Rust-Oleum Restore Lawsuits Close to Settling, Judge Told

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A final class action settlement is not far off in a set of consolidated Rust-Oleum Restore lawsuits that claim the product left customers’ outdoor deck surfaces ruined.

In a recent hearing, attorneys for both sides reported to U.S. District Judge Amy St. Eve that they have negotiated a draft settlement and should be able to finalize it within a few weeks.

The Rust-Oleum Restore multidistrict litigation was formed in February 2015 as a consolidation of several individual claims over Rust-Oleum Corp.’s Deck & Concrete Restore. The MDL now consists of almost 50 individual claims from over two dozen different states.

Rust-Oleum Restore is designed to resurface outdoor wood and concrete deck surfaces, supposedly to protect them and restore their appearance. Plaintiffs allege that, far from improving or protecting their deck surface, Rust-Oleum Restore peeled and chipped soon after application. Some plaintiffs say they had to replace the deck surface entirely.

They claim that Rust-Oleum must have known their product was prone to failure, due to the product testing the company conducts. Plaintiffs also cite several negative customer reviews from Internet forums like Amazon.

Plaintiffs argue the warranty offered on Rust-Oleum Restore is inadequate to cover the losses they sustained due to the product’s alleged defects. The Rust-Oleum warranty only offers a replacement product or a refund of the purchase price the customer paid for Rust-Oleum Restore. Plaintiffs argue the company should also be liable for all the other losses that resulted from the product’s alleged defects, like the costs of repairing damage and replacing the deck surface.

In denying Rust-Oleum’s motion to dismiss in January 2016, Judge St. Eve found the plaintiffs had adequately pled their claim that the warranty was inadequate. The judge also noted that discovery would be necessary to determine whether Rust-Oleum Restore was defective at the time it was offered for sale.

Before the MDL was consolidated in Illinois, complaints about Rust-Oleum Restore had led to an earlier set of class action lawsuits in other courts. In late 2014, plaintiff Ulbardo Fernandez filed his Rust-Oleum Restore class action lawsuit in a New York federal court.

Fernandez alleged the Rust-Oleum Restore he had applied to concrete surfaces in his garage and outside his home did not survive the winter and early spring. When he went back to Home Depot to buy more Restore to repair the damage, he was told Home Depot had pulled the product from its shelves, he says. The Home Depot employee he spoke to recommended he simply strip the remaining product from the concrete, he said.

In another Rust-Oleum Restore class action lawsuit, plaintiffs David and Kathleen Sullivan said Restore didn’t last a month on their deck before it began to chip and crack. Their complaints to Rust-Oleum only got them a refund of the money they spent on the product, they said. The refund didn’t begin to compensate them for the cost of having to refinish their deck, they alleged.

In the current MDL, lead counsel for the plaintiffs are attorneys William M. Audet of Audet & Partners LLP and Katrina Carroll and Kyle Alan Shamberg of Lite DePalma Greenberg LLC.

The Rust-Oleum Restore Multidistrict Litigation is In re: Rust-Oleum Restore Marketing Sales Practices and Products Liability Litigation, Case No. 1:15-cv-01364, in the U.S. District Court for the Northern District of Illinois.

UPDATE: On Oct. 19, 2016, Rust-Oleum reached a proposed $9.3 million settlement with consumers who claim the company’s wood and concrete resurfacing product line, Restore, did not perform as advertised.

UPDATE 2: The Rust-Oleum Restore products class action settlement website has been established. Click here for more information and to sign-up for notifications.