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17, the dismissal without prejudice, by itself, cannot support Baccarat's characterization. Judge Boyle found that of the 380 retailers whom Baccarat invited to become authorized dealers, only one of them — Ross-Simons — engaged in systematic off-pricing. Thus, while the proscription against widespread discounting was part and parcel of a uniform contract (i.e., the Proposed Agreement), only Ross-Simons would feel its sting. On this basis, he concluded that Ross-Simons probably would succeed on the merits inasmuch as the proscription violated the nondiscrimination clause.
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