The Kirchner Group, LLC
14 North 22nd St. Suite 300, Arlington, VA 22201
Telephone: (703) 555-5555
Facsimile: (703) 555-5558
January 24, 2004
BY FEDERAL EXPRESS PRIVILEGED ATTORNEY/
CLIENT COMMUNICATION Save „n Savor, Inc.
666 Spring Street
Richmond, VA 23219
Re: Potential Claims of Breach of Express Warranty and Implied Warranty of Merchantability
against Save „n Savor
Dear Mr. & Mrs. Summers,
I enjoyed meeting with you on Monday, January 18, despite the unfortunate circumstances
that led you to seek our services. I appreciate how open you were during our interview. I know that
discussing the circumstances around these types of events can be difficult, but I assure you it was
necessary. An accurate assessment of the facts as you understand them is critical to our research
and analysis of the law. Because our understanding of the facts must be as accurate as possible, I
am providing you with a statement of the facts as we understand them. Please review the
information and provide us with a written statement identifying any factual errors or missing
information. Additionally, if you have remembered any new information, please include that as well.
Even information that you feel is insignificant may prove useful at a later date, so do not hesitate to
include even tiny details.
Finally, at the end of this letter I have identified some information that we would like you to
provide for us. I want to assure you that your privacy will be safeguarded. If you have any
questions regarding privacy issues, please feel free to call me.
The following is a statement of the facts as we understand them:
You are the sole owners of a small chain of gourmet grocery stores called Save „n Savor.
You recently received a letter from Mrs. O‟Malley, a Save „n Savor customer. The letter asserts
that on June 11, 2004, Mr. David O‟Malley purchased a candy called Butterscotch Buttons from the grocery store on Washington Street in downtown Richmond, VA. Mrs. O‟Malley claims that the candy was advertised as lactose-free but actually contained trace amounts of lactose. Mr. O‟Malley
was allergic to lactose. The letter states that Mr. O‟Malley ate the piece of candy while driving home and that he experienced some kind of medical emergency causing him to drive off the road and
into a tree. The doctors that later examined his body found the cause of death was likely to be a
result of the trace amounts of lactose in his system. The doctors claimed his injuries from the car
accident itself would not have been serious.
This letter obviously concerns you and you are afraid Mrs. O‟Malley will file suit against Save „n Savor. Based on the letter, you believe that Mrs. O‟Malley is also planning to sue the company that manufacturers Butterscotch Buttons as well as the person who certified the candy as
At the Save „n Savor store in question, the Butterscotch Buttons are stocked in the store‟s
kosher department. This department is a separate area of shelves that are marked with a large sign
with bold black letters. The kosher department is divided into sections including “pareve”, “pareve
with dairy”, and “pareve with meat.” Pareve foods are not supposed to contain dairy not meat.
The sections are marked with red lettering measuring about six inches.
While you are neither Jewish nor personally stay kosher, you understand the basic
requirements for kosher and pareve foods. However, you rely on product labeling to designate
which particular goods meet the requirements. The labels bear the certification of different groups.
The Orthodox Union, for example, is a very common group that certifies foods. You are aware
that the Orthodox Union has a zero tolerance policy for dairy in their pareve-certified foods and that
these foods are marked by a U with a circle around it. The marking is further modified to signify
pareve foods that do contain some dairy or meat products.
Butterscotch Buttons manufactured by Michas Sweets, a small candy factory in Alexandria.
The candy label has a Star of David with the words “Heritage-K” signifying that a rabbi has certified it as being pareve. You are not personally familiar with this certification process. Rather, you relied
on the manufacturer‟s certification as you rely on other certifications located on the labels of the
food products you sell. You are aware that it is somewhat common for people with certain allergies
to use kosher products, but your store‟s kosher products are primarily aimed at its Jewish clientele.
In particular, you say the store targets the Jewish community of Richmond in its advertising.
This advertising includes a weekly full-page ad in the Richmond Sunday Times Dispatch. This ad
typically features the store‟s kosher and pareve foods, but occasionally is used to promote the store‟s other ethnic and specialty foods. Additionally, you advertise with a weekly quarter-page ad
in The Jewish Weekly. You often augment this with more advertising leading up to and during
Passover. Save „n Savor also sponsors “Healthy Eating,” a weekly 30-minute show on the Food Channel in which the chefs sometimes recommend kosher products for particular recipes or dietary
restrictions. You are unsure whether you have ever specifically recommended kosher products to
people with lactose intolerance through advertising or any other means. Finally, the store also
advertised in the National Jewish Medical Centers newsletter until 2001 when the newsletter ceased
hard copy publication.
The Save „n Savor where Mr. O‟Malley purchased the candy had only been carrying
Butterscotch Buttons for about a month. You are not aware of any other customers raising
questions or concerns about the candy. You primarily work out of the Save „n Savor‟s headquarters
and are therefore unsure whether the O‟Malley‟s were regular customers. However, you are fairly confident that you have not had any previous interaction with them. You have not been involved in
any previous litigation and are not sure what kind of insurance you might have for the store. You
do not believe you or the store should be held responsible for Mr. O‟Malley‟s death.
You would like a legal assessment of risk should Mrs. O‟Malley decide to file suit against you for (i) breach of express warranty or (ii) breach of implied warranty of merchantability.
Please confirm that the facts stated above accurately and completely reflect our recent
discussion. If you find any inaccuracies or remember any facts that are missing from the description
above, please provide them to us in writing. In addition, we would like you to provide the following
information to us so that we can accurately assess your claim.
1. Copies of Save „n Savor‟s insurance policy.
2. Copies of all advertisements you have run in the Richmond Sunday Times Dispatch
and the Jewish Weekly.
3. A copy of a Butterscotch Buttons label with the rabbi‟s certification.
4. The address and telephone number of Michas Sweets, the manufacturer of the
5. Copies of the transaction made with Mr. O‟Malley on June 11, 2004.
I truly appreciate your assistance in this process. By helping us collect this information, you
are enabling us to better represent your interests. Please call me if you have any questions. If I do
not receive any corrections or additions to the facts from you by February 14, I will call you to
confirm that they are complete as stated.
Very truly yours,