Michael K. Murphy discusses arranger liability under CERCLA and recent cases applying the Supreme Court's 2009 decision in Burlington Northern & Santa Fe Railway Company v. United States. The document analyzes the text of CERCLA Section 107, the Burlington Northern decision which found intent is required for arranger liability, and recent cases involving various fact patterns such as transformers, broke, wastewater, and dry cleaning equipment. Recent cases have inconsistently applied Burlington Northern and examined issues like waste vs useful product, knowledge and intent, and ownership and control in determining arranger liability.
SPIRIT OF CIVIL PROCEDURE REFORMS BITESCameron Ford
1. The court deprived both parties of costs for failing to comply with the spirit of civil procedure reforms requiring pre-commencement disclosure, mediation, and other cost-saving initiatives.
2. The defendant unreasonably rejected pre-commencement settlement offers from the plaintiffs, while the plaintiffs exaggerated their damages claim and imposed unreasonable conditions on mediation.
3. The court allocated costs against each party for different periods based on their compliance with the civil procedure reforms and reasonableness of their conduct, with the aim of reflecting the spirit of reducing costs.
2016 Wisconsin Insurance Law Update of Joint Meeting of the Wisconsin Risk Ma...Quarles & Brady
This document provides a summary of key insurance law decisions from 2016 in Wisconsin. It discusses cases related to an insurer's duty to defend, the application of exclusions when determining the duty to defend. It also summarizes rulings related to integrated products and whether damage to a component part constitutes property damage. Additionally, it outlines decisions pertaining to other applicable insurance and how losses are allocated between policies with other insurance clauses. The document briefly analyzes two sexual assault cases and whether the assailants were acting within the scope of employment.
1) The Fifth Circuit Court of Appeals held that a supplier of the dry-cleaning chemical PERC, who also supplied and installed wastewater separators knowing they were not fully effective, was not liable as an "arranger" under CERCLA.
2) The court applied the standard from Burlington Northern, which requires intent to dispose of hazardous substances in order to find arranger liability, rather than just knowledge of disposal.
3) While the supplier knew some PERC would be disposed of, the court found PERC was a useful product necessary for dry cleaning operations, and the purpose of the business relationship was to operate the dry cleaner, not dispose of waste.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
SPIRIT OF CIVIL PROCEDURE REFORMS BITESCameron Ford
1. The court deprived both parties of costs for failing to comply with the spirit of civil procedure reforms requiring pre-commencement disclosure, mediation, and other cost-saving initiatives.
2. The defendant unreasonably rejected pre-commencement settlement offers from the plaintiffs, while the plaintiffs exaggerated their damages claim and imposed unreasonable conditions on mediation.
3. The court allocated costs against each party for different periods based on their compliance with the civil procedure reforms and reasonableness of their conduct, with the aim of reflecting the spirit of reducing costs.
2016 Wisconsin Insurance Law Update of Joint Meeting of the Wisconsin Risk Ma...Quarles & Brady
This document provides a summary of key insurance law decisions from 2016 in Wisconsin. It discusses cases related to an insurer's duty to defend, the application of exclusions when determining the duty to defend. It also summarizes rulings related to integrated products and whether damage to a component part constitutes property damage. Additionally, it outlines decisions pertaining to other applicable insurance and how losses are allocated between policies with other insurance clauses. The document briefly analyzes two sexual assault cases and whether the assailants were acting within the scope of employment.
1) The Fifth Circuit Court of Appeals held that a supplier of the dry-cleaning chemical PERC, who also supplied and installed wastewater separators knowing they were not fully effective, was not liable as an "arranger" under CERCLA.
2) The court applied the standard from Burlington Northern, which requires intent to dispose of hazardous substances in order to find arranger liability, rather than just knowledge of disposal.
3) While the supplier knew some PERC would be disposed of, the court found PERC was a useful product necessary for dry cleaning operations, and the purpose of the business relationship was to operate the dry cleaner, not dispose of waste.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
Este documento resume la vida y logros de Rosario Vera Peñaloza, una maestra jardinera argentina que fundó el primer jardín de infantes del país. Se destaca que dedicó su vida a la enseñanza y ocupó cargos importantes relacionados a la educación. El 28 de mayo, fecha de su fallecimiento, se conmemora el Día de la Maestra Jardinera y el Día de los Jardines de Infantes en su honor.
This certificate of participation certifies that Tennille Ramlal participated in and earned 1 continuing education credit for the program "European Focus: Meeting the Challenges of Personal Liability" held on January 29, 2016. The certificate was signed by John Byrne, the Executive Vice President, to validate Tennille Ramlal's participation in the program.
Este documento presenta un problema de resolución de ecuaciones sobre la compra de mercancía por parte de Enrique. Se indica que Enrique gastó $700 en zapatos y $300 en camisetas, y disponía de $1,250 para comprar mercancía. El objetivo es determinar cuánto dinero le sobró a Enrique para comprar el resto de la mercancía.
“Exporacquet es el único foro de exhibición, promoción y venta de los mejores productos y servicios en los deportes de raqueta del país”
Además de la impartición de clínicas y conferencias por parte de destacados exponentes nacionales en estas disciplinas y, paralelamente, llevando a cabo en el mismo lugar torneos de tenis, squash, pádel, rácquetbol, bádminton, tenis de mesa, entre otros, dotados de significativos apoyos y premios; más de 130 de las más importantes firmas y marcas relacionadas se dan cita para exponer y ofrecer lo básico, lo último, lo indispensable, ¡todo lo que se requiere en el fascinante mundo de los deportes de raqueta en México!
