CACI 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

California Civil Jury Instructions CACI

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]?

 Yes   No

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?

 Yes   No

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?

 Yes   No

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?

 Yes   No

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?

 Yes   No

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]?

 Yes   No

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.


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.