Making The Polluters Pay - GT Shows The Way
The key lesson of the recent summary judgment in Appleton Papers Inc. v. George A. Whiting Paper Co., No. 2:08-cv-16-WCG (E.D. Wis. Dec. 16, 2009), the $1 billion Fox River CERCLA contribution litigation, is that it takes really good lawyers to make "guilty" mean "guilty" under CERCLA. 
Appleton involved a CERCLA contribution claim by carbonless copy paper makers against paper recyclers for a PCB cleanup of the Fox River in Wisconsin. The manufacturers knew recycling the production scrap and the carbonless copy paper carried risks, but sold it to the recyclers regardless knowing PCBs would end up in the river. The court decided, on the recyclers’ motion for summary judgment, that the manufacturers were therefore too guilty for contribution. The transcript of the hearing is very interesting reading.
The Appleton result, as anyone who has ever litigated a CERCLA contribution case can tell you, is tremendous and rare and a credit to David Mandelbaum and his team because allocation cases typically turn on volume and toxicity and not culpability. Equally unusual is the relative speed with which Mandelbaum obtained the judgment. The recyclers were not all named until November 2008 but the culpability issue was ready for trial just 14 months later.
David and the other GT lawyers on the case will discuss the decision's practical implications and explore whether creative case management can make mega-cases tractable (for CLE credit, no less) in our Philadelphia office on February 4 from 8:00 to 10:15 a.m. Contact Thelma Cranmer at 215-988-7800 or cranmert@gtlaw.com (put "Feb.4 CERCLA" in the subject line) for more information.
