Opinion
Master 2:18-mn-2873-RMG Civil Action No.: 2:23-cv-03147-RMG
03-29-2024
IN RE AQUEOUS FILM-FORMING FOAMS PRODUCTS LIABILITY LITIGATION CITY OF CAMDEN, et al., Plaintiffs, v. 3M COMPANY, Defendant.
FINAL ORDER AND JUDGMENT APPROVING SETTLEMENT
The Honorable Richard M. Gergel United States District Judge
Before the Court is Class Counsel's Motion for Final Approval of Class Settlement and for Final Certification of the Settlement Class (the “Final Approval Motion,” C. A. No. 2:18:cv-2873, Dkt. No. 4273, C. A. No. 2:23-cv-03147, Dkt. No. 177), which seeks (1) Final Approval of the Settlement Agreement; (2) a finding that the Settlement Agreement is fair, reasonable, and adequate; (3) final certification, for settlement purposes only, of the Settlement Class pursuant to Federal Rule of Civil Procedure 23; (4) a judgment dismissing this case and providing for the dismissal of Litigation involving Released Claims brought by or on behalf of Releasing Parties against Released Parties, and (5) a permanent injunction prohibiting any Releasing Party from asserting or pursuing any Released Claim against any Released Party in any forum.
WHEREAS, a proposed Settlement Agreement has been reached by and among (i) the Class Representatives, individually and on behalf of the Class Members, by and through Class Counsel, and (ii) defendant 3M Company;
WHEREAS, the Court, for the purposes of this Final Order and Judgment, adopts all defined terms as set forth in the Settlement Agreement;
WHEREAS, on August 29, 2023, the Court entered a Preliminary Approval Order for Settlement Between Public Water Systems and 3M Company (“Preliminary Approval Order,” C. A. No. 2:23-cv-03147, Dkt. No. 65) that, among other things: (1) preliminarily approved the Settlement Agreement; (2) preliminarily certified the Settlement Class, for settlement purposes only; (3) approved the proposed notice and Notice Plan and directed that notice be disseminated to Class Members according to the Notice Plan; (4) appointed Class Counsel and Class Representatives; (5) scheduled Objection, Opt-out, and other deadlines and a Final Fairness Hearing; and (6) stayed and enjoined certain Litigation involving Released Claims;
WHEREAS, on October 2, 2023, the Court granted the parties' motion to amend Article VIII of the Preliminary Approval Order, regarding the stay of and injunction against certain Litigation (C. A. No. 2:23-cv-03147, Dkt. No. 69);
WHEREAS, on October 17, 2023, the Court granted the parties' motion to clarify certain provisions of the Settlement Agreement relating to the Special Master, the Claims Administrator, the Fund Administrator, the Adjudicatory Special Master, and the Escrow Agent (C. A. No. 2:23-cv-03147, Dkt. No. 71);
WHEREAS, on October 26, 2023, the Court granted the parties' motion to supplement the Settlement Agreement with their “Joint Interpretative Guidance on Interrelated Drinking-Water Systems” (C. A. No. 2:23-cv-3147, Dkt. No. 80);
WHEREAS, on November 7, 2023, the Court granted the parties' motion to supplement the Settlement Agreement with the parties' “Joint Interpretive Guidance on Entities that Own and/or Operate Multiple Public Water Systems” (C. A. No. 2:23-cv-3147, Dkt. No. 87);
WHEREAS, on November 9, 2023, the Court granted the parties' motion to clarify the Preliminary Approval Order regarding opt-out and objection rights (C. A. No. 2:23-cv-3147, Dkt. No. 92);
WHEREAS, on November 17, 2023, the Court granted the parties' motion to supplement the Settlement Agreement with the parties' “Joint Interpretative Guidance on Federally Recognized Indian Tribes and Public Water Systems” (C. A. No. 2:23-cv-3147, Dkt. No. 140);
WHEREAS, on November 20, 2023, the Court granted the parties' motion to amend Exhibits E and F to the Settlement Agreement to more accurately reflect the lists of Phase One and Phase Two Eligible Claimants (C. A. No. 2:23-cv-3147, Dkt. No. 144);
WHEREAS, on December 4, 2023, the Court granted the parties' motion to supplement the Settlement Agreement with the parties' joint “Interpretive Guidance on Certain Release Issues” (C. A. No. 2:23-cv-3147, Dkt. No. 152);
WHEREAS, on January 23, 2024, the Court granted Class Counsel's consent motion to amend the Settlement Agreement to align with Amended Exhibit P to the Settlement Agreement (C. A. No. 2:23-cv-3147, Dkt. No. 185);
WHEREAS, on January 29, 2024, the Court adopted the parties' guidance regarding how to withdraw a Request for Exclusion and granted the parties' motion to amend the Settlement Agreement and the Preliminary Approval Order on that subject (C. A. No. 2:23-cv-3147, Dkt. No. 191);
WHEREAS, on January 31, 2024, the Court issued an order offering guidance on the compliance assessments of opt-outs (C. A. No. 2:23-cv-3147, Dkt. No. 202);
