PFAS Litigation Updates

Fourth Circuit Paves the Way for Defendants to Remove More PFAS Cases to Federal Court (and Transfer Them to the AFFF MDL)

A divided Fourth Circuit panel held that district courts in Maryland and South Carolina erred in remanding certain cases that 3M removed to federal court based on the federal officer removal statute. The states originally sued 3M in state court and expressly disclaimed any liability based on PFAS contamination caused by aqueous film-forming foam (AFFF). 3M removed the cases to federal court under the federal officer removal statute—based on 3M’s manufacture of AFFF for the U.S. military—arguing that the PFAS from 3M’s AFFF “indistinguishably commingled” with the PFAS at issue in the states’ lawsuits. The district courts disagreed and remanded the cases to state court, but the Fourth Circuit vacated those decisions on appeal. The Fourth Circuit refused to “accept the States’ attempts to immunize their complaints from federal officer removal with their purported disclaimers in this case.” Instead, the Fourth Circuit looked to 3M’s “well-pleaded facts of removal” and held that 3M’s removal “holds sufficient water” because the states pleaded PFAS contamination near military bases where 3M alleged that it sold AFFF. This appeal is not yet finished—the Fourth Circuit recently stayed the panel’s decision to consider the states’ petition for rehearing en banc.

March 7, 2025 |Maryland v. 3M Company, No. 24-1218 (4th Cir.); South Carolina v. 3M Company, No. 24-1270 (4th Cir.).

Court Dismisses (Without Prejudice) Environmental Suit Arising from “Wholly Past” PFAS Contamination

The Middle District of Tennessee dismissed a citizen suit involving PFAS chemicals brought by a nonprofit organization under the Clean Water Act and Resource Conservation and Recovery Act. Tennessee Riverkeeper, which claims it is “dedicated to the preservation, protection, and defense of the Tennessee and Cumberland Rivers,” sued a private landfill operator that allegedly contaminated a river with PFAS. The landfill operator moved to dismiss for lack of jurisdiction, arguing that these environmental statutes do not give citizen-plaintiffs standing for “wholly past” violations. The court agreed. Tennessee Riverkeeper had alleged “one instance of a pollutant discharge ten months before filing this lawsuit,” which the court found to be insufficient. The court refused to credit Tennessee Riverkeeper’s conclusory allegations that the violations continued and it also rejected Tennessee Riverkeeper’s argument that the landfill operator’s purported failure to not put in place remedial measures meant that the violations continued.

March 6, 2025 | Tennessee Riverkeeper Inc. v. Waste Connections of Tennessee Inc., No. 3:24-cv-00883 (M.D. Tenn.).

D.C. Circuit Stays Challenge to EPA’s PFAS Regulations Pending Possible Rule Change

Lawsuits brought by industry groups challenging the EPA’s recent regulation of PFAS—including its designation of PFOA and PFOS as hazardous substances under CERCLA and its final rule setting maximum contaminant levels in drinking water for six PFAS chemicals—came to a halt in February. In separate filings, the EPA asked the D.C. Circuit to hold the lawsuits in abeyance for 60 days pending its review of the regulations, which could reflect an effort by the new Administration to roll back those regulations. The D.C. Circuit granted the EPA’s requests, so both lawsuits are now stayed pending further order of the court.

February 24, 2025 | Chamber of Commerce of the United States of America v. Environmental Protection Agency, No. 24-1193 (D.C. Cir.).

February 7, 2025 | American Water Works Association v. Environmental Protection Agency, No. 24-1188 (D.C. Cir.).

PFAS Lawsuit Challenges Smartwatch Band Products

A class action has been filed in the Northern District of California alleging that Apple falsely advertised its Apple Watch Sport Band, Ocean Band, and Nike Sport Band as products designed to support human health and wellness and as environmentally sustainable. The plaintiffs allege these three specific products contain excessive levels of PFAS and that Apple supposedly misled consumers through a marketing campaign that emphasized health, well-being, and environmental sustainability, causing consumers to overpay for products that do not deliver the advertised benefits. The plaintiffs seek relief including monetary recovery for the price premium paid due to Apple’s alleged misleading advertising, as well as injunctive relief to stop Apple’s unlawful manufacturing, marketing, and sale of the products with the material omission and challenged representations.

February 21, 2025 | Cavalier, et al. v. Apple Inc., No. 5:25-cv-00713 (N.D. Cal.).

Class Action Targets Alleged PFAS Misrepresentation in Outdoor Gear

A class action has been filed in the Eastern District of Washington against W. L. Gore & Associates Inc.—the Delaware-based maker of GORE-TEX—for allegedly misleading consumers about PFAS chemicals in its products. The plaintiffs claim that Gore engaged in greenwashing by promoting its products as environmentally friendly and PFAS-free while continuing to use the harmful chemicals in its apparel, violating the Federal Trade Commission’s Green Guides. The lawsuit alleges that Gore’s products release PFAS chemicals during use, contaminating the environment and water supply, without proper disclosure to consumers. The plaintiffs seek class certification, injunctive relief for corrective disclosures, and cessation of deceptive practices, along with punitive damages, disgorgement, costs, attorneys’ fees, and interest.

February 11, 2025 | Mason, et al. v. W.L. Gore & Associates, No. 2:25-cv-00049 (E.D. Wash).