Este documento resume um texto argumentativo escrito por uma aluna sobre os limites entre o público e o privado no uso da internet. O resumo destaca como a aluna estruturou a introdução antecipando a tese a ser defendida e como desenvolveu o argumento abordando a evolução histórica da internet, suas vantagens e riscos quando usada de forma inadequada, concluindo que os usuários devem estar atentos aos seus direitos.
Kurek Tool is a precision machining business that prides itself on quality work, reliability, and short lead times. It has experienced steady growth, shipping over 2,800 jobs in 2011. The company invests heavily in new equipment and uses a proprietary scheduling system to achieve on-time delivery rates over 97%. Customers praise Kurek Tool for its professionalism, quality work, and partnership approach.
O documento discute como exercícios funcionais que envolvem movimentos integrados do corpo todo podem deixar corredores mais eficientes e menos propensos a lesões, ao contrário de exercícios isolados com pesos. A marca Fila lança sua linha FXT de equipamentos voltados para treinos funcionais, atendendo as necessidades de quem busca construir um corpo mais coordenado e veloz para corridas por meio desse tipo de exercício.
This document provides an overview of key concepts in service-oriented architecture (SOA) including service component architecture (SCA), business process execution language (BPEL), and SOA infrastructure components like the service bus. It discusses how SOA can help businesses by enabling loose coupling, adaptability, agility, and business-driven IT enablement through composition of reusable services.
Patient Expectations and Experiences from a Clinical Study in Psychiatric Car...Petar Zaykov
A clinical study was conducted to evaluate the feasibility of using a self-monitoring system for psychiatric care. 32 patients diagnosed with depression used a self-monitoring web application at home for 4 weeks after hospital discharge. Preliminary results from case report forms found that a majority of patients felt the system supported getting a better overview of their symptoms and 12 out of 32 patients felt it helped them detect an upcoming depression. Most patients also felt it was important to have communication and information sharing with their clinicians regarding their monitoring data.
How to Achieve Superior Performance Improvement by Integrating Constraints Ma...commonsenseLT
Dr. Bahadir Inozu, CEO, NOVACES, LLC (USA) @ TOCICO International Public Sector Effectiveness Conference 2013 Vilnius
- Focusing on everything is synonymous with not focusing on anything.
- Flow concept in public sector.
- Complementary features of Integration of best practices.
- Purpose, focus and application guidelines of Constraints Management, Lean and Six Sigma.
- Reaching operational excellence: systematic tools that turn any organisation into Best-In-Class one.
More information - http://pse.lt
Este documento presenta un poema de Fabían Guerrero Obando titulado "El radiante guiño del insomne". Incluye una breve biografía del autor y referencias bibliográficas de otros poemas y autores. El documento analiza conceptos literarios como el amor, la belleza, la claridad y el clímax a través de citas y ejemplos de obras poéticas.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines the criteria for implying terms based on custom or the nature of the contract, including that implied terms must be reasonable, equitable, necessary for business efficacy, and not contradict express terms.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines factors courts consider when deciding whether to imply terms into a contract to give it business efficacy or based on custom and past dealings between the parties. An objective test of intention is established to determine the meaning of contract terms based on commercial reasonableness rather than subjective beliefs.
This document discusses the use of historical evidence in determining the reasonableness of oil and gas operations in light of contractual obligations and legislation. It notes a past court case that awarded large damages for environmental harm and the subsequent legislation that was passed. The document also discusses challenges in interpreting contracts and applying changing laws, and examines what standards and knowledge were considered reasonable based on the time period in question. Expert historians may be able to provide context on scientific and industry standards from the relevant time to help determine historical reasonableness.
The document summarizes recent court decisions impacting oil and gas law in Pennsylvania. Key cases discussed include:
- Harrison v. Cabot Oil & Gas, where the Pennsylvania Supreme Court ruled that merely filing a lawsuit challenging a lease's validity does not constitute repudiation and does not entitle the lessee to an equitable extension of the primary lease term.
- Nolt v. TS Calkins & Associates, where the Superior Court affirmed that only the lessor's signature is required for an oil and gas lease to be valid, and the lessee exercised proper due diligence in searching records.
- Suessenbach Family Ltd. Partnership v. Access Midstream Partners, where the court
An ebook published by the law firm Porter Wright Morris & Arthur LLP. Contains several blog posts they've published on the topic of oil and gas lease issues for landowners. Our favorite article: My Sister is a Fractivist and Won’t Sign an Oil and Gas Lease. What Can We Do?
Covenants Not to Sue in the Wake of Already LLC v. NikeMichael Cicero
Discusses the January 2013 Supreme Court decision bearing on the issue of when a covenant not to sue can nullify a claim for a declaratory judgment of invalidity. This was a TM case, but its principles are expected to apply to patent cases, as well.
July’s practice group lunch included an overview of recent decisions, the Court of Appeals for the Federal Circuit, and the United States Supreme Court. The Supreme Court addressed a number of patent law topics this year, including the standard of review for patent claim construction (Teva Pharmaceuticals v. Sandoz), royalties on expired patents (Kimble v. Marvel Enterprises), and defenses to claims of induced infringement (Commil v. Cisco). The initial wave of appeals in post-issuance proceedings provided by the America Invents Act are now being decided by the Federal Circuit. These include cases involving whether the decision to institute is reviewable (In re Cuozzo Speed Technologies) and discussion of the claim construction standards that apply (Microsoft v. Proxyconn). The relationship between administrative challenges and related litigation is also an evolving area (ePlus v. Lawson Software).
Este documento resume la vida y logros de Rosario Vera Peñaloza, una maestra jardinera argentina que fundó el primer jardín de infantes del país. Se destaca que dedicó su vida a la enseñanza y ocupó cargos importantes relacionados a la educación. El 28 de mayo, fecha de su fallecimiento, se conmemora el Día de la Maestra Jardinera y el Día de los Jardines de Infantes en su honor.
