This blog recently covered a decision from the Northern District of California denying a defendant’s motion for summary judgment on a plaintiff’s “greenwashing” claims, which asserted that defendant’s “non-toxic” and “Earth-friendly” labels were false and misleading.  See Bush v. Rust-Oleum Corp., 2024 WL 308263 (N.D. Cal. Jan. 26, 2024).  Now, the same court has granted class certification on those claims, demonstrating that not only can these claims be difficult to defeat before trial, but it can also be difficult to prevent certification on those claims as well.

In its certification order, the court certified both a Rule 23(b)(2) and (b)(3) class, finding that the plaintiff and the putative class had satisfied all of Rule 23’s requirements and that the defendant’s arguments in opposition went mostly towards the merits of plaintiff’s claims, not whether Rule 23 was satisfied.  See Bush v. Rust-Oleum Corp., 2024 WL 422080 (N.D. Cal. Feb. 5, 2024).  As to Rule 23(a), the court found that claims “concerning alleged misrepresentations on packaging to which all consumers were exposed is sufficient to satisfy the commonality requirement.” Id. at *2–3.  The court also rejected the defendant’s typicality and adequacy arguments.  The court first found that the plaintiff’s claims were typical and that plaintiff had standing to seek injunctive relief because he testified that while he would not buy the products again as long as they are mislabeled, he would if the label was accurate.  Id. at *3.  The court also rejected defendant’s argument that plaintiff’s credibility had been called into question because his deposition testimony was not entirely clear on whether he actually purchased the product in question.  Id. at *4.

The court also found that the requirements of Rule 23(b) were satisfied, and rejected defendant’s predominance and overbreadth arguments.  Importantly, the court found that including in the class individuals who purchased the product but did not actually view the label (i.e., individuals who were not mislead) did not demonstrate that the class was overbroad.  The court’s analysis on this point was underdeveloped, given the court’s recognition that other cases in the Ninth Circuit have “generally held” that classes in “consumer-deception cases” are “overbroad when [they] include members who were not exposed to the alleged misrepresentations.” Id. at *5.

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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.