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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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)

In Florida, Personal Jurisdiction Exists Where Liability is Inherited from Predecessor

A federal district court judge denied Corteva Inc. and DuPont de Nemours Inc.’s motion to dismiss a lawsuit brought again them for lack of personal jurisdiction. The companies claimed that the plaintiff, the city of Stuart, Florida, lacked jurisdiction over them because they are based in Delaware, but the court disagreed. The court held that personal jurisdiction existed over both companies because the companies each contractually assumed the historic liabilities of their predecessor.

March 10, 2022 | In Re: Aqueous Film-Forming Foams Products Liability Litigation Case No. 2:18-mn-2873 (D.S.C.)

Federal Judge Denies Hampton Couples’ Motion for a Preliminary Injunction to Stop Onshore Trenching Near Alleged PFAS-Contaminated Groundwater

Two couples in East Hampton, New York filed suit against the U.S. Department of the Interior and other federal agencies, alleging violations of the National Environmental Policy Act, Administrative Procedures Act, and other environmental laws, by allegedly failing to adequately review the effects of an offshore commercial windfarm project, which required onshore trenching, on PFAS-contaminated groundwater. The court denied a motion for preliminary injunction to prevent South Fork Wind, LLC, the project developer, from excavating trenches near their homes to store underground cables designed to transfer energy from the offshore commercial wind farm to an onshore electric grid, which the residents claimed would disturb and exacerbate the alleged PFAS in groundwater.

March 9, 2022 (complaint filed); April 12, 2022 (preliminary injunction denied) | Mahoney v. Dep’t of the Interior Case No. 2:22-cv-01305-FB-ST (E.D.N.Y.)