the morning your honor i'd like to or reserve three minutes for a bottle well we'll try to help you but if you're on the clock you know go down so i work no i don't mean the clock goes oh i understood john may it please the court my name is clinton clinton woods and i'm here on behalf of plaintiffs and appellants robert and dan now  this is in my view a unique case it's different than any case that i've ever litigated before and it's different than any case that any of the other plaintiff's lawyers litigated before in the sense that you have three companies you have a manufacture seller and a warranty company and you have sort of a three card monte a shell game between these three companies that has created consumer fraud on the front end of the transaction and on the back end of the transaction  the consumer fraud takes the form on the front end in at least four different ways you have the warranty being created not by the warranty company and not by the manufacturer but by the seller the warranty was created by the seller by just copying the warranty of one of the what difference does it make well it makes a difference because there was no effort on the part of any one of these three companies to determine whether or not the warranty representations that were being made were accurate were truthful how do you know that because the record indicates that no testing was done on the steel coating the steel siding that was that was actually sold as the u s seemed to  understand your position to be that the seller could not ask for the signing of the card and connect with the limited warranty a lot of the seller itself had conducted certain tasks to prove everything conceivable i suppose about this side right well the seller could but that doesn't mean that the warranty in the marketing and warranty representations going forward are therefore acceptable it would be the first question  we i would i would disagree and that was the decision that was made by the district court in the reason why is we have i believe at bare minimum a material issue of disputed fact as to whether or not the defendants waived that requirement  the warranty registration requirement if you could read it based on the way it treated other people correct and what case law do you have that suggested that would result in a waiver well the case law with regard to implied waiver  clear that when determining implied waiver the analysis has you start on the the you use the the behavior of one of the defendant in the the respond in this case has nothing to do with the behavior of the plaintiffs and therefore it for you there i just want to be sure you answer my colleague question do you knowledge that you have no expressed warranty because the card was not returned no i  understand no we do not and because and that's because you think there's an implied warranty you know because there's an implied waiver of the warrant on it by implied way were that because other people didn't have to reach or in the card and they got services correct all of the cases that have been differently no your honor that there were not but the i think it's clear that that's not actually relevant how did the other purchasers also have some other documents that identify that they had actually purchased this product from the  seller in some cases they did and some cases they did not i believe that the testimony is that there was at least one hundred different or approximately one hundred different warranty claims that were made and this company the rule that you apply is that  even if there is a failure to comply with the warranty if the issuer of the warranty treats i don't know one or more of the other purchasers differently that effectively then void the warranty well and it's again it's not just one or more we're talking about it at approximately one hundred but it's a course of conduct on the part of the defendants wherein as far if you credit the declarations that they've submitted from the c e o of k v p that you know they never invalidated warranties on that on a technicality it's possible that the blend terrorises are the only  consumers that this warranty requirement has ever been involved in or so again let's let's let's help you out here let's assume for a moment that you're right aren't you still stuck with the statute of limitations problem that would basically do away with any relief from the implied warranty ok and the implied warranty is different and it's important to note that the court below did not determine that the express warranty but i would you're saying that was maybe i misunderstood you i thought you were saying that because other people weren't required to return this even though you didn't return the card i mean i have an express around you but you have an implied warranty you're saying that you actually haven't expressed warranty even though the card was not returned and you rely for that on the fact that some people got relieved with out returning the card is that right that is correct on an implied waiver theory not an implied warranty theory i apologize if i missp course of conduct as to evidence and intention to waive a right where the parties conduct in this case the defendant is inconsistent with any other intention than to waive it does and that's the ball many with respect to the  we take that is true it seems that the defendants had an inconsistent policy on how they treated individuals with regard to requiring the warranty registration  and we look to bowman it appears that their conduct was not inconsistent with any other intention than to waive the requirement of the registration card defendant sometimes accepted alternative forms of proof that the product was theirs but nothing about those except exceptions it seems evinced a desire to not enforce the warranty registration instead it seems to have shown an alternative way for the defendants enforcing the underlying purpose of the warranty registration is that what bowman tells us that you know that's ok while the underlying purpose of the warranty registration is simply to identify and that's what the testimony of the defendants were so it was simply to identify whether the the