This certificate of participation certifies that Tennille Ramlal participated in and earned 1 continuing education credit for the program "European Focus: Meeting the Challenges of Personal Liability" held on January 29, 2016. The certificate was signed by John Byrne, the Executive Vice President, to validate Tennille Ramlal's participation in the program.
Este documento presenta un problema de resolución de ecuaciones sobre la compra de mercancía por parte de Enrique. Se indica que Enrique gastó $700 en zapatos y $300 en camisetas, y disponía de $1,250 para comprar mercancía. El objetivo es determinar cuánto dinero le sobró a Enrique para comprar el resto de la mercancía.
“Exporacquet es el único foro de exhibición, promoción y venta de los mejores productos y servicios en los deportes de raqueta del país”
Además de la impartición de clínicas y conferencias por parte de destacados exponentes nacionales en estas disciplinas y, paralelamente, llevando a cabo en el mismo lugar torneos de tenis, squash, pádel, rácquetbol, bádminton, tenis de mesa, entre otros, dotados de significativos apoyos y premios; más de 130 de las más importantes firmas y marcas relacionadas se dan cita para exponer y ofrecer lo básico, lo último, lo indispensable, ¡todo lo que se requiere en el fascinante mundo de los deportes de raqueta en México!
Este documento resume um texto argumentativo escrito por uma aluna sobre os limites entre o público e o privado no uso da internet. O resumo destaca como a aluna estruturou a introdução antecipando a tese a ser defendida e como desenvolveu o argumento abordando a evolução histórica da internet, suas vantagens e riscos quando usada de forma inadequada, concluindo que os usuários devem estar atentos aos seus direitos.
Kurek Tool is a precision machining business that prides itself on quality work, reliability, and short lead times. It has experienced steady growth, shipping over 2,800 jobs in 2011. The company invests heavily in new equipment and uses a proprietary scheduling system to achieve on-time delivery rates over 97%. Customers praise Kurek Tool for its professionalism, quality work, and partnership approach.
O documento discute como exercícios funcionais que envolvem movimentos integrados do corpo todo podem deixar corredores mais eficientes e menos propensos a lesões, ao contrário de exercícios isolados com pesos. A marca Fila lança sua linha FXT de equipamentos voltados para treinos funcionais, atendendo as necessidades de quem busca construir um corpo mais coordenado e veloz para corridas por meio desse tipo de exercício.
This document provides an overview of key concepts in service-oriented architecture (SOA) including service component architecture (SCA), business process execution language (BPEL), and SOA infrastructure components like the service bus. It discusses how SOA can help businesses by enabling loose coupling, adaptability, agility, and business-driven IT enablement through composition of reusable services.
Patient Expectations and Experiences from a Clinical Study in Psychiatric Car...Petar Zaykov
A clinical study was conducted to evaluate the feasibility of using a self-monitoring system for psychiatric care. 32 patients diagnosed with depression used a self-monitoring web application at home for 4 weeks after hospital discharge. Preliminary results from case report forms found that a majority of patients felt the system supported getting a better overview of their symptoms and 12 out of 32 patients felt it helped them detect an upcoming depression. Most patients also felt it was important to have communication and information sharing with their clinicians regarding their monitoring data.
How to Achieve Superior Performance Improvement by Integrating Constraints Ma...commonsenseLT
Dr. Bahadir Inozu, CEO, NOVACES, LLC (USA) @ TOCICO International Public Sector Effectiveness Conference 2013 Vilnius
- Focusing on everything is synonymous with not focusing on anything.
- Flow concept in public sector.
- Complementary features of Integration of best practices.
- Purpose, focus and application guidelines of Constraints Management, Lean and Six Sigma.
- Reaching operational excellence: systematic tools that turn any organisation into Best-In-Class one.
More information - http://pse.lt
Este documento presenta un poema de Fabían Guerrero Obando titulado "El radiante guiño del insomne". Incluye una breve biografía del autor y referencias bibliográficas de otros poemas y autores. El documento analiza conceptos literarios como el amor, la belleza, la claridad y el clímax a través de citas y ejemplos de obras poéticas.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines the criteria for implying terms based on custom or the nature of the contract, including that implied terms must be reasonable, equitable, necessary for business efficacy, and not contradict express terms.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines factors courts consider when deciding whether to imply terms into a contract to give it business efficacy or based on custom and past dealings between the parties. An objective test of intention is established to determine the meaning of contract terms based on commercial reasonableness rather than subjective beliefs.
This document discusses the use of historical evidence in determining the reasonableness of oil and gas operations in light of contractual obligations and legislation. It notes a past court case that awarded large damages for environmental harm and the subsequent legislation that was passed. The document also discusses challenges in interpreting contracts and applying changing laws, and examines what standards and knowledge were considered reasonable based on the time period in question. Expert historians may be able to provide context on scientific and industry standards from the relevant time to help determine historical reasonableness.
The document summarizes recent court decisions impacting oil and gas law in Pennsylvania. Key cases discussed include:
- Harrison v. Cabot Oil & Gas, where the Pennsylvania Supreme Court ruled that merely filing a lawsuit challenging a lease's validity does not constitute repudiation and does not entitle the lessee to an equitable extension of the primary lease term.
- Nolt v. TS Calkins & Associates, where the Superior Court affirmed that only the lessor's signature is required for an oil and gas lease to be valid, and the lessee exercised proper due diligence in searching records.
- Suessenbach Family Ltd. Partnership v. Access Midstream Partners, where the court
An ebook published by the law firm Porter Wright Morris & Arthur LLP. Contains several blog posts they've published on the topic of oil and gas lease issues for landowners. Our favorite article: My Sister is a Fractivist and Won’t Sign an Oil and Gas Lease. What Can We Do?
