3333. Aff. Defense to Locality Discrimination Below Cost Sales Loss Leader Sales Claims Meeting Competition

3333. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader Sales Claims--Meeting Competition Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of defendant] claims that any [locality discrimination/below cost sales/loss leader sales] proven by [name of plaintiff] [is/are] justified by the need to meet competition. To succeed, [name of defendant] must prove that the sales of [product/service] were made in an attempt, in good faith, to meet the legal prices of a competitor selling the same [product/service] in the ordinary course of business in the same area. To meet legal prices means to lower the price to a point that the seller believes in good faith is at or above the legal price of the competitor it is trying to meet. That is, a seller may attempt to "meet," but not "beat," what in good faith it believes to be that competitor's legal price. ________________________________________________________________________________ New September 2003