Product Liability

Alabama Woman Wins Warranty Lawsuit against Apple – Consumer Rights Attorney Judson E. Crump

October 23, 2020 by Attorney Judson E Crump 6 Comments

I’ve been prosecuting warranty cases for a while now. A few years ago, I wrote a post about the Apple Warranty. Well, evidently someone out there read my post, because in January of 2020, a client called me to ask advice for how to deal with a defective iPhone. Here’s her story.

Back in October of 2019, she bought a brand new iPhone XR from the AT&T Store in Fairhope, Alabama. The iPhone cost her $649.99. She had been an iPhone user for years, and was loyal to the Apple brand. So she had every reason to expect that this new iPhone XR would function well.

She was wrong. From the time she purchased the iPhone, it frequently and unpredictably dropped calls, even when there was a perfectly good cellular signal available. Her reception in her home was great. Her husband was on the same AT&T cell phone plan as her, and his phone never dropped calls. Also, none of her previous iPhones had this problem, either. In addition to the dropped calls, her iPhone would frequently connect a call, but then unpredictably mute the audio. She estimates that about 1/3 to 1/2 of her calls either dropped or had muted audio.

No problem, she thought. I’ll just ask Apple to replace it or refund my money. Surely, as a longtime, loyal Apple customer, they would be glad to help, right? Not so.

First, she took the iPhone to the AT&T Store. There, they attempted to resolve the issue by resetting the phone and checking to make sure that it was properly receiving signals from the local cell phone towers. It was.

After several visits to the AT&T store failed to resolve the issues with the phone, she decided to call Apple. She called them in November 2019 and spoke with them, but they refused to offer a replacement or a refund. She called again in December 2019, and spoke to their agents for hours. But again, they refused to offer a replacement or a refund.

Unable to convince Apple to do the right thing, she called our office for help. We sued Apple on February 3, 2020, alleging breach of warranty, and asking for an award of damages, plus costs and attorneys’ fees pursuant to the Magnuson-Moss Warranty Act.

The Magnuson Moss Warranty Act.

The Magnuson-Moss Warranty Act is a federal law passed in 1975 (signed by President Gerald Ford) which applies to all consumer products sold in interstate commerce that cost more than $15.00. The Act does a few things, but the most important ones are:

Written warranties cannot give you less rights than implied warranties in the UCC or common law. 15 USC 2308
Warrantors must, at a minimum, repair, replace, or refund a defective product within a reasonable time and at no charge. 15 USC 2304.
Before filing a warranty lawsuit, the purchaser of the product must first notify the warrantor of the problem and give them a chance to remedy it. Also, if the warrantor has an informal dispute resolution mechanism in place, the purchaser must first follow that procedure before going to court. 15 USC 2310(a).
If, however, the warrantor does not resolve the issue with the product, the purchaser can sue the warrantor for damages, and if you win, they have to pay your attorneys’ fees and court costs. 15 USC 2310(d).

“The provision for awarding attorney fees in Magnuson-Moss exists in order to assist consumers in vindicating their rights where legal expenses would otherwise be prohibitive.” Leavitt v. Monaco Coach Corp., (Mich. Ct. App. 2000). “Thus, the clear language of the Magnuson-Moss Act allows recovery of an attorney fee by a consumer who prevails in a breach-of-warranty action against a seller under state law, provided the seller is given an opportunity to cure.” Forest River, Inc. v. Posten, (Ala. Civ. App. 2002).

The Trial Against Apple.

When I told my dad I was suing Apple, he asked, “Aren’t you sort of scared to be going up against the biggest tech company in the world?” “Absolutely not,” I said. I knew that my client was telling the truth and that the law was on my side. When Apple answered the Complaint, they denied any wrongdoing. They said that they owed my client nothing because she had not “satisfied her obligations under the Warranty.” Before the trial, Apple filed a pretrial brief arguing that they had not been given the chance to fix the phone, and for that reason, they couldn’t be held liable for their own defective product.

Apple’s pretrial brief blamed everything on my client:

“When Plaintiff began having problems with her iPhone, she did not seek help from Apple. She did not bring her phone to an Apple store, and she did not seek to send it to Apple for warranty service.” Evans v. Apple, Inc. 05-DV-2020-900173, Document 49, p. 2. Turns out, this just wasn’t true. She called Apple more than once and all she wanted was a refund or a new phone. None of Apple’s employees ever even asked her to return the phone for repair. Nor did they send her a packing slip or any shipping instructions. And the nearest Apple Store is over 150 miles away!