Covenants Not to Sue in the Wake of Already LLC v. NikeMichael Cicero
Discusses the January 2013 Supreme Court decision bearing on the issue of when a covenant not to sue can nullify a claim for a declaratory judgment of invalidity. This was a TM case, but its principles are expected to apply to patent cases, as well.
July’s practice group lunch included an overview of recent decisions, the Court of Appeals for the Federal Circuit, and the United States Supreme Court. The Supreme Court addressed a number of patent law topics this year, including the standard of review for patent claim construction (Teva Pharmaceuticals v. Sandoz), royalties on expired patents (Kimble v. Marvel Enterprises), and defenses to claims of induced infringement (Commil v. Cisco). The initial wave of appeals in post-issuance proceedings provided by the America Invents Act are now being decided by the Federal Circuit. These include cases involving whether the decision to institute is reviewable (In re Cuozzo Speed Technologies) and discussion of the claim construction standards that apply (Microsoft v. Proxyconn). The relationship between administrative challenges and related litigation is also an evolving area (ePlus v. Lawson Software).
Lancaster Silo v. Northern Propane Gas Co. Case Trail with Lewis BarbeLewis Barbe
Back in 70s, Lancaster Silo & Block Company propane fire tragedy trial had been in constant news for a considerable amount of time. Throughout the trail, public opinion kept shifting to-and-fro between ‘manufacturer’s fault’ and ‘poor handling’. Lewis Barbe here shares the complete history of the incidence and the trial.
This document summarizes key concepts relating to real estate bankruptcy from a law school course, including:
1) Section 363 of the Bankruptcy Code allows a debtor to sell property, including free and clear of liens, with court approval after notice and hearing.
2) Secured creditors can request "adequate protection" of their interest for any sale.
3) Secured creditors have the right to "credit bid" their claim at a 363 sale, using the debt owed as payment, unless the court orders otherwise.
4) A sale approved under 363(m) generally cannot be reversed on appeal if the purchaser acted in good faith, protecting the finality of approved sales.
Presentation on "Respinding to the Abuse of Motions in Limine", made at the ALI-CLE Annual Eminent Domain and Land Valuation Conference in January 2020 in Nashville, Tennessee
This document discusses proper valuation and exemption of property in consumer bankruptcy cases. It notes that accurately disclosing and claiming exemptions for assets like a home or car is important to allow the debtor to keep those assets after bankruptcy. The document provides guidance on properly valuing and exempting different types of assets, like real property, vehicles, and legal claims or lawsuits. It examines court rulings on issues like how appreciation in an asset's value after filing affects exemptions, and the level of detail and specificity required to disclose potential legal claims. The document emphasizes that full disclosure, with clear explanations of valuations, helps prevent issues with judicial estoppel or objections to discharge down the road.
Overview of current trends in oil and gas royalty litigation. Covers post-production cost deductions, royalty calculation, lease royalty clauses, and some applicable statutory provisions.
Oil and Gas Case Law Update: Recent Decisions Impacting Oil and Gas PracticeLisa McManus
Pennsylvania oil and gas jurisprudence continues to evolve. On April 2, 2015, PBI's panel of energy law practitioners provided a webinar update on the latest appellate decisions that are shaping energy law practice. Included is an overview of Sabella v. Appalachian Dev. Corp.; Citizens for Pennsylvania’s Future v. Ultra Resources, Inc.; Sisson v. Stanley; Harrison v. Cabot Oil & Gas; Pennsylvania Environmental Defense Foundation v. Commonwealth.
Recent Rulings and Trends in Decision Making Impacting AllocationRachel Hamilton
ACI is pleased to introduce its Insurance Allocation Summit - the only Allocation Conference that goes the extra mile and brings you the highest level judicial insights and maximum networking opportunities with in-house industry experts.
This summarizes a document reviewing environmental law cases from 2009-2010. It discusses three cases:
1) Fresh Meadow Food Serv., LLC v. RB 175Corp. upheld a RICO claim against a defendant who concealed underground storage tanks and contaminated soil when selling a property.
2) Wickens v. Shell Oil Co. addressed recoverable attorney fees under Indiana's Underground Storage Tank Act.
3) Evansville Greenway & Remediation Trust v. S. Ind. Gas & Elec. Co. concerned the common interest privilege and apportionment of liability under CERCLA. The court applied the privilege to communications between parties working to remediate contaminated sites. It also found CERCLA
Order granting the Vietnamese corporation VNG's motion to dismiss for lack of specific jurisdiction in Lang Van v. VNG Corp, C.D. Cal., Case No. SACV 14-0100 AG
Mid-Year Trademark Case Law Update and Discussion on Practice Approach in Chi...Parsons Behle & Latimer
The document summarizes recent trademark cases from 2022, including two cases from the Tenth Circuit Court of Appeals. In Bimbo Bakeries USA, Inc. v. Sycamore, the court found that Grandma Sycamore's trade dress for its bread packaging was generic and therefore unprotectable. In Trial Laws. Coll. v. Gerry Spence Trial Laws. Coll. at Thunderhead Ranch, the court upheld a preliminary injunction against the defendant for infringing the plaintiff's trademarks but clarified that the Trademark Modernization Act's presumption of irreparable harm did not apply in this case. The document also summarizes two cases from other circuit courts regarding likelihood of confusion and the Madrid Protocol.
Similar to 2015 ArrangerSlides (1385098_1).PPTX (20)
Mid-Year Trademark Case Law Update and Discussion on Practice Approach in Chi...
