikanti concern, and stopped the supply in an organized fashion.
10. Defendants no. 5 and 6 are public- relations corporations working for "Nestle-Osem and Tnuva, of the cartel heads.
11. The statement of claim against defendant no. 7, Haifa Poultry Partnership, is submitted for caution reasons only, subordinated to the independent legal entity of this defendant. This is about a legal entity that operated unlawfully, when it was controlled by the Tnuva concern through "Tnuvashot" Ltd., by holding shares in trust by lawyers. According to regulations, Tnuva had to ask the restraint of trade controller for his permit to be involved in the control of "Haifa Poultry". This criminal bunch chose to take the law in its hands, as is their habit, not to approach the restraint of trade controller, and to try and cover up the contacts between the various corporations that were created to pass by unlawfully consumer laws of primary importance.
12. Defendant no. 3, Tnuva Cooperated Center for Agricultural Product Marketing Ltd., was declared a monopoly for dairy products and milk under The Trade Restraints law, 1988.
13. Defendant no. 18, Schestowitz, was declared a monopoly for one-time and multiple time use razor blades, under The Trade Restraint Law, 1988.
14. Defendant no. 20, Tempo Beer Industries Ltd., was declared a monopoly for beer and malt under The Trade Restraint Law, 1988.
15. Defendant no. 26, Israeli food Product (Blue Band – Telma), was declared a monopoly for margarine and mayonnaise under The Trade Restraint Law, 1998.
16. Defendant no. 27, The Central Company for the Production of Light Drinks ("Coca Cola"), was declared a monopoly under The Trade Restraint Law, 1998.
Business Connections Between Pikanti and Nestle-Osem.
17. Over the years, the Nestle-Osem group provided various food products to Pikanti and a few other companies (the crusader companies – the companies that marketed Pikanti's products), that had business ties with Pikanti.
18. The connection between Pikanti and the crusaders, on the one hand, and Nestle-Osem, on the other, was done in the regular manner, that is, suppliers and/or agents of the Nestle-Osem group and/or on its behalf supplied goods, and against the goods Nestle-Osem was paid on the basis of current credit.
19. In March 97' or thereabouts, Pikanti started to manufacture a peanut snack that today is named "Makarena", and that has some resemblance to "Bamba" manufactured by Nestle-Osem, yet is a unique product by Pikanti in its taste and quality. As with other Pikanti products, the "Makarena" one was 2/3 less expensive than the product "Bamba", while better in quality.
20. As soon as the production of "Makarena" began, Nestle-Osem immediately started various actions to block its way to the market. Among other things, she requested a restraining order under which the product should not be called "Samba". The request for the restraining order is attached – supplement A3.
21. Despite those actions, the "Makarena" product attracted a big crowd of clients which grew constantly. The "Makarena" product damaged Nestle-Osem severely as "Bamba" was its most profitable product. 33% of Nestle-Osem's profits come from "Bamba" and due to the migration of clients from Nestle-Osem to Pikanti, over time, Nestle-Osem's economic base was in real danger.
22. The economic instability in the Nestle-Osem group originated in a fight with another giant, "Strauss". In the fight for ice cream, the Nestle-Osem group lost over 25 million NS in the year 97'.
23. With things in this state, trying to cut back its losses, Nestle-Osem and Tnuva initiated a cartel against Pikanti and the crusades – the companies that marketed Pikanti products, and started a crusade against them, as well as against buyers and store owners that sold the "Makarena" product. All this while conducting a similar fight against "Strauss" in the ice cream branch, as will be further elaborated.
Nestle-Osem's" Mudslinging Method
24. The Nestle-Osem group started a well planned process against Pikanti and the crusaders – the companies that marketed the Pikanti products – intending to harm them and bring about their collapse acting as follows, among other actions:
25. Over the months of June and/or July, or thereabouts, Nestle-Osem started to spread baseless rumors among the various suppliers to the crusaders and Pikanti, to the effect that they had met financial difficulties, their checks were not honored by the banks etc.
26. These rumors were, of course, baseless, as all Pikanti's and the crusader companies' payments were fully honored.
27. When checking with various suppliers, who quite naturally came to Pikanti and the crusaders to find out what their situation was, it turned out that the source of the rumors was at Tnuva and the Nestle-Osem group, and/or their employees, and/or their dispatches, and/or others in their name.
28. Thus, for example, Nestle-Osem contacted the bookkeeping department at the Nestle –Vita company and told them that "Pikanti's checks returned and Pikanti has no money to pay".
29. Attached is an affidavit of things said by a Nestle-Vita agent – marked as B.
30. A district manager of Nestle- Mota Ice cream (owned by Nestle-Osem), on 7.21.97, said that:
Pikanti checks returned….the source of the above rumors….her direct manager (at Nestle-Mota Ice Cream) who told her so".
Attached is the affidavit, marked as B 1.
31. At the same time, Nestle-Osem threatened store owners that if they sold Pikanti's "Makarena", Nestle-Osem will harm them financially.
32. Attached is an affidavit, marked as C, which states:
"Nestle-Osem's" agent told me that if he sees here in the store Pikanti's "Makarena, we will cut off reductions. This is how one acts while at war and we are at war with Pikanti.
33. And somewhere else, on 7.25.97, a Nestle-Osem agent said:
"Nestle-Osem will do anything to make "Pikanti fall".
Attached is the affidavit and it is marked as C1.
34. Complains were filed against Nestle-Osem at the police for the suspicion of implementing criminal offences against Pikanti on the basis of organizing the "food cartel", the suppliers' allegedly conspiracy to harm Pikanti and ruin her financially and otherwise. Attached are two complaints to the police, on 7.30.97, and on 8.5.97 –marked D and E.
Discontinuation of Products by Nestle-Osem, Without Due Warning
35. On 7.14.97 , for no reason and without oral or written warning, the Nestle-Osem group discontinued the supply of goods to Pikanti and the crusaders, it is easy to figure out the meaning of no supply by Nestle-Osem, especially considering the fact that it is a powerful monopoly for dry pasta products.
36. By discontinuing the supply, the Nestle-Osem group acted intentionally to, on one hand,, narrow down Pikanti and the crusaders' – the companies that marketed Pikanti's products – income (yet they continued to pay the payments for which they were granted credit), and to damage their cash flow. On the other hand – wishing to signal to the market that the rumors she spread had a basis, with the intention of creating a feeling with the suppliers that if the Nestle-Osem group stopped supplies due to its "fear" of Pikanti's and the crusaders' financial condition, that there is real danger and they, the suppliers, better stop supplying as well.
37. Wanting to make sure Pikanti was harmed, Nestle-Osem approached other manufactures in the food market, which supply products to Pikanti and the crusaders, and coordinated with them to discontinue supplying to Pikanti and the crusaders. This was prearranged with the intention to bring about the above described results.
38. Pikanti and the crusader companies – the companies that marketed Pikanti's products, approached the Nestle-Osem group many times and protested to them of the damaged they cause by unilaterally discontinuing supplies, even though they paid all the bills. All payments were made even though there was an argument about the whole debt, including but not solely due to the damage the Nestle-Osem group caused.
39. Attached are advance notices for the damages, discontinuation of supplies, and payments which were made despite the lack of any debt – marked as F 1 on 7.21.97, by F 2 on 7.21.97, by F 3 on 7.22.97, by F 4 on 8.11.97, by F 5 on 8.27.97, by F6 on 9.4.97.
40. Yet despite all this, and despite the fact that for about 6 weeks she did not supply any goods with no warning as under The Companies Ordinance, Nestle-Osem sent a letter requesting a company liquidation (a 24 hours warning instead of 21 days – as under paragraph 258 to the Companies Ordinance).
41. All this to signal to the defendants how enthusiastic and eager Nestle-Osem is to liquidate Pikanti, so much so that she scorns the legal regulations and gives a 24 hours warning instead of 21 days. Attached are the documents marked as F 7 on 9.3.97, by F 8 on 9.4.97.
42. Out of its intense wish to harm Pikanti, Nestle-Osem implemented the following: during the year 96' Nestle-Osem conducted a campaign in which she handed out among the retailers flight tickets according to their sales. In the framework of the campaign, Pikanti received 21 slips for tickets good until the end of 97'. Pikanti handed out the tickets. But Nestle-Osem, wishing all harm for Pikanti, informed the ticket office not to honor the tickets given to Pikanti. This was done with no legal grounds and in a way far from innocent.
43. A few days later and following a warning letter, Nestle-Osem pulled the announcement back, but the damage had already been done. Attached is the warning letter and marked as F 9.
44. As a result of Nestle-Osem's acts, the suppliers to Pikanti and the crusaders – the companies that marketed Pikanti's products – were alarmed and some of them stopped the supply fearing there was some truth in the rumors and that they might be harmed.
45. Some of the suppliers returned to supply against cash payments and others changed the credit conditions and by doing so the cash flow of the companies was severely damaged.
46. By using temptation and fraud the Nestle-Osem group and its partners to the cartel promised that if Pikanti and the crusaders – the companies that, marketed Pikanti's products – would pay off future checks, the group would renew the supply of goods and would at once stop the boycott and the cartel.
47. Yet despite paying off checks, and despite the above mentioned promises, the defendants did not renew the goods' supply and thus caused an additional financial harm when, on one hand Pikanti and the crusaders paid money, and on the other hand, they did not get goods from suppliers, so the shelves in the supermarkets remain empty. No sales and no revenue. And this, as mentioned, whiles she keeps carrying the burden of all expenses.
48. As a result of these acts of fraud, and believing the Nestle-Osem group, Pikanti continued to supply goods to the crusaders by itself.
49. In this way the crusader' debt to Pikanti grew to many millions, yet with no goods to sell, and no cash in the cashier (which was paid to the defendants by fraud), they could not meet their obligations to Pikanti.
50. As specified in liquidation file 590/97 and answering Pikanti's request 375/97, a temporary liquidator was appointed to the crusaders (supplement 9 to this claim).
51. The cause of action for the liquidation was the inability of the crusaders – the companies that marketed Pikanti's products – to pay their debts, which reached millions of NS, to the claimant.
Nestle-Osem's Legal Futile Processes
52. The false legal processes, and the request to join the liquidation by the Nestle-Osem group, together with the affidavit by Joshua Meroz, secretary of Nestle-Osem, Israel Food Industries, are one layer in the joint responsibility, under the law, of the Nestle-Osem group and its managers, to the damages and losses of Pikanti.
53. Due to the actions by the cartel, a claim was presented against the Nestle-Osem group to the District Court, file no. 1037/97, in August 1997, a damage claim for the sum of 5,125,000 NS.
54. This claim was presented by the crusaders – the companies that marketed Pikanti's products – as follows: Investment crusader Ltd., Chinese Tee-Ochin Ltd., Food Industries crusader (1995) Ltd., North crusader (1996) Ltd., Salads and Cold Cuts marketing Crusader Ltd.
55. In the claim against Nestle-Osem, the crusader – the companies that marketed "Pikanti's products – specified the Nestle-Osem group' iniquity up to that date, including conspiring to collapse the crusaders and Pikanti, the background to the conspiracy and more.
56. The causes of actions for that claim were: breaching of trade contracts and obligations, unlawful acts on a contractual and damaging level, taking advantage of monopoly and more. Attached is the claim and is marked as G.
57. The claim by the crusaders – the companies that marketed Pikanti's products – did not include the claims and arguments by Pikanti as mentioned above – a former Survivor of the Cartel Ltd (formerly Pikanti Food Industries (Israel) Ltd.), nor those by Pikanti Meat Industries (1982) Ltd.).
58. As a result of the Nestle-Osem group actions and the cartel it and its assistants who are the defendants here organized, the crusaders reached a state of inability to pay off their debts. They sold their businesses and claimant no. 1 turned to the court and requested their liquidation in the liquidation file no. 590/97, 3757/97. Attached is the liquidation claim and is marked as H.
59. On 10,28.97, due to a request by Pikanti, a temporary liquidator was appointed to the companies as follows: Investment crusader Ltd., Chinese Tee-Ochin Ltd., Food Industries crusader (1995) Ltd., North crusader (1996) Ltd., Salads and Cold Cuts marketing Crusader Ltd, H.A Foods Ltd. Attached is the minutes of the deliberation and marked as I.
60. Following Pikanti's actions in collecting data and filing a complaint at the police, and the restraint of trade controller, the Nestle-Osem group increased its war activities against Pikanti and the crusaders – the companies that marketed Pikanti's products.
61. On 8.3.97 Pikanti informed Nestle-Osem it holds firm evidence to all its iniquity and o the severe damage Nestle-Osem caused, and that they will be claimed from Nestle-Osem. Attached is the notice and marked as J.
62. A Pikanti representative notified also the police (on 7.30.97, and on 8.5.97) that it has firm evidence to alleged crimes by Nestle-Osem (see supplements D and E above) including but not solely the organization of the cartel.
Nestle-Osem's" Unique Business Competition Methods
63. The Nestle-Osem group organized suppliers, made them believe their money was in danger, the suppliers arrived at the Pikanti offices furious and desperate.
64. And then – hocus pocus – a huge fire broke out on 9.2.97, at the Pikanti branch in Rishon LeZion. It destroyed a large portion of the building and the offices, files and many documents were burnt, and there was a great damage to property.
65. The fire disrupted Pikanti's and the crusader companies'' bookkeeping, it harmed their capacity to function, and destroyed some of the material that Pikanti collected for its claim against Nestle-Osem.
66. Apart from the fire that no doubt served Nestle-Osem, here are two more incidents that could benefit Nestle-Osem:
67. A few years ago, Nestle-Osem's plant in Bnei Brak was burned down. This plant manufactured Nestle-Osem's "Bisslee", and Nestle-Osem had at the time of the fire old extinguishing equipment in the state of junk. The fire served Nestle-Osem.
68. A few years ago the "Israel Taste" plant in the industrial zone of Rishon Lezion was burned down. This plant had a fight with Nestle-Osem at the time of the fire, and hocuses pocus, it was burned. The fire served Nestle-Osem.
69. Nestle-Osem's corrupt methods in its fight against its competitors are well known. As in Nestle-Osem's fight against "Strauss" in the ice cream business, and with Nestle-Osem's loss of 25 million NS I 97'. Here are "Strauss's", and Kibbutz Shefayim's words:
Nestle-Osem made it clear to Kibbutz Shefayim that should they not make an exclusive contract with Nestle-Noga – the sales of the Policad firm, owned by the Kibbutz, would suffer.
An official in the Kibbutz confirmed that Nestle-Osem pressured unusually hard to have Nestle-Nestle-Noga ice cream (owned by Nestle-Osem and Tnuva) the exclusive supplier of the Kibbutz".
Attached is the notice by "Strauss" and Kibbutz Shefayim – marked as K.
The Researcher Yoav Yizhaki Uncovered Nestle-Osem's Methods
70. Furthermore, in the research book "First class", by the most senior journalist and researcher in Israel, Yoav Yizhak, one can read of food companies who stood up to Nestle-Osem and were distinguished, this happened in the framework of the centralization process that has been taking place for years in Israel, a gradually worsening process which leads also to the overtaking of the media that is financed by them.
71. Attached is the research relevant to Nestle-Osem – section 490, marked as L, and on harming the public on section 491 - marked as L 1.
Nestle-Osem's Change of Version in Trying to Slander Pikanti at all Costs
72. While trying to eliminate the crusader companies – the companies that marketed Pikanti's products, the Nestle-Osem group submitted against them a series of 12 legal claims based on the false claim that they had not paid their debts to her.
73. Here the Nestle-Osem group used the ancient method of "Hast thou killed and also taken possessions?". To the list of claims see attached supplement and marked as M (see there section. (d) Section 2 and on). All claims were submitted in short justice order (and two at the execution bureau). To the heads of claims see attached supplement marked as N.
74. In those claims the Nestle-Osem group said that the crusader – Investment Crusader Ltd. – is responsible for all crusader debts, based on a letter issued by the Pikanti concern.
75. In Nestle-Osem's claims words: "The contract between the claimants and the Pikanti companies was done so that "Pikanti Investments Ltd."…obliged self towards the claimants to carry the redemption…" (See for example section 3 section11 (b) to civilian file 14645/98 and marked as O). There it claims to have been cheated and misled, and the corporate veil should be lifted and the Investment Crusader Ltd. should pay. Attached is the letter - marked as SECTION
76. Yet when the Nestle-Osem group did not succeed with those claims (why, will later be explained), they said that the one responsible for the crusader debts was not Investment Crusader Ltd. but claimant no. 1, "Cartel Survivor Ltd", and now it demanded the liquidation of "Cartel Survivor Ltd.", with the same excuses it used against Investment Crusader ltd.
77. In any case, according to the behavior of Nestle-Osem – logically one of these processes is futile - the 12 processes against Investment Crusader Ltd. or the liquidation process against Pikanti. See attached request for joining, and marked as Q.
78. The Nestle-Osem group acted in this way not for a legal matter of fact consideration and not for discovering it was wrong, but rather because it had not succeeded in the former claims.
79. Who but the representative of the Nestle-Osem group can describe its iniquity and its failure to the point of misusing legal processes.
80. In a debate at the District Court on 3.25.98, Nestle-Osem's representative declared that the Nestle-Osem group is interested in the liquidation of Pikanti because the liquidation processes that Pikanti implemented against the crusaders – the companies that marketed Pikanti's products – disrupted the Nestle-Osem group plans!! And in his words:
"The processes we implemented, they were interrupted in their prime…because Pikanti – the mother, proceeded to submit a liquidation request against the same companies that we submitted a claim against, the "crusaders", and by doing so it in fact disrupted the plans for those processes."
See the debate minutes, section 140, lines 22-29, attached, marked as R.
81. So the truth came out, and the representative of the Nestle-Osem group said it publicly. We have eyes to see that not claims of misleading, cheating, the lifting of the corporate veil by Pikanti was the truth, but only because the Nestle-Osem group's plans were disrupted, according to which Investment Crusader is to be blamed, Nestle-Osem proceeded to wrongfully use legal procedures, and now falsely claim that "Cartel Survivor Ltd." is to be blamed.
82. While there was no legal cause of action to submit a claim against Pikanti, the Nestle-Osem group conducted all its claims against the crusader companies – the companies that marketed the Pikanti products – as a whole, and against The Investment Crusader Ltd. in particular. When a poke was put in its legal wheel against the crusaders, the Nestle-Osem group had "no choice" but to go on with its method proven above (and which receives confirmation in the affidavit marked C 1) which is "Nestle-Osem will do anything to destroy Pikanti".
83. Yet it is hard to turn an ocean of claims and legal arguments which Nestle-Osem held in 12 legal processes with what it considered defined and proven cause of actions, and claim now that it is all quite the opposite. When Nestle-Osem destroyed the crusader – the companies that marketed the "Pikanti products – first with a cartel and then with an ocean of claims, all in the method of thou hast killed and also taken possession, she eventually realized that the tide was turned or in other words, she shot herself in the leg.
Nestle-Osem Recruited its Lawyer to Submit a False Affidavit
84. Nestle-Osem's smart guys consulted as to what to do next and found themselves a consultant.
85. Here Nestle-Osem recruited a new "war weapon" – an affidavit by a lawyer who is an internal consultant for the Nestle-Osem group.
86. However, Nestle-Osem does not say, nor does the consultant, that he is a consultant, and they do not say that he is a legal consultant (and a lawyer too), but they specify in the affidavit a mixture of incorrect data, from the role of the person who gave the affidavit to creating a distorted picture in order to create a legal basis to oblige the "Cartel Survivor Ltd" with the debts of all crusader – the companies that marketed Pikanti's products, and they thought that the readers' "…eyes are debaubed, and they cannot see" (Isaiah 44, 18) when they are cheated.
87. Moreover – This affidavit supported Nestle-Osem's request to join the liquidation file against Pikanti, while the one to request the liquidation, "Sunfrost", changed its mind. Nestle-Osem, using this request and this affidavit, delayed the cancellation of the liquidation file, and continued to cause harm to claimant no. 1 as specified hereinafter, and all by using false cause of actions. Attached is the request to join liquidation request,1264/97, liquidation file 595/97, marked as Q.
88. In his affidavit and in section 1 Mr. Joshua Meroz declares as follows:
"I, the undersigned, Joshua Meroz, after being cautioned…I am the secretary of the "Nestle-Osem Food Industries Ltd." companies, and – Nestle - Froumin…. and a member of the Nestle-Osem group management …".
89. Yet it turns out that the person who gave the affidavit is not a member of the above mentioned management.
90. The person giving the affidavit did not reveal his real position – a legal internal consultant to the Nestle-Osem group and a lawyer, in addition to being the group' secretary.
91. As specified in the registrar of companies' documents, the person giving the affidavit, lawyer Joshua Meroz, is not a manager in any one of the Nestle-Osem group companies who hold share and are inhere after specified. (The total number of managers in those companies is 57!!!).
92. Attached is a printout by the registrar of companies to the above mentioned Nestle-Osem company – marked as S. Attached is a printout by the registrar of companies to the above mentioned Nestle - Froumin Company – marked as T. Attached is a printout by the registrar of companies to "Atoor" of the Nestle-Osem group and a share holder in the two above mentioned companies – marked as U. Attached is a printout by the registrar of companies to "Nestle-Osem Export" which is a share holder in the above mentioned Nestle-Osem - marked as V. Attached is a letter of the representative of those companies. In the copy his real position and title are indicated – marked as W.
93. In section 3 to the affidavit the above declares that:
Pikanti submitted to the petitioners check as follows: To Nestle-Osem – a check for the sum of 309,848.35 NS…to Nestle - owner of Nestle - owner of Froumin – a check for the sum of 213,578.66 NS…and in section 3 (B) "The checks were submitted for maturity in the bank but were contaminated by non payment".
94. The affidavit is a portion of the Nestle-Osem group request against Pikanti – "Pikanti Food Industries" (as was its former name). The person giving the affidavit distinguishes Pikanti from "The Pikanti Groups". See reference to the "Pikanti Companies" in section 3 (D).
95. By making this distinction the lying Meroz puts up a false presentation as if the above mentioned checks were by "Pikanti Food Industries" (today "Cartel Survivor Ltd."). But examining the checks it is clear that not "Pikanti food Industries Ltd." (Today "Cartel Survivor Ltd.") submitted those checks, but one of Pikanti's companies, "Pikanti Investment Ltd." (For a long time named: "Investment Crusader Ltd.").
96. Meroz, the person who gave the false affidavit uses the name Pikanti and lets the court believe that he refers to the claimant. Yet as mentioned, this description is a false presentation of a fact and is done so intentionally.
97. The deceitful presentation was made to mislead the court to think that there is a reason for Pikanti's liquidation due to dishonored non-redeemed checks.
98. The deceitful person who gave the affidavit covers and does not reveal that those checks were claimed in two execution files from "Pikanti Investment Ltd." and not from "Pikanti".
99. Attached is execution file 17-09805-97-6 against debtor "Pikanti Investments Ltd." – marled as X. Attached is execution file 17-09804-97-5 against the debtor "Pikanti Investments Ltd.", marked as Y.
100. On page 4, section 4, the person who gave the false affidavit declares: "Under the circumstanced specified in the request and in this my affidavit, to my best knowledge and belief, I will claim…the Pikanti Concern business as a whole should be investigated…while conducting irrelevant action that should be referred to the past, creating fictional liens…"
101..And on page 9, section to the request it is said: "Moreover: On 8.10.97, about three weeks after (emphasis in original!) submitting the request for liquidation against H.
A. Food by Willi Food, this company submitted a second lien with no sum limit, all its assets and rights to the benefit of an external company registered in the Virgin Islands against a one million $ loan, and is this not an illegal lien of a company with poor assets under temporary liquidation, to the benefit of the claimant debts here".
102. But it turns out that H.A. Food did not request the lien on 10.8.97. The lien is of 8.22.97 (submitted to the pawns registrar and signed by him on 9.9.97 and registered only on 10.8.97). Attached – agreement and the pawn bill of 8.22.97, marked as Z, confirmation of pawn registration of 9.9.977, marked as Z1; a notice to the registrar of companies of 9.9.97, marked as Z2; a registration certificate from the registrar of companies indicating that the lien is as of 8.22.97 (registered on 10.8.97), marked as Z3.
103. Again, as already mentioned, the defendant puts up a deceitful presentation to the court with the intention of misleading it to believe that Pikanti and "Pikanti Companies" together made fictional liens after the request for the liquidation against H.A. Foods Ltd. was submitted, and that is not the case. The lien had been created a long time before the request for liquidation (the date of the liquidation was 9.25.97 and the lien was created five weeks earlier and not three weeks after!!!).
104. The temporary liquidator also indicated in his first report, ibid page 7, that the lien was created on 8.22.97. Regard section 16.2 to the attached page, marked as Z4. Yet the claimant is not satisfied.
105. To mislead the court as if a long time had passed after the request for liquidation, he says that three weeks had passed up to 10.8.97. But in fact only two weeks had passed from 9.25.97. Yet even the date of 10.8.97 is not the date of creating the lien. The deceit and misleading is multiplied.
106. The deceitful person who gave the affidavit and the Nestle-Osem group are not satisfied with these lies. In regard to the date of the lien creation, and for the deceitful presentation to be perfect for the court to be convinced that the "facts" are the reality, it is declared as follows: On 12.16.97, the temporary liquidator assigned to the "crusader" companies submitted his first report. In it emerge serious offences attributed to the claimant and her manager, who was also the manger of the "Crusader" companies, and there is enough in this report to base, all the more, what is written in this request: aa)…(bb) moreover: on 10.8.97, three weeks after (emphasis in original) the request for liquidation…". See the request by the Nestle-Osem group – supplement Q – page 9 section (25) – for convenient reasons this page is attached as an additional supplement, marked Z5.
107. The false presentation is, that even the temporary liquidator determined, as it were, that the company was under lien after the request for liquidation. But this is not what the liquidator ruled: "While H.A. Foods Ltd. and the additional five companies created the above mentioned lien…those acts were made within the period of three months before the request for liquidation against them in the liquidation file 546/1997, submitted on 9.25.97". Attached is the liquidator's ruling in section 16.5, marked as Z6
108. The deceit in this presentation is a pack of lies, as Joshua Meroz, the "Nestle-Osem Israeli Food Industries Ltd." deceitful secretary and the Nestle-Osem group are convinced that the court will accept this presentation without examining the report by the liquidator, and that if they say that the liquidator rules that the lien was after, why should the court suspect that the liquidator ruled the opposite? Their intention is clear – that whoever is misled by the presentation will act upon it, that is, as mentioned above: "And there is enough in this report to base, all the more, what is written in this request". That means, the best "proof" and the most "convincing' one is that Pikanti should be liquidated.
109. On page 10 section (cc), the Nestle-Osem group indicates, in its request to join the liquidation: "Not only this but also that: According to section 16.6 of the temporary liquidator's report, three companies in the midst of temporary liquidation processes were under lien…in favor of the First International Bank all their rights to receive fire insurance remuneration…this lien is registered with the registrar of companies on 10.27.97, one day before the appointment of the temporary liquidator (10/28/97) (emphasis in original). In this case also there is no way around the conclusion…".Attached is page no. 10, marked as Z7.
110. Again: The lien was not created on the day the defendant declared it was. The lien was created on 10.7.97, three weeks before the appointment of the temporary liquidator, and again, the reliance of Joshua Meroz, "Nestle-Osem Israeli Food Industries" secretary, and the Nestle-Osem group on the liquidator's "ruling", is the embodiment of falsehood, and in section 16.6 of the report the liquidator rules: "On 10.7.97 (emphasis by the liquidator), H.A. Foods Ltd. created…a lien in favor of The First International bank…". Attached is the liquidator's report, page 8, section 16.6, marked as Z8. In addition is attached the registration with the registrar of companies, marked as Z9.
111. On page 5 of his affidavit, on p. (g), it is declared: "In contrast to what is pled by the company in its request,, I plea that the crusader companies ceased to pay their debts to the petitioners as of August 1997 and even earlier…". Again, this is a deceitful presentation of a fact, in full knowledge that it is false, as the money entered their cash register, and this is no small some but 748,944 NS as follows:
On 7.10.97 check no. 31426 was cashed for the sum of 142,584 NS.
On 7.25.97 check no. 21901 was cashed for the sum of 415,427 NS.
On 8.10.97 check no. 34325 was cashed for the sum of 190,933 NS.
112. To base their request and cause Pikanti's liquidation, the cheater on page 5 of the above, in section (g) together with section 6 (a), and in the request itself, declares that the ceasing of payments is due to the company being insolvent and: "can not pay its debts to its creditors including the petitioners".
113. This declaration stands in contradiction to another declaration the Nestle-Osem group submitted in another process. On 9.21.97, two months after Pikanti, as Nestle-Osem claims, stopped paying for lack of ability to pay, Nestle-Osem submitted a contra claim, against Pikanti for the sum of 10,000,000 NS (!!). In the claim Nestle-Osem maintains (page 9, section 17) that: "As to the needs of this claim, and for practical reasons of Pikanti's future insolvency capacity, Nestle-Osem stated the sum of 10,000,000 NS only". Attached is the claim, marked AA.
114. On 9.21.97 Nestle-Osem is so sure of Pikanti's capacity to solvent the sum of 10 million NS, that it is willing to pay the fee of 250,000 NS. Yet when it wants Pikanti to be liquidated, it has no problem in submitting a false declaration – that already in 7.97 the claimant is not solvent and therefore it had stopped paying her. Nestle-Osem has no problem in submitting contradictory statements to different courts in an issue essential to the core of the matter.
115. The above listed false declarations are sufficient cause of actions for the Pikanti claims against Joshua Meroz, secretary of "Nestle-Osem Israeli Food Industries Ltd.". Suffice to say that those declarations reflect Joshua Meroz's - secretary of "Nestle-Osem Israeli Food Industries Ltd." - declaration as a whole, where foxes walk (Jewish midnight prayer).
The Causes of Action Against the Defendants, Once "Pikant's" Suppliers.
116. Stopping supplies, the Nestle-Osem group and defendants 2-4 and 7-29 , breached the trade agreement they had with Pikanti unilaterally. They did so without due notice, against the agreement conditions, and against the business custom between them.
117. In their above specified actions and/or failure to act, Nestle-Osem, Nestle -Froumin, and the rest of the defendants failed to fulfill their obligations to Pikanti, and treated Pikanti in an unlawful way or against the agreed, including the following:
On the contractual level:
118. They breached an agreement and/or a custom of contact between them and Pikanti, as under section 1 of the contract law remedy for the breach of contract, 1970.
119. And/or they acted against the rule of good faith and what is customary in keeping the agreement between them and Pikanti – in contrast to section 39 of the contract law (general part), 1973, and/or:
On the torturous level:
120. Knowing full well, they made other agents and/or the crusader companies breach their supply agreements with the claimants, with torturous inducement for breach of contract, section 62 to the Damage Law (new version),1968, and/or neglected, and/or acted out of malice as an ordinary person or a businessman would not do, and/or:
121. Publicized libel about Pikanti, as under the libel prohibition law, 1968, to the l public in general and other agents supplying goods to Pikanti in particular, and by doing so caused Pikanti considerable financial harm.
122. The almost certain harm of libel is damage to a person, to who the libel is directed. As the damage is not outside the natural results of the publicity, there is no need to see "with the intent to harm" in section 6 of the law a demand to a specific intent by the publicity, even if we adopt this classification of "intent". If the target, to whom the intent refers, "is attached to results which may develop naturally because of that behavior, then the intent attached to those results is ordinary, as the results are ordinary" (S.Z. Feller, "Absenteeism, to evade a combat duty", The Attorney, 534, 538).
123. More difficult is the distinction between motive and intent. The law does not always use the term "with intent" to describe a mental basis of intent but also as a term of motive (regard Z. Feller, Basics in Criminal Law (The Institute of Legislation and Comparative Law, named after Harry Saker, 512-513, and the examples there). The question, then, is if section 6 demands "intent" in the sense of a mental base of intent, that is a relation of wishing to the result, a wish to achieve the goal by doing the deed, or maybe section 6 deals with "intent" that is the reason which made the doer want the result.
124. When the motive is satisfied only after the immediate result was achieved (See Y. Levi and A Ledderman, Principles in Criminal Liability (Ramot Educational Systems 1979, 438-437), or as Prof. Feller says (Ibid. page 510): "the "intent" is that 'what' wished to be achieved or reached by doing, distinct from the 'why' which is manifested in the motive. The distinction is between 'aim' and 'motive'".
125. As the immediate (almost certain) result of libel by Nestle-Osem is damage to Pikanti, it is proper to say that the damage refers to the external reality to the doer and not his internal 'why'.
126. Because if the damage is direct and immediate from the behavior, it is not that far away goal, satisfied when the immediate goal is reached.
127. The test of result, integrated with the test of external reality, shows that all defendants spoke ill of Pikanti.
128. Furthermore, Nestle-Osem and its friends publicized a lie under section 58 of the Damage Law (new version) when they publicized an intentionally fraudulent notice about Pikanti's business.
129. Nestle-Osem, Nestle and Nestle - Froumin and the rest of the defendants weaved a plot with others, including manufacturers and other agents who supply goods to Pikanti, with the purpose of damaging Pikanti and/or prevent it and/or hinder it from engaging in its free and legal business. By doing so to Pikanti they committed injustice of breaching a statutory provision under section 500 (5) and/or (6) of the criminal Law 1997, as is meant in section63 of the Damage Law (new version), 1968.
130. As Nestle-Osem and the rest of the cartel members are to the most manufacturers, and as the acted in a misleading way against Pikanti, they are liable according to the consumer protection laws (the consumers/buyers, in this case Pikanti and its clients).
131. The quarrel created by the consumer protection law is not explicitly recognized in the general law, yet there are roots to this liability in the general law.
132. The explicit recognition of cause in the consumer protection law makes this question of cause simplified. The liability is that of the manufacturer in a case of misleading or covering up by him.
133. There are roots to in the general law both in the customary law and in ruling and in literature, to the recognition of the liability of a third party to misleading presentations which resulted in agreement. See the commentary to section 12 to the contract law (general part) 1973; in the book Contracts, by Daniel Levi and Nili Cohen, Aviram Publisher Ltd. 1991, Vol. A, pages 540-541, section 12.8; and G. Shalev Contract laws, Law, second edition, page 220. See also: civ.c.1569/93 Maya against Penford, 85, 48, (5) 705 (personal liability of a company's manager to the damaged of contact of the other side with the company due to presentations shown to it, in section 23 to the verdict); c.c. Kaplan V. Novogrotzky, 84 34 (3) 47 ( the liability of a mediator to damages caused by contact).
134. In the English law the liability of a manufacturer was recognized in cases when he presented direct presentations towards the buyer. The base for liability was the establishing of a unilateral contract (or a supplement). See David Oughton and John Lowry, Consumer law, 1997, Blackstone Press Limited. In Israel this technique has also been used.
135. Nestle-Osem and the other defendants in this claim are prosecuted also for breaching a legal obligation: The Restraint of Trade 1988, maintaining in section 4 that:
"A person will not be part to a cartel, wholly or partly unless he received a permit from the court according to section 9 or a temporary permit according to section13 or was exempted according to section 14, or that all the cartel members in the arrangement were exempted according to conditioned exemption determined in section 15A; the temporary exemption, the exemption or the conditioned exemption – are invalid unless their conditions were fulfilled".
136. All monopoly owners included in this claim, like Nestle-Osem and Tnuva are claimed for breaching a legal obligation also according to section 29 to the Restraint of Trade 1988 which determines:
"A monopoly owner will not unreasonably refuse to supply the asset or service of the monopoly".
137. And also small section ".
139. Nestle-Osem's" business and consumer criminality is not new. For a long time it has cheated the consumers in various ways and methods. It has been discovered, lately, that Nestle-Osem reduces the packages of its products, yet leaves the prices intact. In these times of recession when many families fall upon hard times, Nestle-Osem found a new way to increase its revenue, by cheating customers.
140. While it reduces the size of its packages so the consumer gets less and less, it profits at the expense of the consumers when it leaves the prices intact. For example, reduced the package-size of the large Bisli from 200 gr. to 190 gr. and the package was reduced from 70 gr. to 67 gr.
141. After it was caught with its fingers in the till, Nestle-Osem tried to save her name and announced she would reduce the Bisli prices in 1.1% , and will return the sweet Bamba to the weight of 30 gr., after it had been reduced to 25 gr.
142. The uncovering of this phenomenon aroused a big storm and the Ministry of Industry opened an investigation. At the same time, Zamir Hayat, the supervisor for the central region in the Ministry of Industry, announced that following the instructions of the supervisor of consumer protection, the shrunk packages would be collected and the manufacture would be invited to offer explanations. They would also examine the legal aspect of this issue.
143. The companies of the Nestle-Osem concern mislead their customers by reducing the size of products without reducing their price accordingly and without making it known to the consumers. The Knesset committee for public petitions, turned to the manufactures and the companies that changed the packages, and asked them to go back on the changes they had made. Among other things, the committee demanded that the manufactures make an obvious change in the packages so as not mislead the consumers.
144. The vice general manger of the consumer authority in the Histadrut, Hani Monin, said in a debate at the Knesset, that an arbitration body should be established for the issue of misleading the consumer, which are in the so to speak grey zone yet which deprive the consumer of his rights. The legal consultant for consumerism, Attorney Yosi Berg said that the authority's examinations showed that the phenomenon of reducing the size of packages can cause to the public a potential damage of half a billion NS a year. He also said that after learning the subject, the authority will debate its next steps.
145. The Ministry of Industry, Trade and labor will examine an obligatory process which will coerce the marketing networks to publicize the price of products in relation the quantity. This is about weight units, volume or single product units in large packages. This indication will enable the consumer to compare prices and will neutralize criminals such as Nestle-Osem from cheating the consumers.
