Exhibit A

Supplemental Brief in Support of Joint 

Motion for Summary Judgment

Case 2:09-cv-10454-VAR-VMM Document 93-2 Filed 03/17/11 Page 1 of 6
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ADIL SHAFI,

 Counter-Plaintiff/

 Third-Party Plaintiff,

v.

FREDERICK WEIDINGER AND

BRAINTECH, INC.,

 Third-Party Defendant/

 Counter-Defendant.

Case No. 09-10454

Hon. Victoria A. Roberts

SUPPLEMENTAL BRIEF

IN SUPPORT OF JOINT MOTION FOR SUMMARY JUDGMENT

Defendant Frederick Weidinger (“Weidinger”) submits this Supplement Brief to address 

two purely legal grounds for dismissal of Plaintiff Adil Shafi‟s fraud-based claims in this matter, 

Counts III through V. First, as a matter of well-established black-letter law, Shafi‟s fraud-based 

claims are barred by the express integration provision in the sales agreement at issue. Second, 

under well-established black-letter law, the statements of opinion and puffing upon which 

Shafi‟s fraud-based claims are based are not actionable.

A. Shafi’s Fraud-Based Claims Are Barred By the Express Integration 

and Release Provisions in the Share Purchase Agreement

The Share Purchase Agreement (“SPA”) contains an express integration clause that provides: 

9.2 Entire Agreement. Unless otherwise herein specifically 

provided, this Agreement, including the preamble, recitals,

Schedules and Exhibits, and the documents and instruments and 

other agreements among the Parties as contemplated by or referred 

to herein constitute the entire agreement among the Parties with 

respect to the subject matter hereof, and supersede all other prior 

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agreements and understandings, both written and oral, between the 

Parties with respect to the subject matter hereof, including the 

Letter of Intent. Each Party acknowledges that, in entering this 

Agreement and consummating the Closing, such Party is not 

relying on any representation, warranty, covenant, obligation or 

agreement not expressly stated in this Agreement or in the 

certificates of or agreements among the Parties contemplated by 

or referred to herein.

See Jt. Mot. Summ. J., Dkt. # 66, Exhibit A, ¶ 9.2 (emphasis added). It is indisputable that 

Shafi‟s fraud and securities claims are based on various alleged pre-contract statements and 

promises allegedly made by Weidinger during negotiation of the SPA. See 2d Am. CounterClaim ¶¶ 45, 50, 57, 60, 63, 116, 118-121. 

It is well established black-letter law in Michigan that the inclusion of an integration 

clause in a written contract makes it unreasonable, as a matter of law, for a party to rely on a 

prior representation that was not subsequently included in the integrated written contract. See 

UAW-GM Human Res. Ctr. v. KSL Recreation Corp., 228 Mich. App. 486 (1998); see also 

Heidtman Steel Prod., Inc v. Compuware Corp., 164 F. Supp. 2d 931, 940-41 (N.D. Ohio 2001) 

(applying Michigan law) (finding that merger provision similar to that at issue in this matter 

precluded fraud claim). Shafi‟s assertions of fraudulent inducement do not negate the effect of 

the integration clause. To establish fraud where there is an integration clause, the injured party 

must show that the other party induced him to execute an incomplete agreement or to believe 

that the antecedent promise was included in the writing. UAW-GM, 228 Mich. App. at 503-04

(“[W]hen a contract contains a valid merger clause, the only fraud that could vitiate the contract 

is fraud that would invalidate the merger clause itself, i.e., fraud relating to the merger clause or 

fraud that invalidates the entire contract including the merger clause.").

There is no such allegation in this case. Shafi‟s fraud-based claims have nothing to do with 

being induced into executing an incomplete agreement or being led to believe the alleged 

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antecedent representations were actually included in the written agreements. Indeed, Shafi 

admits in his response to the joint motion for summary judgment that “[p]recisely the same precontract representations and omissions made it into in the SPA.” See Shafi Resp. Mot. Summ. J., 

Dkt. #77, at 39. This admission is fatal to Shafi‟s claims. Moreover, Shafi does not seek to 

invalidate the agreements (in fact, Shafi is pursuing an affirmative claim under his Employment 

Agreement, which stems from the SPA). Shafi expressly agreed as part of the SPA that all of the 

promises made in relation to the transaction were set forth in the written sales agreements and 

that he was not relying on any other representation made during negotiations in entering into the 

transaction. It is axiomatic that Shafi cannot both expressly represent that he did not rely on any 

pre-contract statements in entering into the SPA and, at the same time, rely on such statements in 

support of his fraudulent inducement claim. Because Shafi does not argue, nor is there any 

evidence to support, that the express integration provision in the SPA is void, Shafi‟s claims of 

fraud, fraudulent inducement, and securities fraud (which are premised on the same alleged precontractual statements) fail as a matter of law.1

 

B. The Allegedly Fraudulent Puffing Cited by Shafi Is Not Actionable

Under Michigan Law

In addition to being barred as a matter of law by the integration provision, Shafi‟s claims 

fail as a matter of law because they are based on mere puffing that is not actionable. It is well 

settled that opinions and “puffing” are not actionable as fraud. See Van Tassel v. McDonald 

Corp., 159 Mich. App. 745 (1987) ("[a]n action for fraud may not be predicated upon the 

expression of an opinion or salesman's talk in promoting a sale, referred to as puffing"). Indeed, 

 

1

 The only case cited by Shafi in support of his fraudulent inducement claim that even discusses 

the impact of an express integration provision is Custom Data v. Preferred Capital, 274 Mich. 

