A Houston lawyer in Kelley Drye & Warren’s environmental law practice group served as lead trial counsel for the state of New Jersey, guiding historic $2.4 billion settlements in “forever chemical” litigation against DuPont and 3M that were finalized via consent orders by a federal judge last week.
The PFAS settlements — which include extensive remediation requirements and under which DuPont will pay about $2 billion and 3M will pay more than $400 million — are historic in the context of natural resource damages recoveries, ranking alongside those reached in the BP/Deepwater Horizon litigation and the Exxon Valdez oil spill.
But they’re also personally meaningful to William “Bill” Jackson, who has been handling environmental cases ever since representing the Port of Texas City against refineries that were leaking oil and hydrocarbons into Galveston Bay about 25 years ago.
“I ended up working on that case for a couple of years … ended up becoming sort of their general counsel, and we still represent the Port of Texas City to this day,” he told The Lawbook in an interview Friday. “I loved what I was doing. It was just a ton of fun and really interesting. And that case led to another case for the Port of Houston, which then, frankly, led me to New Jersey.”
Jackson, a native Houstonian who graduated from the University of Texas at Austin and the University of Houston Law Center, served as outside counsel to the state of New Jersey in the Passaic River contamination litigation more than a decade ago. His work on that case, helping recover more than $355 million in damages plus $400 million in potential remediation costs, led to his being tapped again by the state to lead its statewide PFAS litigation.
Bringing home this win for New Jersey and its residents took a team of more than 20 Kelley Drye lawyers, who lived at the Hilton Garden Inn in Camden, New Jersey, for more than a month last summer.
“It’s a huge case, and I’m obviously so proud of the entire Kelley Drye team for trying this case and for this resolution,” Jackson said. “Everybody was working around the clock, but the team was so motivated by, frankly, what was right. And trying this case on behalf of the state of New Jersey was a real blessing for everybody.”
U.S. District Judge Renee Marie Bumb, who presided over the litigation, set six issues to be decided via bench trials that would take place before a 2025 jury trial. That meant Jackson divided the lawyers into six trial teams.
Those trials covered the liability of DuPont and 3M under state laws, DuPont’s statutory defenses and the state’s claims against DuPont for fraudulent transfers and reorganizations.
“We tried the first five of those trials, established DuPont’s liability and Chemours’ liability and defeated all of their defenses to those claims,” he said. “So, we were going to try next the fraudulent transfer claims … when we ultimately settled with DuPont.”
Another trial, where the jury would determine common law liability and damages, was scheduled to begin in the fall, but 3M settled the week before trial was slated to begin.
The scope of the litigation was vast, with New Jersey designating 26 experts, DuPont designating 26 and 3M designating 27. Their areas of expertise ranged from chemistry to fraudulent transfer and corporate restructuring to remediation and abatement of contamination.
But there was one issue Jackson said was most significant to him: the evidence showing DuPont and 3M knew of the risks of PFAS decades before anyone else did.
“The discovery and the evidence showed that DuPont and 3M understood the risks of [perfluorooctanoic] going back to the 1960s,” he said. “There was a tremendous amount of information that came out that disclosed that they had understood it was in the blood of all Americans, or most Americans, by 1979 and never revealed that to anyone.”
“DuPont was testing pregnant workers on the floor of its Washington Works plants, and in 1981 they knew that it crossed the placenta and had gotten into the unborn fetuses of some of the workers, and they never revealed that to anyone.”
One issue, he said, was “fundamental” to reaching a settlement.
“The remediation obligations — the responsibility for DuPont to clean up the chemicals that it has released from its various industrial sites in New Jersey — is not capped,” he said. “They must clean up PFAS and other contamination to the satisfaction of the state. Period. Hard stop.”
The settlement also provides for up to $1.2 billion in financial assurance mechanisms that ensure taxpayer dollars will not be footing the bill for any cleanup.
“It’s my hope that this actually would be used as a framework for broader settlements nationally,” Jackson said. “The water treatment and remediation efforts … are going to have to go on for decades. And so, this is structured with a longtime horizon on it.” He said the chemical giants will be making payments for more than 25 years to fund PFAS abatement projects.
The deal, he said, is “frontloaded” so major capital improvement projects can get underway first, followed by long-term operation and maintenance projects.
Currently, Jackson is representing the state of Texas in two PFAS cases: one involving contamination related to firefighting foam that was consolidated in federal multidistrict litigation in Charleston, South Carolina, and one that’s proceeding in state court in Johnson County against 3M and DuPont.
“It’s under the [Deceptive Trade Practices Act] … for not accurately disclosing the risks of PFAS chemistry that they had been marketing and selling to Texas consumers since the 1970s,” he said. “And I’m hoping we’ll get a trial date next year.”
New Jersey was also represented by Jennifer Barks, Melissa E. Byroade, Geoffrey W. Castello, Matthew Chakmakian, Levi M. Downing, Laura W. Duncan, William A. Escobar, Elizabeth N. Krasnow, David M. Reap, Lana Rowenko, David I. Zalman, Curt D. Marshall, Nancy Archer Yanochik, Daniel J. Harrison, Erin Hodge, Noah T. Joseph, Sabrina Eve Morelli, Zoe Peer Makoul, Jack Quaglino and Lauren Schadt of Kelley Drye, the Law Offices of John K. Dema, and Robert A. Bilott and David J. Butler of Taft Stettinius & Hollister.
DuPont is represented by James A. Budinetz, Ryan Richman, Lanny S. Kurzweil, Alison Morrissey, Candee Wilde and Peter J. Zarella of McCarter & English LLP, Ann Marie Duffy, Eric G. Lasker, Marchello D. Gray, David I. Schifrin and Matthew J. Malinowski of Hollingsworth LLP, and David A. Haworth, Brittany M. Wilson, Erin M. Carter and R. Stephen Stigall of Ballard Spahr.
3M is represented by Donald J. Camerson II of Bressler Amery & Ross.