A bipartisan coalition of attorneys general (AGs) from 22 states is urging the federal district court in South Carolina to reject a proposed $12.5 billion settlement between 3M and a group of public water utilities, who are suing the company over alleged per- and polyfluoroalkyl substance (PFAS) contamination.
The AGs’ coalition, which is led by California AG Rob Bonta, filed a motion to intervene in the litigation and an omnibus opposition on July 26. The AGs argue that the federal court should reject the settlement based on what they say is its overbroad indemnity clause, which Bonta’s statement on the coalition’s opposition contends could shift billions of dollars in liability onto nearly every public drinking water provider in the U.S., even those who have not sued or even tested for the presence of PFAS in their water systems.
In issue is the plaintiffs’ motion for preliminary approval of the proposed $12.5 billion settlement, which was filed on July 3. The matter is pending before Judge Richard M. Gergel of the U.S. District Court for the District of South Carolina, who has ordered responses to the AGs’ motion to intervene be filed by August 2.
According to Bonta’s statement on the attempt to convince Judge Gergel to reject the settlement, water providers would withdraw hundreds of lawsuits they have filed against 3M over its use of PFAS — commonly referred to as toxic “forever chemicals” — in a wide range of consumer products and firefighting foams in exchange for a settlement that could leave them obligated to indemnify 3M if a cancer cluster later develops in a PFAS-impacted community and the victims sue 3M. The AGs’ opposition argues that the proposed settlement is thus worth far less than the advertised $10.5 billion to $12.5 billion.
PFAS are stable in the environment, resistant to degradation, persistent in soil, known to leach into groundwater and “can cause serious health impacts — including various forms of cancers, developmental defects, infertility, diabetes, and liver damage — and have been frequently detected in water systems nationwide,” Bonta said in the statement, adding that “[w]hile I appreciate the effort that went into it, the proposed settlement in its current form does not adequately account for the pernicious damage that 3M has done in so many of our communities.”
Joining Bonta in opposing the proposed settlement are the AGs for Arizona, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, and Wisconsin, as well as the District of Columbia, the Commonwealth of the Northern Mariana Islands, and the Commonwealth of Puerto Rico.
California filed its own lawsuit against 3M and other PFAS manufacturers in November 2022, as have a lengthy list of other state AGs, including Tennessee AG Jonathan Skrmetti, who filed a lawsuit against 3M, DuPont, and numerous other PFAS manufacturers on May 31 in a matter that is now pending before U.S. District Court for the Middle District of Tennessee.
Why It Matters
The AGs’ action demonstrates the emphasis that a large, bipartisan assortment of state AGs place upon maximizing their authority, under their respective state laws, to hold PFAS manufacturers financially liable for their alleged roles toward environmental contamination linked to PFAS.
Troutman Pepper State Attorneys General Team
|Ashley Taylor – Co-leader and Firm Vice Chair
Ashley is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. He focuses primarily on federal and state government regulatory and enforcement matters involving state attorneys general, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). Drawing upon his experience as a deputy attorney general, Ashley has developed an extensive consumer practice with regard to the consumer financial services industry.
|Clay Friedman – Co-leader
Clay is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. Informed by nearly a decade in a state attorneys general office, and more than 25 years in private practice, Clay spends much of his time representing clients in singular or multistate regulatory actions. Clay has repeatedly led teams before all 50 state attorneys general and also handles matters with the Federal Trade Commission, the Consumer Financial Protection Bureau, and other local, state and federal agencies.
Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006.
Stephen represents clients interacting with, and being investigated by, state attorneys general and other enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, particularly in heavily regulated industries.
A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies.
Michael handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
As a former government official at the state and federal level, Ketan leverages extensive experience in the public and private sectors to skillfully represent client interests.
Tim is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, with a primary focus on financial services litigation.
Chris represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general.
Natalia is an associate in the firm’s business litigation practice. She recently received her J.D from the University of California, Davis School of Law.
Namrata is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. Her work includes advising clients in regulatory investigations and compliance matters, in addition to representing clients in civil litigation matters.
Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes. Susan also represents banks, fintechs, and financial services companies in connection with regulatory examinations and investigations brought by the CFPB, state attorneys general, and the California Department of Financial Protection and Innovation.
John represents clients in a wide variety of general and complex litigation matters, shareholder disputes, products liability, and privacy claims.
Whitney is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.
Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement practice. His experience includes serving as a summer associate at the firm in 2021.
An experienced litigator, Daniel advises and represents regional, national and international companies, financial institutions and insurers in all facets of business, complex commercial and insurance coverage litigation. He is committed to working with his clients to find creative solutions to meet their needs.
Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.