Cutting Through the Gordian Knot of Allocation: If You Were Bad, You Lose

In late 2009, Judge Griesbach ruled, in Appleton Papers v. George A. Whiting Paper, that parties who were significantly more “blameworthy” than others were not entitled to contribution from the less blameworthy parties. Last week, Judge Griesbach ruled on the cross-contribution motions from the defendants. 

The defendants took a simple view. If the plaintiffs are not entitled to contribution from the defendants, because the plaintiffs were almost entirely at fault, then the defendants should be able to receive 100% of their own response costs in contribution from the plaintiffs. Plaintiffs, not surprisingly, took a contrary view. Plaintiffs’ position was that the court still needed to assess the defendants’ contribution claims in light of the full panoply of equitable factors and that, because the plaintiffs had cooperated with the government and the defendants had caused some releases themselves, the plaintiffs should not have to pay 100% of defendants’ costs.

Judge Griesbach was having nothing of the plaintiffs’ arguments. To him, it remains really a simple analysis:

[C]ases reject the idea that a district court has to follow some sort of mechanical laundry-list approach to assessing contribution liability, and I am satisfied that basing contribution on fault, under the totality of the circumstances of this case, is a sound approach to resolving the liability for the river cleanup.

I remain of the view that, while the outcome of the case is permissible, it is a surprise that the judge was so willing to make these decisions on summary judgment; they seem more the stuff of trial to me. However, the judge’s willingness to decide this case on summary judgment only emphasizes the important lessons of this case. Fault matters, and the parties who succeed in tarring other parties with the label of “fault” are going to be the big winners in contribution cases – Gore Factors be damned.

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