Legal Terrain

We previously reported on the blockbuster $10 billion-$12 billion PFAS settlement reached in June between 3M Company and a plaintiff class of municipal public water suppliers. On July 26, a coalition of 22 states, including Massachusetts, asked the court to intervene in the litigation to state their objections to the settlement.

In a nutshell, the states’ objections center on three main points:

1. The settlement contains an uncapped indemnity clause running from the public water suppliers to the benefit of 3M, which could become financially untenable for individual water suppliers;
2. The settlement release provisions are overbroad and could impact other ongoing or future litigation initiated by States to recover a wide range of public costs and damages not addressed in the water suppliers’ suit;
3. The settlement does not give public water suppliers sufficient time to evaluate the scope of their claims or the amount of potential recovery so that they can make rational decisions about whether or not to opt out of the proposed class within the 60-day window proposed in the deal. In this regard, the States’ objection notes that the complex compensation formula has yet to be made available to public water suppliers.

The states’ filings indicate that their representatives started to engage in discussions with the parties over the past two weeks to resolve some of their concerns after the proposed settlement was filed with the court in late June. Their papers indicate that their objection was necessary to allow more time to negotiate potential modifications to the settlement. It is unclear from the filings whether the settling parties were receptive to the states’ overtures.

When the PFAS settlement was announced last month, many commentators were concerned that a $10 billion-plus settlement with one major manufacturer of PFAS chemicals would not make a sufficient dent in solving the nation’s PFAS problems. Clearly, many state environmental officials were concerned as well. Their intervention is an attempt to make sure that the broader public interests they represent remain protected outside the confines of the settlement.

We await the parties’ and the court’s responses to the states’ objections. Given the magnitude of the issues at stake, we would not be surprised if the court ordered an additional period for the states’ concerns to be incorporated into the overall settlement. Stay tuned for the sequel to this summer’s blockbuster!