Disputes and Litigation
ALTERNATE DISPUTE RESOLUTION (ADR)
Our lawyers are experienced with all forms of ADR, including mediations, arbitrations, consent decrees, and other negotiated settlements. Many are trained as arbitrators and mediators, and virtually all members have participated successfully in mediations and arbitrations.
One of our lawyers served as Chair of the Civil Justice Reform Act of 1990 Advisory Group (1991-present), U.S. District Court for the Western District of Missouri, and helped design the "Early Assessment Program" for the Court which was recognized by the ABA as the most comprehensive and unique court-annexed ADR program in the country. Another of our lawyers chairs the federal government’s National Environmental Conflict Resolution Advisory Committee, a forum comprised of government, business, community and environmental leaders charged with developing strategies to prevent and reduce conflict over federal decisions affecting the environment.
We also counsel clients on the preparation of ADR provisions, including provisions calling for arbitration or mediation, choice-of-law provisions, and forum or venue selection clauses. We also have successfully litigated disputes as to whether certain matters are subject to arbitration, and have helped clients enforce or vacate arbitration awards.
Another of our lawyers was selected to serve as liaison counsel for more than 20 defendants in the mediation of complex private-party and class action litigation concerning exposure to lead and cadmium.
back to top
LITIGATION EXPERIENCE
Sonnenschein lawyers have expertise in virtually every area of environmental litigation, including Superfund (CERCLA), the Resource Conservation and Recovery Act (RCRA), the National Environmental Policy Act (NEPA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Clean Water Act (CWA), the Lead-Based Paint Exposure Hazard Reduction Act (LBPERA), California’s Proposition 65, and the full panoply of common law claims for nuisance, fear of cancer, medical monitoring remedies and other claims, to name but a few.
We have successfully litigated environmental cases at all levels of federal and state courts, from state trial court to the U.S. Supreme Court. Our victories have established several important precedents. In addition, we have successfully litigated in agency adjudicatory proceedings, a method of enforcement that is increasingly used by federal and state agencies.
Our attorneys are leaders in their fields of practice and have a long record of success as primary counsel and coordinating counsel in complex environmental litigation, including multiparty Superfund cases, Clean Air Act enforcement matters, and toxic tort defense. We are experienced in responding to government investigations and defending clients in non-judicial administrative adjudications.
We have represented a broad range of U.S. and international corporations, as well as organizations and individuals. Our practice extends from the defense of environmental claims against our clients by the government or private-sector plaintiffs to the recovery of environmental damages and civil penalties on our clients’ behalf, to the defense of government approvals based on NEPA documents. We have experience in leading and coordinating the defense of large multi-party cases involving complex questions of liability and damages. We have defended citizens’ suits and represented clients in matters pertaining to environmental justice. Our practice extends beyond claims for environmental cost recovery or property damage to cutting-edge scientific and economic issues associated with toxic torts and environmental resources damages.
Our attorneys have represented clients over information requests, formal investigations, cost-recovery and/or injunctive actions, and de minimis settlements relating to contaminated sites throughout the U.S. and abroad. Our Clean Air Act experience includes among the largest settlements ever reached with federal regulators over implementation of New Source Review rules.
We are skilled in the use of the most current technologies for managing and coordinating complex litigation between our offices, our client, other counsel, and consultants and experts located across the country and in other countries. We employ our own fully secure Extranets as well as outside Web-based repositories to manage and make available the millions of pages of information that can be assembled in complex litigation.
In all our cases, we stress the importance of understanding the technical and analytical matters that invariably can be found at the heart of environmental cases, as well as the need to meet our clients’ business objectives. Our attorneys provide each client with a diverse, experienced team able to deliver efficient and highly effective legal services.
back to top
CERCLA, SUPERFUND AND COST RECOVERY LITIGATION
Sonnenschein lawyers have been involved in disputes relating to cleanup of contaminants from the environment for more than over 30 years, indeed, since before the Superfund law was first enacted in 1980. Beginning with the "federal common law nuisance" and questions about the retroactive application of the Clean Water Act, through the adoption in 1980 of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), and the Superfund Amendments and Reauthorization Act ("SARA") in 1986, Sonnenschein lawyers have seen the continuing evolution of Congressional and state attempts to remediate conditions created before the “environmental movement” began. