Defending Against PFAS Liability Claims: Expansive Regulation, Mitigating Client Risk, Defense Strategies, and More
Recording of a 90-minute CLE video webinar with Q&A
This CLE webinar will examine the current state of PFAS litigation, including a discussion of the potential impact of developing federal and state PFAS regulation on the volume and risk of litigation for an increasing number of companies. The panel will examine notable recent litigation and novel defenses being used. The panel will also offer best practices for counsel and their clients to mitigate the risk of PFAS claims and defense strategies.
Outline
- What is PFAS?
- Varying definitions – USEPA TSCA, States, OECD
- Regulated PFAS of interest
- Recent federal and state regulatory initiatives
- Federal regulations
- CERCLA “hazardous substance” rule
- Safe Drinking Water Act rule
- TSCA reporting rule
- State regulations
- Consumer product bans/reporting
- Regulatory standards (groundwater, NPDES)
- Federal regulations
- Update on the AFFF MDL and other key cases
- Categories of cases
- Status and next steps
- Status of other cases outside MDL
- Types of Litigation Claims
- Environmental
- Overview of current claims and defendant targets
- Expectation for how these claims will evolve in coming years
- Specific issues and defense strategies
- Personal injury and property damages
- Overview of current claims and defendant targets
- Expectation for how these claims will evolve in coming years
- Specific issues and defense strategies
- Consumer class actions/green claims
- Overview of current claims and defendant targets
- “PFAS free” statements and certifications
- Expectation for how these claims will evolve in coming years
- Specific issues and defense strategies
- Environmental
- Insurance potentially available for PFAS litigation and liability
- Overview of contractual vehicles for risk-spreading (indemnities, insurance, and beyond)
- Potentially available insurance for environmental and bodily injury claims
- Potentially available insurance for consumer class actions
- A word about defense duties for PFAS-related claims
- Practice insurance pointers for seeking PFAS-related coverage
- Addressing PFAS insurance issues in transactions
- Considering required insurance provisions in PFAS-related contexts
- Types/amounts of required insurance
- Additional insured provisions
- Other insurance-related provisions
- Role of representations and warranty insurance
- Considering required insurance provisions in PFAS-related contexts
- Q&A
Benefits
The panel will review these and other important considerations:
- How has the scope of PFAS litigation grown in recent years?
- As a result of expanded federal and state PFAS regulation, who are now potential targets of PFAS claims?
- What types of PFAS claims are increasing? What novel defenses are being used as a result?
- What are best practices for mitigating risk of PFAS liability claims
- How can counsel best prepare their clients to defend against possible PFAS claims?
Faculty
Kegan A. Brown
Partner
Lowenstein Sandler
Mr. Brown’s practice focuses on environmental litigation, environmental regulation, product liability, toxic... | Read More
Mr. Brown’s practice focuses on environmental litigation, environmental regulation, product liability, toxic torts, ESG, and transactional due diligence. He represents clients throughout the full lifecycle of complex environmental and products liability litigations and regulatory matters. He has extensive experience addressing litigation and regulatory matters involving natural resource damages, contaminated sediments, and emerging chemicals of concern, particularly per- and polyfluoroalkyl substances (PFAS). Mr. Brown has successfully defended claims in numerous federal and state courts across the country and also regularly counsels buyers, sellers, lenders, and underwriters on the full spectrum of environmental issues that may affect transactions.
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Jonathan M. Cohen
Partner
K&L Gates
Mr. Cohen’s practice focuses on representing policyholders in obtaining insurance coverage in complex, multiparty... | Read More
Mr. Cohen’s practice focuses on representing policyholders in obtaining insurance coverage in complex, multiparty disputes involving product liability, product recalls, cyber events, and supply chain issues. He has successfully recovered insurance proceeds on behalf of Fortune 500 and smaller companies for a broad array of consumer product risks. He served as lead counsel in numerous matters involving food contamination and recall losses, Proposition 65 claims, cyber-related losses, advertising and IP claims, supply chain losses, and first-party property losses. Mr. Cohen has also worked at the forefront of issues involving the overlap of insurance and bankruptcy, recovering billions of dollars through representations of debtors, claimant committees, a future claimant’s representative, and post-bankruptcy trusts. He also represents clients in managing their business risks and advises clients with respect to insurance, indemnity agreements, and other contract-related aspects of their risk management strategies.
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Steven D. Weber
Partner
Parker Poe Adams & Bernstein
Mr. Weber has helped clients navigate the nuances of environmental law for over 31 years. His environmental... | Read More
Mr. Weber has helped clients navigate the nuances of environmental law for over 31 years. His environmental practice is broad, encompassing related practice areas such as regulatory, administrative, zoning, and municipal. His practice is three-fold: litigation, compliance, and transactions. In the litigation arena, Mr. Weber defends clients in state, federal, administrative, and local zoning matters, as well as multidistrict litigation and class actions. His compliance practice involves permitting, environmental audits, regulatory counseling, and agency relations. Mr. Weber's transactional work includes environmental aspects of mergers and acquisitions, real estate transactions, financing, and Brownfields agreements. He is a regular speaker and lecturer on emerging environmental issues such as PFAS and environmental justice, and he provides interactive training on environmental auditing, litigation performance, and legal privileges. Mr. Weber also routinely authors environmental publications and updates on emerging topics.
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