AFFF CMO 40: What Plaintiffs Who Opt Out of the 3M PFAS Settlement Must Now Do, and When

AFFF CMO 40 is the order Judge Richard M. Gergel entered on November 4, 2026 that freezes personal injury litigation against 3M in the firefighting foam MDL and forces anyone who turns down 3M's $7.35 billion settlement to produce records within 60 days and expert causation reports within 120 days, on pain of dismissal with prejudice. A companion order, CMO 39, gives plaintiffs' lawyers until November 13, 2026 to identify every eligible client they represent, which means the opt-in decision for roughly 115,000 to 120,000 people now runs on a calendar measured in days, not years.

The two orders arrived one day after 3M filed its Master Settlement Agreement with the Securities and Exchange Commission, and they are the machinery that makes the deal work. Our coverage of the settlement itself explained what the money is and when it is paid. This piece explains the rules for everyone else: the claimant who wants to keep litigating, the firm with unfiled inventory, the lawyer who signed a new client last week, and the co-defendants who are not covered by the stay.

What is AFFF CMO 40?

AFFF CMO 40 is Case Management Order No. 40 in In re Aqueous Film-Forming Foams Products Liability Litigation, MDL No. 2873, pending in the U.S. District Court for the District of South Carolina. It does two things. First, it stays every personal injury proceeding against 3M in the MDL. Second, it sets an accelerated evidentiary schedule for any plaintiff who continues to pursue a personal injury claim against 3M, whether because that plaintiff declined the settlement or because the case reached the MDL on or after November 4, 2026.

Case trackers summarizing the order describe those continuing plaintiffs as "Litigating Plaintiffs." The label matters, because it marks the line between two very different tracks: the settlement program, where a claimant proves eligibility to a claims administrator under the agreement's terms, and the litigation track, where a claimant must build a trial-ready causation case on a short fuse and in front of a court that has already shown it will dismiss claims that are not supported.

3M's November 3 announcement told investors to expect exactly this. The company said the resolution included an "anticipated" MDL order setting evidentiary and timing requirements for plaintiffs who do not participate. CMO 40 is that order, and the settlement agreement refers to it by number.

The November 13 deadline in CMO 39

CMO 39 is the identification order. It requires plaintiffs' attorneys to identify to the court, by November 13, 2026, every eligible individual they currently represent. Eligible claimants who do not have a lawyer are covered as well. Reports summarizing the order agree on three features of the obligation:

• It reaches unfiled clients. The duty applies whether or not the client's claim has been filed in any court. Firms that hold signed retainers but have not filed, which is common in a mass tort where the MDL court spent much of 2026 vetting claims, must list those people too.
• It is not an election. Listing a client does not commit that client to the settlement, and being identified does not guarantee payment. The client still has to meet the program's exposure, diagnosis and documentation requirements and still decides separately whether to participate.
• The list closes. According to the order language quoted by plaintiffs' firms, the list may not be amended to add plaintiffs retained after the response date. An eligible claimant left off the list may participate in the settlement only if both 3M and the Negotiating Plaintiffs' Counsel (the "NPC" that signed the agreement) consent.

That last feature is the practical teeth of CMO 39. It functions like a Census Registry with a hard close: anyone who is not on a lawyer's list by November 13 is not shut out of the courthouse, but loses the right to walk into the settlement program and must ask two adverse parties for permission.

Are AFFF lawsuits against 3M stayed?

Yes. CMO 40 provides that "all proceedings in this MDL in cases asserting a personal injury claim against 3M are hereby stayed as to 3M." Judge Gergel explained that 3M and the claimants should devote "significant time and effort" to implementing the settlement, according to the Post and Courier's report on the order.

The stay is broad in one direction and narrow in another. It is broad because it covers every personal injury case against 3M in the MDL, including bellwether-track cases on the six injuries the court has prioritized. It is narrow because it is defendant-specific and track-specific: it covers personal injury claims, not the separate water provider, state attorney general or other tracks, and it covers 3M, not anyone else.

One case-tracking site describes the stay as lasting "at least nine years," matching the nine-year payment schedule. That description could not be confirmed against the order text or any second source, and nothing in the reported language of CMO 40 sets a fixed end date. Practitioners should read the order rather than rely on that figure.

Does the CMO 40 stay apply to DuPont and Chemours?

