By Gerald L. Maatman, Jr.
Duane Morris Takeaway: PFAS class actions inspired some of the most attention-grabbing headlines this past year across the legal landscape. PFAS, or per- and polyfluoroalkyl substances, are a group of manmade chemicals that are resistant to oil, water, and heat. They are used in many consumer and industrial products and are commonly called “forever chemicals” because of their persistence, meaning they do not break down easily in the environment.
See the video below with Duane Morris partner and DMCAR editor Jerry Maatman to learn more about this trend:
PFAS generated the largest class action settlement in 2024, which came in at more than twice the next highest settlement, which also involved PFAS, and generated an attorneys’ fee award of nearly one billion dollars. These numbers are going to inspire a continued wave of PFAS class actions, as the plaintiffs’ class action bar targets more companies with claims that their products or packaging contained PFAS, and those companies, in turn, search for claims against their material suppliers.
Numbering in the thousands, PFAS are found in consumer, commercial, and industrial products, and due to their presence in so many products, it is challenging to assess the health impact of PFAS. In recent years, the U.S. Environmental Protection Agency (EPA) has issued a number of guidelines regarding PFAS in drinking water. Meanwhile, the EPA has undertaken efforts to understand how to remediate, manage, and dispose of PFAS present in drinking water supplies more efficiently.
In 2024, PFAS regulations from another six states went into effect and will continue in 2025, including Colorado, Maryland, Connecticut, Minnesota, Hawaii, and New York. The graphic outlines these regulations.
The discovery of PFAS in drinking water has spurred states attorneys general to bring lawsuits on behalf of their constituents seeking to impose liability relating to drinking water contamination on the PFAS manufacturers and asserting claims under various products liability and negligence laws.
In April 2024, the EPA finalized a rule setting the first-ever limits for PFAS in drinking water. The rule already is subject to multiple legal challenges. In October 2024, the White House Office of Science and Technology Policy said in a report that it will continue to look for new technologies to remove so-called forever chemicals from the environment and find safe alternatives for the substances.
Since 2018, more than 300 lawsuits have been filed over PFAS contamination, with many suits being consolidated in the South Carolina-based MDL focused on the chemicals in aqueous film-forming foam used in firefighting applications. On March 29, 2024, the court granted final settlement approval of $10.3 billion in In Re Aqueous Film-Forming Foams Product Liability Litigation, MDL 2873 (D.S.C. Mar. 29, 2024), to resolve claims for the damage allegedly incurred from using PFAS for decades in specialized fire suppressants, called aqueous film-forming foams, that were sprayed directly into the environment and reached drinking water.
These numbers are likely to inspire a continued wave of PFAS class actions, as the plaintiffs’ class action bar targets more companies with claims that their products or packaging contained PFAS, and those companies, in turn, search for claims against their material suppliers. In November 2024, for example, Mohawk, the world’s largest flooring manufacturer sued 3M Co., E.I. de Pont de Nemours and Co., The Chemours Co., and Daikin America alleging that these chemical manufacturers lied about the dangers of forever chemicals in their products. Mohawk alleges that it purchased oil-resistant carpet treatment products from the chemical manufacturers for decades without the manufacturers disclosing that the products contained PFAS and that the manufacturers wrongly concealed internal studies regarding the dangers of PFAS. Mohawk alleges that it has been named in a series of lawsuits, already has paid over $100 million to settle some of the claims, and seeks to pass the cost of those settlements onto the defendants.
While the plaintiffs’ bar has been filing lawsuits for over two decades over alleged health and environmental consequences associated with PFAS, as of late the types of plaintiffs and defendants, as well as the types of claims, have multiplied and evolved. Many recent PFAS plaintiffs have filed their class actions against consumer product manufacturers under consumer fraud statutes and other misrepresentation theories. Most of these PFAS class actions have not yet advanced to the class certification stage. Class certification theories remain a work in progress for plaintiffs, as most PFAS class actions to date have involved settlements and motions to dismiss.
In 2024, we saw numerous rulings on motions to dismiss, with the plausibility of plaintiffs’ claims often turning on the nature of defendants’ alleged misrepresentations, specificity and content of plaintiffs’ allegations regarding the nature of the testing they performed on the alleged products, temporal proximity of purchases to testing, and test results. Rulings in this area of the law have been numerous and mixed. Compare, e.g., Lowe, et al. v. Edgewell Personal Care Co., 2024 U.S. Dist. LEXIS 7238(N.D. Cal. Jan. 12, 2024) (dismissing PFAS class action because plaintiffs’ allegations regarding their independent testing for presence of PFAS in consumer product lacked specificity); Bounthon, et al. v. Procter & Gamble Co., 2024 WL 4495501, at *2-3, 7-10 (N.D. Cal. Oct. 15, 2024) (dismissing PFAS class action, finding the alleged reliability of plaintiffs’ total organic flourine analysis refuted by plaintiffs’ own allegations and finding implausible plaintiffs’ allegations that 30 parts per million of PFA are harmful); Onaka, et al. v. Shiseido Americas Corp., 2024 WL 1177976, at *3 (S.D.N.Y. Mar. 19, 2024) (dismissing PFAS class action because plaintiffs failed to allege their testing was near in time to their purchases); with Winans, et al. v. Ornua Foods Inc., 2024 WL 1741079, at *5 (E.D.N.Y. Apr. 23, 2024) (finding that whether FDA regulations exempting insignificant levels of incidental food additives from disclosure preempted consumer’s omission-based claims regarding PFAS was question of fact not amenable to motion to dismiss), Hicks, et al. v. L’Oreal U.S.A., Inc., 2024 WL 4252498, at *11 (S.D.N.Y. Sept. 19, 2024) (denying in part and granting in part motion to dismiss and finding plaintiffs’ alleged testing sufficient to “allow for the plausible inference at this stage that there was a pervasive PFAS presence in the Products”).
Given the settlement numbers to date, companies can expect PFAS to generate more filings in the coming year as plaintiffs seek a share of the PFAS treasure chest and their targets, in turn, seek to pass costs down the chain.