Cutting Edge PFAS Bankruptcy

Expanding on its significant experience recovering insurance in mass-tort bankruptcy cases, Gilbert LLP was recently retained as Special Insurance Counsel to the Official Committee of Unsecured Creditors (“UCC”) of Kidde-Fenwal, Inc.

Kidde Fenwal filed for bankruptcy in May of 2023, citing the magnitude of liability it faced related to its historic production and distribution of aqueous film-forming foams (“AFFF”). AFFF is a type of firefighting foam which is alleged to contain, or degrade into chemicals containing, per- and polyfluoroalkyl substances (“PFAS”). PFAS, also known as the “forever chemical” because it does not break down in the environment or in one’s body, has been linked to certain types of cancer and other diseases.

Due to the number of claims brought against not only Kidde-Fenwal but other manufacturers and distributors of AFFF, AFFF-related claims were consolidated into a multi-district litigation (MDL) in South Carolina in 2008. The over 4,000 claims currently pending in the MDL have been brought by water providers, individuals, Attorneys General, and others, alleging that defendants, including the debtor, are liable for PFAS water and ground contamination as well as personal injuries that allegedly flow from the contamination.

Kidde-Fenwal is the first company to file for bankruptcy stemming from its AFFF-related liability. In representing the UCC, Gilbert is providing counsel and advice on insurance issues, working with key stakeholders to evaluate, preserve, and maximize insurance recoveries for the benefit of injured claimants. Due to Kidde-Fenwal’s corporate history, available insurance may reach back as far as the 1960s and be substantial in nature.