Bush v. Rust-Oleum Corporation

Background

This is a consumer-products mislabeling case brought on behalf of a class of California consumers. Anthony Bush challenges Rust-Oleum Corporation’s labeling of its “Krud Kutter” cleaning products as “non-toxic” and “Earth friendly.” He contends that the products can harm humans, animals, and the environment, in violation of California consumer-protection laws. The court states that it has diversity jurisdiction under the Class Action Fairness Act and that the parties consented to magistrate-judge jurisdiction.

The court previously denied Rust-Oleum’s motion for summary judgment, which mainly argued that disclaimers on the labels and testimony from Bush and his expert toxicologist defeated Bush’s consumer-deception theory. Rust-Oleum then moved for reconsideration of that ruling.

Legal Standard

Under the Northern District of California’s local rules, reconsideration may be based on a material difference in fact or law, newly emerged material facts or a change in law, or the court’s failure to consider material facts or dispositive legal arguments previously presented. For a nonfinal order, reconsideration may also be appropriate based on newly discovered evidence, clear error or manifest injustice, an intervening change in controlling law, or other highly unusual circumstances.

Analysis

Rust-Oleum argued first that Bush had produced no extrinsic evidence—evidence beyond his own assertions—on whether a reasonable consumer would be misled. The court acknowledged that courts sometimes require evidence such as consumer surveys in this context. But it explained that Rust-Oleum’s earlier summary-judgment motion had argued that evidence affirmatively defeated an element of Bush’s claim, rather than arguing that Bush lacked enough evidence to prove that element. The court also found that Bush had evidence consisting of Rust-Oleum’s prelitigation consumer surveys and Bush’s own consumer-perception survey. The court had already held that Rust-Oleum did not meet its initial summary-judgment burden, in part because individual deposition testimony was anecdotal. It denied reconsideration on this ground.

Rust-Oleum also argued that the court erred by holding that “Earth friendly” was not puffery. Puffery is a vague or general promotional statement that consumers are unlikely to rely on. The court stood by its conclusion that “Earth friendly” was not so general or nonspecific that consumer reliance was extremely unlikely. Because California law addresses the term, the court determined that “Earth friendly” has an ascertainable meaning. It denied reconsideration on this ground as well.

Disposition

The court denied Rust-Oleum’s motion for reconsideration and stated that the order resolved ECF No. 199. The opinion does not state that the court dismissed the case or enter judgment on the underlying claims.