146. Yet Nestle-Osem's iniquities do not stop here. About a year ago a snack it imported by the name of Chicks-Mix was taken off the counters, after it was discovered that Nestle-Osem cheated the consumers. On the package was displayed a misleading declaration that in this snack there is 60% less fat than in chips' snacks. As it turned out, this snack has nothing to do with chips snacks, as this snack is not made of potatoes at all and thus the comparison misleads the consumer, who assumes that he eats a potato fatless snack, when in fact the snack is made of corn and wheat. After the authority for consumerism got involved, The Health Ministry saw to it to take the snack off the counters. Yaffa Reicher, in charge of a legal group in the food service in Tel Aviv confirmed that a representative of Nestle-Osem was investigated at the police and the file was transferred to the Tel Aviv region Attorney's Office for further treatment. When asked by a journalist, Shoshanna Chen, "Why mislead the consumers? Nestle-Osem answered that the product was taken off the counters and the issue is treated by the legal department. This is how Nestle-Osem decided to put an end to this embarrassing story.
147. While the simple citizen fights for his livelihood, Nestle-Osem managed to have a sales turnover of the third quarter of 2003 of 633.9 million NS, which is an increase of 9.1% compared to the parallel quarter the year before. This fact alone can explain hoe "honest" and "loyal" Nestle-Osem is to its consumers.
148. It is obvious that today families buy less then what they used to in the past. but lo and behold, not only did Nestle-Osem's revenue not decreased it even increased, Perhaps if Nestle-Osem had conducted itself truthfully and did not try to mislead its customers at every corner, then its revenue would have explained the real situation in the company and in the market today.
Exploitation of Monopoly
149. Nestle-Osem is a monopoly as the term is under the Restraint of Trade – 1988. Nestle-Osem exploited its status in the market in a way that reduced competition in business and harmed the public, by reducing the amount of goods it supplied to Pikanti outside of fair competition and by doing so breached a legal obligation (paragraph 29 A to the Restraint of Trade, 1988), as under section 63 of the damage order (new version) 1968 and/or as under in section 50 to the Restraint of Trade, 1988.
150. Nestle-Osem was connected and/or was a party to a cartel in a way contradicting section 4 of the Restraint of Trade 1988 and which is a civil wrong.
151. The 1988 Restraint of Trade Law, in comparison to the former one of 1959, is designed to increase the supervision on monopoly activity to prevent damage caused by monopoly control of the market.
152. The legislator implemented in section 26 (A) to the structure examination law, somewhat mechanical, establishing conclusive possession, that control over more than half the supply of assets or services, expresses control and dominant status. At the same time, section 26 (c) gives the Minister of Industry and Trade the authority to determine, concerning certain assets or services, the existence of a monopoly even if the control is over less than half, if he finds – by the supervisor's recommendation, that whoever has a smaller portion has a decisive influence in the market.
153. A monopoly is not against the law. The Restraint of Trade Law does not prohibit a body or a certain firm to have a monopoly, only if it has a monopoly, as Nestle-Osem does, the law forbids it from exploiting its monopolistic status as Nestle-Osem did against Pikanti. The Restraint of trade controller, in his ruling concerning "Yediot Aharonot" determined as follows:
"In our system…the control over monopolies concentrates on avoiding the exploitation of a dominant status in the market. A monopoly as such is not forbidden by law. In principle, a company with a monopoly has the right to conduct its affairs as it sees fit. This right has been around for a long time and now it is anchored inn a new basic law: the law of occupation. The goal of controlling the monopoly is to prevent damage that may ensue from the monopoly owner's control of the market".
154. The issue of forbidding unfair competition, which we will deal with hereinafter, is anchored in section 29 A of the Restraint Trade law, a correction and an addition to the 1996 law. Section 29 A of the law focuses in avoiding exploitation of the monopolistic status, while section 30 of the law states some statutory causes for orders to settle monopoly activities.
155. One of the statutory causes as mentioned, is the cause of "conducting an unfair competition between the monopoly owner and others", as Nestle-Osem conducted.
156. The learned Yizhak Yagur wonders what is new in section 29 A of the Restraint trade law compared to section 30 (4) to the law, if all causes mentioned there fall anyway into the wide cause of "conducting unfair competition" by virtue of section 30 (4) to the law. The answer, according to Yagur, lays in the level of evidence and in the burden of proof.
157. Section 29 A rules in fact four possessions that should one or more of them exist, a possession is created by which the monopoly owner exploited his status in the market in a way that may reduce competition in business.
158. One of the exploitation possessions rules that "exploitation" means conducting unfair competition towards others.
159. The Law used the term unfair competition "towards others" and not necessarily towards competitors. Yagur explains that unfair competition, as reflected in monopoly
rules, is not only on the horizontal level, which means, it is no merely among competitors, but it could exist also on the vertical level – between the monopoly owner and the distributor or distributors of the monopolized product, or even towards the suppliers, as was the case with the Nestle-Osem's CARTEL AGAINST Pikanti.
160. The competition, in this case, as will hereinafter be brought, was far from being a fair one. The claimant's suppliers (hereinafter the defendants), took part in the food cartel established by Nestle-Osem. The defendants stopped the supplies in an organized and coordinated manner, despite the fact that the claimant made its payments on time, and by doing so they created the domino effect.
161. Stopping the supplies caused severe financial damage to the claimants and to the Pikanti concern in general, and caused the collapse of the Pikanti concern. The actions by each company by itself and the actions of all the companies together with the others, damaged the cash flow, emptied the Pikanti concern counters, and signaled to the rest of the suppliers to join the destruction. The actions by the defendants, together and separately, caused panic among the suppliers, and they too, in a short time, ceased to supply goods fearing and expecting that the actions by the other defendants would disrupt the cash flow.
162. Others in that additional crowd worsened the credit terms as a condition to keep supplying goods. Naturally, the change in credit terms, added a layer to the damage of the Pikanti cash flow.
163. When the supermarkets' shelves remained orphaned, the customers deserted the stores, which resulted in even more cash flow damage. On one hand expenses swelled up (for paying all bills to the defendants), while on the other hand, income went down the hill. The result: Discontinuation of bank credit which is built by virtue of cash flow.
164. The incapacity of the Pikanti concern companies to pay off their debts to the defendants, created enormous financial difficulties to the claimants, as all their income was based on ordering goods from the marketing companies. With the destruction of the, marketing companies, no one remained to order goods from the claimants.
165. These actions caused, among other things, the selling of part of the business for a pittance. Thus supermarkets with their expensive equipment were gone, and the investments went down the drain.
166. These actions were done despite Pikanti's and the rest of the Pikanti concern's warnings to the defendants, who did not give required advance notice, and acted to liquidate Pikanti in a manner contradictory to the company's ordinance.
164. If those actions were not enough to destroy Pikanti, the companies implemented legal actions with the goal of destroying Pikanti. However, it was proven that they conducted futile proceedings as court, including submission of false affidavits, forgery, and evidence concealing. These acts were severely criticized by the court.
168. Thus, to the causes of the above claim of the Nestle-Osem group and its collaborators, are added causes of action for violation of trade agreements and obligations, actions against the law on a contract and damage level, exploitation of monopoly, conducting futile proceedings and more.
169. By activating a cartel, the suppliers caused Pikanti damage on a very large scale. As they were determined to bring about the collapse of Pikanti, they breached their contract with Pikanti. Any excuse, that Pikanti was in economic bad shape at that time, which made them each breach their contract, is an utter lie.
170. At that time Pikanti enjoyed economic strength and there was no reason to breach contracts, unless for malicious reasons. Furthermore, the argument as if the collapse of Pikanti originated in acts and failure to act on the part of its managers or its share holders as it were, is not in order, because already the magistrates court in Tel Aviv ruled that this is not about "inner" economic difficulties which originate inside the corporation, but rather about external to the corporation difficulties, not under its control, and not its guilt. In CF080724/97 submitted to the magistrate court in Tel Aviv, Judge (today vice president) Judith Shevah ruled:
"…and so this case is not the classic one where the manger keeps purchasing for the corporation and the checks he gives will not be paid due to economic difficulties of the corporation, but the opposite case where the seller stops providing goods in a sudden and unilateral manner, and despite this the corporation keeps paying the dated checks for two months after the date of the supply stop".
171. And the honorable Judge Shevah continues and rules:
"It has not been proved that defendants 7-8 ("Pikanti's owners and its accountant – M.B.) knew what was coming and expected it. On the contrary, the evidence submitted to me point to a firm economic situation, regular payments on a large scale in the past and an effort to solve the crisis by pouring in personal money".
172. Therefore, any claim the defendants arise concerning this issue, is a false claim as the truth has been uncovered, and it would be an act of court contempt.
173. The defendants are, thus, silenced from waving their chewed and flagellated lies
about the blame components they tried to falsely accuse Pikanti and its managers with.
174. The causes of action against the defendants are, among other things, the breaching of trade agreements and obligations, acts against the law on the legal and torturous level, exploitation of monopoly, malicious suit, and more.
175. Some of the defendants tried to destroy Pikanti at all costs, without any debt or a cause for liquidation, even at the cost of misleading the court. They would stop at nothing, including false claims and fact concealing.
176. By stopping the supply of goods, the cartel partners breached the trade agreement between Pikanti and its suppliers unilaterally, with no advance warning, in contrast to the trade agreements and in contrast to the manner of trade between them.
177. Every defendant, who was a supplier for Pikanti, in its act or lack of acts, breached its obligations and acted towards defendant no. 1 against the law, among other things as follows:
178. On the contractual level, breached an agreement and/or custom of relations as under section 1 pf the contract law (remedy for breach of contract), 1970, and/or: acted against the debit of good faith and the customary way in keeping agreements – against rules of section 39 of the agreement law (general part) 1973, and/or:
179. On the damage level, knowing full well, caused agents and/or suppliers and/or other companies to breach supply agreements while causing, among others, torturous inducement for breach of contract, section 62 to the damage ordinance (new version) 1968, and/or: publicized slander about Pikanti as the term means in the prohibition of slander law 1968 to the public in general, and to the above mentioned agents in particular, and caused Pikanti substantial financial damage, and/or: publicized a scathing lie as under section 58 to the damage ordinance (new version) as it publicized by itself and together with others false notices about Pikanti's business, and/or: conspired with others to damage Pikanti and/or prevent it and/or disturb it to do its business in a free and lawful manner. By that it acted torturously towards Pikanti a torturous breach of legal debit, among others according to section 500 (5) and/or (6) to the Criminal Law 1977 as under section 63 to the inducement order (new version) 1968, and/or the defendant's liability is also as a partner and assistant to the exploitation of monopoly by Nestle-Osem, inducement for a breach of legal debit as under section 29 to the restraint of trade law, and section 63 to the damage ordinance , and/or to the restraint of trade law. Its liability as partner and lobbyist is as under section 21 to the damage order.
180. Hereinafter, the specification of the relations of the defendant with Pikanti, the situation before the breach of agreement and immediately after the start of the cartel, the details of the severe damage and its meaning to Pikanti.
188. Nestle-Osem offered no explanation to the breach of contract with Pikanti. Even after Pikanti asked it to renew the supply of goods and keep the contract, Nestle-Osem did not answer the pleadings.
189. Contrary to the agreements, the promises, and the trade custom, the goods were not supplied, and inability to sell suppliers' goods at that time resulted in heavy losses, expenditures for external financing due to the stopping of credit, loss of profit due to the pending liquidation process, and other debts.
Defendant no. 2 – Nestle -Froumin Marketing (1975) Ltd.
190. The contract between Nestle - owner of Froumin Marketing (1975) Ltd. (hereinafter Nestle - Froumin) and Pikanti, was conducted in 1994.
191. Nestle - Froumin supplied to Pikanti various products among others: waffles, crackers, and cornflakes.
192. The contract between the parties was done orally and for an unlimited sum. Pikanti paid Nestle - Froumin regularly, who saw to it that a representative on its behalf would come and pick up the checks from Pikanti's office in Benei Brak.
193. Even though Pikanti continued to honor the agreement, Nestle -Froumin breached its part in the agreement and on 7/3 stopped the supply of products to Pikanti suddenly and with no explanation.
194. Even after time after time pleadings, Nestle - Froumin did not renew product supply to Pikanti. All questioned directed at to Nestle - Froumin, were evaded and no real answers were given. Furthermore, Nestle - Froumin approached other companies and convinced them to stop their business with Pikanti as well.
195. Nestle - Froumin belongs to the Nestle-Osem group and manufactures food. Nestle-Osem held Nestle -Froumin shares and its managers are Nestle-Osem's managers. All of Nestle - Froumin's acts against Pikanti, whether cartel acts or legal ones, were coordinated with Nestle-Osem.
196. So, for example, the liquidation request was joined and accompanied by a joined affidavit, an affidavit submitted by Joshua Meroz, the secretary of both Nestle-Osem and Nestle - Froumin companies, an "a member of the Nestle-Osem group management.
Nestle - owner of Nestle Froumin managed the food cartel that was organized by Nestle-Osem (as mentioned, Nestle - Froumin belongs to the Nestle-Osem group), as a supplier to the Pikanti concern.
197. On 3.18.98 Nestle - Froumin submitted together with Nestle-Osem, a request to join the liquidation request against the claimant no. 1. In its request and its affidavit, it said that the ,marketing companies (the stores in the Pikanti concern) ceased paying already In July 97', the month it stopped supplies to Pikanti. In addition it claimed, that claimant 1 is the debtor of the marketing companies (by virtue of the lifting of the veil and more).
198. It was proved that the Nestle - Froumin affidavit was false in its facts such as: On 7.10.97 a check no. 31426 for 142,584 NS was paid and cashed; on 7.25.97 check no. 21901 for 415,427 NS was paid and cashed; on 8.10.97 check no. 34325 for 190,933 NS was paid and cashed.
199. All in all 748,944 NS were paid and cashed, during the month when Nestle - Froumin did not supply products as agreed, causing the collapse of the marketing companies and claimant 1.
200. By drawing those sums, and other former sums, is an illegal act of preferring creditors, a preference that should be returned, and a preference that created a disadvantage with claimant 1. Also, the facts Nestle -Froumin claimed were contradictory to the facts it raised to the court in other proceedings.
201. The District Court rejected Nestle -Froumin's request and was very critical of Nestle - Froumin:
202. The court ruled that Nestle - Froumin had not submitted a proper affidavit as customary in legal order. As the court noted:
"Those requesting to join the request should have asked to rule of an exchange…but, regretfully, not one of those requesting the joining acted so."
(Minutes of 5.18.98, page 148).
203. The court noted that Pikanti (claimant 1) disagreed:
"In good faith and good reason, with the payment demand" (page 151 of the minute).
204. On the Nestle - Froumin presentation, the court's criticism was severe, and the court noted that:
"There is no need to use the sum in dispute for the defendant's version (claimant 1 – M.B.) in this case. Suffice are the claimants' versions (Nestle-Osem and Nestle - owner of Nestle - owner of Froumin – M. B.) to determine that the base for the disagreement is a genuine one. (Page 153).
205. Nestle - Froumin claimed falsely that the, marketing companies created a lien for the First International Bank one day before the appointment of the liquidator. The truth – the lien was created much earlier. The claim of assets smuggling turned out to be dales.
206. The court ruled:
"There is no need to raise the "liquidation sword" over the defendant, before the claimants prove that the defendant is in their debt ".
207. Nestle - Froumin's request and its trial to mislead the court and cause it to fail in a legal procedure, to believe that Nestle - Froumin provided goods to the claimant and the marketing companies, and that the claimant had not paid and therefore the "liquidation sword" should be raised and the debt collected – all these are futile proceedings, and points to its actions in the cartel which were meant to destroy Pikanti totally.
207. To the above causes of conducting unlawful acts and fraud should be added the causes of action that derive from Nestle - owner of Nestle - Froumin's part in the cartel.
208. From 1.1997 and until 6.1997, the Pikanti concern bought from Nestle - Froumin goods for the sum of 927,920 NS.
Defendant no. 3 – Tnuva Partnership Center for the Marketing of Agricultural Produce in Israel Ltd., Defendant no 4. – Tnuva Food Industries, Agricultural Corporation in Israel Ltd., defendant no. 7 – Haifa Poultry Partnership 1992
210. Haifa Poultry partnership (hereinafter Haifa Poultry) has been a dead organ for years, which the Tnuva concern (Tnuva Partnership Center for the Marketing of Agricultural Produce in Israel Ltd., Tnuva Food Industries, Agricultural Corporation and the rest of the companies linked to this concern), used to try and taunt Pikanti.
211. The agreement between Pikanti and Haifa Poultry was agreed upon in 1985, and in 1992 the contract was entered into with the Haifa Poultry Partnership.
212. The business of Haifa Poultry Partnership was poultry slaughter. It provided Pikanti with various products among other with: fresh poultry, frozen poultry, and cut poultry.
213. After negotiations between the late Mr. Arie Shrager and Mr. Moshe Badash of Pikanti, and the national dales manager of Haifa Poultry Partnership, an oral contract was conducted for an unlimited sum.
214. It was agreed between Haifa Poultry Partnership and Pikanti that the contract will be automatically renewed annually with no time limit. Pikanti paid regularly to Haifa Poultry Partnership, who saw to it that a representative on its behalf would pick up the checks at the Pikanti offices in Bnei Brak.
215. Even though Pikanti continued to honor the agreement between them, Haifa Poultry Partnership breached its obligations of the contract and on 7.14.97 stopped supplying goods to Pikanti, suddenly and with no explanations. Even after consistent pleadings, Haifa Poultry partnership did not renew goods' supply to Pikanti.
216. Even though Tnuva ceased the supply to Pikanti, Pikanti continued to honor all its obligations. So, for example, Pikanti paid Tnuva the following sums after the start of the cartel: on 8.17.97, 119,180.50 NS were paid; on 8.20.97, 260,084.40 NS were paid; on 8.21.97 215,077.34 NS were paid; on 8.24.97 157,693.52 NS were paid.
217. Furthermore, even though Haifa Poultry stopped supplies to Pikanti, Pikanti continued to fulfill all its obligations. Thus, for example, Pikanti paid Haifa Poultry the following sums after the start of the cartel: on 7.23.97 201,098.11 NS were paid; on 10.3197 119,794 NS were paid; 0n 8.10.97 checks were paid for the sum of 148,103.16 NS and also 100,920.39 NS.
218. Haifa Poultry Partnership is, as mentioned, a legal entity which acted unlawfully, when controlled by the Tnuva concern in virtue of Tnuvashot Ltd. by holding shares in trust with lawyers. According to the law, Tnuva should have asked the approval of the restraint Trade Controller to be involved in the control over Haifa Poultry. This criminal bunch chose to take the law in their hands, to neglect to approach the Restraint Trade Controller, and to try and hide the relations between the different corporations that were created to bypass illegally consumer law of great importance.
219. The base of facts shows that the restraint trade criminals should be sent to jail, with the top swindler Arik Riechman in front, who externally presents a rough, illiterate farmer, yet in fact, this is just a cover for his illegal iniquity and the Diaspora-like "combinatory" not fit in the 3rd. millennium.
220. Reichman's criminality damaged the Pikanti companies mortally and ruined the lives of hundreds of families in Israel. There is no doubt that in the above case, Reichman took advantage of Haifa Poultry's as it were, separate persona, to make an unacceptable profit in illegal and false ways, hiding from the public and from the restraint trade controller, who serves as the consumers' trustee, the true connection between Tnuva and Haifa Poultry.
221. The law determined a number of tests for the examination of the existence of agency relations between a parent company and a subsidiary company. Thus, for example, CPL 8472/96 The General Workers Union of Israel against the Moledet cooperative settlement, 51 1 61:
The conclusion of the existence of agent relations between a parent company and a subsidiary company in a cluster of companies, is anchored in various factual factors, including the question who appointed the business managers of the subsidiary company?; is the parent company the operating brain to activate the company?; is the profit of the subsidiary company driven from the expertise and the judgments made by the Parent company?; does the parent company control the business of the subsidiary company?; can the parent company make decisions concerning the subsidiary's company capital and is the parent companies' control over the subsidiary company effective and continuous?...the lifting of the veil is also conditioned on the existence of certain basic facts – the existence of one economic unit, identical share holders and managers in the various corporations, and full control of the parent company in the subsidiary company until the latter is deprived of self whish. The test is if the subsidiary company acts as a tool or pipe for the parent company's activities. Here also, the nature of these bases requires laying a detailed factual foundation of the relations between the corporations and the defendants".
222. This tests show that the curtain should be raised in relevance to the corporations of Tnuva and Haifa Poultry and all involved should be severely punished, because, as the law requires, Haifa Poultry "stopped acting on its own will", for her logical trade interests, and worked solely to serve the dark interests of Tnuva, including the food cartel issue, which means that "its self wish was deprived".
223. The food cartel against Pikanti was not the only time when Tnuva acted against the restraint trade law in the food market in general, and in the fattened and regular poultry in particular.
224. Furthermore, Tnuva uses to act against the laws of fair trade and the restraint trade law while rolling its eyes heavenward as if it were some saint and not a giant, destructive conglomerate.
225. So, for example, in a case in CPL. 2247/95, the restraint trade controller against Tnuva Partnership Center for the Marketing of Agricultural Produce in Israel Ltd., Tnuva merged de facto with the Negev Poultry slaughterhouse while covering itself with feathers of innocence.
226. Tnuva's claim in essence was, that a buying act should be interpreted as a "merge", only where all assets and obligations are transferred from a transferring company to an absorbing one, so that a firm unity is created between business bodies that prior to their merger acted as separate independent bodies.
227. Tnuva claimed that a merger occurs only where the result of the purchase is a unification of decision making processes in the companies, where the share holders of the transferring company become the share holders of the absorbing company.
228. And also, Tnuva, which for years did no procedures stand in its way to turn into the biggest economic body in the Israeli food business – suddenly is concerned with pedantry procedures.
229. Years of rolling their eyes as goose fatteners and combinatory activities under the wing of the agricultural lobby in the Knesset, turned Tnuva and its heads opaque to essence. It was the honorable president Barak who put them right in the Negev Poultry case and who forced Tnuva's "innocent" heads to look at the economic reality as it is:
230: "The term merge," the Honorary President Barak ruled, "has different meanings on different occasions. It has not one single meaning in any context. Its meaning is determined by its legislative order; its range is determined by its context…therefore, once the Negev Poultry purchase was the purchase of most of Negev Poultry's assets, this transaction should be considered a merger. For that matter, it makes no difference if the company is under liquidation or receivership. This state of the company may influence the consideration if the merger influences the competition. Such a case does not influence the question if we have here a "merger" as defined by the law".
231. Tnuva is one of the biggest and strongest companies in the market today. Striving to position itself in a central place in the Israeli consumer culture, Tnuva acted in a way that would not have shamed the heads of Sicilian mafia.
232. Tnuva was not satisfied with being a huge food company for many years, it wished, like a destructive giant, to not only be the biggest, but more importantly, the only one in the market. Into this boiling cauldron Pikanti entered unaware, as it opened its gates as a food chain that provides basic food products and other basic products, for low prices and superb quality.
233. This step by Pikanti did not fit Tnuva's narrow vision, that competition was the last thing it wanted, as competition is an opening for reduction in prices. So Tnuva decided to act so that it remains not only the biggest in the market, but that at the end of the day other businesses would learn not to dare compete with it, or it would destroy them. And indeed, Tnuva planned and implemented.
234. Tnuva knew its power and watched its big rival, Pikanti's downfall, being realized, used its great power, intrigues, quarrels and threats while acting illegally and even criminally, hiring public relations people for hundreds of thousands of dollars to blur the criminal activity and paint it in so called legitimate colors.
235. In this way Tnuva proved it has no ethics or morals, it does as it pleases and does not care who it will run over or destroy, as long as it succeeds in reaching its aim. While all that time ignoring the law, the courts and the principle of free market.
236. All hoity-toity as a socialist corporation with the image of an organization led by industrious , honest workers, Tnuva is, in fact, led by a criminal and greedy bunch of people, a part of whose heads are corrupted personally and politically, and not only in restraint trade law.
237. To achieve its goal, Tnuva approached many companies that provided many products both to Nestle-Osem and to Pikanti and threatened them, warning companies and their managers, that should they keep providing goods to Pikanti, Tnuva will stop doing business with them.
238. Tnuva's threats worked as planned and all companies threatened by Tnuva stopped in one way or another supply to Pikanti. so terrorized were the companies, that they did not wait for the contracts with Pikanti to expire, but put themselves in danger and breached the contracts loud and clear, so that Ynuva would not realize its threats against them and would not cause their destruction.
239. The actions of the various companies caused Pikanti unbelievable damage. And so Tnuva, in a direct, conscientious, malicious way, brought about Pikanti's collapse, recruiting to her side other companies in the market, with strange threats, activating a cartel and shamelessly using its monopoly in the market.
The Illegal and Immoral Ties Between Nestle and Tnuva.
240. Today, after moving Pikanti out of the way and it being no threat to her, Tnuva found time to pursue her wish to be the only and biggest in the market, which will enable it to set the prices automatically, with no worry of competitors who would turn prices down and force her to do the same.
241. Therefore Tnuva today is in touch with Nestle to enter as a strategic partner to Tnuva. Nestle is one of the two biggest diary manufactures in the world. It operates in the coffee market, milk and mineral water and in Israel it operates by means of its 51% portion of Nestle-Osem, yet only in the areas of coffee and mineral waters. Thus both Tnuva and Nestle-Osem, the two leaders of the cartel against Pikanti, have ties with nestle, who engaged in Jewish forced labor during the Holocaust, - and who threaten to turn into a giant empire that will overtake complexly the food market as far as dairy products and snacks are concerned.
242. If this business vision is realized, then Israel is expected to watch a fantastic vision in which holocaust survivors, whose families, friends and perhaps they themselves, were working in labor camps doing such jobs as shining the Nestle workers latrines for a pitiful bowl of murky soup – will have the chance to upgrade their relations with the Nestle concern when they are allowed to buy – thanks to the possible merger with Tnuva, a Yopple cup in an optimistic apricot flavor in the nearby supermarket. This time, hopefully, those Jews will be allowed not only to take care of their food without presenting food slips allocated to them by the troopers, but also the price of which Nestle will provide for its subordinates will, in all probability, be expropriated.
243. This is anomalous and sounds imaginary, but reality sometimes surpasses all imagination. It is especially wondrous, in face of the fact that the government of the State e owner of a portion of Tnuva's shares, was established among other things, in virtue of the memory of the six million Holocaust victims. This approached is expressed in Israel's declaration of independence:
"The Nazi Holocaust which engulfed millions of Jews in Europe, proved anew the urgency of the re-establishment of the Jewish State, which would solve the problem of Jewish homelessness by opening the gates to all Jews and lifting Jewish people to equality in the family of nations.. The survivors of the European catastrophe, as well as Jews from other lands, proclaiming their right to a life of dignity, freedom and labor, and undeterred by hazards, hardships and obstacles, have tried unceasingly to enter their nation's land".
244. Facing the fundamental obligation of Israel to the holocaust survivors and to its democratic values, and in face of the above, it is doubtful if Nestle has the right – in virtue of Israel's basic value – to be a partner of the State of Israel in the ownership of Tnuva, or to hold any share, or to transfer even a penny to an Israeli corporation, except for donation money, compensation and reparations to institutes perpetuating the holocaust survivors.
Tnuva's Responsibility to the Price Increase and to the Enhancement of Poverty in Israel.
245. Tnuva is a huge cooperative that controls the entire market, and due to Tnuva's efforts to kick out any potential competitor, it is also the only one in the market. For the past two years, Tnuva's management has been trying to turn the agricultural cooperative Tnuva, held by 620 Kibutzim and settlements, into a company Ltd.
246. Only lately did Tnuva finish the combination process, so that now any of its future share holders know what the share of the companies' capital is. Furthermore, over the past three years, Tnuva distributed 20% of its revenue to the cooperative members, a distribution in the total sum of 225-30 million NS per year. A simple calculation shows that Tnuva's annual revenue us 120-150 million NS over each of the past three years. Tnuva's worth was evaluated in the past between two and three billion NS.
247. Tnuva's annual business cycle in the dairy market alone, is assessed to be about
4, 5000,000,000 (four and a half billion NS a year). To understand Tnuva's monopolistic control of the market, we will compare it to the American dairy market. The cost of raw material to the dairy market in both Israel and the U.S.A. is identical, yet the price of dairy products in Israel is about double than in the U.S.A., despite the fact that labor rate in the U.S.A. is higher than in Israel. This simple comparison shows that it is possible to market the dairy products marketed by Tnuva in Israel – at half price to the consumer. Tnuva's rate of sales as a result of its monopolistic control in the branch, is then, half its total cycle, or in other words, two billion NS annually as the result of the monopoly.
248. Where do Tnuva's billions go to? Among other things, this monopolistic profit enriches the pockets of lobbyists such as Moshe Teomim of Gitam and various politicians whose duty it is to stand guard not to harm the distorted economic octopus. Some of the creative ways Tnuva uses to pour money to politicians are: "donations" or "survey financing" through the Gitam public relations office, pouring in ads, financing ads that find their way eventually to political factors, and more such exilic methods.
249. This explains why politicians and various go-getters who were financed by Tnuva in some way or another over the years and did not say a word when the food cartel against Pikanti started. The silence of the rhinoceros who were sent to the Knesset to represent a voting body and not the Reichman family or Tnuva is irritating especial is irritating especially in view of the factual base of bribe received.
250. It is not surprising, then, that Reichman and Tnuva, who bribe in various ways and covers to various factors, did not find any problem in transferring fat budgets to the accountants office owned by Reichman's son. With the transfer of those budgets, Reichman did not update the 600 partners of Tnuva how gifted was his son, and what his advantage is over tens of other accountants of other Tnuva partners' families.
251. While Tnuva enjoys prosperity and riches at the expense of its customers, there are people who are not that lucky, and who cannot afford to buy the products Tnuva provides.
252. Those families are condemned to hunger, as they are not able to allow themselves the prices Tnuva determines, and they cannot find similar products from other companies, as Tnuva saw to it that they were shut down.
253. In the past, when Pikanti was still around, it would provide products, the quality of which was no less than Tnuva's products, but for a much lower and at affordable prices. Now when Pikanti collapsed, with the "kind help" of Tnuva, Tnuva is not obliged to cope with competition, and can determine any prices it pleases, knowing that there is no other group today that can compete with its prices or its products.
254. A survey by the Brookdale institute of the Joint, shows that 400 thousand families, about 22% of the Israeli population, suffers from "lack of nutritious certainty". These elegant words cover a hard reality, or in other words, these 400 hundred families cannot buy food in a regular fashion or with the proper ingredients, that will enable them and their children to function properly.
255. The lack of nutritional certainty can be seen in smaller food portions that many people eat, and their culinary ingredients (the ingredients of food can be critical to a person's health, see the Remedia case), and in skipping meals, in extreme cases even not eating for a whole day. Another expression is the eating of unvaried food, rich in carbohydrates and lacking in meat, dairy products, vegetables and fruit. People who suffer from lack of nutritional certainty are divided into two groups, 14% are defined as families with a moderate nutritional certainty, and 8% as families with severe nutritional certainty.
256. Those included in the moderate situation, take care that only the parents are harmed but not the children, as the parents give from their portions so the children get all they need. In families whose nutritional lack of certainty is severe, they children are also harmed. That is, even if the parents give the children from their portions, there still is not enough for the children. These severe numbers show the situation today, when there are children who go hungry to sleep, with an empty stomach, and even those whose parents are able to provide them with food, it is basic food only and often lacking basic ingredients such as dairy products, and meat. Among the harmed are single-parent families, the elderly, lone people and multiple-children families.
257. There is no way around the conclusion that Tnuva is directly responsible to the hunger of many of those families. This declaration may sound severe, yet it is absolutely true. Had Tnuva not acted illegally to bring about the collapse of Pikanti, then today there would be a number of big companies around which would provide both dairy and cutlery. As Pikanti's greatness was in selling products very inexpensively, Tnuva would not have had any choice but to reduce its prices to the minimum, as free competition is in any free market.
258. In such a case, any family, as poor as it is, could have afforded to buy dairy and cutlery products, because the prices would be considerably lower. However, Tnuva has never been a cooperative with a social conscience. All it has ever cared about was to earn as much as possible, at the expense of citizens who are obliged to pay what it demands, to get food.
259. The result is the citizens of Israel pay "charity" to Tnuva, for it to provide them with basic food products, and Tnuva on its part, leaves them no choice. So, 18% of the families in Israel, 1.17 million people, who live under the poverty line, half of them half a million children. Tnuva prevents – by forcing unjustified high market prices – basic food products.
260. A survey by "Latet" (Hebrew - to give) with 94 non profit organizations found there was a growth of 46% in demand for food compared to 2002, when a 37% growth took place compared to the year before. "Latet", an umbrella organization which provides food to tens of organizations, handed out more than a thousand tons food to a hundred non profit organizations in 2002-2003, in comparison to 50 tons it handed out to 30 organizations in 2001. Yet only 55 of the families receive food help from various sources, which means the voluntary assistance does not reach the hard stricken families. Also, the number of young people asking for help was doubled from 8% in 2002 to 15% this year.54% of those who receive help, do so for over a year.
261. The lack of food is expressed in diseases such as diabetes and anemia. 40% said they, or other adults in their family lost weight because they had not enough money to buy food. 29% said that children in the family were hungry as they had not enough money to buy food for them. 24% of homes in Israel were forced to chose between buying food to other essential needs, such as medicines or paying the electricity bills, half of them reported that they gave up food and the other half other things, such as a mortgage.
262. It was also found that among 46% of the families whose uncertainty was defined as severe; at least one family member was diagnosed as suffering from anemia, a disease caused by lack of iron in the body. In comparison, in families who are provided with food, only 2.6% of anemia cases were diagnosed. Also 15.4% of the families provided with food reported diabetes, compared to 32.6% in families who have no food provision certainty.
263. All this while Tnuva boasts with its wonderful income, and many families in Israel suffer disease and hunger, because they are unable to pay for food that Tnuva provides them for expropriated prices, after it took care to kick out all competitors from the field. Here, for example, are some consumer products of an average family and their prices in Israel and in the U.S.A:
A liter of milk in a plastic pitcher in U.S.A.:2.15 NS in Israel: 4.47 NS
A no. 1 egg in U.S.A.:0.27 NS in Israel: 1.16 NS
200 gr. butter in U.S.A.:1.55 NS in Israel: 1.16 NS
250 gr. 9% fat cheese in U.S.A.:1.45NS in Israel: 4.83 NS
264. It is clear that the monopoly Tnuva implements in the market affixes the prices on such high levels. With an identical salary in Israel and in the U.S.A., an American family can live in comfort while an Israeli family can hardly make ends meet.
265. These data are outrageous for any person living and working in Israel. Why should we pay for a product identical in quality and in quantity 4 times more than in other places? Tnuva's greed is the reason. But when this situation "irritates" us, in some families the situation makes the difference between children with a full stomach and hungry ones, between parents who eat to the full and parents who deprive themselves of food, and sometimes fast for days, so their children will not die of hunger. This description is no dramatization of the situation but an accurate one of the situation of the current situation in 2003 Israel in light of the economic situation.
266. In the beginning, when Pikanti claimed that Tnuva activated a cartel against her and that Tnuva is a monopoly, those who were not familiar with the details of the case may have thought that this is a paranoia or a baseless accusation. Today, the idea that Tnuva is a monopoly is not such a wild idea anymore, and the situation is exactly as Pikanti described it. The Ministry of Finance itself planes to break Tnuva's monopoly and place her under the supervision of the restraint trade controller. Ideas that once seemed unfounded are proved one by one by reality.
267. The fact that Tnuva is a monopoly should not come as a surprise, because when we think about it we realize that most of our dairy products we get from Tnuva, with no option to choose less expensive products. And indeed, the Minister of Agriculture, Israel Katz, announced his intention to dismantle the Israel Dairy Board and the monopoly Tnuva and the Kibutzim have over the dairy market,, in order to bring about a decrease in prices. Tnuva was announced a monopoly on the manufacturing of milk and basic cheeses, products under government supervision. The Minister added that Tnuva got rich at the expanse pf the small dairy farmers and that it had no intention to be more efficient. But all this did not come as a surprise to Pikanti. It had time and again claimed all that for no avail and now all the claims are proved to the whole world to see.
268. Furthermore, the restraint trade controller, Dror Shtrum, opened an investigation of the relations between the big food manufacturers and the local mini-markets and inexpensive neighborhood stores, suspecting an exploitation of the food manufactures in this market. Owners of large mini-markets and chains of mini-markets told the representative of the restraint trade authority, that dominant food manufactures use their monopolistic power to get rid of competitors and blocking them while creating obstructions to the entrance of small manufactures.
269. At the same time the food manufactures achieve considerable shelf space, more than their relative size in the market and beyond the retailers' demands and in certain cases also exclusivity in some stores. So, it seems that Tnuva has not stopped the cartel it operated against Pikanti, on the contrary. Seeing the success, it kept on to act and operate these methods, somewhat more delicately, on other competitors. The methods are more delicate because those competitors have never competed with Tnuva to the extent that Pikanti did, but this makes it no less serious.
270. The investigation of the business relations of the food manufactures with the mini-markets started lately, following the lately finished investigation of the issue of the relations between the food manufactures to the big retail food chains. When this investigation was over, Shtrum, publicized a number of decisions.
271. Among other things, Shtrum ruled, that the big food manufactures exploited their monopolistic power being in charge of organizing the categories, especially in using stewards on their behalf whose responsibility is to organize the products in the food chains. By using these and other invalid methods, big companies received large market chunks at the expense of the competitors, with the big manufactures pushing the competitors out, and in this way they obtain more market chunks. Exactly as Tnuva had done to Pikanti and as it is doing today.
272. Furthermore, in the investigations of mini-markets claims were heard that what the suppliers do in mini-markets is even more severe than what they do in large chains. Among others, the mini-markets owners claim that the big food manufactures make a big effort to push small suppliers out. And this is nothing new, Tnuva continues in terrorizing its competitors and this is the way it chooses to achieve its goals. not in honesty, but in falsehood, and threatening tactics taken from terror movies.
