CACI No. 3335. Affirmative Defense - “Good Faith” Explained

Judicial Council of California Civil Jury Instructions (2023 edition)

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3335.Affirmative Defense - “Good Faith” Explained
In deciding whether [name of defendant] acted in good faith in attempting
to meet competition, you must decide whether [his/her/nonbinary
pronoun/its] belief was based on facts that would lead a reasonable
person to believe that the price [name of defendant] was offering would
meet the legal price of [name of defendant]’s competitor. You must
consider all of the facts and circumstances present, including, but not
limited to:
1. The nature and source of the information on which [name of
defendant] relied;
2. [Name of defendant]’s prior experience, if any, with similar
information or with persons who provided the information;
3. [Name of defendant]’s prior pricing practices; and
4. [Name of defendant]’s general business practices.
[Name of defendant] does not have to prove that [his/her/nonbinary
pronoun/its] price did actually meet the legal price of its competitor; only
that [he/she/nonbinary pronoun/it] reasonably believed that
[he/she/nonbinary pronoun/it] was offering a price that would meet the
competitor’s price.
New September 2003; Revised May 2020
Directions for Use
This instruction provides the jury with a general listing of circumstances against
which it might consider evidence in the record to decide whether a defendant’s
attempts to meet competition were in good faith. The final paragraph eases the
defendant’s burden of proof with respect to the “meet but don’t beat” element
because a defendant is required only to prove its reasonable belief that its prices
would meet, but not beat, a competitors prices.
Sources and Authority
Good-Faith Price to Meet Competition Permitted. Business and Professions Code
section 17050(d), (e).
“The requirement [to ascertain the ‘legal prices’ of competitors] is not absolute.
It is merely that the defendants shall have endeavored ‘in good faith’ to meet the
legal prices of a competitor.” (People v. Pay Less Drug Store (1944) 25 Cal.2d
108, 117 [153 P.2d 9].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623-629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.53 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.46[2], 5.51, 5.100[7]
3336-3399. Reserved for Future Use

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