Emerging Contaminants
Substances commonly referred to as emerging contaminants are synthetic or natural chemicals that have not been fully assessed from a health or risk perspective and are reportedly finding their way into consumer products and the environment. They have also come to include chemicals that have been widely used throughout society for many years but are now being targeted as a result of scientific developments and public scrutiny regarding their uses. This has led to increased regulation of consumer products, manufacturing processes, and industrial emissions as well as new waves of litigation against unsuspecting businesses putting their operations and financial stability at risk.
To combat these developments, we work with our clients to help shape reasonable regulations and establish legal precedent to press back on meritless litigation. We have also developed a global task force led by our practice leaders and our senior scientific advisor that utilizes cutting-edge technology to monitor emerging issues and help make sure our clients stay one step ahead of developments that may impact their businesses. As a global law firm with decades of experience representing companies in mitigating and defending against chemical-related risks, we provide practical and innovative legal advice to help our clients navigate the constantly evolving landscape of chemical-related regulations, litigation, and insurance coverage.
We also recognize that the challenges companies face in managing and mitigating the risks presented by emerging contaminants are multifaceted and require cross-disciplinary experience. Our collaborative task force is prepared to provide strategic counseling and representation at every turn, whether it be tracking, lobbying for, and complying with new regulations; managing the use of chemicals in products and manufacturing and their potential impacts; defending against personal injury and class action litigation; or pursuing recovery from insurance companies.
Mass Tort, Product Liability, and Environmental Litigation
As is too often the case, when there is increased regulation and public scrutiny regarding emerging contaminants and their uses, litigation quickly follows. Whether it be one-off product claims, class actions, or mass torts, our lawyers are regularly defending clients in federal and state courts across the country. For example, as the growing wave of attention around per- and polyfluoroalkyl substances (PFAS) and their uses builds, our lawyers have counseled clients and defended claims ranging from consumer labeling class actions to water supply contamination cases. When it comes to ethylene oxide (EtO or EO), one of the mostly widely used chemicals by industrial manufacturers, our lawyers are on the front lines defending class action and personal injury claims in some of the most active jurisdictions in the country where they have obtained groundbreaking decisions regarding the admissibility of expert testimony and the sufficiency of evidence related to speculative risks.
Our Mass Tort and Product Liability lawyers align our practice and experience with the ever-evolving landscape of emerging contaminants to remain at the forefront of scientific and regulatory developments, so our clients are prepared when litigation arises. If it does, our experience allows us to help clients minimize risk by efficiently managing large volumes of claims while at the same time aggressively representing our clients to obtain favorable results in court.
Consumer Class Actions
Attention to the use of emerging contaminants in consumer products has led to a significant increase in consumer class action claims related to alleged mislabeling or contamination of products. Such claims are often referred to as “greenwashing” and take the form of allegations that products were improperly marketed as “natural” or “safe” when they allegedly contained trace amounts of emerging contaminants, or allegations based on the failure to disclose the existence of an alleged hazardous contaminant. These cases present unique legal concerns, particularly regarding the use of questionable testing methods and Article III standing, an area where our lawyers have been helping to shape legal precedent. Our experience with product labeling regulations and chemical uses allows our lawyers to help clients manage risks before litigation arises and to defend claims when it does.
Industrial Incidents
Industrial incidents are an area where chemical-related exposures—even at extremely low levels—are particularly receiving increased scrutiny leading to significant litigation risks. Such incidents are often multifaceted, and can present regulatory issues, civil liability risks, and insurance coverage challenges, among others. We understand these challenges and have successfully guided some of the largest manufacturers through highly publicized incidents involving industrial fires, chemical releases, and environmental contamination. Our lawyers have the experience to minimize disruptions to your business and mitigate risks when the unexpected happens.
Environmental Regulations and Public Policy
Emerging contaminants, or what the US Environmental Protection Agency (USEPA) describes as contaminants of emerging concern (CECs), have become an increasing area of focus for various industries—both large and small. They are previously unregulated chemicals or particles being detected in the environment at even low levels, which may present potential risk to human health or the environment. Our Environment, Land, and Natural Resources team is at the forefront of these novel issues and well-positioned to advise our clients on all aspects of CECs, including providing policy, regulatory, litigation, and transactional advice and support. Our team has extensive experience with the USEPA and respective state regulatory authorities.
Our Environmental and Policy lawyers, for example, have been closely monitoring the ongoing development of federal and state regulations related to per- and polyfluoroalkyl substances (PFAS) and their uses and have been actively engaging with state and federal legislators to help ensure the reasonableness of developing regulations. Similarly, as regulations continue to be tightened under the Toxic Substances Control Act (TSCA) and National Emission Standards for Hazardous Air Pollutants (NESHAPs) for various chemicals, our lawyers have the knowledge and experience to help our clients navigate the difficulties and uncertainties in complying with a morass of federal and state regulations.
Food, Health Care, and the FDA
Concerns regarding emerging contaminants frequently target chemicals to which consumers are potentially exposed through their diets. Our Health Care and FDA practice advises clients on managing responses to regulations affecting emerging contaminants at the federal, state, and local level. Our lawyers have also successfully defended clients against litigation based on scientifically unsound testing as well as allegations of contamination by third-party consumer publications, blogs, and other sources. Moreover, our team also includes a Ph.D. senior scientific advisor to provide technical analysis for regulatory compliance purposes.
As public scrutiny increases regarding the use and contamination of chemicals in everyday consumer foods and products, our Health Care and FDA lawyers are prepared to assist clients in preparing for, navigating, and mitigating the risks that jeopardize their business and their reputation.
Insurance Recovery and Counseling
Our Insurance Recovery and Counseling lawyers negotiate to enhance the terms of insurance policies, assist with incident response and claims, and advise and represent policyholders across the globe who may be facing established chemical or new contaminant claims. Collaborating with colleagues in other practices, we aim to mitigate risk and anticipate claims before a loss or claim arises. Drawing from experience with thousands of policyholder engagements, we level the playing field against the insurance industry, which historically has responded to emerging risks by introducing exclusions and resisting payment of covered claims. We have significant experience navigating policy terms and exclusions that are often at issue in emerging contaminant claims.
Before a claim arises, we help clients to negotiate favorable policy terms when insurers seek to restrict coverage for emerging contaminants such as PFAS. We also insist that insurers honor their contractual commitments, free from the conflicts of interest faced by many law firms because of their ongoing representation of insurers. Because of our policyholder-exclusive orientation, our firm has no such limitation, and our lawyers implement insurance strategies which seek to optimize policyholders’ interests.
Our firm has recovered tens of billions of dollars in the United States alone, and additional recoveries around the world, on insurance claims for our policyholder clients. We also routinely assist in transferring deal-related risk to insurers through representation and warranty insurance as well as other insurance products.
