Nicholas Malfitano May 14, 2015, 9:45am


PHILADELPHIA – A Pennsylvania class action complaint regarding the quality of products from a major paint manufacturer has been transferred to an Illinois federal court.

A Feb. 6 decision from the United States Judicial Panel on Multi-District Litigation sent a class action against Rust-Oleum to U.S. District Court for the Northern District of Illinois.

The class action suit was originally filed at the U.S. District Court for the Eastern District of Pennsylvania in October by five plaintiffs from Pennsylvania and New Jersey, and now includes related cases from the District of Maryland, the Northern District of Illinois, the Southern District of New York, and the Eastern District of North Carolina.

“We find that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation,” said Sarah S. Vance, Chair of the Panel on Multi-District Litigation.

“The common questions of fact will include the design, manufacture, and testing of Restore products; the representations in the products’ marketing and labeling; Rust-Oleum’s policies and practices with respect to the warranties; and the measure of damages.

“Additionally, all actions are on behalf of overlapping putative nationwide and statewide classes of Restore consumers.”

In its February decision, the panel communicated its view that centralization of all the pending cases relating to Rust-Oleum’s Restore product will “eliminate duplicative discovery, prevent inconsistent pretrial rulings, including with respect to class certification, and conserve the resources of the parties, their counsel, and the judiciary.”

The panel also summarized its rationale for transferring the case to the Northern District of Illinois.

“We conclude that the Northern District of Illinois is an appropriate transferee district for this litigation. This district, which has the unanimous support of all plaintiffs and defendants, provides a geographically central forum for this nationwide litigation that will be convenient and accessible for the parties and witnesses,” Vance wrote.

“Common defendant Rust-Oleum has its corporate headquarters there, indicating that relevant documents and witnesses likely will be located there. Additionally, the first filed and most advanced action is pending in this district.”

The original complaint sought declaratory and injunctive relief against Rust-Oleum, headquartered in Vernon Hills, Ill., and the makers of the Restore line of paint products.

According to the claim, all the plaintiffs experienced significant damage to their outdoor decking as a result of the paint’s cracking, bubbling and peeling away.

The original complaint was filed on behalf of any consumers in Pennsylvania and New Jersey who purchased the Restore paint, and sought damages in excess of $5 million on violations of the Magnusson-Moss Act, which protects the public from deceptive warranty practices, plus counts of unjust enrichment, negligent misrepresentation and breach of warranty.

According to the complaint, Rust-Oleum made several claims about the high quality of Restore, including advertisements that said the product had a durable coating “formulated to resurface most wooden and composite decks while providing lasting protection against moisture and the damaging effects of the sun.”

The plaintiffs claim that Rust-Oleum has created a product that begins to fail on its first day of use.

Because of the paint mixture, it takes a large amount of effort to remove the paint and replace it, plus endangering the underlying deck materials, the suit says.

The company offers a lifetime warranty, the claim says, but it only covers the cost of the paint, which is only a fraction of the expense to replace the product.

Steve and Gina Cady, of Berks County, purchased $230 worth of Restore in July 2013, based on conversations with store representatives and video demonstrations. A year after applying the paint to their outside deck, the couple noticed chipping and wearing away at several spots, they say.

After contacting Rust-Oleum, they were told to fill out a warranty card. They then received a refund for the paint, but no consideration for the substantial damage and deterioration to the deck, they claim.

The complaint says that by packaging and selling Restore, Rust-Oleum made an implicit warranty that the product would work as promised on the label and advertisements, and the plaintiffs relied on those warranties to purchase and use the paint.

The plaintiffs are represented by Daniel C. Levin, Esq. of Levin, Fishbein, Sedran & Berman in Philadelphia.

The defendant is represented by John S. Stapleton, Esq. of Hangley Aronchick Segal and Pudlin, also in Philadelphia.

U.S. District Court for Eastern District of Pennsylvania case 5:14-cv-06156

MDL No. 2602

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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