In Summer 2023, 3M and DuPont de Nemours assented to multibillion-dollar settlements to resolve lawsuits with municipal water suppliers over the companies’ role in contaminating drinking water supplies. The agreement seemed to conclude the first phase of the extensive firefighting foam multidistrict litigation (MDL) in South Carolina federal court.
However, municipalities and states throughout the country have begun filing official objections to the proposed settlements, which received preliminary court approval in August 2023. The objectors assert that the terms of the settlement texts are inadequate, unreasonable, and unfair, and raise concerns about their potential to derail pending and future actions.
In response to the flurry of November filings, 3M and DuPont have vowed to fight the objections in court, while plaintiffs’ counsel promised to account for and respond to the concerns. Judge Richard M. Gergel, the presiding magistrate, is poised to address the disputes in upcoming fairness hearings between December 2023 to February 2024.
New York Towns Object to Dupont and 3M PFAS Settlement Terms
On November 11, three New York towns filed an objection to the proposed settlement with the U.S. District Court for the District of South Carolina. Towns of East Hampton, Islip, and Harrietstown allege that the terms of the settlement agreement effectively bar them from claiming funds through the settlement and require them to forfeit eligibility for current and future lawsuits against 3M.
The prospect is considerably alarming for the towns on account of past and future infrastructure projects and remediation campaigns mandated by the New York State Department of Environmental Conservation (NYSDEC).
PFAS Settlement Agreement Prohibits “Releasing Parties” from Filing Suit
The primary objection that the New York towns maintain pertains to the 3M settlement’s distinction between “releasing parties”, “class members”, and “eligible claimants”. Although all categories would be prohibited from filing future lawsuits against 3M, only releasing parties are doubly burdened by an inability to draw on the funds acquired through the multibillion dollar 3M settlement.
On account of an ambiguity in the settlement agreement’s text, the towns contend that they would be classified as releasing parties, despite their exclusion from negotiations. In the absence of a clause permitting the towns to withdraw from the agreement, they assert that their only recourse was to seek amendments to or a replacement of the proposed settlement.
East Hampton’s $7.5 Million Water Main Extension
To illustrate the unfairness, unreasonableness, and inadequacy of the proposed settlement, the towns refer to a mandatory infrastructural initiative between the Town of East Hampton and the Suffolk County Water Authority (SCWA).
The NYSDEC arbitrated an agreement between the town and the SCWA to extend a main line in an effort to provide clean drinking water to communities whose supplies had been contaminated with PFAS runoff from an East Hampton airport. The 9-mile extension ultimately cost the municipality over $7.5 million.
Under the terms of the current proposed settlement, the East Hampton and SCWA relationship would designate the former as a releasing party but not an eligible claimant. In effect, the objection argues, the Town of East Hampton would be permanently barred from seeking compensation from 3M for the costs of the project and denied the right to draw on the settlement funds.
Additional Objections from Dozens of Territories
The objection from the three New York towns represented one of several serious challenges to the proposed settlement. Originating from water districts and governmental agencies across the country, the objectors argue that the agreements fail to meet the “fair, reasonable, and adequate” standard for settlements.
Additional court filings contest the sufficiency of the settlement figures for cleanup costs and legal fees, while others allege that the agreement not only diminishes 3M’s liability but leaves other municipalities “in the dust”. The objections are comparable to those advanced by a coalition of 22 U.S. territories and states after the parties introduced the initial settlement agreement, in July 2023.
The Risk of 3M’s Insolvency After a Summer of Multibillion Dollar Settlements
In August 2023, 3M settled one of the largest mass torts in history, which addressed the defective design of its CAE.v2 earplugs. The company agreed to a $6 billion payout while simultaneously undertaking negotiations with plaintiffs’ counsel in the AFFF multidistrict litigation, which resulted in a $10.3 to $12.5 billion settlement.
