3301. Below Cost Sales Essential Factual Elements

3301. Below Cost Sales--Essential Factual Elements Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of plaintiff] claims that [name of defendant] engaged in unlawful sales below cost. To establish this claim, [name of plaintiff] must prove all of the following: 1. [That [name of defendant] [offered to sell/sold] [product/service] at a price that was below cost;] [or] [That [name of defendant] gave away [product/service];] 2. 3. 4. That [name of defendant]'s purpose was to injure competitors or destroy competition; That [name of plaintiff] was harmed; and That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm. If [name of plaintiff] proves that [name of defendant] [[offered to sell/sold] [product/service] at a price that was below cost/ [or] gave away [product/service]] and that [name of defendant]'s acts harmed [name of plaintiff], you may assume that [name of defendant]'s purpose was to injure competitors or destroy competition. To overcome this presumption, [name of defendant] must present evidence of a different purpose. [Name of defendant] has presented evidence that [his/her/its] purpose was [specify other purpose]]. Considering all of the evidence presented, you must decide whether [name of plaintiff] proved that [name of defendant]'s purpose was to injure competitors or destroy competition. ________________________________________________________________________________ New September 2003; Revised June 2011