273. The discontinuation of supply caused the claimants and the Pikanti concern as a whole, heavy financial damage and it caused the collapse of the Pikanti concern. The acts of every company to itself, and all companies together with the others damaged the cash flow, emptied the counters of Pikanti products, and signaled to the rest of the suppliers to join the destruction job. The acts of the defendants together and apart caused panic among the suppliers, and they also stopped, in a short time, to supply goods fearing that the actions of the other defendants would disrupt the cash flow.
274. Another part of that additional public severed the credit conditions as a condition to the continuation of supplying the goods. The change in credit conditions, added a layer in the destruction of the Pikanti cash system. When the supermarkets counters are left empty, the customers deserted the stores and the cash flow was even further harmed. On one hand the expenses increased (for paying to the defendants), and on the other hand, income decreased profoundly. The result: the bank stopped the credit which was built in virtue of the cash flow. The inability of the Pikanti companies to pay off their debts to the defendants, the flow was harmed, and according to the domino effect, the defendants to exist, in fact. These acts caused, among other thinks, the selling of part of the business for a pittance. So were stores, including expensive equipment, and the investments went down the drain.
275. These acts were done in spite the fact that Pikanti and the rest of the Pikanti concern warned the defendants, but they did not give any notice as is required by law, and proceeded to request the liquidation in contrast to the companies order.
276. If all this is not enough to destroy Pikanti, the defendants took legal actions intended to liquidate Pikanti. But it was proved they conducted futile proceedings in court, including submitting false affidavits, forgery and evidence hiding. These acts received severe criticism from the court.
277. Tnuva, Nestle-Osem and other defendants encouraged various factors to open futile proceedings against Pikanti and/or its owners. Thus, Nestle-Osem, for example, submitted a claim for the sum of 1,000,000 against the claimants' manager, and later on erased it.
278. The causes of action are a breach of trade agreements and obligations, illegal acts on the contract and on the torturous level, exploitation of a monopoly, managing futile proceedings and more.
279. Tnuva, who by activating the cartel caused Pikanti severe damage, acted in every possible way, legal and illegal, causing all companies who supplied goods to Pikanti to breach their contracts with her. By acting in a cartel, the suppliers caused Pikanti severe damage. Because of their immense wish to destroy Pikanti, they breached the contract with her. Any excuse that Pikanti was in a bad economic shape at that time, and that this was the reason to breach the contracts, is a mere lie. At that time Pikanti enjoyed a stable economic state and there was no reason to breach the contract, except for a malicious reason. Moreover, there is a court case in this matter. In CF. 080724/97. Submitted to the magistrate court in Tel Aviv, the judge Judith Shevah rules that:
"…this is not the ordinary classic case when the manager keeps purchasing for his corporation, and what he gives in return will not be cashed for financial difficulties of the corporation. On the contrary, here the seller stops supplying merchandise suddenly and unilaterally yet the corporation goes on to pay off the future checks for two months after the supply was stopped".
280. And judge Shevah goes on to say:
"It was not proved that defendants 7-8 ( Pikanti's owner and its accountant - said by the undersigned) knew what was coming and what to expect. The contrary is true, the evidence brought before me point to a stable economic state before the crisis, to regular large scale payments during the transition period, and to an effort to solve the crisis by pouring in personal money".
281. These rules by Vice President Shevah did not undergo any change also in the appeal instance although the judges in the appeal instance reached a different conclusion (the file is currently at the Supreme Court for appeal).
282. So, any claim the defendants will raise and/or Tnuva concerning this case is a lie and the truth was already revealed and it is an act of court
283. Tnuva was part of the food cartel that was conducted by her and by Nestle-Osem, (Tnuva owns also Nestle-Noga Ice Cream and Haifa Poultry Partnership) as suppliers to the Pikanti concern. Over time it became clear that Tnuva is interested in Nestle buying her in part, so doing she will also be contaminated in a trade involvement with the concern who engaged Jewish coercion workers during the holocaust.
284. Tnuva together with the rest of the defendants stopped her supplies in an ordered and pre-organized way, even though Pikanti honored all her payments. Defendant 3 is a manufacturer and seller of cutlery and defendant 4 a manufacture of dairy products. The business activities of defendants 3 and 4 are integrated, and one does not exist without the other (hereinafter: Tnuva). Their actions against Pikanti are one.
285. Tnuva, like her friends, tried to "raise the sward" over Pikanti. It failed as did the trial of its friends.
286. Tnuva, in her affidavit in the liquidation file "copied" various paragraphs from a claim it filled against Pikanti and its manager in CF 1249/97. In this file Tnuva claimed that:
"The claimant (Tnuva) supplied the defendant (H.A. Foods Ltd. – a marketing company of the Pikanti concern) with various products…for the sum of 1,750.000 NS".
287. Although it admitted that the supply of goods was to the marketing company, Tnuva tried to relate the debt to claimant 1, falsely, and tried to liquidate it even though the process of claim of file 1249/97 was pending.
288. Already in the deliberation on 3.25.98, at the District Court, on the liquidation file, Tnuva was censured as follows:
"Her Honorable Judge: You may not join. There is no such creature up to the point…you need to deposit a guarantee.
Attorney Sheffler: We did not deposit…
The honorable Judge: You have not deposited, then you do not apply right now, so what is it you wish to announce? Day now to the microphone what you want so we know".
289. With the aim of slandering Pikanti and bringing about the collapse of the whole Pikanti concern, Tnuva lied and claimed, in its affidavit in file 1249/97, an affidavit submitted by Uri Philip, the vice financial manger at defendant 3, and in its request to appoint a receiver to the Pikanti business (!) because: he knows of debts in the millions to other suppliers and of checks that were dishonored, that Pikanti is in serious cash flow problems and that it had started to "get rid" of its assets…".
290. This affidavit testifies to the malice in Tnuva's acts. Just like that, throwing accusations into thin air, not even mentioning the names of the above suppliers, not bringing forth any evidence for its claims, and in this false way D doing so Tnuva tries to fulfill the saying: "Hast thou killed?." It tries to stop the supply of goods to Pikanti in the cartel frame work on the one hand, and after destroying the businesslike activity, it wants to inherit and manage the Pikanti assets.
291. Tnuva's legal acts, together with a false affidavit, were meant to mislead the court and cause it to fail in a legislative process, to believe and think that Tnuva did supply goods to Pikanti, that the claimant had not paid and therefore the liquidation sward should be used (in one procedure), and to receive its assets and manage them herself (in a second procedure).
Tnuva, as a Cartel, Harmed Honest Employees who Uncovered Corruptions.
292. Business crimes are not the only area where Tnuva has a bad reputation. To get an idea of Tnuva's heads distorted value system, full of egotism and contempt, one should watch, for example how those people – who descended from the Olympus built on earth and at the expense of the Israeli public money – to their simple employees.
293. The Maya Koch case will demonstrates the moral filth in which Tnuva managers' feet tread, those people who are not deterred by any moral inhibitions, whose orientation is that of those who form and organize, the people of little notes, and shady business plans, the concocts of concocts, who reflect in their essence the pseudo-socialism with all its evil.
294. Maya Koch worked for Tnuva, in the Tel Aviv district. During 1984 she went to the police and the press to complain of unlawful deeds that were preformed by seniors at Tnuva. Maya Koch's employers at Tnuva were angry and therefore they fired her, in response. Kock demanded at the Histadrut to be returned to work (Workers' Organization), and when the deliberation at the criticism committee approached, and after Tnuva's managers consulted their lawyer, they decided that in the framework of the committee's deliberations they will try to erode Maya Koch's reliability by presenting her mental problems as the background to her being fired . To collect data the lawyer hired the services of a private investigation firm, with Tnuva heads knowledge.
296. The private investigator was handed a medical concession form, which Maya Koch probably signed when she first started to work in Tnuva. Equipped with the concession form, the private investigator turned to the medical insurance where Maya Koch's file was kept.
297. On virtue of the concession form he was handed the medical file, including much data about past treatments and her mental problems. The data was given to the lawyer and to Tnuva, and a copy stayed with the private investigator.
298. The file in its entirety was presented to a doctor for him to give his expert opinion. The doctor (Dr. Avnon), wrote his opinion based on the medical file alone and without ever meeting Maya Koch. For that he was later charged in a disciplinary trial and was rebuked.
Tnuva's Systematic Denials: There was no Cartel; Silicon was not Inserted into Milk
299. This is how Tnuva treats an employee who wanted to prevent corruption and the spending of money. And how did they treat at Tnuva the milk consumers? In fact, much worse.
300. From 1.25.94 to 9.6.95 Tnuva manufactured a total amount of some 13 million liter of UHT milk with 1% fat, in cartons of 1 liter and 1/2 liter. Over this period Tnuva added a substance known as silicon.
301. A professional committee on behalf of the World Health Organization and the Joint Expert Committee on Food Additives (JECFA) of the U.N. determined the acceptable daily intake for this substance (ADI), (as well as other substances).
302. The ADI serves as guidance to the food industry concerning the use of the substance. The American standard forbids adding silicon to drinking milk.
303. In Israel a large amount of milk is consumed (Not necessarily UHT milk) mainly by children. In case of consuming milk containing silicon, consumption may pass the ADI level. Official standard 284 refers to cow drinking milk. The standard was officially announced on 8.14.87. An official standard is, as is known, a coercive standard. Section 105 states what the additives that can be added to milk and to what kind of milk they may be added.
304. According to this standard, silicon is not one of the substances allowed to be added to milk. No additive is to be added to milk except milk powder and certain vitamins to increase the nutritional (distinct from technological activity). The standard is directed to ensure that drinking cow milk will consist of the original material only (plus the allowed nutritional additives) with no additives, whether they cause damage or whether they do not.
305. At the end of August 1995, it was publicized in the media that silicon was added to milk. Following the publications, Tnuva publicized on 8.31.95 – in a number of newspapers in Israel, false notices in which it was claimed that the UHT milk of Tnuva is clear of silicon additive and that independent laboratory tests prove it. Similar notices were also publicized on 9.1.95.
306. After checking the information of the adding of silicon, the Ministry of Health ordered to destroy the silicon contaminated milk, as it does not meet the standard and is not fit for human consumption. It was considered to give it to animals but was decided not to, in light of the difficulty to monitor this limitation and in light of the basic position that what is not fit for humans is not fit also for animals.
307. On 12.11.95, an indictment was filled against Tnuva on basis of this story (cr.f. 3031/95 at the magistrate court in Rehovot). On 3.4.96 Tnuva was convicted by her own admittance in the following criminal offences:
Not complying an official standard – violation of section 19 (a); 17 (a) (1) and 17 (b) to the standard law 1953.
Prohibition of misleading in publication; violation of section 2 (a), with section 7 (a) (1), 23 and 25 of the consumer protection law, 1981. The conviction referred to the publication of notices in the newspapers by Tnuva, in which she claimed that the milk contained no silicon.
308. The above facts reveal that Tnuva marketed cow milk that does not meet an official standard and thus forbidden in marketing and manufacturing, and that it failed to indicate the silicon among the milk ingredients.
309. Tnuva, then, misled the public both in regard to the ingredients of the milk it manufactured and sold, and in regard to it meeting the official standard. Not indicating the silicon among the milk ingredients on the package is in itself an act of misleading. In addition, the misleading is also expressed in marketing the milk as if meeting an official standard it in fact does not meet.
310. In face of misleading hundreds of thousands of Israeli citizens, including babies and many children who drank silicon, Tnuva's acts against Pikanti may be dwarfed, yet it should not be taken lightly. Whoever poisons the business atmosphere will end up pouring cold heartedly silicon into the milk knowing full well that hundreds of thousands of children will drink it.
311. And of course, turning eyes towards heaven is part of the issue. "Tnuva has a cartel against Pikanti? No way. " There is silicon in the milk? Us? No way!"."Presenting an honest employee as a mental case? Not us". Here again, in the cartel case, the intelligent reader will expect total denial and anger on part of the masters of land, and then, of course, justice will appear, as Tnuva's heads, in the words of Rabbi Shlomo Iben Gavirol: "Showing innocence - underneath cunning", and for that their moral end is expected to be a moral and real annihilation.
312. Tnuva cheating methods in this case were expressed already in September 95' when an investigation was published in Ma'ariv (big Israeli newspaper )blaming Tnuva that it adds silicon to the milk it manufactures to prevent it from being whipped.
313. Tnuva's preliminary reaction was that it was incorrect, and some of its managers publicized denial notices in the newspapers as mentioned above. But because of the public storm, Tnuva was coerced into appointing an "internal investigation committee" which admitted that Tnuva did indeed add silicon to 13 million liters of UHT milk, 1% of fat. For almost two years, Tnuva added silicon to the milk, consumed by hundreds of thousands of consumers, without telling the consumer anything about the substances he swallows.
314. Following this admittance, Tnuva implemented a totally insufficient act of taking the 5% fat UHT milk cartons off the counters and destroying them, but they could do nothing against the millions of liters already consumed.
315. The ministry of Health announced it could not denounce a long term danger to those who consumed large amounts of that milk.
316. A class action against Tnuva was filed estimated in 100 million NS' for the return of the milk price paid by the consumers. In addition, the petitioners demanded a compensation for the discomfort and distress caused to the consumers in buying milk.
317. The District Court confirmed most of the action as a class one, a ruling which was twice appealed to the Supreme Court. Once by the petitioners who asked that the action as a whole be recognized as a class action, and the second by Tnuva, who asked that the action be not recognized as a class action at all. The government representative, who was asked to submit his stance of this issue, announced that the attorney general thinks the action should be recognized as a class action which deals mainly with the expenses for buying a product that differs from how it is described, the blow to consumer's autonomy which is expressed in drinking milk that does not meet the standard, and with damages as the result of distress.
318. The attorney general informed the Supreme Curt that Tnuva breached the prohibition to mislead the consumer in the issue of adding silicon to the milk, and thus there is a legal basis to confirm the cause of action against Tnuva as a class action and the damage that the consumers suffered.
319. The Supreme Court confirmed the submitting of the action as a class action, and the Judge Miriam Naor expressed the disgust and damage to the consumer in these words:
"The intangible harms claimed by the claimant, is characterized by a feeling of disgust as this is about silicon, with all the associative burden of this term. In my opinion, such damage is, allegedly, restitution…Misleading of the content of the milk is allegedly damage to the autonomy of the individual. We are dealing with a food product. The consumers have the right to determine what they insert into their bodies and what they should leave out".
320. In addition, Tnuva was convicted, according to its admittance, for criminal acts of not meeting a formal standard and prohibition of advertising misleading, and Tnuva was given the maximum fine for those offences.
321. This is just one example of hundreds of breaching and cheating the consumers by Tnuva; Other cases, if sometimes less outstanding, occurred often over the past years. For example, when Tnuva publicized that it launched a new product called "butter spread".
322. The Israeli butter standard, like in the rest of the world, determines that butter is a product manufactured from sour or sweet cream and no other fat should be added to it. Tnuva's "butter spread" was made of 80% butter and 20% sunflower oil, according to Zeev Paikovsky, Tnuva's chief scientist.
323. Shoshanna Hen, "Yediot Aharonot" (Israel's most widespread newspaper) reporter writes in her column "We Are Being Framed":
"Tnuva's new butter contains sunflower oil and is called butter spread. Does the name mean they want to bypass the standard? Importers in the branch say "yes". This is misleading. A product containing vegetable oil turns into margarine and is not defined as butter. Vegetable oil is less expensive than cream and the end result can be much less expensive, they claim".
324. Tnuva is a champion in trying to bypass rules and regulations, extracting the consumer, exploiting its entire available means to give the minimum to the consumer while collecting the maximum possible, while using misleading advertising. It collected for 140 gr. of a less than butter product 6.95 NS while at the same time 100 gr. butter cost 2.46 NS. Only after the Ministry of Health intervened, did Tnuva replace the misleading packaging.
325. Tnuva is loathe of nothing when it cheats the consumer. Tnuva' like Nestle-Osem, downsizes its products yet leaves the prices as are, or reduces them just a little, not in proportion with the new size of the product.
326. Tnuva downsized "Chocko Carlo" from 250 ml. to 225 ml., yet reduced the price just a little. Shoshanna Hen, in her article "We are Being Framed" writes:
"In most cases the smaller changes are difficult for the consumer to notice. As this is about popular products that are sold in great numbers, the manufacturers save considerably. Galit Avishai, CEO of the Consumer Council, says this is a consumers' misleading…Avishai: Manufacturers producing a downsized product must make it known to the consumer, as they do, and in large letters, when they enlarge the package".
327. Tnuva, who contaminates the business and consumer life in Israel, is ready to actually poison the citizens of Israel. So, for example, in the fish pools in Kibbutz Neve Eithan in the Beit She'an Valley, they disinfected the fish pools with a cancerous substance. Tnuva is the one marketing the fish all over Israel. The substance they used as disinfectant is substances prohibited for use by the European Union and the health authorities in the U.S.A as well as in Israel. Yet the Kibbutz people continued to use the cancerous substance, pouring tremendous quantities of it into the fish pools marketed by Tnuva.
328. When one of the workers was asked why they used this prohibited substance known to be cancerous, he answered that the substance was in stock, and as it is expensive, they wanted to use it. The worker even wondered why the question was asked and said "what, should we pour it away?".
329. Tnuva was always trying to play it cool. She always said she was being harassed, while at the same time more and more breaches by Tnuva were discovered, always to her benefit and at the expense of the consumer.
330. An ugly story enveloped when it was discovered that Nir Gilead, the Accountant General, and a very powerful person in the treasury until not very long ago, is today a paid consultant to Tnuva in face of the budgeting department in the Ministry of Finance, wishing to make structural changes in the dairy business.
331. Stella Corin Liber, a senior reporter at The Globs, in her article "The Go-Getter of the Ministry of Finance" writes:
How nice. The accountant General and the strongest man in the Ministry of Finance until a few months ago, works now for a private enterprise, Tnuva. What's wrong? He needs a job, they need a go-getter lobbyist. So they sign a match. So what if the match is dubious, which we will discuss later. The bigger problem is with the rabbi who gave the kosher certificate: Uri Yogev, the budgets controller. He replaced Gilead in the powerful position, who now acts to implement a structural change of the dairy market".
332. Tnuva is a huge corporation with a monopoly which controls 90% of the milk buying market and 70% of dairy products manufacturing. As such, Tnuva takes advantage of its power to get anything she wants on a regular basis. Not long ago, the Ministry of Finance publicized a survey concerning the evaluated damage to the market from the lack of competition, and Tnuva starred in the survey. Soon enough, large, ostentatious black –and- red ads appeared in all big newspapers: "Enough with the lies!!! The ministry of Finance tramples the truth of milk products and prices. The Ministry feeds us a line!! This ad is signed by the Union of Cattle Breeders in Israel, and who if not Tnuva who buys over 90% of the milk sold by the cattle breeders, is behind this instigating ad?
333. Stella Corin Lieber adds in her above mentioned article:
"Tnuva fights for its cream and cherry, the pleasures of being a monopoly…It does so facing Uri Yogev, who in the atmosphere of the large reform talks about a structural change in the milk market. Then what does Arik Riechnam, Tnuva's great manger, do? He takes Nir Gilead, and sends him to be his go-getter at the Ministry of Finance. Riechman takes the bull by the horns. He sends who was Uri Yogev's and his people neighbor, close to them, their guru, what clerk would refuse Gilead?".
334. In a November 2003 report by the Department of Spokesmanship at the Ministry of Finance, concerning "An evaluation of the Damage to the Market from the Lack of Competition", it is said that a survey by Dr. Eldad Shidlovsky of the Economy and Market Research at the Ministry of Finance presents the damage to the consumer and to the market as a result of the lack of competition in a number of branches in the market, including the milk business.
335. The main findings of these surveys and research indicate that the damage to the market as a result of a non -competitive structure is expressed, among other things, in low output, in ineffective use of infrastructure, in a large scope of latent redundancy, in salary gaps, in the use of monopolistic power for personal benefits including large salaries, in surplus manpower, in low returns and more.
336. The result is damage to the consumers, for the price gaps between products made in Israel and similar products made abroad and/or for the high taxes in order to finance the high cost of the non-competitive structure, and the low profiting of some of the companies.
337. Experience shows that control over prices is not a good enough replacement for real competition. The control authorities usually find it difficult to determine prices that fit a competitive market, the prices in actual fact may be too high. Only competition can really act for the benefit of the consumers and the market. Tnuva, of course, answers all these data criteria and causes them by activating her monopoly over the other competitors in the market to destroy them.
338. Indeed, the above mentioned report refers specifically to damages caused by the lack of competition in the milk market. This market is very centralized. Compared to other countries, the centralization in Israel is one of the highest in the world, with Tnuva being, of course, the reason. The milk producers are unionized as a voluntary cartel by virtue of the Israel Dairy Board.
339. Tnuva has exclusive monopsony of raw milk purchasing and controls 90% of the milk absorption market. The centralization in the industrial processing of milk and the situation is "a competition among a few" with Tnuva as a leading firm.
340. Tnuva has a monopoly on dairy products (70% of the market) with Strauss and Tara not being a threat to its dominance (only about 12% each). Tnuva uses its monopolistic power to pass on profits to the cattle breeders and blocking potential competitors from entering the industrial section. As a result of this structure, the amount of milk produced is lower than the amount that would be produced under competition, and the milk market is characterized by a high level of prices.
341. The price of milk reflects the high prices Tnuva pays the cattle breeders and her own high profits. The price of milk to the producers is 3-5 higher than the price would be under competition, and the price to the consumer is considerably higher than what is customary in the world.
342. Comparing the international prices of milk cost in 1996, we learn that the gap between the costs in Israel to the average cost in Europe is about 35%, and between the cost in Israel and the U.S.A. is about 60%.
343. An examination of milk costs in 2002 shows that the gap versus the U.S.A. had not narrowed down and in 2002 was also about 60%. The no -competition structure causes distortion in source allocation, inefficiency in the production functions, to distortion in sharing revenue between a small number of producers and the consumers as a whole (high price level), and to a serious harm to the growth of the branch.
344. It is evaluated that the abolition of the quanta system, the abolition of the legal permission to a cartelistic unionizing, and most importantly, opening the market to free import of industrial production factors and additional products, will lead to, in a careful estimation, to a saving of over 110 million $ annually. In other words, the damage to the Israeli market for not having competition in the milk market and from the continuation of Tnuva's control of the branch, is estimated at 110 million $ annually.
345. In addition to the cartel in which Tnuva was a main leader, it also has other cartel arrangements. There are agreements between Tnuva and four industrial slaughter houses concerning the marketing and distribution. Moreover, Tnuva has a weekly meeting of its people with the slaughter house people where discussions take place about marketing, distribution and purchasing of the slaughter houses produce.
346. Tnuva, Of Haemeq, Of Hagalil, Miluof, and Of Tov, all have a cartel arrangement in the framework of a united marketing arrangement. In the arrangement there are agreements between the slaughterhouses and Tnuva, that Tnuva will pay identical prices to the slaughterhouses and will buy from them a pre- agreed on quantity. As Marketing arrangements were defined by court as restraining, Tnuva should be prevented from carrying out the arrangement and the above mentioned weekly forum. Tnuva is again in the headlights, trying to deceive the authorities, the competitors and the consumers, as long as her profits keep growing.
347. Yet Tnuva is not in the papers, television and internet every other day only for the fact that it is a monopoly who exploits its status to keep a tight rein on the rest of the companies in the market, nor just because the monopoly it activates harms the consumers severely.
348. Tnuva and its CEO do not care for minimal ethics. Tnuva's accounting office "control treaty", is managed by Yaron Reichman, while his father is Tnuva's chief executive officer.
349. This issue is serious as there are explicit ordinances by the Accountant Board that prohibit companies from hiring relatives as accountants. According to the ordinances
"The service is prohibited to a person from an accountant office which auditors a corporation, who is a relative of a functionary who is a client". This ordinance accurately describes the relationship between Arik and Yaron Riechman. The employment of Yaron Riechman is a conflict of interests, as it is most important that accounts be independent. Again, Tnuva proves that it is exempt of laws and ordinances, and that it is above the law, from where it conducts its business.
350. Tnuva's hooligan behavior knows no limit. A few months ago the District Court in Tel Aviv ruled that Tnuva is responsible to all Hadari-Aviv partnership obligations, as if she were a general partner. As it turns out, Tnuva managed the partnership failingly and against the law when she did not indicate in the partnership documents that it is a restrained partnership.
351. The head of the Air Quality Branch of the Ministry of Environment Quality, Shuli Nezer, says that an extended exposure to contaminate may cause damage to the respiratory systems and to an increase in heart disease. Moreover, every year, over 1000 people die of respiratory illnesses central Israel. It seems that those dangers to the citizens of Israel seem important to Tnuva, as the Jerusalem Tnuva dairy contaminates the air at 545% more that permitted.
352. Because of the monopoly Tnuuva has in the milk market, the Israeli consumer pays 1.3 to 1.5 more for a glass of milk than the European consumer. The Knesset Economy Committee acts to correct the law, which will supervise Tnuva more tightly. Tnuva has already announced that it would object to it with all available means. Why should Tnuva agree to a procedure that will force her to be honest with the consumer? Why should the Israeli consumer pay for milk and its products as any consumer world wide, and deny Tnuva from earning much more, at the expense of the Israeli consumer?
353. It turns out that Tnuva did not learn a lesson from the silicon case. Tnuva's activities have not become cleaner or more ethical. The fraud unit of the police central region investigates if Tnuva marketed faulty milk again. This time the milk was marketed by Tnuvaa containing antibiotics which, according to regulations, should be destroyed.
354. The police questioned tens of milk suppliers from all over the country who are supposed to provide the police with many relevant documents, for continuing the investigation. Most probably seniors at Tnuva will be interrogated as well. The investigation followed a complaint of a former Tnuva employee, who is a food technician by profession. The employee told the investigators that after he reported to his employers that the milk contains antibiotics, he was released to a one year paid vacation.
355. The Ministry of Health's regulations in a price supervision of products and services (milk quality): decree state that:
"A person will not produce pasteurized milk and will not market and not sell pasteurized milk to the consumer if…the results of the phosphoric test results indicate a deficient pasteurization or the lack of pasteurization…or if it contains foreign elements or color substances or antibiotics or chemotherapy or preserving substances, or disinfectants or toxics of any kind".
356. Tnuva checks each milk container it gets. One of the examinations is to discover antibiotics in the milk. If an antibiotic is discovered, the contents of the container should go down the drain. In such a case, Tnuva does not pay the owners for the milk, and even fines it. Yet in reality, what Tnuva actually did, that although it discovered that the milk contained antibiotics, it did not destroy it. It did not pay the owners and in fact fined them, but it did use the milk. It used to pour the container's contents into huge containers in the dairy, mix it with the rest of the milk so that in an additional test the contaminated milk would not be discovered.
357. The source of antibiotics is in sick cows that are treated with antibiotics. As a rule milk of cows treated by medicines is not to be marketed. The prohibition to use antibiotic containing milk is because a portion of the population is allergic to antibiotics. But it seems that this danger does not deter Tnuva of its greed to earn at all costs. To gain a free milk container and on top of it to fine the owner, while at the same time using the contaminated milk with the fate of the consumer the last thing that she care about.
358. This is not the first case of adding contaminated milk. In the past it was discovered that Tnuva had done so and she was fined. In February 2000 a class action was filed against Tnuva for the sum of 186 million NS claiming that Tnuva mislead the consumers and sold it antibiotic milk under the cover of adequate milk.
359. The claimants, Dr. Aviram Elroi and Michael Oppenhiemer, claim that Tnuva acts against law fiats relevant to drinking milk and dairy producing, when she receives and markets antibiotic milk, spoiled, with a possible serious damage to public health and misleading the public. It is also said in the cause, that Tnuva markets 900 million liters of milk annually, which is 90% of the milk marketed in the country.
360. The quantity of depleted milk that contains antibiotic milk is estimated by the claimants in that cause, to be 1% of the drinking milk, in other words, 9.9 million liters annually. Tnuva's profit from the consumers over the past four years was 186,120,000 NS. This explains why this huge sum is more important to Tnuva at the expense of public health, and more important than legal orders that explicitly prohibit using contaminated milk in this way. Tnuva lays the blame on the cattle breeders. She claims that as she does not produce the milk, she is not responsible for its content.
361. Tnuva naturally is not satisfied with that and points a blaming finger at Dr. Elroi and claims he is trying to revenge his being fired. There is not one word of apology or self criticism that Tnuva turns inwardly. Despite her obvious blame and ignoring of the law and public health, still Tnuva feels no need to apologize for her crimes.
362. Tnuva can easily be cruel when she so wishes. The national jurisdiction authority of the Histadrut ordered Tnuva to pay about a million NS and in today's denominations 2.8 NS, to the inheritance of the late Yigal Liebovitz who was the chief engineer of Tnuva. Tnuva fired him when she said he started to neglect his work. Yet reality shows that he had to take care of his wife who had cancer, and of his elderly parents. The Histadrut jurisdiction authority ruled that Tnuva fired him against the Histadrut labor constitution, breached explicit injunctions that obliged her to return him to work and, of course, earned an unacceptable profit. But this is nothing new with Tnuva. The jurisdiction also indicated that Tnuva's behavior was shameful "and it was not satisfied with order breaching but dragged Liebovitz from one court to another". So now Tnuva needs to pay this sum to his inheritance, because Yigal Liebovitz died without seeing one penny from Tnuva, who saw to it to drag him to any possible instance, against any law, order, or fiat.
The Kibbutzim Breach Their Obligation to Turn Their Part in Tnuva to the State.
363. The claimants would like to point out that one of the major frauds in the history of Israel is done quietly by Tnuva and its owners, who play God, and in the mean time deceive the state of Israel and its citizens as follows:
364. The Kibbutzim had huge debts and promised, for a renunciation of their debts, to turn their part in Tnuva to the state.
365. Of course, so far, the Kibbutzim have not turned one cow to the State of Israel, while in the meantime their debts are written off, with different arrangements, billions of NS financed by public money.
366. The Suary committee, appointed by the Ministry of Finance, ruled in 94' that the Kibbutzim return in to the banks and the State 50% of their part in Tnuva, in a debt write-off arrangement, in which the State (in fact the tax payer) finances the Kibbutzim debts.
The Kibbutzim Used Heavy Political Pressure, and the Minster of Finance Gave in.
367. The Kibbutzim, as is their habit, used heavy political pressure, and the then Finance Minister, Abraham Shohat, gave in. It was decided that first, the Kibbutzim will turn in to the state only 25% of the share in Tnuva (instead of 50%), and second, this will take place only after Tnuva (today a cooperative society) turns into a Ltd. company.
368. Years have passed, Tnuva, of course, has not turned into a limited company, and the citizens of Israel finance out of their pockets the billions of Kibbutzim losses while Tnuva gains profits.
369. The Finance Minister, Silvan Shalom, served as a member of the Knesset Finance Committee when the state cashier was robbed by the Tnuva clan. This is what the current Finance Minister said then:
"This arrangement is unilateral. The State gives and they take. It was the same with their real estate, and with the Ha'mashbir shares and Tnuva shares. Their commitment is written on thin ice".
370. And it was already established in the issue of debt arrangement for the agricultural sector, in civilian petition 6821/93, The United Mizrahi Bank Ltd. V. Migdal, cooperative farm, 49 221 4, words that are relevant to our issue:
"A legal arrangement of debt write-off on a large scale is an act of taking assets from the creditor and thus carries the characterization of harming a title. For that matter it is not enough, for even if the described arrangement had not come into the world, the creditor had other legal options to implement collecting, in the framework of which a write-off is possible – like the process of bankruptcy".
371. While petty robbers who take 100 NS that do not belong to them are thrown behind bars, robbing billions from the state may turn the institutional gang leader into Tnuva's CEO. Happy be though who holds and smashes her grapes to the cliff. (Mid-night prayer).
372. In 2003 Israel, a person does not need a gun to be a criminal. Suffice if he has some ties with the Kibbutzim sector, rolls his eyes to heaven, adapts some lisp typical to a Kibbutz born person, and will by that gain a so to speak moral immunity, as if he were Israel adorned in glory (Dawn Blessings).
373. That is, the simple robbers will rob as usual, we, the salt of the earth and pre-eminent, who walk on wind, will rob legally. We are in so called proper arrangements that are aimed primarily to frame us and frame whoever is not on our side. We will paddle in the pool and wash our hands, accumulate debts and then we will find someone who would write-off our debts. A little debt arrangement will take care of it all. If not Gdalya, then Abrasha, will enlist us in our self endowed book of rights.
374. The Pikanti concern purchased from Of Haifa products for the sum of 15,000,000 NS from 1/1997 to 6/1997.
The conglomerate interests of the cartel heads
375. Over the past two years, two trends characterize the large concerns in Israel: moving from government or public ownership to private ownership and enlarging the concern through merges.
376. The large concerns are controlled by a few private investors. In that, they differ from most large bodies in the American or European market, were the ownership is decentralized.
377. The market undergoes a substantial privatization, and the so called public ownership, like the Workers Society, dwindled down. The resources of the private sector in the market are much larger than in the past, and the market is much less dependant on government involvement. At the same time, new small, medium and big concerns developed.
378. However, the Israeli market remained very centralized. A few concerns hold relatively large portions of the industrialized produce. An even smaller number of banks hold most of the banking market.
379. The Israeli market is also geographically isolated. Different from other markets of similar size, which are integrated in much larger land systems – the Israeli market has the characterizations of an island economy: export and import via air and sea, and minimal exposure to competition from the neighbors.
380. Even the former restraining trade controller, Dr. David Tadmor, had already expressed his firm opinion of this matter, that there are natural blocks to competition in local services, and much less natural block in local industrial competition. To these are added artificial blocks, such as protective levies, discriminating standards, and unnecessary licensing demands that severely harm the local competition level.
381. On one hand, it is clear that large economic bodies are an essential layer in the state's economic life texture. Yet this said, is it feasible that a concern is too large under Israeli circumstances? The Btodt's committee said:
"The creation of conglomerate companies which hold great power in a few hands means that more workers, share holders, consumers, and the market as a whole become subordinated to the tastes of a few holders of controlling interests. Similarly, a large number of employees and share holders, just as purchasing power of goods and services, instills the huge companies with the ability to operate a significant political power that can be turned to the owners good account, for example to force the government in helping to preserve a monopoly…"
382. When, then, does size turn into an impediment under Israeli circumstances, in face of its small scale, its isolation and the small number of players? This is a complex question. Clearly, the answer is not anchored in the realm of competition only, but also on the governing-social level.
383. Under the food cartel circumstances, no game rules were anchored not in a governing-social realm, nor in competing realm, but in the poor moral and cultural realm of the parties at interest, who seemed to be inflicted by a moral poisoning, caused by too much watching of under-rated Mafia movies.
384. On top of Nestle-Osem's fight against the claimant with the disruption of the peanut snack market in the background, Nestle-Osem was also motivated by the fact that it purchased the "Salate Zabar" salad company, whose products compete with those of Pikanti.
385. Tnuva as well shows an interest today in the salad company.
386. In the meantime, during the cartel period, Tnuva and Nestle-Osem were interested in entering the cutlery business, and their interest in destroying senior organizations was stronger than ever (the Pikanti group produced, at that time, 20-25% of cutlery usage in Israel).
387. Indeed, Nestle-Osem's and Tnuva's aspirations in the meat and cutlery branches were realized, they managed to destroy Pikanti; and now Nestle-Osem holds shares of "Hod Lavan", and Tnuva bought "Tiv Tirat Zvi"; they both have baking firms as well.
388. In addition Nestle-Osem has 51% partnership in the big ice cream company Nestle-Noga Ice Cream Ltd., whose 49% of the shares are held by Israel's biggest food giant Tnuva, who also has 50% ownership of Of Haifa. This company, at the time of the cartel slaughtered poultry, and it markets millions of chicken annually.
389. This company "competed" against Tnuva and marketed its products for lower prices than the identical products the corporation to whom it belongs marketed.
390. This economic anomaly was not comfortable to Tnuva, as all in the meat market were well aware of, so Tnuva had an interest to cut off "Of Haifa's" life.
391. It may sound odd to an unskilled ear that is not used to hear the iniquities of the food criminals in general, and Tnuva in particular, but the collapse of the crusader companies – the companies that marketed Pikanti's products, who purchased products in the millions from Of Haifa, brought about a thread to the existence of Of Haifa itself, in a process that resulted in untangling the Gordian knot and freeing Tnuva from the burden on Of Haifa.
392. Tnuva, Nestle-Osem and the rest of the cartel members had an interest in destroying Pikanti from an additional aspect: Over its 21 years, the Pikanti concern publicized thousands of ads in the newspapers, where the low prices of its products, compared to those of the competition, was emphasized. The lower prices were achieved due to efficiency processes, saving in marketing spread, and an integration of the high numbers doctrine (marketing for low prices in large quantities) with an ideology that espoused turning any product within reach of the weaker layers in society.
393. Thus, until Pikanti entered the Pastrami branch, this product was for the top docile only. In the past few years almost every family can afford the product, thanks to Pikanti who started to manufacture and market Pastrami in 70% less the price of its competitors at the time.
394. Pikanti infiltrated, in practice, her vision that the poor have the right to live respectfully and in comfort, "this (the poor man) enjoys, and that (the producer) is not lacking".
395. In face of the national spreading of the Pikanti ads, and in face of the spatial spread of the crusader companies, the damage to the Pikanti competition was recognized in many areas.
396. Pikanti's economic vision was expressed both in the market segments where it operated, and in stabilizing and moderating the food market in Israel on the macro level.
397. Food chains, whose profit margin is about 50%, were the ones leading the robbery against Pikanti's crusader companies, who were satisfied with much smaller profit percentages.
