פרוצדורה ומהות בתובענה הייצוגית בעילת מחיר מופרז: כלים שלובים להרתעה אופטימלית

This article explains how substance and procedure should be combined to implement, in the context of class actions, the antitrust prohibition on excessive pricing by monopolistic firms. It demonstrates the similarity between this prohibition and other antitrust prohibitions, with respect to both their objectives and their implementation. The article criticizes the amicus curie brief submitted by the Israeli Attorney General to the Israeli Supreme Court in the appeal over the District Court’s decision to certify a class action against the supplier of Coca Cola in Israel(the Gafniel decision).Implementation of the prohibition on excessive pricing should use a two-pronged test: the first prong consists of economic analysis comparing the price charged by the monopolistic firm to the competitive price, and the second prong consists of legal analysis, in which the court decides whether the difference between the price charged and the competitive price is excessive. The article shows that adding an additional vague test of “unfairness” of the price is unwarranted.The article further claims that the erroneous certification of a class action against a monopolistic firm does not necessarily create a larger social loss, compared to erroneously denying a justified certification motion. It proposes that the court should balance, in any given lawsuit, the relevant error costs by allocating the burden of proof and setting a proper standard of proof in each of the separate stages of the class action proceedings. Such balancing can be accomplished by using the dominant firm’s market share, the difference between the price charged and the competitive price, and the duration of the alleged violation. The article criticizes the Attorney General’s de facto claim that a whole set of categories of cases should be exempt from the prohibition, and shows that this claim is inconsistent with the law in Israel and in the EU. It further elaborates on the appropriate relationship between public enforcement by the Israeli Competition Authority and private enforcement in class actions.