WHEREAS, on February 15, 2024, the Court granted the parties' motion to amend the Settlement Agreement and the Preliminary Approval Order to clarify the effect of withdrawal of a Request for Exclusion (C. A. No. 2:23-cv-3147, Dkt. No. 214);
WHEREAS, on February 15, 2024, the Court granted the parties' motion for approval of supplemental notice to entities that have requested exclusion (C. A. No. 2:23-cv-3147, Dkt. No. 215);
WHEREAS, the Court received Objections to the Settlement, certain of which were forfeited when the objecting entities subsequently elected to opt out of the Settlement; and
WHEREAS, on February 2, 2024, the Court held the Final Fairness Hearing to consider the Final Approval Motion and the Objections to the Settlement;
WHEREAS, the Court has considered all the presentations and submissions related to the Final Approval Motion and the Objections, including arguments of Class Counsel, 3M's Counsel, and all other Persons who appeared at the Final Fairness Hearing, and having presided over and managed the proceedings in the MDL as Transferee Judge since December 7, 2018, pursuant to the Transfer Order of the same date, is familiar with the facts, contentions, claims, and defenses as they have developed in these proceedings, and is otherwise fully advised of all relevant facts in connection therewith; and
WHEREAS, the Court is contemporaneously issuing an Opinion to accompany and explain the conclusions stated in this Final Order and Judgment;
IT IS HEREBY ORDERED AS FOLLOWS:
1. Under Rule 23 of the Federal Rules of Civil Procedure, the Court certifies the following Settlement Class for settlement purposes only:
Every Active Public Water System in the United States of America that-
(a) has one or more Impacted Water Sources as of June 22, 2023; or
(b) does not have one or more Impacted Water Sources as of June 22, 2023, and
(i) is required to test for certain PFAS under UCMR-5, or
(ii) serves more than 3,300 people, according to SDWIS.
Excluded from the Settlement Class are the following:
A. The Public Water Systems listed in Exhibit G, which are associated with a specific PFAS-manufacturing facility owned by 3M.
B. Any Public Water System that is owned by a State government, is listed in SDWIS as having as its sole “Owner Type” a “State government” (as set forth in Exhibit H), and lacks independent authority to sue and be sued.
Solely for purposes of this Settlement Agreement, the Court may correct any misidentification of “Owner Type” in SDWIS prior to Final Approval, in accordance with Paragraph 5.2.
C. Any Public Water System that is owned by the federal government, is listed in SDWIS as having as its sole “Owner Type” the “Federal government” (as set forth in Exhibit I), and lacks independent authority to sue and be sued. Solely for purposes of this Settlement Agreement, the Court may correct any misidentification of “Owner Type” in SDWIS prior to Final Approval, in accordance with Paragraph 5.2.
D. The Public Water Systems that are listed in Exhibit J and have previously settled their PFAS-related Claims against 3M.
E. Any privately owned well that provides water only to its owner's (or its owner's tenant's) individual household and any other system for the provision of water for human consumption that is not a Public Water System.
2. The Court finds that the Settlement Class satisfies the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) because, solely for settlement purposes: (a) the Class Members are ascertainable; (b) the Class Members are so numerous that their joinder is impracticable; (c) there are questions of law and fact common to the Settlement Class; (d) the claims of the Class Representatives are typical of the Class Members; (e) the Class Representatives and Class Counsel have fairly and adequately represented and protected the interests of all Class Members; and (f) the questions of law or fact common to the Settlement Class predominate over any questions affecting only individual Class Members, and a class action is superior to other available methods for the fair and efficient resolution of the controversy.
3. The Court confirms that the following Plaintiffs are appointed as Class Representatives: City of Camden Water Services (New Jersey); City of Brockton (Massachusetts); City of Sioux Falls (South Dakota); California Water Service Company (California); City of Delray Beach (Florida); Coraopolis Water & Sewer Authority (Pennsylvania); Verona (New Jersey); Dutchess County Water and Wastewater Authority and Dalton Farms Water System (New York); South Shore (Kentucky); City of Freeport (Illinois); Martinsburg Municipal Authority (Pennsylvania); Seaman Cottages (Vermont); Village of Bridgeport (Ohio); City of Benwood (West Virginia); Niagara County (New York); City of Pineville (Louisiana); City of Iuka (Mississippi); and City of Amory (Mississippi). These appointments were preliminarily approved in the Preliminary Approval Order.
4. Pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, the Court confirms the appointment as Class Counsel of Michael A. London and the law firm of Douglas & London; Scott Summy and the law firm of Baron & Budd; Paul J. Napoli and the law firm of Napoli Shkolnik; Elizabeth Fegan and the law firm of Fegan Scott LLC; and Joseph Rice and the Law Firm of Motley Rice LLC, who were preliminarily approved in the Preliminary Approval Order.
5. The Court confirms the appointment of Matthew Garretson of Wolf/Garretson LLC as the Special Master and QSF Administrator; Steven Weisbrot of Angeion Group as the Notice Administrator; Dustin Mire of Eisner Advisory Group as the Claims Administrator; and Christopher Ritchie of Huntington National Bank as the Escrow Agent, as set forth in the Preliminary Approval Order and other subsequent orders.
6. Pursuant to Federal Rule of Civil Procedure 23(e) and applicable case law, the Court concludes that the Settlement is fair, reasonable, and adequate. In support of that conclusion, the Court makes the following findings:
a. Class Counsel and the Class Representatives have adequately represented the Settlement Class;
b. The Settlement Agreement is the product of intensive, thorough, serious, informed, non-collusive, and arm's length negotiations overseen by the Court-appointed mediator, the Honorable Layn R. Phillips, and is recommended by experienced Counsel;
c. The relief provided to the Class Members is fair, reasonable, and adequate, taking into account the relative strength of the Class Members' and 3M's cases as well as the uncertainties of litigation on the merits; the risk, complexity, expense, and likely duration of the Litigation; the stage of the Litigation, including the factual record developed; the costs, risks, and delay of trial and appeal in the absence of settlement; the effectiveness of the proposed methods of distributing the Settlement Agreement relief to the Class Members; the terms and timing of the proposed fee award; and any agreement required to be identified under Rule 23(e)(3).
d. The Settlement Agreement treats Class Members equitably relative to each other.
e. The Settlement is fair, considering the posture of the Litigation at the time settlement was proposed, the extent of discovery that had been conducted, the circumstances surrounding the negotiations, and the experience of counsel in the area.
f. The Settlement is adequate, considering the relative strength of the Settlement Class's case on the merits, the existence of any difficulties of proof or strong
defenses the Settlement Class is likely to encounter if the case were to go to trial, the anticipated duration and expense of additional litigation, the likelihood of recovery on a litigated judgment, and the degree of opposition to the Settlement.
g. The Settlement amount is commensurate with the scale of the Litigation and the Settlement Class's chances of success at trial.
7. The Court further concludes that the Settlement is in the best interests of the Class Members and is consistent with and complies with all applicable laws and rules.
8. The Notice and Summary Notice were provided to Eligible Claimants as specified in the Notice Plan, including through direct mailing where practicable.
9. The Court concludes that the Notice and Summary Notice disseminated pursuant to the Notice Plan: (a) were provided in accordance with the Preliminary Approval Order; (b) constituted the best notice practicable under the circumstances; (c) constituted notice that was reasonably calculated, under the circumstances, to apprise Eligible Claimants of (i) the effect of the Settlement Agreement, (ii) the fact that attorneys' fees and costs would be sought by Class Counsel, (iii) their right to submit a Request for Exclusion or to object to any aspect of the Settlement Agreement, and (iv) their right to appear at the Final Fairness Hearing; (d) constituted due, adequate, and sufficient notice to all Persons entitled to receive notice of the Settlement Agreement; and (e) satisfied the requirements of Federal Rule of Civil Procedure 23, the United States Constitution (including the Due Process Clause of the Fifth Amendment), and other applicable laws and rules.
10. 3M has complied with the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453, 1711-1715, and its notice requirements by providing appropriate federal and state officials with the necessary information about the Settlement Agreement.
11. The Class Representatives, 3M, Class Counsel, and 3M's Counsel have fully complied with the Preliminary Approval Order.
12. All pending Objections to the Settlement are found to be without merit and are overruled.
13. Accordingly, pursuant to, and in accordance with, Federal Rule of Civil Procedure 23 and other applicable laws and rules, the Court hereby fully and finally approves the Settlement in its entirety.
14. The Settlement Agreement is enforceable according to its terms and is forever binding on all Class Representatives, all other Class Members, all other Releasing Parties, and 3M.
15. This case, City of Camden et al. v. 3M Company, Civil Action No. 2:23-cv-03147-RMG (D.S.C.), is hereby dismissed with prejudice.
16. Each and every other case in the MDL and all other pending Litigation in any forum or jurisdiction (whether federal, state, or otherwise) brought by or on behalf of a Releasing Party against any Released Party involving any Released Claim shall be dismissed with prejudice, with each party bearing its own costs, pursuant to the terms of Section 11.5 of the Settlement Agreement.
