3320. Secret Rebates Essential Factual Elements

3320. Secret Rebates--Essential Factual Elements Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of plaintiff] claims that [name of defendant] [insert one or both of the following:] [secretly [gave/received] [payments/rebates/refunds/commissions/unearned discounts;]] [or] [secretly [gave to some buyers/received] services or privileges that were not given to other buyers purchasing on like terms and conditions.] To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] secretly [[gave/received] [payments/rebates/refunds/commissions/unearned discounts]] [or] [[gave to some buyers/received] services or privileges that were not given to other buyers purchasing on like terms and conditions]; That a competitor was harmed; That the [payment/allowance] had a tendency to 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. 2. 3. 4. 5. ________________________________________________________________________________ New September 2003