CACI 3331 Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items

3331 Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items

[Name of defendant] claims that any [locality discrimination/below cost sales/loss leader sales] proven by [name of plaintiff] [is/are] within the law because the [product] was being sold as [a close-out/seasonal goods/damaged goods/perishable goods]. To succeed, [name of defendant] must prove both of the following:

1.That [his/her/nonbinary pronoun/its] sales were [insert one or more of the following:]

[in the course of closing out, in good faith, all or any part of [his/her/nonbinary pronoun/its] supply of [product], in order to stop trade in [product];] [or]

[of seasonal goods to prevent loss by depreciation;] [or]

[of perishable goods to prevent loss by spoilage or depreciation;] [or]

[of goods that were damaged or deteriorated in quality;] and

2.That [name of defendant] gave sufficient notice of the sale to the public.

Notice is sufficient only if:

1.The sale goods are kept separate from other goods;

2.The sale goods are clearly marked with the reason[s] for the sales; and

3.Any advertisement of such goods sets forth the reason[s] for the sale and indicates the number of items to be sold.

Secondary Sources