SDNY dismisses water utility operator’s lawsuit against manufacturer over alleged PFAS-related expenses | Koenig & Spalding

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Earlier this month, Judge Lewis Liman dismissed a water utility operator’s complaint against multiple companies that allegedly manufactured, sold, licensed and/or distributed PFAS and PFAS-containing products at a variety of locations in the New York metro area and over a significant amount of time. The complaint further alleges that some or all of the described PFAS or PFAS-containing products, in turn, contaminated New York State’s water systems, resulting in the water system operator incurring costs associated with remediation and monitoring of the materials. SUEZ Water New York Inc. v. EI du Pont de Nemours and Company, et al., No. 20-CV-10731 (LJL), 2022 WL 36489 (SDNY January 4, 2022).

In a lengthy order, Judge Liman found that while some (but not all) of the defendants had personal jurisdiction, the water operator’s complaint should be dismissed, even as to those defendants who had personal jurisdiction for the failure to Complaint was filed (Fed .R.Civ.S.12(b)(6)). Judge Liman succinctly summarized the basis for his opinion while dismissing plaintiff’s theory of causation:

The plaintiff’s meager and speculative allegations fall far short of anything that has been considered sufficient in the water pollution cases cited by the parties. The allegations do not contain any facts regarding market share, the identity of customers or the location of customers’ residence, or that would link the conduct of Manufacturing Defendants to the alleged injury suffered by Plaintiffs. They amount to alleging that at some point in history, the Manufacturing Defendants sold an (unknown) amount of PFOA or PFOS to an (unknown) number of customers in an (unknown) part of a vast state because the same Chemical has been found in there [Plaintiff’s] water systems (located in a small portion of the state) which the Manufacturing Defendants somehow caused [Plaintiff’s] Injury. These claims are insufficient to make or “nudge” a claim of causality.[] [its] Assertions across the board from conceivable to plausible.” At *17.

Judge Liman had similar thoughts on the plaintiff’s claims of harassment, negligence, trespassing and strict liability, dismissing them in turn and dismissing the complaint under rule 12(b)(6).

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