transaction was there or steal versus somebody else's a fungible product it could have bought this anyway and the purpose of the warranty if the registration is to make sure the record indicates they bought it from this or otherwise any anybody could just bring in the product and make that claim and that's that's correct and you know the record is clear that you know they never asked the voyageurs as hey give me your sales contract let me come out and look nothing like that they just deny the warranty claim but but even if this is the one case in which the warranty claim or the warranty registration requirement was in force and we don't know whether it is or it's i've ever seen but with respect counsel does that act though in effect is that kind of an umbrella over an underlying claim it's actually broader i mean yes yes and no it's similar to from california  through all right so you're admitting in california we are we look to an underlying violations somewhere and then this is on top of it different in washington it is i think you name me any case where relief has been granted in washington where there was not an underlying violation of something some others data and some other case law well the standard is unfair or deceptive and it's just capacity to deceive so there are cases that the record is replete with cases where you don't have to prove consumer reliance unlike the california statute you don't have to prove and i get that what i'm saying is that at bottom you don't want the methodology you prove it but what i'm saying is don't you have to show that there was a violation of some other watch in order to prove this no just that it's unfair and that is a determination that can be made by the founder fact or that it is it has t the of whether or not there they intend to deceive is actually irrelevant and the case is university of washington versus government employment insurance and that's at four hundred four p third five fifty case at the time of the purchase had the defendant had anybody ever complained to the defendant that there was a defect with this product yes they had first of all there was a hundred three letter that came after that that was before the purchase that was before the purchase you're on a different part of the product to a different aspect i understand the purchase was in march of ninety nine and they complain was filed in december of ninety nine first of all of that's that's if you credit the defendant's records which they acknowledge is incomplete but yes your honor their first warranty claim right was made in december of one thousand nine hundred nine that's not the first installation defect i'm just trying to figure out how we can assume the defendant should have had knowledge of the defect the blancher is complain when that defect was different the defect in manifest itself in your client's case if it was present three pre purchase well in our client's case it only took approximately a decade but the but the marking representations are that this product last night effect in the ninety three letter purred pertained to the condition of the siding three installation in one is pre installation the other one occurs ten years later you think is the same defect it's an inherent defect within the product and you know our experts went and looked at the product and ran a bunch of tests that the defendants didn't do and determined that there would be a failure rate of the lamination failure rate as high as seventy percent within the products and so is the process just to help me understand what you're saying that that process didn't have anything to do with this is the process that occurs before installation you know the rolling out of of of the of the siding something that materially changes the product such that the defect prior to all that process could not exist there's nothing that process or that the defect after installation could not have been created by the process sorry i mean interrupt i just want to pull there's nothing in the record to indicate that it changes the defect in fact if you look at our expert report it subsequent nine hundred ninety three letter i think it was from k b b k k can't show that implemented a new quality control type of program and that any of the defects would have were addressed or you know how can we assume and i guess i'm going to the time period six years later in one thousand nine hundred nine the same type defects were occurring with the siding and that the defendants had knowledge i think that that's one inference that you can take from that record that's one conclusion that somebody can draw the point that we're trying to make is that a jury could look at that one thousand nine hundred three letter and reasonably infer that the defendants were on knowledge of a defect in the product have pointed out this is really at its heart a breach of warranty claim it suffers from a fundamental defect off and that fundamental defect is that there was no breach of warranty the reason why there is no breach of warranty is because there was an invalid enforceable warranty registration requirement and plaintiffs so undisputed that plane just failed to timely submit the warranty registration card as required by the plain and ambiguous terms of our limited warranty you know your opponent claims that you waived the right to claim that there was no express warranty because you treated their purchasers who failed to return the car differently what your response to that your honor those were wholly separate contracts with wholly separate and unrelated parties plaintiffs don't cite a single case where there is a situation where a defendant or a company is held to have waived a contractual requirement through cond up with an unrelated party in an unrelated contract in fact the case laws  a little bit stronger than that even when it's the same party there's the case for morgan i believe that the robinson case we've got a contract you waive this non compete provision ok we renew the contract same exact parties oh hey we think you waive  that compete because you waived it the first time and the court said no this is a separate contract you know you're not