3332. Affirmative Defense to Locality Discrimination, Below Cost Sales, Loss Leader Sales, and Secret Rebates--Functional Classifications Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of defendant] claims that any [locality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/secret rebates] proven by [name of plaintiff] [is/are] within the law because they apply to different classes of customers. To succeed, [name of defendant] must prove all of the following: 1. 2. 3. That [name of defendant] created different classes of customers, such as [broker/jobber/wholesaler/retailer/[insert other]]; That customers in the different classes performed different functions and assumed the risk, investment, and costs involved; That the difference in [price/rebate/discount/special services/privileges] for [product/service] was given only in those sales where the favored buyer performed the function on which the claim of a different class is based; and That the difference in price was reasonably related to the value of such function. 4. ________________________________________________________________________________ New September 2003