In my own brief, I pointed out the fact that Apple could have easily just offered her a refund or a new phone. It was written right there in their own warranty. But they didn’t. The first time they asked for the chance to repair the iPhone was after we’d filed the lawsuit.

Thankfully, the trial judge wasn’t buying their story. At the end of the trial, he entered judgment against Apple for the cost of the iPhone, plus costs and attorneys’ fees. For most lawyers, a small judgment in a warranty case isn’t something to get excited about. But for me, it wasn’t really about the money. It was about holding a big corporation accountable for keeping its promises. And that’s just what we did. So if you or someone you know has a defective device and the manufacturer refuses to offer any help, call us. 251-272-9148.

Medical Device Warranties – Alabama Consumer Rights Attorney Judson E. Crump

July 19, 2017 by Attorney Judson E Crump Leave a Comment

Medical Device Warranties

When most people think of warranties, cars are what first comes to mind. But the most expensive and important consumer products that bring warranty concerns are medical devices. Hip and knee implants, meshes, trachial tubes, pacemakers, and prosthetics are a few common ones, but there are hundreds. The obvious thing that separates most medical devices from other consumer products is that they are extremely important to their users, because they’re basically a part of a person’s body. If something goes wrong with an implanted medical device, it can cause disastrous consequences.

Truly dangerous malfunctions are usually the subject of product liability actions. But not all medical device malfunctions or breakdowns cause catastrophic injuries. Sometimes they just need to be replaced. Unfortunately, this can often require a whole surgical procedure. Some medical device warranties today cover surgical costs, which are otherwise usually paid for by the hospital.

When a medical device manufacturer is not honoring their warranties, then you may need to consider legal action. If this has happened to you, call me at 251-272-9148 to discuss your options.

“Certified” Used Cars Can Still be a Scam – Alabama Consumer Fraud Lawyer Judson E. Crump

November 24, 2015 by Attorney Judson E Crump 2 Comments

Certified Pre-Owned Vehicle Programs Sometimes Cover Past Wrecks. Beware of Trusting the “Certified” Label.

When you’re looking to purchase a car, all you want is a reliable, comfortable car that you can afford. If you either cannot or will not spend the money to buy a brand new vehicle, then a used car is your only choice. Certified Pre-Owned Vehicles can be a decent option, if you’re dealing with a manufacturer who stands behind their certification and do your diligence ahead of time.

But many times, the certified label is nothing more than a fancy sticker used to raise the price of the car. Some manufacturers have even been known to repaint wrecked cars and then push them through their “certified” process. Or more commonly, allow dishonest dealer sales personnel to conduct the “certification” and simply rubber stamp the dealer’s certification.

If you paid certified-car money for a vehicle that was previously wrecked or used as a daily rent-a-car, you should talk to your lawyer about your options for getting your money back.

If you live in Alabama and would like a free consultation regarding your rights with certified pre-owned vehicles, call us at 251.272.9148 today.

VW Emission Deception: What you can do about it. – Alabama Fraud Lawyer Judson E. Crump

September 25, 2015 by Attorney Judson E Crump 2 Comments

If you’ve been watching the news, you may have heard about the massive fraud that Volkswagen has perpetrated on its customers. For several years now, they have been marketing their “clean diesel” cars as being, well, clean burning, low-pollution vehicles. They even had scientific proof: emissions tests showed that the “clean diesels” were less harmful to the environment than other cars.

Unfortunately, it was a lie. VW actually rigged the cars to pass emissions tests. What does this mean? Your car might be illegal to drive. And worse, the fix can drastically affect performance.

If you have bought any of the following vehicle models, you should contact a consumer protection lawyer right away:

2009-2015 VW Jetta DTI

2009-2015 VW Beetle DTI

2009-2015 VW Golf DTI

2009-2015 VW Passat DTI

2009-2015 Audi A3 Diesel

Alabama residents who want to know their rights can call us at 251.272.9148, or fill out our contact form HERE. Don’t wait around for the class action notice to arrive at your doorstep. Talk to a real, local lawyer you can trust.

