Tyco Reaches Nationwide PFAS Settlement with Water Providers

Johnson Controls subsidiary Tyco Fire Products LP reached a $750 million agreement^[1] on April 12 that, if judicially approved, will settle claims by water suppliers across the country that Tyco’s firefighting products—in particular its aqueous film-forming foam (“AFFF”)—contaminated drinking water with per- and poly-fluoroalkyl substances (“PFAS”). The agreement would release claims against entities related to or that worked with Tyco on AFFF products, including Johnson Controls, Chemguard, Williams Fire and Hazard Control, Central Sprinkler LLC, ChemDesign, Inc., and others.^[2] Tyco has been sued by hundreds of water providers over AFFF-related contamination; these and other lawsuits have been aggregated in the AFFF multidistrict litigation (“AFFF MDL”) before the U.S. District Court for the District of South Carolina (“MDL Court”).

The Tyco settlement is the third of its kind: last summer, DuPont^[3] and 3M reached $1.2 billion and $10.5–12.5 billion agreements, respectively,^[4] to settle claims by water providers related to PFAS contamination.^[5] Settling PFAS-related claims is not new for Tyco, either. The MDL Court in 2021 approved a $17.5 million class action settlement that Tyco reached with residents of Peshtigo, Wisconsin, near the company’s Marinette, Wisconsin manufacturing facility.^[6] While that settlement settled a limited scope of claims held by individuals affected by PFAS contamination, the agreement reached on April 12 is much broader and would release claims by drinking water providers in exchange for funds that could be used to help install PFAS treatment systems.

The Tyco settlement was filed with the MDL Court on April 26, 2024, initiating the judicial approval process for class action settlements.^[7] If the MDL Court preliminarily approves the settlement, notice of the agreement will be sent to potential class members, who will then have an opportunity to object to the settlement and/or opt out.

The settlement largely tracks the structure and functions of the DuPont and 3M settlements discussed above. However, one major difference is that while the DuPont and 3M agreements settle claims of participating water systems who have had no PFAS detections in any of their water sources, the settlement class as currently defined in the Tyco agreement only includes water providers with PFAS detections as of May 15, 2024.^[8] Thus, water providers without PFAS detections as of that date will be ineligible to receive settlement funds.

It remains to be seen how Tyco’s settlement will affect an upcoming bellwether trial slated for later this year in the MDL that will focus on water providers’ claims against manufacturers of a family of AFFF products made via a PFAS manufacturing process called fluorotelomerization. Two cases in a bellwether trial process intended to test these claims are currently undergoing advanced discovery, and a trial is slated for October 2024.^[9] Tyco Fire Products LP, Chemguard, Inc., and ChemDesign, Inc. are all named defendants in one of the lead bellwether cases in that program, City of Watertown v. 3M Co. et al.^[10] When the DuPont and 3M settlements were announced last year—on the eve of the first water provider bellwether trial—the pending trial was later indefinitely postponed.^[11] Numerous other defendants are named in the pending bellwether cases. The settlement with Tyco could be followed by more class settlements with other named defendants in the pending bellwether cases. Since the Tyco settlement was announced, the MDL Court has encouraged defendants named in the bellwether cases to schedule mediation sessions.^[12]

The Tyco settlement comes on the heels of EPA’s announcement on April 10, 2024, of a final rule setting legally enforceable Maximum Contaminant Levels for six PFAS,^[13] and EPA’s April 19, 2024, announcement of a final rule listing PFOA and PFOS—the two most well-known PFAS analytes—as hazardous substances under the Superfund law.^[14]

At Marten, we track PFAS developments and provide updates through our Newsletter, our PFAS Deskbook, and in Monthly PFAS Briefings hosted by the Environmental Law Institute. Please contact our PFAS practice group leads Jessica Ferrell and Jeff Kray with any questions regarding the Tyco settlement.

[1] Settlement Agreement for Water Systems, Johnson Controls International PLC, Form 8-K, Exhibit 10.1 [hereinafter Tyco Settlement] (April 12, 2024), https://www.sec.gov/ix?doc=/Archives/edgar/data/0000833444/000083344424000023/jci-20240412.htm (last visited Apr. 15, 2024).

[2] Id. § 2.54.

[3] The DuPont-related entities are The Chemours Company, The Chemours Company FC, LLC, DuPont de Nemours, Inc., Corteva, Inc., and E.I. DuPont de Nemours and Company n/k/a EIDP, Inc.

[4] See Jessica Ferrell and Jeff Kray, PFAS Settlements: How Much is Enough?, Marten Law (Jun. 28, 2023) (discussing 3M and DuPont settlements), https://martenlaw.com/news/pfas_settlements_how_much_is_enough.

[5] The MDL Court approved both settlements this year. 2:18-mn-02873-RMG, Dkt. Nos. 4754-1 (Mar. 29, 2024) (3M) and 4543 (Feb. 26, 2024) (DuPont). The DuPont agreement is awaiting review on appeal at the Fourth Circuit; the period to appeal the 3M agreement expires April 29, 2024.

[6] 2:18-mn-02873-RMG, Dkt. No. 1814 (Aug. 4, 2021).

[7] 2:18-mn-02873-RMG, Dkt. No. 4911 (Apr. 26, 2024).

[8] Id. § 5.1.

[9] See Case Management Order 27G (Apr. 22, 2024), 2:18-mn-02873-RMG, Dkt. 4878. The bellwether cases are City of Watertown v. 3M Company et al. (“Watertown”) (No. 2:21-cv-01104); and Southeast Morris County Municipal Utilities Authority v. 3M Company et al. (“SMCMUA”) (No. 2:22-cv-00199).

[10] Complaint, City of Watertown v. 3M Co. et al., No. 2:21-cv-1104-RMG, Dkt. 1 (Apr. 14, 2021).

[11] 2:18-mn-02873-RMG, Dkt. No. 3256 (Jun. 5, 2023).

[12] Dkt. 4877 (Apr. 22, 2024).

[13] Jessica Ferrell et al., EPA Sets PFAS Limits in Drinking Water, Marten Law (Apr. 10, 2024), https://martenlaw.com/news/epa-sets-pfas-limits-in-drinking-water.

[14] See Pre-Publication Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, EPA-HQ-OLEM-2019-0341 (Apr. 2024), https://www.epa.gov/system/files/documents/2024-04/pre-publication_final-rule-cercla-pfoa-pfos-haz-sub.pdf (last visited Apr. 23, 2024).