Working with Window Lawyers

Paul R. Gary
September 21, 2015
COLUMN : Legal | Operations

Every significant business has a multi-layered intersection with the risk inherent in the American legal system—product manufacturers and resellers especially. From the product perspective, lawyers who manage the risk at these layers require a knowledgeable connection between established legal issues and the nuances of the fenestration business. To be sure, there are a few areas you might want to review with the lawyer representing your window and door company.

Supply

Do vendor-supplied materials meet the required certifications? This includes both AAMA verified component and certified profile status. But, you might also seek an independent representation that the ongoing supply of material will perform within the tested requirements. “Conflict mineral” statements have become necessary in many situations. Soon, life cycle assessment will require cradle-to-grave environmental promises that demand relevant information from vendors.

Also, consider having key suppliers acknowledge they understand your relevant manufacturing and fabrication processes involving their product, and do so in a way that a later claim by the supplier of “misuse” of their material would be questionable.

Product Documentation & Certification

AAMA now has specific ongoing documentation requirements to support product certification. The drive for documented support concerning mandatory quality and product irregularity issues, in my view, will not stop. Also, the leeway afforded by AAMA for labeling combination and composite products has been reduced over recent years, with an attendant heightened legal issue.

Everything that is written about the window or door you sell is a potential product warranty. You should work with counsel to develop a plan for management of that risk and a way to maximize the “primacy” of the product’s intended express warranty. A written product warranty itself presents a challenge in many regards, not the least of which is the need to balance comprehensiveness with readability. No other document offers a manufacturer/seller this opportunity to present promises and protection to customers.

Distribution & Market

Multiple steps in product distribution create challenges for control and allocation of risk, but communication technology offers tools for management. Task your window lawyer to identify the issues present in your distribution chain and to propose a solution so that your company can create an effective plan.

Without management of chargebacks and credits, even the best job can become a loser. It is important to be clear up front concerning the rules. Your lawyer can assist in creating sales terms and conditions that are fair to buyer and seller that also will work as an effective ‘basis of the bargain’ communication.

Also, the market into which you sell affects the issues surrounding your product. Selling new construction versus replacement is perhaps the easiest example. Whether a window/door is covered as a consumer good by federal warranty law, for example, is largely dependent on the nature of the transaction, not on the product itself.

Service

The question of what constitutes appropriate service begins with the application of a product warranty. The answer may not end with the literal terms of the warranty. A window lawyer can be an effective resource in the case of a claim, adding not only legal evaluation but resolution strategy. Regardless of the “yes or no” decision made with respect to an individual service request, sophisticated methods, communication strategies and documentation are a must. Again, technology exists to better refine communication and record-keeping skills with a company.

Lawsuits, Big and Little

Lawsuits challenge the manufacturer/seller to make principled decisions. The catch is that, to be able to do so, you must grasp the principle relevant to your situation and the legal issues in the case. Of course, this varies based upon the circumstances and, as a result, winning can take differing forms. However, the need for meaningful and prompt evaluation does not vary. Your window lawyer should be able to deliver. Forecasting litigation remains a world without promises, but look for an explanation of the factors that will sway events at a level you can understand so you can participate in the decision-making.

There is an important role for your window lawyer in working with local trial counsel to establish the best available strategy in each case. Adding this capacity up front pulls the ability to make important case decisions forward in time so you minimize, by directed defense or resolution, the long “money bleed” that uncontrolled litigation can represent.

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.