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

Plaintiffs Roll Out a New Lawsuit Against Chemical Manufacturers

A putative class action on behalf of consumers who have allegedly been exposed to PFAS found in carpets and rugs was filed in a Minnesota district court. The plaintiffs allege that PFAS confer stain-, soil-, and water-resistance qualities to carpets and rugs and that the defendants sold PFAS products to carpet companies for that purpose but without disclosing the toxicity of the products. The putative class is limited to those who purchased carpeting, had the carpeting installed before January 1, 2020, still own the building where the carpeting was installed, and have not removed the carpeting. The complaint includes a whopping 127 tort-related claims under various states’ laws.

August 30, 2024 | Peterson v. 3M Co., No. 0:24-cv-03497 (D. Minn.).

Seventh Circuit Remands PFAS Contamination Suit to State Court

The Seventh Circuit affirmed an Illinois district court order remanding the State of Illinois’s PFAS-contamination lawsuit against 3M back to state court. 3M originally removed the case to federal court based on the federal officer removal statute based on the belief that some of the contamination at issue came from PFAS-containing AFFF that 3M provided to the U.S. Army at the Rock Island Arsenal, which is located just 25 miles downstream from 3M’s Cordova Facility. While the Seventh Circuit acknowledged that 3M might have had a “colorable federal defense” justifying removal because of the “mixed PFAS contamination,” the state “clearly and unequivocally” conceded at oral argument that it would not seek relief for the mixed PFAS contamination, resulting in a lack of jurisdiction for the district court.

August 7, 2024 | Illinois ex rel. Raoul v. 3M Co., No. 23-3031 (7th Cir.).

Third Circuit Dismisses Chemical Company’s Attempt to Invalidate EPA Water Advisory

The Third Circuit dismissed Chemours’s legal challenge to the EPA’s health advisory for the PFAS chemical HFPO-DA. While Chemours argued that the health advisory violated the Administrative Procedure Act and the nondelegation doctrine, the Third Circuit did not reach those conclusions and instead dismissed the action for lack of subject-matter jurisdiction. For the health advisory to be subject to review under the Safe Drinking Water Act, as Chemours argued, the health advisory would have to qualify as a “final action.” And ultimately the Third Circuit reasoned that the health advisory, which is not enforceable and non-regulatory, was not a final action because it did not directly bring about legal consequences or impose requirements or prohibitions.

July 23, 2024 | Chemours Co. FC LLC v. United States EPA, No. 22-2287 (3rd Cir.).

Court Preliminarily Approves $750 Million PFAS Settlement Between Tyco and Water Providers

Johnson Controls subsidiary Tyco Fire Products LP—a manufacturer of AFFF, a firefighting foam that is alleged to contain or degrade into PFAS—agreed to a $750 million settlement to resolve PFAS contamination claims brought by a class of public water systems in the AFFF MDL pending in the District of South Carolina. The district court issued its preliminary approval of the settlement, observing that the proposed settlement agreement was fair, reasonable, and adequate while also overruling a limited number of objections. The court scheduled the final fairness hearing for November 1, and in the meantime, public water systems can opt out of or object to the settlement.

June 11, 2024 | In re Aqueous Film-Forming Foams Products Liability Litigation, No. 2:24-cv-02321 (D.S.C.).

Coca-Cola Defeats PFAS-Related Claims

Coca-Cola won a motion to dismiss claims alleging that the company’s Simply Tropical Juice Drink—which the company advertised as “made simply” with “all-natural ingredients”—was falsely labeled because it purportedly contained PFAS. In granting Coca-Cola’s motion to dismiss for lack of Article III standing, the district court emphasized that, while the plaintiff claimed that he conducted independent testing on a “sample” of the product in July 2022, the plaintiff did not test the product he actually purchased for PFAS. The court also noted that the plaintiff did not allege that the presence of PFAS in the product was so widespread that it was plausible that he purchased a mislabeled product. The district court granted Coca-Cola’s motion, while granting the plaintiff leave to amend to address the pleading deficiencies.

June 10, 2024 | Lurenz v. Coca-Cola Company, No. 7:22-cv-10941 (S.D.N.Y.).