AUSTIN - Private lawyers who promise not to boycott Israel will make 14% of whatever the State of Texas makes from a new lawsuit over chemicals known as PFAS.
State Attorney General Ken Paxton hired the private firms Kelley Drye and Lanier Law Firm to push litigation against 3M and DuPont, two companies frequently targeted in lawsuits over the group of chemicals.
Contracts recently obtained by The Southeast Texas Record state that those firms will recover no more than 14% of whatever settlement or judgment they obtain. Section 8.9 stipulates that each firm "Does not Boycott Israel."
Paxton has already gone to court to defend a Texas law prohibiting state funds from going to companies that boycott Israel. The AG's site has a section dedicated to Israel and in 2021 joined colleagues in anger over the Israel boycott of ice cream company Ben & Jerry's.
“Texas’s anti-boycott law is both constitutional and, unfortunately, increasingly necessary as the radical left becomes increasingly hostile and antagonistic toward Israel,” Paxton said in April.
“Though some wish to get rid of the law and see Israel fail, the State of Texas will remain firm in our commitment to stand with Israel by refusing to do business with companies that boycott the only democratic nation in the Middle East."
As for last week's PFAS case, Paxton and his hired guns argue 3M and DuPont misled the public as to the safety of the chemicals.
A multidistrict litigation in South Carolina federal court handles claims brought by public water systems to address the effects of alleged contamination. PFAS are dubbed "forever chemicals" because they persist in groundwater and human tissue for years. They are found in firefighting foam and consumer products.
The federal government has set a maximum contaminant level for PFAS, even as groups call the move premature. Much of the research regarding their effect on the human body is disputed, with the American Chemistry Council calling the EPA's regulation "rushed" and "unscientific."
Still, lawsuits sprung up. States hired contingency lawyers for contamination lawsuits and pushed through their own regulations while the EPA decided its MCL. 3M, DuPont, Tyco and BASF have reached settlements in South Carolina that will bring in massive fees for the private lawyers representing the water systems.
Paxton's cases is more akin to the consumer class actions that arose. He alleges false advertising in products under brand names like Teflon, Stainmaster and Scotchgard.
“These companies knew for decades that PFAS chemicals could cause serious harm to human health yet continued to advertise them as safe for household use around families and children,” Paxton said.
“Texas is taking action to penalize these companies and hold them accountable for deceiving Texans into buying consumer products without vital information.”
Nantucket Nectars defeated a class action that said consumers wouldn't have bought the product had they known PFAS was present in the bottles, as did the maker of Simply Tropical juice drinks.
The Nantucket Nectars plaintiff failed to show the bottle he drank from contained PFAS, while the plaintiff in the Simply Tropical case said he was duped into buying the juice because it was marketed as all natural while containing PFAS.
Testing tripped that case up too, considering the plaintiff failed to connect testing on some bottles to the one he drank from.
Plaintiffs suing the Mediterranean food restaurant chain Cava Grill defeated its motion to dismiss but withdrew their claims. Companies nationwide like Burger King and McDonald's face PFAS class actions.
For instance, Ornua Foods faces suit for calling its Kerrygood butter sticks "pure" while the packaging contained PFAS.
Some of the existing science comes as a result of an effort by plaintiffs lawyers who took on DuPont over the release of PFOA, which is in the group of PFAS, around one of its plants near the Ohio River in West Virginia.
Personal injury lawyers and DuPont agreed to a plan that created a so-called “science panel” and had the company pay for the medical monitoring of residents around the plant. Medical monitoring is a controversial claim for relief on behalf of uninjured plaintiffs that would drive up the cost of a settlement and with it, the amount their lawyers could recover.
The majority of states don't allow such claims.
By 2012 and after studying more than 30,000 participants, the science panel said there was a probable link to six diseases.
The cases paid off for lawyers in 2017, when DuPont ponied up $671 million to settle 3,500 lawsuits.