No. By its terms, the stay "does not apply to any claims asserted against any other defendants." Personal injury claims against DuPont, Chemours, Corteva and the other AFFF manufacturers and suppliers are neither settled nor stayed by CMO 40. A plaintiff who joins the 3M settlement releases 3M, not the other companies, and those claims continue on whatever schedule the court sets for them.

That creates an unusual posture for multi-defendant cases. A plaintiff can be a settling claimant as to 3M and a litigating plaintiff as to DuPont and Chemours at the same time, with discovery and expert work continuing against the non-settling defendants while 3M sits out.

What do AFFF plaintiffs who decline the 3M settlement have to produce?

Summaries of CMO 40 from two independent case trackers describe a two-stage production schedule, enforced by dismissal with prejudice:

Deadline	What must be produced	Who it applies to	Consequence of missing it
November 13, 2026	Identification of every eligible represented and unrepresented claimant (CMO 39)	All plaintiffs' counsel; unrepresented eligible claimants	Late claimants may join the settlement only with consent of 3M and the NPC
Within 60 days	Required medical and exposure records, plus a sworn statute of limitations declaration	Claimants who decline; cases filed in or transferred to the MDL on or after Nov. 4, 2026	Dismissal with prejudice (reportedly after a cure period)
Within 120 days	Expert reports on General Causation and Specific Causation	Same group	Dismissal with prejudice (reportedly after a cure period)
November 20, 2026	Status hearing on the 3M settlement	All parties	Not a production deadline

Several details are reported by fewer sources and should be confirmed against the order itself. One summary reports that form or template expert reports are not permitted and that experts must disclose any use of generative AI in preparing their reports. Trackers also describe a 30-day cure period before dismissal is entered. And the snippets reviewed do not consistently state what event starts each clock, whether the date of the order, the claimant's decision to decline, or the date a new case is filed or transferred. A firm planning a litigation track should calendar from the earliest plausible trigger until that is clear.

The sworn statute of limitations declaration deserves attention on its own. In most mass tort settlements, limitations defenses are fought claim by claim late in the case. CMO 40 front-loads the issue, making each continuing plaintiff swear early to the facts that determine accrual, such as diagnosis date and when the claimant connected the injury to AFFF exposure. The Statute of Limitations and the Discovery Rule will therefore be litigated on a sworn record within two months, not after years of discovery.

Can new AFFF cases still be filed against 3M?

Yes, but a new filing is no longer a cheap way to hold a place in line. CMO 40 applies to anyone whose PFAS personal injury case against 3M is filed in, or transferred to, the MDL on or after November 4, 2026. That person is a litigating plaintiff from day one: the case is stayed as to 3M, and the claimant still faces the same 60-day records and 120-day expert report requirements.

Trackers also report that cases filed after November 13 must include a certification from counsel about when the client was retained, which lets 3M and the court check whether a late filing involves a client who should have been on the CMO 39 list. The combined effect is to close the door on inventory building after the deal was announced. A firm that signs a new AFFF client today can still file, but it cannot use a bare complaint to wait for a later settlement round; it must fund expert work within four months.

That design is deliberate. The agreement includes participation thresholds and a walk-away right, and a settling defendant's biggest fear in a mass tort is a second wave of claims that arrive after the money is committed. Tying new filings to an immediate proof burden reduces that risk without formally barring anyone from court.

Is AFFF CMO 40 a Lone Pine order?

In substance, yes. A Lone Pine Order is a case management order, named for Lore v. Lone Pine Corp. (N.J. Super. Ct. Law Div. 1986), that requires each plaintiff to come forward early with prima facie evidence of exposure, injury and causation, usually supported by expert opinion, or have the claim dismissed. CMO 40 has every element of that model: a short deadline for records, a second deadline for expert reports on both general and specific causation, and dismissal with prejudice as the sanction.

What is distinctive is the context. Courts historically entered Lone Pine orders sparingly and often only after a record suggested many claims were unsupported. In settlement practice, they have become a standard tool for persuading holdouts: the defendant pays those who opt in, and the court requires those who opt out to prove their cases quickly. The Vioxx litigation used a version of that structure, which the Fifth Circuit upheld, and the Department of Justice sought a similar order in the Camp Lejeune litigation, as covered in our report on the Camp Lejeune Lone Pine motion.

