Wisconsin Federal Court Reverses Itself: No CERCLA Liability under Asset Purchase Agreement
On January 4, 2012, we reported to you my view that the United States District Court for the Eastern District of Wisconsin “could not have been more wrong” in finding that an Asset Purchase Agreement (APA) imposed direct CERCLA liability on the purchaser. The purchaser filed a motion for reconsideration of this summary judgment, and on April 10, 2012, the district court reversed itself, and dismissed all claims against the purchaser. In so holding, the court held that the APA was not drafted “broadly enough to encompass [defendant’s] direct liability for the CERCLA liability at issue in this case.” Slip Op. at p.2. The court found that the present liability did not arise from any “violation” of law or any “compliance” issue. The court rejected the argument of the Justice Department that the filing of a CERCLA lawsuit triggered the “violation” thereby causing defendant’s CERCLA liability under the APA. The court was kind to the Justice Department in describing this position as “a wholly circular argument.” United States of America v. NCR Corp. et al., Case No. 1:10-cv-00910-WCG (April 10, 2012)(doc. 349).
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