3401. Horizontal Restraints (Use for Direct Competitors)--Allocation of Trade or Commerce--Essential Factual Elements Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of plaintiff] claims that [name of defendant] agreed to allocate or divide [customers/territories/products]. An agreement to allocate [customers/territories/products] is an agreement between two or more competitors not to compete [for the business of particular customers/with each other in particular territories/in the sale of a particular product]. To establish this claim, [name of plaintiff] must prove all of the following: 1. 2. 3. 4. That [name of defendant] and [name of alleged co-participant] were or are competitors in the same or related markets; That [name of defendant] and [name alleged co-participant] agreed to allocate or divide [customers/territories/products]; That [name of plaintiff] was harmed; and That [name of defendant]'s [and [name of alleged co-participant]'s] conduct was a substantial factor in causing [name of plaintiff]'s harm. ________________________________________________________________________________ New September 2003