CBA Record May-June 2025

Suing Too Soon? HOW TO SATISFY THE UCC’S NOTICE REQUIREMENT

By William G. Beatty

T he Illinois version of the Uniform Commercial Code, 810 ILCS 5/2 607(3)(a), provides that for a buyer to maintain a breach of warranty action against a seller, the buyer must give the seller timely pre-suit notice of the claim, or be barred from any remedy. The purpose of the notice requirement is “to provide the seller with an oppor tunity to cure a defect and minimize damages, to protect the seller’s ability to investigate a breach and gather evidence, to encourage negotiation and settlement, [and in the case of personal injury], it also informs the seller of a need to make changes to the product to avoid future injuries.” Maldonado v. Creative Wood working Concepts , 296 Ill. App. 3d 935, 939 (3d Dist. 1998). Hence, case law states that timely “pre suit notice is an essential element of a breach of warranty claim, and the absence of such notice results in dismissal.” Hedges v. Earth, Inc., No. 14 C 9858, 2015 U.S. Dist. LEXIS 52318, 2015 WL 1843039, (N.D. Ill. 2015) (citing Whitwell v. Wal Mart Stores, Inc., No. 09-513, 2009 U.S. Dist. LEXIS 115825, 2009 WL 4894575 (S.D. Ill. Dec. 11, 2009). Historically, the timeliness element of

the UCC’s notice requirement has been enforced against a plaintiff-buyer who has allowed too much time to elapse between their awareness of the breach of warranty and giving notice of the breach to a defen dant-seller. See, e.g., Greenwich Indus., L.P. v Leggett & Platt, Inc., No. 07 C 6550, 2009 U.S. Dist. LEXIS 49478 (N.D. Ill June 11, 2009); Pace Am., Inc. v. Elixir Indus., No. 06 C 4661, 2009 U.S. Dist. LEXIS 6281 (N.D. Ill. Jan. 27, 2009). Recent Decisions However, a trio of recent decisions from the federal courts in Illinois has demon strated that the Illinois notice require ment can work both ways— too little time between the buyer providing notice of the breach to the seller, and the filing of suit shortly, thereafter, can likewise result in a dismissal of the buyer’s warranty claim. The first such case is Jones v. Apple, Inc., 15-CV-249, 2016 U.S. Dist. LEXIS 112290, 2016 WL 11647699 ((S.D. Ill. Aug. 22, 2016)). The Jones case involved a putative class action against a cell phone manufacturer whose products displayed a 4G icon (indicative of faster transmission speed than 3G phones), when in fact the phones lacked a 4G-capable broadband

chip and other capabilities necessary for use as 4G phones. The buyers alleged a breach of war ranty claim against the seller, along with other claims. The buyers had written a letter to the seller’s warranty department on March 6, 2015, advising the seller of the alleged defect in the cell phones, and had filed suit the same day. The seller argued that the filing of a lawsuit on the same day as the notice of the breach was provided did not qualify as timely notice of the breach. The district court agreed, dismissing the warranty claim and saying that “the notice provided in this case did not serve the purpose of encouraging pre suit settlement negotiations because the lawsuit began on the same day that Plain tiffs- [buyers] sent notice to [the seller]. Thus, the Court does not find that Plain tiffs satisfied the pre-suit notice require ment.” 2016 U.S. Dist. LEXIS 112290 at *10. (Emphasis in the original). Next, in Counts v. Arkk Food Co., 23 CV 0236, 2023 U.S. Dist. LEXIS 197410, 2023 WL 7281851 (N.D. Ill. Nov. 3, 2023), a putative class action brought by plaintiffs for allegedly defec tive labeling of various products sold by defendants who claimed that their prod

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