The Other Golden Rule
Do What You Say
by Charles Gentry
It’s a simple saying. Do what you say. It’s easy but not a rule everyone
follows. Let me give you an example: many manufacturers and dealers have
increased their profits substantially by selling the $1,500 tax credit
to residential customers. In today’s economy, who doesn’t want some cash
While tax credits still exist, the $1,500 credit expired on December 31,
2010. The new tax credits exist at a much lower level. Many fenestration
companies continue to proclaim the $1,500 tax credit is alive and well.
One of the “best practices” I advise fenestration clients about is to
make certain they actually provide what they promise. Companies’ failure
to harmonize their selling literature, website and other forms of advertising
with what they actually provide is a recipe for disaster.
A few days ago, I received a call from a national manufacturer, “Tax Credit
Windows.” As is often the case, the company was under attack from Duey,
Cheatem and Howe, a law firm with a reputation of putting manufacturers
out of business. The CEO of the window company exclaimed, “I need your
help!” After listening to several minutes of stressful venting from him,
I figured out that the lawyers claimed the company sold a “pig in a poke.”
Tax credits were used to close a substantial sale. The problem was that
the tax credits used during the sales pitch no longer existed. A quick
research from the Google cache brought up a website proclaiming $1,500
credits remained an option. Oops. Letters and phone calls had already
“Ch’Ching” I thought. Hint: My client was not going to be happy about
the exposure it unknowingly created. I was worried about green. Not the
energy codes. Not the color of the logo. I was worried about my client’s
cash. The owner’s lawyers claimed that the windows were misrepresented,
violating advertising laws and rising to the level of fraud.
"Tax credits were
used to close a substantial sale. The problem was that the tax credits
used during the sales pitch no longer existed."
“You have a problem,” I said. My thoughts wandered for a
moment recalling all of the window manufacturer websites, sales literature
and warranties I have reviewed, analyzed and modified over the years.
I asked, “Do your products perform as you say? Do your promises actually
conform to your products as manufactured? Do your promises comply with
Not the answer I was hoping for. Not the answer a jury will appreciate
during the lawsuit hiding like a snake in the grass ready to strike its
“Our sales reps do the best they can to sell as much product as possible.
Puffery is part of the business. We can’t possibly keep up with all of
the tax credit laws.”
After figuring out a strategy to respond to the claims against my client
(a subject to detail in another article), I calmed the owner by explaining
how to help avoid the problem in the future. “Build what you say you build.
Know that any description that is part of the sales pitch, including NFRC
labels, U Factor, solar heat gain coefficient, visible light transmittance,
tax credits, etc., can create a warranty or a promise, whether intended
or not. Have everything you say, both written and spoken, analyzed and
modified by those in the know to avoid making promises you can’t keep.
You must make sure your brochures, websites, billboards, ads, the name
of your products, and the statements made by your sales staff all match
up with what your windows actually deliver to the customer.”
I further explained, “Ignoring one piece of the puzzle risks everything.
Duey, Cheatem and Howe will use every legal theory available to help make
the best case they can for their client. The theories at their disposal
include breach of warranty, negligence, product liability, fraud and consumer
protection claims. Many consumer protection laws allow for doubling and
tripling of damages coupled with attorney’s fees. The money claimed will
not just be money to fix the problem. The money claimed will include punitive
damages, not likely covered by insurance or bankruptcy. In other words,
do not ignore a single piece of the puzzle.
The owner of the company, elated, said, “Thank you!”
“Anytime,” I said. “Now you can make sure your sales staff, your brochures,
your labels and your products all match up to meet the needs of your customers.
Charles Gentry is an attorney with Carson and Coil PC in Jefferson
City, Mo., and works with many door and window manufacturers.
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