Judge Gergel has also already shown a willingness to enforce proof requirements in this MDL. Earlier in 2026, the court's CMO 37 claims vetting process led to tens of thousands of personal injury claims being dismissed without prejudice for missing records and fact sheets, and a Special Master was appointed to manage the incoming motions to dismiss. A plaintiff weighing CMO 40 should assume the deadlines will be enforced as written.

Why the $680 million reserve depends on AFFF CMO 40

The settlement agreement does more than anticipate CMO 40; it conditions money on it. According to the Master Settlement Agreement filed with 3M's Form 8-K, 3M has no obligation to make payments into the $680 million reserve fund "if the AFFF MDL has been terminated or if anticipated CMO 40 (governing non-settling plaintiffs) is no longer in effect."

That clause has two practical consequences. First, the reserve, which exists to resolve remaining and future claims, is only as durable as the order. If CMO 40 were vacated, modified out of existence or ended by termination of the MDL, 3M's reserve obligation would fall away. Second, it changes the incentives of everyone in the case. Settling plaintiffs and their counsel have a financial interest in defending an order that imposes burdens on non-settling plaintiffs, and any challenge to CMO 40 by a holdout group would put the reserve at stake.

The agreement is an opt-in deal, not a class action. There is no Settlement Class, no Rule 23 fairness hearing and no class-wide opt-out mechanism. Each eligible claimant decides individually, which is why the court-ordered list in CMO 39 and the litigation track in CMO 40 do the work that class notice and opt-out deadlines would do in a class settlement. One summary of the agreement reports that 3M has 45 days after receiving participation figures to decide whether to terminate, and that the NPC holds its own termination right.

What happens if I opt out of the 3M AFFF settlement?

A claimant who declines the 3M settlement keeps the right to sue 3M but moves onto the CMO 40 litigation track: the case is stayed as to 3M, and the claimant must produce records and a sworn limitations declaration within 60 days and serve general and specific causation expert reports within 120 days, or the claim is dismissed with prejudice. The claimant's claims against other defendants are unaffected by the stay.

The comparison below sets out what changes on each path, using only terms reported in the settlement announcements and the reported text of the orders.

Issue	Claimant who joins the 3M settlement	Claimant who declines (CMO 40 track)
Claims against 3M	Released in exchange for settlement payment	Preserved, but stayed as to 3M
Proof required	Eligibility under the program's exposure, diagnosis and documentation rules	Records and sworn SOL declaration in 60 days; causation expert reports in 120 days
Risk of dismissal	Ineligibility under the program	Dismissal with prejudice for missed deadlines
Timing of money	Under a nine-year schedule, 2026 to 2034, with $50 million due in 2026 and nothing in 2027	Only by verdict or later settlement after the stay ends
Claims against DuPont, Chemours, Corteva	Not released; continue	Not stayed; continue
Cost to the claimant's firm	Claims processing; Common Benefit Fund assessment	Expert retention and report preparation within four months

For most claimants with one of the six designated injuries (case trackers list kidney cancer, testicular cancer, liver cancer, thyroid cancer, thyroid disease and ulcerative colitis), the comparison favors participation unless the case has unusual value or a strong individual causation record. That is the result the orders are designed to produce. For claimants with other injuries, or whose exposure records are thin, the comparison is harder, because neither track is easy: the settlement program has its own documentation requirements, and the litigation track demands expert support most such claimants would struggle to obtain within 120 days.

Open questions before the November 20 hearing

Judge Gergel has set a status hearing on the 3M settlement for November 20, 2026. Several points remain unclear from public reporting and may be addressed there or in later orders:

1. Clock triggers. Whether the 60- and 120-day periods run from November 4, from a claimant's election to decline, or from filing or transfer for new cases.
2. Election deadline. When an identified claimant must formally choose between participating and litigating, and how a claimant who never responds is treated.
3. State court claims. CMO 40 governs the MDL. It does not by itself bind state courts, and 3M has said the settlement addresses claims inside and outside the MDL. How state court plaintiffs who decline will be handled, and whether 3M will seek parallel orders, is not addressed in the reporting.
4. Duration of the stay. The reported text sets no end date. The unconfirmed "nine-year" description should be tested against the order.
5. Participation numbers. The thresholds are confidential. Until 3M reports participation, the deal is not final and the walk-away right remains open.

