Many of the nation's public water suppliers and certain manufacturers of PFAS used in fire fighting foam are one step closer to massive class action settlements after a “fairness hearing” before Federal District Court Judge Richard Gergel in South Carolina last week. 

The 3M Company and the entities allegedly liable for the actions of what was once DuPont have reached separate agreements with a settlement class comprised of public water suppliers that have, or may in the future have, PFAS in their water.

The settlements have a total potential value over $13 billion.

The settlements were reached last summer just before the first trial of a municipality's claims against the PFAS manufacturers was scheduled to begin.  Judge Gergel hasn't been shy about sharing his opinion that this may be the best deal water suppliers are going to get, at least for a long time.  He is almost certainly right about that.

But the objecting water suppliers are also right that the releases participating water suppliers will give in exchange for the right to participate in these settlements is incredibly broad, even after one of the releases was narrowed a bit in response to earlier objections.

So, on the one hand, $13 billion is a whole lot of money, especially since 3M and DuPont face perhaps insurmountable PFAS liabilities of other kinds so settlement funds that may be in the bank today may not be there tomorrow.  And the settling water suppliers don't need to show that any PFAS in their water came from 3M or DuPont or endure the delay that would come from having to try their cases, not to mention the astronomically high cost of litigating.

On the other hand, water suppliers that hadn't made a PFAS claim against 3M or DuPont need to weigh the benefits of perhaps, over the next several years, getting a payment they hadn't anticipated against the risk of future litigation over the broad release that is the price of that payment.

If too many public water suppliers decide that if a deal is too good to be true then it probably is. 3M and DuPont have the right to walk away from their agreements though, as Judge Gergel indicated at the hearing and I've said in the past, that could involve bankruptcy petitions by one or more of the Defendants. 

All of that means that the landmark AFFF settlements aren't done yet but not for lack of trying by this PFAS litigation-beleaguered Judge, the Settlement Class Counsel, and Defense Counsel.  It could just be that the PFAS panic is too complicated to be addressed in any one courtroom. Certainly no one can argue with Judge Gergel's conclusion that the PFAS problem is going to cost more than the billions of dollars the Governments and private sector have already thrown at it.