“How Courts’ Differing Views on Standing Affect PFAS Claims,” Law360
publication | August 10, 2024
Hollingsworth LLP attorneys Matthew Malinowski, Gary Feldon, and Sebastian Ovalle recently authored an article for Law360 discussing how the increased attention paid to per- and polyfluoroalkyl substances in recent years has resulted in an uptick in PFAS-related lawsuits — including claims based on defendants’ alleged failures to disclose PFAS in consumer products.
Alleging that if a manufacturer had disclosed the presence of PFAS in the product, consumers would either have paid less for it or not purchased it at all, PFAS consumer claims focus on consumer expectations, potentially sidestepping the need for reliable scientific evidence showing any actual risk from a product containing PFAS. This makes PFAS consumer claims very attractive to the mass torts plaintiffs’ bar.
However, standing under Article III of the U.S. Constitution, in particular, has emerged as a critical hurdle that many PFAS consumer claims have been unable to clear.
How rigorously federal courts enforce the Article III standing requirement will play a major role in how many PFAS consumer claims the mass torts plaintiffs’ bar files. If courts do not diligently screen complaints for allegations that support standing, there will likely be a flood of PFAS consumer claims of questionable merit.
Malinowski, Feldon, and Ovalle advise that given the importance of this issue, defendants should be aggressively advancing standing arguments to promote a body of case law that requires plaintiffs to have an adequate basis to allege that a product contains PFAS.