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The Takeaway

Want to increase your chances of successfully managing high-volume, complex PFAS litigation?

Dedicating thought and resources to a plan, knowing your company’s story related to PFAS, and taking proactive measures to protect your enterprise can increase your odds substantially.

Introduction

Have you noticed –

• an increase in PFAS regulatory activities?
• growth in the body of publicly available PFAS data?
• large-scale settlements in fire-fighting foam PFAS litigation?

We’ve noticed, and we expect the plaintiffs’ bar is paying close attention, too. We also expect these factors will lead to an increase in PFAS-related claims.

The time to prepare is now, before the onslaught of expected litigation. With proactive efforts, companies facing PFAS litigation may increase their chances of succeeding where companies in other mass claim litigations have failed to thrive or even survive.

To help increase your odds, we offer these tips.

Create a Plan

• Build an internal team of key people. Team members should be people who can conduct necessary investigations of your company’s potential risks. At a minimum, manufacturers should:
  • identify PFAS-containing chemicals used in their manufacturing processes, both presently and historically
  • investigate historical and current supply chain providers (e.g., suppliers, vendors, contractors) who may have brought PFAS on site
  • determine the location of information related to these topics
  • identify other people in the company who may be knowledgeable about the use of PFAS

It’s not going to be enough to rely on data that’s currently being generated to comply with today’s regulatory requirements.

• Identify external resources. Understand the types of external resources you may need and identify where trusted ones can be found. Examples:
  • outside counsel with complex litigation and environmental regulatory expertise
  • environmental consultants
  • risk management and insurance professionals
  • data and technology experts (to assist with capturing information gathered in investigations)
• Be Purposeful
  • Legally protect information. Consider having investigations set up and led by counsel so that attorney-client privilege and attorney work product are protected as appropriate. Additionally, safeguards for proprietary information can be established from the outset of the investigation.
  • Capture pertinent information. Develop practices and policies to capture additional pertinent information in real time as your business grows and changes.
• Be Proactive
  • Shift risk when possible. Assess and amend contracts to shift risk. Locate and analyze insurance policies and options that may be available for obtaining insurance coverage.
  • Develop communication plans. Before any litigation is filed, decide how to manage the flow of information both internally and externally. If such plans already exist, review them to ensure they’re designed to manage the anticipated volume of litigation, media inquiries, and communications with regulatory authorities, shareholders (if applicable), and other groups or individuals pertinent to the enterprise.
  • Physically protect key information. As the investigation progresses, consider who the possible custodians of pertinent physical and documentary information are, and map the current locations of that information before capturing it. Begin to identify possible corporate representatives.

Conclusion

This list is not meant to be exhaustive. Instead, it’s meant to spur planning, purposeful action, and proactive measures suitable to your company. Those measures can all help improve your chances of successfully managing high-volume, complex PFAS litigation.