The Product Liability & Mass Tort Monitor is a monthly newsletter delivering critical updates, data insights and actionable strategies for navigating the complexities of product liability and mass tort litigation. McGuireWoods’ team of experienced litigators defends leading companies in high-stakes cases, using a deep understanding of clients’ products, businesses and regulatory environments. The newsletter highlights key data and trends shaping the product liability landscape, offering valuable insights to inform litigation strategies and risk management practices aimed at helping clients stay ahead of evolving challenges and achieve favorable outcomes.
This month’s issue explores the growing trend of group actions in the Courts of England and Wales; U.S. efforts to generalize class claims falling short resulting in critical dismissals for product manufacturers and retailers; and the ongoing disputes about scope of relief available to mass tort defendants seeking to resolve liabilities in Chapter 11 bankruptcy.
I. Growing Trend in Group Actions in the Courts of England and Wales
A growing trend in group actions in the Courts of England and Wales sees the regime falling within two categories: (1) opt-in proceedings akin to U.S. mass tort claims, in which claimants must proactively sign up to the litigation, known as group litigation orders (GLOs); or (2) opt-out collective proceedings, akin to class actions in the U.S., in which a claim is brought on behalf of a defined class of eligible claimants who are not individually identified.
Opt-out collective actions are currently only available in the High Court or Competition Appeal Tribunal in relation to actual or alleged breaches of competition law and are a relatively new concept introduced by the Consumer Rights Act in 2015. However, some senior members of the current UK government favor expanding the regime to cover consumer and environmental claims.
Group Litigation Orders
While GLOs have long been available for proceedings in England and Wales under part 19 of the Civil Procedure Rules, there has been a recent upsurge, particularly in light of the Post Office Group Litigation successfully brought by sub-postmasters who were wrongly convicted as a result of faulty accounting software. The regime allows for claims with similar subject matters to be joined for efficient management by the court, with trials taking place under the name of example litigants with a view to resolving issues across the entire group of joined claims. The liability trial for the five lead OEM defendants in the Pan-NOx diesel emissions group litigation is due to commence in October 2025, and the court will make determinations regarding 20 sample diesel vehicles. This landmark litigation has seen 13 GLOs, amounting to around 10% of all GLOs ever granted by the English High Court.
Collective Actions
There has been a marked increase in collective actions filed in 2025, with the Competition Appeal Tribunal (CAT) listing 32 actions issued in 2025 with reportedly an average claim value of £3 billion. This increase has been noticeable in the shadow of the Supreme Court’s decision in Mastercard Incorporated and others v. Walter Hugh Merricks CBE (Merricks) [2020] UKSC 51, which earlier this year was settled for £200 million. Recent claims demonstrate the increase in collective claims against technology companies, including those filed against Apple in relation to alleged anticompetitive conduct with respect to Apple’s cloud storage solution, iCloud, and against Google with respect to allegations of abuse of a dominant position in relation to the search advertising market.
Litigation Funding
A major factor driving the increase in group proceedings has been the availability of litigation funding, which is sometimes provided directly to claimant law firms rather than to the litigants. In July 2023 the Supreme Court held in R (on the application of PACCAR Inc and others) v Competition Appeal Tribunal and others that certain types of funding litigation agreements in the context of collective actions in the CAT were forms of damages-based agreements (DBA) that are unenforceable because they did not comply with the statutory requirements for DBAs. However, the Civil Justice Council issued its “Review of Litigation Funding” in June 2025 recommending a reversal of the PACCAR decision and the introduction of statutory regulation of litigation, enhanced costs budgeting and costs management for group actions. Crucially, the review rejected the introduction of caps on litigation funders’ returns. The Court of Appeal is hearing the appeal in Commercial and Interregional Card Claims Ltd v Mastercard and others in relation to the validity of litigation funding agreements in collective actions relating to Sony, Visa, Mastercard and Apple. The outcome of this case has the potential to reverse the PACCAR decision and become a precedent in the future of litigation funding for group actions. Despite this increase in group proceedings, the potential exposure to adverse costs measures as a result of the general rule that the losing party is liable for the successful party’s costs still serves as an obstacle to exponential growth in litigation funding in this area.
