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This treatise on consumer warranty law addresses the rights of consumers when personal property they have purchased or leased does not meet their expectations. The book focuses on defective new and used cars, manufactured homes, automobile repairs, home improvements, and wheelchairs and other assistive devices. It also analyzes common law and statutory warranties that arise in the sale of a new house or condominium. The treatise only indirectly touches on warranty rights concerning other real property transactions or personal property purchased for business purposes.

Consumer Warranty Law is available in both a print and a digital edition. Print revisions are released every few years and the digital edition is updated more frequently, with all changes integrated into the text.

This chapter provides introductory material concerning this treatise: a description of its digital edition; a brief summary of the contents of its other chapters, and appendices, and also the pleadings and other companion material available online; conventions and caveats for use of this treatise; and a listing of other NCLC treatises with related content.

Of even greater significance, this chapter covers a number of important substantive topics, provides an overview of warranty law, and an automobile litigation checklist. The substantive topics include:

The treatise is divided into two parts. Part I covers warranty law of general applicability to most consumer transactions. Chapter 2, infra, analyzes the federal Magnuson-Moss Warranty Act, a key statute in any warranty litigation.

The appendices reprint or summarize key warranty laws and contain various practice aids. The Magnuson-Moss Warranty Act, the Federal Trade Commission’s Magnuson-Moss rules, relevant sections of the federal National Manufactured Housing Construction and Safety Standards Act, and the Federal Trade Commission’s Used Car Rule are reprinted in Appendices A–D, infra, respectively.

The treatise’s digital edition also includes pleadings and discovery, practice tools, and primary sources that can easily be downloaded, emailed, and cut and pasted into documents. They are listed at the bottom of the digital table of contents found in the website’s left pane and are fully searchable. Search filters allow users to search only for pleadings, only for primary sources, or only for practice tools. Searching for pleadings is recommended using the Advanced Pleadings Search tool, found above the Search box.

The federal Magnuson-Moss Warranty Act¹⁷ is central to most consumer warranty cases. The Act substantively regulates consumer warranty terms and remedies, and specifies disclosure requirements. A key concept in the Act is the term “written warranty,” which refers to those express warranties that are in writing and that meet certain standards specified by the Act. The Act also has important applications to claims based on breaches of implied warranties and service contracts.

The academic literature on the UCC is voluminous. The following are some of the available treatises:

The law of consumer warranties has been changed considerably by the passage of the Magnuson-Moss Warranty Act, state lemon laws, and state UDAP statutes. Resources on these laws include:

Subdivision (c). Subdivision (c) is amended in several respects. The requirement that the court determine whether to certify a class “as soon as practicable after commencement of an action” is replaced by requiring determination “at an early practicable time.” The notice provisions are substantially revised.

The language of Rule 23 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6.

Rule 23 is amended mainly to address issues related to settlement, and also to take account of issues that have emerged since the rule was last amended in 2003.

This chapter examines the steps consumer lawyers can take to protect the class efficiently and effectively throughout the different stages of litigation. The steps can be divided into three timeframes: before the complaint is filed, after the complaint is filed but before the class has been certified, and after the class is certified. With that framework in mind, this chapter discusses:

Timing and procedure are always critical in litigation. This is especially true in class actions because the problems and issues inherent to complex litigation are amplified. “The aggregation of a large number of claims and the ability to bind people who are not individual litigants tend to magnify [those] problems and issues, increase the stakes for the named parties, and create potential risks of prejudice or unfairness for absent class members.”⁴

The reasons for taking care to preserve documents are straightforward. A class member’s claim frequently depends upon the existence of records in the defendant’s possession. Missing records can extinguish a class member’s rights or at least make a proof of claim much more difficult, if not impossible. Destruction of records also may prove damaging to the class as a whole. For example, missing records may make it impossible for the plaintiff to prove numerosity or the extent and illegal nature of the defendant’s conduct.

Abraham Lincoln said, “[g]ive me six hours to chop down a tree and I will spend the first four sharpening the axe.” As with all litigation, much of the most important work on a case begins long before the complaint is filed. In order to protect the class, it is good practice for a consumer lawyer to spend a significant amount of time doing pre-suit investigation, which will enable class counsel to start the case in a strong position and with a good command of key evidence.

To lessen the odds of document destruction (be it on purpose or by accident), it is essential to take steps at the beginning of the lawsuit to ensure that the defendant does not destroy records. Case law imposes a “duty to preserve material evidence . . . not only during litigation but also . . .

The Federal Rules of Civil Procedure include requirements governing electronically stored information (ESI). ESI differs from paper information in many respects—for example, in volume, variety of sources and formats, dynamic quality, and hidden information (such as metadata and embedded data). ESI is dependent on the system that creates it. Deleting information from a computer usually does not erase it completely. These factors make both preservation and discovery of ESI more complicated than paper discovery.

If a case management order is not issued soon after the lawsuit is commenced—or if the defendant’s lawyer will not agree in writing that the defendant has taken the steps set out above—the plaintiff should bring a motion for a document preservation order.³⁸ The Federal Rules of Civil Procedure provide authority for a federal court to order the preservation of documents.

Even if a judge denies a motion for a document preservation order, it is important that the plaintiff’s lawyer obtain, at some point during the argument on the motion, a statement by the defendant’s lawyer that the defendant has been told to preserve class members’ files.⁴⁸ If corporate management and its lawyers have knowledge that a document retention policy will result in destruction of relevant documents in the absence of a preservation order, and they nevertheless do not issue a preservation directive, it is tantamount to an intentional de

Most defendants in consumer class actions do not engage in inappropriate communications with putative class members concerning the pending litigation. But some defendants do, in an attempt to render the claims moot or convince class members to: (1) opt out; (2) release their claims; (3) enter into out-of-court settlements; or (4) compromise their factual situations in some way.⁵⁰ Hopefully, those kinds of issues will not arise, but it is important to be aware of possible problems and how to address them.

While this section is concerned with improper defense contact with class members—before and after class certification is granted—it is also helpful to consider related case law that has arisen in the context of contact with class members by plaintiff’s counsel and by objectors. The key Supreme Court decision setting forth criteria for non-communication orders is Gulf Oil Co. v.

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued a formal opinion on the issue of contact by counsel with putative members of a class prior to class certification.⁶² The formal opinion recognizes that, “[b]efore a class action has been certified, counsel for plaintiff and defense have interests in contacting putative members of the class” and that Model Rules of Professional Conduct 4.2 and 7.3 do not generally prohibit counsel for either party “from communicating with persons who may in the

Once the class has been certified, the defendants’ lawyers may not communicate directly with class members because the plaintiff’s lawyer represents all class members.⁸⁵ State rules of professional responsibility based on the American Bar Association’s (ABA) Rule of Professional Conduct 4.2⁸⁶ invariably prohibit counsel from communicating with a party known to be represented by a lawyer, and class members must be treated as parties represented by a lawyer.⁸⁷