AFFF MDL vs Local PFAS Claims: Why Water Systems Need Both

It is estimated that the AFFF MDL covers 5–7% of total PFAS liability. Almost all of the remaining liability will need to be pursued against other defendants in local and regional litigation.

Background

PFAS (“forever chemicals”) are long-lasting compounds linked to serious environmental and health risks. One major source — Aqueous Film-Forming Foams (AFFF) — is the subject of a federal Multi-District Litigation (MDL) in South Carolina against the four large manufacturers of raw PFAS and the manufacturers of firefighting foams.

But AFFF is merely one of thousands of products and industrial processes that used and discharged these chemicals. Since the sources of PFAS contamination are not limited to AFFF, the legal strategy for your water system should not be limited to just filing a claim in the AFFF MDL.

Why Local Representation Matters

1. The AFFF MDL Has Limited Scope, Limited Recovery

The AFFF MDL only targets the four big manufacturers of raw PFAS and makers of AFFF. It does not include the tens of thousands of other potential defendants who used the chemicals in other products or industries and discharged them locally.  Also, many water systems that are under genuine threat of contamination are currently excluded from that settlement because of the way that settlement is based on testing results and population size.

2. Local Investigation and Evidence Gathering

By bringing claims in local and regional clusters, we can investigate and pursue claims against all responsible parties through:

• Local sampling
• Hydrogeologic analysis
• Historical land-use research focused on discharges near your water system

This is simply beyond the scope of a national MDL for a single product.

3. Parallel and Complementary Recovery

We can represent your water system against other defendants in a regional cluster while you simultaneously pursue a claim in the AFFF MDL. In fact, most water systems will have to do so to get anything close to a full recovery.

Claims against other defendants in local and regional clusters may provide another source of recovery for:

• Response and remediation costs
• Infrastructure improvements
• Other damages

All of this supplements any recovery from the AFFF MDL.

4. Local Representation, Local Priorities

National settlements are typically structured around averages — formulas that may work for a generic plaintiff but rarely fit any specific water system’s actual situation. The specific details of your exposure, your operational timeline, your remediation costs, your compliance deadlines, and your community’s expectations are unique to your system. A claim built around your specific circumstances reflects those realities. Local and regional representation lets your damages, your priorities, and your goals shape the case from day one — based on what actually happened here — rather than forcing your system into a formula designed for someone else.

The Bottom Line

The limited group of defendants in the AFFF MDL are estimated to represent only 5% to 7% of the total PFAS liability nationally. That means the remaining 90%+ of liability must be pursued through litigation in local and regional clusters against those who used and discharged PFAS locally.

This is why all PFAS contamination claims cannot be handled through a single national lawsuit.

How FJA Works With Water Systems Who Already Have Claims in the AFFF MDL

We are advising water system clients how to approach the AFFF MDL on a case-by-case, client-by-client basis, depending upon multiple legal and strategic factors. The attorneys in the Forever Justice Alliance℠ can represent water systems in both the AFFF MDL and local/regional litigation, as appropriate.

In multiple instances, FJA attorneys are representing water systems who already have a claim in the AFFF MDL with other law firms who are solely pursuing the client’s firefighting foam claims in the AFFF MDL. In some instances, the national or regional firm handling a client’s AFFF claim if focused solely on claims in the MDL settlement and do not intend to pursue local or regional litigation.  In other instances, our water system clients prefer our network of local attorneys with boots on the ground in-state to pursue their local and regional litigation, instead of out-of-state firms with no local connection. If your water system already has an existing claim in the AFFF MDL, we can still pursue other local and regional litigation on behalf of your water system without interfering with your existing representation in the AFFF MDL.

We do not interfere with existing representation on AFFF claims. We complement it.