Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution Assessing Harm, Proving Divisibility of Harm Defense Absent a Bright-Line Test, and Apportioning Costs The U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for divisibility under CERCLA. However, there is no bright-line test for determining divisibility, and the courts have taken different approaches in evaluating this issue.In decisions involving the Fox River in Wisconsin and the Upper Columbia River in Washington state, as well as opinions from courts in Rhode Island and South Carolina, judges and parties have wrestled with the critical question for divisibility: is the harm "theoretically capable of apportionment"?If a court answers this question with a yes, the party seeking to limit its liability succeeds. If the answer is no, that party must try again under a much less favorable equitable allocation approach. These and other opinions addressing [...]

Environmental Audits: Privilege, Voluntary Disclosure and Other Legal Issues: Ensuring Compliance With Environmental Laws, Responding When Violations Are Discovered Environmental audits allow companies to proactively identify and address environmental problems before civil litigation or enforcement actions arise. The EPA and many states offer companies incentives to encourage compliance, including self-reporting identified issues in order to be eligible for potential reduced or eliminated penalties.Whether a newly acquired or long-standing business, companies and their counsel must take measures to ensure ongoing environmental compliance and environmental audits provide an avenue for detecting and correcting potential problems. Regular self-auditing can help reduce governmental penalties and limit injunctive relief faced in enforcement actions, apart from voluntary disclosure of noncompliance to regulatory agencies.There are potential risks associated with voluntarily uncovering and documenting violations, as well as with the disclosure of violations. Audit findings can be evidence of compliance gaps and a company's knowledge of those [...]

Responding to Time-Limited Demands for Policy Limits: Reasonableness, Safe Harbors; Obtaining Summary Judgment A time limited policy limits demand to a defendant's insurer is a frequent tool used by plaintiff's lawyers in an attempt to force crucial decisions on limited information. They have the capacity to force crucial decisions, sometimes with limited information and with very little time to decide. Bad faith liability can arise from the improper rejection or non-payment of a time-limited demand, often without showing intentional wrongdoing or motive.What constitutes a valid demand that triggers the obligation to respond and what constitutes a proper response has generated a broad body of case law. Statutory or judge-made "safe harbors" may allow a range of responses, but these rules can be narrowly construed and easily misinterpreted.If a bad faith claim is filed, the reasonableness standards that apply in a time-limited demand situation make summary judgment challenging but [...]

Corporate Officer and Director Liability: Trend Toward Increased Exposure for Individual D&Os D&Os owe statutory and common law duties to shareholders, including fiduciary duties of care and loyalty. As long as they take reasonable steps to inform themselves and discharge their duties, D&Os are supposed to be protected by the business judgment rule. But this protection is not absolute, and even allegations of violations or breaches of fiduciary duties can lead to an expensive, time-consuming lawsuit with potentially devastating personal liability for directors, officers, and LLC managers. Our panel of experienced litigators from Williams & Connolly LLP and Gilbert LLP will discuss lessons learned from recent actions by federal and state regulators to hold individual D&Os liable for corporate misconduct. In addition, the panel will address recent cases where courts have made it easier to sue directors or officers in their individual capacities. The CLE will provide [...]

One Insured, Multiple Insurers, Multiple Lawsuits: Managing Liability, Settlements, and Coverage Issues Seemingly intractable problems can arise when a single defendant has been sued multiple times and may have coverage for some or all matters from multiple insurers. Often there is considerable debate over the defendant's liability and insurers' duty to defend claims and in which courts. Subrogation and indemnity considerations often permeate negotiations.Efforts to resolve underlying matters, whether by settlement or otherwise, are complex and require advanced strategies to prevent misunderstanding and insurers from working at cross purposes. Insurers must often convince plaintiffs in the litigation and their fellow insurers about the reasonable value of various claims. Insurers must always be ready with strategies when an insurer refuses to fund a judgment or settlement. Listen as this esteemed panel of seasoned insurance counsel guides attendees in managing coverage, liability, and settlement issues that arise when a single [...]

The Reverse Reptile: Rethinking Traditional Defense Strategies and Antidotes Photo by Jeremy McGilvrey on Unsplash "Reptile theory" is a challenging and often-discussed plaintiff's trial strategy. It subtly encourages jurors to envision themselves in the same situation as a plaintiff but with the power to "save" the plaintiff, themselves, and the community from future harm by awarding a large verdict. Much has been written and discussed about oral defenses against reptile strategy, such as during depositions and witness examinations, as well as during opening and closing. But there are also powerful tools and strategies that can be wielded in defense of this strategy: counter anchoring numbers on damages, humanizing the corporate defendant, motions in limine, trial briefs, and motions for new trial/judgment notwithstanding the verdict, among others. Knowing these strategies and how to present them, including drafting these motions and briefs carefully and precisely allows defense counsel [...]

PFAS Contamination: Current Regulatory Landscape and Science Over the past 18 months, U.S. EPA and the Biden Administration have issued numerous new regulations of PFAS under CERCLA, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, and other environmental statutes.In recent months, the U.S. EPA has issued significant new toxicity assessments and drinking water regulations for PFAS, including PFOA, PFOS, GenX, and PFBS. U.S. EPA also has taken steps to regulate PFOS and PFOA as hazardous substances under CERCLA. State regulators are also imposing new drinking water limits, cleanup standards, and testing requirements for PFAS. The U.S. EPA and a number of states are planning to issue numerous additional regulations of PFAS over the next few years.Listen as our authoritative panel examines the evolving federal and state regulatory landscape for PFAS. The group will discuss current scientific data on PFAS, including a review of [...]

Rule 23(c)(4) Issue Certification: Reconciling the Conflict with the 23(b)(3) Predominance Requirement  Proposed class actions seeking monetary damages are often difficult to certify because common issues do not predominate over individualized issues as required by Rule 23(b)(3). Rule 23(c)(4) provides that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues."Although Rule 23(c)(4) has been part of the rule since the landmark 1966 amendments, it was often overlooked until the Supreme Court's decision in Wal-Mart v. Dukes. Plaintiffs now routinely seek limited issue certification for purported common issues, such as liability, arguing that questions of injury, reliance, or causation should be left for individual cases. When approved, this approach increases defendants' exposure by permitting certification in some cases that would otherwise fail the Rule 23(b)(3) standards.The federal circuits are now in a three-way split on how issue certification should be treated under Rule [...]