2015 ArrangerSlides (1385098_1).PPTX
1. Michael K. Murphy
Gibson Dunn & Crutcher LLP
Suzanne Ilene Schiller
Manko, Gold, Katcher & Fox, LLP
Arranger
Liability
Under
CERCLA
January 21, 2015
2. Topics
• The text of Section 107 of CERCLA, 42 U.S.C §
9607
• The Supreme Court’s decision in Burlington
Northern & Santa Fe Railway Company v.
United States, 556 U.S. 599 (2009)
• Recent cases applying Burlington Northern
4. Liability for Response Costs Under CERCLA
• CERCLA § 107, 42 U.S.C § 9607, permits
recovery of response costs from potentially
responsible parties (PRPs) for cleanup of
hazardous substances
▫ Four categories of PRPs:
Current owner/operator
Past owner/operator
Arranger
Transporter
5. Defining “Arranger:” Starting with the Text
• 42 U.S.C. § 9607(a)(3):
“[A]ny person who by contract, agreement, or
otherwise arranged for disposal or treatment, or
arranged with a transporter for transport for disposal
or treatment, of hazardous substances owned or
possessed by such person, by any other party or
entity, at any facility or incineration vessel owned or
operated by another party or entity and containing
such hazardous substances . . . .”
6. Taking a Closer Look at Arranger Liability
• Purpose: close a loophole
▫ Prevent entity from avoiding CERCLA liability by
contracting with another party to arrange for the
disposal of the entity’s hazardous waste
• “Arranged for” not defined in statute
• Courts previously implemented varying standards of
liability:
▫ Specific intent that waste will be disposed of
▫ Mere knowledge that waste will be disposed of
Inferring intent where PRP knew or should have known
about hazardous material releases
▫ Strict liability
8. “Arranger” Interpreted: Burlington Northern
• Burlington Northern & Santa Fe Railway Company
v. United States, 556 U.S. 599 (2009)
▫ Issue: Is intent to dispose of hazardous materials
required for arranger liability or is knowledge
sufficient?
• Facts:
▫ Shell Oil Company sold the pesticide D-D to B&B, a
chemical distributor
▫ During transfer from tanker trucks to B&B’s bulk
storage containers, spills of D-D occurred
Shell had actual knowledge of some degree of spillage
▫ Shell identified as PRP under arranger liability theory
9. Burlington Northern: Procedural History
• Ninth Circuit, 520 F.3d 918 (2008):
▫ Shell not “traditional” arranger – had not directly
contracted to dispose of hazardous material
▫ Shell still liable under “broader category of
arranger liability” because disposal of D-D was
foreseeable byproduct of transaction with B&B
• Supreme Court, 556 U.S. 599 (2009):
▫ Reversed Ninth Circuit decision
▫ Shell not liable as arranger because it had no
intent to dispose of D-D
10. A Textual Analysis
• The Court began with the language of the statute:
▫ “It is plain from the language of the statute that
CERCLA liability would attach under § 9607(a)(3) if an
entity were to enter into a transaction for the sole
purpose of discarding a used and no longer useful
hazardous substance.”
▫ “It is similarly clear that an entity could not be held
liable as an arranger merely for selling a new and
useful product if the purchaser of that product later,
and unbeknownst to the seller, disposed of the product
in a way that led to contamination.”
• But what about those cases in between?
11. Crafting a Rule for the Cases In Between
• Giving “arrange” its ordinary meaning:
▫ “In common parlance, the word ‘arrange’ implies action directed
to a specific purpose.”
▫ “Consequently, under the plain language of the statute, an entity
may qualify as an arranger . . . when it takes intentional steps to
dispose of a hazardous substance.”
• And limiting the inference of intent:
▫ “While it is true that in some instances an entity’s knowledge that
its product will be leaked, spilled, dumped, or otherwise discarded
may provide evidence of the entity’s intent to dispose of its
hazardous wastes, knowledge alone is insufficient to prove
that an entity ‘planned for’ the disposal.”
12. The Court’s Holding: Shell Not an Arranger
▫ “In order to qualify as an arranger, Shell must
have entered into the sale of D-D with the
intention that at least a portion of the product be
disposed of during the transfer process . . . .”
▫ “Shell’s mere knowledge that spills and leaks
continued to occur is insufficient grounds for
concluding that Shell ‘arranged for’ the disposal of
D-D within the meaning of § 9607(a)(3).”
13. The Upshot of Burlington Northern
• Some indicia of intent to dispose of at least a
portion of a hazardous substance is required
▫ Especially for unused, useful products
• Mere knowledge of facts leading to disposal is
insufficient
• Courts left to examine facts of each case to
determine intent of the parties to the transaction
14. Inconsistent Decisions
• Compare American Int’l Specialty Lines Ins. Co.
v. United States, 2010 WL 2635768 (C.D. Ca.
2010) (finding arranger) with Lockheed Martin v.
United States, 2014 WL 1647147 (D.D.C.), 79
ERC 1311 (no arranger liability).
▫ Both cases addressed solid rocket manufacturers
working for the United States and the disposal of
government-owned materials in burn pits under
government contracts in accordance with
government manuals
15. Degree of “Control” under BNSF
• ASLIC: United States knew that hazardous
substances would be removed from motors and
discarded; mandated the use of certain materials;
knew the manufacturing process would generate
waste; and had the right to supervise disposal
• Lockheed Martin: Those facts are not sufficient:
“Instead, arranger liability attaches only if the
government exercised direction and control over
waste disposal activities related to its contracts with
LPC.”
17. Key Issues
• Waste vs. Useful Product
▫ Is the product the hazardous substance, or is the hazardous
substance merely contained on/within the product?
▫ Is there an established market for the product?
▫ What is the value of the product to the purchaser?
▫ What is the value of the product to the seller?
▫ Has the seller taken steps to minimize potential disposal of the
hazardous substance by the buyer?
18. Key Issues (cont.)
• Knowledge and Intent
▫ Is there knowledge of the hazardous nature of product?
