Civil Remedies Toxic Torts

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Proposed Amendments Regarding Proposition 65 Settlements

This is Archer Norris attorney Peter W. McGaw’s comment letter to the Attorney General on the proposed amendments to the Title 11, Division 4 regulations regarding settlement of Proposition 65 cases. Please see full...more

California Attorney General Targets Prop. 65 Plaintiffs’ Settlement Terms

The California Office of the Attorney General is seeking to limit certain payment provisions common in Prop. 65 plaintiffs’ settlements with defendants. The proposed rulemaking, published September 25, 2015, would limit the...more

Court Of Chancery Grants Stay Of Derivative Case

A stay of derivative litigation is hard to get even when there is another case pending elsewhere. But when, as here, the other litigation may expose the company to significant liability, a stay of the derivative action...more

It’s All Good – New Jersey Judge Approves NJDEP’s Controversial $225 Million Settlement with ExxonMobil

After months of controversy, public comments, response to public comments, motions to intervene, amicus briefs, oral arguments, editorials and a sustained flurry of activity in social media, the decision we have been waiting...more

Ninth Circuit Reverses Dismissal of Damages Claim in San Diego Contamination Suit

In a decision that may reopen the door to significant damages in a California soil and groundwater contamination suit, the Ninth Circuit reversed a trial court’s dismissal of the City of San Diego’s restoration and real...more

Foes of the NJDEP $225 Million Settlement with Exxon Mobil Must File “Friend of the Court” Briefs Today

After denying their motions to intervene last week (see our coverage here), Judge Hogan issued a Scheduling Order that sets today as the deadline for the eight environmental organizations and State Senator Lesniak (D-Union)...more

South Carolina Court Limits CERCLA Remedies

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allows the federal government to collect funds from or to order a “potentially responsible party” (“PRP”) to clean up contaminated sites. 42...more

B.C. Court Awards Remediation Costs Before They Are Incurred

The recent decision of the British Columbia Supreme Court (Court) in Dolinsky v. Wingfield may allow those who have to clean up contamination on their lands to obtain those costs from the responsible parties before actually...more

A $6 Million Reminder to Observe Corporate Formalities: Environmental Prosecutors Pierce Another Corporate Veil with Ohio Decision

With ever-growing concern about environmental liability exposures, many shareholders rely on corporate structures – both simple and complex – to help insulate themselves from direct responsibility for the acts and omissions...more

District Court Imposes Divisibility Cap on Superfund Liability

A Wisconsin district court has ruled that NCR Corporation’s liability for contamination in the Fox River is limited to NCR’s share of contamination contributed to the river....more

PRP in CERCLA Enforcement Action Saves Millions of Dollars with Successful Divisibility Defense

Action Item: On March 15, 2015, the United States District Court for the Eastern District of Wisconsin in United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held that a potentially responsible party (“PRP”) at...more

Are Concurrent CERCLA Claims For Section 107(a) Cost Recovery and Section 113(f) Contribution Permissible?

Given the uncertainties after Cooper Industries v. Aviall about what cause of action a PRP has for recovering response costs under CERCLA, many parties take the prudent course of pleading claims under both for cost recovery...more

Court Affirms Arbitration Panel’s $14 Million Award In Favor Of Insured In Reinsurance Dispute Over Asbestos Claims

A federal district court has confirmed a $14 million arbitration award entered in favor of Amerisure against its reinsurer Everest. As we earlier reported, the court had previously denied the motion to seal briefing...more

New York Court Sets Aside $11 Million Verdict and Puts the Onus on Plaintiffs to Quantify Exposures to Asbestos

On April 13, 2015, Justice Barbara Jaffe of the Supreme Court, New York County, issued a decision and order granting the motion by Ford Motor Company to set aside the verdict of $11 million in Juni v. A.O. Smith Water...more

Arizona Enacts New Asbestos Trust Claim Disclosure and Evidence Statute

The Arizona legislature recently enacted A.R.S. § 12-782 to prohibit claimants from obtaining duplicative or excessive recoveries in asbestos personal injury lawsuits. Section 12-782 impacts personal injury plaintiffs that...more

Ninth Circuit Widens Judges’ Discretion to Allocate CERCLA Contribution Damages

Trial court may select the method of accounting for prior settlement in allocating response costs among liable parties, but claims to recover settlement payments are limited to costs consistent with the National Contingency...more

Allocating The Liability Shares of Settling PRPs Under CERCLA

Allocation of liability under CERCLA can get messy. One particularly complex issue arises in a private cost recovery action where some but not all the PRPs have settled with the private party. In contrast to a government...more

Dividing CERCLA Site Just Won't Cut It On Liability

In an order on March 3, U.S. District Judge William C. Griesbach, who is presiding over the long-running Comprehensive Environmental Response, Compensation, and Liability Act litigation concerning the Lower Fox River and...more

Is Injunctive Relief Available Against Former Owners? At Least One Judge Thinks So.

As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME...more

CERCLA’s Confusion Between Section 107 and Section 113

Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs...more

Manufacturing Matters – Winter 2015

In This Issue: - Pre-action costs protection in environmental claims - Shared Parental Rights – what you need to know - Due diligence on your partner in China – are you talking to the right person? - An Interview...more

New Jersey Supreme Court Rules Unanimously: There is No Statute of Limitations Defense to Contribution Actions Under the Spill Act

On January 26, 2015, the New Jersey Supreme Court unanimously ruled in Morristown Associates v. Grant Oil Co. that the general six-year statute of limitations for injury to real property does not apply to contribution claims...more

Federal Judge Strikes Class Allegations Pre-Certification and Discovery

Too many times a defendant is forced to foot the bill for costly discovery and motion practice before being able to successfully challenge class allegations. The recent decision in Bell v. Cheswick Generating Station, et al.,...more

The Need For Expert Evidence To Make Out An Innocent Landowner Defense Under CERCLA

As every litigator knows, evidence almost always tells a story that is untidy and riddled with loose ends. This was illustrated by a recent innocent landowner case in California — Coppola v. Smith. There, a company had...more

The Strategy of Lone Pine Orders: Timing Matters

Federal and state courts are using Lone Pine orders to effectively manage and control mass tort cases and other complex litigation. A Lone Pine order is a case management order that requires all plaintiffs to furnish...more

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