398. The competitors put a pressure on the main suppliers (shared by them and Pikanti) like Tnuva, The Central Company of Light Drinks Production – (Coca Cola)", Leiman Schlussel, and others to threaten Pikanti not to publicize the prices of products, as this publication causes their clients to demand Pikanti prices.
399. This pressure journey did not help, and food giants like Tnuva were forced to lower prices. The individual consumer enjoyed the free competition, but Pikanti's competitors were outraged.
400. 60% of Nestle-Osem's gross profit comes from the manufacturing the following four products: ready-made cakes, Bamba, Bisli and ketchup.
401. Pikanti put up real competition to the first two products, the Royal cake (in ready-made cakes) and the Makarena (a competition to Bamba).
402. When they heard at Nestle-Osem that Pikanti purchased production lines for ketchup and for a snack similar to Bisli, they understood that they have to act to destroy Pikanti, as they believed that in those market segments as well, Pikanti would succeed in selling its products for lower prices, according to its long term and well known vision.
403. In addition to Tnuva's interest in the collapse of Of Haifa, in assistance to her business and strategic partner Nestle-Osem, and in addition to various incidental interests which this claim is too short to contain, Tnuva had a direct interest in the collapse of the crusader companies, as a partner in the giant company Hipper Shuk, who at the relevant time held 50% of the supermarket chain Co-Op Zafon shares, and who competed with the crusader companies – the companies that marketed Pikanti's products.
404. Another direct interest of Tnuva in destroying the crusader companies came from her holdings in the Mazon Min Hkibbutz chain, also competing with the crusader companies – the companies that marketed Pikanti's products.
Tnuva Takes Advantage of Entering - Barriers to the Poultry and Fattened Poultry Branch.
405. When one examines Tnuva's part in the food cartel, one should pay attention to her obvious interests to harm her competition in light of a set of circumstances which includes a series of entering barriers to the poultry and fattened chicken branch:
406. There is an excess production capacity in the relevant branch. Therefore, a potential competitor wishing to enter the branch will have to compete with the capacity of the existing big firms to enlarge production on a short notice and at a relatively low expense, and to cope with low demand in relation to the production capacity.
407. A change in environmental quality ordinance is expected in the future, in respect to the relevant branch and particularly to slaughter and its results. Stricter ordinances will make it more difficult for a potential competitor to enter the branch.
408. To enter the relevant branch high capital-intensiveness is required, both for building a new slaughterhouse and to buy an existing one.
409. Because of Tnuva's vertical involvement, that is, its involvement along all the production chain of poultry and fattened chicken (reproduction, marketing to the slaughterhouses, slaughtering, and marketing to the retailers), a potential competitor will have not only to enter the slaughter stage, but the other stages as well, or at least, compete with Tnuva in those other stages.
410. Tnuva has a mighty financial and conglomerate power – acquired by her strength in other markets that are not necessarily the relevant one – therefore Tnuva is capable of subjugating any potential competitor in a "destructive competition".
411. Due to her power against the chicken and turkey breeders Tnuva can get exclusive and profitable prices from them, an impossible thing for a new competitor entering the market.
412. With those data in the background, the extent to which Tnuva's acts against Pikanti are irreversible it can be understood.
Tnuva's Damages to Pikanti in Light of the Restraint Trade Laws.
413. The damage to Pikanti is recognized not only in the poultry branch, but also in every branch of Tnuva which was under reasonable exchange relations versus Pikanti products.
414. The Israeli directing verdict to the definition of the product market issue is, not in vain, the Tnuva issue debated in the context of company mergers. The restraint trade court had to define the definition of a market product, examining the effect of the requested merger between Tnuva and the Of Negev slaughterhouse, on the competition in the market.
415. While deliberating, the court asked the question if "fattened poultry" and "turkey" are considered one market, the poultry market. And is frozen chicken and fresh chicken one market? Are all poultry per se a market, or maybe they are a section of the meat market, which includes for example also cattle products of various kinds. By applying the reasonable exchange test, the court reached the conclusion that "fattened poultry" and "turkey" are one market – the poultry market, and this is the relevant product market in this case.
416. Another example of the exchange test emerges from the restraint trade controller decision concerning a cartel in the security doors branch. In that matter, the controller determined, in virtue of the reasonable exchange test that the relevant market was the entering security doors. The controller emphasized that the market should be defined from the consumer's view point.
417. "Yediot's (Israel's most prevalent newspaper) portion is half of the daily newspapers in Hebrew", wrote the controller in the Yediot Aharonot matter, "but the market segment looked marginal, perhaps just about over half in the field (when it becomes a monopoly), perhaps just about under half in the field (then, allegedly it is not a monopoly). And in general, the data base then did not make it possible for an authorized implementation, and so it was not authorized. Under the circumstances, I asked the daily newspapers again to hand me, in accord with my authority under section 46 (b) to the restraint trade law, promising to keep the data confidential, a truthful sales report, sliced monthly, and with a distinction between the daily paper and the weekend paper. In addition market segments evaluations were requested and received from people involved in the market".
418. The term "general assets marketing" which appears in the above section 26 (a), explains the controller in his decision, deals with the market of assets or products relevant to the matter. "Literature teaches", he wrote, "that a market will embrace the basic product group which enables a hypothetical monopolistic company to raise the cost of the product feasibly and for the long run, above its current price in the market and in a way that will not harm her profit. The decision what the relevant product or service is, means setting the boundaries – in light of its essence and in light of geography – of the relevant product. The opening point will be that the relevant product includes only the product sold by the same person (the most limited product), and later the exchange request will be examined, and to some extent the supply exchange, between the limited product and other products".
419. "While conducting the exchange request test", explained the controller, "the following parameters, among others, need to be considered: the flexibility of the request substitute goods, product prices, mutual relations between product prices, the physical and objective outline of the products, supply and demand structure, and the perspectives among the participants".
420. The "reasonable exchange" test had been adopted in the U.S.A. earlier on. According to this test, all exchangeable products that are reasonably exchangeable of that product, should be included in the market. Products will be considered exchangeable when one stands in contrast to the demand curve of the second, so that if the price of one increase, the demand for the second product will increase.
421. As the amount of ruling in the matter of the reasonable exchange in Israel is limited, foreign ruling must be examined. The implementation of the "reasonable exchange" test in the American ruling emphasizes the strength of the test, which is also its weakness, meaning it being very flexible.
422. Over a few court ruling generations in the U.S.A. the test has been improved and important layers were added to it. Still, in quite a few verdicts, which serve as milestones in the matter, the courts implemented the test in an inhomogeneous way, when under certain circumstances the implementations leads to a narrow market definition and under other circumstances, which are not always different from the precedents, a wide definition.
423. A notably narrow definition was determined by the appeal court in the verdict of Aluminum Co. of America. The court ruled that the raw aluminum market, the raw material from which aluminum in its final state is produced, is a market by itself, including the aluminum in its final sate.
424. The question of delineation of the product market was the essence of the debate in a verdict in the matter of Du Pont, allegedly not in accord with the Aloa case. The court ruled and implemented a wide market definition. The court accepted Du Pont's claim and chose the wide definition. The court ruled, among other things, that the definition of the product market depends to a large extent on the extent of the product demand curve and the reasonable exchange test flexibility.
The Group of Vulnerable Consumers
425. While identifying the relevant market, one should pay attention, under appropriate conditions, to the existence of a group of vulnerable consumers.
426. This group of consumers is distinctive in inflexible demand, or at least much more inflexible than the rest of the product consumers. The vulnerable consumers are those consumers who are willing, up to a certain price range, to pay more for the product, sometimes much more, than the rest of the product consumers.
427. Where the portion of the vulnerable consumers is large out of the general product consumers, the court will tend to a narrow product market definition, to provide a better protection to those vulnerable consumers. Because if the product is included in one market with other products, the vulnerable consumers will be the first to be hurt, as for them, there are hardly substitutes for that product.
428. Some of Pikanti's products had a vulnerable consumer group, who was hurt many times over with the collapse of the companies, as some Pikanti products, which underwent a specific processing, had a group of customers who would go anywhere to get them.
429. This means that Pikanti offered not only a response to the consumers in the nearby supermarkets where they were sold, but also to much further outlying areas.
430. An example of taking into account the 'vulnerable consumers" emerges from a verdict in the matter of the International Boxing Club. The court ruled that when championships are the matter, the boxing fans consumers are more vulnerable, in the sense that even if the ticket price would increase considerably, the fans would not want to miss the championship. For this consideration, among others, the court ruled that the competitions in the championship framework should be considered a separate market.
431. The "vulnerable consumers" arose also in the Du Pont case. Here it was clear to the court that out of all consumers, the cigar suppliers have the most inflexible demand for cellophane. They need the cellophane to cover the cigars, and their chance to find substitutes for the cellophane, that they use as a complementing product, is very limited, and undoubtedly more limited than that of other consumers. Yet despite there being a group of vulnerable consumers, the court ruled that the relevant market is of all flexible packaging products.
Defendants no. 5-6: Gitam B. B. D. O Ltd. and Gitam Image Systems Ltd.
432. To round up the cartel on the image level, Nestle-Osem hired the big advertising and image office of Gitam (Gitam B.B.D.O. Ltd. and Gitam Image Systems Ltd., hereinafter: Gitam), who displayed a false presentation, as if the collapse of the companies was not the result of the cartel operations. Gitam, is responsible for the spreading of lies about Pikanti as quoted in this claim of cause.
433. Gitam worked in the cartel for Tnuva too. Tnuva financed various political functions via the panderer Moshe Teomim of Gitam. So, for example, a sum of $280,000 was transferred from Tnuva, via Gitam, to Radio Gal, a pirate radio station operated by left wing politicians.
434. This public relations office has the reputation for having political ties, ties with the media and with tycoons. This office used its ties to slander the companies, and to blur the cartel deceitful acts.
435. In a short time, Moshe Teomim of Gitam turned into the primary assistant of the cartel. This dubious guy was a go-between inside the cartel, camouflaged as an "image counselor". The formal construction for Teomim's operations was giving public relations and advertising services via Gitam, where he is a partner.
436. These "public relation" services were given to some of the cartel members (including Nestle-Osem, the cartel leader, and Tnuva, the conglomerate with the largest advertising budget in Israel). But the pseudo-legal construction of public relations services was a seemingly honest cover to a clearly not honest activity, which is a shameful way to earn a living.
437. Mr. Teomim, who has a reputation of an untiring subversive, a drainage basin for run-down morality, encouraged the cartel operation, and used his political ties which are based on narrow personal interests, used threats on one hand and flattery on the other, and saw to it that lies were spread on behalf of Nestle-Osem, who poured considerable sums to Gitam, owned by Teomim, as fees for his services.
438. Mr. Teomim is known for conducting a massive campaign against the former Israeli Prime Minister, the late Yithak Rabin. For years Teomim headed a poisonous campaign against Rabin, presenting him as a drunkard and a man collapsing under pressure.
439. The goal of the negative campaign was to take away Rabin's public prestige, at all costs, when everything is Kosher by Teomim's book, only to pave the road for Teomim's favorite, Shimon Peres, who had for years been considered Rabin's rival in the Labor (Avoda) Party.
440. The fact that Rabin was considered by the public the six-day-war chief of staff, an admired soldier and officer, with a record of Prime Minister and ambassador to the U.S.A., and a man with a first class public integrity, were obstacles on Shimon Peres's road ("Am I a loser?") to the top.
441. Teomim, the man for a dirty job, took it upon himself to carry out the assignment and faithfully did.
442. Thus, for example, he did not hesitate to deny, on air, the historic fact that the Nestle concern – a shareholder of Nestle-Osem who pays Teomim's salary – employed Jews as coercion workers during the holocaust.
443. The denial, on air, of this well known historic fact is an illegal offence for which Teomim should leave his business for five years to be a guest in an Israeli jail, and under section 2 to the prohibition to deny the holocaust, 1986, which explicitly rules:
"Whoever publicizes, in writing or orally, things that deny the acts that were carried out during the Nazi regime and that are criminal acts against the Jewish people or criminal acts against humanity, or that belittle them, with the intention of protecting the criminals or expressing sympathy, or identifying with them – will be arrested for five years".
444. Another instance, of many, when Teomim thrust his hand into the swamp was when the new casino in Jericho was opened. The casino people paid Teomim considerable sums to praise and glorify the casino, which transferred many millions of its profits to the Palestinian Authority, and they used the money as they pleased, including against Israel (and where does most of the money come from? from Israeli gamblers who lost their money and often caused the ruin of families).
445. Gitam is guilty of slander and lying against the claimant. Thus, for example, Teomim suggested to Tnuva's manager, Arik Riechman, to name the claimants' manger in a newspaper interview "a serial bankrupt "even though the claimants' manger is not, and has never been a bankrupt; and more lies of this kind out of Teomim deceitful breeding ground.
446. Gitam is responsible of the lies that were spread about the alleged financial ability of Pikanti just before the cartel began. The rumors Gitam spread around worked in two separate directions: a. through the newspapers. b.through systematic pouring of "financial information" so to speak, about Pikanti.
447. The claimant holds much evidence of expressions that came out of Gitam and were spread by Nestle-Osem, Tnuva and their agents. So, for example, in July 1997, Benny Beracha, a butcher shop owner from Akko said that the sales manager of Tnuva in the north, a man called Tibi, told him that "Pikanti has fallen". This Tibi told Gabi Gabriel, a sales manager of Of Ha'shalom slaughterhouse, that he had heard in Tnuva's offices that Pikanti had serious problems and that the business was collapsing.
448. Food agent Dror Gazit heard on 7.25.97 a Nestle-Osem agent say that "Pikanti is going to fall" and that his saying so is based "on messages from credit insurance". This agent confessed that "Nestle-Osem will do anything to destroy Pikanti" because of the competing snack to Bamba that Pikanti started to produce. "The chiefs in Nestle-Osem are out to wipe Pikanti out", the Nestle-Osem agent explained.
449. On 7.17.1997 a Nestle - Froumin employee by the name of Roni, who joined a Nestle-Osem employee named Micky, in Pikanti's offices in Rishon LeZion, said to a Pikanti employee Nirit Apple: "It seems you are not going to work here much longer".
450. On 7.21.1997, Galit, a regional manager at Nestle - Mota ice Cream claimed that "Pikanti checks have returned for goods sold to Pikanti", and that her direct manager told her so. This was, of course, a lie.
451. A Vita agent, Micky, confessed on 7.23.1007 that "there was a phone call from Nestle-Osem's bookkeeping and they said to their, Vita's, bookkeeping, that Pikanti checks returned and that Pikanti has no money to pay". This 'fact" also was plucked out of sin air.
452. On 7.3.1997, a Nestle-Osem agent who came to Pikanti's branch in Bnei Brak to "inspect" was observed wondering opposite the Coca Cola drinks shelf: "We said not to deliver merchandise! This is interesting!", he said to his friend. This remark exposes Nestle-Osem's plan, the orders she gave to those connected to her.
453. On 7.29.1997, Oren Dror, a distribution driver at Tara, talks to a hidden microphone and tells of his meeting with an Nestle-Osem agent who "updated" him with the lie that Pikanti was allegedly "bankrupt", and that "they don't send her goods", and that her checks need to be checked.
454. Of these sayings which were brought here in a nut shell is responsible Moshe Teomim of Gitam, who conducted the campaign of untrue rumors against Pikanti.
455. Mr. Teomim is, for his deeds, as Rabbi Abraham Eben Ezra said –scorn and ridicule to his neighbors. He has a reputation of being fond of whispering evil advice on the ears of people, perusing money and authority, and of having extremely bad public hygiene and morals, and being so full of himself and hedonistic he never bothered to look up the Rabbi Kook writings, so here they are for him to read:
"The love of mankind should live in the heart and soul, the love of each man in particular, and the love of all peoples in general, wishing for their spiritual and physical revival…an inner love from the depth of heart and soul, to do good to peoples all, to improve their assets, to confirm their lives…".
(From "Love", section 5 ).
456. Teomim thinks that it is possible to run the State of Israel sitting doing nothing in the prestigious coffee houses in the suburbs of Tel Aviv, and thus dictating the daily agenda and way of life of hundreds of thousands of honest, hard-working people in Israel.
457. So, a regular citizen, let us say from Bat Yam, an honest and industrious citizen, who drinks Tnuva milk, buys Nestle-Osem's Bamba for his son, and an anti cough medicine for his wife, does not know that Teomim is involved in the business of every manufacturer of these products, and donates to each his tiring and used combinatory, based on all the evil and exploiting in the early, dark capitalism, the doctrine base of which is rooted in the beginning of last century.
458. Even when he wants to express his support of a certain leader, or his favorite soccer team, the small citizen from Bat Yam will encounter the long armed octopus, which reaches out of a round, playing dumb belly, yet holding firm whatever is available, from politicians to snack producers, and a soccer team, and a big bank.
459. And if no one stands in his way, then one day the citizens of Israel will wake up and realize that Teomim arranges the stars in heaven to his liking.
460. Teomim's appetite is insatiable, but this ravenous hunger is not reflected in positive communal life, in donating to the needy and ill-fated. Teomim watches the world from his plump-to–the-full position, full of himself, as if waiting for historic justice to appear, in the name of all misery he caused to the Israeli citizens, whose modest cry is for him to leave them alone, leave alone their souls, money, and their civil, consumer and political rights.
461. However, it is well known that the weak in any society find it hard to identify their interests. Had the weak leaped over this obstacle, they would have told Teomim to let off, to forget his hunger to devour everything.
462. Let us be, like the ancient saying of Spanish Jews during their Golden Ages, before they were expelled: "Contra la verdad no hay fuerza" (there is no power against the truth). And as the truth here is in its first stages of life, Teomim will do best to free the public of his harmful presence. Let him keep to himself and make the moment of truth arrive earlier, as it will arrive anyway, and the sooner the better.
463. Gitam is the linking string of some of the cartel members. There is a tie also between Leiman Schlussel and Gitam. Gitam is Rigli's advertising office in Israel, while Leiman Schlussel imports and distributes Rigli's products in Israel. This explains why they go hand in hand, when the livelihood of the one depends on the other.
464. Moreover, Gitam is also Tnuva's advertising office, with an 18 million advertising budget which is divided between Gitam and Kesher-Bar'el. Again, one can see 18 million good reasons for Gitam to go hand in hand with Tnuva and Nestle-Osem.
Defendant No. 8: Frutarom Trade and Marketing (1990) Ltd.
465. The defendant Frutarom trade and Marketing Ltd (hereinafter: Frutarom), supplied Pikanti with essential materials for the food production process.
466. Frutarom controlled the spicing formulas of Pikanti's cutlery and meat products, which were developed by Frutarom and the Tahar Ltd. Co. in collaboration with Pikanti.
467. Pikanti contacted The Tahar Ltd. Co., which was bought by Frutarom, already in 1982. A new agreement was signed between Pikanti and Frutarom after the above mentioned purchase.
468. Frutarom took part in the food cartel which was led by Nestle-Osem (the defendant supplies raw material to Nestle-Osem, Tnuva, Telma, Nestle-Nestle-Noga Ice Cream and other defendants), and was an essential supplier to claimant no. 1.
469. In addition to stopping the supply, Frutarom wronged Pikanti in other manners: it changed the formulas of the raw materials she supplied, to the worse. This harmed Pikanti's products quality and taste, causing severe damage.
470. Frutarom, together with the other defendants, stopped supplies in an organized and pre-coordinated way, despite the fact that Pikanti paid everything according to schedule.
471. The defendant narrowed down supplies of raw materials to Pikanti considerably on 7.14.97, and later stopped it altogether. Yet the cartel survivor went on paying substantial sums to Frutarom according to schedule, by doing so decreased the remaining credit (obligo).
472. Pikanti was willing to give the defendant any securities she may demand for supplied goods, but Frutarom refused to supply the essential materials and their formulas.
473. Later Frutarom demanded advanced payments and cash, against the contract that was signed with her.
474. Uri Yehudai of Frutarom explained in a discussion with Pikanti's managers, that he was under heavy pressured to act against Pikanti, just as Frutarom did. Frutarom supplied raw material also to Tnuva, Nestle-Osem, Hashahar Haole, Tara, Nestle-Nestle-Astiv, Coca Cola, Thelma,Vita, and more – all - food cartel members.
475. The Pikanti concern bought goods from Frutarom from January to June 1997 for the sum of about 1,560,000 NS.
Defendant no. 9: Extra – Consumer Goods Marketing Ltd.
476. The contract between Extra Consumer Goods Marketing Ltd. (hereinafter: Extra marketing) and Pikanti was entered into in 1995.
477. Extra supplied Pikanti with a list of about 100 products including, garbage bags, sandwich bags, and lemon juice.
478. After Extra approached Pikanti, negotiations were conducted between Mr. Ilan Badash of Pikanti and the Extra sales managers, which ended in a provision agreement, in Pikanti's offices in Rishon LeZion, for an unlimited sum and an automatic renewal of the contract.
479. Pikanti kept the agreement up to the day Extra breached it when she started to cut down the supplies to Pikanti up to a complete stop.
480. In the months before the supplies were completely stopped, it decreased over time as follows: in May 1997 goods were supplied for 39,000 NS, the following June, for 30,000 NS, in July the supply shrunk to 18,,000NS, when in that July products were supplied to Pikanti in six entrances only to all nine Pikanti branches.
481. 7.8.97 was the day of the last supply to the Pikanti branch in Petah Tikva, and on 7.13.97 Extra stopped supplies to Pikanti altogether.
482. The contract between Pikanti and Extra was breached by Extra for no reason or explanation, and even after Pikanti asked time and again, Extra did not return to keep the contract and supply the goods.
483. Furthermore, Extra's stopping the supplies and breaching the contract in such a public way caused other companies in the market to get "cold feet" and they, too, stopped the supplies.
484. Extra took part in the cartel organized by Nestle-Osem, as a supplier to Pikanti. Extra, with other defendants, stopped the supplies in an organized and pre-coordinated way, despite the fact that Pikanti was good on payments on time, and not one check returned. Extra was one of the cartel leader and the pioneer amongst them, as she stopped supplies early on and convinced others to join her. Extra, by the way, is Nestle-Osem's nylon supplier.
485. Jacob Titelboim and Yehiel Harnik, Extra's managers, gave their personal guarantee for the continuation of the supplies but they breached their commitments. They received warnings a few times for the heavy losses they cause, in cheating and deceiving, and even though Pikanti kept paying until 9.2.97, Extra did not renew supplies.
486. Breaching agreements is nothing new at Extra. A few years ago Extra submitted a cause of claim to the District Court in Tel Aviv, in which she claimed that the cosmetic firm Pnina Rosenblum breached the distribution contract with her. But the judge, Dr. Drora Pilpel ruled that the Pnina Rosenblum Co. was entitled to cancel the distribution contract earlier than agreed because Pnina Rosenblum's manager lost faith in Extra while the contact between them was on, following acts by Extra which are a breach of the contract and therefore Extra is not entitled to any restoration. In other words, it was Extra who breached the contract and not the Pnina Rosenblum company. When Extra tried to appeal to the Supreme Court, it was obliged to withdraw the appeal as the Supreme Court judges recommended so, saying there was no mistake in Judge Pilpel's ruling.
478. It is known that there are tight ties among the companies that made up the cartel against Pikanti. It turns out that Danshar merged Extra Marketing. In the framework of the merger Danshar became responsible for marketing, sales and distribution of Extra's products. Danshar bought 35% of Extra-Plastic for 25.4 million NS. So far Danshar held 9% of Extra-Plastic shares. Another 35% were bought by Yehiel Titelboim, Extra-Plastic's manager, who will now hold 44%. The rest 44% will be held by Danshar and the rest by the public. Moreover, in 2000 Danshar signed with Careline-Haggis to establish a joined distribution company by the name of Denaggis, in which $4 million were invested.
488. Like her partners to the cartel, Extra tried in her own ways to destroy Pikanti, using false claims at court. This is how she tried to ascribe the concern stores' debts to claimant no. 1, using the false claim as if the Pikanti purchases from her were "centralized", while according to the defendant Extra's books, the supply was made to each store separately and the debts of each and every store were ascribed to its books.
489. On 7.10.97 Extra stopped supplies to the Pikanti concern. Yet these companies continued to pay considerable sums to Extra, using among other things the revenue for selling their assets, and thus narrowing down the remaining credit (obligo). Extra had the securities for the supplied goods. Yet despite the payments as scheduled, Extra did not renew the supply.
490. Even though Extra stopped the supply, Pikanti kept all its commitments. So, for example, Pikanti paid Extra the following sums after the beginning of the cartel: on 8.4.1997 4,884 NS were paid; on 8.10.1997, 5,084 NS were paid; on 8.25.1997, 12,316 NS were paid.
491. These facts show that Extra's real intention was to lead and be a partner in the cartel and to totally destroy Pikanti, including the defendants. As a result of those acts Pikanti was left with no money and no supplies. Due to Extra's promises, claimant no. 1 continued to supply the Pikanti marketing companies, but as she reached the above specified state the customers left and the stores collapsed with no capacity to pay claimant no. 1.
492. As a result of the cartel and Extra's cheating, the claimants suffered loss of capital and the debts of the marketing companies to claimant no. 1 reached 27,000,000 NS until they entered the liquidation. The damages and losses from not selling Extra products (for they were absent), and from customers' flight are as follows:
493. In light of centralizing product supply, from 1.1.1997 to 6.1997, the Pikanti concern bought from Extra for 206,710 NS.
494. The goods were not supplied, contrary to promises and trade customs, and losses were caused for not selling suppliers products over that period of time, loss of reputation, debt to the banks, expenses for extra credit due to lack of bank credit, loss of profit due to the pending liquidation process and other debts.
495. Being a partner and/or assistant and/or lobbyist for Nestle-Osem, she is blamed for unlawful enrichment under unlawful enrichment law of 1979, for Nestle-Osem's profits from silencing Pikanti and for the restoration right of Pikanti from Nestle-Osem and her partners together and separately.
Defendant no. 10: Guri Import and Distribution Ltd.
496. The contract between Guri Import and Distribution Ltd. (hereinafter: Guri) and Pikanti was entered into in 1992. Guri supplied Pikanti with cleaning materials and products for the house.
497. The contract between Guri and Pikanti was oral and for an unlimited sum. Guri breached the contract with Pikanti when she started to cut down on the supplies to Pikanti up to total withholding.
498. Over the few months before the complete stop, the supplies to Pikanti were gradually limited as follows: In May 1997, products were supplied for 25,000 NS, indeed the next months products were supplied for 44,000 NS, but in July Pikanti was not supplied with any products whatsoever.
499. When the cartel started Guri stopped supplies to Pikanti completely despite insistent pleading. Guri did not renew the supply of any products to Pikanti.
500. Guri took part in the food cartel led by Nestle-Osem, as a supplier to the Pikanti concern. The defendant, with others, stopped supplies in an organized and pre coordinated way, despite the fact that the Pikanti concern honored all payments as scheduled.
501. The causes of claim are: Breaching of trade agreements and commitments, illegal acts on the contract and torturous levels, exploitation of reputation, conducting futile procedures, and more.
502. On 7.14.97 Guri stopped supplying goods to the Pikanti concern. However, these companies, among other things, kept paying to the defendant with the sums they received for realizing their assets, by that reducing the remaining credit (obligo). Pikanti was ready to give Guri securities for the supplies, but in vain. Guri intended for all of Pikanti to collapse, including the defendant. As a result of those deceitful acts, Pikanti was left with no money and no goods.
503. Believing the defendant Guri's promises, claimant no. 1 continued to supply goods to the Pikanti concern marketing companies, but for the above specified reasons – the lack of money and products, the customers left and the stores collapsed with no capacity to pay claimant 1.
504. Guri's commercial cheating is famous. These days, a request to confirm a class action for reducing the size of product packages was submitted. The claimant is for 4.3 million NS. Guri misleads the customers in regard to the amount of laundry powder in her packages. She reduced the amount in 1/4 kg. (About 17% of the powder) without letting the consumers know about it. Even though she reduced the amount, she had no problem leaving the price as is, as if nothing has changed.
505. As a result of the cartel, the claimants suffered loss of money and the debts of the marketing companies to the claimants reached 27,000,000 NS until the date they entered the liquidation. These damages and the loss for not selling Guri products (for their absence), and from the customers' flight are as follows:
506. From 1/1997 to 6/1997 Guri sold the claimant supplies for the sum of 232,900 NS.
507. Even though Guri stopped supplied, Pikanti continued to fulfill all its obligations. So, for example, Pikanti paid Guri the following sums after the beginning of the cartel: on 7.14.97 checks for the sums of 10,029.58 NS and also 10,476 NS were paid. On 8.10.97 checks for the sums of 6,843 NS and also 8,958 NS were paid. On 8.21.97 8,657 NS were paid.
508. The goods were not supplied, contrary to promises and trade customs, and losses were caused for not selling suppliers products over that period of time, loss of reputation, debt to the banks, expenses for extra credit due to lack of bank credit, loss of profit due to the pending liquidation process and other debts.
509. Being a partner and/or assistant and/or lobbyist for Nestle-Osem, she is blamed for unlawful enrichment under the unlawful enrichment law of 1979, for Nestle-Osem's profits from silencing Pikanti, and for the right of restoration of Pikanti from Nestle-Osem and her together and separately.
Defendant no. 11: Danir Danenberg Ltd.
510. The contract between Danir Danenberg Ltd (hereinafter Danenberg) and Pikanti was entered into in 1991 with Danenberg supplying Pikanti with a line of products, such as crackers and various juices.
511. The agreement between Dannenberg and Pikanti was conducted orally and for an unlimited sum, with Pikanti paying Danenberg regularly, and Danenberg sending a representative on her behalf to pick up the checks at Pikanti's offices in Rishon LeZion.
512. Even though Pikanti continued to honor the agreement between them, Danenberg breached her side of the agreement when she started to reduce the supplies to Pikanti up to total withholding.
513. Over the last months before the stopping of supplying goods altogether, the supply of goods to Pikanti was reduced as follows: In May 1997 goods were supplied for the sum of 7,000 NS, indeed in the following June goods were supplied for 31,000 NS and in July, supplies for 43,000. In the same mentioned July, goods were supplied to Pikanti in 10 entrances only to all 9 Pikanti branches.
514. The last supply of goods was delivered on 7.13.97 to the Pikanti branch in Petah Tikva, and on 7.14.07 Dannenberg stopped to supply any goods to Pikanti. Danenberg stopped supplies suddenly, with no explanations, even though it is customary in the branch to give a one to two months warning notice before canceling an agreement. Despite insistent pleadings, Danenberg did not renew supplies.
515. Danenberg took part in the food cartel as a supplier to the Pikanti concern. The defendant, with others, stopped supplies in an organized and pre coordinated way, despite the fact that the Pikanti honored all payments as scheduled.
516. The defendant stopped supplies to the Pikanti concern on 7.14.97. However, these companies continued, among other things, to pay Danenberg considerable sums with the money they received for realizing their assets, and so reduced the remaining debt (obligo).
517. Pikanti was ready to give Dannenberg any securities for the goods to be supplied.
518. Pikanti's willingness and the reduction of the remaining debt (obligo) on one hand, and the stopping of supplies on the other, point to the intention of this supplier to cause the downfall of Pikanti as a whole, including the claimants. Because of these deceitful acts, the Pikanti concern was left with no money and no supplies altogether. Based on the defendant's promises, claimant no. 1 continued to supply goods to the Pikanti marketing companies, but because of the above specified, and lack of money and goods, the customers were gone and the stores collapsed with no capacity to pay claimant 1.
519. The Pikanti concern bought from Danenberg from 1.1997 to 6.1997 for them sum of 334,650 NS.
520. Even though Danenberg stopped supplies to Pikanti, Pikanti continued to fulfill all her obligations to Danenberg. Thus, for example, Pikanti paid Danenberg the following sums after the beginning of the cartel: On 7.22.97, 38,291.96 NS were paid, on 8.10.97, 33,317.04 NS were paid.
Defendant no. 12: Hashahar Haole Sweets Industry Ltd.
521. The contract between Hashahar Haole Sweets Industry Ltd. (hereinafter Hashahar) and Pikanti was entered into in 1992.
522. Hashahar supplied Pikanti with a line of products including chocolate spread and halva (sweetmeat of sesame and oil).
523. The contract between Pikanti and Hashahar was oral and for an unlimited sum. Hashahar breached the contract between her and Pikanti when she started to reduce the supply of goods to Pikanti up to a complete stop.
524. Over the last months before the supply was completely stopped, the supply was gradually decreased as follows: In May 1997 goods were supplied for the sum of 42,000 NS, the following June, a considerably less amount of goods was supplied for the sum of 32,000 NS, in July the supply dwindled to the sum of 14,400 NS, and in August goods were supplied for only 9,400 NS.
525. In the above mentioned month of July goods were supplied in two entrances only to all nine Pikanti branches.
526. On 7.1.97 the last supply was delivered to Pikanti's branch in Petah Tikva and on the same day Hashahar stopped to supply any goods to Pikanti. Hashahar took part in the food cartel led by Nestle-Osem, as a Pikanti supplier. The defendant, with others, stopped supplies in an organized and pre coordinated way, despite the fact that the Pikanti honored all payments as scheduled.
527. The Pikanti concern bought from Hashahar from 1.1997 to 6.1997 goods for the sum of 219,720 NS.
528. Even though Hashahar stopped the supply to Pikanti, Pikanti continued to honor all its commitments. Thus, for example, Pikanti paid to Hashahar the following sums after the beginning of the cartel: On 7.22.97 7,477 NS were paid. On 7.28.97 12,616.12 NS were paid. On 8.5.97 16,744 NS were paid. On 8.8.97 7,553 NS were paid.
Defendant no. 13: Nestle-Noga Ice Cream, Limited partnership.
529. The contract between Nestle-Noga Ice Cream partnership (hereinafter: Nestle-Noga) and Pikanti was entered into in 1991.
530. Nestle-Noga supplied a line of some 25 products to Pikanti including ice creams, popsicles in various packages, ice cream cakes and more.
531. The contract between Pikanti and Nestle-Noga was oral and for an unlimited sum. Nestle-Noga breached the contract between her and Pikanti when she started to reduce the supply of goods to Pikanti up to a complete stop.
532. Over the last few months before the supply of goods was completely stopped, the supply to Pikanti gradually slowed down as follows: In May goods were supplied for the sum of 160,000 NS, indeed in the following June goods were supplied for 167,000 NS, but in July the supply was limited to 102,000 NS and in August goods were supplied for 36,000 Ns only. In that mentioned July the goods were supplied to Pikanti in only 11 entrances to all nine Pikanti branches.
533. The last supply was delivered on 7.14.97 to Pikanti's branch in Petah Tikva.
534. Despite Pikanti's insistent pleading, Nestle-Noga did not renew the supply.
535. Tene Nestle-Noga conducted a number of futile procedures against claimant 1 and tried to cause her collapse also by means of a request for an urgent temporary liquidator (595/97, request of 12.16.97), to seize her assets, to manage her business etc. The requests were denied. So also in action 4591/1997 – a request to join the liquidation – the request by Nestle-Noga was denied. In this file arises that Nestle-Noga, contrary to the liquidation court ruling, refused to take a certified check from 12.16.97.
536. Tene Nestle-Noga tried, like others, to ascribe to claimant 1 the debts of the stores but failed in court. Nestle-Noga's claims turned out not to have a grain of truth in them, as according to her books, there was a distinct division between the various debtors, and in a debate on 3.25.98 the cat was out of the bag, and it became clear by the Nestle-Noga representative's affidavit (together with Nestle -Froumin and Nestle-Osem), that the defendant is interested in the liquidation of the claimant because the liquidation processes of the marketing stores turned the tables on her!
537. Tene Nestle-Noga's deceitful affidavit, submitted to support the liquidation request, matches word by word the affidavit of Nestle-Osem and - Froumin, which includes false data, to mislead the court. So despite her claims in the affidavit, that the stores stopped paying her, it turned out that they did pay her for another two months a sum of 164,663.99 NS.
538. Tene Nestle-Noga's request, with the forgery, was meant to mislead the court and cause it to fail in a legal procedure, to believe that Tene Nestle-Noga supplied goods to the claimant, the claimant did not pay and therefore she should be liquidated and her business should be managed.
539. From 1.1997 to 6.1997 the Pikanti concern bought goods from Tene Nestle-Noga for the sum of 478,300.
Defendant no. 14: Leiman Schlussel Ltd.
540. The contract between Leiman Schlussel Ltd. (hereinafter: Leiman Schlussel) and Pikanti was entered into in 1992.
541. Leiman Schlussel supplied to Pikanti a line of some 80 products including chocolate, snacks, candy, and chewing gum. Leiman Schlussel is the importer of Kinder, Frero Rocher, Mentos and more.
542. An oral contract for an unlimited sum was established after negotiations between Pikanti and her intermediary at Leiman Schlussel, Mr. Reuven and Mr. Michael. It was agreed between Pikanti and Leiman Schlussel that the contract will be automatically renewed each year with no time limit.
543. Pikanti paid Leiman and Schlussel regularly. Leiman and Schlussel saw to it that a representative on her behalf would come to pick up the checks from Pikanti's office. Even though Pikanti continued to honor the agreement between them, Leiman Schlussel breached her part of the agreement and on 7.10.1997 stopped supplying to Pikanti suddenly and with no explanations. Even after insistent pleading, Leiman Schlussel did not renew supplies to Pikanti. Despite that, she claimed her formal debt based on the card index and won.
544. Leiman Schlussel took part in the cartel Nestle-Osem led against Pikanti, as a supplier to the Pikanti concern. With the other defendants she stopped her supplies in an organized and re coordinated way, even though Pikanti kept the payments' tabulate. Leiman Schlussel conducted a futile procedure with the intention of economically destroying claimant 1, submitting a false affidavit and deceitful facts.