What Is False Advertising? – Alabama Consumer Protection Lawyer Judson E. Crump

August 10, 2015 by Attorney Judson E Crump 11 Comments

“False Advertising” happens all the time. What Can You Do About It?

You Can't Believe Everything You See on TV. But False Advertising is Illegal. — You Can’t Believe Everything You See on TV. But False Advertising is Illegal.

Scenario 1: You open the mailbox. Tucked in with all the junk mail you see a great offer: a discount on something you’ve been wanting for months, available only for a limited time. You go to the store to buy the advertised special. But you get there, and the price advertised isn’t what is being charged.

Scenario 2: An online retailer’s website lists a color printer at $199. You buy it. 4 days later, the package arrives in the mail, and you open it only to find that the printer is a black and white printer.

Scenario 3: Autotrader.com has a truck listed for $16,990. You go to the dealership and when you sign the paperwork, you realize that the real price has been jacked up to $18,500.

Scenario 4: You take the family out to dinner at “The Red Crawfish,” where you order a fillet of red snapper. But it doesn’t taste like snapper. In fact, the underside of the fillet has some small black scales. Turns out, you’ve been served mullet instead.

All these scenarios have something obvious in common: they involve false advertising. False advertising can come in many forms, and new ones are invented every day, it seems. The reasons are obvious: businesses will do almost anything to get you to buy their products. And while some exaggeration is harmless and expected, are merchants allowed to lie about the products they sell? Absolutely not. And if they do, then they can be taken to court and held responsible.

Like most states, Alabama has a specific statute prohibiting false advertising: the Alabama Deceptive Trade Practices Act, or “ADTPA,” as we lawyers call it.

The ADTPA, which can be found at Ala. Code Title 8, Section 19, contains a list of specific prohibitions. Here are a few:

“Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.”
“Causing confusion or misunderstanding as to the affiliation, connection, or association with, or certification by another.”
“Using deceptive representations or designations of geographic origin in connection with goods or services.”
“Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.”
“Advertising goods or services with intent not to sell them as advertised.”
“Disparaging the goods, services, or business of another by false or misleading representation of fact.”
“Making a false or misleading statement of fact concerning the reasons for, existence of, or amounts of, price reductions.”
“Engaging in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce.”

Translated to normal English, here are some examples of what the Alabama Deceptive Trade Practices Act means:

They can’t say a product is “Made in the USA” if in fact most of it was made elsewhere.
If you sell Grade A Angus Beef, then you can’t serve Grade B Beef, or Grade A Pork/Beef Mix, or Grade A Beef made from any cow other than an Angus. It must be Grade A, and Angus, and Beef.
You cannot advertise that your product has a 2 year warranty if you only provide a 1 year warranty.
They cannot put “red snapper” on the menu if what they sell people is something other than a Lutjanus campechanus (a.k.a. Red Snapper).
They can sell “Grouper” even if the grouper comes from Madagascar.
If a label says “Certified Organic,” then the food must be organic and certified.
If a restaurant brags that it was “Voted Best Hamburgers in Alabama,” then it must have some good reason for saying that.
If a price is advertised as “25% Off,” then the non-discounted price should be 33% higher than the “discount” price. (Because (3/4 of A) x 4/3 = A).

The Alabama Deceptive Trade Practices Act also forbids false advertising of services in many instances. For example:

If a debt settlement company claims it can cut your debt by 50%, and you pay them to do so, but they don’t perform, then they’re false advertising.
If a credit repair service claims to be able to boost your score by 100 points, then they better be able to do it.
A car finance company or dealer who says that “If you have a job and $500, you can get a new car!” must have new cars that they are actually willing to sell to anyone who has a job and $500.

How to Prepare A False Advertising Case

There are a few things you need to cover before you rush to a lawyer’s office, though.

First, you must get proof of the actual advertised terms.

If advertisements are written, then they are usually allowed to have footnotes and fine print that “explain” the terms they are advertising. You must obtain a copy or printout of any written, TV, or internet advertisement. Read the whole thing. Make sure you paid attention to it before you went to buy the advertised product. If a “disclaimer” or “Explanation” was hidden, it may not have any legal effect.

