N.C.P.I.—Civil 813.26

NOTE WELL: Use this instruction only with claims for

relief arising before October 1, 1996. Session Laws

1995 (Regular Session 1996), c. 550, s. 2 repealed N.C.

Gen. Stat. § 75-5 effective October 1, 1996.

NOTE WELL: This instruction should be used only in

cases involving predatory pricing conduct aimed at

injuring a competitor's business. For cases involving

other types of predatory conduct aimed at driving

competitors out of business so that the person

engaging in the predatory conduct can then fix prices,

see N.C.P.I.-Civil 813.25.2

The (state number) issue reads:

"Did the defendant,3 while engaged in buying or selling any goods

within the State, [injure or destroy] [undertake to injure or destroy]

[contract to injure or destroy] the business of any competitor by

unreasonably [raising the price of any goods bought] [lowering the price

of any goods sold] with the purpose of increasing the profit of his

business after [such competitor was driven out of business] [such

competitor's business was injured]?"

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, five

things:

First, that the defendant was engaged in [buying] [selling] (name

goods)4 within this State. A [person] [corporation] [partnership] [(name

other business association)] is engaged in buying or selling goods within

this State if [he] [it] buys or sells the goods through [himself] [itself], or

together with or through any allied, subsidiary or dependent person5 in

North Carolina.

Second, that the defendant (entered into a contract which)6

unreasonably [raised the price of any goods bought] [lowered the price of

any goods sold]. This means that you must find that the defendant

(entered into a contract which) [raised the price of goods bought]

[lowered the price of goods sold], and also that defendant's conduct (in

entering into the contract (would have)) unreasonably [raised] [lowered]

the price of the goods. To determine whether the defendant's conduct

was unreasonable, you should take into consideration

(1) the nature of the trade or industry in which the prices were

[raised] [lowered];

(2) the condition of that trade or industry before and after the

prices were [raised] [lowered];

(3) the cost structure of the defendant's business, including the

cost of the goods or direct expenses, and the overhead or indirect

expenses;

(4) the nature and magnitude of the defendant's conduct;

(5) (name other relevant factors supported by the evidence).

Third, that the defendant, by his unreasonable conduct, [injured or

destroyed] [undertook to injure or destroy] [contracted to injure or

destroy] (name business).

Fourth, that (name business) was a competitor of the defendant.7

Competitors sell or attempt to sell the same or similar goods to the

same type of purchasers or customers8 in the same geographic area.

Fifth, that the defendant acted with the purpose of increasing the

profit on his business after [such competitor was driven out of business]

[such competitor's business was injured].

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that, while

engaged in buying or selling goods within this State, the defendant

[injured or destroyed] [undertook to injure or destroy] [contracted to

injure or destroy] the business of a competitor by unreasonably [raising

the price of any goods bought] [lowering the price of any goods sold] with

the purpose of increasing the profit of his business after [such competitor

was driven out of business] [such competitor's business was injured],

then it would be your duty to answer this issue "Yes" in favor of the

plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.