On January 7, 2016, the Northern District of Illinois ruled on a motion to dismiss a 10-count complaint applying the law of all 50 states and the District of Columbia in a suit against manufacturer Rust-Oleum. The 40 putative class plaintiffs hail from 27 states in this multi-district, consolidated litigation. The suit alleges that a Rust-Oleum product – Deck & Concrete Restore – contains latent defects that result in bubbling, chipping or other premature failure. Rust-Oleum moved to dismiss, asserting what appears to be every conceivable pleading defect, jurisdictional issue and structural claim problem. The 91-page opinion painstakingly trudged through the arguments. On balance the majority of the rulings favor the plaintiffs, finding arguments premature or fact-driven. Among the debris, however, Rust-Oleum prevailed on a few fronts. First, plaintiffs alleged that Restore’s limited warranty was unenforceable because the limitations were not conspicuous. Rust-Oleum argued that damage limitations need not appear conspicuously on a limited (as opposed to a full) warranty. The court agreed, finding that the warranty was clearly labeled “limited,” precluding application of the Magnuson-Moss Warranty Act.
In re Rust-Oleum Restore Marketing, Sales Practices and Products Liability Litigation, MDL No. 2602, Case No. 15 C 1364 (N.D. Ill.)