▫ Is there an intent to dispose of the product? Is there an intent to dispose
of the hazardous substance?
• Ownership and Control
▫ Who owns the product at the time of the disposal of the hazardous
substance?
▫ Who controls the method and manner of disposal?
20. Transformers
• Schiavone v. Northeast Utilities Service Co.,
2011 WL 1106228 (D. Conn. Mar. 22, 2011)
• Carolina Light & Power Co. v. Alcan Aluminum Corp.,
921 F. Supp.2d 488 (E.D.N.C. Feb. 1, 2013)
• Wilson Road Development Corp. v. Fronabarger Concreters, Inc.,
971 F. Supp. 2d 896 (E.D. Mo. Sept. 11, 2013)
21. Schiavone v. Northeast Utilities Service Co.,
2011 WL 1106228 (D. Conn. Mar. 22, 2011)
Facts: From 1971 – 1978, Defendants sold used transformers to Kasden for scrap metal. Beginning in
1973, Defendants drained the transformers of PCB-containing oil prior to pick-up by Kasden.
How Raised: Summary Judgment
Holding: Defendants were not arrangers
Reasoning: Defendants intended to dispose of the metal transformers, not the oil inside. This level of
intent was not enough to impose arranger liability, even if Defendants knew that oil was in the
transformers and would be discarded by Kasden.
21
22. Carolina Light & Power Co. v. Alcan Aluminum Corp.,
921 F. Supp.2d 488 (E.D.N.C. Feb. 1, 2013)
Facts: Defendants auctioned used transformers which Ward purchased to refurbish and resell.
Defendants usually removed oil from the transformers before sale.
How Raised: Summary Judgment
Holding: Defendants were not arrangers
Reasoning: Used transformers were sold for high value, and resold at a profit, and therefore were
useful. The pre-sale drainage of the transformers was evidence of a lack of intent to dispose of
hazardous oils. The defendants’ mere knowledge of potential spills or leaks was not sufficient to
impose arranger liability.
22
23. Wilson Road Development Corp. v. Fronabarger Concreters, Inc.,
971 F. Supp. 2d 896 (E.D. Mo. Sept. 11, 2013)
Facts: From 1954 – 1988, MEW (a) repaired transformers for Defendants and (b)
purchased transformers and then sold or discarded them.
How Raised: Summary Judgment
Holding: Disputed issues of fact regarding intent precluded summary judgment
Reasoning: As to the repairs, the defendants retained title and knew that oil would
be drained during the process and so intended that the oil would be disposed.
Because there was no sale of the transformers, the useful product defense would be
unavailing. As to the sold transformers, there was insufficient evidence that the
transformers were valuable and in good condition at the time of sale and some
evidence that they were leaking oil and only valuable as scrap metal, for which
credit memos and not cash were paid. The mere fact that some were resold does
not establish that they were useful products.
23
24. Broke
• NCR Corp. v. George A. Whiting Paper, Co.,
768 F.3d 682 (7th Cir. Feb. 28, 2014)
• Georgia-Pacific Consumer Prods. LP v. NCR Corp.,
980 F. Supp. 2d 821(W.D. Mich. Sept. 26, 2013)
25. NCR Corp. v. George A. Whiting Paper, Co.,
768 F.3d 682 (7th Cir. Feb. 28, 2014)
Facts: NCR manufactured PCB-containing emulsion which it sold to Appelton
Coated Paper Company (“ACPC”) for use in the production of carbon copy paper.
ACPC sold “broke,” a fibrous by-product of the manufacturing process, to recyclers.
In the recycling process, the PCBs from the emulsion entered the Fox River.
How Raised: Trial
Holding: ACPC and NCR were not arrangers
Reasoning: ACPC’s knowledge that chemicals from processing broke would be
treated as wastewater and end up in the river was insufficient for arranger liability
as there was no intent for this to occur; at most, it was indifference. There was also
insufficient evidence of an intent to dispose of the emulsion because, while broke
was waste to ACPC, it was useful and valuable to the recyclers as there was a well-
established market for the broke. Finally, there was no evidence that ACPC knew
the broke contained hazardous substances. Finally, NCR was not liable as an
arranger because sending the emulsion to ACPC was not disposal, but rather sale of
a useful product.
25
26. Georgia-Pacific Consumer Prods., LP v. NCR Corp.,
980 F. Supp. 2d 821(W.D. Mich. Sept. 26, 2013)
Facts: NCR manufactured PCB-containing emulsion for use in production of carbon copy paper
which NCR manufactured. NCR sold the broke to recyclers. In the recycling process, the PCBs from
the emulsion contaminated the Kalamazoo River.
How Raised: Trial
Holding: NCR was an arranger
Reasoning: NCR learned by the late 1960s that as part of the normal recycling process, hazardous
PCBs were being generated as waste. NCR had internal meetings to seek other methods for disposing
of the PCB-contaminated broke or controlling its disposal; when that could not be accomplished,
NCR continued to sell it to the recyclers. Further, had recyclers known of the dangers, they would not
have purchased it and thus it was not a “useful product.”
26
27. Wastewater
▫ United States v. NCR Corp.,
2012 WL 5893489 (E.D. Wisc. Nov. 23, 2012)
▫ United States v. Washington State Dept. of Transp.
716 F. Supp.2d 1009 (W.D. Wash. June 7, 2010)
▫ United States v. Washington State Dept. of Transp.
2010 WL 5071277 (W.D. Wash. Dec. 7, 2010)
▫ Gregory Village Partners, LP v. Chevron USA, Inc.,
2012 WL 832879 (N.D. Ca. Mar. 12, 2012)
28. United States v. NCR Corp.,
2012 WL 5893489 (E.D. Wisc. Nov. 23, 2012)
Facts: CBC and WTM used recycled broke and discharged the contaminated wastewater into the Fox
River.
