We’ve been reporting on the Hardwick class certification decision. The district court certified a class seeking medical monitoring and the establishment of a “Science Panel.” Defendants then filed petition in the Sixth Circuit for permission to immediately appeal.

The U.S. Chamber of Commerce, the American Tort Reform Association, and the National Association of Manufacturers (represented by King & Spalding) filed an amicus brief at the end of March in support of the petition. The brief begins by noting that “[t]here is a line between litigation and regulation, and this case blows right past it” by, in effect, creating an extremely wide-ranging investigation of a huge number of PFAS chemicals through an injunction-based class action funded by the defendants in the underlying litigation. The brief argues that the Sixth Circuit “precedents favor interlocutory review of such an extraordinary order, which raises novel questions, rests on faulty reasoning, and could sound the ‘death knell’ for the defense. Indeed, the certification order uses an untenable liability theory to justify a massive class action that pushes the limits of Rule 23 and the broader principles of injunctive relief.” We will make sure to keep readers up to date on how the Sixth Circuit chooses to proceed.