going to do that the other case is the chester case which is pretty much directly on point to the case law just kills that one dead because they don't meet the requirement of having the guess what's your response and in general but isn't the nine hundred ninety three letter evidence that there were customer complaints about the citing defects prior to hundred ninety nine it seems like that might be significant and were were there any quality complaints i'd like to know from your perspective from ninety three to ninety nine you know two things when that letter is using the word customer i believe that it's referring to us seamless is franchisees what was happening was this rolled still call it was getting delivered to installers who are us seamless is franchisees and they were having problems stuff to and that's who are making these complaints these weren't installed these weren't complaints about installation of seamless still siding on residential homes there are complaints from our franchisees saying you gave me bad coil the pain is not hearing and i want to just take one second to clear up a bit of confusion i'm in terms of this process but even if they were franchisees i'm just trying to figure out isn't that still defects in the process i mean they're complaining about defects in the product they're complaining about problems with the product correct not the same product that the plaintiff had and also not the in my view not the same what do you mean but  product why isn't i guess why isn't that evidence of an inherent defect and i don't mean to i'm sorry to overstep judge it is in evidence of a problem with some of this product i agree with that i'm saying it's not the same maybe i missed it a lot i'm sorry but i just say it is evidence that there that at this time there was a problem with our process at least on occasion there were problems with our process your product yes or some of the product correct  i don't dispute that we were having some problems when these franchisees and maybe i misspoke but what i was trying to say is that this is not the same issue that was affecting the plaintiff's side i had a stand of the same issue but it's a decision product yes it's the same coil and i want to just explain something about this process what you have seen with provides to our franchisees is a piece of rolled st our franchisees then then cut it to size that's how to become seamless and they also in boston with wood grain so there there is a difference in the process other than just arriving  embossed so there is a little difference between what gets installed and what gets delivered to the installers but if it is the same product even though it's before and so on is your posing council correct that since this was a summary judgment there may be issues that the jury to decide on the degree to which your client knew that there was an inherent defect if any in this product i don't think that there's an in the i know you don't but i'm just saying is this something that the jury to decide rather than judge on summary judgment well there is a not for there corrections to the process made during this stand and the other part of that is ninety nine in a formal or informal i'm not aware of any your honor what i what i can state with certainty is that there were no customer warranty claims during that time period and i'm unaware of any formal complaints either that that's the best i can do and i'm not aware of and i don't believe there's evidence of informal complaints in the record and the first warranty claim i believe was in december of one nine hundred ninety nine so so in that interim period there were no warranty claims and i'm not aware of any informal complaint just further follow up questions area in your briefs and i think somewhat today you're you're you're making a point of explaining the defects in the one nine hundred ninety three letter might be different than the defects that the lenders complain of although right now you just said you know that coil it seems like there was an inherent defect the baseline of the defects was that the paint was chipping in peeling is that correct yes your honor ok how is it material then that the chipping and occurred prior post insulation in either case it seems like the paint was chipping and pilling from the siding despite the fact it was supposed to be durable and last a lifetime i believe it's an immediacy problem that the paint wasn't sticking well at all the first time and there were quality control issues that were resolved to our satisfaction this second the fact is one that occurs this isn't happening when you open it up the first defect manifest when you open the box when our installers are or for a better description is when they enroll the still coil the defects that the plaintiff is complaining about is something that happens twelve years later those are different well i'm not sure it's the same product you've conceded that as my colleagues point that we're talking about paint peeling but the reality is you said that the problems that you admit occurred were resolved to your satisfaction doesn't the plaintive appellant have an opportunity to present what he and his colleagues come up with in discovery to show that perhaps there was something else going on or that there was some knowledge that there were more problems with the product then you currently concede bottom line isn't this something that a jury ought to decide i don't believe so your honor if you look at sales i mean that's a adopting a very very broad disclosure requirement for any company that sells a product do you have to reach back into your files five years ten years fifteen years twenty years on the product depends what you've heard and that's the problem here is that you know if if you if your records show that the problem that was involved  hundred ninety three was entirely different and was resolved based upon your own people experts and so on then you're fine jury is going to find you that you're just fine and the other hand if what you found was you think maybe of solved but you're not sure let's see what happens and then later on there's a problem then you have that prior