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CERCLA Settlements in an Age of Uncertainty: Fallout From Ameripride Services v. Texas Eastern Overseas

August 2015

Citation: 45 ELR 10846

Issue: 9

Author: Barry M. Hartman, Christopher A. Jaros, and Elizabeth M. Elliott

In April 2015, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Ameripride Services, Inc. v. Texas Eastern Overseas, Inc., that could significantly impact private parties’ settlement strategy at multiparty sites subject to CERCLA. The court held that courts have discretion under CERCLA §113(f)(1) to determine, based on the facts of the particular case, the most equitable method of accounting for settlements between private parties in a contribution action, and thus can choose the proportionate share approach adopted by the Uniform Comparative Fault Act, the pro tanto approach adopted by the Uniform Contribution Among Tortfeasors Act (UCATA), or something different. But the Ninth Circuit decision is in direct conflict with Akzo Nobel Coatings, Inc. v. Aigner Corp., a 1999 U.S. Court of Appeals for the Seventh Circuit decision holding that courts must use the pro tanto approach under the UCATA, and further widens the split among various circuit courts over which approach is appropriate under CERCLA. Until the circuit split is resolved, responsible parties deciding when and how to settle third-party contribution claims should carefully consider the law of the circuit where the property is located, as the different approaches may require significantly different settlement strategies.

Barry M. Hartman is a Partner with K&L Gates LLP in Washington, DC. Christopher A. Jaros and Elizabeth M. Elliott are associates in the firm’s Charleston, SC, office.

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