545. On 2.18.98 Leiman Schlussel submitted an ex-parte request to join the above mentioned liquidation file against claimant 1. Leiman Schlussel claimed for good standing, insolvency of claimant 1, and a direct debt the defendant has towards her. To the claims was attached an affidavit by Mr. Reuven Schlussel.
546. On 5.8.98 the District Court rejected Leiman Schlussel's claims, seriously criticizing her request and claims. The court ruled as follows:
"The claimant claims in her affidavit, that this is about a direct debt of the respondent. This claim is not supported by any tangible evidence. The claimant, requested the cause of liquidation for justice and honesty reasons, but had not laid a real basis for this cause…there request for liquidation should not be granted, certainly not before the claimant proves her status as creditor of the respondent of any debt". (There, pages 205-213).
547. Leiman Schlussel's request, with her false affidavit, was intended to mislead the court and cause it to fail in a legal procedure, to think and believed that Leiman Schlussel supplied goods to the claimant, the claimant who did not pay her, and thus should be liquidated even before any debt was proved.
548. From 1.1997 to 6.1997 the Pikanti concern bought goods from Leiman Schlussel for the total sum of 591,000 NS.
Defendant No. 15: The Southern Marketing Company Ltd. (Sano).
549. The agreement between The Southern Marketing Company Ltd. (hereinafter: Sano) and Pikanti was entered into in 1992.
550. Sano supplied Pikanti with a line of products including: various detergents and washing powder.
551. Pikanti paid Sano regularly. Sano saw to it that a representative on her behalf would come to pick up the checks from Pikanti's offices in Rishon LeZion.
552. Even though Pikanti continued to honor the agreement between them, Sano breached her obligations and on 7.16 stopped supplies to Pikanti suddenly and with no explanation.
553. After consistent pleading, Sano renewed supplying to Pikanti on 7.23. 97
554. On 7.29.97 claimant no. 1 and her manager, Mr. Moshe Badash, signed a promissory note with the sum not included. According to the conditions on the back of the promissory note, the note was valid for purchases executed from that date on (hereinafter: the first promissory note). Attached is the promissory note and marked with le letter A1 and A2.
555. The next day, on 7.30.97, a new promissory note was singed, canceling the former promissory note. This promissory note was signed by a different company (Pikanti Investments Ltd.) and her manger Mr. Moshe Badash (hereinafter second promissory note). This note as well was valid from the day of signing, 7.30.97, for one year. Attached is the second promissory note and marked B1 and B2.
556. On 10.9.97 Attorney Natan Shpetlowitz, on behalf of Sano, sent two warning letters of a debt of 507,624 NS to three marketing companies of the Pikanti concern, and claimed they were in debt to Sano.
557. According to the letter the defendant has no part in that debt but the three marketing companies. Attached are the two letters and marked C and D.
558. On a date after the signing, Attorney Shpetlowitz, and/or Sano, and/or Landsberg Bruno, and/or Landsberg Alexander, and/or Landsberg Rita (hereinafter: the forgers), filled in, in handwriting and in both promissory notes, the sum of 550,000 in each.
559. The forgers filled in the sum in the first promissory note even though it was canceled (in accord with the second condition in the second promissory note), and despite the fact that the claimant, according to attorney Shpetlowiz's warning letter, owes nothing.
560. The sum was filled in with no authorization, deceitfully and falsely, as if written by claimant no. 1. Attached is the front of the promissory notes filled by the forgers and marked E an F.
561. On 11.9.97 Sano, represented by Attorney Shpetlowitz, submitted a request to the District Court in Tel Aviv to join the Liquidation request against claimant no. 1. To her request Sano attached three invoices and the front page of the first promissory note, concealing the conditions which were written on the back side, as specified in attachment no. A2. She also concealed the conditions of the second note stating that the first note was canceled. Attached is the request and its attachments and marked G 1-5.
562. On 5.9.98 the District Court ruled (liquidation file 595/97 – O) that Sano "intentionally concealed the existence of that condition in the note from the outset" as she did not prove and could not prove that she supplied goods to the claimant on the date indicated in the note. See page 217, lines 10-16 to the attached verdict and marked H.
563. For the details of the request attachments see the court's remark on page 216, line 9:
"It will be noted that the claimant did not attach delivery papers, invoices, or any other document that can prove that she supplied any goods as of 7.29.97 to 8.28.98 as evidence that the condition in the promissory note, attached to its request, indeed existed. No wonder she acted so, as she intentionally concealed the existence of this condition in the note from the outset".
564. Sano's requests were denied, both from the practical aspect and from the legal order aspect.
565. Sano's request, with the forge, was intended to mislead the court and cause it to fail in a legal procedure, to believe and think that Sano supplied goods to the claimant, the claimant did not pay, and therefore the promissory note should be implemented, the claimant should be liquidated and the "debt" should be collected from her and her manager, Mr. Moshe Badash.
566. The promissory notes were extracted from the claimant and from companies in the concern deceitfully, when Sano promised that if she gets them, she would immediately supply goods. Yet after she did receive the notes she supplied no goods. As a result of the deceit Sano received the promissory notes and money she did not deserve.
567. During the debate of the liquidation request of claimant 1 on 3.25.98 at the District Court, (a request later denied, after large expenses for her defense), Attorney Shpetlowitz, Sano's representative, submitted various requests, including deposit returns, document revealing etc. The court's reaction was as follows:
"What is your status now to request the revealing of documents? In what role are you asking this? Mr. Shpetlowitz, I ask you to stay in a debate framework. You have no status whatsoever, not to speak of document revealing? Then what is your status? Who are you in the file to ask even according to civic legal order, the revealing of documents? Attorney Shpetlowitz: We join the file…The Honorable Judge: You do not. There is no joining decision concerning you".
568. The matching of the invoices that were issued by Sano to Pikanti Investments, and Pikanti Investments' books, and the supplies' books, also clearly shows that the trade was between them and not between Sano and claimant 1.
569. This fact too proves that the effort to liquidate the claimant on the basis of a debt she had nothing to do with – is an intentional and evil effort.
570. With no debt, with no cause for liquidation, with submitting false claims, arranging a cartel, and unilateral trade stopping, all these are meant only to destroy claimant 1 at all costs, even at the cost of misleading the court. They will go to any length, including forgery and facts concealing.
571. To the above causes for conducting illegal procedures and cheating, the causes driven from Sano's part in the cartel should be added.
572. From 1.1997 to 6.1997 the Pikanti concern bought goods from Sano for the sum of 878,000 NS.
573. Even though The Southern Company stopped the supply to Pikanti, Pikanti continued to honor all her commitments. So, for example, Pikanti paid The Southern Company the following after the beginning of the cartel: On 8.10.97 208,396.96 NS were paid.
Defendant No. 16: Unilever-Lever Distribution of Personal Care & Cleaning Products, Ltd.
574. The defendant Unilever-Lever Distribution of Personal Care & Cleaning Products Ltd., - controlled by Unilever-Lever (hereinafter: Unilever-Lever), supplied Pikanti with a variety of personal and cleaning products. Unilever-Lever supplied about 50 different cleaning and personal products including the prime product "Loven Clean" and "Shampoo Pinuk". Unilever-Lever is one of the leading consumer goods' companies in Israel. The company manufactures and markets foods, personal, and for the home products, and food trademarks, marketed by Unilever-Lever, like Knor or Thelma, and personal and cleaning such as Dove, Siff and Fantastic. The contract between Pikanti and Unilever-Lever was entered into in 1995, after Unilever-Lever stopped marketing her products through Sano. Unilever-Lever owns Vitko Co.
575. Unilever-Lever part in the food cartel led by Nestle-Osem, as a supplier to the Pikanti concern, and brought into the cartel her fantastic record of business crimes. Unilever-Lever Israel is a defendant together with five other companies which belong to the international concern Unilever-Lever, to pay six million NS to Impax. The cause of claim is that they breached the agreement of the Import and Export Agency and marketing Unilever-Lever trademarks with it.
576. Unilever-Lever, with the other five companies cheated Impax, promising her long term collaboration, and her investments would be considered an asset investment in a joined project which will be established with the concern, and the investments will be shared equally.
577. While Impax abstained from doing more business with other companies, declining suggestions from competitors and investing enormous sums in promoting and marketing Unilever-Lever products, Unilever-Lever and the others had no intention of establishing with her a joined project. They acted out of an intention to steal her trade secrets, and to throw Impax away later and operate freely in Israel. Despite the promises she was given, to keep the agreement for many years, Impax received in September 96' a letter canceling the agreement unilaterally as of the end of August 1997. As a result of the fraud, Impax almost reached an economic collapse threshold.
578. Unilever-Lever with the other defendants stopped supplies to Pikanti in an organized and pre coordinated manner, even though the Pikanti concern kept all Payment arrangements.
579. From 1.1997 to 6.1997, the Pikanti concern bought products from Unilever-Lever for the sum of 289,910 NS.
Defendant No. 17: Nestle-Astiv Ltd. (Formerly Prostiv Ltd.)
580. The agreement between Nestle-Astiv Ltd (formerly Prostiv, hereinafter: Nestle-Astiv) and Pikanti was entered into in 1995.
581. Nestle-Astiv supplied Pikanti with various products including: Schnitzel, chicken rings, and Tivol products.
582. The agreement between Pikanti and Nestle-Astiv was entered into orally and for an unlimited sum. Pikanti paid Nestle-Astiv regularly, who saw to it that a representative on her behalf came to pick up the checks from Pikanti's office in Bnei Brak.
583. Even though Pikanti kept the agreement between them, Nestle-Astiv breached her part in the agreement and on 7.14 stopped supplying goods to Pikanti suddenly and with no explanations. Even after consistent pleadings, Nestle-Astiv did not renew the supply of goods to Pikanti. Because of her belonging to the Nestle-Osem concern, she was one of the first to stop supplies to Pikanti.
584. From 1.1997 to 6.1997 Nestle-Astiv supplied goods to Pikanti for the sum of 163,660 NS.
585. Even though she stopped the supply to Pikanti, Pikanti continued to fulfill all her obligations. Thus, for example, Pikanti paid Nestle-Astiv the following sum, after the beginning of the cartel: On 8.14.1997, 23.961 NS were paid.
Defendant No. 18 : Schestowitz S. Ltd.
586. The agreement between S. Schestowitz Ltd. (hereinafter: Schestowitz) and Pikanti was entered into in 1996.
587. Schestowitz supplied Pikanti with about 100 products including.
588. Schestowitz is a monopoly in the disposable and multiple-use razor blades in Israel. The constraint trade controller, David Tadmor, announced it. Schestowitz is the importer and marketer of Gillette razor blades in Israel, and many other razor blades such as Wilkinson Sword, and cosmetics by Colgate, Palmolive, Ajax, Paco Rabbane, Braun and more.
589. Schestowitz's market segment in the razor blades market exceeds half the amount of this product supplied in Israel. Being a monopoly, Schestowitz takes advantage of this fact and blocks competition in the marketing chains. Schestowitz had the concession to import Gillette products in Israel since 1963. Since 1998 she imports and markets Duracell, which belongs to world Gillette.
590. The contract between Schestowitz and Pikanti was entered into orally and for an unlimited sum. Pikanti paid regularly to Schestowitz who saw to it that a representative on her behalf came to Pikanti offices in Rishon LeZion to pick up the checks.
591. Even though Pikanti continued to honor the agreement between them, Schestowitz breached her part of the agreement, and on 7.17 completely stopped to supply goods to Pikanti, suddenly and with no explanations. Even after consistent pleadings, Schestowitz did not renew supplies to Pikanti.
592. Schestowitz, represented by attorney Natovitz, preyed on the claimant, with her cartel members, in the above mentioned debate on 3.25.98 (See minutes of the debate from 3.25.98). at the District Court, in the liquidation request of claimant 1 (a request later denied, after great defense expenses). The presentation of the defendant proves the ties with the rest of the cartel members, and her effort, with the others, to press the court and convince it of the amount of "creditors" the claimant had.
593. From 1.1997 to 6.1997, Pikanti bought goods from Schestowitz for the sum of 381,750 NS.
594. Even though Schestowitz stopped the supply to Pikanti, Pikanti continued to fulfill all her obligations. Thus, for example, Pikanti paid Schestowitz the following sum, after the beginning of the cartel: On 8.10.97, 9,587.39 NS were paid.
Defendant No. 19: Tara Productive Agricultural Partnership Union in Nahalat Yitzhak Ltd.
595. The defendant Tara Productive Agricultural Partnership Union in Nahalat Yitzhak Ltd. (hereinafter: Tara) manufactures food and focuses on dairy.
596. The agreement between Tara and Pikanti was entered into in 199
597. The defendant Tara took part in the food cartel led by Nestle-Osem, as a supplier to Pikanti. Tara, with the other defendants, stopped the supply in an organized and pre coordinated manner, despite the fact that the Pikanti concern honored all payments.
598. The defendant stopped supplies to Pikanti on 7.14.97. Still, these companies, with, among other things, the sums they received for realizing their assets, continued to pay Tara considerable sums and with that the obligo was reduced.
599. Pikanti was willing to give any security for the goods supplied by Tara. Pikanti's willingness and the reduction of the obligo on one hand, and stopping of supply on the other, point to the intention of this supplier to destroy Pikanti as a whole, including the claimants.
600. As a result of these deceitful acts, Pikanti was left with no money and no goods altogether. Based on promises by Tara, the claimant continued to supply goods to the marketing company of the Pikanti concern, but because of the above mentioned lack of money and goods, the customers left and the stores collapsed with no capacity to pay claimant 1.
601. Business hooliganism is a systematic at Tara's. Following an ugly firing story that Tara conducted against Yaron Kravitz, the former Tara dairy manager, it was discovered that for years Tara breached the obligation to report to the Israel Dairy Board and the Ministry of Agriculture. Following the story Tara tried to stop Kravitz's position as the partnership's representative in the Board.
602. Tara's manager had personal benefits when Tara passed excess payments to some of the manufactures, as he passed deceitful reports to the Israel Dairy Board and as he received bribes into his own pocket. In a cause of claim submitted to the District Court in Tel Aviv, Judge Ruth Sternberg-Eliaz ruled that Tara's behavior does not fall in line with proper management, in Tara's behavior towards Kravitz and her meddling in the inner business of the registered partnership of Kravitz and Titelbaum. Judge Sternberg-Eliaz also ruled that it is unfit to influence the election of the shareholders' representative with intention of enhancing narrow personal interests of Tara's members, such as personal revenge.
603. From 1.1997 to 6.1997 the Pikanti concern bought from Tara goods for the sum of 360.850 NS.
604. Even though Tara stopped supplying to Pikanti, Pikanti continued to fulfill all her obligations. Thus, for example, Pikanti paid the following sums after the beginning of the cartel: On 8.3.1997, 18,323.97 NS were paid; on 8.28.1997, checks for the amount of 48,885.74 NS were paid and also 51,180.62 NS.
Defendant No. 29: Tempo Beer Industries Ltd.
605. The contract between Tempo Industries Ltd. and Pikanti was entered into in 1992. Tempo is the importer of sodas like Pepsi, and beers such as: Bacardi, Heineken, Samuel Adams, Murphy's and more.
606. Tempo supplied Pikanti with a line of about 50 products, including different kinds of beer and soft drinks. Following Tempo's approach by Pikanti, negotiations were conducted between Mr. Ilan Badash and the late Mr. Arie Shreger, of Pikanti, and the national sales manger of Tempo.
607. A contract was entered into, for an unlimited sum, at the Pikanti offices in Rishon LeZion. It was agreed that the contract would be annually automatically renewed.
608. Pikanti paid regularly to Tempo, who saw to it that a representative on her behalf would pick up the checks from Pikanti's offices.
609. Even though Pikanti continues to honor the agreement between them, Tempo breached her side of the agreement by gradually slowing down the supply of goods to Pikanti, until it stopped altogether. In the last months before the complete stopping of the supplies, the amount supplied was gradually decreased in the following manner: In may goods were supplied for 117,000 NS; indeed, the following June goods were supplied for 182,000 NS, but in July the supply decreased to the sum of 174, 000, and in August supply was for 78,630 NS only. In the above mentioned July, goods were supplied in 13 entrances only, for all Pikanti's nine branches. On 7.14.97, the last supply of goods was delivered to the Pikanti branch in Petah Tikva and on 7.17.97 Tempo stopped supplies completely, and conditioned supply in cash payments. The little supplied to Pikanti after 7.14.79 was against cash payments.
610. Tempo people approached Pikanti and asked that Pikanti pay cash for the goods. Pikanti paid as Tempo asked, but only a small portion of the ordered merchandise was delivered. When asked why she breached the contract with her, Pikanti was told that Tempo follows in Nestle-Osem's footsteps.
611. From 1.1997 to 6.1997, the Pikanti concern bought goods from Tempo for the sum of 817,5000 NS.
612. Even though Tempo stopped supply to Pikanti, Pikanti continued to fulfill all her obligations. Thus, for example, Pikanti paid Tempo the following sums, after the beginning of the cartel: On 8.8.1997, 47,009.82 NS were paid; on 8.10.1997, 36,976/94 NS were paid; on 8.14.1997, 50,000 Ns were paid; on 9.4.1997, 16,340 NS were paid.
Defendant No. 21: Wissotzky Tea (Israel) Ltd.
613. The contract between Wissotzky Tea (Israel) Ltd. (hereinafter: Wissotzky) and Pikanti was entered into for the supply of tea products.
614. As a supplied to the Pikanti concern, the defendant took part in the food cartel led by Nestle-Osem, The defendant with the other defendants, stopped supplies in an organized and pre coordinated manner, despite the fact that the Pikanti concern kept all payments on time.
615. From 1.1997 to 6.1997, Pikanti bought goods from Wissotzky for the sum of 234,100 Ns.
616. Even though Wissotzky stopped supplies to Pikanti, Pikanti continued to fulfill all her commitments. Thus, for example, Pikanti paid Wissotzky the following sums after the beginning of the cartel: On 8.10.97 8,595.70 NS were paid; on 8.15.97, 12.238.10 NS were paid.
Defendant No. 22: Willi Food International Ltd.
617. The contract between Willi Food international Ltd (hereinafter: Willi Food) and Pikanti was entered into in 1994. Willi Food supplied Pikanti with a line of about 85 products including: various canned foods such as Tuna conserves and mushroom conserves.
618. The contract between Willi Food and Pikanti was oral and for an unlimited sum. Willi Food breached the contract with Pikanti when she started to slow down the supply to Pikanti up to a full stop.
619. In the last months before the complete stop of the supply, the supply of goods to Pikanti decreased gradually in the following manner: In May goods were supplied for the sum of 42,000 NS. Indeed, the following June goods were supplied for 67,000 NS, but in July supply decreased to 11,500 NS only and in the above mentioned July, goods were supplied to Pikanti in two entrances only to all nine Pikanti branches.
620. On 7.10.97 the last supply of goods was delivered to the Pikanti branch in Petah Tikva, and on the same day Willi Food stopped supplying any goods to Pikanti claiming that all she was out of merchandise, and as soon as new merchandise comes in, the supply will be renewed. Ever since then, Willi Food has not renewed supply despite consistent pleading by Pikanti in accord with the agreement between them.
621. Even though Willi Food stopped supplies to the Pikanti concern, these companies continues among other things, with the money from realizing their assets, to pay Willi Food considerable sums and by that reduced the obligo.
622. Even though Willi Food stopped the supply, Pikanti kept fulfilling all her obligations. Thus, for example, Pikanti paid Willi Food the following sum after the beginning of the cartel: On 7.20.1997, 23.519 NS were paid.
623. Pikanti was willing to give Willi Food any securities for supplied goods. Pikanti's willingness and the reduction of the obligo on one hand, and stopping the supply on the other, point to the fact that Willi Food intended for Pikanti to collapse, including the claimants.
624. As a result of these deceitful acts, Pikanti was left with no money and no goods altogether. Based on promises by Willi Food, the claimant continued to supply goods to the marketing company of the Pikanti concern, but because of the above mentioned lack of money and goods, the customers left and the stores collapsed with no capacity to pay claimant 1.
625. Willi Food took part in the cartel led by Nestle-Osem, as a Pikanti supplier. The defendant, together with the other defendants stopped supplies in a pre coordinated manner, even though Pikanti kept paying on time.
626. From 1.1997 to 6.1997 the Pikanti concern bought from Willi Food for the sum of 322,640 Ns.
627. In contrast with the agreements, promises, and trade customs, goods were not supplied, which caused losses for not selling suppliers products at that time, loss of reputation, a debt to the bank, defense expenses, loss of profit for because of the pending liquidation process, and other debts.
628. Being an accomplice and/or partner and/or lobbyist to Nestle-Osem, she is blamed of unlawful enrichment under the unlawful enrichment laws of 1979, of Nestle-Osem's profits from shutting Pikanti up.
Defendant No. 23: Gad Dairies (Marketing 1992) Ltd.
629. The defendant Gad Dairies (Marketing 1920) Ltd. (herein after; Gad Dairies), manufactures and produces milk products and markets her products. Gad Dairies marketed to Pikanti mainly Mozzarella cheese, essential for Pizza making, and the contract with her was entered into right after the establishment of gad Dairies and was renewed annually.
630. Gad Dairies took part in the cartel led by Nestle-Osem, as a Pikanti supplier. The defendant, together with the other defendants stopped supplies in an organized and pre coordinated manner, even though Pikanti kept paying on time.
631. From 1.1997 to 6.1997 Pikanti bought goods from Gad Dairies for the sum of 980,330 NS.
Defendant No. 24: Hogla Kimberly Klark Ltd., Controlled by Kimberly Klark Co.
632. The agreement between Hogla Kimberly Klark Ltd. was entered into in 1995.
633. Hogla – Kimberly Klark provided Pikanti with a line of products including; tissue paper, personal products and disposable diapers. Hogla-Kimberly Klark is the importer of Kleenex and other paper hygiene products to Israel.
634. The contract was entered into after Hogla – Kimberly Klark approached Pikanti with an offer; the negotiations were between Mr. Ilan Badash of Pikanti and Mr. Amnon, Hogla – Kimberly Klark sales manager. The result was an oral contract in Pikanti's offices in Rishon LeZion for an unlimited sum. It was agreed that the contract would be automatically renewed annually.
635. Pikanti honored the contact the two parties entered into and always paid on time. The payments were regular and with checks, and Hogla – Kimberly Klark sent a representative to pick up the checks at Pikanti's offices in Bnei Brak.
636. Hogla – Kimberly Klark breached the contract when she slowed down the goods supply to Pikanti up to a full stop. During the last months before the complete stop of supplies, the supply of goods to Pikanti decreased as follows: In May 1997 goods were supplied for the sum of 165,500 Ns; the following June, goods were supplied for just over 113,000 NS; and in July the supply dwindled to 35,000 NS only, and in the mentioned July, goods were supplied in four entrances only to all nine Pikanti branches.
637. On 7.2.97 the last supply was delivered to the Pikanti branch in Petah Tikva, and on that day Hogla – Kimberly Klark brought supplies to a complete stop. Due to the lack of supply and the contract breaching, Pikanti could no supply these goods, which caused many customers to leave. Even though Pikanti consistently pleaded that Hogla – Kimberly Klark renew promised supply and honor the contract, Hogla – Kimberly Klark did not oblige, and in addition because of Hogla – Kimberly Klark acts, Pikanti found it difficult to get credit from other suppliers.
638. Hogla – Kimberly Klark took part in the cartel led by Nestle-Osem, as a Pikanti supplier. The defendant, together with the other defendants stopped supplies in an organized and pre coordinated manner, even though Pikanti kept paying on time.
639. Hogla – Kimberly Klark conducted a futile process trying to ascribe to claimant 1, to Mr. Moshe Badash and the company's accountant the stores' debts, and her claims were denied. Later they were partially accepted but her claims against claimant No. 1 were not accepted in the appeal as well. Today the case is pending in the Supreme Court. Hogla – Kimberly Klark also conducted, with the marketing companies, a creditors' preference procedure, and was required to return to the liquidation cashier considerable sums (310,000 NS plus dividend and linkage differentials).
640. Hogla – Kimberly Klark submitted a cause of claim (CF 080724/97) against the marketing companies (the stores), and against claimant No. 1, Mr. Moshe Badash, and accountant Eitan Shabi. Hogla – Kimberly Klark tried to ascribe the marketing companies' debts to claimant 1 and to Mr. Badash and Mr. Shabi.
641. On 7.13.2000 the request to lift the corporate veil was denied and it was ruled that claimant 1 should not be ascribed the stores' debts.
642. Despite the fact that Hogla – Kimberley stopped supplies while using deceit and misleading, Hogla – Kimberley withdrew from the marketing companies a sum of 310,000 NS. Doing so she illegally decreased the obligo agreed balance from 500,000 NS to 190,000 NS only.
643. These payments were done within the three months beginning with the liquidation procedures of the stores. Theses are forbidden acts of creditors' preference. Hogla – Kimberly Klark was required to return these sums to the liquidation cashier, through the stores' liquidator, Attorney Eitan S. Erez on 8.17.00.
644. The above mentioned acts by Hogla – Kimberly Klark were meant to mislead the court in a legal procedure, to believe and think that Hogla – Kimberley supplied goods to the claimant, that the claimant did not pay and therefore she should be claimed personally and collect "the debt" from her and her managers, Mr. Badash and the accountant
645. With no debt, submitting deceitful claims, arranging a cartel, unilateral stopping of supplies, all these are none other than an effort to destroy claimant 1 at all costs, even at the cost of misleading the court. She would stop at nothing, as she would go to any length with her business crimes. So, for example, the District Court in Tel Aviv prohibitory injunction, prohibiting Hogla – Kimberly Klark to use the Israeli-50-year-logo on her products, which she used illegally. Hogla – Kimberly Klark forged and imitated the products legally carrying the logo and sold them to retailers but not to individuals.
646. Hogla – Kimberly Klark leads the non-food producers' list. She had the trademarks, disposable diapers, Mollette, Lily, Zivony, Shmurat Teva, and others. She also markets Kimberley Klark, Agis diapers and tissues.
646. From 1.1997 to 6.1997 the Pikanti concern bought goods from Hogla – Kimberly Klark for the sum of 904,000 NS.
447. Even though Hogla – Kimberly Klark stopped supplies to Pikanti, Pikanti continued to honor her commitments. Thus, for example, Pikanti paid Hogla – Kimberly Klark the following sums after the beginning of the cartel: On 8.4.1997, 21,383.30 NS were paid; on 8.6.1997, 20,465.75 NS were paid; on 8.19.1997, 22,503.46 NS were paid; and the total is 310,000 NS.
Defendant no. 25: Agis Distribution & Marketing (1989) Ltd – of the Careline (Pharmagis) Ltd. Group.
649. The agreement between Agis Distribution & Marketing (1989) Ltd (hereinafter: Agis – Careline (Pharmagis) Group and Pikanti was entered into in 1992 orally and for an unlimited sum.
650. Agis - Careline (Pharmagis) provided Pikanti about 100 products including personal care products and detergents.
651. Pikanti paid Agis – Careline (Pharmagis) regularly, and she saw to it that a representative on her behalf came to pick up the checks from Pikanti's offices.
652. Even though Pikanti continued to honor the agreement between them, Agis – Careline (Pharmagis) breached her side of the agreement and on 7.13 stopped supplies to Pikanti suddenly and with no explanations/
653. Even after consistent pleading, Agis – Careline (Pharmagis) did not renew the supply to Pikanti. Pikanti never received any explanation from Agis – Careline (Pharmagis) about the contract breach and the stopping of supplies.
654. From 1.1997 to 6.1997 the Pikanti concern bought goods from Agis – Careline (Pharmagis) for the sum of 333,170 NS.
655. Even though Agis – Careline (Pharmagis) stopped supplies to Pikanti, Pikanti continued to fulfill all her commitments. Thus, for example, Pikanti paid Agis – Careline (Pharmagis) the following sums, after the beginning of the cartel: On 7.25.1997, 18,775.80 NS were paid; on 9.10.1997, 7,890 NS were paid.
Defendant No. 26: Unilever-Lever Bestfoods Israel Ltd.
656. The agreement between Unilever-Lever Bestfoods Israel Ltd. (hereinafter Unilever-Lever Bestfoods) and Pikanti was entered into in 1992.
657. Unilever-Lever Bestfoods supplied Pikanti various products, including: Cornflakes and margarine.
658. After negotiations between Mr. Arie Shreger and Mr. Ilan Badash of Pikanti, and the sales manager in Unilever-Lever Bestfoods, an oral agreement was entered into for an unlimited sum. Unilever-Lever Bestfoods and Pikanti agreed that the agreement would be renewed annually.
659. Pikanti paid Unilever-Lever Bestfoods regularly, and Unilever-Lever Bestfoods saw to it that a representative on her behalf would pick up the checks at Pikanti's offices in Bnei Brak.
660. Even though Pikanti continued to honor the agreement between them, Unilever-Lever Bestfoods breached her side of the agreement.
661. On 7.16.97 Unilever-Lever Bestfoods stopped supplies to Pikanti altogether. 91% of the goods supply was to Pikanti's marketing companies/stores in her various branches (9), and 9% to claimant 1. So, for example, she supplied in 5.1997 to the above mentioned marketing companies – goods for 294,00 NS and to claimant 1 goods for 28,000.
662. In 6.1999 she supplied the stores with goods for 292,000 NS and claimant 1 for 29,000 NS. In 7.1997, she provided the stores for 264,000 NS and claimant 1 for 19,000 NS.
663. Even though the agreed credit was 65 days and Pikanti was good on due payments regularly, the defendant cut down on supplies.
664. Food products are in demand and essential for all customers and for Pikanti. Their arbitrary cut down and the collaboration with the cartel caused serious harm as hereinafter described. The defendant pressed and threatened Pikanti to sign a promissory note and a commitment to continue regular supply. So on 8.26.97 a promissory note was signed and on 8.27.97 an order for supplies, coordinated with the defendant. However, it turned out it was all a deceit and the supply for the sum of 91,424.87 was not delivered. In the same way the defendant breached a trade agreement for august for 290,000 NS.
665. Unilever-Lever Bestfoods, in contrast to the agreement and the authorization, filled in the defendant's promissory note, breaching authorizations, trying to collect from her the stores' debts of 520,672 NS.
666. Even though the District Court, on 1.30.97, ruled in the liquidating file (595/97 action 3770/97) that the defendant and her manager, Mr. Moshe Badash are not responsible for the stores' debts, and that no lifting of the veil should be executed, the defendant started a deceitful and planned procedure against claimant 1 and her manager (execution file (9) 1214131/1997), trying with false claims, with the others, to destroy claimant 1.
667. The above mentioned procedure, with the forgery/filling debt details with no authorization and no debt, was meant to mislead the court and cause it to fail in a legal process, to think and believe that Unilever-Lever Bestfoods supplied goods to the claimant, the claimant did not pay and therefore the promissory note should be activated, and to collect from her and her manager, Mr. Moshe Badash, the "debt".
668. The promissory note was deceitfully extracted from the claimant, when the defendant promised that should she get it, supplies would be delivered right away. But after getting the notes, she did not supply the goods as promised. As a result of the deceit, Unilever-Lever Bestfoods received the promissory note and money she was not supposed to receive.
669. From 1.1997 to 6.1997 the Pikanti concern bought goods from Unilever-Lever Bestfoods for the sum of 1,731,860 NS.
670. Even though Unilever-Lever Bestfoods stopped supplies to Pikanti, Pikanti continued to fulfill all her obligations. Thus, for example, Pikanti paid Unilever-Lever Bestfoods the following sums, after the beginning of the cartel: On 8.2.1997, checks were paid for 26,771.80 NS and also 9,143.23 NS, and 8,381.89 NS.
Defendant No. 27: The Central Bottling Co. Ltd. – Coca cola
671. The contract between The central Bottling Co. Ltd. (hereinafter; Coca Cola) and Pikanti was entered into in 1991, after negotiations between the late Arie Shreger of Pikanti and Coca Cola's central company's go-between, Mr. Yigal Dror, sales manager.
672. The contract, conducted in Pikanti's offices in Rishon LeZion, was oral and for an unlimited sum.
673. Coca Cola and Pikanti agreed that the contract will be automatically renewed annually with no time limit. Pikanti paid Coca Cola regularly and Coca Cola saw to it that a representative on her behalf came to pick up the checks from Pikanti's offices in Bnei Brak.
674. Coca Cola supplied Pikanti about 50 products including: carbonated soft drinks, mineral water and beer.
675. Even though Pikanti honored the agreement between them, Coca Cola breached her side of the agreement on and on 7.16 started to cut down supply delivery until it was considerably narrowed down.
676. When Coca Cola stopped supplying goods to Pikanti suddenly and with no explanations, Pikanti approached her and consistently pleaded for Coca Cola to renew supplies as determined in the contract. After consistent pleading, Coca Cola renewed supplies but on a small scale, beginning on 7.21.
677. The product Coca Cola is an anchor product and its being there on the supermarket shelf means vitality and attractiveness above the consuming value in the family basket.
678. Therefore, Coca Cola's taking part in the food cartel against the crusader companies – the companies that marketed the Pikanti products – is of primary importance.
679. The heads of the company marketing Coca Cola are friendly with the other companies' heads in social and family occasions. These groups that established the base on which the food cartel against the crusader companies was built, sends long octopus arms to hundreds of commercial organizations in Israel and abroad.
680. A certain part of their commercial ties are done with the presence of some group heads in directorate of big banks such as Hamizrahi Bank, which seemed on the surface to be objective at the time of spreading the evil rumors against the crusader companies, the companies that marketed the Pikanti products.
681. Close to the cartel period Coca Cola purchased large trailer trucks.
682. Pikanti and Coca Cola had a fight concerning Coca Cola's argument that Pikanti's customers' cars that park in front of the Coca Cola's plant gate on Kahanman St. in Bnei Brak obstruct the large trailer trucks from turning left when they leave the plant's gate.
683. This fight, which may seem trivial, turned into complaints at the police station, trials to bribe police officers, pressing the Bnei Brak municipality to prohibit parking in the lot, etc.
684. In addition to the commercial interest, Coca Cola wanted also to arrange, forcefully, the trucks' passage, as Pikanti's customers allegedly spoiled the Coca Cola abundance.
685. Coca Cola is an expert in not honoring and breaching agreements. In 97' Coca cola announced a summer campaign in which anyone constructing the word "trip" from letters at the bottom of bottle covers would receive a trip to the U.S.A, for themselves and for two friends. After a few winners were found, Coca Cola refused to honor her promise to the consumers and claimed an unreasonable claim, that only a letter 't" with some tiny sign would count as suitable for the campaign.
686. In 98' a request to be recognized as a class action was filed against Coca Cola by the Consumers' Society. All this does not hamper Coca Cola's sales but encourages them, as the consumers buy large quantities in the hope they would win something the company has no whish or intent to honor.
687. Of course this campaign was never realized and was only intended to make the costumers buy as much Coca Cola as possible; and indeed, Coca Cola finished the 97' year with a sales cycle of a billion and a half NS.
688. The ties between the cartel members are uncovered bit by bit. For example, Coca Cola owns 33% of Prigat, and Prigat came out with a campaign a few months ago that whoever buys Prigat squeezed juice in one liter packages, will get Tnuva calcium enriched milk. Here is just one tie between Coca Cola and Tnuva and the reason why these companies activated a cartel against Pikanti.
689. Coca cola collaborated with Nestle in producing and marketing cold tea "Nestea", a reason to cooperate in more than one area.
690. From 1.1997 to 6.1997 Pikanti bought from Coca Cola for the sum of 2,154,500 NS.
691. Even though Coca Cola stopped the supply to Pikanti, Pikanti continues to fulfill her obligations. So, for example, Pikanti paid Coca Cola the following sums after the beginning of the cartel: On 7.27.1997, 67,132 NS were paid; on 7.29.1997, 93,218.03 NS were paid; on 4.8.1997, 74,618 NS were paid;; on 8.18.1997, 19.288/44 NS were paid.
Defendant No. 28: Danshar Marketing (1974) Ltd.
692. The contract between Danshar marketing and Pikanti was entered into in 1995.
693. Danshar provided Pikanti with a long line of products, including personal products, shampoo, shaving cream, and batteries. Danshar is the importer of Ponds Cosmetics, Brut beer, Hajn Foods, Oral B. hygienic products and many other products to Israel.
694. The contract between Danshar and Pikanti was oral and for an unlimited sum.
695. Danshar breached the contract with Pikanti when she started to decrease the supply of goods until it reached a complete halt.
696. In the last months before the total supply stop, the supply of goods to Pikanti was gradually cut down in the following manner: In May goods were supplied for the sum of 53,000 NS; on the following June the supply decreased considerably, only for the sum of 10,000 NS, and in July goods for 16,000NS were supplied.
697. In the above mentioned July goods were supplied in only two entrances, for all nine Pikanti branches.
698. On 7.3.97 the last supply was delivered from Danshar to Pikanti's branch in Petah Tikva. On that day Danshar stopped the supply of any goods to Pikanti even though up to that day Pikanti continued to fulfill her commitments, as she had always done, and continued to pay Danshar in checks she collected from the Pikanti offices in Bnei Brak. Despite Pikanti's consistent pleadings, Danshar did not renew supplies to Pikanti.
699. As a supplier to the Pikanti concern, Danshar took part in the food cartel Nestle-Osem led. The defendant with the other defendants stopped supplies in an organized and pre coordinated manner, even though Pikanti kept the Payment on time.
700. From 1.1997 to 6.1997 Danshar provided Pikanti with goods for the total sum of 239,100 NS.
701. Even though Danshar stopped supplies to Pikanti, Pikanti continued to fulfill all her obligations. Thus, for example, Pikanti paid Danshar the following sum after the beginning of the cartel: On 8.14.1997, 16,087.87 NS were paid.
Defendant No. 29: Vita Quality Food Ltd.
