Godfrey & Kahn has been tracking and advising clients regarding notable PFAS developments, including two massive PFAS settlements that manufacturers of PFAS have agreed to with a class of plaintiffs comprised of municipalities and other utilities that provide drinking water to customers. DuPont has proposed to settle with drinking water providers for $1.15 billion and 3M has agreed to a settlement of up to $12.5 billion.
As a potentially significant influence on the timing of these settlements, on Friday, March 11, 2024, a Southern California drinking water service provider (Public Water Supply, or PWS) that was otherwise eligible to participate in the DuPont and 3M PFAS settlements, but that "opted out" of the DuPont settlement, filed an appeal to challenge the Feb. 8, 2024 "final approval" of the DuPont settlement by the judge overseeing the multi-district PFAS litigation, Richard Gergel. On a parallel track, Judge Gergel issued final approval of the 3M settlement on March 29, 2024.
The action by the Metropolitan Water District of Southern California (known as Met) threatens to disrupt the finalization of the DuPont settlement for an unidentified period of time. Without this proceeding, Gergel's final approval of the DuPont settlement would have led to the identification of the "Effective Date" of the DuPont settlement, which would have triggered a 60-day time period by which settling PWSs would have had to submit their "Phase One Public Water System Settlement Claims Form," essentially the financial claim based on the concentrations of PFAS detected in the water supply and the flow or volume of water for a given PWS. It is presently unclear whether Met proposes to challenge Judge Gergel's final approval of the 3M settlement.
At present, counsel for Met and the settling plaintiffs are filing pleadings with the U.S. Court of Appeals for the 4th Circuit (i.e., Judge Gergel's MDL proceeding) seeking to, for Met, establish the basis for its objection to the settlement as unnecessarily broad and, for the PWSs that have not opted out, attack the validity of Met's appeal, obtain sanctions, and demand that Met post an appeal bond to cover the exposure the settling PWS parties will face for managing PFAS in their water supplies until the settlement is in place. Late last week, PFAS trade publications reported that the Public Water Service plaintiffs were seeking the court's approval to require Met to post a $61 million bond.
Certain observers of the significant DuPont and 3M settlements have recently commented with varying accuracy on the significance of Judge Gergel's Feb. 8 "final approval" and whether the 60-day timeline for PWSs to file the Phase One claim in the DuPont settlement has commenced. Godfrey & Kahn has confirmed with class counsel for the plaintiffs in the DuPont and 3M proceedings that the DuPont Effective Date has not yet occurred and that therefore, the 60-day window has not yet opened. Nevertheless, PWSs should begin preparing their claims now, as the claim process has proven to be somewhat challenging and time consuming. For the DuPont settlement, as soon as the appeal is resolved, the 60-day clock following the Effective Date for filing claims will begin. The 60-day time period for the 3M settlement will depend on whether Met, or any other party, challenges the settlement such as Met has in the DuPont matter.
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