Sunshine may be among the best disinfectants but these PFAS defendants are fighting to keep their settlement with Rome, Georgia confidential. Why?

Supreme Court Justice Louis Brandeis famously exclaimed sunlight is said to be the best of disinfectants.  Of course the Atlanta Journal-Constitution and the Rome News-Tribune endorse that proposition.   And, the newspapers argue, so did the Georgia State Legislature in passing the Georgia Open Records Act which generally requires that public records, including settlement agreements, be available to the public.  

At issue is a settlement agreement between the City of Rome, Georgia and thirty two entities that allegedly bear legal responsibility for PFAS discharged into local rivers which are the source of Rome's drinking water.  Rome's lawyer announced that the settlement would fund the construction of the water treatment facility necessary to remove even the most minute concentrations of PFAS from Rome's drinking water.

Three of the thirty two would be defendants -- DuPont, Chemours and Corteva -- have asked a court to block the disclosure of the Rome settlement agreement because they claim that settlement agreement, or at least certain of the financial details in it, are their "trade secrets", exempt from the application of the Open Records Act.

This is an imaginative but unlikely to ultimately succeed suggestion.  So why are DuPont, Chemours, and Corteva making it?

As regular readers know, these same companies have also reached a $1.2 billion nationwide agreement in the PFAS Multi-District Litigation in South Carolina that would apply to claims like the one made by Rome from coast to coast.

In tentatively approving the nationwide settlement Judge Gergel overrode an objection that the "allocation procedures" specified in the settlement do not provide water suppliers sufficient information to make an informed decision about whether or not to join the settlement.

DuPont, Chemours, and Corteva may worry that the substance of the Rome, Georgia settlement agreement will provide the hundreds, if not thousands, of other water suppliers similarly situated with information that they otherwise wouldn't have.  That information might or might not cause so many water suppliers to "opt out" of the nationwide settlement that it would be scuttled.  The lengths to which DuPont, Chemours, and Corteva are going to prevent the disclosure of the settlement agreement certainly adds fuel to that fire.  Potential settlers were already concerned that the nationwide settlement funds will be insufficient, saddling many water suppliers with most if not all of the costs of filtering PFAS out of drinking water.   Of course potential settlers also have cause to be concerned that DuPont, Chemours and Corteva won't survive an endless stream of individual lawsuits so the bird in the hand might be worth holding onto.

If DuPont, Chemours, and Corteva are only concerned about the Rome, Georgia settlement agreement being in the hands of those who might soon be covered by the nationwide settlement, they don't necessarily need to win their Georgia Open Records Act case on the merits in order to achieve their objective.  The deadline for water suppliers to "opt out" of the nationwide settlement is December 4 (December 11 for the companion 3M settlement) so in order for the disclosure of the Rome, Georgia settlement agreement to be helpful, the Georgia courts would have to compel its disclosure soon.  Stay tuned.