PFAS Litigation Updates

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The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

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Hamptons Residents Bring Lawsuit Against the Department of Interior and Army Corps of Engineers

In November 2021, the Department of Interior (“DOI”) approved the construction and operation of the 132-megawatt South Fork Wind Project, developed by Orsted and Eversource, off of the coast of Long Island. The Army Corps of Engineers issued a dredging permit for the project in January 2022. Two East Hampton, New York couples accused the DOI and Army Corps of approving mainland work needed to connect the project to the grid even though it will allegedly disturb and spread existing PFAS groundwater contamination. The plaintiffs argue that the work runs adjacent to their properties and threatens to disturb and spread the pollution that is already impacting wells on their properties and also makes their properties less valuable. The plaintiffs are asking that the court find that the DOI and the Army Corps violated the National Environmental Policy Act and Administrative Procedures Act.

March 9, 2022 | Mahoney et al. v. U.S. Department of the Interior et al. Case No. 2:22-cv-01305 (E.D.N.Y.)

Daikin’s Attempt to Certify Questions Concerning PFAS-Manufacturers’ Liability to Georgia Supreme Court Denied

In February 2021, Earl Parris, Jr. filed a class action complaint, and later an amended complaint, in the Northern District of Georgia against Daikin America (“Daikin”), Inc., and other defendants, alleging discharges of PFAS-contaminated sludge and biosolids into the Raccoon Creek watershed. The court denied of Daikin’s Motion to Dismiss and request to certify questions to the Georgia Supreme Court or for interlocutory appeal.  

April 27, 2022 (defendant’s motion to certify or for interlocutory appeal filed); June 27, 2022 (court denies defendant’s motion to certify or for interlocutory appeal) | Parris, Jr. v. 3M Co. Case No. 4:21-cv-00040-TWT (N.D. Ga)

Plaintiff Voluntarily Dismissed Suit Against Burger King Involving PFAS in its Whopper and French Fry Packaging

Azman Hussain filed a putative class action suit against Burger King Corporation, which alleged that he and other members were injured by Burger King’s alleged misrepresentations and omissions regarding the presence of PFAS in its food packaging. Burger King, in a motion to dismiss, argued that its use of PFAS in its food packaging was not illegal or unsafe since using PFAS violated neither state nor federal law and that the types of PFAS at issue in the case complied with the Federal Food, Drug, and Cosmetic Act’s food governance regulations. Ultimately, Hussain voluntarily dismissed his suit against Burger King without prejudice.

April 11, 2022 (complaint filed); August 22, 2022 (plaintiff voluntarily dismissed suit) | Hussain v. Burger King Corp. Case No. 4:22-cv-02258 (N.D. Cal.)

Plaintiff Voluntarily Dismissed Suit Against L’Oreal USA Alleging PFAS in Mascara Products and Packaging

Rebecca Vega filed a class action suit against L’Oreal claiming that the cosmetics company sold its waterproof mascara products to Vega and other consumers without disclosing that its products and packaging contain PFAS. However, Vega voluntarily dismissed the suit against L’Oreal without prejudice.

April 8, 2022 (complaint filed); June 9, 2022 (plaintiff voluntarily dismissed lawsuit) | Vega v. L’Oreal USA, Inc. Case No. 2:22-cv-02049-SDW-JRA (D.N.J.)

Contamination at Firefighting Test Site Spurs Lawsuit

Johnson Controls Inc. and Tyco Fire Products LP are being sued by the Wisconsin attorney general for violations of the state’s hazardous-substance spills law, saying they failed to report or remediate the discharge of PFAS into groundwater around the Marinette Fire Technology Center. The foam had previously been discharged into the city’s sanitary sewer system and treated by its wastewater treatment facility. However, there appeared a plume of groundwater contamination at and around the site and some time before 2013 at levels in excess of what the U.S. EPA recommends for drinking water, which had not been investigated by Tyco and Johnson. The complaint alleges that Tyco and Johnson needed to but failed to notify the Wisconsin Department of Natural Resources about these elevated PFAS levels from November 2013 to January 2018. The suit seeks an order requiring Johnson and Tyco to complete investigation and cleanup of the PFAS contamination, as well as monetary penalties.

March 14, 2022 | State of Wisconsin v. Tyco Fire Products LP et al. Case No. 2022CX000001 (Marinette County Circuit Court)