3421. Tying--Products or Services--Essential Factual Elements (Bus. & Prof. Code, § 16727) Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of plaintiff] claims that there is an unlawful tying arrangement in which [specify the particular product] is the tying product and [specify the particular product or services] is the tied product. A "tying arrangement" is the sale of one product, called the "tying product," where the buyer is required or coerced to also purchase a different, separate product, called the "tied product." For example, if a supermarket sells flour only if its customers also buy sugar, that supermarket would be engaged in tying. Flour would be the tying product and sugar the tied product. To establish this claim, [name of plaintiff] must prove all of the following: 1. 2. That [tying product] and [tied product or service] are separate and distinct; That [name of defendant] will sell [tying product] only if the buyer also purchases [tied product or service], or that [name of defendant] sold [tying product] and required or otherwise coerced buyers to [also purchase [tied product or service]] [agree not to purchase [tied product or service] from any other supplier]; That [insert one or both of the following]: [[name of defendant] has sufficient economic power in the market for [tying product] to coerce at least some consumers into purchasing [tied product or service];] [or] [the claimed tying arrangement has restrained competition for a substantial amount of sales, in terms of total dollar volume of [tied 3. 3421. Tying--Products or Services--Essential Factual Elements (Bus. & Prof. Code, § 16727) Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 product or service]; 4. 5. That [name of plaintiff] was harmed; and That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm. ________________________________________________________________________________ New September 2003