Kristin Reyna, Matthew Nugent and Gery Zacher recently obtained affirmation by the Ninth Circuit Court of Appeals of the judgment previously entered in favor of their client, Cooper Industries, in the case Hinds Investments, L.P. v. Angioli, et al., No. 10-15605 (August 1, 2011). In 2010, Gordon & Rees, on behalf of Cooper, won a motion to dismiss the CERCLA, HSAA and related federal and state law indemnity, contribution and declaratory relief claims brought against Cooper, arguing that its predecessor's sale of dry cleaning equipment fell squarely under the "useful product defense" as most recently discussed by the United States Supreme Court in its 2009 decision in United States v. Burlington Northern & Santa Fe Railroad Co., 129 S.Ct. 1870. Gordon & Rees also argued that Cooper's predecessor's mere franchising of the store did not include any ownership or possession of hazardous substances or the ability to control or duty to dispose of hazardous substances and exercising of that duty, as required by the Ninth Circuit by United States v. Shell Oil, 294 F.3d 1045 (9th Cir. 2002), and related cases. The Ninth Circuit agreed that Cooper was not an "arranger" under CERCLA or HSAA as a matter of law, and that the Eastern District's granting of the motion without leave to amend was proper as amendment would have been futile.
In the related appeals concerning motions to dismiss brought by the other equipment manufacturer defendants in this case, the Ninth Circuit also affirmed the decisions of the Eastern District that the CERCLA, HSAA, RCRA, nuisance and trespass claims brought against these parties could not be sustained. The Court found that these manufacturers also were not "arrangers" under CERCLA or HSAA, and that these parties' instructions in their equipment manuals offering waste disposal recommendations fell short of the kinds of affirmative acts to support a finding that they assisted in creating a nuisance. Finally, and crucially, the Ninth Circuit issued a published decision setting forth its pronouncement of the standard for RCRA liability in this Circuit, that to be a "contributor" under RCRA, the party must have had a measure of control over the waste at the time of its disposal or active involvement in the waste disposal process. Hinds Investments, L.P. v. Angioli, et al., No. 10-15607 (August 1, 2011).
The Gordon & Rees Cooper Team has successfully defended the client in PCE litigation for the last 10 years.