What to Expect from the PFAS Class Action Settlements

6.26.23

Proposed Class Action Settlements with 3M and DuPont

Last updated 9.26.2023

In June 2023, 3M announced that it had reached a settlement of lawsuits filed by public water suppliers affected by PFAS "forever chemical" contamination, agreeing to pay up to $12.5 billion over 13 years. 3M's settlement proposal came on the heels of the proposed settlement from DuPont and its related companies, Chemours and Corteva, for $1.1859 billion (about $4 per person in the US). The DuPont settlement received preliminary approval from the judge presiding over the case on August 22^nd, 2023, and the 3M settlement received preliminary approval on August 29^th. These settlements will serve as an important step toward ensuring that people across the country have access to safe drinking water. These are the latest developments in an ongoing multi-district litigation (MDL) between the manufacturers of per- and polyfluoroalkyl substances (PFAS) and water suppliers across the country who seek to hold polluters accountable for cleanup costs.

Virtually all public water systems (PWSs) that have PFAS detections in at least one of their supply sources, or are required to test for it under UCMR5, will be eligible to receive funds if the settlements receive final approval from the court. There is no obligation to prove that the PFAS contamination was caused by the companies offering the settlements, or their products. Since the proposed agreements are structured as class action settlements, all eligible PWSs will be included unless they opt out, regardless of whether they have filed lawsuits against the companies. Systems have until December 4^th, 2023, to decide whether to opt out of the DuPont settlement, and until December 11^th, 2023, to decide whether to opt out of the 3M settlement. After the opt-out and objection period for each settlement is complete, the judge will decide whether to issue a final approval at a final fairness hearing. The final fairness hearing for the DuPont settlement is scheduled for December 14^th, 2023, and the hearing for the 3M settlement is scheduled for February 2^nd, 2024.

Water systems will not automatically receive a share of the settlement payments unless they complete the appropriate steps within the allowed timeframes. Once each settlement receives final approval, participating systems included in Phase 1 will have 60 days to submit their claims forms for that settlement. If they do not submit their forms by the deadline, they will not receive settlement payments. However, if they have not opted out before the deadline, they will also be ineligible to file additional lawsuits against the involved companies over PFAS water contamination.

The PFAS class action settlements may help eligible PWSs recover clean-up funds, but the process of submitting claims is likely to be complex and depend on a variety of data about each contaminated source. By working with a law firm with experience managing water contamination cases, water providers can put themselves on an easier path to cost recovery and avoid potentially costly mistakes.

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Why Water Systems Can Benefit from Legal Representation

While PWSs will automatically be included in the proposed class action settlements unless they opt out, they will benefit from retaining legal counsel and filing their own lawsuit in the MDL for several reasons. Eligible recipients will have a limited time to make important decisions with far-reaching effects on their ability to recover the funds needed to remove PFAS from drinking water. Now that the DuPont settlement has received preliminary approval, eligible systems are expected to have only until December 4^th to opt out of that settlement before they are automatically included.

As described on the official settlement website, the amount each participant ultimately receives will depend on a variety of factors including the total number of participants, the degree of contamination present in the water supply, the number of people served by the water system, and more - and systems that have filed lawsuits may be eligible for enhanced payments.

Furthermore, water systems that participate in the settlements without having hired counsel may still be assessed a fee to be paid to the lawyers who negotiated the settlements, even though these systems will not be provided with legal representation to guide them through the settlement process. It is advantageous to retain a law firm with knowledge about the settlements and experience with water contamination to represent the system and provide guidance to maximize recovery. If a water system decides to work with SL Environmental Law Group, the firm will perform this work on a contingency fee basis, meaning that its only fee will be a percentage of the recovery. With this in mind, it is in water suppliers’ best interests to seek legal counsel, even if they plan to participate in the class action settlements.

In addition, some water systems may find that the terms of the settlements do not suit their needs and choose to pursue litigation against 3M and/or DuPont instead. Participating in the settlements will resolve all potential or existing water systems’ claims against 3M, DuPont and its related companies, Chemours and Corteva. This means that water systems that do not opt-out of either settlement will no longer be able to file additional lawsuits against any of those manufacturers, even if the final settlement amounts received fail to cover the full cost of PFAS clean-up. However, eligible systems will not know exactly how much money they stand to receive from either of these settlements until after the opt-out deadline. It will be challenging to make the right decision about whether to participate in the settlements without the assistance of experienced counsel who are knowledgeable about the settlements.

It is also crucial to remember that these proposed settlements only involve 3M and DuPont. There are several other manufacturers responsible for PFAS contamination that are currently involved in the AFFF MDL. Pursuing litigation will allow water systems to bring claims against all the PFAS manufacturers involved and protect their water system and ratepayers

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Find out how much to expect

If the proposed settlements are approved, the amount each participant is eligible to receive will depend on a variety of factors. While eligible systems will not know exactly how much money they stand to receive from either of these settlements until after the opt-out deadline has passed, a law firm with experience in water contamination litigation and knowledgeable about the settlements can provide its clients with reasonable estimates of what they stand to recover.

As previously mentioned, PWSs that do not opt out of the proposed class action settlements would forfeit the opportunity to file additional claims against 3M, DuPont, Chemours, and Corteva. Therefore, it is essential for participants to understand their potential compensation amount as they consider their next steps.

An environmental law firm with experience in water contamination cases can perform a detailed analysis of a PWS’s PFAS impacts and provide a reasonable estimate of both its total cleanup cost and the amount it could expect to receive through the proposed 3M and DuPont class action settlements. With this information, water systems can determine the best course of action.

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Ensure all damages are accounted for

The total cost of managing PFAS pollution, which may include shutting down contaminated wells, locating alternative water sources, building new state-of-the-art treatment facilities and operating them for years into the future, can easily be millions of dollars. Given the magnitude of these impacts, water systems affected by PFAS should explore all potential avenues for cost recovery in an effort to make polluters, not ratepayers, bear this expense.

A firm like SL Environmental Law Group can help water systems explore all possible avenues of recovery in an effort to achieve the best outcome. Potential class action settlement participants should seek legal counsel as soon as possible to avoid missing out on potentially significant cost recovery opportunities.

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Continue the Fight: Hold Other PFAS Manufacturers Accountable

The portion of the proposed settlements ultimately received by each water system may not fully cover the full costs of removing PFAS from drinking water for years. Since all public water systems with PFAS detections are eligible for compensation through these settlements, the total amount will be distributed among many recipients nationwide. But because the proposed settlements involve only 3M, DuPont, Chemours, and Corteva, the other companies that contributed to widespread PFAS contamination can still be held accountable. In other words, the proposed settlements may represent only a portion of the total compensation that water providers may be able to recover.