CACI No. 3410. Vertical Restraints - Agreement Between Seller and Reseller’s Competitor

Judicial Council of California Civil Jury Instructions (2023 edition)

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3410.Vertical Restraints - Agreement Between Seller and
Resellers Competitor
If a reseller coerces a supplier to refuse to do business with a competing
reseller, and the supplier does so, this conduct is an agreement to
restrain competition.
Refusing to do business with a reseller after receiving complaints by a
competing reseller is not, by itself, an agreement to restrain competition.
However, if a supplier receives such complaints and then agrees with the
complaining reseller to act on them, that becomes an agreement to
restrain competition.
New September 2003
Directions for Use
If the complaining competitor is also a named defendant, this instruction must be
rewritten to reflect that circumstance.
Sources and Authority
In Bert G. Gianelli Distrib. Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020,
1043-1044 [219 Cal.Rptr. 203], overruled on other grounds, Dore v. Arnold
Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56],
the Court of Appeal held that proof that the reseller competing against the
plaintiff complained to the seller about plaintiff’s pricing and that the seller then
took action against the plaintiff reseller in response to the complaint was
sufficient to support a finding of a combination.
“[T]he plaintiff must present evidence that tends to exclude, although it need not
actually exclude, the possibility that the alleged conspirators acted independently
rather than collusively. Insufficient is a mere assertion that a reasonable trier of
fact might disbelieve any denial by the defendants of an unlawful conspiracy.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 852 [107 Cal.Rptr.2d
841, 24 P.3d 493].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602-621
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.02 (Matthew
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168 (Matthew Bender)

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