In a recently filed action, the State of New York is suing six manufacturers and marketers of of perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (“PFOS”) containing firefighting foams under theories of strict product liability, public nuisance, and restitution. Complaint, New York v. 3M Co., No. 904029-18 (N.Y. Sup. Ct. June 19, 2018). This is the first example of sovereign-led PFOA/PFOS litigation.

The PFOA/PFOS containing foams manufactured and marketed by defendants have been used at military bases, airports, firefighting training centers, and industrial sites to extinguish fires involving flammable liquids. The State alleges that the defendants knew or should have known that the intended and/or common use of their products was likely to contaminate groundwater and, therefore, threaten and/or injure human health and the environment.

The State brought suit in its parens patriae capacity and as trustee and guardian of New York’s natural resources. New York alleges that defendants are strictly liable for defective design of the products; that defendants are strictly liable for failing to warn consumers about the known dangers of their products; that the storage and use of defendants’ products caused a public nuisance; and that defendants have been unjustly enriched by failing to fulfill their duties to abate the threats and/or injuries posed by their products. New York seeks compensatory, natural resource, and punitive damages for contamination at several sites around the state.

The structure of New York’s complaint and legal strategy here closely resembles the MTBE model for products liability and natural resource damages litigation, as well as recent PCB litigation in the Pacific Northwest. As happened in the MTBE cases, it is possible other states will use New York’s lawsuit as a model and bring similar litigation in the future. Beveridge & Diamond will continue to monitor this litigation and report on significant developments.