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126 P.3d 928
Page 1
126 P.3d 928, 2006 WY 16, 24 IER Cases 78
(Cite as: 126 P.3d 928)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
2006 WL 573008
Charmaine SCHREIB and Dale A. Worker, Individually and on behalf of others similarly
situated, Plaintiffs-Appellants,
v.
THE WALT DISNEY COMPANY and Buena Vista Home Entertainment, Inc., Defendants-
Appellees.
No. 1-05-0094.
Feb. 1, 2006.
generations. Plaintiffs' five count complaint alleged claims for (1) breach of express warranty under the Uniform
movies sold on videotapes that were distributed by defendant Buena Vista. The videotapes were described as
complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to establish a cause of action
because defendant did not make any representations or omissions regarding the long-term use of the videotapes,
126 P.3d 928
Page 2
126 P.3d 928, 2006 WY 16, 24 IER Cases 78
(Cite as: 126 P.3d 928)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
warranties” under the MMWA, and (4) plaintiffs failed to properly notify defendant of the breach of implied
warranty as required by the UCC and the MMWA.
*2 We consider plaintiffs' second contention first. Plaintiffs argue that the product names, “Gold Collection” and
*2 Defendant argues that it did not make any express warranties or representations that its videotapes would last
for any period of time, much less for generations. Defendant further contends that use of the word “collection”
does not convey a lengthy life span.
*2 A plaintiff, in a breach of express warranty action under the UCC, must show a breach of an affirmation of fact
or promise that was made a part of the basis of the bargain. (West 2004); (Hasek ). Because express warranties
substance that has been collected or has collected often according to some unifying principle or orderly
arrangement.” Webster's Third New International Dictionary 444 (1993). The word “collect” is defined as “to bring
together into a band, group, assortment, or mass.” Webster's Third New International Dictionary 444 (1993).
Thus, defendant's use of the word “collection” did not convey a promise of a lengthy life span of the videotapes.
Additionally, defendant's use of marketing statements such as “Give Your Children The Memories of a Lifetime-
*3 Plaintiffs, relying on Redmac, argue that defendant did make an express warranty regarding the life expectancy
of the videotapes. In Redmac, the court found that a seller breached an express warranty where the buyer
experienced immediate problems with a computer where the seller stated that the computer system would be
“free of defects” and would “work for a reasonable period of time.” .
*3 In this case, unlike in Redmac, plaintiffs did not allege having immediate problems with the videotapes after
omissions regarding the longevity of the videotapes and that they therefore stated a valid claim under the
Consumer Fraud Act. Plaintiffs contend that defendant misrepresented, concealed, and failed to inform them that
the videotapes do not have a long-term life expectancy to satisfy its representations that they would last for
generations. Plaintiffs also argue that defendant omitted information regarding the limitations of the videotapes “to
adequately preserve the movies in a manner satisfying the represented life and usefulness of [the videotapes.]”
populace. * * * It is immaterial that a given phrase considered technically may be construed so as not to constitute
a misrepresentation or that a deception is accomplished by innuendo rather than by affirmative misstatement.’ ” ,
126 P.3d 928
Page 3
126 P.3d 928, 2006 WY 16, 24 IER Cases 78
(Cite as: 126 P.3d 928)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
quoting .
2004); (Addison ). A material fact is a fact that a buyer would be expected to rely on deciding whether to make
the purchase. .
*4 Given these standards, defendant did not represent to plaintiffs that its videotapes would last for generations
by merely describing them as being part of a “Gold Collection” or a “Masterpiece Collection” or by marketing them
as being available only for a limited time. Neither the use of the word “collection” nor the complained of marketing
*4 Plaintiffs further contend that the circuit court erroneously held that their claim for breach of express warranty
under the MMWA was deficient becuase “the exhibits attached to the [c]omplaint do not contain any written
warranty.” Plaintiffs again argue that defendant's product names, “Gold Collection” and “Masterpiece Collection,”
along with its marketing strategy created an express warranty that the videotapes would have a requisite life
expectancy to share the movies with future generations. We disagree.
*4 In this case, defendant did not make any written affirmations of fact or written promises regarding the longevity
of the videotapes. As explained above, the names of the products, “Gold Collection” and “Masterpiece Collection,”
do not constitute a written warranty that the videotapes would last for generations.
*4 Plaintiffs also contend that the circuit court erred in dismissing their claims for breach of implied warranty of
merchantability under the UCC and the MMWA for failing to notify defendant of the breach. Plaintiffs do not deny
*5 requires that a “buyer must within a reasonable time after he discovers or should have discovered any breach
notify the seller of breach or be barred from any remedy.” (West 2004). The purpose of the notice 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 settlement. ( (Perona )). However, direct notice is not required if the seller has actual
knowledge of the particular product's defect. (affirming dismissal for failure to provide notice prior to brining suit);
insufficient to satisfy the notice requirement. Because plaintiffs' complaint did not specifically allege that defendant
had actual knowledge of the alleged breach in regards to the particular videotapes purchased by the named
plaintiffs in this case, they did not sufficiently satisfy the notice requirement.
