On Monday, the Second Circuit issued two opinions in the consolidated case of State of New York v. Solvent Chemical Co., Nos. 10-2026-cv, 10-2166-cv, & 10-23830-cv (2^nd Cir. Dec. 19, 2011).  The first was a Summary Opinion, without precedential effect, which partially affirmed and partially rejected the district court’s method of allocating liability for past response costs incurred by Solvent Chemical Co. in remediating contamination at a site along the Niagara River in New York.  The second, a precedential opinion, reversed the trial court’s decision denying Solvent a declaratory judgment holding two other PRPs, DuPont and Olin Corp., liable for future remediation costs.  In essence, the Court of Appeals held that if the trial court could determine that DuPont and Olin were partially liable for past remediation costs, then it was required to find them liable for future costs, even if the trial court was not then able to allocate those future costs.  From a purely logical standpoint, not a very controversial or earth-shattering decision. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Declaratory Relief, Second Circuit, Superfund

In a pair of December cases, the National Association of Home Builders (“NAHB”) has found itself without standing to challenge determinations made by the EPA and the Army Corps of Engineers with respect to whether certain “waters” fall within the agencies’ regulatory powers under the Clean Water Act (“CWA”).   Read More »

Share | Email| Comments|  Topics: Clean Water Act, NPDES, Permits, Procedure, Real Estate, Standing, Wetlands

In one of the first lawsuits seeking personal injuries and medical monitoring in connection with natural gas drilling in the Marcellus Shale – one of the largest and most recent natural gas plays in North America – the first blow has been dealt to the plaintiffs, who have been ordered by a Special Master tasked with overseeing discovery to produce all of their medical records to the defendants. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Class Actions, Decisions of Note, Dimock, Marcellus Shale, Medical Monitoring, Oil and Gas, Toxic Torts

Two months ago I blogged about  DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), a case in which the Third Circuit held that, when it comes to removal, each defendant gets its own thirty-day window to file a Notice of Removal such that a later-served defendant is not foreclosed from seeking removal if the thirty-day window has already closed on the first-served defendant.  As befitting a precedential Third Circuit decision, there was clearly a lot of effort put into the 22 page opinion. Read More »

Share | Email| Comments|  Topics: Case Update, Legislation, Procedure, Removal

Both before and after the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), removal to federal court under the Class Action Fairness Act (“CAFA”) was a key tool in the arsenal employed by class action defendants, as federal courts have become increasingly more skeptical of certifying classes in toxic tort class actions.  But with many state court procedural rules patterned after their federal counterparts, federal trends can influence state courts, and the recent Louisiana Supreme Court decision in Price v. Roy R. Martin, 2011-C-0853 (Dec. 6, 2011), is a perfect example. Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Decisions of Note, Dukes, Louisiana, Real Estate, Toxic Torts

As mentioned a few months ago, this coming Thursday, December 8, Kate and I will be participating in an ALI-ABA webcast on medical monitoring claims in a Post-Dukesworld.  It’s a great panel including Kate, plaintiff’s attorney Tom Morrone, Former Rohm and Haas associate general counsel Ellen Friedell, and public health expert Dr. Phillip Lewis.   With a variety of different viewpoints and approaches, we’re expecting a lively discussion on both law and policy.  A good opportunity to get in those end-of-the-year CLE hours.  More Details:  ALI-ABA Medical Monitoring Webcast

Share | Email| Comments|  Topics: Class Actions, CLE, Medical Monitoring, Speaking Engagements, Toxic Torts