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

Sports Drink Company Sued for Use of PFAS

Customers who purchased BioSteel Sports Nutrition’s raspberry sports drink filed a lawsuit against the company, alleging third-party testing of the sports drink indicated that PFAS are present in the drinks and BioSteel knew or should have known. The lawsuit alleges the company made false and deceptive claims by marketing the drinks as “eco-friendly” and “good for you and the environment” and using well-known professional athletes in its campaign.

January 27, 2023 | Bedson v. BioSteel Sports Nutrition Inc., No. 1:23-cv-00620 (E.D.N.Y. Jan. 27, 2023).

PFAS Regulation Likely to Spur Increased PFAS Litigation

Legal analysts forecast that PFAS-related lawsuits will continue to rise in 2023. The analysts assert that the EPA’s efforts to list PFOA and PFOS as hazardous substances under CERCLA, which will require facilities to report releases of PFAS and authorize the EPA to enforce cleanup efforts, and growing public awareness about PFAS and its health effects are responsible for this likely increase. Several plaintiffs in various suit involving PFAS have already stated that once the EPA finalizes its rule designating PFAS as a hazardous substance they will seek leave to amend their complaints to assert CERCLA cost-recovery claims. The EPA seeks to finalize this PFAS-designation rule before the end of 2023.

January 12, 2023 | Notice of Proposed Rulemaking: Designating PFOA and PFOS as CERCLA Hazardous Substances, U.S. EPA

DuPont and Chemours Seek Reconsideration Before Federal Court to Protect Attorney-Client Privileged Information

E. I. du Pont de Nemours (“DuPont”), the Chemours Company and the Chemours Company FC, LLC (together “Chemours”), the defendants in a multidistrict litigation case involving PFAS in aqueous film-forming foam, move a federal district court to reconsider its previous order to compel, which requires production of thousands of documents, or allow for an interlocutory appeal. DuPont and Chemours request, in full understanding that reconsideration is a serious remedy, that the court consider a procedural order from a previous case that helps evidence an agreement between the two defendants to prevent internal corporate information about PFAS cleanup liabilities from being released. Despite opposition from the plaintiffs, DuPont and Chemours assert that producing the documents that detail the exchanges between them regarding the manufacture and use of PFAS chemicals would violate the attorney-client privilege by disclosing confidential and privileged information.

January 5, 2023 | In re: Aqueous Film-Forming Foams Products Liability Litigation Case No. 2:18-mn-02873-RMG (D.S.C.)

DuPont Petitions the Sixth Circuit for a Full Review of a Decision Precluding Future Litigation in PFAS-related MDL

E. I. du Pont de Nemours (“DuPont”) petitions the Sixth Circuit to sit en banc and reconsider a three-judge panel’s ruling upholding a decision that granted the plaintiffs damages on their PFAS-related negligence claims and barred DuPont from relitigating several issues decided in previous litigation. Since the three-judge panel did not limit preclusion to only the identical issues between the cases, DuPont asserts that the present ruling conflicts with the black-letter law that collateral estoppel (i.e., issue preclusion) is inappropriate where divergent facts could lead juries to reach different conclusions – especially given the potentially broad and diverse circumstances of future plaintiffs in future, expansive multidistrict litigation.

January 3, 2023 | In re: E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation Case No. 21-3418 (6th Cir.)

District Court Stays Litigation Challenging de Minimis Exemption for PFAS TRI Reporting

The U.S. District Court for the District of Columbia stayed litigation challenging de minimis exemptions for PFAS Toxic Release Inventory (TRI) reporting. The plaintiff environmentalists’ suit alleges the EPA’s rule allowing the de minimis exemption to apply to PFAS violates the Emergency Planning and Community Right-to-Know Act, the federal law authorizing TRI, as well as the National Defense Authorization Act for Fiscal Year 2020, and allows companies to allegedly evade reporting PFAS that would otherwise be disclosed. In its January 3, 2023 order, the court cited judicial economy and unlikely harm to plaintiffs in granting the EPA’s stay request. The EPA’s primary argument in support of its motion to stay was that the agency is currently engaged in rulemaking, the outcome of which would likely moot the dispute.

January 3, 2023 | National PFAS Contamination Coalition, et al. v. U.S. Environmental Protection Agency, et al., No. 1:22-cv-00132 (D.D.C. Jan. 3, 2023).