N.C.P.I.—Civil 813.28

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1995 (Regular Session 1996), c. 550, s. 2 repealed N.C.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

The (state number) issue reads:

"Did the defendant,2 while [buying] [selling] goods in this State,

have an agreement or understanding with another [person] [corporation]

[partnership] [(name other business association)] not to [buy] [sell] such

goods within certain territorial limits within the State with the intention

[of preventing competition in buying] [of preventing competition in

selling] [to fix the price of] such goods within these territorial limits?"

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, three

things:

First, that the defendant [bought] [sold] (name goods)3 within this

State.

Second, that the defendant had an agreement or understanding,

either express or implied, with at least one other [person] [corporation]

[partnership] [(name other business association)] not to [buy] [sell]

(name goods) within certain territorial limits within the State. "Territorial

limits" means a specific geographic area in North Carolina.

Before there can be an agreement or understanding, there must be

more than one [person] [corporation] [partnership] [(name other business

association)] involved. An express agreement or understanding is one

explicitly declared by the parties, either orally or in writing. An implied

agreement or understanding is one not explicitly declared by the parties,

but is implied by facts and circumstances showing a mutual intent to

agree or reach an understanding.

Third, that the defendant entered into the agreement or

understanding with the intention [of preventing competition in buying] [of

preventing competition in selling] [to fix the price of] (name goods)

within the territorial limits.

["Preventing competition in buying" means limiting the number of

buyers available to purchase a particular kind of goods in a certain

geographic area.]

["Preventing competition in selling" means limiting the number of

sellers available to sell a particular kind of goods in a certain geographic

area.]

[To fix the price of goods, [a seller raises the price of goods he

sells, or stabilizes that price to prevent it from decreasing] [a buyer

lowers the price of goods he buys, or stabilizes that price to prevent it

from increasing].]

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

[buying] [selling] (name goods) in this State, the defendant had an

agreement or understanding with another [person] [corporation]

[partnership] [(name other business association)] not to [buy] [sell] such

goods within certain territorial limits within the State with the intention

[of preventing competition in buying] [of preventing competition in

selling] [to fix the price of] (name goods) within these territorial limits,

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.