Oral or radio advertisements may have a similar explanation at some point during the advertisement. If you have been cheated or scammed by a radio advertisement, you need to listen for the advertisement that fooled you and record it.

Second, you must show that you bought the falsely advertised product or service.

This is pretty easy. If you have a receipt, bill of sale, credit card statement, or any other record of your purchase, then you can show that you were in fact the victim of the false advertising.

If you’ve been cheated by false advertising, it is important to take action quickly. The Alabama Deceptive Trade Practices Act only has a 1 year statute of limitations, which means that you have 1 year to take them to court once you’ve discovered (or should have discovered) the false advertising. Furthermore, you have to write a letter demanding compensation at least 15 days before you sue them.

The content of this letter should be drafted with the assistance of a consumer protection attorney, because if not drafted properly, it will not have legal effect.

We take false advertising seriously. It hurts real people and the entire economy. If you’ve been the victim of false advertising in Alabama, call us today at 251.272.9148.

What is Wrong with Alabama’s Lemon Law? – Alabama Consumer Protection Lawyer Judson E. Crump

July 15, 2015 by Attorney Judson E Crump Leave a Comment

“I bought a car and it was a complete lemon. Should I sue them under the Lemon Law?”

If you are like most people, if you buy a car that turns out to be a piece of junk, you probably assume that your rights are governed by this thing called “the Lemon Law.” Which makes a certain kind of sense: they sold you a “lemon,” you paid good money for a bad car, shouldn’t they have to take it back?

If only.

The problem is that Alabama’s Lemon Law sucks. I’ve written about the Lemon Law generally in previous articles. And I have to say here that as a true lover of lemonade, lemon merengue pie, lemon bars from Pollman’s Bake Shop, lemon juice as the acidifier in my canned homegrown tomatoes, and pretty much all things lemon, I really don’t like the name of the law. We should give bad cars a bad label. We should call it the Grapefruit Law.

Alabama’s Lemon Law (Ala. Code 8-20A-1) has three huge weaknesses. First, it can only be used against manufacturers. So dealers who sell lemons get away Scot-free, even if they know that they’re selling junk. I don’t think this is fair. But car dealers have a very well organized lobbyist machine in Montgomery and Washington, D.C. so this isn’t changing anytime soon.

Second, it doesn’t apply to used cars. Even if they’re barely used. Most cars that are sold are used cars, and most fraud happens in used car sales, so this takes away lemon law rights from the people who need them the most.

Third, and most importantly in my opinion, the Lemon Law requires you to give the Manufacturer too many chances to fix the problem. In a nutshell, if you buy a vehicle with a major defect that pops up in the first 12,000 miles, then you have to give the manufacturer a reasonable opportunity to fix the car. What is a “reasonable opportunity?” That question is left to judges (and more often, arbitrators) to a certain degree, but the standard is this: Three repair attempts or 30 days in the shop. All 30 days or 3 attempts have to be directed at the same defect. If your vehicle has a window that won’t roll up and a clunky transmission, if you take it in the shop twice for the window and once for the transmission, you haven’t met the lemon law’s definition of “reasonable.”

But this isn’t the problem. Most people generally do give a dealer or manufacturer 3 chances to fix the malfunctioning part. The problem is that even after you’ve been reasonable, you have to jump through yet another hoop: you have to send the manufacturer a letter demanding that they fix the vehicle within 14 days. You have to send it to the proper address, which is designated by the manufacturer. And you have to send it certified mail. And you have to give them another chance to fix it.

If the defect is a radio that sounds funny, then a 4th repair attempt isn’t a big deal. But what if it is the power steering? Or the brakes? Who in their right mind would drive (or put their children in) a vehicle whose steering or braking is liable to malfunction at any moment? Nobody!

And this is the problem. You’re not going to take anyone to court over a radio. There just isn’t enough monetary damage involved. So for small defects, there’s no point in the Lemon Law because your case isn’t worth suing over. But for big defects, the ones that really affect the car’s performance or safety, you’re not going to jump through that extra hoop. The manufacturer is lucky if they get 3 chances to fix a car whose brakes fail without warning. No sane person is going to give them a 4th. But Alabama’s Lemon Law requires you to do just that. Which means that for cases involving serious defects, the Lemon Law is virtually useless.

So What Do You Do?

