TV Report Charges Misrepresentation of Foam-Filled Windows

July 21, 2009
Companies

An investigative report on Fox 29 News in Philadelphia has accused a Pennsylvania-based distributor with falsely promoting its vinyl replacement window line as having foam-filled sash and frames, when only small amounts of foam were evident in products found in the market.  Broadcast on July 20, the report was based on initial allegations from a New Jersey contractor.

The report, which can be viewed below, shows windows purchased from Windowizards, based in Levittown, Pa., that feature foam in the sash corners and only one chamber of the frame profile.  Also shown is product literature featuring completely filled profiles. 

Windowizards responded to the report with a letter to the station, which states it was inadvertently using improper artwork supplied by the window manufacturer, Okna Windows in Bristol, Pa.  Okna also responded with a letter to the station, apologizing to Windowizards and its other customers with improper promotional materials.  Both companies deny that there was any intent to deceive customers. 

The Fox 29 Web site features letters from David Goodman, Windowizards president, responding to the story, as well as a letter from Patrick Egan of Fox Roschild LLP, the company's attorney.  "An inaccurate portrayal of how much foam insulation is used in replacement windows was, as you correctly noted, depicted in photos supplied by Windowizards' manufacturer and inadvertently used in some of its marketing materials," the letter from Egan notes, adding that the wrong artwork was used for only a brief period. 

Egan's letter also points out that a window's energy efficiency is based on overall performance, not that of individual components.  The window with no foam would have a U-value of .28, he states. "The unit was tested with foam in all chambers as well as with foam in the chambers as depicted in our correct literature, and it produced a .25 in both cases," it adds.  

"Windowizards has received numerous telephone calls on its hotline inquiring about foam content of the windows it installs," noted a statement issued by Goodman.  "We are actively engaged in responding to these calls on an individual basis."  The statement pledges that the company will work with each customer to address concerns.   

Commenting on the situation, David Toney, an attorney with Adams and Reese LLP, a Houston-based law firm that regularly works with window and door manufacturers, states, "This will be a real mess for Windowizards, even if the claims are meritless. There will be claims of fraud, misrepresentation, deceptive trade practices, among others–all claims that will likely knock them out of any available insurance coverage.  And, given the inconsistencies and inaccuracies in their literature, contractual and statutory defense and indemnity claims back against the manufacturer will be very difficult, if not impossible."

Adding to the problems, Toney predicts governmental regulatory agencies may become interested in the situation. "Finally, there will obviously be claims between the dealer and manufacturer, as well as directly against the manufacturer by the consumers," he notes. 

"As fate would have it, I was at the Northeast Window and Door Association conference in New Jersey when the story concerning Wizard Windows and Okna windows broke on Fox 29 – Philadelphia," notes Paul Gary of the Gary Law Group in Portland, Ore., another attorney who regularly works with window and door manufacturers, and a regular contributor to Window & Door. "The story was aggressively presented with the point of view that there could be no question but that the situation represented an intentional act, a fraud. The consensus among our group was that the absence of foam 'fill' may actually not have adversely affected the industry standard performance criteria for the windows in question. But, that was not the within the broadcast 'message.'

"While certainly, there are more facts to learn, the lesson is already clear," Gary continues. "It is imperative that manufacturers and re-sellers control the accuracy of product representations. To be actionable, an inconsistency need not be anywhere near the magnitude of that in the reported story. Marketing materials must be aligned with verifiable fact and the attributes of one product line must never be allowed to spill over onto another. No one can tolerate intentional deception of the consumer, but even innocent misrepresentations are a source of serious liability."