Category Archives: Divisibility

While The Outcome In the Lower Fox River Case Continues to Change, The Legal Standard For Apportionment Is The Same

In 1832, Abraham Lincoln said that ” it is better to be only sometimes right, than at all times wrong, so soon as I discover my opinions to be erroneous, I shall be ready to renounce them.”  Judge Greisbach of Eastern District of Wisconsin apparently lives by this credo and once again has reversed himself in the  Fox River PCB Superfund litigation.   The history of Judge Greisbach’s readiness to renounce his opinions is catalogued in a string of my blog posts. … More

Is the Shrinking Availability of Joint And Several Liability In Superfund Cases A Good Thing?

Although it has taken a surprisingly long time, the holding in Burlington Northern which greatly lowered the standard for apportionment in Superfund cases is finally being embraced by lower courts.   Last fall I blogged about a Seventh Circuit decision which rejected the trial court’s conclusion in the long-running Lower Fox River Litigation (US v. NCR Corp.) that a portion of the liability was not divisible. … More

The Expanding Availability of Apportionment To Limit Liability in Superfund Cases

In Burlington Northern in 2008, the US Supreme Court ruled that Superfund liability could be apportioned whenever there was a reasonable basis for showing that the harm was divisible, such as by considering the length of time a PRP had been operating a site, the volume of waste contributed, or the percentage of the site utilized by that PRP. Notwithstanding that ruling, many courts since 2008 have continued to shy away from apportionment,… More