Key Takeaways:

• An AFFF-MDL Court granted a motion for final approval of the DuPont class settlement and to certify the settlement class

• The court found this class qualified for the Rule 23(b)(3) category — (i.e., that common questions of law or fact predominate, and a class action is the superior method of adjudication)

• Lastly, the court found that the settlement agreement was “fair, reasonable, and adequate” under Rule 23(e)

Background

An MDL was formed in South Carolina in 2018 to litigate allegations of PFAS contamination from the use of specific PFAS-containing Aqueous Film-Forming Foam (AFFF MDL).

In the past year, two defendants — DuPont and 3M — have struck proposed agreements to settle a particular category of cases: lawsuits filed by public water systems (PWS) and also those PWS that may have PFAS contamination but have not filed suit.

DuPont’s historic agreed settlement is worth $1.185 billion and resolves all PFAS related drinking water claims brought by public water systems.

The Latest

Yesterday, following the December 2023 final fairness hearing, the AFFF-MDL Court granted the parties’ motion for final approval of the DuPont class settlement and to certify the settlement class. See attached for a copy of the order.

The court first analyzed the requirements for certification under Federal Rule 23(a) — (i.e., ascertainability, numerosity, commonality, typicality, adequacy of representation) — and found them satisfied. The court rejected various objections, including objections to the “typicality” of the class representatives, and whether conflicts exist between the class representatives and class members. The court further found that this class qualified for the Rule 23(b)(3) category — (i.e., that common questions of law or fact predominate, and that a class action is the superior method of adjudication). On this point, the court was not persuaded by objections that targeted the fact that there are class members that have varying amounts and types of PFAS. Lastly, the court found that the settlement agreement was “fair, reasonable, and adequate” under Rule 23(e), rejecting the limited number of objections (including those concerning the breadth of the release, and the release of indemnity claims in connection with any personal injury actions filed against the settling water provider).

The court noted that approximately 924 public water providers opted out of this settlement agreement (retaining their claims against DuPont), which represents about 6.6 percent of the entire eligible class; and only 25 eligible class members filed objections.

Looking Ahead

DuPont’s agreement on its Walk-Away rights was filed under seal, so we do not have information on what would trigger/permit the election of that right.

If DuPont does not exercise its Walk-Away rights, this settlement will provide funds to those public water systems that opted into the settlement to assist in removing PFAS from their drinking water systems.