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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Previous Issues

Court Greenlights Pet Food Packaging Case

A putative class action against Smucker alleges that Smucker falsely represented pet food products are healthy when in fact the food allegedly contains titanium dioxide, and the packaging “contain (or risk containing)” PFAS. The pet owner’s claims—including consumer protection, false advertising, fraud, and negligent misrepresentation claims—survived Smucker’s motion to dismiss. As in other consumer class actions targeting PFAS on food packaging, the plaintiff in this case alleges that PFAS migrate onto the food and thereby pose health risks, yet the presence of PFAS is not disclosed to consumers.

Humphrey et al. v. The J.M. Smucker Company, No. 3:22-cv-06913-WHO (C.D. Cal. May 22, 2023)

AFFF MDL Court Says (Mostly) No to Summary Judgment

The bellwether municipal drinking water case in the AFFF multi-district litigation was brought by the City of Stuart, Florida, based on PFAS in the city’s water supply. The city’s bid for damages from the AFFF manufacturers was strengthened last month when the court largely denied the manufacturers’ motions for summary judgment. The manufacturers sought summary judgment on the city’s private nuisance claim and certain damages claims, including future operation and maintenance costs and soil remediation costs. Additionally, DuPont/Chemours argued that the city could not tie its PFAS to DuPont/Chemours’ products specifically, and that DuPont/Chemours, as an “upstream manufacturer,” had no duty to warn under the “sophisticated user” doctrine. The court rejected all the defendants’ arguments except as to private nuisance, reasoning that Florida law does not allow a nuisance claim based on the design, manufacture, and distribution of a lawful product. Recently, it has been reported that DuPont/Chemours and 3M Company have reached settlement deals with Stuart and similarly situated municipalities in the AFFF litigation, but those deals are not yet final.

In re: Aqueous Film-Forming Foams Product Liability Litigation, MDL No. 2:18-mn-2873-RMG (D.S.C. May 5, 2023; May 19, 2023)

EPA and DuPont Stipulate to Dismiss a Third-Circuit-Appeal Following EPA Releasing DuPont From Test Order Requirements

Counsel for the EPA and DuPont submitted a joint stipulation of dismissal for an appeal filed in the Third Circuit involving an EPA Test Order that previously required DuPont to comply with testing deadlines and other requirements for 6:2 FTSB and HFPO – different types of PFAS chemicals. The EPA released DuPont from the testing requirements after the chemical company successfully established that: (a) it does not manufacture or process the relevant PFAS chemicals; (b) it does not intend to manufacture or process and has not manufactured or processed the relevant PFAS chemicals during the 10 years preceding the Test Order; (c) it is not responsible for any historic or ongoing activities involving the relevant PFAS chemicals; and (d) it is not a “corporate successor in interest” that may be responsible for satisfying the Test Order’s requirements.

May 18, 2023 | In re: Aqueous Film-Forming Foams Products Liability Litigation Case No. 2:18-mm-2873-RMG (D.S.C.)

South Carolina Federal Court Denies DuPont’s and Other Companies’ Motion for Summary Judgement Seeking to Limit Liability in PFAS-Related MDL Case

The U.S. District Court in South Carolina denied DuPont’s and other companies’ motion for summary judgment seeking to limit their liability in a multi-district litigation case involving alleged PFAS contamination in aqueous film-forming foams (“AFFF”). Despite arguments to the contrary, the Court concluded that the claim against the defendants contained at least one question that was ripe for the jury – namely the defendants’ duty to warn of alleged PFAS in AFFF.

May 17, 2023 | Acosta v. 3M Co. et al. Case No. 1:23-cv-03068 (E.D. Wash.)

Washington Residents File Suit Against Chemical Companies For Alleged Groundwater PFAS Contamination

Washington residents filed suit against 3M Co. and other companies for alleged PFAS contamination in groundwater in due to the use of aqueous film-forming foam and its component products in Yakima County, Washington. Plaintiff complained that the alleged PFAS contamination began in the 1960s and continues to present date.

May 11, 2023 | Coosa River Basin Initiative v. Mount Vernon Mills, Inc. et al. Case No. 4:23-cv-00088-WMR (N.D. Ga.)