702. The contract between Vita Quality foods Ltd. (hereinafter: Vita) and Pikanti was entered into in 1992.
703. Vita provided Pikanti with a line of some 120 products including soups, ketchup, sauces, and warm personal portions.
704. The agreement between Vita and Pikanti was oral and for an unlimited sum. Pikanti paid Vita regularly, who saw to it that a representative on her behalf would pick up the checks from Pikanti's offices in Bnei Brak.
705. Even though Pikanti continued to honor the agreement between them, Vita breached the agreement when she started to slow down supplies to Pikanti up to a total halt.
706. In the last months before the complete stop of goods supply, Vita slowed down the supply. In May 1997 goods were supplied for the sum of 11,000 NS; in the following June, much less was supplied, for the sum of 74,000 NS; indeed, in July supplies totaled 86,000 NS, but in August it decreased to 31,400 NS only. In the above mentioned July goods were supplied in only 13 entrances to all nine Pikanti branches.
707. The last supply was delivered on 7.13.97 to Pikanti's branch in Petah Tikva, and on 7.14.97 goods supply was completely stopped. After consistent pleading, Vita renewed supply as of 7.24.
708. From 1.1997 to 6.1997 Pikanti bought goods from Vita for the total sum of 668,000 NS.
The Fire in Pikanti's Rishon LeZion Branch.
709. On September 2nd, an enormous fire broke out in Pikanti's crusader companies – the companies marketing the Pikanti products – in the new industrial zone in Rishon LeZion, which destroyed a large part of the building and the offices.
710. Many files burnt down and vast damage was caused to Pikanti's property.
711. The fire completely disrupted Pikanti's bookkeeping, and severely damaged its functioning capacity.
712. In addition, some of the evidence collected by the company for her cause of claim against Nestle-Osem went up in flames.
713. The Nestle-Osem group and her assistants are liable for the fire that occurred on 92.97 in Pikanti's branch in Rishon LeZion, and thus she and the other defendants are together and separately liable for Pikanti's damages. Because of that occurrence, inclusive of, and not only, she and the other defendants are liable under the power of civil wrong under section 35 and 36 to the damages ordinance (new version) with section 39 to the ordinance and with section 12 to the ordinance.
The legal Sections Yehoshua Meraz of Nestle-Osem and his associates to the lie – violated.
714. Yehoshua Meraz was Nestle-Osem Israeli Food Industry Ltd. secretary. In his affidavit he supported the joining request by the Nestle-Osem group; he introduced false presentations, deceit, lies, malicious suit, negligence and the breaching of legal debit, and/or being a participant, and/or assistant, and/or consultant, and/or seducer, and/or allows, and/or ratifies, - he is liable to all above mentioned Nestle-Osem actions and/or omissions and is liable for them.
715. He is also liable because of his actions and/or omissions, and in introducing false civil wrongs and financial damages as come up in his affidavit, as specified above.
716. The defendants intentionally caused, in their actions and omissions, the breaching of the supply agreements between Pikanti and other agents causing a torturous inducement for the breach of the contract, section 62 to the damages ordinance (new version) and/or:
717. Breached the customary contact between Pikanti and the Nestle-Osem group as in section 1 to the contract law (contract law remedy for breach of contract) -1970, and/or:
718. Yehoshua Meraz , secretary of Nestle-Osem Israeli Food Industries Ltd., in his affidavit signed by him, and in the joining request, introduced a presentation of a fact knowing it was erroneous, or having no belief in its truth, or out of negligence, all as the term means under deceit in section 56 to the damages ordinance (new version), and intending that the misled by the presentation would act according to it and by that caused her considerable financial damages and/or:
719. Yehoshua Meraz, secretary of Nestle-Osem Israeli Food Industries Ltd., introduced a false presentation in his affidavit which he signed, he introduced a false presentation of a fact as under section 56 to the damages ordinance (new version) , with section 57 to the ordinance and caused her a considerable financial damage, and/or:
720. Yehoshua Meraz, secretary of Nestle-Osem Israeli Food industries Ltd. publicized a malicious lie as under section 58 to the damages ordinance (new version) regarding his occupation in the Nestle-Osem group, his profession, his source of livelihood, and as a result Pikanti suffered serious financial damages, and or:
721. Yehoshua Meraz, secretary of Nestle-Osem Israel food Industries Ltd., with the Nestle-Osem group and by himself, opened and/or continued a futile procedure of liquidation and/or a cause of claim against Pikanti's manager under in section 60 of the damages ordinance (new version) and disrupted the credit and/or the reputation, and/or:
722. Yehoshua Meraz, secretary of Nestle-Osem Israeli Food Industries Ltd., introducing a erroneous fact in his affidavit, and for the reasons specified above, and not only for the matter of the joining request, acted as no reasonable and intelligent person would under the same circumstances, or that in his profession did not act with caution, as under section 35 to the damages ordinance (new version) and as under section 36 to the ordinance, and/or:
723. The defendants are also liable by law to the damages that the Nestle-Osem and Nestle - Froumin companies caused, and they are liable for their acts and/or omissions because they took part, or were partners, or allowed, or ratified, all as under section 12 to the damages ordinance (new version).
724. The defendants are liable in unison and separately to negligence and each defendant is liable personally because of all liabilities, and/or:
725. In his above mentioned acts and omissions Yehoshua Meraz of Nestle-Osem breached legal debits as under section 63 of the damages ordinance (new version) and by doing so harmed Pikanti, inclusive but not only her business and her reputation, and among other things: 1. under section 239 to the penal code 1977, (hereinafter: penal code), presenting a false affidavit. 2. Under to section 237 of the penal code, submitting false testimony. 3. under section 238 to the penal code, in fabricating a fact or in using it and for the only intention of misleading a legislator authority. 4. under section 244 to the penal code, in disrupting legal procedures. 5 under section 440 to the penal code, in trying, with other, to deceitfully influence market prices or cheating the public or any other person to extract an asset from a person. 6. under rule 7 of The Israel Bar rules (professional ethics) 1986, by not indicating that he was a lawyer as required under the circumstances. 7. under rule 8 of The Israel Bar (professional ethics), not mentioning details as required. 8. under rule 32 of The Israel Bar (professional ethics), not observing the obligatory rules required of a lawyer. 9. under rule 34 of The Israeli Bar rules (professional ethics), of the prohibition of deceit in the matter of introducing a factual or legal pleading knowing it was is erroneous. 10. under section 96 to the companies ordinance (new version) 1983, breaching as a professional the caution towards another person. 11. under section 96 26 to the companies ordinance, breaching his obligation as a professional to act with caution, skillfully, as specified in the paragraph. And/or:
726. The defendants are liable, together and separately, for all acts and /or omissions by the Nestle-Osem Group and her cartel partners, for civic wrongs and for breaching debits in the criminal code and/or:
728. The defendants are responsible together with partner and seducer as in section 21 to the damages ordinance (new version) 1968, for acts and omissions by the Nestle-Osem group and her cartel partners against Pikanti, and thus are liable for them.
The Manner in Which Pikanti and the Food Market were Harmed by the Cartel.
728. Nestle-Osem, Nestle - Froumin and their partners to the cartel burdened Pikanti with their acts and omissions, as follows: In the second half of July 1997 the crusader companies – the companies that marketed Pikanti's products – bashed by the various suppliers, who stopped all at once, suddenly and without any warning, the supply to the crusader companies, and thus caused a fast dwindling of the stock on the supermarkets' shelves the marketing companies manage and an extreme lack of products, to the point of empty shelves and a general economic downfall.
729. As a result of the malicious and unilateral behavior of those suppliers, an unavoidable chain reaction occurred, when as a result of the sudden stop in goods supply and the dwindling of products, more and more customers stopped visiting the crusader stores.
730. Thus the trade cycle was drastically narrowed down and the cash flow and their capacity to pay the (traitorous) suppliers was severely harmed.
731. In the crisis that emerged, Pikanti hurried to aid the crusader companies – the companies that marketed Pikanti's products – and thus postponed temporarily collecting the crusader debts to her, on the basis of an erroneous presentation of the crusader companies to Pikanti based on erroneous presentations by the suppliers.
732. The goods supplied by Pikanti were sold to the customers, and the return was paid to the various suppliers who were preferred over Pikanti by the crusader companies according to a payment scale.
733. All this with the goal of satisfying the external suppliers, and paying them their due according to the payment chart, and in light of their promise to renew supplies. This did not happen. The suppliers, as mentioned earlier, acted in an unexpected manner and stopped the supplies all at once, and with that destroyed the stores.
734. In this way the debts of the crusader companies to Pikanti gradually increased, and reached millions of NS.
735. Over business before the stopping of supplies, the various suppliers supplied goods to the crusader companies for the total sum of over 10 million NS a month, the sum the crusader companies paid them for their debts.
736. As of July, with the cut down of supplies and finally the complete halt, the crusader companies – the companies that marketed Pikanti's products, continued to pay off checks in millions of NS for the boycott period.
737. It is well known in the market, that suppliers' credit conditions are an inseparable part of the business, and the suppliers' credit that was customary up to this period with the crusader companies was in average: current credit + 90 days, so that the sudden stopping of supplies, with no capacity to sell products of that supplier, and at the same time continuing to pay off the checks, means an economic and operational death penalty to the crusader companies and to the supermarkets they managed.
738. The suppliers were not only ungrateful but acted deceitfully, breaching with this behavior the customary trade rules, and the principles of fair trade. Doing so, they determined the crusader companies' fate to economic strangling and the paralysis of all essential trade cycle possibilities, and to cash flow that can enable the ongoing economic existence.
739. The suppliers acted in this way despite the fact that the crusader companies – the companies that marketed Pikanti's products – paid according to the credit conditions that existed between the parties over their business relations up to that point in time.
740. The crusader companies approached the various suppliers and consistently pleaded to omission from stopping supplies, emphasizing that the stopping of supplies would undoubtedly cause the total economic collapse of the store.
741. The suppliers were offered a personal guarantee by Mr. Moshe Badash, for future supplies, but this offer was usually turned down and rejected.
742. The goal of the guarantee offer was based on the hope and belief and business consideration that giving the above guarantee would cause the suppliers to return to regular supplying which would enable the companies to pay off the claimant.
743. The above described data proves above any doubt, that the crusader companies made any effort, above and beyond, to pay the suppliers. However, because of the sudden and cruel boycott that was imposed on the crusader companies – the companies that marketed Pikanti's products, with no due warning, there was no way to keep payments, with no cash flow, that should have resulted from selling goods had the suppliers supplied.
744. Such boycott is similar to a situation in which out of the blue all coffee-bean suppliers would decide to stop supplying raw material to a manufacturing company and as a result, the company would not have any products to sell. Would such a company survive and keep on paying off her commitments? Or, if one clear morning all bank customers would decide to withdraw all their deposits all at once from their accounts, would the bank be able to continue its operations?
745. The crusader companies, all together, realized assets for millions of NS in order to pay off their debts to the suppliers.
746. Even giant companies would not cope economically with such a chaotic situation that was as good as imposing a total economic boycott.
747. Yet, as data shows, the crusader companies, the companies that marketed Pikanti's products, exhausted with the help of Pikanti, their power to fight the decree; and if their fate was to collapse and not be able to pay off the rest of the debts, the people directly and exclusively to blame are the suppliers who boycotted them.
748. In their behavior, the suppliers killed the goose that laid the golden eggs, and created a vicious cycle cruel and hopeless, of fatal harm at who needs to pay off the debt.
749. Moreover, the various suppliers breached knowingly the trade contracts between the crusader companies and themselves, agreements entered into orally, by behavior and by the joined work and trade relations between them.
750. The most severe act is the deceit they used when they with false promises extracted checks, promissory notes, and guarantees from the crusader companies, the companies that marketed Pikanti's products, and Mr. Moshe Badash, promising they would supply the goods according to the agreements between them.
The Cartel's Branching From the Core (The Nestle-Osem Group) to the Periphery.
751. It is impossible to comprehend the collapse process of the crusader companies – the companies that marketed Pikanti products – without understanding the construction of the cartel that destroyed them.
752. It will be said on the brink of things, that the exact drawing of the cartel construction is impossible, due to the fact that its components tend to minimally expose the level of their formal and strategic business ties.
753. Even the veteran employees at Pikanti, who operated for a long time in the Israeli food market, were taken by surprise when the tapestry of ties and wide affinities of the cartel components was unveiled. It seems all suppliers who were members of the cartel had some economic tie or other commitment to one cartel head or another.
754. It is well known that in the food market a great importance is ascribed to the behavior of the big economic organizations operating within it.
755. This is about a sector characterized by a high differential level (from neighborhood small mini-market with one employee, to the giant chains with thousands of employees). Therefore, the power of the strong in the branch will always bring about the surrendering of the weaker ones to the strong ones' wishes.
756. The system of spreading rumors worked through the agents of the companies in the cartel, who operated not only as goods' agents but also as merchants of false rumors.
757. Nestle-Osem, the head of the cartel, whose part in planning and implementing the plot was great, was established before the ethical, economic and social meaning of modern trade restraints were understood around the world, and her old fashioned cartelistic vision, whose beneficiaries are the Nestle-Osem ruling families, often backed up by political go-getting, and by morally and often ethically unacceptable social ties with state officials, jurisdiction officials and politicians, all as fit the circumstances, continues to guide her heads who have double standards – peace with their comrades and evil in their hearts.
758. The real dimensions of the cartel are still unknown. Many of its operators are still employed by Nestle-Osem and are afraid to say a word. It will probably take many years before the whole picture of the cartel is disclosed. Information of the unacceptable methods Nestle-Osem uses has been coming in drop by drop but still; it is only the tip of the iceberg.
759. The fear of state authorities for years to confront the threatening giant helped many unfit traditions to settle in; forgiving attitude by authorities, eyes shutting, and at times even assisting Nestle-Osem's unacceptable acts, and the result is that this company rules over huge market segments, which established her in a superior status of the Israeli market.
760. Trying to preserve her place in the economic reign, Nestle-Osem crushed whoever tried to conduct a free and fair competition against her, and adopted despicable competition habits, while confusing the allowed with the prohibited as far as her heads are concerned.
761. When Nestle-Osem initiates and realizes an organized cartelistic fight against her competitors, she does not act in an unusual manner as far as her subjective reality understanding is concerned.
762. Operating the "food cartel" program and the like, which Nestle-Osem often uses for what she considers proper goals, she in fact realizes a recessive plan which is Nestle-Osem's combat doctrine.
763. This doctrine is reserved for such cases as this one, when Nestle-Osem heads approve for their employees to activate the plan against the rivals who dared act not according to their game rules, rules that were defined many years ago and that still govern their inner twisted yet so far protected values, and which, unfortunately, keep causing the unnecessary death of companies in Israeli economy and society, the one aiming at economic and personal excellence, striving to cherish an economic pluralism for the efficiency of society and the individual's well being.
764. Implementing her methods against the companies of the liquidation, Nestle-Osem crushed her competitors to whom she thinks she can do anything according to the trade competition rules that were developed in her backyard and have been her custom for years, and which have been enhanced over the last few years, ignoring the basic rule that too much makes one sick of it all.
765. The "combat plan" to activate the food cartel is operated by many employees at Nestle-Osem and her collaborators, who do not always realize what their real duty in the food cartel is.
766. The preparations for activating the cartel are detailed and exact, and include, among other things, co ordinations and up to date reports by lawyers who hope to be appointed temporary liquidators and special managers of the companies Nestle-Osem is about to destroy.
767. The irregularity of Nestle-Osem's methods is much more prominent today, after the recognition the importance of new legal and economic doctrines, which try to maximize social justice by a more equal and just sharing of social resources, and after the legislation of the trade restraint laws.
768. Nestle-Osem's behavior is even more unacceptable after the legislation of Basic Laws of the State of Israel; the rules of the cruel "competition "Nestle-Osem uses against her competitors when the taskmasters keep running around without differentiating who they meet on their way, injure human dignity of the person who tries to put up a fair competition, and harms their right of title and freedom of occupation.
769. More damage to fundamental rights in the above circumstances is to the personal and professional respect of the companies' employees who turned to dust under the angry giant's shoes.
770. Nestle-Osem's size, her political power, cartelistic covert and overt strength, her aggressive go-getting in the Industrials Union institutes and out, and her efforts to blur all this, requires, by virtue of public regulations, the firm restraining of Nestle-Osem, her subordinates, and their collaborators – be they sophisticated attorneys who pose as honest people, who keep to this moment to play according to long out of date dark rules, as the progressive public in Israel thinks.
771. As a result of Nestle-Osem's evil fight against the claimant, about one thousand workers lost their livelihood and became a burden on the government and on their families.
Death and Disease Among Pikanti Fired Workers Following the Cartel.
772. Some of Pikanti's employees became seriously ill following the cartel, whose members violated the prohibition in Psalms 37 8 "Fret not thyself, tendeth only to evil-doing".
773. As a result of the cartel, the Personnel Resource manager, Mr. Yishai Beckerman, died. He was obliged to do the mass firing and could not take it.
774. Another employee, Mr. Z. B., suffered a stroke as a result of the cartel.
775. Another employee, Mr. H. G., suffered a severe mental disease as a result of the cartel.
776. Employees and their heirs consider now to submit personal causes of claim against the Nestle-Osem people and their assistants for the physical harm they suffer because of the cartel.
A Long Term Ideological Fight over the Game - Rules of the Food Market.
777. Over the past two decades Pikanti had a reputation of having a unique vision, which tried to merge the natural and legitimate wish of every person to better his material life, with advanced social concepts of equality.
778. With this in the background, the fight between Nestle-Osem and Pikanti was not an economic fight solely, but a collision of two completely different views of the world. The one maintaining that only the strong and veteran has the right to win even if unfair, and the other maintaining that in the Israeli market there is enough room for all, and that private initiative can be intertwined with social justice, with the one enjoying and the other no lacking, and with realizing the Jewish rule "good and doing good".
779. In that context, the educational and training the claimant offered her employees for their benefit and for the sake of modeling to other employers, stands alone in the Israeli economy.
780. These acts and others awarded her and her founder in international prizes of humanitarian organizations (such as the international prize of the "Doctors of the World" organization, a prize that on that year was also granted only to the former U.S.S.R. President Mikail Gurbatchov), and provided her with a unique stance in the Israeli culture and society, such that does not seek only for herself, and as such that is accepted by civil right organizations on one hand, and on the rabbinical establishment on the other, and the organizations in between, excluding those who write on their flags old economic visions that died with feudalism.
The Supply of a Monopolistic Product is Depends on not Selling a Competitive Product.
781. In the trade restraint laws' framework, the issue of the cartel against Pikanti is, among other things, a situation when a manufacturer of a monopolistic product forces the marketers of the product to market that specific product only, and in any case not to distribute any competitive product; or, to market the monopolistic product under preferred conditions over the distribution of competitive products.
782. The situation described above is similar in a legal sense to a situation arising by the arrangement of tying products. Here also, as in product tying arrangements, it is about exploiting the market power of the monopoly owner in the monopolistic product or service market, in order to dictate conditions in the product or service market.
783. While in the tying of products' arrangements the coercion of the additional product has a positive aspect, in the sense that in addition to the monopolistic product the consumer is to buy also another product, in this case the coercion is negative, in the sense that the consumer of the monopolistic product is not to buy a competitive product.
784. Even if according to the existing law, the conditioning of selling or distributing a monopolistic product is not selling a competitive product, does not fall into the framework of one of four exploitation possessions holdings as under section 29 a (b) to the restraint trade law, it will probably fall under the right circumstances, into the framework of the general prohibition as in section 29 a (a) to the law, which prohibits a monopoly owner to exploit his market status "in a manner that may decrease the trade competition or harm the public".
785. A case of conditioning the selling of one monopolistic product in not selling another product was discussed lately in the restraint trade court in respect to the marketing method of the Yediot Aharonot newspaper, that a year earlier was announced by the controller to be a monopoly in daily Hebrew newspapers.
786. In that case, the restraint trade controller claimed that in many instances did Yediot Aharonot demand of distributors and retailers, as a condition to the supply of the newspaper, not to sell competitive newspapers.
787. Yediot Aharonot was also accused of conditioning the supply of the newspaper on concealing competitive newspapers at the same selling point.
788. The controller claimed then, that the conditioning as described perpetuates the status of Yediot Aharonot as a monopoly owner not as a result of the consumers' free and legitimate preference, but rather for a physical coerced absence of Ma'ariv or any other competitive newspaper, at the selling point, to the consumer.
789. The controller added that Yediot Aharonot deprived the retailers and the distributors of the right to return unsold papers and promised them a three times higher than customary commission if they sold their newspaper over the selling of a competitors' one.
790. In this context, the controller added and said that the unfairness of this marketing method stems from the fact that Ma'ariv does not have the economic capacity to deprive the retailer from promoting the selling of Yediot Aharonot at the expense of Ma'ariv.
791. In an interim order injunction in the above matter, the restraint trade court ruled as follows:
"A. Yediot Aharonot will not condition the supply of the Yediot Aharonot newspaper at any selling point, in any commitment by that point to purchase newspapers of the Yediot Aharonot group only."
"B. Yediot Aharonot will not condition the supply or manner of supply of the newspaper to the selling point on any condition which is in any manner, directly or indirectly, linked to the selling of any other daily newspaper in the same selling point".
792. Conditioning one product on not selling another, by the monopoly owner, includes a number of harms to the public aspects simultaneously.
793. The directly harmed are the monopoly owner competitors, like Pikanti, who keep losing their power in the market because of the conditioning it dictates to the monopolistic product or service distributors.
794. Others harmed, in addition to the existing competitors, are the new potential ones.
795. A conditioning as described above by the monopoly owner will increase the entrance blocks into the market in a manner that will deter new potential competitors from entering into it.
796. Moreover, the consumers too will be harmed by losing free choice between the monopolistic product or service, and other products or services of the competition.
797. The supply conditioning of a monopolistic product on not selling a competitive product is prohibited in the U.S.A. by explicit legislation, which emphasizes that the above conditioning is prohibited in any case where it may harm significantly the competition, or help create a monopoly in the market.
798. In any case, the conditioning by the monopoly owner, may significantly harm the competition in the market, therefore, if the conditioner is done by the monopoly owner, the conditioning will be illegal.
799. The court referred to the width of the prohibition to condition the supply of a monopolistic product in not selling a competitive one, in the case of United Shoe Machinery Corp. There, the court ruled that conditioning the cost of leasing the product on not leasing a competitive product significantly damages the competition in the market and thus is illegal.
800. The scholar Yitzhak Yagur determines that the enforcement manners of fair competition on monopoly owners can be divided in two: Public enforcement by the restraint trade controller and also private enforcement as called for in this case of Nestle-Osem and her cartel partners.
The Restraint Trade Controller Avoided Reporting Payments He Received from Nestle-Osem.
801. The restraint trade controller at the time of the cartel organizing was Dr. David Tadmor, who was supposed to serve as the small citizen's tower of strength against the big corporations and their iniquities.
802. Even though the Israeli tax payer paid the restraint trade controller's fat salary, enough for him to have clean and honest hands, and represent the interests of the lone citizen against prohibited trade controls in Israel, Tadmor embezzled the public's faith when he avoided cutting off the cartel when still in the bud, despite consistent pleadings by Pikanti.
803. The information about the cartel was laid in front of Tadmor, who was supposed to act, as the public's trustee. Why then, did Tadmor choose to embezzle the public's faith and not prevent the cartel that hurt the small consumer, and act as if in this case it is impossible to distinguish day from night?
804. The answer may stem from the fact that close to his appointment to the restraint trade controlling position, Tadmor was a lawyer at Levi-Tadmor law office, Nestle-Osem's, Pikanti's great rival, law office.
805. Today Tadmor again represents Nestle-Osem in Kaspi's law office.
806. Dear reader, if the words in the above paragraph seem imaginary and impossible – you are right! It is bizarre and imaginary and even disturbed and hallucinatory – yet it is nothing but the truth.
Tadmor, Formerly a Nestle-Osem Employee, did not Prevent the Cartel.
807. This is no mistake, or a line crawling in from "The Godfather 4" script, but our hallucinating reality. In advanced, developed Israel, a lawyer who yesterday represented a criminal can tomorrow become the one who would sentence his fate as a judge in the same case.
808. If, for example, attorney Y. Shaftel were to be appointed John Evan Demyanyuck's judge, the whole country would be outraged, as this attorney had been, in the past, Demyanyuck's lawyer.
809. Or, if someone would suggest while O J Simpson's trial was on, that the judge be replaced by Allan Darshowitz, the defendant's lawyer- the one suggesting this would be probably sent to a psychiatric for observation.
810. However, when Nestle-Osem's lawyer was appointed to be the restraint trade controller, no one cried out, and when Nestle-Osem started the cartel against Pikanti, the restraint trade controller refused to block Nestle-Osem, who until recently paid him largely, being a private lawyer.
Tadmor Represented in the Past Also Tnuva and Prutarom, Partners in the Cartel.
811. Moreover, in addition to Nestle-Osem, Tadmor's office represented in the past other members of the food cartel against Pikanti: Tnuva (defendant group 3 and 4), and Frutarom (defendant no.7).
812. All the above explains why, the full bellied guard, who was supposed to prevent the cartel, was off duty exactly when the violent hooligan Nestle-Osem passed by.
813. When Pikanti complained against Nestle-Osem's cartel to the restraint trade controller, he did not act and did not report to Pikanti, as required by the fairness and transparency principles, that he used to serve as Nestle-Osem's lawyer in matters related to trade restraint.
814. Tadmor, thought, it seems, that internship at the Supreme Court President's office, and wearing prestigious suits and silk ties at Watchel, Lipton, Rosen and Katz in New York is enough to paint his image as clean by the public, a perfect professional, clean of any hidden agenda, with ulterior motives, all in contradiction to the Jewish rule: What views the heart and not the eye.
815. But the truth is that breathing mountain air, whether in Jerusalem or in Manhattan, is not enough to glorify a man, to purify his soul and endow him with honesty he does not posses.
816. A thousand New York style suits will not bring about dignity to a man lacking in dignity.
817. This is Tadmor, always dressed to the topnotch, acting saintly, but broke and empty inside, like a cloud of cheap perfume.
818. Pseudo prestige is no prestige, and pseudo cleanliness is no cleanliness, and pseudo and objective controller is no real objective controller. Because in matters of morality and truth the inner standard is just it, and no Doctorate from Yale University can wash out large drops of mud which stained the controller's shirt, who is licked clean on the outside and full of worms and larva on the inside.
819. The Rambam (great Jewish scholar) said that being satisfied with external cleanliness and leaving the lust in pleasure and lawlessness, aims at disgust.
820. The claimant scanned the Yale University curriculum, where the respected Tadmor acquired his degree, and did not find one class that teaches surpassing ethic rules as Tadmor's doctrine suggests, as was expressed in this case, when he thought he could restrain, as the restraint trade controller, everyone beside himself and his crowd.
821. The claimants request to have the right to divide wrongs and remedies, as the legal work in this matter has not been finished yet, while justice requires that he pay for his severe acts.
822. Bearing in mind that the task of the restraint trade controller is quasi judicial, the claimant ascribe superior importance to the ethical and fundamental defects that were uncovered in Tadmor's functioning. His acts and omissions cast a heavy shadow on the Israeli public service and the public faith in it. There is no doubt that quick action should be taken to remove the rotten apple and to exhaust the law.
823. Tadmor's unaccepted behavior was a severe blow to the value of equality, that is: had it been a different manufacturer who violated the law, possibly the controller would use his authority against him, but in this case it is about an organization which, in the past, poured money into the controller's personal account and with this in the background, he acted favorably towards them.
824. Tadmor needs to memorize that equality is a fundamental value in this country's judicial system. It is the soul and spirit of the legislative regime, and in the essence and character of the state.
825. The equality principle is based on principles that Tadmor seems not to be well acquainted with, of justice and fairness, and it is a central component in the social agreements on which society is based.
Tadmor's Behavior, a Blow to the Equality Principle.
826. The principle of equality which Tadmor harmed, and that as a consequence Pikanti asks for some of her remedies, is anchored in a number of normative systems. First, it is pertaining to Jewish Law "the customary rule, Israeli version".
827. This principle is projected into the objective essence of any legislation, and is a criterion to its commentary. Second, it is anchored in the legislated Israeli Law. Beginning with the Declaration of Independence which states that Israel will treat her citizens equally whatever religion, gender or race, all the way to legislations which crystallize this equality in special relationships, and it reaches its pinnacle with the Basic Law: Human dignity and liberty, which anchored equality as a constitutional right above legislation in defining man's dignity.
828. The equality principle requires that a case of a distinctive legislation, Tadmor's version, will be justified according to the case and its essence. Thus, discrimination – which is the opposite of equality and thus is a distinctive legislation with no justification – exists in cases in which different rulings for different people are based on reasons that do not justify a distinction in a free and democratic society.
829. A given law creates discrimination when two people, different from one another, are treated differently by the law, while the factual difference between them does not justify a different treatment under the circumstances. Discrimination is then based on arbitrariness, injustice, and lack of probability, and all these developed in the Nestle-Osem and Tadmor case into extreme injustice.
830. In Israel the criteria for honoring the rights should be driven, with due changes, from section 8 to the Basic Law: Human dignity and liberty:
"There shall be no violation of rights under this Basic Law except by law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent greater than is required".
831. This restricting paragraph pertains only to authorities based on laws which were accepted after the legislation of the Basic Law, however it was already determined in the supreme court 4541/94, Alice Miller versus the Minister of Defense, 714 49 94 4, that it is fit, by way of conclusion, to implement its principles of the regime's authority's obligation, under section 11 to the Basic Law, which pertains also to authority anchored in laws preceding the Basic Law. Pikanti infers the implementation of the Basic Laws on the cartel case.
832. This has two reasons: first, it is fit that the defense of basic rights in Israel will be done with similar criteria, whether the legislative norm examined is a law or some other legislative norm. Second, the arrangement in the restriction legislation – which differentiates between the purpose of harming the right and the amount of harm – basically befits the entirety of legislative norms and not laws only.
833. Referring to matching the criteria of the restriction legislation to the validity of legislative norms that are not rules, (like Tadmor's attitude towards Pikanti which is a legislative norm that is not a law), the Vice President of the Supreme Court said: 3 9 where a discriminating collective agreement was debated), on page 760:
"Harming equality as by law can occur if it matches the values of the State of Israel, if it is enacted for a proper purpose and if the harm to equality does not exceed the required extent".
834. The bases of the restriction legislation are similar to the criteria that the legislation crystallized in reference to the damage of the human basic right by an administrative authority. The first base, which reflects the principle of lawfulness, rules that the harm must be to the law or according to a law under its explicit authorization.
835. In this matter, in legislation crystallized prior to the Basic Law legislation, it was determined: A person's basic right is not restricted without clear consent of the primary legislator. See, for example: Judge Berensohn's words in High Court of Justice 200/57, Bernstein versus the Beit Shemesh Local Council , page 268; Judge Shamgar in High Court of Justice 337/81, Mitrani and others versus the Minister of Transport , page 359.
836. In our case, Pikanti was badly harmed and her basic rights were restricted, like the right of occupation, the right of creation, the right of competition, and the right of expression, by the restraint trade controller, in contrast with the Basic Law: Human Dignity and Liberty, and that done with no explicit legislative permit, while harming equality and basic values the administrative legislation is obliged, including rules of fairness and transparency.
The Value of Free Competition: the Legal Basis.
837. The purpose of the trade restraint law, against which Nestle-Osem, Tnuva and the others acted, is a way to assure free economic activity (compare High Court of Justice 47/83 Tour Avir (Israel) Ltd. versus the chief manager of the restraint trade council. 84 39 1 (178, 169).
838. The purpose of these laws is to protect the public from economic distortions that originate in too much centralization in certain markets.
839. At the base of the law lays competition, which is designed to effectively distribute resources and enhance efficiency. (Compare Rd. Ed 3 (R. Wish, Competition Law, 3991, 21-61), and (Th. Ed4 Common Market law of .3991 33 Bellamy & Child competition), and compare: CP. 2768/90 Petrolgas, Israeli Gas Company (1969) Ltd. versus The State of Israel, 84 (604 3 599-603)
840. The words of Judge Levin are relevant to this matter, in High Court of Justice 588/84, K.S.R. Asbestos Commerce Ltd. versus The chief manager of the restraint trade council, 84 4 1 (29, 37-38):
"A healthy and free competition among manufactures assures the consumers the best quality product for the most reasonable price, which best reflects its demand. Also, competition is an incentive to efficiency, development and innovativeness, which will decrease manufacturing costs and decrease product quality".
841. In the case before us, the companies with the Pikanti trademark succeeded in manufacturing a popular, peanut snack of high quality, more so than Nestle-Osem's Bamba. The great demand to Pikanti's product threatened to collapse Nestle-Osem, and she acted against the law and against public regulations, as competition is an explicit interest of the public (See High Court Justice 344/89 H.S.H. International Commerce Ltd. versus the Minister of Industry and Commerce 814 44 1 (456,470).
842. Free competition is a foundation block in any democratic regime system, being an outstanding sign of personal freedom to realize his autonomy.
843. Realizing free competition and guarding it, serves to decentralize the social decision making centers, and prevents an over- centralized power by the government or private monopolistic bodies.
844. Some people considered guarding free competition a mechanism for democratic social decision making of the economy, guarding the consumer's power to decide between economic alternatives presented to him; in fact, the power to influence and make decisions on general economic issues as well. (See: K.J. Arrow, Social Choice and individual values, {1-2}).
845. The protection of free competition, which Nestle-Osem fought, is also in the base of the protection of other basic rights. Thus, for example, freedom of competition should not be detached from freedom of occupation (See: High Court of Justice Shahaf Airways Ltd. versus the Minister of Transport (not publicized yet). Hence, constitutional values as well defend Pikanti's viewpoint.
846. Moreover, the existence of a monopoly or the lack of equal right of occupation, harms the freedom of occupation. (See: M. Goldenberg "Freedom of Occupation: From a Right to a Basic Law", The Advocate, 41(1977) 291, 304-5; High court of Justice 726/94 Klal Insurance company versus the Minister off Finance 818 48 5 (441, 471). Thus, a situation where a specific market is controlled by a sole manufacturer can at times prevent the capacity of another to enter the gates of that market.
847. The Cartel Survivor believes that free competition and its protection are there to protect the consumer as well. The restraint trade laws are the "Magna Charta" of the consumer's rights and to free competition (See: U.S. 504, United States Versus Topco Associates Inc. 695, 016); therefore she stands pat to realize the justice with consumerism criminals.
848. Presenting the legal and constitutional rights which definitely defend her case, Pikanti wishes to indicate also the suggested Law of unfair competition, the spirit of which may assist our case. Section 6 of the suggested law determines as follows:
A proprietor will not prevent and not make it difficult, in an unfair way, for consumers, workers or agents, to approach the business, the asset, or the service of another proprietor".
849. The scope of civil wrongs spread out over a large variety of instances, and an unfair interference can be done directly or indirectly.
850. The classic example of a direct interference is a boycott of proprietors on other proprietors.
851. The boycott can be considered unfit behavior and at times will also be considered a cartel which is prohibited by the restraint trade laws.
852. A boycott is an organization or a conspiracy to cause others to stop or postpone their dealings with another worker because of his refusal to accept a demand presented to him.
853. The boycott, like the one that was imposed on Pikanti, is expressed in a systematic refusal to deal with another, or in putting pressure and systematic temptations on third parties not to work with the other.
854. It is customary to distinguish between a primary boycott, like the refusal of manufactures to provide a particular product to a specific distributor, and a secondary boycott, such as the refusal of a proprietor to purchase a product or service from a supplier, as long as the supplier keeps supplying also to the competitor who was boycotted.
Pikanti's Free Occupation and Free Competition Defense.
855. The food cartel acts are even more severe when we examine them in light of the Basic Law: Human Dignity and Liberty, which affixes the legal rights of property. This right is affixed in section 3 to the Basic Law: Human Dignity and Liberty, which states:
"There shall be no violation of a person's property".
856. This awards property a legal status. This is an important right and it protects Pikanti when she comes to demand damages' costs from the cartel members, and has a great meaning in the Israeli and advanced world's legal systems:
"The right of property is the foundation stone of the liberal regime. In a liberal ideology it took a central place, as a guarantee of the existence of other rights".
(Lahav, "The Might and the Position: The Supreme Court after Its First Decade". Legal Studies, 1989, 498, 479).
857. Under the circumstances here, it seems that on the legal level lays the basic right to protect property. Property is any interest of an economic value. This right is so wide that:
"The property in the Basic Law spreads also over to rights that are not property rights in the classic meaning".
(Judge Heshin in CF. 7112/93 Chendler V. Sara (not publicized yet).
858. Property ensures the individual and the corporation economic freedom. It enables sharing among people. It enables them to activate the autonomy of their private will.
859. Hence the link between protecting property and protecting human dignity as Pikanti ties together (See Rawls, Political Liberalism, Supra, 892).
860. The following words by President (at the time) Shamgar in CPL. 6821/93 United Hamizrahi Bank V. Migdal – cooperative farm,, 850, 49 397:
"To determine the scope of the right of property is an important duty of the judiciary. In realizing this duty, it is fit to turn to comparative justice".
861. Turning to the comparative justice teaches that in Germany the right of property has a primary status. It is considered a central right (See: D.P. Currie 1994 The Constitution of the Republic of Germany).
862. In France, the constitutional right of property is anchored in the declaration of human and civilian rights of 1789 (section 17). The legal rhetoric in France awards this right a big social value (See: J. Bell 1992, French Constitutional Law).
863. In term adapted from sports, the restraint trade laws are to define the court's boundaries, while fair competition rules define the game rules.
864. Te restraint trade laws are designated to preserve free competition and prevent its limitation by agreements between competitors.
865. The rules of fair competition, which Pikanti cherishes, are designated to preserve fairness in competition, and eventually these laws can prevent the narrowing down of the competition by destroying or weakening of the competitor using unacceptable means.
