In a dispute that once generated the “largest environmental bankruptcy award ever,” the United States District Court for the Southern District of New York this month issued a decision further clarifying the effects of the monumental 2014 bankruptcy settlement agreement.  The February 1, 2016 decision in In re Tronox Incorporated, No. 1:14-cv-5495, determined that beneficiaries of the 2014 settlement agreement could not reignite their toxic tort claims against the debtors’ surviving corporate parent, Kerr-McGee Corporation (“(new) Kerr-McGee”), in the underlying settlement agreement. Read More »

Share | Email| Comments|  Topics: Bankruptcy, Class Actions, Contamination, New York, Pennsylvania, Residential, Toxic Torts

This week, in the case of Smith v. ConocoPhillips Pipe Line Co., No. 14-2191 (8th Cir.  Sept. 15, 2015), the Eighth Circuit overturned a district court’s grant of a certification to a class comprised of property owners who alleged that the contamination of a neighboring property, and their fear of its spread, was a nuisance.  The Eighth Circuit held that the plaintiffs did not provide evidence that their own properties were contaminated and thus denied class certification based on the plaintiffs’ failure to demonstrate a common injury. Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Eighth Circuit, Medical Monitoring, Negligence, Nuisance, Oil and Gas, Real Estate, Residential, Toxic Torts

In New Jersey, a property owner affected by a release from an underground storage tank cannot succeed on a private nuisance or trespass action absent demonstration of the tank owner’s intentional, negligent or reckless conduct.  Moreover, neither the tank owner’s insurer’s agreement to remediate the affected property nor the migration of the leaked substance onto the affected property conveys the affected property owner third party beneficiary status such that the property owner can maintain a bad faith action against the insurance provider.  In Ross v. Lowitz, No. A-101-13 (N.J. Aug. 6, 2015), the New Jersey Supreme Court recently issued a decision narrowing the avenues to recovery of property owners affected by a release from a neighboring underground storage tank by clarifying these two rules. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Cost Recovery, Decisions of Note, Insurance, Insurance Coverage, New Jersey, Nuisance, Remediation, Residential, Storage Tank, Trespass

In November 2009, a group of 44 plaintiffs, including the Ely family, filed suit against Cabot Oil & Gas Corp. for personal injuries and property damages that allegedly resulted from Cabot’s hydraulic fracturing operations in Dimock Township, Susquehanna County, Pennsylvania. The case is pending in the Middle District of Pennslyvania, captioned as Ely et al. v. Cabot Oil & Gas Corp., et al., Dkt. No. 3:09-cv-2284 (M.D. Pa.) (J. Carlson). After a number of parties settled out of the lawsuit, Cabot filed a motion for summary judgment on the Elys’ claims for breach of contract and lost royalties on an oil and gas lease, fraudulent inducement, negligence and negligence per se, medical monitoring, and violations of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”).   On Monday, nearly all of the Elys’ claims were dismissed. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Contamination, Cost Recovery, Dimock, Drilling, Exploration, Leases, Medical Monitoring, Natural Gas, Negligence, Nuisance, Oil and Gas, Pennsylvania, Real Estate, Residential, Toxic Torts, Trespass

Since the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), plaintiffs in contamination cases have struggled to meet the raised bar for class certification.  And that bar was certainly not lowered by the Seventh Circuit in its decision in Parko v. Shell Oil Co., Nos. 13-8023 & 13-8024 (7^th Cir. Jan 17, 2014).  Parko involved a putative class comprised of property owners in the town of Roxana, Illinois, who claimed that their property values had been diminished by benzene contamination of the groundwater from an adjacent oil refinery which had been in operation for nearly 100 years.  In checking off the certification requirements, the district court held that the question of whether the multiple defendants who owned and operated the refinery during the preceding 90 plus years failed to “contain petroleum byproduct [resulting] in contamination to Roxana property” predominated.   The Seventh Circuit panel unanimously disagreed.  Judge Posner, writing for the Court, described the opinion as necessary for clarification of a trial court’s responsibility to conduct a “rigorous analysis” of whether common issues predominate; in doing so, he did not hesitate to take the district judge to task for “treat[ing] predominance as a pleading requirement” rather than an evidentiary one.  Read More »

Share | Email| Comments|  Topics: Causation, Certification, Class Actions, Contamination, Dukes, Expert Witness, Illinois, Procedure, Real Estate, Residential, Seventh Circuit, Toxic Torts, Water

Relying on the United States Constitution’s Fourth Amendment protection against unreasonable search and seizure, yesterday the New Jersey Supreme Court , inNJDEP v. Huber, ___ N.J. ____ (Apr. 4, 2013), held that the New Jersey Department of Environmental Protection (“NJDEP”) does not have an unfettered right to inspect residential property in order to ensure compliance or determine violations of the Freshwater Wetlands Protection Act, even when the property in question is subject to an FWPA permit. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Freshwater Wetlands Protect Act, Inspection, New Jersey, Permits, Real Estate, Residential, Wetlands