UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ CARHARTT, INC., │ Plaintiff-Appellant, │ > No. 20-1826 │ v. │ │ INNOVATIVE TEXTILES, INC.; INNOVATIVE TEXTILES, │ LLC, │ Defendant-Appellee. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:17-cv-13604—Judith E. Levy, District Judge.

Argued: April 27, 2021

Decided and Filed: May 27, 2021

Before: SUTTON, Chief Judge, CLAY and McKEAGUE, Circuit Judges. _________________

COUNSEL ARGUED: Phillip J. DeRosier, DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellant. Trent B. Collier, COLLINS EINHORN FARRELL PC, Southfield, Michigan, for Appellees. ON BRIEF: Phillip J. DeRosier, DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellant. Trent B. Collier, COLLINS EINHORN FARRELL PC, Southfield, Michigan, for Appellees. _________________

OPINION _________________

McKEAGUE, Circuit Judge. Carhartt sued its fabric supplier, Innovative Textiles, for breach of contract and breach of warranty, among other claims, after discovering alleged defects No. 20-1826 Carhartt, Inc. v. Innovative Textiles, Inc., et al. Page 2

in Innovative’s flame-resistant fabric. The sole issue on appeal is whether Carhartt failed to notify Innovative of the alleged breach within a reasonable time after Carhartt should have discovered the breach. The district court granted summary judgment to Innovative, holding that Carhartt was barred from seeking any remedy under Michigan’s Uniform Commercial Code § 440.2607(3) because Carhartt’s notification was too late. Because reasonable minds could differ as to whether Carhartt should have discovered the breach sooner—whether Carhartt should have been performing regular, destructive fire-resistance testing on the fabric it received from Innovative—we REVERSE and REMAND for a jury to decide this question.

I.

Innovative Textiles, Inc. and Innovative Textiles, LLC (Innovative)1 develop flame- resistant fabrics using modacrylic fibers, which are fibers that contain flame-retardant properties. In 2009, Carhartt contracted with Innovative to create a flame-resistant fleece fabric for use in its line of flame-resistant garments. The fabric that Innovative developed for Carhartt was called “Style 2015,” and it contained a modacrylic fiber called “Protex-C.”

Innovative agreed that it would conduct flame-resistance testing on the Style 2015 fabric before shipping it to Carhartt. Specifically, Innovative agreed to use the industry standard vertical flame-resistance test, ASTM D6413, which analyzes the amount of time a flame remains visible on the fabric and the length of fabric destroyed by the flame. Additionally, Carhartt sent Innovative emails in 2008, 2010, 2011, 2012, and 2013 stating that Carhartt would do “regular, random testing on the product that is received in [its] distribution center.”

Carhartt performed visual inspections o