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NEWMAN-GREEN, INC. v. ALFONZO-LARRAIN

August 3, 1984

NEWMAN-GREEN, INC., ET AL., PLAINTIFFS,
v.
ALEJANDRO ALFONZO-LARRAIN R., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

On April 23, 1984 Newman-Green, Inc. ("NGI") moved, pursuant to various subparts of Fed.R.Civ.P. ("Rule") 12, against each count of the Amended Counterclaim ("Counterclaim," for convenience) brought by intervenor-defendant Newman-Green de Venezuela ("NGV"). This Court's oral bench ruling that day:

    1. denied NGI's motion as to five of the
  Counterclaim's seven counts and
    2. set for briefing NGI's Rule 12(b)(6)
  challenge to the remaining two counts.

For the reasons stated in this memorandum opinion and order, NGI's motion to dismiss Counterclaim Count IV is granted and its motion to dismiss Counterclaim Count VII is denied.

Facts*fn1

Plaintiffs' Complaint comprises three counts:

    1. In Count I NGI sues NGV's shareholders for
  breach of an alleged guaranty agreement imposing
  limited liability on them if NGV breaches its
  License Agreement.
    2. In Count II NGI sues NGV itself for the
  price of parts and equipment ordered from NGI and
  delivered to NGV but never paid for.
    3. In Count III NGI's affiliate Arnel, Inc.
  ("Arnel") sues NGV for breach of an equipment
  lease (which NGV claims was in substance an
  installment sale contract).

NGV's Counterclaim, directed exclusively against NGI, alleges NGI breached the License Agreement and warranties (Counts I and II), defrauded NGV in violation of state and federal law (Counts III-V) and interfered with NGV's business relations (Counts VI and VII). Because all the other counts survived NGI's Rule 12 attacks in this Court's April 23 oral ruling, only Counts IV and VII are now at issue:

    1. Count IV alleges NGI violated Illinois'
  Consumer Fraud and Deceptive Business Practices
  Act (the "Act," Ill.Rev.Stat. ch. 121 1/2, ¶¶
  261-272) by fraudulently inducing NGV to enter into
  the License Agreement. NGV's theory is akin to
  promissory fraud: NGI's allegedly false statements
  were to the effect it would adequately perform the
  License Agreement.
    2. Count VII alleges NGI interfered with an
  advantageous business relationship between NGV
  and Arnel by causing Arnel to declare NGV in
  breach of the equipment lease (sued on in
  Complaint Count III) ...

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