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enable him to commence the activity. It appears that petitioner
became aware that telephone debit cards of competitors were being
marketed in Las Vegas for amounts less than those of BMI.
Petitioner complained about this to BMI; however, the record does
not reflect whether BMI addressed this complaint.
Petitioner later decided that, in lieu of distributing the
musical greeting cards, since BMI also promoted the sale of
Medical Emergency Response Cards (MERC), petitioner would instead
market MERC. BMI agreed to this switch. MERC were programmed to
contain vital medical information of the holder so that, in an
emergency, if the cardholder was incapacitated, such information
would be available by telephone.
BMI did not immediately send the MERC to petitioner,
although the record shows petitioner made several telephone
requests to BMI during 1994 in order that he could commence his
business. However, in a letter to BMI dated May 31, 1994,
petitioner, expressing frustration, requested his money back. On
July 18, 1994, BMI shipped some of the telephone debit cards and
brochures; however, BMI did not provide the store locations with
the necessary computer to activate the cards. In a letter to BMI
dated July 27, 1994, petitioner concluded the letter with the
following:
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