17. As set forth in Section 11 of the Settlement Agreement, upon the Final Judgment, the Releasing Parties shall have expressly, intentionally, voluntarily, fully, finally, irrevocably, and forever released, waived, compromised, settled, and discharged the Released Parties from each and every one of the Released Claims.
18. Upon the Final Judgment, any and all Releasing Parties are permanently barred and enjoined from challenging the validity of the Release or commencing, filing, initiating, instituting, prosecuting, and/or maintaining any judicial, arbitral, or regulatory action or other proceeding, in any forum or jurisdiction (whether federal, state, or otherwise), or otherwise seeking benefits, based on or with respect to any and all Released Claims. Upon the Effective Date, the injunction set forth in this Paragraph shall supersede the stay and injunction set forth in the Preliminary Approval Order, as amended.
19. The relief provided in the Settlement Agreement shall be the exclusive remedy available to Releasing Parties with respect to Released Claims, and the Released Parties shall not be subject to liability or expense of any kind with respect to any Released Claims other than as set forth in the Settlement Agreement. The Court finds that the relief provided in the Settlement Agreement fairly and adequately remedies any harm arising out of or relating to Public Water Systems that are Class Members to the extent allegedly caused by any Released Party that arises from or relates to any Released Claim. The Court finds that the Settlement is a good-faith settlement that, by operation of this Final Order and Judgment, has preclusive effect as to any other attempt to seek recovery from a Released Party for alleged harm to a Public Water System that is a Class Member.
20. The Court finds that the Settlement is a good-faith settlement that bars any Claim by any non-Released Party against any Released Party for contribution, for indemnification, or otherwise seeking to recover any amounts paid by or awarded against that non-Released Party and paid or awarded to any Releasing Party by way of settlement, judgment, or otherwise on any Claim that would be a Released Claim were such non-Released Party a Released Party, to the extent that a good-faith settlement (or release thereunder) has such an effect under applicable law.
21. The Court retains continuing and exclusive jurisdiction over Releasing Parties, Released Parties, the Special Master, the QSF Administrator, the Notice Administrator, the Claims Administrator, the Escrow Agent, the Settlement Agreement, and the Qualified Settlement Fund to interpret, implement, administer, and enforce the Settlement Agreement and this Final Order and Judgment. In addition, the Releasing Parties and Released Parties are hereby deemed to have submitted to the exclusive jurisdiction of the Court for any suit, action, proceeding, or dispute arising from, resulting from, in any way relating to, or in connection with the Settlement or this Final Order and Judgment.
22. This Final Order and Judgment shall serve as an injunction enforceable by the Court for purposes of the Court's continuing jurisdiction related to the Settlement.
23. This Final Order and Judgment, the Preliminary Approval Order, the Settlement Agreement, and the documents, filings, and proceedings relating thereto, and any actions taken by 3M in the negotiation, execution, entry into, or satisfaction of the Settlement Agreement: (a) do not, and shall not be construed or interpreted to, admit or concede any liability or wrongdoing of 3M, acknowledge any validity to the Claims asserted in the Litigation, acknowledge any scientific, medical, factual, or other basis asserted in support of any Claim, acknowledge that certification of a litigation class is appropriate as to any Claim, or acknowledge any weakness in the defenses asserted in the Litigation or any other suit, action, or proceeding; and (b) shall not be construed, deemed, or offered as an admission or concession by any Released Party or as evidentiary, impeachment, or other material available for use or subject to discovery in any suit, action, or proceeding (including the Litigation), except (i) as required or permitted to comply with or enforce the terms of the Settlement Agreement, the Preliminary Approval Order, or this Final Order and Judgment, or (ii) in connection with a defense based on res judicata, claim preclusion, collateral estoppel, issue preclusion, relative degree of fault, release, or other similar theory asserted by any of the Released Parties. In the event that the Settlement Agreement does not become effective pursuant to its terms, 3M retains full rights to contest certification of any class for litigation purposes.
24. Without further approval from the Court, and without the express written consent of Class Counsel on behalf of the Class Members and 3M's Counsel on behalf of 3M, the Settlement Agreement is not subject to any change, modification, amendment, or addition.
25. In the event that the Settlement does not reach Final Judgment, this Final Order and Judgment, the Preliminary Approval Order, and any other orders of the Court relating to the Settlement Agreement shall be deemed vacated, null and void, and of no further force or effect, except as otherwise provided by the Settlement Agreement, and any unexpended Settlement Funds shall be returned to 3M as provided in Section 8.11 of the Settlement Agreement.
IT IS SO ORDERED.