Rust-Oleum Settles Restore Class Action Lawsuit for $9.3 Million

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After two years of intense litigation, Rust-Oleum has 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.

The settlement, which is awaiting final approval, resolves a two-year battle over Rust-Oleum Corp.’s Deck & Concrete Restore and Restore 10X products.

“The proposed settlement is plainly a favorable compromise in light of the merits of plaintiffs’ claims, defendant’s defenses, and the factual and legal risks of continued litigation through trial and a possible appeal,” attorneys for the class told U.S. District Judge Amy St. Eve in their motion for preliminary approval. “Furthermore, because of the excellent results the settlement achieves, the settlement concludes the otherwise potentially risky litigation with a positive, common benefit for the class.”

The settlement will consist of a Class of consumers who purchased certain Rust-Oleum Restore products, including Deck & Concrete Restore, Deck Restore, Concrete Restore, and Restore 10x, from Jan. 1, 2008 until the date of the preliminary settlement approval.

After attorneys’ fees and administrative costs, the net balance of the $9.3 million settlement funds will be distributed to settlement Class Members who submit valid Claim Forms.

The settlement compensation will be set up in three tiers, depending on the amount and type of damage suffered.

In addition, Class Members will receive additional higher-tiered compensation if the Restore products were or will be removed and/or repaired and replaced.

Furthermore, the settlement provides for special circumstances supplemental compensation in addition to the payments reference above. Special circumstances compensation may include any additional out-of-pocket costs associated with removal and replacement of Restore and/or the decking or other area where the Restore products were applied.

Rust-Oleum introduced the Restore product in 2013, claiming it was a new-and-improved treatment and marketing it as long-lasting.

However, plaintiffs in the multidistrict litigation alleged that after months of using the product it began to bubble and peel away, leaving the decks looking worse than before applying the Restore.

The plaintiffs introduced a consolidated class action complaint in April, including 40 named plaintiffs, who claimed to have purchased and used the Restore products between 2010-2015.

They collectively asserted “Rust-Oleum knew or should have known that Restore would not live up to those promises” made in the company’s marketing and advertising for the products.

The 10-count class action lawsuit, which alleged breach of warranties and violations of consumer fraud and false advertising statutes throughout the U.S., among other allegations, asked the court to award damages to a Class including everyone who purchased Restore anywhere in the U.S. and its territories.

Prior to the MDL consolidation in Illinois federal court in Feb. 2015, a series of class action lawsuits were filed by frustrated consumers across the country.

An initial class action complaint, filed in 2014 by New York plaintiff Ulbardo Fernandez, claims that when he applied Restore to concrete surfaces in his garage and property it did not last through the winter and early spring.

When he went to purchase more of the product to repair the damage, he was told it had been pulled from the shelves and was advised to strip the product from the concrete areas.

Another similar class action lawsuit was filed by plaintiffs David and Kathleen Sullivan who claim their deck began to chip, crack and deteriorate just one month after applying Restore.

The consumers are represented by co-lead counsel Katrina Carroll and Kyle Alan Shamberg of Lite DePalma Greenberg LLC and William M. Audet of Audet & Partners LLP.

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

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