866. In the U.S.A., therefore, the issue of fair competition is part of the larger issue of cartels and monopolies. Nonetheless, it was determined that lack of actual harm of the competition does not turn the act into a fair one and reasonable evidence is sufficient for the claimant to be harmed.
867. In light of the ramifications of fair competition rules on competition and free occupation, they need to be examined with other basic principles of our justice in the background, such as freedom of occupation and competition.
868. The accepted stance today is that the Basic Law: The right of Occupation is incepted in civic law. It should be considered as a source of commentary inspiration to any legislation.
869. Pikanti considers the right of property to be one expression of human liberty. The character of protecting property, as an act of ensuring human freedom, is such that it integrates this right with the right of human dignity, as a leading principle in our thinking in general and in the Basic Law in particular: freedom of action in the area of property ensures the right of self determination, and avoids turning the individual into a mere object (Muench Kunig, Grundgesetz, Supra, 428).
870. Pikanti thinks that the right of property comes to avoid the violation of her rights and their narrowing down.
871. It should be given a meaning of effective protection. As a legal order it should be interpreted in a wide and general manner.
872. Therefore, Pikanti thinks that the term "property" here is relevant to the issue under discussion, both of In Rem right and In Personam right.
873. In the sense of avoiding the individual's property right violation, it does not make any difference if it is violated in real estate or in proper rights, if a right in rem is violated, or if the right of a person to only one creditor is violated; as Judge Heshin indicated in CPL. 7112/93 Dodler & Others V. S. Joseph & Others .
874. The "property" in the Basic Law spreads out also to rights that are not property rights in the classic sense, such as a market segment that was stolen as the result of the suppliers boycott as in the Nestle-Osem against Pikanti case (See Prof. Y. Wiesman's instructive research "Constitutional Protection of Property", The Advocate, 42, 1995, 267, 258).
875. The emphasis is, as mentioned, on the purpose, and its essence is avoiding the violation of what a person or a corporation owns; that is the harm the Basic Law tries to prevent. Therefore, the term "property" deviates, for the purpose of legal protection, from the definition customary on other property laws (See Prof. Weisman, Legal Studies, 1990 53).
876. Section 4 of the Basic Law: Freedom of Occupation, as revised in 1994, determines that:
"There shall be no violation of freedom of occupation except by law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of expressed authorization in such law".
877. Therefore, when the court explains the term fairness, it will have to weigh the competing values of fairness on one hand and freedom of occupation on the other, according to the balance formula enacted in the Basic Law: Freedom of Occupation.
878. As the great philosopher, Thomas Hobbs said:
"A free man is one who…is not disturbed from doing what he wishes to do".
879. The scholar Isaiah Berlin wrote about the positive meaning of this term in his essay "Two Terms of Liberty":
"The positive meaning of the word "Liberty" arises from the individual's wish to be his own master. I ask that my life and my decisions will depend on me, not on any external powers. I ask to be the tool of my willing actions, not those of the other. I wish to be a subject, not an object; to be activated by considerations, by conscious purpose, my own, and not by factors which allegedly influence me from outside".
(I. Berlin: Four essays on Liberty, 1987 182).
880. Pikanti indeed thinks that there is a tight link between the right of liberty, and as a result the autonomy of will, and human dignity.
881. President Barak referred to it in his book: Justice Interpretation, volume c, Legislative Interpretation (Nevo, 1994) 426:
"A key component of human dignity is the free will of the individual. Human dignity is expressed in the freedom of choice the individual has, and in his power to develop his personality and take his fate in his own hands".
882. In this case the cartel members treated Pikanti as if she had no will and no rights, and thus they dared not to respect her natural autonomy, and to determine her fate, as Nestle-Osem and her cartel partners saw fit.
Unlawful Enrichment by the Members of the Cartel
883. The facts detailed in this claim give rise to a cause of action under Section 1 of the Unlawful Enrichment Law of 1979, which states a follows:
"(a) anyone who unlawfully received property, service, or other benefits (hereinafter the "Gainer") from another person (hereinafter: the "Grantor"), must return the gain to the grantor, and if actual restoration is impossible – pay him the worth of the gain.
(b) Sub-section (a) shall be valid whether the gain was received from an act of the gainer, of the Grantor or any other way".
884. Legislation already divided this section into its three elements: "Enrichment", "at the expense of", and "unlawful" (civ.pl. 760/77 Ben Ami & Others V. Bank Leumi LeIsrael Ltd. , page 577).
885. According to the set of facts Pikanti brings forth, it is obvious that Nestle-Osem and the cartel members were "enriched", among other thing, by selling an excess amount of products and received an "asset" or "benefit" as in Section 1 of the Law.
886. Is the second element, that the riches "came" to Nestle-Osem and the cartel members from Pikanti, true as well? The enrichment came partly directly from Pikanti, and in part from the market Pikanti developed with a large investment, and from the customers that were expected to buy Pikanti's products.
887. In a different case, of an importer who exploited a market that was developed by his competitors, the court said:
"In his sales, the appealer enjoyed the market developed by the defendants for the products under discussion. In this sense the source of benefit lays with the defendants and it can be said that it 'came' to him from them".
(CPL. 371/89 N. & Y. Eliahu Ltd. & others (hereinafter: The Liebovitch case , page 321, opposite footnote e).
888. In other words, enrichment that "came to the gainer" by customers of the "Grantor" in a market developed by him, will be considered as if it "came" to the gainer directly from the Grantor.
889. In a fundamental verdict, CPL 280/73 Plimefort Ltd. V. Ziva-Giegi Ltd. (formerly Ziva Ltd.) & others, the right of restoration was recognized also from whoever exploited the market in a time when the other side was unable to market their products, because of an injunction, which later turned out to be baseless.
890. Here is what happened: Two litigants were the only suppliers of a chemical pest control preparation. The defendant received an injunction against the appealer on the basis of patent breach. Later it turned out that the patent was invalid. The appealer claimed that the defendant was unlawfully enriched while the injunction was valid, because the appealer's customers had to buy from the defendant. The court accepted the appealer's right to receive the defendant's profits over that period, for the cause of becoming unlawfully enriched
891. Here again was enacted the principle, that enrichment by the customers, like enrichment by whoever operated in the same market and his operation was prevented, is unlawful.
892. And back to our case, if Nestle-Osem was enriched by Pikanti's customers, as pleaded, then it can be said that enrichment "came" to Nestle-Osem from Pikanti unlawfully.
893. And now to the third element, and for our matter – the primary one: Was Nestle-Osem enriched "unlawfully?"
894. To put up the element "unlawfully", it is enough, by legislation, to show that the enrichment was unjustified.
895. The legislature uses the term "unjustified" for exemption from restoration under Section 2 of the unlawful enrichment law, and not for enrichment. According to this section the court may exempt the party who was unlawfully enriched from restoration under circumstances that "make the restoration unjustified".
896. And indeed President Barak calls attention to this difference and leaves the two terms as needing consideration:
"…I ask to leave in consideration the proper relation between the regulation in Section 1 of the unlawful enrichment law (hereinafter: The law) and the exemption given in Section 2 of the law. It is noted, that the exemption is based on the restoration being unjustified, while the right of restoration is based on receiving the gain by the gainer that is unjustified. The difference is very important when we determine the border line between the right and the exemption. This is why approaching comparative justice should be done cautiously. For example, the American restatement defines the right of the Grantor in terms of unjustified enrichment, while the law defines the right of the grantor in terms of unlawful enrichment. The two are not one and the same".
(CPL 588/87 A. Cohen & Others V. N. Shemesh and contra appeal p/ 333).
897. However, we find in the legislation that the court tended to consider unjustified becoming rich as illegal becoming rich. In Judge Barak's words:
"The key question usually is, if a 'payment' is lawful or not. The rationale behind this claim is the sense of conscience and honesty…demands restoration".
(CPL. 4 page 577)
898. And from the Honorable Judge Matza:
"The regular test for unlawful enrichment – in the sense of Section 1 (a) to the law…is in it being unjustified by sense of justice and honesty".
(CPL. 3180/92 347/90 Sodagal Ltd. & others V. Spilman; Sodapop Ltd. V. Spilman & others, pages 478-477).
899. And see D. Friedman, The Laws of Becoming Rich and not in Justice (Bursi – H. S. Pertz, second addition 1982, page 51):
"The legislation does not provide us with a closed list of lawful rights. The question if the defendant received unlawful benefits will be often answered by virtue of the test, had the enrichment been justified. If it was unjustified – it should not be considered a lawful enrichment".
900. It should also be noted that today there in no law in Israel that prohibits unfair competition. (See pl. 40//87 Antoine Shukha & Sons Ltd. V. Benny George Shukha Ltd , page 616; Beer Sheva 894/85 (CPL.490/85) Jericho Salts Ltd & Others V. The Dead Sea Enterprise Ltd & Others , page 528, and in the Sodagal case , page 477. However, there is a bill for a law to prohibit unfair competition, 1996, which demands recognizing unfair competition as a damages civil wrong.
901. This means that that unfair competition is recognized as unjust, and that the legal stance should be remedied by giving the harmed party a cause for damages civil wrong.
902. But for the above mentioned law there is no need for damages civil wrong. Suffice that enrichment is unjustified.
903. The competition damaged, as pleaded, Pikanti's expectations that her business ties with her customers would not be harmed by illegal competition.
904. Is the mere damage to Pikanti's expectations an "illegal act"? President Shamgar in the case of Liebovitch, on page 329, determined:
"In my opinion, then, the mere harm of the expectation of business-tie does not, as such, turn the enrichment unjust. However, in some cases, the enrichment of the competitor, done at the expense of an exclusive distributor of business-tie with his customers, will be unjustified. To consider this enrichment as unjustified it is not enough to have only the competition which harms the expectation. The enrichment will be considered unjustified when an additional element exists".
905. And the President continues in detail, ibid. page 330:
"The additional element that turns the competitor's enrichment unjustified, nay be one of two main kinds: Wrong and unaccepted behavior of the competitor, including lack of sincerity in the competitor's behavior. Other circumstances that turn the enrichment unjustified. The second element of the first kind focuses on the competitor's behavior. Free competition does not mean wild competition. It does not mean that the competitor, in the name of competition and in the name of freedom of occupation, can do whatever he sees fit. Wrong and unfair behavior on his part may be the additional element that will cause his enrichment to be considered unjustified. This is the case, for example, where the competitor commits, while competing, a damages civil wrong…Other cases when it turns out that the competitor's behavior is unfair, may grow to a cause of enrichment to the harmed; so, for example, heavy weight can lay in the competitor discovering, in a different manner than described above, a behavior that is insincere".
906. In our case as well, the damage to Pikanti's expectation, Nestle-Osem and the cartel members "unaccepted and unfair behavior" was added. According to the rules enacted in the above Liebovitch case, it is enough to put up a cause of unlawful enrichment.
906. Many of Pikanti's consumers came from weak walks of life, including many orthodox and ultra-orthodox Jews, who were "vulnerable consumers", and who were offered high quality products for low prices.
Pikanti's Legal Claims are Also Anchored in Jewish Law.
908. The unlawful enrichment law with which we are dealing here relies also on Jewish Law. This here is what appears in the foreword to the unlawful enrichment law, 1978:
"The offered law is intended to bring to completion this wide legislation (on contracts and properties) with some orders in a field of law which is called in Hebrew Law: 'he who goes to his friend's property'; trades with his friend's cow'; or 'the one gains and the other lacks not'…The offered law adapts the Hebrew Law in a number of issues: It bestows restoration to the one who improves his friend's asset; it adopts the principle of 'The one gains and the other lacks not" as a consideration to exempt the gainer from restitution, and it compensates the one rescuing his friend's asset for any losses, with the intention of encouraging such rescue".
909. In the Minister of Justice's speech in the Knesset as in other ministers' words, the link between this law and Hebrew Law rules is repeated:
"It can be said that the basic idea of the bill is the rule that lays at the basis of honesty in Hebrew Law – 'And thou shall do honest and good' between one person and his friend. The bill discusses issues that engaged the law scholars for generations: On one hand, 'the one gains and the other lacks not' and on the other – 'how does one trade with his friend's cow'? On one hand, meticulously enforcing the law; On the other, in some cases, directions to act beyond the letter of the law, or as we would say today – under justice and honesty".
(The Minister of Justice in first announcement, K. N. 83 1978, page 3917)
910. And also:
"We are proud that this law is by and large based on the principles and rules of the Hebrew Law. It is a fact that we used an original Hebrew name".
The Minister of Justice,, K.N. 84, 1979, 160)
Nestle-Osem's The right of Restoration from Pikanti is Anchored in the Continental Law
911. The test for the right of restoration is influenced by the factual circumstances of the case. Three main groups were distinguished for cases, with very different starting points.
912. The first group, is called Leistungskondiktion in German, a term based on the Roman tradition and translates into: Restoration in case of a debt.
913. This group deals with cases when a gain was transferred from the grantor to the gainer to redeem a debt. If, it turns out, that for any reason, there was no debt, or that it was canceled, or ended, the grantor is obliged to restore as the legal reason at the base of the gain does no longer exist, or has never existed.
914. The second group, called Ingriffskoniktion in German (Translated into: restoration in case of involvement), deals with a gain the gainer received for invading into the grantor's area of rights.
915. The third group, Verwendungskondiktion in German (translated into: restoration in case of expenditure), deals with cases when the gainer ran into expenditures for the grantor, because he wanted to help him or for any other reason.
916. It is obvious that the test for the right of restoration is essentially different in each of the three groups. In the first, restoration stems from an act by the grantor, and the context is usually contractual. In the second, the restoration stems from an act by the gainer, and the wide context is of damages and assets.
917. In the third group, the gain again results from an act by the grantor, but not under a contractual relation.
918. A similar division of the kinds of claims within the enrichment framework is known also in the Anglo-American literature, only there it is less pragmatic. Compare the division by D. Friedman, Enrichment Laws (Second edition 1998), and Judge Shlomo Levin words in the Adres case on page 235 .
919. In the restoration cases that are based on the failure of the deal, such as deceit by various suppliers who took money from Pikanti but did not dismantle goods, the idea is that with the cancellation of the basis for restoration, to keep holding it is unjustified, as it lacks a lawful basis.
920. In other words, here the meaning of "unlawful" is: unjustified for a lack of lawful basis on which the grantor relied.
921. On the other hand, in case of gain for invading into the other's area of rights, as Nestle-Osem took hold of Pikanti customers, the basis for restoration in an unlawful act.
922. Thus the mentioned saying is interpreted as follows: " unlawfully". (See CPL. 371/89 Liebovitch, V. A. & Y. Eliyahu Ltd & Others, 94, 44 2 (309), by President Shamgar).
923. Part of the case in front of us clearly belongs to the second group. The question is, if in the defendants acts are an invasion into the claimants' area of rights, and thus they need to restore their gains? Or more precisely: under the circumstances, the basic question is if the claimants have an area of interests the invasion of which requires restoration.
924. The essence of the question here is utterly different from the restoration of the first kind. There, the only question is, if the deal at the base of the gain, did fail?
925. If the answer is positive, as in the Pikanti case, the right of restoration is fundamentally recognized, and what remains to be discussed is the manner of restoration and its extent.
Nestle-Osem exploits Volowsky at her Command.
926. While preparing to carry out the cartel, Nestle-Osem exploited the well known and honorable attorney Eliezer Volowsky against the companies that later on, he was appointed to be their liquidator and special manager.
927. The scheme that the liquidator would serve Nestle-Osem interests as a temporary liquidator of the companies had been woven at Nestle-Osem a long time before the court's decision to appoint a liquidator, and before the liquidation issue was discussed.
928. Nestle-Osem's representative let Pikanti representative know the name of attorney Volowsky as a possible liquidator even when the cartel was on, and before the issue of liquidation was on the agenda.
929. Attorney Meir Shriki of Nestle-Osem, who at that time probably did not himself understand the extent of the cartel and the long range significance of his words, privately talked with Pikanti's representative at the height of the cartel, and before the liquidation request.
930. Attorney Shriki said, that the liquidation request had already been prepared by Nestle-Osem and was put aside, and that Nestle-Osem had intended to request the appointment of Attorney Volowsky to be the liquidator, but changed her mind.
931. Attorney Shriki encouraged various companies to submit claims against Pikanti and equipped them with legal material.
932. At that time, the peak of the 'food cartel', all Nestle-Osem managers' acts were intended only for the destruction of the companies, with the "Makarena" snack exceeding "Bamba" sales, in the background.
933. As a result, the exploitation of Attorney Volowsky by Nestle-Osem is included in Nestle-Osem's acts against the companies at that time.
934. The ties between Nestle-Osem and attorney Volowsky were hidden from the honorable court at the time of appointing a temporary liquidator, and even at the time of the decision to turn the liquidator into a special manager. Attorney Volowsky has long time ties with Nestle-Osem and this is not the first time he is asked to provide services for Nestle-Osem.
935. In the past, Attorney Volowsky was engaged in liquidation the "Rachel Blessing" company for Nestle-Osem.
936. He also was engaged in the liquidation of "N.H.M." company for Nestle-Osem.
937. However, the specific tie between Nestle-Osem and Attorney Volowsky in the case in front of us was born at the time of the cartel, when Attorney Volowsky, a well known and experienced attorney was exploited by Nestle-Osem, and his job de facto as an extension of Nestle-Osem's long arm, was the destruction of the companies, a complementary destruction, after Nestle-Osem's plot to destroy their business and their image - succeeded.
938. Attorney Volowsky served Nestle-Osem in a long line of decisions and omissions, as a temporary liquidator, and special manager, while all this time he was exploited by Nestle-Osem to severely damage the crusader companies, the companies that marketed Pikanti's products, and while exploiting him to damage the creditors who were not members of the cartel, including Pikanti.
Attorney Volowsky Naively Served Nestle-Osem's Goals.
939. Pikanti is aware of the allegedly severe claim she presents in this claim, yet a general balance of interests leads to the conclusion that what is severe here are the acts, and what is written here only reflects the serious acts, and they are not severe by themselves.
940. Pikanti held the opinion, and does even more so now, that in light of the facts presented here, of all registered corporations in Israel, Nestle-Osem is the last corporation to have the moral right to encourage any appointment of a liquidator to companies which she crushed.
941. Reason gives, that any liquidator's name, agreed by Nestle-Osem, should have immediately been disqualified, had it even been suggested by Pikanti, because the appointment of such a temporary liquidator was born in sin, it was encouraged by a sinner, and hence that his life would be sinful and he would cause others to sin.
942. Over the cartel period, Nestle-Osem sinned in cheating intentionally, in malice, in violence, in slander, in evil inclination, in fraudulence and lies, in falsehood, in interest, in discussion, in hiding and arrogance, in hatred, in gossip, in stubbornness, in rebelliousness, in impertinence, in negotiations, in defamation and more; whether overt or covert, and the guilty does not evoke the right of forgiveness or absolution.
943. A study of the minutes of the honorable court of 10.28.97 reveals that Pikanti's stance in the temporary liquidator issue was expressed already then. Fearing that the temporary liquidator may be exploited by Nestle-Osem, Pikanti's attorney Avihai Vardi claimed on her behalf, that "the attorney that will be appointed will have to investigate these organizations yet will be incapable of doing so", and Attorney Alon Glart added:" I request a neutral temporary liquidator who will examine the claims of both sides".
944. The lack of innocence with which Nestle-Osem encouraged the appointment of a temporary liquidator, increased along the liquidator's work. The honorable court decided to appoint as liquidator Attorney Volowsky, who was appointed at the request of Attorney Shriki of Nestle-Osem.
945. Despite the court minutes, the name of the liquidator was not announced on that occasion but later. Had Pikanti known that of all names for the job, the name attorney Shriki suggested was to be elected, she would object unequivocally. Pikanti would have pleaded against his appointment. The honorable court referred to the issue during the discussion. When Attorney Volowsky's name was suggested, and then accountant Shlomo Ness's, the court indicated that offering a name by either side, immediately disqualifies him by the other side, and added that a suitable candidate will be found amongst 14,000 Attorneys.
946. To Pikanti's surprise, she discovered that the name of Attorney Volowsky is often mentioned by Attorney Shriki, so for example in the N.H.M. Marketing and Commerce Ltd. file, and in actions 2745/97, and in liquidation file 412/97.
947. A long time before the appointment of the liquidator, when the cartel acts have not subsided yet, in a meeting between Attorney Shriki and Pikanti's representative, Attorney Shriki told Pikanti's representative he was working on the liquidation request, and on the request to appoint attorney Volowsky to be the liquidator, and that attorney Volowsky agreed. This announcement of attorney Shriki to Attorney Alon Glart is one of the clear cut evidence that Nestle-Osem built its scheme on the future services of Attorney Volowsky.
948. The Nestle-Osem people acted for the appointment of Attorney Volowsky as the temporary liquidator, to ensure that the liquidator is a doll that can be used, because, among other things, they wanted to make sure that in the days ahead there will be no neutral liquidator who will settle the bill with them, for their wild acts during the realization of the "food cartel" plan.
949. Had there been appointed as temporary liquidator a different lawyer, he would immediately find out that Nestle-Osem and her assistants must restore to the companies cashiers millions of NS. By acting to appoint attorney Volowsky to the job, Nestle-Osem wanted, among other things, to avoid such a situation.
950. Just as an intelligent businessman finds out the relevant tax regulations before making any significant decisions so as not to later regret the result of his actions, so does the cartel, which causes the destruction of companies, find out up front who would be appointed liquidator in days to come. He will be appointed also to investigate the circumstances for the companies collapse.
951. The issue of "the chicken has not been caught yet but its feathers are already being pulled out" (that is, the trial to ensure in advance the appointment of a specific liquidator a long time before the liquidation decision was made) had under the circumstances a direct, short term projection: Another liquidator, who would investigate the circumstances of the companies' collapse, would easily reach down to the roots of the collapse. He would examine the outgoing money at the time of collapse. He would see to it the money was restored, the money the companies of the food cartel and Nestle-Osem in first place took unlawfully, and he would try to restore as best he could the economic and the moral justice of the cashier restored, using his the authority, to the dying companies.
952. Moreover, instead of restoring tens of millions of NS that were unjustifiably paid to Nestle-Osem and other members of the cartel to the dying companies, Nestle-Osem saw to it that part of the liquidator's time was devoted to miscellaneous and trifles, and so rob both the court and Pikanti of their time.
Hiding the Tie Between the Liquidator and Nestle-Osem.
953. The ties of the liquidator with attorney Shriki , Nestle-Osem's representative, and his involvement, no one revealed in due time at any stage of the deliberations.
954. Moreover, Nestle-Osem's profit from the encouragement of the wrongful appointment of the liquidator, are divided into two sorts: A short term profit as described, and a long term profit as follows:
955. The real purpose of appointing a "home" liquidator was not only enriching Nestle-Osem, who benefits from the appointment of a liquidator whose investigation does not include any negative data about Nestle-Osem, who according to his report did not swallow huge robbed sums. The long term purpose was to appoint a liquidator who was nicknamed a "drying-liquidator" by the inner lexicon of the cartel people.
956. Nestle-Osem, cynically using the liquidator, saw to it that the encumbrance, the omissions, the tiring procedures and the nagging attention to trifle things became a tactic that was called the "drying up act". With every passing day, the chances of survival of the companies decreased. The reputation, which was a primary asset, lost its value with each passing day, with the companies' branches locked up.
957. Instead of trying to revive the companies, the liquidator acted as their undertaker. Nestle-Osem used the liquidator and saw to it that nothing was done and the companies will be left to bleed to death. Nestle-Osem wished to give them a donkey's burial, and get rid of the competitors who wanted to have their share in what the restraint trade jargon is called "market territory" which she thought she inherited from ancient generations and thus it is her unique property, but that is not the case.
958. The appointment of the liquidator did not answer a very important criterion, that the liquidator appointed will be completely neutral and have no ties with any of the creditors or their representatives. He receives the right to liquidate the companies as a guarantee from the public and the creditors by means of the honorable court.
959. Moreover, Pikanti is of the opinion that in light of advanced interpretation of modern companies' laws and their purpose, in light of the development in the administrative law concepts, in light of the development of various ethical aspects of the law, and in light of the practical interpretation today in our law system – the duty of the temporary liquidator and special manager is to some extent a judicial duty.
960. In cases like this one, the temporary liquidator/special manager rules, by action or by omission, the fate of great sums and that of a large number of debtors. He is appointed by authority, and is basically a product of the administration. He is not a private businessman who may do with the public asset that was trusted upon him whatever his private managers see fit.
961. In face of this approach, that is ethically, morally, essentially, and procedurally strict, the failings in the temporary liquidator/manager's functioning, whose duty is somewhat judicial, are much more severe.
962. As rises from the facts, Attorney Volowsky is, as far as Nestle-Osem is concerned, "a whale you created to play with" (Jewish Yom Kippur prayer). The purpose of his creation is to serve Nestle-Osem's business goals. With unconceivable and unsolvable negation of interests in the background, and the fact that Attorney Volowskey's appointment did not justify its purpose in the background, and also the natural essence of such an appointment, born in sin and ending in shame, in light of all this, he should have returned to, dust and this is what actually happened.
963. Pikanti's serious fear that the liquidator will fail was realized immediately after his appointment, and it did turn out that "the tongue deviseth destruction; like a sharp razor, working deceitfully" (Psalms, 54).
964. In his first letter to attorney Vardi, less than 24 hours after his appointment, the temporary liquidator gave rise to a baseless, serious, and particularly worrying claim, that includes a baseless accusation as follows: "I was handed the negotiation procedure with the insurance company concerning the compensation due to the above mentioned fire, after the insurance company rejected her liability according to the above mentioned policy for the claim that the insured were the ones to set the fire."
965. The above mentioned was utterly baseless, most serious, and raising questions and concern as to who is behind it. The above mentioned information raises concern as to when the information was handed to the liquidator, who gave it, and did anyone bother to check the claim before putting it hastily in writing.
966. These vain accusations threatened to sink the little that remained of the liquidated companies, and although it was just the little that was left – the liquidator, who was supposed to guard the assets under his responsibility, to guard faithfully, intentionally, willingly and strictly what was deposited in his hands, failed to do so because Nestle-Osem breathed down his neck.
Damages at the Rishon LeZion Site, a Result of Nestle-Osem Exploiting the Liquidator.
967. On 9.2.97 a fire broke out in the building in Rishon LeZion where The Survivor Ltd., Investment Crusader Ltd. and others managed their business. As specified in the first report of the liquidator to the honorable court, under section 21: "The fire destroyed some of the offices' contents, and also this part of the building was damaged, but the firemen extinguished the fire with no harm done to the restaurants there. The smoke…damaged the food. Since 9.2.97 no business activity takes place in the restaurants and the supermarket mentioned above, their equipment, including freezing rooms and kitchens, stayed in place."
968. However, lo and behold, under section 3 in his request for giving orders, the liquidator claimed that "in the above mentioned fire heavy damage was caused to the building and its content – equipment, furniture and stock of the supermarket, the two restaurants and the offices".
969. A study of the appraisers' report too does not reveal that the equipment and furniture of the restaurants was damaged. If so, from where did the liquidator draw the claim that the equipment and furniture of the supermarket and the restaurants were damaged, all the more so heavily damaged?
970. The fire department's report of 9.8.97 too (attached by the liquidator to his first report) determines firmly that "as to the restaurant – it was not damaged by the fire (page 2, section d)!!! And as to the supermarket: "The heavy smoke and heat in the place damaged the food and parts of the building". Not a word about damage to the equipment and furniture!!!
971. As raise from the above, the liquidator's reports contradict one another. A heap of senseless words, or perhaps Nestle-Osem is behind all this.
972. These claims are baseless and contradict the appraisers' report, although the appraisers' report had been submitted before the liquidator prepared his.
973. It is possible that the whole purpose of the liquidator's prattle was to feed him with lies by Nestle-Osem, as, the above gives rise to, and as was due under the circumstance, that:
974. The liquidator did not insure the building, the equipment, and the stock that were left in the site.
975. He did not place a guard, and as a result the place was looted, damaged and the equipment stolen.
976. Even though the property was a burdensome one, the liquidator held it in his hands a long time and as a result the rent went up immensely, and for lack of money in the liquidation cashier, the owners acted against Mr. Badash in virtue of his personal guarantee.
977. As a special manager, the liquidator delayed the insurance money due for the fire.
978. The sum offered by the insurance company close to the fire date was ten times over the sum that was later paid. At that time, the compensation included the value of restoring the place and bringing it back to its original state. After the property was returned late and not restored, its value towards the insurance was much lower and negotiation was difficult.
979. The beginning of the delay was because of a false claim; as if the insurance company claims the Pikanti's manager is responsible for the fire (the liquidator's letter of 10.30.97).
980. Delaying the insurance payments caused, among other things, the following damages:
981. The deficit of the companies under temporary liquidation was immense because of the interest that accumulated since the insurance company was ready to pay.
982. Damage was done to the credit of the guarantors to the companies, like Pikanti, its owners, and the Cit Management Co. whose one million dollar guarantee was realized by The First International Bank. (The liquidator ignored this guarantee).
983. A lack of cash flow for the proper operation of Pikanti was created. Nestle-Osem saw to it when she exploited the temporary liquidator/manger so as to destroy Pikanti as well.
984. A lack of cash flow to many employees was created. The liquidator himself was aware of the fact that "hundreds of employees were left unclear about their future and their rights concerning wages and compensation". ((See the liquidator's report, section 14).
985. "Whoever does nothing is probably close to doing harm" (proverb), and indeed, had, under the circumstances, a different liquidator been appointed, with no ties with Nestle-Osem and with no control by Nestle-Osem, heavy damages could have been avoided with just a few simple acts, some goodwill and basic fairness.
Damages at the Hefer Valley Site, a Result of Nestle-Osem Exploiting the Liquidator.
986. The site was operated by one of the mentioned companies.
987. As specified in the liquidator's report, the supermarket of 1,200 square meters remained closed with the equipment inside. The possession has not yet been returned to its owners.
988. In the Hefer Valley site, the liquidator again repeated his above mentioned omissions, including not returning a burdensome asset for a long period of time, causing real decrease in the value of the equipment and reputation, while rent keeps rising and Nestle-Osem conducts over it all.
989. Eventually, the equipment in the Hefer Valley sit was sold to the owners of the place for a pittance, only to be able to cover some of the losses caused by Nestle-Osem's control over the liquidator and his exploitation.
990. Had the liquidator been detached from Nestle-Osem's control, he would act in time, the equipment would be sold for a good price, the rent would be covered and the rest would go to the liquidation cashier and used for the lawful purposes.
Damages at the Kiryat Gat Site, a Result of Nestle-Osem Exploiting the Liquidator.
991. Of some of the damages the liquidator, exploited by Nestle-Osem, caused in the Kiryat Gat site we can learn from Attorney Y. Bar-Hillel, the temporary receiver to the equipment and stock of some of the companies, in his first report and in response to civil proceedings 32573/99:
"In a telephone conversation the undersigned had on 2.1.99 with attorneys Eliezer and Ziv Volowsky, I was astonished to find out, that the temporary liquidator at that time, attorney Volowsky, has never had possession of the stock and equipment". Moreover, attorney E. Volowsky has never seen the stock and equipment and that the appraiser who prepared the report did so with the temporary liquidator (at that time), attorney E. Volowsky or anyone on his behalf, not present.
"On the other hand, attorney E. Volowsky found fit to "warn" the receiver that he should catch a container in Kiryat Gat and that according to Mr. Badash contains the book keeping of the companies under liquidation and that it is the receiver's duty to take care of. In a letter – attachment H – attorney E. Volowsky deals with the unimportant question- and today it is clear this is indeed an unimportant question – which of the companies was appointed a receiver…The undersigned thought the main thing is holding the equipment and its selling and all the rest is trifle – at least at that stage. It turns out that when "trifle" becomes "main", "main" is destroyed, diminished and disappears. How did the temporary liquidator forfeit such essential and important documents "needed, among other things, to check what the creditors deserve?" The undersigned went on to describe in detail the facts because the sorry result found on site is a consequence of omission and idleness which enabled the robbing or disappearance of the equipment, the stock, and the container".
993. attorney Bar Hillel goes on to accuse the Nestle-Osem controlled liquidator, that had he devoted the same efforts to the expensive equipment and to selling it, as he did to trifle matters, then attorney bar Hillel would not find destruction and neglect as he did on his visit on 9.4.99'
994. On top of it all, the liquidator did not investigate the preference of creditors. Had this investigation taken place, it would put into the companies account tens of millions of NS, which would be demanded from all cartel members, and then Social Security would not have to pay the employees.
995. The Cartel Survivor Ltd. was the one to ask for the appointment of a liquidator. In her various requests she claimed that over the last period before the request for a temporary liquidator, creditors Nestle-Osem, Nestle -Froumin and others were preferred in millions of NS. It was claimed and proved that the companies under liquidation reached this status as a result of the cartel acts, the senior members who were those creditors.
996. Pikanti thinks that the value of equality is so basic in our judicial system, and which appears in the declaration of Independence on one hand, and in the new Basic Laws on the other, shows that the acts of the temporary liquidator who was exploited by Nestle-Osem, were explicitly unlawful, as they discriminated certain creditors. According to the principle creditors' scale of the companies, all creditors are equal, except for the amount of the debt and the sort of subjugation. And yet, instead of placing Pikanti on top of the creditors' list, the temporary liquidator/manager preferred to place Nestle-Osem there, harming the equality principle.
997. The liquidator, being controlled by Nestle-Osem, claimed that as of 7.1.97 the above mentioned companies were insolvent. Even though the preferred creditors, who took part in the cartel, continued to receive tens of millions of NS after that date, he did not do anything to restore to their account the money that was paid to them as preferred creditors. The liquidator did not check the debts and obligations in Bank Leumi, only the obligo situation in the current accounts. As a result, he did not have a full picture.
998. Had the liquidator been detached from Nestle-Osem, he would act differently in that matter and he would have the power to decrease the damage of turning the loans into irregular credits.
999. Checking the situation in the bank would enable him to evaluate the whole of the circumstances differently. Without the obliged account check, baseless requests were submitted to the consequence being damage to reputation, no credit from the banks, account closing, guarantee redemption and more.
1000. The liquidator, whose birth was brought about by a genetic failure, did not investigate the reasons for the companies' collapse. Had he acted independently, without the exploitation by Nestle-Osem, he would examine the circumstances of the destruction; he would easily recognize the circumstances for the creation of the cartel, to the cutting off of trade ties between the cartel members and the companies under liquidation by order from the cartel chief, and the rest of the circumstances covering the occurrences.
1001. The liquidator did not examine or pay any attention to the mentioned circumstances, whether because of the original sin of his friendship with attorney Shriki, with whom he arranged his appointment already in July 97', four months before his appointment to attorney Shriki's request, then for the simple reason, that a temporary liquidator's duty is to collect money, return money that was given in the framework of creditors' preference, and bring to justice those who caused damages.
The Liquidator's Behavior is Irrational, Unless It Serves Nestle-Osem's Goals
1002. The issue of exploiting the liquidator for Nestle-Osem's goals is long and complex and sheds light on how an aggressive company cynically exploits a person.
1003. Holding back the companies' assets and "drying them up" is not a logical behavior of the "rational man" as known in economic theories. It is not rational unless it serves Nestle-Osem's goals of destruction and drying up in order to enlarge her "market territory". Nestle-Osem' using the liquidator, saw to it that the liquidator ignore the biggest creditor and ignore the claims, legal demands, and rights of that creditor – Pikanti.
1004. Moreover, she saw to it that the liquidator act against that creditor, harm her assets, her rights, her bank credit, her reputation, drag her to unlawful expenses, and much more. She also saw to it that he would increase the debts of the companies under liquidation and doing so he increased Pikati's debts being their guarantor.
1005. Pikanti is a creditor worth five times the credit sum of all creditors put together. This means that any digression from the straight and narrow would harm first and foremost Pikanti's pocket.
Pikanti and her Marketers Coercion.
1006. Using threats and pressure of all sorts, economic and other, Nestle-Osem forced coercion contracts on Pikanti and the companies marketing her products.
1007. This pattern of business criminality was rubbed on the rest of the cartel members, often of their free will, and sometimes they were forced into the cartel. In the words of the court in CPL 412/54, Tel Aviv Mayor V. Armon Aharonovitz 3 Ltd. , page 837:
"The boundaries of compulsion have never been defined…it all depends, of course, on the circumstances of each case".
1008. A right –instilled-coercion, where a truth option was deprived of the honest party to the contract; where one party "was forced" to enter a contract for "an immediate and duress necessity" accompanying coercion (or the threat of coercion), is granted to the forced: CPL 278/56 Supergas Distributing Gas Co. Ltd. V. Mizrahi , pages 403-408; CPL. 228/65 Israel Electricity Co. Ltd. V. lot in plot 7166 Ltd & others pages 265-267.
1009. In the meantime, the courts began to pay attention to the kinds of coercion born from business life: the economic duress and commercial compulsion. Indeed, the cancellation cause for coercion in modern justice seems to be mainly in operating economic duress of different kinds. See: S. Wilson, A Treatise on the Law of Contracts, (Rd. Ed. Vol.3, Rochester and San Francisco, 31, 1970, 446).
1010. The issue of economic duress was raised in CPL. Shaul Rahamim Ltd. V. Expomedia Ltd., and the court, by Judge Meltz did not hesitate to recognize it as within the boundaries of right-instilled-coercion. This is what Judge Meltz said, relying on Prof G. Shalev's words (there, , p. 100):
Section 17 to the law is wide enough to include a coercion that is economic in nature, or in other words, when the coercion "is present when a person enters a contract to free himself from an unlawful business-commercial duress operated on him".