Technology
Historically, a major obstacle to bringing group proceedings was the logistics of recruiting claimants in opt-in proceedings. With the advent of social media and targeted advertising, claimant law firms that specialise in claimant-side group litigation can actively target potential claimants. For example, the recruitment sites for the Pan-NOx litigation resulted in over 1.25 million individual claimants. A recent study by the think tank European Centre for International Political Economy reported that the increase of such claims threatens the development of UK companies working in life sciences, advanced manufacturing and digital services, and has given rise to concerns that the cost of mass litigation for the UK economy could reach close to £18 billion.
II. Efforts to Generalize Class Claims Fall Short, Resulting in Critical Dismissals for Product Manufacturers and Retailers
Successful class action complaints must take care to balance the competing needs to 1) allege facts with sufficient particularity to withstand Twiqbal scrutiny and meet the elements of their claims and 2) maintain the generality required to encompass a broad class. Recently, manufacturers and retailers facing putative class claims successfully exploited plaintiffs’ broad pleadings in order to dispose of class claims at the motion to dismiss stage before the issue of class certification even arose.
In March, a carpet company successfully fended off a class action regarding the presence of per- and polyfluoroalkyl substances (PFAS) in its carpet products under the economic loss doctrine. The U.S. District Court for the Eastern District of Tennessee in Cundiff v. Shaw Industries Group, Inc. held that although the plaintiff made generalized allegations that “widespread and toxic PFAS contamination” injured him and his class, any allegations of bodily harm or property damage were not supported by the facts set forth in the complaint. Rather, the crux of his complaint was that he and his class paid a premium price for products under the mistaken belief that they did not cause “toxic contamination.” The price premium claim is generally considered a reliable means of ensuring the commonality of class claims — everyone who bought the product paid the same, allegedly too-high price. However, the economic loss rule prevents the recovery of economic loss unaccompanied by bodily injury or property damage. Accordingly, the court dismissed the strict liability claims as only alleging economic loss despite their optimality for class certification.
In April, a car manufacturer obtained dismissal of a putative class action filed in the Northern District of Georgia regarding its vehicles. The complaint in Chappell v. Mercedez-Benz USA, LLC made allegations regarding various vehicle defects, including bumper covers, air inlets and vehicle tires, which led to tires bubbling and popping. The court dismissed both fraud- and warranty-based claims on the premise that the plaintiffs’ broad allegations did not actually amount to a particular defect. Even though the injury — bubbling and popped tires — was precise, which aspect of the vehicles’ design caused that injury was undefined, meaning the plaintiffs, in their attempt to allege every defect, actually alleged no defect at all.
In May, the Southern District of Ohio made the “rare” decision to strike class claims pre-discovery. The claims in Stevenson v. Sam’s W. Inc. arose against a manufacturer and a retailer regarding alleged contamination of its bottled water products. The named plaintiffs alleged they drank visibly contaminated water, which resulted in illness. The purported class included all state residents who “drank [the manufacturer’s] contaminated water.” However, the court held that this was an impermissible “fail-safe” class because it could only include plaintiffs whose water was “contaminated,” which was not a factual descriptor but a conclusory one and could only be determined once the claims were litigated on the merits. Accordingly, the class claim failed before reaching the merits stage for its failure to allege specific contaminants, which would have restricted the scope of its class.
