City Attorney’s Office
Reference: Execution of an Engagement Letter with Napoli Shkolnik to Draft a Complaint Against Producers of PFAS for Recovery of Damages and Execution of a Common Interest Agreement with the Colorado Attorney General’s Office Regarding PFAS Litigation
To: Mayor Gregory Mills and Members of City Council
Through: Michael P. Martinez, City Manager
Prepared By: Alicia Calderón, City Attorney
Date Prepared: February 15, 2023
PURPOSE
To approve retaining legal counsel Napoli Shkolnik for litigation against PFAS producers and to approve execution of a common interest agreement with the Colorado Attorney General’s Office for PFAS litigation.
BACKGROUND
Water utilities, municipalities, fire fighting districts, and states across the nation are filing complaints against companies that design, manufacture, and distribute chemicals and products containing PFAS, per and polyfluoroalkyl substances. Aqueous film-forming form (“AFFF”) products that contain PFAS have contaminated surface and groundwater. The products are used in fire suppression and other products to repel oil, grease, and water. PFAS, including perfluoro octane sulfonate (“PFOS”) and perfluorooctanoic acids (“PFOA”), are mobile, persist indefinitely in the environment, and accumulate up the food chain.
Napoli Shkolnik PLLC already represents a number of entities in the multi-district litigation, including the City of Denver and Thornton. Paul Napoli is the lead attorney and has been appointed co-lead counsel in the In re: Aqueous Film-Forming Foams (AFFF) Products Liability Multi District Litigation (MDL) by Judge Richard M. Gergel in the District of South Carolina. The firm has the resources to handle this type of litigation.
The State of Colorado, through the Attorney General, has filed its own case, which has been added to the multi district litigation. Over 2000 cases have been added. The first trial is scheduled to begin in June of 2023. The cases have been grouped into certain tiers, and the first group involves water utility systems primarily.
The City of Brighton (“City”) issued a notice to its residents about PFAS notifying residents of the levels of PFAS found in the drinking water. The new water treatment plant will address removal of PFAS from the water through the systems being built. The City Council has expressed interest in proceeding with litigation to try to recover costs associated with the systems to be built to remove PFAS from drinking water and to maintain and operate those systems over time.
CRITERIA BY WHICH COUNCIL MUST CONSIDER THE ITEM
Pursuant to Section 8.1(G) of the City Charter, the City Council is authorized to retain special legal counsel to handle any matter in which the City has an interest, upon recommendation from the City Attorney.
FINANCIAL IMPACT
None. The proposed fee arrangement is on a contingency basis. The Law Firm would be paid twenty-five (25%) percent of any funds recovered. The City is not obligated to pay any legal fee if there is no recovery of any damages. The City Attorney will manage the special counsel and coordinate litigation activities.
STAFF RECOMMENDATION
Staff recommend approval of resolution.
OPTIONS FOR COUNCIL CONSIDERATION
1) Approve the Resolution
2) Deny Approval of the Resolution
3) Modify the Resolution
ATTACHMENTS
1. Resolution