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FASHION BOUTIQUE OF SHORT HILLS v. FENDI USA

November 19, 1999

FASHION BOUTIQUE OF SHORT HILLS, INC., PLAINTIFF,
v.
FENDI USA, INC. AND FENDI STORES, INC., DEFENDANTS.



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

OPINION

Defendants Fendi USA, Inc. and Fendi Stores, Inc. (together, "Fendi") move In limine to preclude the proposed testimony of Dov Frishberg, Ph.D. at the trial of this action. Plaintiff Fashion Boutique of Short Hills, Inc. ("Fashion Boutique") proffers the testimony of Dr. Frishberg as an expert to testify on the lost value of Fashion Boutique's retail business when Fashion Boutique closed that business in 1991. For the reasons discussed below, Fendi's motion is granted.

BACKGROUND

It is undisputed that plaintiff operated a retail store in a shopping mall in Short Hills, New Jersey from 1983 to 1991. Plaintiff was a Fendi franchisee and offered for sale only merchandise manufactured by Fendi. In late October 1989 defendant Fendi Stores, Inc. opened a retail store in New York City which also sold only Fendi products.

In this diversity case, Fashion Boutique asserted claims under the Lanham Act and common law claims of business slander and disparagement of goods. Fendi's motion for partial summary judgment dismissing Fashion Boutique's Lanham Act claims was granted in 1996. Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 942 F. Supp. 209 (S.D.N.Y. 1996). In 1998, Fendi moved for summary judgment on the remaining common law claims. That motion was granted in part and denied in part, leaving nine actionable statements for the remaining claims of business slander and disparagement of goods. Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., No. 91 Civ. 4544, 1998 WL 259942 (S.D.N.Y. May 21, 1998). Those claims are scheduled for trial.

The three statements on which the claim of business slander is based are:

1. In December 1990, a fur salesperson and an assistant manager in Fendi's New York store allegedly told customers Carmen and Madeline Montalbano that the "Fendi organization" was planning to shut down Fashion Boutique "in the near future." (C. Montalbano Decl. ¶ 6; M. Montalbano Decl. ¶ 8.)

2. In March 1991, a customer service representative in Fendi's New York store allegedly told customer Joan Marano that Fashion Boutique would be "closing shortly." (Marano Decl. ¶ 3.)

3. In March 1991, the customer service manager in Fendi's New York store allegedly told customer Lawrence Ray that "we're having problems with the Short Hills store." (Ray Decl. ¶¶ 2-4.)

Plaintiff's claim of disparagement of goods is based on the following six statements:

1. In December 1990, a salesperson in Fendi's New York store allegedly told customer Anna Bassett that Fashion Boutique sold a "franchise line" that was inferior to the "top Fendi line" sold in the New York store. (Bassett Decl. ¶¶ 2-6.)

2. In December 1990, Jack Cohan, a fur salesman in Fendi's New York store, allegedly told the Montalbanos that "[e]verything [Fashion Boutique] sells is inferior. Their furs are old and they're not made well. If you're going to spend that kind of money, shop here instead. We are the real Fendi." (C. Montalbano Decl. ¶ 4.)

3. In December 1990, a salesperson in Fendi's New York store allegedly told customer Jerry Ring that "[i]f [he] bought [his briefcase] at the Fendi in Short Hills, it is not the real Fendi line." She went on to explain that Fashion Boutique sold an inferior line of goods. (Ring Decl. ¶¶ 3-6.)

4. Near Easter of 1991, a salesperson in Fendi's New York store allegedly told customer Valda Green that Fashion Boutique sold a "lesser line" of Fendi products. (Green Decl. ¶¶ 2-4.)

5. In the spring of 1991, Francesco Gittardi, a salesman in Fendi's New York store, allegedly told customer Philip Scheer that Fashion Boutique sold an inferior line of Fendi ...


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