App. 239 (2006). The integration provision at issue in Custom Data, however, did not include 

the additional express representation that the parties were not relying on any other representation 

made during negotiations in entering into the transaction and therefore, is distinguishable from 

this matter. 

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the statements Shafi relies on in support of his claims are similar in nature to those courts have 

routinely dismissed as involving mere puffing, such as, for example, statements that:

 A party‟s contacts “could bring „a lot more‟ business to the table, and would yield „large 

volumes‟ of sales and „high volumes of VA potential;‟” American Inst. For Preventive 

Med., Inc. v. Oakstone Publ’g, LLC, 2010 U.S. Dist. LEXIS 19968 at *21-*25 (E.D. 

Mich. Mar. 5, 2010) (finding statements to be “nothing more than the expression of an 

opinion and sales „puffery‟”); 

 “[A] franchise location was a „goldmine,‟ that the franchise had an „excellent product,‟ 

and that there were „no bad [franchise] locations;‟” Van Tassel v. McDonald Corp., 159 

Mich. App. 745 (Mich. Ct. App. 1987) (finding that statements were sales puffery and 

could not serve as the basis for a fraud cause of action);

 “(1) Nationwide was an excellent group of companies to work for; (2) Plaintiff would be 

properly trained in all aspects of Nationwide business; (3) Nationwide was ethical, and 

their business practices were legal and ethical; and (4) Plaintiff would reach "Career 

Agent" status after a period of three years;” Ford v. Nationwide Mut. Ins. Co. 1998 U.S. 

Dist. LEXIS 21189 at *7-*8 (E.D. Mich. Dec. 30, 1998) (finding statements were not 

actionable as fraud because the involved defendant‟s opinion regarding the reputation of 

its companies and morality of its business practices, and representations that plaintiff 

would reach certain status after three years referred to future promise or expectations);

 That a window business was "a great business" and that "you make tons of money in this 

business; " see Home Sweet Home Invs. v. Weber & Mony, P.C., 2003 Mich. App. 

LEXIS 3103 at *12-*13 (Mich. Ct. App. Dec. 4, 2003) (finding comments were 

"salesmen's talk in promoting a sale" or mere "puffing" that were not actionable as a 

misrepresentation).

The statements Shafi relies on in support of his claims are unquestionably similar to those above, 

for example:

 “[A]n acquisition with Braintech assuming your business debt and buying your stock, all 

brhi [Braintech] stock up front to you ,big leadership contract for you with monthly 

payments for 2.5 year of agreement, cash deposit at execution and certain cf ip back to 

you after 2.5 years would be best transaction for all.” 2d Am. Counter-Claim ¶ 45 

(emphasis added).

 “[W]e will do what is best for Braintech which is also best for you,” id. ¶ 50.

 “[A]dil you need to do this deal and still think it will accelerate business for brhi 

[Braintech]. It is not perfect for either of us but is very good for you bottom line,” id. 

 “[T]hat Shafi would be part of an important management team and in fact would have 

daily control over both technology and sales reporting only to Weidinger and that he 

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would receive substantial compensation in bonuses stock options and other benefits from 

the newly-formed position of Chief Operating Officer of Braintech for the newly 

combined enterprise,” id. ¶ 119.

 That under the transaction, Shafi would receive “substantial” consideration “up front,” 

see id. ¶¶ 60, 118.

Each of the alleged statements relied upon by Shafi contain mere opinion and puffing that is

not actionable under Michigan law.

Respectfully submitted,

DICKINSON WRIGHT PLLC

By: s/

Thomas G. McNeill (P36895)

TmcNeill@dickinsonwright.com

Michelle L. Alamo (P60684)

Malamo@dickinsonwright.com

Attorneys for Frederick Weidinger, Only

500 Woodward Ave, Suite 4000

Detroit, Michigan 48226

Tel: 313.223.3500

Fax: 313.223.3598

Geoffrey J. Greeves

PILLSBURY WINTHROP SHAW 

PITTMAN

LLP

Co-Counsel for Frederick Weidinger, Only

2300 N Street, N.W.

Washington, DC 20037-1122

(202) 663-9228

geoffrey.greeves@pillsburylaw.com

Dated: 

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