Bush v. Rust-Oleum Corporation

Background

This is a consumer-products labeling case. Anthony Bush challenged Rust-Oleum Corporation’s labeling of its Krud Kutter cleaning products as “non-toxic” and “Earth friendly.” He alleged that the products could cause harm to humans, animals, and the environment, and asserted five claims under California law: unlawful, unfair, and fraudulent business practices under the Unfair Competition Law; deceptive advertising under the False Advertising Law; deceptive practices under the Consumer Legal Remedies Act; breach of express warranties; and unjust enrichment.

Bush proposed a class consisting of all California residents who, within four years before the filing of the complaint, purchased the products. He moved for class certification under Federal Rule of Civil Procedure 23. The court stated that the proposed class had to satisfy all four requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy—and at least one applicable requirement under Rule 23(b). The court considered certification under Rule 23(b)(2) and (b)(3).

Rule 23(a) requirements

The court found numerosity satisfied. Rust-Oleum did not dispute that the class was sufficiently numerous, and the number of California purchasers supported the conclusion that joining all members individually would be impracticable.

The court found commonality satisfied because the proposed class members were exposed to the same challenged labeling and therefore shared questions about whether the labels would mislead a reasonable consumer. The court rejected Rust-Oleum’s arguments that consumers would not have a uniform understanding of “non-toxic” and “Earth friendly,” explaining that the meaning of the challenged terms was part of the merits of the common reasonable-consumer question. The court also found that materiality—the importance of the labels to consumers—was a common question capable of class-wide proof.

The court found typicality satisfied because Bush testified that he bought one of the products and would not have done so without the challenged label claims. The court rejected Rust-Oleum’s arguments that Bush was atypical because of his position on buying the products again or because he had not examined the entire label. The court held that Bush had standing to seek injunctive relief because he said he would like to buy the products again if he could rely on the truthfulness of the representations. It also held that individual experience with the product did not defeat typicality because the alleged injury under the Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act is determined objectively.

The court found adequacy satisfied. It concluded that Bush and his counsel could fairly and adequately protect the class’s interests and that the deposition testimony cited by Rust-Oleum did not sufficiently call Bush’s credibility into question on issues directly relevant to the litigation.

Rule 23(b)(3) requirements

The court found predominance satisfied because common questions predominated over individual questions. In particular, the materiality of the challenged label claims could be shown with common evidence. The court also found that the proposed class was not overbroad. It noted that the class included purchasers exposed to the alleged misrepresentations and that the Ninth Circuit does not require a separate showing of administrative feasibility for class certification.

The court rejected Rust-Oleum’s argument that Bush’s damages model was disconnected from his theory of liability. The court concluded that, to the extent the relevant damages principle applied, a price premium attributable to alleged misrepresentations on product packaging was consistent with the theory of deception asserted under the False Advertising Law, Consumer Legal Remedies Act, and Unfair Competition Law.

The court found superiority satisfied because a class action was the superior method of adjudicating the dispute. It relied in part on the conclusion that individual recovery could be outweighed by the cost of individual litigation. The court again rejected Rust-Oleum’s argument concerning ascertainability, stating that the Ninth Circuit had foreclosed that argument as a separate certification requirement.

Rule 23(b)(2) requirements

The court also found that certification under Rule 23(b)(2) was proper. That provision applies when the opposing party acted or refused to act on grounds generally applicable to the class, making uniform injunctive or declaratory relief appropriate. The court concluded that the class members sought uniform relief from a practice applicable to all of them and that Bush had standing to seek injunctive relief.

Disposition

The court granted the motion for class certification and certified the proposed class under Rule 23(b)(2) and Rule 23(b)(3). The order resolved ECF No. 95. It did not enter a final ruling on whether Rust-Oleum’s labels violated the asserted laws.