Case Notes

In First Choice Armor & Equipment, Inc. v. Toyobo America, Inc., 2012 WL 834123 (D. Mass. Feb. 17, 2012), the plaintiff body armor manufacturer purchased from a third-party weaving company ballistic fabric, intended for use in bullet-proof vests, which the company had made from woven Zylon fabric manufactured by the defendants. Following two incidents in which police officers were killed or injured when bullets penetrated their Zylon body armor, the National Institute of Justice (NIJ) conducted a multi-year investigation and concluded that Zylon vests degrade at an unacceptable rate from exposure to light, heat and moisture. The NIJ revoked safety compliance certificates for such body armor and prohibited its future sale in the United States.

Thereafter, the plaintiff sued the Zylon manufacturers in the United States District Court for the District of Massachusetts asserting claims for fraud, breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute). The plaintiff alleged that defendants manufactured, sold and promoted Zylon for ballistic protection applications despite knowing it would be rendered unsafe by gradual degradation, and sought recovery of the plaintiff's recall and replacement costs, legal costs for the NIJ investigation, lost profits and damaged reputation. The defendants moved for summary judgment, arguing that plaintiff's breach of warranty claims were barred by the absence of contractual privity between the parties, and plaintiff's fraud and ch. 93A claims were time-barred.