III. Prospects for Resolving Mass Tort Liability Through Chapter 11 Bankruptcy in the Aftermath of Purdue Pharma and Red River Talc
Chapter 11 bankruptcy has for decades afforded defendants a potent mechanism to collectively and permanently resolve mass tort liability, particularly for “long tail” risks such as those faced by asbestos defendants. This is because the Chapter 11 plan — a quasi-democratic mechanism that redefines the rights and obligations of debtor and its creditors — is binding on all notified parties even if they did not assent to its terms. Thus, corporate defendants facing billions of dollars in potential tort liability may, with sufficient consent from presently identifiable plaintiffs, secure a going-forward release of liability and avoid an otherwise fatal descent into perpetual, piecemeal litigation. Until recently, third parties with liability related to the entity filing for bankruptcy (e.g., the corporate insiders, affiliates, co-defendants and insurers of a mass tort defendant) were, in some jurisdictions, permitted to benefit from the “global peace” that the bankruptcy code affords debtors. Typically, these entities would contribute value to fund the distribution to the debtor’s creditors, and secure sufficient consent for the inclusion of similar, third-party releases in the Chapter 11 plan, which is binding on consenting and nonconsenting creditors alike.
But the viability of such nonconsensual third-party releases was called starkly into doubt by the U.S. Supreme Court’s June 17, 2024, ruling in Harrington v. Purdue Pharma, which rejected the pharmaceutical giant’s Chapter 11 plan because it conferred broad releases of opioid-related liability to individual members of the Sackler family. Though tort claimants had largely agreed to the arrangement, motivated by the Sacklers’ contribution of $5.5 billion to Purdue’s bankruptcy, the Supreme Court held that the Bankruptcy Code did not permit such relief in favor of non-debtors. The Court’s opinion, however, left some doubt as to the breadth of its applicability. The Court acknowledged, for example, that its reasoning might not apply to plans purporting to pay all of the released claims in full, nor to claims against third parties that are “derivative” of claims against the bankruptcy debtor.
Subsequent lower court decisions suggest, however, that the Purdue ruling may be difficult to avoid. For example, on March 31, 2025, the U.S. Bankruptcy Court for the Southern District of Texas dismissed the Chapter 11 Bankruptcy of Red River Talc LLC — an affiliate of Johnson and Johnson embattled by billions of dollars in mass tort liability arising from its carcinogenic talc products — on the grounds that the Chapter 11 plan sought a release for Johnson & Johnson (and approximately 700 third parties with related liabilities). The court recognized Purdue Pharma to stand the proposition that the Bankruptcy Code does not “authorize a release and injunction that, as part of a plan of reorganization under Chapter 11, effectively seeks to discharge claims against a non-debtor without the consent of affected claimants.” Notably, the Court rejected Red River’s attempt to distinguish Purdue Pharma on the grounds that Red River’s tort victims would purportedly be paid in full, reiterating that “nonconsensual third-party releases are not permissible,” irrespective of the extent to which claimants are being paid.
The Third Circuit’s decision on May 13, 2025, in In re Boy Scouts of America similarly acknowledged that the debtor’s Chapter 11 plan, which sought to resolve billions in sexual-abuse tort liability, would have been unconfirmable due to its inclusion of a $1.6 billion insurance buyback, which conferred a release on non-debtor insurers had the plan been confirmed after Purdue was issued.
Nonetheless, these cases are still being contested. One case, In re KFI Wind-Down Corp. in the Delaware Bankruptcy Court, may prove particularly decisive. The debtor, Kidde-Fenwal, filed for Chapter 11 in an effort to resolve mass-tort lawsuits related to toxic PFAS chemicals in its firefighting foam products. Its proposed Chapter 11 plan includes a release for its parent company Carrier Global Corp. In the face of several Purdue-grounded objections, the debtor characterized its parent-company’s released liability as wholly derivative of its own and therefore subject to the potential exception identified by the Supreme Court in Purdue. The outcome of this dispute may be consequential for tort claimants and defendants, particularly those defendants that find themselves jointly or relatedly liable with a defendant that sought Chapter 11 Bankruptcy protection.
McGuireWoods’ Product Liability and Mass Tort Group supports clients in assessing and mitigating risks, developing strategic responses to evolving laws and regulations, and defending litigation as it arises. The team is experienced in coordinating national defenses across a wide range of industries, including automotive, food and beverage, electronics, medical devices, chemicals, tobacco, pharmaceuticals, aircraft, trains, and building products, and handling toxic substance exposure and regulatory matters. Lawyers work closely with clients to navigate complex legal landscapes and protect their interests in high-stakes cases.