$1B DuPont Deal Gets Final OK In Firefighting Foam MDL

In the class action, plaintiffs claimed that firefighting foam made by the defendants leached perfluoroalkyl and polyfluoroalkyl substances (PFAS) into local drinking water sources. PFAS is commonly called a “forever chemical” due to its persistence in the sources it contaminates, both the environment and the human body.

The Terms of the Settlement

The settlement includes chemical companies DuPont, Chemors, and Corteva. It seeks to cover costs related to remediating public water systems that have been polluted by PFAS chemicals and testing for water systems at risk for PFAS contamination.

The case is a class action including all public water systems in the US that get water from at least one source that tested positive for PFAS, as well as all public water systems that are required by law to test for PFAS. The terms of the settlement do not prevent any plaintiff from bringing a future case to address groundwater or soil contamination. It does not include state- or federal-owned systems, systems that are not required to monitor for PFAS, or systems in the lower Cape Fear River Basin of North Carolina unless these systems opt in.

The settlement applies to more than 300 lawsuits filed since 2018, all of which focus on the leaching of PFAS from firefighting foams into the environment. Many of these cases were consolidated in the MDL in South Carolina. The deal was first announced in June 2023 and received preliminary approval in August 2023.

Chemours will contribute 50 percent of the $1.185 billion total. DuPont and Corteva will collectively contribute the other 50 percent under terms reached in a Memorandum of Understanding between the companies in early 2021, according to a DuPont press release.

Objections to the Settlement Terms

Three Washington cities - Vancouver, DuPont, and Tacoma - objected to the terms of the settlement. The cities argued that the deal must be rejected because it doesn’t compare the value of the settlement to the value that the plaintiffs might have obtained at trial. They also argued that the settlement was inadequate because “it pales in comparison to the PFAS-related damages that defendants have caused across the country.”

The Washington cities were joined in their objections by the North Texas Municipal Water District, among other plaintiffs. Nonetheless, U.S. District Judge Richard Gergel dismissed these objections, noting that “Fourth Circuit case law does not require a trial on the merits as a prerequisite to settlement” and that the settlement amount met adequacy requirements.

Takeaways for Attorneys

The MDL against DuPont, Chemours, and Corteva is not the only case involving PFAS contamination from firefighting foam. The state of Ohio reached a $110 million settlement with DuPont in November 2023 for environmental restoration on the Ohio River.

The plaintiffs also reached a $12.5 billion deal with 3M in late February 2023 to settle a substantially identical class action lawsuit. The final approval for that deal is pending.

Unlike many MDL cases, the class of plaintiffs in these PFAS contamination claims does not consist of individuals who claim they were personally injured by exposure to PFAS leached into drinking water systems by firefighting foams. Rather, the plaintiffs are municipal water systems that must now deal with extensive testing and remediation challenges imposed by the persistence of PFAS in their water sources.

These cases are sprawling in their geographic scope and the number of people potentially or actually harmed by PFAS exposure. Yet they are held together by the common claim that defendants’ use of PFAS chemicals in firefighting foam resulted in PFAS entering public water systems. Focusing on this common thread through the mass of details surrounding each water system’s specific issues was essential to success.

Despite their objections, plaintiffs stated that the final approval “signifies a crucial step towards accountability and addressing PFAS-related challenges for water service providers and the communities they serve.”

Plaintiffs are represented by co-lead class counsel Michael A. London of Douglas & London PC, Scott Summy of Baron Budd, Paul J. Napoli of Napoli Shkolnik, and Joe Rice of Motley Rice LLC.