The startling figures naturally raised concerns about the potential for 3M to become insolvent in the near future. Class counsel for the water supplier plaintiffs even confirmed to the court in July 2023 that a prospective Chapter 11 bankruptcy filing from the company prompted the parties to hasten their negotiations.
Nevertheless, Colorado’s Widefield Water and Sanitation District asserts in a court filing that the proposed settlement “will not adequately address” the cost of remediating and monitoring contaminated water supplies. Other official objections echoed the district’s complaints, indicating a potential renegotiation to increase the settlement figures.
PFAS Lawsuits' Counsel Pushes Back
In a status conference in July, representatives for the municipal water suppliers addressed the concerns various towns raised over the terms of the proposed settlement. Affirming the legal security of the municipalities, they asserted that the settlement does not prohibit future actions.
After the extensive court filings in early November, plaintiffs’ counsel asserted that they took the objections in earnest and with the “utmost seriousness”, according to Reuters. Ultimately, neither the litigants nor the court will address or resolve the dispute until fairness hearings scheduled between late 2023 and early 2024.
AFFF and PFAS Contamination
At the center of the litigation is a group of hazardous chemicals known as per- and polyfluoroalkyl substances (PFAS). The toxic “forever chemicals” are critical ingredients in aqueous film-forming foam (AFFF), which has been in use since the 1960s.
AFFF was once a staple at military installations, airports, and municipal fire stations for decades, because of its efficacy in extinguishing petroleum and fuel fires. Only in recent years have facilities abandoned it after revelations about AFFF’s threat to human health and the environment.
Prominent AFFF manufacturers, including 3M and DuPont, now stand accused of knowingly endangering the public and critically damaging natural resources. As a result of their negligence and failure to warn, communities throughout the country have suffered from contaminated water supplies and environmental pollution.
AFFF Personal Injury Lawsuits Constitute Next Phase in MDL
The settlement agreement with municipal and state water suppliers amounted to a tentative conclusion to the first wave of firefighting foam lawsuits in federal court. The subsequent wave is slated to address the injuries and complaints of individuals who sustained toxic chemical exposure in an occupational context.
- Kidney cancer
- Bladder cancer
- Testicular cancer
- Breast cancer
- Liver cancer
Common Damages in AFFF Lawsuits
A cancer diagnosis can radically alter an individual’s daily life and require considerable readjustments from family and friends. These burdens are only magnified by the costs associated with the treatment of life-threatening illnesses, which often jeopardize the financial security of entire households.
Fortunately, plaintiffs in AFFF firefighting foam lawsuits reserve the right to pursue compensation for the dramatic adverse health events they have suffered on account of the malfeasance of prominent manufacturers. By speaking with a qualified AFFF lawyer, prospective plaintiffs can determine the financial assistance to which they may be entitled in the form of economic and non-economic damages, including:
- Medical costs – past, present, and future
- Lost wages and income
- Pain and suffering
- Mental anguish
- Loss of consortium
- Wrongful death
Contact an Experienced AFFF Lawyer for Help Today
The recent objections to the settlement agreement with 3M and DuPont are characteristic of the contentious legal proceedings in the ongoing AFFF MDL, which began in 2018. Given the number of objectors and the severe allegations they assert, the disputes may take months to resolve.
Nevertheless, the proposed settlement does not conclude the thousands of personal injury AFFF lawsuits currently pending before the court. If you or someone you know sustained dangerous levels of PFAS exposure on account of the wrongdoing of AFFF producers, we want to help.
Our experienced AFFF firefighting foam lawyers are on standby to provide advice and assistance in getting you the compensation you deserve for the injuries you did not. In a free consultation, we can explain your rights, assess the eligibility of your claim, and assist you in making the best decision for your future.
With over 120 combined years of personal injury law experience and considerable familiarity with the complexities of enrolling in multidistrict litigation, our firm has a proven track record and steadfast commitment to defending the rights of the public against the greed of corporate giants.
For more information, consider contacting us today.