California Civil Jury Instructions (CACI) (2017)

3422. Tying - "Separate Products" Explained

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3422.Tying—“Separate Products” Explained
In deciding whether [tying product or service] and [tied product or
service] are separate and distinct, you should consider, among other
factors, the following:
(a) Whether competitors offer to sell [tied product or service]
separately from [tying product or service] or only as a unit;
(b) Whether the combined product is composed of varying
assortments of component parts;
(c) Whether buyers are or can be charged separately for the
[products/services]; and
(d) Whether [name of defendant] ever sells or offers to sell [tied
product or service] separate from [tying product or service].
Not all of these factors need be present in order for you to conclude
that [tying product or service] and [tied product or service] are separate
and distinct [products or services, etc.].
New September 2003
Directions for Use
If an example is thought to be in order, users may wish to consider the following:
For example, even though belt buckles are sometimes sold separately from
belts, a belt buckle is normally considered a component of a belt. Therefore, a
belt and buckle would normally be considered one product under the law in
this case. On the other hand, while belts and wallets are sometimes packaged
and sold together, they are not normally considered components of a single
product and are normally purchased separately. Therefore, belts and wallets
would normally be considered two separate products under the law in this case.
Sources and Authority
• “Although we have not found . . . any definitive test for the determination of
this question, the following factors should be taken into account: (1) Whether
competitors offer to sell the products or services separately or only as a unit. (2)
Whether the combined product or service is composed of varying assortments
of component parts. (3) Whether buyers are or can be charged separately for the
allegedly separate products or services. (4) Whether the defendant ever sells or
offers to sell the products or services separately.” (Corwin v. Los Angeles
Newspaper Services Bur. (1971) 4 Cal.3d 842, 858–859 [94 Cal.Rptr. 785, 484
P.2d 953], internal citations omitted.)
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Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 591–607
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.04 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[4] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.09[4], 5.15, 5.81, 5.82
CACI No. 3422 CARTWRIGHT ACT
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