How Raised: Summary Judgment
Holding: CBC and WTM were arrangers
Reasoning: CBC and WTM intended to dispose of the wastewater, which had no other purpose.
Thus, “knowledge about the specific nature of the matter disposed of is far less relevant.”
28
29. United States v. Washington State Dept. of Transp.
716 F. Supp.2d 1009 (W.D. Wash. June 7, 2010)
Facts: WSDOT owned highways from which run-off was directed into the Thea Foss Waterway. US
alleged that the run-off was contaminated with hazardous substances and that WSDOT was liable as
an arranger for the disposal of those substances.
How Raised: Summary Judgment
Holding: WSDOT was an arranger
Reasoning: WSDOT knew that the run-off contained hazardous substances and the drainage system
was designed to discharge run-off into the Waterway. Neither creation or ownership of the
hazardous substances was a requirement for arranger liability.
29
30. United States v. Washington State Dept. of Transp.
2010 WL 5071277 (W.D. Wash. Dec. 7, 2010)
Facts: WSDOT alleged that the Army Corps of Engineers’ permitting activities in connection with
dredging the Waterway and directing the disposal of the dredged materials caused hazardous
substances to enter the Waterday.
How Raised: Summary Judgment
Holding: USACE was not an arranger
Reasoning: USACE did not exercise “actual control” of the hazardous substances, which it never
owned or possessed. Further, the permit conditions were aimed at protecting human health and the
environment and thus negate any inference that USACE intended to arrange for the disposal of
hazardous substances into the Waterway.
30
31. Gregory Village Partners, LP v. Chevron USA, Inc.,
2012 WL 832879 (N.D. Ca. Mar. 12, 2012)
Facts: Chevron owned property which housed a gas station and dry cleaner and was serviced by a
sewer line owned by the Contra Costa County Sanitary District that ran past Gregory Village’s
property, which was contaminated with PCE, TCE and petroleum hydrocarbons. Gregory Village
alleges that the contamination arose from, among other sources, leaks in the sewer system.
How Raised: Motion to Dismiss
Holding: District was not an arranger
Reasoning: There was no allegation that the District intended for hazardous substances to be
disposed into the sewer system.
31
32. Dry Cleaning Equipment
▫ Hinds Investments, L.P. v. Angioli,
654 F.3d 846 (9th Cir. August 1, 2011)
▫ Team Enterprises, LLC v. Western Investment Real Estate Trust,
647 F.3d 901 (9th Cir. July 26, 2011)
▫ Heim v. Estate of Heim,
2014 U.S. Dist. LEXIS 46297 (N.D. Cal. April 2, 2014)
▫ Vine Street LLC v. Borg Warner Corp.,
_____ F.3d ____ (5th Cir. January 14, 2015)
33. Hinds Investments, L.P. v. Angioli,
654 F.3d 846 (9th Cir. August 1, 2011)
Facts: Defendants manufactured dry cleaning equipment which Team used at its dry cleaning
premises. The equipment utilized PCE and defendants included instructions for the handling and
disposal of wastewater from the machines into an open drain.
How Raised: Motion to Dismiss
Holding: Defendants were not arrangers
Reasoning: Ownership, possession and control of the hazardous substance are the most critical
factors for determining liability, and defendants had none of that with respect to the PCE and
wastewater. Defendants did not install the equipment or connect it to drains. Defendant’s knowledge
of the likely disposal was not sufficient under BNSF. Finally, the machines were useful products
when sold and, further, were not themselves hazardous substances.
33
34. Team Enterprises, LLC v. Western Investment Real Estate Trust
647 F.3d 901 (9th Cir. July 26, 2011)
Facts: Appeal of summary judgment granted to other manufacturer defendants in the Hinds case.
How Raised: Appeal after summary judgment
Holding: Affirmed that manufacturers were not arrangers
Reasoning: There was no viable evidence that defendants intended for the equipment to be used for
disposal of hazardous substances. At best, defendants were “indifferent” to the manner of disposal of
PCE-containing wastewater. Indeed, the fact that the machine recaptured PCE negated such intent.
Intent to dispose cannot be inferred from a failure to warn of the risk of contamination. In addition,
there was no ownership or possession of the PCE nor duty to dispose of the wastewater or PCE.
Instructions, in addition to discussing wastewater, also provided guidance as to how to prevent the
PCE from going down the drain.
34
35. Heim v. Estate of Heim,
2014 U.S. Dist. LEXIS 46297 (N.D. Cal. April 2, 2014)
Facts: Heim used ALMI’s Ajax Vapor Adsorption Unit to collect PCE. Heim tried to
distinguish the case from Hinds and Team Enterprises by arguing ALMI directed users, through
the Ajax manual, to place contaminated wastewater into the drain without alternative.
How Raised: Motion for Summary Judgment
Holding: ALMI was not an arranger because it did not have intent to dispose of PCE, nor
control over Heim’s operations.
Reasoning: Court found that the Ajax manual actually instructed users to connect the machine
to a drain or trough, thereby providing alternative disposal methods and leaving the operator of
the machine with a level of control over the hazardous substance. Furthermore, the court noted
that the Ajax manual instructed users to comply with all state and local laws concerning waste
disposal to streams, municipal treatment plans, or the ground. Taking all the evidence together,
the ALMI was at most indifferent to the possibility of PCE-laden wastewater being emitted and,
therefore, lacked the requisite intent.
35
36. Vine Street LLC v. Borg Warner Corp.,
_________ F.3d _________ (5th Cir. Jan. 14, 2015)
Facts: Borg Warner Corp.’s predecessor, Norge, furnished dry cleaning equipment, design assistance
and an initial supply of PERC to College Cleaners, which had been located on property owned by Vine
Street.