What it means for plaintiffs' firms, funders and defendants

For plaintiffs' firms. The November 13 list is the immediate priority. Every eligible client must be identified, including unfiled retainers and clients dismissed without prejudice during CMO 37 vetting who may still be eligible for the program. A client left off the list loses the automatic right to join. Firms with large inventories should also expect pressure to recommend participation across their whole book, because walk-away thresholds make each firm's enrollment rate matter to the deal. Any recommendation to decline must come with a funded plan to obtain both general and specific causation reports within 120 days. Under ABA Model Rule 1.8(g) and its state counterparts, an aggregate settlement requires informed consent from each client, so the comparison above is the kind of information clients need in writing.

For litigation funders. Third-Party Litigation Funding secured by AFFF inventory now has a clearer valuation event. Participating claims become receivables on a back-loaded schedule. Non-participating claims become expensive, near-term expert projects with binary dismissal risk. Funders who financed client acquisition after the settlement became likely should look closely at the retention-date certification for late filings. A judge in the paraquat litigation ordered financing disclosures in hundreds of cases in October, and courts are paying closer attention to who is behind late-arriving inventory.

For co-defendants. DuPont, Chemours, Corteva and the other AFFF defendants remain on the litigation track with no stay. They will now face plaintiffs who have settled with the largest manufacturer and may be more selective about which claims they press. They will also want to know how 3M's settlement payments affect set-off or allocation under state law, a question the reporting does not address.

For claimants. The practical question is simple. A claimant who wants to stay eligible for the settlement program should confirm with counsel before November 13 that he or she is on the CMO 39 list. A claimant who wants to keep suing 3M should understand that the case will be stayed against 3M and must be supported by expert reports within four months.

For mass tort defendants generally. The 3M orders are a template. A settling defendant gets a court-ordered census, a stay, a Lone Pine-style burden on holdouts and a deterrent against late filings, all entered within a day of signing. Expect defendants in talc, hair relaxer and other large dockets to cite these orders when negotiating their own settlement architecture.

The settlement in brief

The orders implement the deal 3M announced on November 3, 2026. 3M committed $7.35 billion in nominal, pre-tax payments over nine years, from 2026 through 2034, with a present value of $5.8 billion. The company says the agreement addresses about 99% of current personal injury claims inside and outside MDL No. 2873. Payments are back-loaded, the deal can be terminated if participation thresholds are not met, and 3M admits no liability. The separate 2023 settlement with public water systems, worth up to $10.3 billion, is a different agreement with its own approval process and does not govern personal injury claims.

The MDL docket itself is smaller than the eligible pool. Case trackers citing the Judicial Panel on Multidistrict Litigation report 15,264 pending actions as of September 1, 2026, and 19,840 actions filed over the life of the MDL. The gap between those numbers and the 115,000 to 120,000 people 3M says are eligible is the reason CMO 39 reaches unfiled clients: most of the people the deal is designed to resolve never filed a case in Charleston.

Frequently asked questions

What is AFFF CMO 40?

AFFF CMO 40 is a case management order entered November 4, 2026 in MDL No. 2873 that stays personal injury cases against 3M and requires any plaintiff who keeps suing 3M to produce records and a sworn limitations declaration within 60 days and causation expert reports within 120 days, or face dismissal with prejudice.

What is the deadline to identify claimants for the 3M AFFF settlement?

November 13, 2026. Under CMO 39, plaintiffs' lawyers and unrepresented eligible claimants must identify every eligible person by that date, including people whose claims have not been filed.

Are AFFF lawsuits against 3M stayed?

Yes. CMO 40 stays all personal injury proceedings in the MDL against 3M. The stay does not apply to claims against any other defendant.

Can new AFFF cases still be filed against 3M?

Yes, but any case filed in or transferred to the MDL on or after November 4, 2026 is immediately subject to CMO 40's stay and its 60-day and 120-day proof requirements, and filings after November 13 reportedly require a certification of when the client was retained.

Is CMO 40 a Lone Pine order?

Functionally, yes. It requires early records and expert support for causation from every non-settling plaintiff on a fixed schedule, with dismissal with prejudice as the sanction, which is the defining feature of a Lone Pine order.

What happens to the 3M settlement if CMO 40 is lifted?

According to 3M's Master Settlement Agreement, 3M would have no obligation to fund the $680 million reserve if CMO 40 is no longer in effect or the MDL is terminated. The rest of the deal's terms, including participation thresholds and walk-away rights, are set out in the agreement filed with 3M's Form 8-K.

This article is analysis of public court orders and filings as reported. It is not legal advice.