CBA Record May-June 2025

ucts were “all natural” and contained “no preservatives.” However, laboratory test ing revealed that several of the defendants’ products contained sodium benzoate, a chemical preservative commonly used in the food industry to extend a product’s shelf life. Plaintiffs-buyers brought several claims against defendants-sellers, includ ing a breach of express warranty. Plaintiffs argued that they satisfied their pre-suit notice requirement with a communica tion made to the defendants on the same day that the suit was filed. The district court held that this was not the kind of pre-suit notice of breach required by UCC section 2-607, saying that “not only does this tactic highlight the possibility of ‘gamesmanship’ in avoiding the notice requirement…it also defeats the purpose, which is to give the seller an opportunity to cure a defect and minimize damages, protect his ability to investigate, gather evidence, and negotiate a possible settle ment.” Counts , 2023 U.S. Dist. LEXIS 197410 at *15. Most recently, G ibson v. Albertson Co., 22 CV 642, 2024 U.S. Dist. LEXIS 189025, 2024 WL 4514041 (N.D. Ill. Oct. 17, 2024), was a purported class action involving the ingredient dextro methorphan (DXM) as used in certain over-the-counter cough and cold medica tions advertised as “non-drowsy.” Plain tiffs claimed that several of the products sold by the defendant were deceptively labeled, since DXM is known to cause drowsiness, and they alleged a breach of express warranty. Plaintiffs had mailed a written notice of the breach to the seller’s corporate headquarters but filed suit just four days later. Even if the seller received the notice in the mail as quickly as two days after it was sent, this would have given the seller only two days to discuss a possible settle ment with the buyers before litigation commenced. The defendant-seller moved to dismiss the breach of warranty claim because the very brief period of time between the notice being sent to the seller, and the filing of the buyers’ lawsuit, did not pro

vide the seller with a meaningful oppor tunity to attempt any resolution of the matter short of litigation. Thus, the seller argued, the mere two-day time between the receipt of the mailed notice of breach and the buyers’ subsequent lawsuit did not fit the definition of a “reasonable time” within the meaning of section 2-607(3) (a) of the UCC, since the parties were thereby deprived of a reasonable oppor tunity to engage in meaningful settlement discussions. The district court agreed with the seller’s argument, finding that the short period of time between notice and the lawsuit frustrated the purpose of the notice requirement “such that it did not give the parties time to resolve the dispute short of litigation.” Gibson , U.S. Dist. LEXIS 189025 at *36. Criticisms It should be noted, however, that recently there has been some criticism about basing a dismissal of a warranty claim upon an abbreviated period between the buyer giving notice of the breach and the subsequent filing of suit. Calchi v. TopCo Assocs., LLC, 22-cv 747, 2024 U.S. Dist. LEXIS 177189 (N.D. Ill. Sept. 30, 2024), was another of a series of cases filed against sellers of over the-counter cold remedies that claimed to be “non-drowsy.” The plaintiff-buyer claimed an economic injury caused by the label’s false representation, that is, that she would not have purchased the prod uct had she known that it contained an ingredient that caused drowsiness. The buyer notified the seller of the breach via a letter of complaint mailed only two days before suit was filed. The seller claimed that two days’ notice was insufficient time to either “minimize the buyer’s loss” or to “reduce the seller’s own liability.” Calchi, 2024 U.S. Dist. LEXIS 117189 at *41-42. The district court commented that “in all likelihood, [the plaintiff-buyer] got to the federal courthouse before the U.S. Postal Service got to [the defendant-sell er’s] mailbox.” Id. at *42. The court noted, though, that “that

argument measures time from the wrong vantage point… [T]he question is not whether the seller had enough time to cure [the breach]. The question is whether the buyer gave reasonable notice after he discovers or should have discovered any breach.’’ Nevertheless, the district court dismissed the buyer’s warranty claim as untimely. More than six months had elapsed between when the buyer took the medication (at which time she should have known of its propensity to cause drowsiness) and her subsequent written notice to the seller. The court declared, as a matter of law, that this was an unreason able delay in giving notice. Id. at *43. Given the criticism of using an abbrevi ated time between when the buyer gives notice to the seller of the breach and filing suit as the basis for dismissal of a warranty claim, versus measuring the amount of time between when the buyer discovers, or should have discovered, the breach and the giving of notice to the seller as the basis of determining the viability of a war ranty claim, the Seventh Circuit may have to weigh in as to which timeframe should properly be considered in determining the dismissal of an express or implied war ranty claim. For practitioners representing clients who seek recovery for breach of war ranty in commercial cases, giving pre-suit notice is not the only essential element of your client’s cause of action, the timing of the notice is equally important. Too much time expiring between the discovery of the breach and the giving of notice can doom your client’s warranty action. But as the case law shows, so also can too little time between the giving of notice and the filing of a suit. Takeaways: Which Timeframe to Consider?

William G. Beatty recently retired from a major Chicago litigation firm with whom he practiced for the past 45 years, principally in the fields of product liability defense, ERISA defense, and employment law litigation.

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