Class action litigation has become a reality of the fenestration industry. These attacks come in many forms including those directed at a common method of assembly or fabrication practices—that is, a manufacturing defect. This is an important legal reality that window and door companies need to know about.
Product liability is a legal theory that generally focuses on three things: design, manufacture or marketing. On the other hand, a “class action” is a procedural tool. A plaintiff believes their legal theory applies not just to themselves but to others as well.
A key issue in any class action is the common nature of the challenged condition or conduct. In the past, class actions regarding design and marketing representations have been more frequent because most product users are equally exposed to the same product design and labels. Manufacturing defects have been less frequent because, quite simply, mistakes happen. Mistakes in manufacturing are unintended, irregular and therefore not easily determined on behalf of a class of product users.
But times are changing. Manufacturers are increasingly finding their assembly and fabrication processes under class action scrutiny. Claimants focus on how a product is assembled, in addition to how it is designed. They allege that common assembly or manufacturing practices expose a design’s limitations, which lead to common harm and the potential for class action treatment.
A non-fenestration example of these claims is found in the class action litigations involving Takata airbags. Among the various allegations is a claim that 7.8 million airbag assemblies were put together in a way that launches metal pieces into the cabin and hurts passengers when the airbag deploys. The theory is that the assembly method itself measurably increased the potential for harm from these metal pieces equally to all owners of cars where the airbag assemblies are installed.
Manufacturing class action claims in our industry are becoming more apparent because, like cars, windows and doors are assemblies of parts and pieces. Certification under the North American Fenestration Standard recognizes that effective fenestration requires performance from a variety of components brought into a comprehensive system. The standard addresses this through processes for validating and certifying components and parts. This process arguably tries to achieve a commonality of incoming materials that manufacturers must be prepared to manage and defend.
Any manufacturing defect claim, class action or not, can turn on the considerations manufacturers make with regard to how verified components are brought together in a product’s design. The issues are wide, ranging from the storage and evaluation of incoming materials all the way through how products are packaged for shipment.
On the Defense
Manufacturers that can establish that there was a reasonable business judgment for each step along their manufacturing chain—and that there was consideration of how those steps might affect the design of the finished product—are better positioned to defend a manufacturing defect claim. Additionally, engaging in that exercise can help identify potential manufacturing issues and their legal risks before they become embedded and, potentially, the subject of legal claims involving common manufacturing processes.
Programs like AAMA 103 and WDMA’s Hallmark Certification Program can help manufacturers evaluate where those quality checks should occur and quality systems that may assist in the management of assembly and fabrication concerns. These programs establish documentation and compliance checks that can prove useful to defend manufacturing challenges.
Such defenses, however, are often only as viable as the ability to obtain real data about manufacturing processes. Quality checks and line-pulls are more valuable if you can evaluate the data in a targeted fashion, over time, in an economic way.
Beyond compliance issues, many companies use their warranty as a recognition of the potential for mistakes in manufacturing. A good warranty can be a powerful statement of product support. It can also help defend manufacturing claims by simply announcing that a manufacturer is willing to fix product conditions that do arise.
The willingness to cure a product condition, when validated, can provide a significant shield to claims of failed workmanship, even where such claims stretch across a class of owners. More advanced warranties even have processes in place that can help defend against class actions themselves.
Class actions pose serious challenges to all aspects of a product, whether directed at the design or manufacture. Quality design and risk assessment should not ignore assembly and fabrication as steps of ongoing concern.
Documenting certification and validation of the design and its incorporated components can prove essential at defending a class action or singular challenge. Moreover, standing behind a product in the field through a properly administered warranty program is key. None of these is a guarantee against class action litigation, but will significantly aid in defense if/when it occurs.