PFAS
Handling PFAS matters
- Pre-litigation and Litigation Advice and Counsel — Tanenbaum Keale’s priority remains helping clients avoid litigation altogether through actionable preventive legal advice and counsel. However, our attorneys also stand ready to assist from the time a lawsuit is filed or investigatory request is made, through trial and appeal, if necessary. Our experience includes representing manufacturers and distributors in complex commercial disputes, multidistrict litigation (MDL), class actions, mass torts, and individual lawsuits.
- Consumer Class Actions — PFAS has already been the subject of costly class action litigation and high-profile and costly monetary settlements, a trend that is highly likely to increase in the coming years. Tanenbaum Keale focuses on achieving outcomes aligned with individual business goals and objectives related to both financial and reputational protections. Our resolution counsel provides practical options that can range from defeating class certification to a full and vigorous defense at trial based on the merits of a case.
- Products Liability — We have decades of experience serving as national, regional, local and lead MDL counsel to a variety of product manufacturers across a wide range of industries, including many with ties to PFAS. With a verifiable global track record in this area of litigation, our attorneys bring experience handling all levels of claims related to the actual products, manufacturing facilities, and sales companies in lawsuits that vary in complexity and exposure, ranging from the strategic management and defense of mass torts to the defense of single-plaintiff cases, including those alleging long-term or terminal illnesses as a result of chemical exposures.
Additionally, Tanenbaum Keale can assist in partnering with other firms to handle environmental and regulatory challenges related to PFAS litigation. This can include reporting requirements, compliance concerns, and site cleanup obligations.
Our Approach
Per- and polyfluoroalkyl substances, collectively known as PFAS, have become the subject of an evolving and increasingly complex regulatory and compliance landscape. The prevalence of these compounds in industrial operations and consumer goods alike creates significant and burgeoning litigation risks, including consumer class actions, mass torts, and individual product liability lawsuits.
Tanenbaum Keale’s proven experience in risk identification and mitigation and a track record of success in product liability litigation, specifically related to hazardous materials and chemicals, uniquely position us to serve as a trusted resource when considering legal strategies related to PFAS. In particular, Tanenbaum Keale developed a reputation as a leader in asbestos and talc matters, which may share similarities with the eventual trajectory of PFAS litigation.
Commonly used in manufacturing for decades, PFAS are highly soluble and persistent in the environment, most notably in water systems and the food chain, and have allegedly been linked to various health issues, including cancer. The Environmental Protection Agency (EPA) continues to lead the effort in regulating and curbing the use of these chemicals. Governmental entities — domestic, foreign, and globally integrated — began investigating the environmental and public health impacts of PFAS years ago, and the increased involvement of public interest organizations and plaintiffs’ attorneys has led to a dramatic rise in regulatory activity and associated litigation. While the EPA is likely to increase enforcement actions at the federal level, states continue to institute and update more locally focused mandates that can create a complex interplay of regulatory responsibilities.
While some PFAS have been phased out of production processes, the next generation of these chemical compounds was developed as a substitute and will likely become a target of regulatory agencies and legal challenges. We maintain a commitment to providing guidance aimed at adhering to strict reporting standards and proactively assessing risk in an effort to limit monetary and reputational exposure related to remediation in the use of PFAS.
Assessing Risk
The pervasiveness of PFAS in manufacturing processes creates a unique level of risk for producers and end users alike. The products found to contain PFAS range from common consumer items like food packaging and containers, cookware and other common kitchen products, textiles, personal hygiene products, cosmetics, pharmaceuticals, batteries, and outdoors and sports equipment, to industrial materials like firefighting foams, gaskets, coatings, sealants, medical devices, and fertilizers.
Tanenbaum Keale’s accrued experience with similar chemicals and substances guides our firm’s ability to assist clients in developing comprehensive legal strategies and responding to challenges and claims in an efficient and cost-effective manner, even though the full scope of litigation related to these chemical compounds likely won’t be known for years to come. However, there is an emerging need to assess past and future approaches to packaging and labeling in order to minimize potential liability.
Additionally, manufacturers must understand the potential risks associated with introducing less effective and potentially still hazardous alternatives to PFAS into products.
