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.