We are seeing a growing number of class actions alleging consumer harms from corporate carbon offset policies.  On October 13, a California federal court threw out such a case (albeit with leave to amend) against e-commerce site Etsy.   

The lawsuit, Blackburn v. Etsy, Inc., No. 2:23-cv-05711 (C.D. Cal. 2023), stemmed from a number of carbon offset promises Etsy has made since 2019—that the company engages in “100% offsetting [of] all carbon emissions from shipping[,]” that it was “the first major online shopping destination to offset 100% of carbon emissions generated by shipping[,]” and that its “goal [is] to run a carbon neutral business[.]”  Dkt. No. 20 at 1.  Plaintiffs alleged that the carbon offset promises were false “due to endemic methodological errors and fraudulent accounting on behalf of offset vendors.”  Id.  Plaintiffs claimed that Etsy’s false promises caused them harm because they paid more for products on the site than they otherwise would have under the mistaken belief that Etsy’s shipments were carbon neutral. 

The court disagreed.  Plaintiffs, the court held, had failed to adequately plead an injury in fact and therefore did not have standing to maintain the lawsuit.  For a price premium false advertising case, “[t]he bare recitation of the word ‘premium’ does not adequately allege a cognizable injury.”  Id. at 6.  The prices for the types of goods sold on Etsy—unique handmade or vintage items—could vary for a number of factors that have nothing to do with the carbon offset promises Etsy made.  Plaintiffs alleged nothing to suggest that these products were available elsewhere at a lower price.  Thus, the complaint failed to include any well-pleaded facts to support the conclusion that the alleged price premium was caused by Etsy’s carbon offset promises. 

We will continue to monitor this emerging issue.

Photo of Marc Capuano Marc Capuano

Marc Capuano is a stand-up litigator in the Washington, DC office, where he represents clients in all phases of complex class actions and commercial litigation, including dispositive motions, discovery, and trial.

Marc works with national and international clients across various industries to help…

Marc Capuano is a stand-up litigator in the Washington, DC office, where he represents clients in all phases of complex class actions and commercial litigation, including dispositive motions, discovery, and trial.

Marc works with national and international clients across various industries to help them successfully resolve their most difficult litigation challenges in state and federal court. Among others, Marc has counseled clients in the life sciences, pharmaceutical, technology, and automotive industries. Marc has expertise in all stages of litigation, including drafting dispositive motions, taking and defending depositions, and in-court argument. A member of multiple trial teams in both state and federal court, Marc understands how to position and prepare cases for successful resolution at trial.

Marc’s active pro bono practice includes first-chairing a Maryland first degree murder trial during which the team secured their client’s acquittal and successful litigation to defend the rights of swing-state voters following the 2020 Presidential election. Marc has honed his oral advocacy through his pro bono work, including by arguing Daubert and other substantive motions, giving the opening statement at trial, and conducting trial cross and direct examinations.

Prior to joining Covington, Marc served as a law clerk to U.S. District Judge Robert E. Payne of the Eastern District of Virginia (Richmond). A native Rhode Islander, before attending law school, Marc worked as Correspondence Director and Legislative Correspondent for U.S. Senator Jack Reed (RI) in Washington.

Photo of Megan Rodgers Megan Rodgers

Megan Rodgers is a litigator who focuses her practice on high-stakes commercial disputes, with a particular focus on mass torts, class actions, advertising, privacy, product defect, and consumer protection matters.

Megan is called upon for her ability to navigate especially complex cases and…

Megan Rodgers is a litigator who focuses her practice on high-stakes commercial disputes, with a particular focus on mass torts, class actions, advertising, privacy, product defect, and consumer protection matters.

Megan is called upon for her ability to navigate especially complex cases and to successfully take cases from pre-trial through jury verdicts, and she was recently recognized by the Daily Journal in its “Top 40 Under 40” feature.