Attorneys for a class of potentially tens of thousands of
homeowners and others whose wooden decks and patios were allegedly damaged by
Rustoleum’s “Restore” products have asked a federal judge to grant final
approval to a $9.3 million settlement with the company – a deal which could generate
payments of potentially hundreds of dollars for some homeowners and more than
$3.1 million for the attorneys who pressed the lawsuit.
On Feb. 13, lawyers who represented the plaintiffs filed their
motion in Chicago federal court.
U.S. District Judge
Amy J. St. Eve had granted preliminary approval of the settlement in October.
If granted, the final approval would mark the conclusion of
a huge consolidated case dating back more than three years.
In 2014, a group of 40 named plaintiffs began filing
lawsuits in courts across the country, accusing Rustoleum of selling the deck
restoration products even though the company allegedly knew the products
contained “latent defects” that caused the product to prematurely chip, blister
and peel, and otherwise damage decks and patios to which it was applied. The
plaintiffs said they had purchased and applied the products from 2010-2015.
Those lawsuits were consolidated into a multi-district
litigation and transferred to St. Eve’s courtroom in Chicago.
The lawsuits alleged breach of warranties and violations of
consumer fraud and false advertising laws throughout the U.S., among other
allegations. They asked the court to award damages to a class including
everyone who had purchased Restore anywhere in the U.S. and its territories.
Rustoleum sold the products under the “Restore 10X” and “Deck
& Concrete Restore” labels.
While the litigation had survived Rustoleum’s attempts to
dismiss it, the two sides told the judge in the fall of 2016 that they had
reached a deal to end the matter before it went to trial.
Under the proposed deal, Rustoleum would pay more than $9.3
million into a settlement fund.
Attorneys representing the plaintiffs and others in the
class have asked the judge to award them a little more than $3.1 million in
fees and costs.
The remaining $6.2 million would be used to pay administration
costs and claims, according to the motion for settlement.
The claims would be paid based on three tiers: Class members
who can establish an eligible claim could be in line to be reimbursed for the
cost of the product they purchase; paid $2 per square foot of their deck, if
they paid to have the product removed from the deck; or paid $6 per square foot
of their deck, if they paid to have decking repaired or replaced. The
settlement noted some eligible class members could qualify for payment under
multiple tiers, meaning their total reimbursement could reach into the
thousands of dollars, depending on the size of the deck to which the Restore
product was applied.
“Those who experienced greater levels of damage will be able
to recoup a higher payment in multiple tiers from the Settlement Fund,” the
plaintiffs’ lawyers said in their settlement motion.
The final settlement motion indicated direct notice of the
settlement was sent, either by email or the U.S. Postal Service, to more than 24,000
potential class members. Attorneys for the plaintiffs also advertised the settlement
in newspapers, online and in other ways, the settlement motion said.
The settlement motion noted only two potential class members
had objected to the settlement, and none had done so based on the fairness of the
The attorneys argued their fee request was in keeping with
other settlements and established practices, as it amounted to one-third of the
total. In a separate motion asking the judge to approve their fee request, the
plaintiffs’ attorneys said “their expertise was the primary factor in bringing
about the expeditious resolution of this litigation on extremely favorable
terms for the Settlement Class.”
Lead attorneys representing the plaintiffs included those of
the firms of Lite DePalma Greenberg LLC, of Chicago, and Audet & Partners
LLP, of San Francisco. Other law firms who represented plaintiffs in the action
included: Lockridge Grindal Nauen PLLP, of Minneapolis; Levin Fishbein Sedran
& Berman, of Philadelphia; Wexler Wallace LLP, of Chicago; Kohn Swift &
Graf P.C., of Philadelphia; Cueno Gilbert & LaDuca LLP, of Washington,
D.C.; Quantum Legal LLC, of St. Louis; McCuneWright LLP, of Berwyn, Pa.; Bloom
& Bloom P.C., of New Windsor, N.Y.; Rhine Martin Law Firm P.C., of Wilmington,
N.C.; Law Office of Jean Sutton Martin PLLC, of Wilmington, N.C.; and attorney
Robert N. Isseks, of Middletown, N.Y.
Rustoleum was defended by the firms of Mayer Brown LLP, of
Chicago; Millberg Gordon and Stewart PLLC, of Raleigh, N.C.; and Hangley
Aronchick Segal and Pudlin, of Philadelphia.