California Civil Jury Instructions (CACI)

3431. Affirmative Defense - In Pari Delicto

[Name of defendant] claims that [name of plaintiff] may not recover because [name of plaintiff] is equally responsible for the harmful conduct. To succeed, [name of defendant] must prove all of the following:

1. That [name of plaintiff] and [name of defendant] have substantially equal economic strength;

2. That [name of plaintiff] is at least equally responsible for the harmful conduct as [name of defendant]; and

3. That [name of plaintiff] was not compelled by economic pressure to engage in the harmful conduct.

Sources and Authority

"Cases . . . have declared that if a plaintiff does not bear equal responsibility for establishing the illegal scheme, or if he is compelled by economic pressures to accept such an agreement, he cannot be barred from recovering because he participated therein." (Mailand v. Burckle (1978) 20 Cal.3d 367, 381 [143 Cal.Rptr. 1, 572 P.2d 1142], internal citations omitted.)

Secondary Sources

1 Witkin, Summary of California Law (9th ed. 1987) Contracts, §§ 575- 590

2 Antitrust and Trade Regulation Law Section, State Bar of California, California Antitrust Law (2d ed. 2001), § 16.13

8 Antitrust Laws & Trade Regulation, Ch. 164, Pleadings in Antitrust Actions, § 164.05[2][b] (Matthew Bender)

49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition (Matthew Bender)

(New September 2003)