Fortunately, you still have other legal claims that probably apply. The best one in the case of a serious defect is typically breach of warranty. If your car came with a warranty, and the car didn’t perform as it was warranted, then you can sue for breach of warranty. You still have to give the dealer a reasonable chance to fix the problem, and you still have to follow the manufacturer’s procedures for resolving a warranty dispute, but if that fails, then you can go to court without any certified letter or 4th repair attempt.

If someone has been seriously hurt or killed by a dangerous defect, then you can take the dealer and/or manufacturer to court for product liability. This only applies to situations where someone has been personally injured, but if there are injuries, a product liability action can be very powerful.

The Bottom Line: If you’ve bought a new car that has turned out to be a piece of junk, then you should give them a few chances to fix it. If that doesn’t fix the problem, you can call us at 251.272.9148.

What to Do When a Manufacturer Won’t Honor a Warranty – Alabama Consumer Protection Lawyer Judson E. Crump

July 4, 2015 by Attorney Judson E Crump 2 Comments

Warranties are most of the reason why we buy cars new instead of used. But what do we do when we buy cars that don’t perform as they’re warranted?

Sometimes, a car just isn’t built right. Maybe somebody in the factory was sleeping at the assembly line. Maybe there was a weak piece of steel somewhere in the frame. But whatever the reason, sometimes you buy a car that just doesn’t work. This happens with every sort of consumer product – from canteloupes to cell phones to cars. And ancient rules of commercial practice – most of which have been enshrined in the Uniform Commercial Code, which is now the law in 49 of the 50 United States – provide a simple remedy: if it doesn’t work the way it is normally expected to work, then you can get a refund. This is true, even if there is no written warranty, and it is something we lawyers call the “implied warranty of merchantability.” Basically, if a product you buy doesn’t work the way it should, then the default rule is that the merchant should pay you back the purchase price.

If you’ve ever returned a faulty ceiling fan or toy at Wal-Mart, then you’ve dealt with the Implied Warranty of Merchantability. When you take the item back and get a refund, Wal-Mart isn’t just giving your money back out of sheer generosity or great customer service. They’re doing it because they have to.

And car dealers have similar obligations. Of course, because automobiles have big price tags and car dealers make lots of money by moving deals along, rather than unwinding them when things go wrong, car dealers put a LOT of effort into avoiding their warranty obligations. In fact, most dealers have worse customer service than Wal-Mart. And Wal-Mart isn’t always known for great customer service. But I assure you, if you buy something from Wal-Mart that doesn’t work, you won’t have to take Wal-Mart to court to get a refund. With car dealers, however, filing a lawsuit is pretty much bound to happen if you buy a vehicle that doesn’t perform well.

So What do You Do?

Once you determine that you’ve been sold a vehicle that isn’t up to standard, there are two basic rules to how you proceed to fix the situation. First, you must give the manufacturer a “reasonable opportunity” to fix the problem. What does this mean? Basically, you need to take it back and let them try to repair the defect. If the product you’ve been sold is defective, then before asking for a refund, you do have to give them a chance to fix the defect. And you may have to give them multiple chances to fix the problem. How many chances? That depends on the nature of the problem. For a minor issue like a radio that doesn’t sound right, you have to give them several chances. For a dangerous problem like brakes that don’t stop the car quickly, two repair attempts may be sufficient. “Reasonable” is a question that is decided for each case as the facts dictate. It is reasonable to expect several tries to fix a radio, but not brakes, because brakes are just essential to the function of a vehicle. No reasonable person can be expected to drive a car whose brakes have failed after several repair attempts.

Second, you must follow the manufacturer’s written procedures for making warranty claims. Your manufacturer’s warranty should be in the Owner’s Manual or a separate booklet. Wherever it is, you need to read it and follow it to the letter. It may direct you to take the car to a licensed dealer. If so, then you have to do that. It may require you to submit your warranty claim to BBB Auto Line or some other ‘neutral’ warranty dispute resolution process. If so, then you have to do that.

Whatever the process is, you should follow it to the letter. Failure to follow the contractual procedure is the number 1 slimy defense that makers and sellers of bad products use to avoid the consequences of selling junk to innocent buyers. Don’t let it happen to you.

As a final thought, most of the rules that apply to automobile warranties also apply to all warranties for major consumer goods, like boats, RVs, and even mobile homes.