knowledge or at least were put on notice you could with that i believe that we had notice videoed so we want to be sure that you're preserved for posterity and thank you for your i represent k b peak oil coders and kick him limited and i will be brief on what i intended to address but i want to touch on a couple of points  you raised first of all your honor asked about what the distinction between installers and customers all of that is discussed including how the hundred three letter was resolved in mr ballenger bull injures declaration which is at s e r seven ten in the supplemental a record and what is clear is that this was part of the start up of the product of the product program and that once the problem was identified quality controls were put in place there was then a six year period and i will say unequivocally that the record shows that there were no customer complaints during that six year period the first customer complaint was about eight or nine months after the product was installed on the bullion jura says so the only omission that would be relevant there couldn't be a disclosure of things that had never happened i e same product you know but i guess what i would segue to is the fact that i don't discover that a repair or replacement warranty a promise to repair and political play which is what we have in this case is not a guarantee that the that hypothetically if people had returned their card are you saying that they would have had no relief here because what happened with the paint just the way it goes and that's not a normal wear and tear no no no no not at all your honor if someone had returned their card and there were eight thousand cards were turned there were their house would have been repaired or replaced in this particular instance my client takes great pride not only in its product but it is warranty program it's worth the program there were eight hundred one claims as of october twenty fifteen which is two months before judge bastian heard this case over was ninety five percent of those were repaired in peru placed at my client's expense w the paint right i'm sorry or with the paint yes your yes your and that's what the warranty covered so my client dutifully went out and repaired or replaced those the there were only five percent of those eight hundred one claims that were a product where if you have eight hundred and one claims made that's a lot of claims so i don't know what the total number of installations were but that's a significant number claim you've indicated that at least a number of them were of a same nature so you got some kind of a problem whether it was noticed before is another matter but you certainly have a problem with the product to some degree right well i would i would argue your honor that none of this is on the record because our experts weren't allowed to we never got to that point but the bottom line is ten percent product failure in this type of instance isn't a lot and but the but the what this was ten percent well actually it was yeah there's eight hundred more one word he claims out of eight thousand returned cards so approximately but the bottom line is that was the whole point of the limited warranty is if there's a problem we fix it and we did and then they one thing that is overlooked is that we had a relationship with these contractors that were go out into the field and when they did a repair or replacement they were not paid until the customer signed off that they were satisfied with retaking what you say it absolutely would you say but the real issue here is that was corrected just like i phones when they are introduced they might have a glitch here and there they are corrected there is then ace and parent thetic lee although it corrected because it seemed like it was an ongoing process of correction i mean where do you problem from that point on there was no problem but warranty was in place in case there was a problem and when problems arose eight or nine months after the installation by mr hadley of the bell of the why is it important to have the  registration return what's the purpose that well first of all your honor i don't think it is i think a manufacturer can require that without necessarily having a justification having said that in this particular instance there was a very good reason for it and that is because this product effectively is somewhat generic there were other manufacturers manufacturing the same steel core painted steel coil and none of them have markings on them and in fact over the course of the from one thousand nine hundred one to at least as of when my last contact before the summary judgment was granted they had my client had been presented with claims that there was absolutely no reason to believe that that was their product so if there wasn't a warranty card it was problematic now there were some there were some individual cases that were addressed where there were quail tags these come in big oil's there's a tag on the coil if it could be matched up then they would do what they could to commit to satisfy that particular customer confident that the complaint made by the appellants in this case were the product was manufactured by your client and not somebody else i am not your honor that this may be somebody else's problem i don't know the answer to that question the way this unfolded was a complaint was registered with us seamless it was denied the first my client was aware of this was when a lawsuit was filed  the number is but it is in the record that there's there's no dispute in my mind at all as to who you are over time we're going to give you a minute to go ahead so we're going to let you go here and give us what you can hear understand i'll be kicking people off on technicalities so that they can save money in their pockets now later he disclaims that says hey i didn't mean it but that's a factual determination as to whether or not the warranty did the warranty process is fair or likely to warranty may be intended to deceive and there will be an independent clause a back it would be yes your honor and in fact intention intention reliance and actual deception is not required under the washington c