As companies have increased efforts to represent their products as environmentally friendly, “greenwashing” lawsuits—which target companies (often under consumer protection statutes) based on allegations of false or misleading statements regarding the environmental impact of their products or practices—have also increased. A recent order from the district court in the Northern District of California illustrates the difficulty in attempting to defeat these claims before trial if a strong evidentiary record has not been developed.

In Bush v. Rust-Oleum Corporation, plaintiff and the putative class challenged the defendant’s labeling of its “Krud Kutter” cleaning products as “non-toxic” and “Earth friendly,” asserting that the products caused harm to humans, animals, and the environment.  Defendant previously moved to dismiss the plaintiff’s claims, arguing that a reasonable consumer would interpret “non-toxic” as “not poisonous,” and not that it meant the product posed no risk to humans, animals, or the environment. That motion was denied.  See Bush v. Rust-Oleum Corp., 2021 WL 24842 (N.D. Cal. Jan. 4, 2021). 

After discovery, the defendant moved for summary judgment, and again argued that plaintiff’s proposed definition of “non-toxic” was unreasonable because both plaintiff and his expert admitted that “risk [of harm] can never be completely eliminated.”  Bush v. Rust-Oleum Corp., 2024 WL 308263, at *2 (N.D. Cal. Jan. 26, 2024).  But the court again denied defendant’s motion, holding that factual disputes prevented the court from finding “as a matter of law that the plaintiff’s asserted definitions . . . are unreasonable.”  Id. at *2–3.  Those disputes included whether the defendant’s labels adequately defined the challenged “non-toxic” and “Earth friendly” claims, and whether consumers actually read those definitions on the labels, especially given that defendant’s own surveys suggested that most consumers do not.  Id. at *3.  Finally, the court also rejected defendant’s argument that the term “Earth friendly” was “mere puffery,” finding that “Earth friendly” was “not so general or nonspecific as to make it extremely likely that a consumer would rely on it.”  Id.

Ultimately, the court held the jury should decide whether plaintiff’s “asserted definitions are reasonable” under the “reasonable consumer test.”  Id.  The court’s decision is a reminder that these claims, which represent a growing trend in litigation, can be difficult to defeat before trial.

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Photo of Jeffrey Huberman Jeffrey Huberman

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among…

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among others, using his substantial experience in all stages of litigation, including:

  • dispositive motions;
  • fact and expert discovery;
  • class certification;
  • summary judgment; and
  • trial

Jeffrey has first-chaired fact and expert witness depositions and has drafted dispositive motions in both federal and state court for clients. In addition, Jeffrey maintains an active pro bono practice focused on veterans’ rights and criminal justice.

Prior to attending law school, Jeffrey worked for the Massachusetts House of Representatives.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.