CACI No. VF-3407. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller Relations) - Other Unreasonable Restraint of Trade - Rule of Reason Affirmative Defense - “Noerr-Pennington” Doctrine
Judicial Council of California Civil Jury Instructions (2024 edition)
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VF-3407.Horizontal and Vertical Restraints (Use for Direct
Competitors or Supplier/Reseller Relations) - Other Unreasonable
Restraint of Trade - Rule of Reason Affirmative Defense - “Noerr-
Pennington” Doctrine
We answer the questions submitted to us as follows:
1. Did [name of defendant] [and [name of alleged coparticipant]] agree
to [describe conduct constituting an unreasonable restraint of trade]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Were [name of defendant]’s actions before [name of governmental
body] undertaken without regard to the merits?
2. Yes No
2. If your answer to question 2 is yes, then skip question 3 and
answer question 4. If you answered no, answer question 3.
3. Was the reason [name of defendant] engaged in [specify the
petitioning activity, e.g., “filing an objection to an environmental
impact report”] to use the [specify the claimed process, e.g.,
“environmental agency approval”] process to harm [name of
plaintiff] by [specify the manner of harm, e.g., “delaying [name of
plaintiff]’s entry into the market”], rather than to obtain a
successful outcome from that process?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the purpose or effect of [name of defendant]’s conduct to
restrain competition?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did the anticompetitive effect of the restraint[s] outweigh any
beneficial effect on competition?
5. Yes No
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5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages? $
Signed: Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3405, Horizontal and Vertical Restraints
(Use for Direct Competitors or Supplier/Reseller Relations) - Other Unreasonable
Restraint of Trade - Rule of Reason - Essential Factual Elements, and CACI No.
3430, “Noerr-Pennington” Doctrine.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3407 CARTWRIGHT ACT
660
© Judicial Council of California.
