3406. Horizontal And Vertical Restraints-Agreement Explained

3406. Horizontal and Vertical Restraints--"Agreement" Explained Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 An agreement exists if two or more persons or companies combine or join together for a common purpose. No written document or specific understanding is necessary for an agreement to exist. For [name of defendant] to be part of an agreement, [he/she/it] must have known [he/she/it] was joining in an agreement, even if [he/she/it] was not aware of all of its aspects. [An agreement also may exist if a [person/company] unwillingly participates - that is, if another person coerces [him/her/it] to join the agreement against [his/her/its] wishes.] [To prove the existence of an agreement, [name of plaintiff] must show more than a similarity between [name of defendant]'s conduct and the conduct of others. Independent business judgment in response to market forces sometimes leads competitors to act in a similar way because of their individual self-interests. That conduct alone is not enough to prove an agreement. However, similar behavior, along with other evidence suggesting joint conduct, may be used to decide whether there was an agreement.] In deciding whether [name of defendant]'s conduct was the result of an agreement, you may consider, among other factors, the following: (a) The nature of the acts; (b) The relationship between the parties; (c) Whether the conduct was contrary to the best interests of some of the persons or companies in question; (d) Whether the conduct lacked a legitimate business purpose; or 3406. Horizontal and Vertical Restraints--"Agreement" Explained Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 (e) Whether the conduct occurred following communications concerning the subject of the conduct. ________________________________________________________________________________ New September 2003