Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features a sneak peek into the third installment of the Duane Morris PFAS Webinar Series: Risk Mitigation and the Rise of Class Action Litigation. Duane Morris partners Jerry Maatman, Jennifer Riley, and Brad Molotsky provide a high-level overview of the recent developments, key rulings, and risk mitigation strategies in their analysis of the “forever chemicals” explosion in the product liability & mass tort class action landscape.
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Watch the full webinar and previous recordings on our website. Bookmark or download the Duane Morris Product Liability & Mass Torts Class Action Review – 2024. Follow the Duane Morris PFAS Blog to stay up-to-date on developments in this rapidly evolving area.
Episode Transcript
How “Forever Chemicals” Have Permeated Class Actions
Jerry: So, you start out with Big Tobacco, you go to asbestos, then you go to opioids, and now you’re at PFAS – and so you’re seeing kind of the fourth generation of well-developed theories, well- financed plaintiffs’ lawyers learning the lessons of the last two decades about how to attack corporate defendants in this area with these theories. And lay on top of that class action theories. So you have very expert plaintiffs’ lawyers doing this and focusing on it, and so I’d say it’s as challenging as I’ve ever seen in terms of the types of cases and the breadth of the cases – it’s rather remarkable.
Class Certification: The Holy Grail Of The Plaintiffs’ Bar
Jerry: One way to think about it is the business model of the plaintiffs’ class action bar: identify the case and file it, certify it, and then monetize it. And do the least amount of work possible to get the greatest return. It’s like the Wall Street theory of investment. And so as Jen will talk about, those areas there are some where certification is near certain other areas where the plaintiffs’ bar is not doing so good and what we’re talking about right now products liability & mass tort it’s right on the 70-72% line but think about that – it’s not even a jump ball. Seven out of 10 cases if lot are being certified. So that’s homework, that’s preparation, that’s skill – picking the right case, picking the right theory – to maximize the potential to certify it.
Class Action Settlement Numbers Continue To Spike At Unprecedented Levels
Jerry: So that study that we do annually that we talked about – a very popular and important telling chapter is on class action settlements. I’m a believer that you can tell a lot about the state of the market and what’s going on by settlements. Why is that? Well, I think success begets copycats in the class action area, and so where you see the plaintiffs’ bar beginning to score settlements or significant settlements you have other people entering the space filing their own lawsuits, and what we’ve seen in the last two years are higher settlement numbers than ever before. In 2023, $51.4 billion; in 2022, $66 billion; and that’s driven by mass tort and product liability claims – both the subject area we’re here for (PFAS) and opioids. So, 20 years ago the only analogue was when there were big tobacco class actions and enforcement actions brought by attorneys general, where you saw billions upon billions of dollars paid in the interim. You could count on one hand, usually one, two, or three billion dollar settlements per year, and the amount would be four to five to six billion in all the areas. Then all of a sudden, we have this jump when we had the big opioid settlements – but then you’re seeing it in other areas like a securities fraud case over a billion, an antitrust case over three billion, and so it’s the Renaissance right now with the plaintiffs’ bar, and it’s by way of my thinking the biggest transfer of wealth in the history of American jurisprudence has occurred in the last 24 months.
Jerry: Now we monitor on a daily basis, and if you look at the period of January 1 through June 30, the first six months we were at $33 billion – so we’re on track for a third year in a row to have these
blockbuster numbers. And what it has done is fueled the growth of plaintiffs’ firms using things like artificial intelligence to bulk up the way in which they litigate the cases. Jen and I spoke at a conference in New York City on mass torts and products liability, and at the keynote address was a plaintiffs’ lawyer said the following, which I thought was rather remarkable – he was involved in the Camp Lejeune water cases, where it is alleged that service members were exposed to cancer-causing water pollution in the ’50s, ‘60s, and ‘70s, and he said collectively the plaintiffs’ counsel had spent the following amount of money to market to potential litigants: $1.1 billion had been spent by these law firms trying to find plaintiffs to bring these cases. So, we’re talking about incredible sums of money that the plaintiffs’ bar is getting behind these cases advertising, trying to find people to bring these mass torts and products liability cases.
Jerry: I mentioned before the iPhones, the omnipresent news cycle of all these big cases, but if you break down just last year – the $51.4 billion – you’re talking about you know a couple of billion per month and over $100 million per day being paid in class action settlements approved by courts. So I’d say the era that we’re in right now is characterized by heightened values of class actions and exponential risk, so if you’re operating in this environment – especially in those epicenters of class action litigation – you’re in a very unique zone that’s never existed before, that’s probably not going away anytime soon. And forever chemicals, for whatever reason, has been identified as the next so-called opportunity of the plaintiffs’ bar where they’re going to be pivoting from opioids to forever chemicals, So, I think you’re going to see this these sorts of numbers and the products liability and mass torts area for months, if not years, to come.
Tracking PFAS In The Class Action Landscape
Brad: Talk to us a bit about PFAS – like what do you think’s driving it, and what’s going on here?
Jennifer: We’ve been seeing PFAS cases for probably almost a decade. Plaintiffs have been filing lawsuits over alleged environmental health consequences associated with these chemicals, and I would say the earlier were largely against manufacturers – of Teflon, of other common household products – but as you as you mentioned, Brad, that landscape seems to be rapidly shifting. So, recently we’ve seen the range of lawsuits, the companies targeted – we’ve seen that really expand. And now we’re seeing these cases brought against not only manufacturers, but other companies in the chain of commerce, including companies that use chemicals in their finished products. For example, restaurants using PFAS-containing food wrappers packaging, retailers of PFAS containing clothing items. And the types of plaintiffs asserting these types of claims are also expanding. We’re seeing state and local governments that have begun filing lawsuits, largely over claimed contamination involving water supplies. So I think it’s as the effects of PFAS become more readily available, more widely known, widely spread, that’s generating some of this as well, As Jerry mentioned earlier, these huge settlements – and I think we’re going to talk more about some of these settlements in particular – but those huge settlements are really inspiring more plaintiffs’ lawyers to get into this space, and I think that is contributing to this expansion.
Brad: Well, so we’ve got as we were talking about kind of PFAS is you know over 12,000 different chemicals – some complex, some simple. Once they get out into the groundwater, they move very quickly. And so if you did testing in Antarctica, or out in Alaska, or in Russia – you would find PFAS in the water, you would find it likely around certain airports where you know firefighting foam has been used, that had PFAS in it. As Jen indicated, it’s found its way into a lot of household products – why? Because it works, it’s got certain properties to it that keep water out of it.
Building Your PFAS Risk Mitigation Toolkit
Jennifer: At least from the class action perspective, because many of these cases are very defensible, and some of the principles we talked about earlier in terms of plaintiffs having a hard time keeping these cases together and getting them certified certainly apply here. So plaintiffs alleging that they ingested something that caused cancer, for instance, a defendant’s going to argue that look – different class members ingested different things, different amounts of those things, some had cancer, some didn’t, they had different types of cancer, they had different interactions with other potentially cancer-causing substances – all of these things are going to lend themselves to individualize inquiries into plaintiffs’ unique circumstances and unique medical histories that are going to be tools that defendants have in their kits to oppose class certification in this context. So, many of these cases haven’t gotten to the class certification stage because we’ve been talking a lot about motions to dismiss and settlements, but I think that this roadmap for how to certify and keep one of these cases together is still something that is very much a work progress, and it’s going to be a big hurdle I think in these types of cases.