How Raised: Appeal following bench trial
Holding: Trial court held that Norge was an arranger; Circuit Court overturned
Reasoning: The evidence established that both Norge and College Cleaners treated the PERC as a
valuable commodity and any discharge, even through the sewer, was unintentional. Court was
“unmoved” by the fact that Norge actually installed the equipment and connected it to the sewer line
given the facts that negated intent.
36
37. Other Wastes, Scrap and Abandoned
Products
• United States v. General Electric Co.,
670 F.3d 377 (1st Cir. Feb. 29, 2012)
• United States v. Dico, Inc.,
892 F. Supp.2d 1138 (S.D. Iowa Sept. 24, 2012)
• W.D. Grace & Co. – Conn v. Zotos Int’l, Inc.,
2013 WL 5488939 (W.D.N.Y. Sept. 30, 2013)
• United States v. Federal Resources Corp.,
2014 U.S. Dist. LEXIS 97511 (D. Id. July 14, 2014)
38. United States v. General Electric Co.,
670 F.3d 377 (1st Cir. 2012)
Facts: GE manufactured electrical equipment containing Pyranol, an insulator
which it manufactured from PCBs. When the manufactured Pyranol was below
spec, it was considered scrap and placed into drums. From 1953 – 1967, the drums
were first given, then sold to a chemical scrapper, Fletcher, who used the off-spec
Pyranol as a paint additive.
How Raised: Appeal after Trial
Holding: GE was arranger
Reasoning: GE considered the product to be a waste, and any income from the sale
was subordinate and incidental to disposing of the Pyranol. Among other things,
this was evidenced by the fact that other methods of disposal were used (such as
sending to a landfill). In addition, except for Fletcher, there was no market for the
product. There was no quality control of the Pyranol sent to Fletcher, who
complained that much of it could not be used, and there was evidence that in the
final year, GE was merely dumping off-spec Pyranol on Fletcher and would “credit”
him for the unusable Pyranol rather than replace it.
38
39. United States v. Dico, Inc.,
892 F. Supp.2d 1138 (S.D. Iowa Sept. 24, 2012)
Facts: Dico sold to SIM certain buildings which SIM intended to demolish and remove steel and
possibly other useable materials. SIM moved the steel beams, which were contaminated with PCBs,
to its facility and disposed of everything else from the buildings.
How Raised: Summary Judgment
Holding: Dico was an arranger
Reasoning: Dico was aware of past PCB contamination of the buildings, which has been at least
partially remediated. Purpose of the transaction was to dispose of the buildings, and Dico knew that
disposal of PCB insulation would result. There was no market for the buildings and they were not
otherwise useful. From this, court found that intent was to dispose of PCBs. In reliance on pre-BNSF
case, Also held that where reclamation is the sole useful purpose and further processing is required
before reuse, the useful product doctrine is inapplicable.
39
40. W.D. Grace & Co. – Conn v. Zotos Int’l, Inc.,
2013 WL 5488939 (W.D.N.Y. Sept. 30, 2013)
Facts: ECI manufactured and packaged hair care products that Zotos sold for the
retail market. ECI also warehoused these products for Zotos. Under the relevant
agreements, Zotos and/or ECI determined whether returns from distributors should
be reconditioned/repackaged or be destroyed as unusable. ECI determined how
and where to dispose of unsalvageable products.
How Raised: Trial
Holding: Zotos was an arranger
Reasoning: Zotos had title and ownership of products returned to ECI by
distributors and controlled the decision as to whether to salvage or dispose of them.
Zotos also determined what products in ECI’s inventory were obsolete and should
be disposed. Although Zotos characterized its actions as abandonment of products,
Zotos intended that ECI would dispose of these products and knew how the disposal
was being carried out. With regard to returns, Zotos paid for disposal services.
That Zotos did not physically dispose of the product or direct where and how it
should be disposed was not a bar to arranger liability.
40
41. United States v. Federal Resources Corp.,
2014 U.S. Dist. LEXIS 97511 (D. Id. July 14, 2014)
Facts: FRC engaged in mining work at the Conjecture Mine site. F&M also engaged in mining
at the Conjecture site under a Federal mining contract, which gave the U.S. the right of entry and
inspection and provided that the U.S. could consult with and advise F&M on all phases of the
work. At one point, the U.S. advised F&M to change its digging direction, a direction F&M
declined to follow. F&M constructed a flotation mill at the Conjecture site (possibly upon
instruction from the Government), which produced waste tailings that were dumped in on-site
ponds. The U.S. was aware of the waste tailings. FRC brought a counter claim against the U.S.
alleging that the Government was partially responsible for cleanup costs as an arranger.
How Raised: Motion for Summary Judgment on Defendant’s Counterclaim
Holding: The United States was not an arranger.
Reasoning: The court found that the U.S. did not take intentional steps to dispose of hazardous
waste tailings from the mining efforts for the following reasons: (1) the U.S. did not have actual
control over mining operations and the fact that the U.S. suggested that F&M change its drilling
direction was not proof otherwise; (2) the mere fact that the Government possibly encouraged
the construction of the flotation mill is not evidence that the Government intended hazardous
substances to be dumped on the site; and (3) mere knowledge that hazardous mill tailings were
being discarded at the site was not enough to show that the U.S. was an arranger.
41
42. Questions?
Michael K. Murphy Suzanne Ilene Schiller
Gibson, Dunn & Crutcher LLP
MMurphy@gibsondunn.com
202-955-8238
www.gibsondunn.com
Manko, Gold, Katcher & Fox, LLP
SSchiller@mankogold.com
484-430-2354
www.mankogold.com