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Foamseal, Inc. v. Dow Chem. Co.

Citation: 28 ELR 21110
No. 96-71129, 991 F. Supp. 883/(E.D. Mich., 01/30/1998)

The court holds that contribution bars in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) settlements not involving the United States or a state government are valid. The court first approves a corporation's settlements with a group of settling parties. The agreements seem to roughly approximate the settlors' liability, taking into account the reduction in transaction costs that will be realized from approval of the voluntary settlements. The court then rejects the nonsettlors' argument that CERCLA § 113(f)(2) allows contribution bars only when the UnitedStates or a state government is involved. CERCLA is silent when settlements between private parties include contribution bars. Further, a growing number of federal courts have applied the Uniform Comparative Fault Act when dealing with settlements between private parties. Although the nonsettlors argue that the contribution will unjustly prevent them from seeking contribution from settlors in the cost recovery actions brought by the state and the United States, Congress intended the disparities that inevitably arise under such a legislative scheme to act as a catalyst for early and inexpensive settlements. Disproportionate liability will invariably result, but it is not the court's place to countermand clear legislative mandate. Last, the court holds that it will not conduct a full evidentiary hearing. This would discourage parties from settling, which is contrary to CERCLA policy.

[A decision related to this litigation is published at 28 ELR 21147].

Counsel for Plaintiffs
David G. Hetzel, Ronald W. Zdrojeski
LeBoeuf, Lamb, Greene & MacRae
Goodwin Sq.
225 Asylum St., 13th Fl., Hartford CT 06103
(860) 293-3500

Counsel for Defendants
Bernard P. Paige, Patrick J. Ennis
Colombo & Colombo
36800 Woodward Ave., Ste. 300, Bloomfield Hills MI 48303
(248) 645-9300