In "The War of the Roses" Kathleen Turner delivered the most dramatic "woof" in movie history when her character implied that the pate she just served was made from the family dog. While dramatic and intentional, rarely, if ever, should any company take a line from this movie and intentionally imply anything about its warranty claims. Indeed, the opposite is most often true; companies should strive to be clear and express about what is and is not covered in a warranty. This is particularly so where determined and creative consumers try to find implied warranties despite the company's best efforts to be clear and precise in drafting the warranty. Too frequently plaintiffs succeed in finding implied warranties.
For example, a review of recent cases filed in California shows that plaintiffs look to the overall purchasing experience and statements made about the products purchased to try to find an implied warranty.
One plaintiff successfully alleged an implied warranty by pointing to the opportunity to upgrade a base configuration of a computer to a "recommended" graphics card, where the computer was allegedly not powerful enough to support the recommended graphics card. The plaintiff's pleading also relied on the manufacturer's marketing and advertising to find the implied warranty. Other plaintiffs have relied on commercials and advertisements to try to find an implied warranty.
As we learned when we watched the War of the Roses, implications can be destructive. For manufacturers and sellers, those who draft the marketing and product claims, or make the sale, cannot be siloed from those drafting the express warranties. Coordination amongst the many constituencies responsible for making statements about a product is imperative when enterprising plaintiffs are reviewing all of your product statements as a whole and trying to find an implied warranty claim. It is also important that these key constituencies consider the overall buying experience and question whether the process can imply a warranty where none is intended (such as be "recommending" an upgrade).
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