Tabberone is pronounced tab ber won not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me! "The only thing necessary for the triumph of evil is for good men to do nothing" Edmund Burke

This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From John Paul Mitchell v Pete N Larry's, 862 F.Supp. 1020 (W.D.N.Y. 1994) Finally, the plaintiffs' fifth claim alleges that, "[b]y selling Paul Mitchell products [sic] from which batch codes have been eradicated, defendants have engaged in a fraudulent course of conduct that is calculated to prevent plaintiffs from identifying those intermediate sellers who are breaching their obligations to plaintiffs and that also prevents [page 1030] plaintiffs from identifying stolen or adulterated product that might be offered for sale to the consuming public by defendants." There are four elements to a claim of fraud: misrepresentation, concealment or non-disclosure of a material fact; intent to deceive on the part of the defendant; justifiable reliance upon the misrepresentation by the plaintiff; and injury to the plaintiff as a result of such reliance. Idrees v. American University of the Caribbean, 546 F.Supp. 1342, 1346 (S.D.N.Y.1982). The defendants contend that, to the extent the Complaint charges them with non-disclosure, such claim cannot stand because there is no allegation of affirmative duty of disclosure owed by the defendants to the plaintiffs. See Sterling Nat. Bank & Trust v. Federated Dept. Stores, 612 F.Supp. 144, 147 (S.D.N.Y.1985). They further assert that they have never participated in the alleged act of concealment -- i.e., obliteration of batch codes -- and have submitted affidavits supporting such assertion. See Affidavit of Marion McHenry (sworn to June 17, 1993); Affidavit of Michael Quinn (sworn to June 15, 1993); Affidavit of Steven Drahos (sworn to June 14, 1993); Affidavit of Jerome Biarsky (sworn to June 16, 1993); Affidavit of Elenterio A. Boni (sworn to July 8, 1993). In response, the plaintiffs state that they have never alleged that any particular defendant itself had actually removed the codes and argue that, while a claim for fraud based on non-disclosure requires a showing of the duty of disclosure, such general rule does not apply when the non-disclosure is accomplished by affirmative acts of concealment. As the defendants' affidavits have established, however, there is no showing of any such affirmative concealment by the defendants. The fifth claim will therefore be dismissed.