(In the words of Prof. Shalev in her composition "Contract entering Deficiencies", an interpretation to the contract laws {The Institute of Legislation and Comparative Justice Research in honor of Harry Sacker, G. Tadesky editor, 1971,} 96-97. and see the reference in the American law mentioned there).
Also see and compare: D. Friedman and N. Cohen, Contracts, (Aviram Vol. B, 1993), 917-918 and onward; CPL. 126/89 Copel Tours Ltd. liquidator V. Dan Hotels Co. Ltd. , page 11. Coercion as defined by the section 17 of the law includes "economic coercion".
1011. As we are all always under economic duress and coercion, the obvious conclusion is that not every duress or coercion in the field of economy would result in the rights to cancel the contract.
1012. We deal only in duress or coercion that have a moral-social-economic deficiency, as in the Nestle-Osem case, a case proper and fair economic life cannot tolerate.
1013. In a free market anyone can use an economic advantage he has over others, and a contract originating from such a system is not forcefully entered into. However, in a free market there still are proper and accepted basic rules of behavior – "playing by the rules" – we call them and whoever breaches them will be punished for his deeds or omissions.
1014. Businessmen and people in commerce abide by those rules, and the courts will determine the boundaries from time to time, according to time and place. We deal here with the "business moral" in trade and commerce life, and any deviation from that business-moral, such as the food cartel, acquires the court's response.
1015. The British courts as well, followed the same route, ruling that the economic coercion should be "Unlawful" or "Illegitimate". See: R. Goff and G. Jones, The Law of Restitution, Th. ed. by G. Jones 4, London, 1993, 662-862)
1016. In CPL. 1569/93, Yossi Maya V. Penford (Israel) Ltd. 48 5 705 the tests for improper economic duress were examined and they are relevant to our case, as the unequivocally state that the plea should be accepted:
"An "improper economic duress" is an essential condition for a right-instilled-coercion, but it is not enough. The duress needs to be very mighty. The test of the duress might joins the test of the duress' quality, and only if the two tests are present will we recognize the duress as legal binding under section 17 to the contracts law. And what will be the duress might to be recognized as legal binding? The accepted test to the magnitude of the duress question is the answer to the whether the innocent side had a reasonable and practical alternative not to give in to the duress. Or in the restatement (above), if the threat leaves the victim no reasonable alternative…".
Incepting the Honesty Laws and the Natural–Justice- Rules on the Food Cartel Issue.
1017. As described above, the defendants breached tens of laws, basic laws and rules.
1018. But above all, and her assistants breached the natural justice rules and basic morality Nestle-Osem principles, and to such an extent that even if we assume that tomorrow all laws they breached were to be canceled, and the case in front of us would be considered a "hard case", the cause of claim should be fully accepted as the law must bring about a just result.
1019. Prof. Dworkin, who denounces Judicial Discretion, thinks the court must rule in "hard cases" according to principles of morality and justice.
1020. This is what Prof. Dworkin wrote:
"I call a principle a standard that is to observed…because A. it is a requirement of justice or fairness or some other dimension of morality".
(R. Dworkin, Taking Rights Seriously (London 1979).
1021. The approach that espouses judicial Discretion too demands that judicial norms will be interpreted on the basis of moral, just, and human rights principles.
1022. In cases when the basic principles opposing each other, the contradiction will be solved by proper balancing of the opposing values.
1023. Strive for justice is the basis for the law. Aristotle had already referred to it writing:
"The mistake is not in the law or the lawmaker but in the nature of things: The law talks in a universal language, and it is possible that a case will arise that is not covered by the universal language – and then the lawmaker has failed in over simplification and we must fill in the gap… thus honesty is justice, and even better than the general justice, and in any case better than the mistake which stems from the decisiveness of the law".
(Aristotle, Ithaca, Nachomacos version).
1024. Aristotle solved the dilemma by determining that doing right by the judge in a case in question is an integral part of the trial, even if not explicitly so stated by the law when sometimes, it turned out that the law did not realize justice; it was altered or fit to the circumstances so as to achieve a just result.
1025. This is how, for example, the British Equity Laws developed, as a need to soften the strict Common Law that in some cases resulted unjustly.
1026. The Equity Laws enable certain flexibility in implementing the Common Law, taking into consideration the circumstances of each case, and gave remedies that could not be given under Common law.
Nestle-Osem Silences Pikanti's right of expression.
1027. Nestle-Osem and her assistants considered the silencing of Pikanti's operations an important issue for them: the silencing of Pikanti as the standard bearer of social and economic issues in Israel.
1028. It is well known that in her two decades of operation, Pikanti did not only sell food products and delicacies, but bore a serious economic and social vision, the realization of which could result in the destruction of Nestle-Osem and other conglomerates that use their power in the Israeli market to the worse.
1029. Pikanti's vision was presented in a number of books written by Pikanti's manager, in interviews and thousands of newspaper ads, in interviews and thousand of radio programs and ads, on television, on the stage, over the internet, in C.D.'s and other means.
1030. Like other supreme values in the Constitutional Law, free expression too, from where Pikanti draws her right to express her opinion, is anchored in philosophical and moral layers.
1031. The scholar John Stuart Mill widened the meaning of the term free expression to the right of the individual to express an opinion which does not comply with the majority, adding new aspect.
1032. He explained his demand using practical reasoning: suppressing an opinion, even when a single one, is like a robbery, and may be lost on humanity, whether it is a real opinion or not.
1033. The demand for free expression is therefore explained in that it serves to benefit society.
1034. In our times, the idea developed that free expression is a right of the individual as a value by itself, even without any connection to the advantages latent in it for society as a whole.
1035. This idea did not crystallize until much later and was fully worded by our contemporary scholar, Thomas Emerson who integrates in his explanation reasons that have to do with the individual and society.
1036. In Emerson's view, the right of free expression is first and foremost the right of the individual to be himself. It is based on some basic assumptions common in western philosophy as to the individual's ability to realize himself and express his character and uniqueness, and his special gifts and qualities.
1037. Pikanti wishes to be herself, not Nestle-Osem, not Tnuva, not a Colombian cartel. Man is not a beast and as such is able to think and express his thoughts. He is able to comprehend abstract concepts and use language to share his thoughts and feelings, and his imaginary creations with others.
1038. The process of thought is individual, but is influenced, at each step, from the other's acts and thoughts as they are expressed orally or in writing through art, music or the visual arts.
1039. All that comes to the world by virtue of free expression. Without it, the qualities of man as a human being and of society as a distinct independent legal entity, cannot be realized and enhanced.
1040. Hence, any limitation of a person or a corporation to express their ideas or feelings is a blow to their human respect, their humanity, their sovereignty.
1041. Hence that the damage to Pikanti's free expression equals the suppression of her respect and independence, the negation of her world view, and the silencing her unique voice in the economic and social thinking market in Israel.
1042. In the United States, where free expression and press are ensured by the constitution,, those rights are considered "…The constitutional's most majestic guarantee".
1043. It was the poet John Milton who wrote in 1644 in his famous essay on the freedom of expression, that society is based on "Free and open encounter".
1044. From this world of concepts did Judge Holmes draw his belief that "Free commerce in expression as a base for a democratic society where the truth is clarified on the grounds of information and opinion".
1045. Judge Shimon Agranat drew from this conceptual and cultural world, in the 50's Israel, the grounds for his ruling in the case of "Kol Ha'am", High Court of Justice. 73/53, Kol Ha'Am Co. Ltd. & others V. the Minister of Interior Affairs 84 G 871, which did and still does light the way to free expression in Israel. The scholar Prof. Zeev Segal's words are relevant to our case:
"Even in the absence of a Basic Law that gives free expression a superior-law constitutional status, and even in the absence of a regular law that recognizes free expression and press, it is obvious that this freedom constitutes a basic principle in the State of Israel's law".
(Zeev Segal, "Freedom of Press: Between Myth and Reality", Papyrus, Tel Aviv Uni. Press, 1996).
1046. The freedom of publicizing Pikanti's famous advertises in the press is, to the claimants' viewpoint, a central section of free expression. Without it free speech will not be established, in practice, and without it there will be no democratic regime.
1047. Freedom of publicizing in the newspapers is not a privilege of the press or of the media. The privilege is of every individual in society, and does not belong to those who hold the press.
1048. As is well known, Israel has no formal, written constitution. The absence prevents not the principle of free expression (as it does not prevent other principles) from existing as a Constitutional Directive in the Israeli Justice systems. As Constitutional Directive the principle affects the designing, interpreting, and organizing the whole of the normative system. In the words of learned Prof. Pnina Lahav who said:
"The conscious choice of a democratic framework for the State of Israel included the commitment to respect the freedom of expression, without which no operational democracy is feasible…hence, as long as the Israeli society remains faithful to the democratic system, the principle of free expression must remain as a basic principle of the Israeli justice systems".
(Pnina Lahav "On Freedom of Expression in the Supreme Court Ruling", "Laws", V. 7, 3, Mars 1977).
1049. Formally, the principle is usually referred to as a term drawn from the Declaration of Independence. Yet it should be noted that its existence is not based on it being mentioned in the document but rather on the fact that the regime system in Israel is a democratic one.
1050. In Pikanti's viewpoint, the recognition of the citizen to publicize his thoughts in the press, to express himself freely, was awarded already in the early days of the Israeli democracy.
1051. The recognition matured in 1953 in the famous and revolutionary precedent of "Kol Ha'am", as his Honorable Judge Barak who was one of the judges said:
"Only a few, unique people…head and shoulders above the crowd and who illuminate with their strong light their immediate and distant environment, and who project their inner essence to the future, and direct the development of the law".
(Aaharon Barak, "The press Controls the Air Needed for Democracy to Breath", fragments from lectures by the Supreme Court President in an evening in honor of Prof. Zeev Segal with the publication of his book "Press Freedom, between Myth and Reality", Ha'aretz, 5.14.96).
1052. From Judge Agranat's verdict in the "Kol Ha'am" case arises that for a certain right or freedom to be recognized by the law, it does not necessarily be explicitly mentioned in The Declaration of Independence".
1053. From the Declaration we learn that Israel is a democracy, and as such, all rights and values without which there is no democracy; and first and foremost to all those rights
is the right of free expression.
1054. Indeed, a large part of the "Kol Ha'am" precedent is devoted to the essential linkage between respecting freedom of expression, and realizing the democratic vision as in the Declaration of Independence. In Agranat's words:
"The principle of freedom of expression is tightly linked with the democratic principle. simple concept of the democratic regime necessarily brings about the implementing of the principle of freedom of expression in any country based on the above mentioned regime this supreme right with its counterpart – the right to the freedom of consciousness – establish the condition to realizing most of the other freedoms".
1055. Over the years, more of the Supreme Court rulings of the "Kol Ha'am" case found their way to strengthen the supreme status of the freedom of expression principle.
1056. So, for example, it was established that "freedom of expression tops the rights on which our democratic regime is based…" (Hi. Ct. 606/93 The Enhancing of Initiatives and Publishing {1981} Ltd. V. The Broadcasting Authority & Others).
1057. Pikanti respects the values of the Jewish tradition, and wishes to mention that freedom of speech developed in our law from the Jewish and democratic tradition of The State of Israel.
"It seems there is no more adequate expression to describe the freedom of expression and the importance of each and every opinion – even if it is a single one – than the rule determined by scholars regarding the conflict of the Shamai House and the Hillel House than: "These and those also are Devine words" (Mishna).
(N. Niemman, Chairman of the central 11th. general elections committee; N. Avineri, Chairman of the 11th. general elections committee).
1058. Freedom of expression projects on all branches in our justice system: the public branch, the criminal branch and the civilian branch.
1059. So, for example, it projects on labor laws (Hi. Ct. 372/84 Klopfer-Nave & others V. The Minister of Education and others), and thus it is valid also in the food cartel case against Pikanti.
1060. It was further ruled that freedom of expression is not just an abstract principle.
1061. Freedom of expression creates an essential right (Hi. Ct. 337/81 Mitrani & Others V. the Minister of Transportation & Others). This constitutional right protects the interest of fee expression. Its breaching, as in the food cartel case, may enhance the enforcement remedy (for example, an absolute order injunction) or restorations (D. Barak, Civil Wrongs, Bursi 1984).
1062. Harm to the constitutional right is followed by remedy, just as harm to a contractual right is followed by remedy to the harmed side of the contract. Hence the restoration demands by Pikanti which reach beyond this ocean of evil.
Pikanti's Constitutional Right to Affective Freedom of Expression in the "Idea Market".
1063. It can allegedly be claimed, that even if Pikanti is wiped out, and she would cease to advertise thousands of ads in the media, that her ideas are not dead, so that the effort to put her out do not include her silencing.
1064. However, this claim is totally unfounded, and proves lack of understanding of the economic mechanism that operates the "idea market" (see an article by Prof. Yaron Ha'ezrahi, "The destruction of public domain – the map of future communication", The Seventh Eye, No. 9 June, 1997, pages 8-9).
1065. Pikanti is interested in an affective, real freedom of expression which brings forth constructive actions, not preaching. As wrote the scholar Dr. Dafna Barak-Erez:
"The development of the media created a reality in which expression outside the media is ineffective…A preacher at the town's square will usually not get much attention and a reasonable consideration of his speech. The passers by may find him pitiful. If he wishes to present ideas affectively, he can do it only by reporting in the daily written press and the electronic media. With this in mind, freedom of access to the media is, really, a condition to realizing freedom of expression, and without it this right may be empty of content and of no real significance".
(Dr. Dafna Barak-Erez, Justice Essays, 12, 1967).
Conclusion.
1066. This claim bound together the wrongs of the defendants who cheated Pikanti, breached contracts with her, negotiated and not in good faith, and by doing so contributed to the corruption of commercial norms in the food branch and adjacent branches, shedding any minimum legal, contractual, moral and ethical liability off themselves, as if they managed their business on some economic plant that has its own rules, and where cheating and rolling eyes upwards to heaven while shamelessly deceiving, is allowed.
1067. This clause of claim is about the contractual and damage effects that the deeds of the defendants caused.
1068. At the same time the material is handed to the Israeli police and the restraint trade controller, to utilize to the fullest the procedures against the defendants on the criminal level on one hand, and on the restraint trade laws on the other.
1069. In 1979, Pikanti's manager built his life's dream, a unique business for the manufacturing and marketing and selling of various food products and consumer goods. The business was characterized by the manufacturing and marketing of high quality products which were sold for very affordable prices. In its prime, the business included a chain of yielding mini markets supermarket all over the country.
1070. The claimants' acts for narrowing down the marketing spread to the consumer resulted in corporations and individuals who ask to belong to the suppliers with whom Pikanti worked regularly. And indeed, the business spread out and acquired reputation as one of the most successful and thriving businesses in Israel, all this until 7.14.1997.
1071. On the morning of 7.15.1997, the defendants together with others in the food and consuming, market in Israel suddenly stopped the supplies to the companies that managed the different supermarkets (the Pikanti companies). They stopped supplies that they had supplied for a long time, and did so in against the contractual valid agreements they had with Pikanti, and which were always honored with no breach whatsoever.
1072. The stopping of supplies by the defendants caused a situation of uncertainty among the large group of customers and among the Pikanti companies who prepared their warehouses to receive goods but were disappointed as the trucks did not show up. The stopping of supplies was immediate, unilateral, and with no warning oral or otherwise.
1073. The stopping of supplies by the defendants and others placed the claimants in a hopeless situation, similar to a bank manger who suddenly watches all his clients draw out their money and savings and the bank collapses, even though the companies were well financed, had reputation and one of the best marketing networks.
1074. An average business in the food branch would collapse under the circumstances in a week or two from the moment of supply stopping, but Pikanti survived the economic siege for a month and a half.
1075. Pikanti's manager was forced to watch his life work collapse under the coarse boots of the defendants and their cartel friends, who all united with one goal on their minds: To destroy Pikanti and stop, at all costs, the fair competition she put up to them.
1076. The claimant learned that harsh authority and envy became the Israeli commerce routine and in particular in the food market, as the corrupt actions by the defendant eventually brought about the collapse of the Pikanti companies and to the collapse of Pikanti manager's life work, and this with no justified economic and/or legal evidence, ignoring the prohibition to conduct unfair competition, the trade laws and trade manner.
1077. About a thousand employees stood wondering in face of the companies' collapse, as did hundreds of thousands of customers who now had to seek other solutions, much more expensive in comparison with what Pikanti offered at her prime, before the cartel low point days. The person who fired them passed away. Employees lost their minds. The cartel destroyed hundreds of homes in Israel. The evil end the corruption penetrated the souls of some employees who were physically and mentally inflicted.
1078. In this cause of claim Pikanti unfolded one of the ugliest unfair trade cases ever to have been discovered in Israel. In its framework, the defendants together and/or separately conducted a hypocritical trade method lacking good faith, characterized on the one hand in exploiting the trade tied the defendants had with the claimant and the Pikanti companies, to make big money, while on the other hand, the defendants acted in a faithless and heartless manner to destroy Pikanti, by a unilateral, sudden, baseless breaching of the supply contract the defendants had with the companies.
1079. All along the way the cartel initiators behaved arrogantly and in a patronizing manner as if they were the masters of the land.
1080. An advanced society should throw out of its midst the cartel people and deport them to some other place. There, in their exile, they can sic on each other the culture of violence, hedonism, shady business schemes, and deceitful arrangements. There they can mix silicon in their milk to their heart' content and drink it with the blood they suckled from the corpses they preyed.
1081. And there, in their exile, they will rub shoulders in the nepotism mud, and frame each other in trade laws to their hearts' content, as fit the moral jungle animals, who, should we clean them up and purify them, nothing will be left of them.
1082. There, in exile, faraway, shameful of their crimes, sorry for their wrongs – they will apparently cartel each other forever, and the honest and innocent will be rid of their defective presence.
1083. There is no fear that one day the cartel people will endow the earth and its inhabitants of their good, blessing, love and charity, righteousness and mercy. Their abusive habit to drop economic and interested social evil will continue to pollute the moral wells of this land for years to come if they and their partners do not strictly get what they deserve.
1084. Pikanti holds the right to submit an additional claim in the future for damages that have not yet crystallized and/or will be caused in the future due to the Nestle-Osem group or her partners to the cartel's acts and/or omissions.
1085. A claim on the basis of physical damages due to the cartel will soon be submitted against those that are liable to the damage,
1086. At the same time an order of injunction is called for which will order the cartel members to expose their accounts notwithstanding their income before the cartel and after.
1087. Pikanti holds the right to attach any opinion that will be required, if it is required, for this claim.
1088. Due to the above, the defendants must pay the claimant together and separately the sum of 1,000,000,000 NS with interest and linkage differentials from the day the claim was submitted and until the actual payment, and they should be demanded in remedy of restitution together and separately.
1089. This honorable court has the local authority to sit in judgment regarding the claim, among other reasons because a large part of the acts described took place within its jurisdiction. Also, it should be recalled that the defendants raised no claim as to the local authority in former procedures, thus they are under silence to so claim now.
1090. This honorable court has the local authority to sit in judgment regarding the contractual and damage systems described in this cause of claim, including the claim of debit by the trade restraint laws as under section 50 to the restraint trade laws 1988, an act or omission against that law equals a civil wrong under the damages law . As the sum of damages in under the authority of this honorable court – it is authorized sit in judgment of the claim.
1091. Hence, the honorable court is asked to summons the defendants and demand of them together and separately to pay the claimant the amount of 1,000,000,000 NS with interest and linkage differentiates from the day the claim was submitted until the actual payment, trial expenses and attorney fees with value added tax. In addition the claimants should be given full remedies including the restoration of the firms that went down the drain.
1092. The cartel members should be ashamed, eat humble pie and then take apart, cut off and smash the partners to the crime, and replace it with honest acts, so as not to damage the public ever again.
1093. And they should be judged. (Jewish Yom Kippur Prayer).
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Mr. Moshe Badash Mr. Moshe Badash
"Cartel Survivor Ltd." "Pikanti Meat Industries (1982) Ltd."
Expert Opinion
The District Court in Haifa
In regard to the case of Cartel Survivor Ltd. and Nestle-Osem Israeli food Industries Ltd. and Others.
Name of expert: Dr. Engineer Benjamin Ilan.
Address: 15 Tabenkin St., Ramat Gan
I, the undersigned, was asked by the Cartel Survivor Ltd. and Pikanti Meat Industries Ltd. to submit my professional opinion in the hereafter specified issue which arose in court. I submit my expert opinion instead of testifying in court and I hereby declare that I am well aware under the crime law in regard to false testifying, my here lawfully signed opinion equals an under oath testimony in court.
Education:
First degree: B.Sc., Mechanical Engineering, Technion, Haifa 1955
Engineering degree: Dipl. Eng. Mechanical and Industrial Engineering, Technion, Haifa, 1956.
First degree: B.A. Economics, Bar Ilan University, 1967
Second degree: M.A. Economics, Bar Ilan University, 1972
Third degree: Ph. D., Economics, Bar Ilan University, 1980
Experience:
Academic staff member at Bar Ilan University and lecturer at the Technion and Haifa University in: Economics, business administration, the planning of production plants. I have for years been an economic, mechanical, and planning consultant to government ministries, public organizations, manufacturing plants, agriculture, building, and services.
I was asked to submit my opinion regarding the damages caused to the Pikanti concern due to the stopping of her operation in 1997.
And this is my opinion.
Chapter 1: Analysis of Pikanti's Status on the Eve of Her Operations' Stopping.
1. In 1977 Pikanti was one of Israel's biggest food concerns with nine large branches. She differed from other food chains in that among the concerns' companies two food manufacturing plants were included (in Bnei Brak and in Kiryat gat), which provided over 30% of the food products which were sold in the concerns' supermarkets. This fact, in the undersigned's opinion, is the primary explanation to Pikanti's success in cutting down food market prices by tens of percentages.
2. Opening supermarkets adjacent to the concern's food manufacturing plants, or creating daily distribution lines that link the concern's food plants with the concern's supermarkets, enabled Pikanti to detach herself from the complex red tape of managing fresh stock which lies heavy on fresh food manufacturing plants in Israel (cutlery, salads, ready-made food, snacks, pastry, etc.).
3. Subjugating the concern's food production plants to the needs of the concern's supermarkets exclusively created, for the concern supermarkets, an ideal situation, in which they were the only beneficiaries of "private" plants. The "private plant" system also enabled an efficient stock management both on the practical and on the accounting levels, the narrowing down of depreciation and leftovers, and the decrease in expired products that must be destroyed.
4. In addition, a significant shortening of the time period from production to sale enabled a significant improvement in the product's freshness, cutting down on preservers and extending shelf-life, and by so doing, improving the food products' taste.
5. Such flexibility of producing-marketing is very rare in the Israeli market. True, many of the Israeli food plants have a certain "company store" which is attached to their plant, but as a rule, the big food plants prefer to rely on existing marketing chains, and selling "outside" on the basis of not very high profit percentages.
6. To sum up, this is about a production concern in Bnei Brak and in Kiryat Gat which relies on a chain of nine "company stores", which enjoy good prices, fresh products, the image of a company store on one hand, but spread out as a national supermarket chain in Bnei Brak, Kiryat gat, Haifa, Haifa satellite towns, the Hefer Valley, Beer Sheba, Jerusalem and more. The production and business area of the concern spread over thousands of sq. meters, and she employed over a thousand workers in various jobs of production, marketing, selling, managing logistics, advertising etc.
7. The concern economists saw clearly the tendencies developing in the product market, when they decided to place the chain branches in the big cities' suburbs, identifying the consumers' trend to start buying in those huge stores. Those stores can afford a variety of products, freshness of products, and most important, low prices. It can be determined that Pikanti identified this tendency already two decades ago, prepared herself and operated accordingly – and was supposed to continue and enjoy the profit.
8. Pikani's policy opened new consuming habits to the weak. Thus, for example, until Pikanti entered the Pastrami branch, that product was for the rich only. Lately this has become a product that almost every family can afford, thanks to Pikanti that started to produce and sell Pastrami for less than half the price of her competitors.
9. In fact, out of all private supermarkets, Pikanti was the only private, experienced, veteran, flexible, and alert to the market needs. The impressive success of less experienced and newer chains, like "Half Price" and "Tiv Ta'am", prove that Pikanti was early to read the consumers' map. Had she been able to continue her operation, Pikanti could have kept her place as the senior of private supermarkets.
10. The description here relies also on the fact, that Pikanti continuously implemented dynamic procedures to enhance her activity and her status in the market. The Pikanti concern, over her 18 years of operation, publicized thousands of ads in the newspapers, in which the low prices of her products compared to her competitors were emphasized. The efficient integration of production and marketing which enabled sales on a large scale and for low prices was emphasized as well. Pikanti's ads appeared in the national press (primarily in the Yediot Aharonot newspaper), and in radio jingles. Pikanti became the third advertiser in written press after the cellular telephone companies "Pelephone" and "Cellcom".
11. For years Pikanti invested millions of NS in advertising budgets to infiltrate products and trademarks into the market in a method unfamiliar in the Israeli market. Pikanti was the only food concern in Israel that opened a private fully staffed advertising office. This dropped cost of advertising, saved advertising-office's fees, made it possible to use "dead" advertising space on the basis of free space and the costs accordingly; it enabled professionalism in advertiser-advertised relations and fast reaction.
12. The choice of advertising pipes (The largest newspaper in the country and the most popular national radio network), the scale of advertising (millions of NS), point to Pikanti's intention to systematically and slowly controlling the food market in Israel, and bring about a significant revolution. In fact, over two decades Pikanti built an advertising platform to make it possible for her the pre planned breaking through.
13. At the time of her operations' termination, the concern was in the middle of a national spreading out process, and at that time only a small part of the plan was realized. The principles of this plan were based on utilizing the national reputation that Pikanti accumulated over the years and the enhancing of her products.
14. With the independent advertising platform at her disposal on the eve of the cartel, Pikanti could infiltrate almost any product into the market. Pikanti decoded the formula of how to overcome the old structural failure in the food market, which for years has dictated high entrance bars to the branch. Pikanti leaped over these bars, and ensured her customer, and primarily her competition, that all is possible.
15. It is quite clear that Pikanti's place as a leader in the private supermarket market would have been preserved and even enhanced, especially in light of the tendency of the multiplying private chains, of which Pikanti was the pioneer, to bite at the veteran, inefficient, conservative chains' portion.
16. The above described analysis served as a basis to my evaluation of the damages caused to the Pikanti concern due to the stopping of her operation, as will be specified next.
Chapter B: A Quantitative Evaluation of the Damages to the Pikanti Concern Due to the Stopping of Her Operation..
The foundations of the evaluation are:
1. The evaluation was based only on products that Pikanti produced and marketed. Three leading products were selected, of which there are data at the time Pikanti was near the end of operation. Two of them – Makarena and cakes, were in fact produced and marketed, the third – Pickli – was under the process of development, which was terminated with the destruction of Pikanti's operation.
2. In addition Pikanti had a wide operation of self producing and marketing of salads and cutlery, however, for the lack of data, these were not taken into consideration. It can be assumed that had they been included, the damage evaluation would have been greater than presented here.
3. The data which served as a basis for my calculations were submitted to me by Mr. Moshe Badash.
- For Makarena I received sales data and operation expenses until August 1997 as shown in table 1.
- For cakes I received sales data and operation expenses until August 1997 as shown in table 2.
- For Pickli I received sales forecast and operation expenses for October to December 1997 as shown in table 3.
4. These data served to build the evaluation of the operating profit that Pikanti could have up to the end of 2003, had she continued her operation with the above mentioned items.
5. The detailed assumptions that were used to calculate the evaluation are based on Pikanti's data as described in chapter A:
Pikanti belongs to the "private" chain sector that in the existing market conditions show a most rapid growth, while biting the portion of the big chains. This tendency accelerated over the past few years, because it provides an answer to the need of the consumers to use a dwindled shopping budget in the most efficient way. This tendency is growing. The integration of production and sales gave Pikanti an advantage even within the "private" chains, and created a unique and customer attracting phenomenon. Pikanti's tenure and reputation, with her unique character, as described, placed Pikanti as the leader in the private supermarkets sector.
6. A sales loss rate was used from the time of the stopping of operation and until the end of 2003 as follows:
- For Makarena, it was based on the data in table 1, ending in 1997, a forecast of the expected sales, based on growth in sales from the beginning of the year, and on a more moderate basis, from September to the end of 1997, and the damage to Pikanti over that period. In detail, it was assumed that the sales of this product which was entering the market – a monthly growth in sales from 25 tons in January to 160 tons in August – will grow to 180 tons a month in December 1997.
- For cakes the evaluation was based on the data in table 2, which ends in August 1997, an evaluation of the expected sales on the basis of growth from the beginning of the year, and on a more moderated basis, from September to the end of 1997, and the damage to Pikanti over that period. In detail, it was assumed that the sales of this product, which was also entering the market – a monthly growth from 75,000 units in January to 170,000 units in August – will grow to 180,000 units in December 1997.
- For Pickli the forecast as shown in table 3 was used, according to which the expected sales were an average of 90 tons monthly from October to December 1997.
7. For the year 1998 the sales evaluation was based on December 1997, multiplied by 12 months plus an annual growth rate of 5%.
For the years 1998 until 2003 an average yearly growth rate of 10% was assumed.
In sum, the realistic growth rate over the next 6 years is 69% only. This is a most cautious assumption, as it can be assumed that in light of the rapid growth of the private sector chains over the last years, Pikanti would have at least doubled her operation over that period had she been able to continue her operation.
8. All calculations were based on operational profits.
According to tables 1, 2, 3, the operational profits were taken as a % of sales as follows:
For Makarena – 54%
For Pickli - 60%
For cakes - 46%
9. The main damage was calculated on the basis of two components:
A. The loss of profits over the period under discussion. All data were revaluated to the prices of 20003 plus a total inflation rate of 20% in comparison to 1997 prices which were used for the basic calculations.
For the sake of simplicity the losses were summed up in a simple arithmetic way, and it does not include interest impute on lost profits. Had they been added, the damages would be even greater.
B. The expected market worth based on these products alone, with a price earning ratio of 15, this ratio is lower than that of some other food companies.
Chapter C: Damage calculation
Part A: The loss of profit
Makarena – Sales and prevented profits (in 1997 prices)
year 1997
from September 1998 1999 2000 2001 2002 2003
Sales
tones 690 2268 2495 2744 3019 3321 3653
Redemption
(thou. NS) 8867 29144 32058 35264 38790 42669 46936
Operating profit 54%
(thou. NS) 4788 15738 17311 19043 20947 23041 15346
Cakes – sales and avoided profits (in 1997 prices)
year 1997
from September 1998 1999 2000 2001 2002 2003
Sales
(thou. units) 700 2266 2495 2744 3019 3321 3653
Redemption
(thou. NS) 3500 11340 12474 13721 15094 16603 18263
Operating profit 46%
(thou. NS) 1610 5216 5738 6312 6943 7637 8401
Pickli – sales and prevented profits (in 1997 prices)
year 1997
from October 1998 1999 2000 2001 2002 2003
Sales
tons 270 1134 1247 1372 1509 1660 1826
Redemption
(thou. NS) 2835 11907 13098 14407 15848 17433 19176
Operating profit 60%
(thou. NS) 1701 7144 7859 8644 9509 10460 11506
Sum of profits prevented (Thousands NS in 1997 prices)
Makarena – 126,213
Cakes - 41,858
Pickli - 56,823
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Total - 224,894
A correction to 2003 prices should be added, plus inflation addition of 20% from 1997 to 2003.
Hence the sum of prevented sales in 2003 prices is 269,873 thousand NS, and with a slight round off:
The accumulating loss of sales prevention of the three products is 270 million NS.
Part B - Loss of market worth
The operating profit that would have been received from the sale of the three products in 2003, in thousands of NS in 1997 prices is:
Makarena – 25,346
Cakes - 8,401
Pickli - 11,506
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Total - 45,253 thousand NS.
A correction to 2003 prices should be added, plus inflation addition of 20% from 1997 to 2003.
Hence, the sum of prevented sales of the three products in 2003, in thousands of NS is 54,304 thousand NS, and with a slight round off:
The operating profit that would have been received from selling the three products in 2003 is 54 million NS.
Hence that the market worth that would have been expected on the basis of these three products alone, with a price earning ratio of 15 (a price ratio lower than some food companies):
54 million NS x 15 = 810 million NS.
In other words, the market worth that Pikanti lost, as of today, for not operating, is 810 million NS.
Conclusion of the Opinion
The evaluation of the damage caused to the Pikanti concern due to the stopping of her operation from August 1997 to the end of 2003, on the basis of three leading products: two that were actually produced and one that was about to enter production Is:
Loss of profits - 270 million NS
Loss of market worth - 810 million NS
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Total loss - 1,080 million NS
This is my opinion.
Date: 1.20.04 Engineer Dr. Benjamin Ilan
Table 1: Forecast of Sales and Operating Expenses Data from March to
August 1997
Makarena
March-97 April-97 May-97 June-97 July-97 Aug.-97
Thou. NS Thus. NS Thou. NS Thus. NS Thou. NS Thus. NS
Sales In fact In fact In fact In fact In fact In fact
Amount in ton 26 45 75 94 155 160
Peanut snack sales in NS 334 NS 577 NS 962 NS 1,206 NS 1,989 NS 2,053
Direct materials 117 NS 221 NS 368 NS 415 NS 684 NS 706 NS
Direct labor 21 NS 22 NS 38 NS 56 NS 93 NS 96 NS
Maintenance 3 NS 4 NS 8 NS 11 ns 19 NS 19 NS
Energy 5 NS 6 NS 10 NS 15 NS 25 NS 26 NS
Rent 8 NS 8 NS 8 NS 8 NS 8 NS 8 NS
Depreciation 12 NS 13 NS 15 NS 15 NS 15 NS 15 NS
Total cost of goods sold 166 NS 175 NS 374 NS 521 NS 844 NS 870 NS
Gross profit 164 NS 175 NS 396 NS 685 NS 1,145 NS 1,183 NS
Gross profit in % 49.2% 30.3% 41.2% 56% 57.6% 57.6%
Operating expenses
Other labor expenses 4 NS 4 NS 8 NS 11 NS 19 NS 19 NS
Property tax & water 2 NS 3 NS 5 NS 5 NS 5 NS 5 NS
Office 3 NS 4 NS 5 NS 5 NS 5 NS 5 NS
Advertising 30 NS 30 NS 20 NS 30 NS 35 NS 40 NS
Car mainten. 8 NS 9 NS 12 NS 12 NS 12 NS 12 NS
Professional services 2 NS 2 NS 2 NS 2 NS 2 NS 2 NS
Fees & other 1 NS 1 NS 1 NS 1 NS 1 NS 1 NS
Total operating costs 50 NS 53 NS 49 NS 66 NS 79 NS 84 NS
Operating profit 114 NS 122 NS 347 NS 619 NS 1,066 NS 1,098 NS
Operating profit in % 34% 21% 36% 51% 54% 54%
Accumulating operating profit 114 NS 236 NS 583 NS 1,202 NS 2,268 NS 3,367 NS
Table 2: Forecast of Sales and Operating Expenses Data from January to August 1997
Cakes
Profit and loss statement - Royal Cakes
Jan-97 Fab-97 Mar-97 Apr-97 May-97 June-97 July-97 Aug-97
Thou. NS Thou. NS Thou. NS Thou. NS Thou. NS Thou. NS Thou. NS Thou. NS
Sales In fact
Quantity in thousands 58 75 87 99 140 150 170 170
Sales in thousand NS 290 375 435 495 700 750 850 850
Direct materials 92.8 120.0 139.2 158.4 224.0 240.0 272.0 272.0
Direct labor 37.7 48.8 56.6 64.4 91.0 97.5 110.5 110.5
Maintenance 0.9 1.2 1.4 1.6 2.2 2.4 2.7 2.7
Energy 1.9 2.4 2.8 3.2 4.5 4.8 5.4 5.4
Rent 9.0 9.0 9.0 9.0 9.0 9.0 9.0 9.0
Depreciation 9.0 9.0 9.0 9.0 9.0 9.0 9.0 9.0
Total cost of goods sold 151.3 190.4 217.9 245.5 339.7 362.7 408.7 408.7
Gross profit 139 185 217 249 360 387 441 441
Gross profit in % 47.8% 49.2% 49.9% 50.4% 51.5% 51.6% 51.9% 51.9%
Operating expenses
Other labor expenses 3 4 5 5 8 8 9 9
Property tax & water 2 2 2 2 2 2 2 2
Office 4 4 4 4 4 4 4 4
Advertising 25 25 25 25 25 25 25 25
Car mainten. 3 3 4 5 6 7 8 8
Professional services 2 2 2 2 2 2 2 2
Fees & other 1 1 1 1 1 1 1 1
Total operating costs 40 42 43 44 48 49 51 51
Operating profit 99 143 174 206 312 338 390 390
Operating profit in % 34% 38% 40% 42% 45% 45% 46% 46%
Accumulating operating profit 99 242 416 622 934 1,272 1,662 2,053
Table 3: Forecast of Sales and Operating Expenses Data from October to December 1997
Pickli snack
Profit and loss statement of Pickli snack
Oct-97 Nov-97 Dec-97
Thousand NS Thousand NS Thousand NS
Pickli snack sales Forecast Forecast Forecast
Quantity in tons 88 90 92
Pickli snack sales in NS 924 945 966
Direct materials 211 216 221
Direct labor 49 50 52
Maintenance 10 10 10
Energy 13 14 14
Rent 8 8 8
Depreciation 15 15 15
Total cost of goods sold 306 313 319
Gross profit 618 632 647
Gross profit in % 66.8% 66.9% 67.05
Operating expenses
Other labor expenses 4 4 4
Property tax & water 5 5 5
Office 5 5 5
Advertising 40 40 40
Car mainten. 12 12 12
Professional services 2 2 2
Fees & other 1 1 1
Total operating cost 69 69 69
Operating profit 549 563 578
Operating profit in % 59% 60% 60&
Accumulating operating profit 549 1,112 1,690
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