*5 Finally, we address plaintiffs' contention that notice was not required to file a class action complaint under the
MMWA. This argument fails because the MMWA incorporates the relevant state law on UCC notice. . The circuit
126 P.3d 928
Page 4
126 P.3d 928, 2006 WY 16, 24 IER Cases 78
(Cite as: 126 P.3d 928)
videotapes were unfit for ordinary purposes.
*5 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
*5 Affirmed.
126 P.3d 928
Page 2
126 P.3d 928, 2006 WY 16, 24 IER Cases 78
(Cite as: 126 P.3d 928)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
warranties” under the MMWA, and (4) plaintiffs failed to properly notify defendant of the breach of implied
warranty as required by the UCC and the MMWA.
*2 We consider plaintiffs' second contention first. Plaintiffs argue that the product names, “Gold Collection” and
*2 Defendant argues that it did not make any express warranties or representations that its videotapes would last
for any period of time, much less for generations. Defendant further contends that use of the word “collection”
does not convey a lengthy life span.
*2 A plaintiff, in a breach of express warranty action under the UCC, must show a breach of an affirmation of fact
or promise that was made a part of the basis of the bargain. (West 2004); (Hasek ). Because express warranties
substance that has been collected or has collected often according to some unifying principle or orderly
arrangement.” Webster's Third New International Dictionary 444 (1993). The word “collect” is defined as “to bring
together into a band, group, assortment, or mass.” Webster's Third New International Dictionary 444 (1993).
Thus, defendant's use of the word “collection” did not convey a promise of a lengthy life span of the videotapes.
Additionally, defendant's use of marketing statements such as “Give Your Children The Memories of a Lifetime-
*3 Plaintiffs, relying on Redmac, argue that defendant did make an express warranty regarding the life expectancy
of the videotapes. In Redmac, the court found that a seller breached an express warranty where the buyer
experienced immediate problems with a computer where the seller stated that the computer system would be
“free of defects” and would “work for a reasonable period of time.” .
*3 In this case, unlike in Redmac, plaintiffs did not allege having immediate problems with the videotapes after
omissions regarding the longevity of the videotapes and that they therefore stated a valid claim under the
Consumer Fraud Act. Plaintiffs contend that defendant misrepresented, concealed, and failed to inform them that
the videotapes do not have a long-term life expectancy to satisfy its representations that they would last for
generations. Plaintiffs also argue that defendant omitted information regarding the limitations of the videotapes “to
adequately preserve the movies in a manner satisfying the represented life and usefulness of [the videotapes.]”
populace. * * * It is immaterial that a given phrase considered technically may be construed so as not to constitute
a misrepresentation or that a deception is accomplished by innuendo rather than by affirmative misstatement.’ ” ,
126 P.3d 928
Page 3
126 P.3d 928, 2006 WY 16, 24 IER Cases 78
(Cite as: 126 P.3d 928)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
quoting .
2004); (Addison ). A material fact is a fact that a buyer would be expected to rely on deciding whether to make
the purchase. .
*4 Given these standards, defendant did not represent to plaintiffs that its videotapes would last for generations
by merely describing them as being part of a “Gold Collection” or a “Masterpiece Collection” or by marketing them
as being available only for a limited time. Neither the use of the word “collection” nor the complained of marketing
*4 Plaintiffs further contend that the circuit court erroneously held that their claim for breach of express warranty
under the MMWA was deficient becuase “the exhibits attached to the [c]omplaint do not contain any written
warranty.” Plaintiffs again argue that defendant's product names, “Gold Collection” and “Masterpiece Collection,”
along with its marketing strategy created an express warranty that the videotapes would have a requisite life
expectancy to share the movies with future generations. We disagree.
*4 In this case, defendant did not make any written affirmations of fact or written promises regarding the longevity
of the videotapes. As explained above, the names of the products, “Gold Collection” and “Masterpiece Collection,”
do not constitute a written warranty that the videotapes would last for generations.
*4 Plaintiffs also contend that the circuit court erred in dismissing their claims for breach of implied warranty of
merchantability under the UCC and the MMWA for failing to notify defendant of the breach. Plaintiffs do not deny
*5 requires that a “buyer must within a reasonable time after he discovers or should have discovered any breach
notify the seller of breach or be barred from any remedy.” (West 2004). The purpose of the notice 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 settlement. ( (Perona )). However, direct notice is not required if the seller has actual
knowledge of the particular product's defect. (affirming dismissal for failure to provide notice prior to brining suit);
insufficient to satisfy the notice requirement. Because plaintiffs' complaint did not specifically allege that defendant
had actual knowledge of the alleged breach in regards to the particular videotapes purchased by the named
plaintiffs in this case, they did not sufficiently satisfy the notice requirement.
*5 Finally, we address plaintiffs' contention that notice was not required to file a class action complaint under the
MMWA. This argument fails because the MMWA incorporates the relevant state law on UCC notice. . The circuit
126 P.3d 928
Page 4
126 P.3d 928, 2006 WY 16, 24 IER Cases 78
(Cite as: 126 P.3d 928)
videotapes were unfit for ordinary purposes.
*5 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
*5 Affirmed.
