HomeMy WebLinkAbout2024 Resolution No. 0261
RESOLUTION NO. 26
SERIES OF 2024
A RESOLUTION AUTHORIZING THE CITY OF ENGLEWOOD, COLORADO TO
OPT INTO THE SETTLEMENT AGREEMENTS WITH 3 BASF CORPORATION AND
TYCO FIRE PRODUCTS LP IN RE: AQUEOUS FILM-FORMING FOAMS
PRODUCTS LIABILITY LITIGATION, MDL NO. 2873 (MULTI-DISTRICT CLASS
ACTION PFAS LITIGATION).
WHEREAS, on December 7, 2018, litigation involving the contamination of water and
soil by Per- and Polyfluoroalkyl Substances (“PFAS”) manufactured by various entities was
consolidated in the United States District Court of South Carolina as In re Aqueous Film-Forming
Foams Products Liability Litigation, MDL No. 2:18-mn-2873 (“MDL 2837”), under the oversight
of the Honorable Richard M. Gergel; and
WHEREAS, separate settlements have been proposed in MDL 2837 on behalf of
defendants BASF Corporation (“BASF”) and Tyco Fire Products LP (“Tyco”) to provide
compensation to public water systems that have detected PFAS in drinking water supplies since
May 15, 2024; and
WHEREAS, the settlements with BASF and Tyco aim to resolve nearly all PFAS-related
claims involving drinking water contamination brought by eligible U.S. water providers against
these manufacturers, as well as the majority of any claims that could be brought in the future; and
WHEREAS, under the terms of the proposed settlements, BASF would provide $316.5
million to eligible class members, and Tyco would provide $750 million, after certain deductions
for costs such as attorney fees; and
WHEREAS, the City of Englewood, as a public water system provider, qualifies as a
member of the proposed class and is eligible to participate in the BASF and Tyco settlements and,
in exchange for a release of liability against the defendants, the City would receive settlement
funds in an amount that is deemed fair and reasonable by the Court to address PFAS contamination
and remediation; and
WHEREAS, class members have the option to opt out of these settlements—thereby
foregoing settlement proceeds and continuing to litigate against BASF and Tyco—by exercising
the opt-out option by October 15, 2024, for the BASF settlement, and by September 23, 2024, for
the Tyco settlement; and
WHEREAS, should the City exercise its option to opt out of the separate settlement
agreements, any potential recovery the City would receive is speculative and contingent upon the
City filing litigation, successful prosecution of its claims, a verdict in its favor, and the financial
wherewithal of any defendant entities to pay any damages awarded to the City; and
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WHEREAS, by continuing to opt in as a class member in MDL 2837, the City estimates
a potential recovery of approximately $60,000 from the BASF settlement and approximately
$125,000 from the Tyco settlement; and
WHEREAS, choosing to opt into the settlement agreement and participate as a class
member does not prevent the City from sourcing funds elsewhere for the contamination and
remediation of PFAS, such as federal funding or any potential recovery achieved by Colorado’s
Attorney General’s Office through Colorado’s natural resources claim; and
WHEREAS, the Englewood Water and Sewer Board has reviewed the proposed
settlements and recommends that the City Council approve the City’s continued participation as a
class member in the BASF and Tyco settlements; and
WHEREAS, given the potential speculative recovery to the City should the City opt out
of these settlements in the class action litigation, City staff recommends that the City Council
approve the City’s continued participation as a class member in the BASF and Tyco.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. The City Council of the City of Englewood authorizes the City to opt into the
BASF and Tyco settlement agreements in the United States District Court of South Carolina as In
Re: Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No. 2873, in the forms substantially
the same as that attached hereto.
Section 2. The Mayor, Mayor Pro Tem (in the Mayor’s absence), and/or City staff are
hereby granted the authority to take all actions necessary to implement the provisions of Section 1
above, including without limitation preparing and filing a BASF and Tyco claim form to
participate in the settlements.
ADOPTED AND APPROVED this 16th day of September, 2024.
Othoniel Sierra, Mayor
ATTEST:
Stephanie Carlile, City Clerk
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I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the
above is a true copy of Resolution No. 26, Series of 2024.
Stephanie Carlile
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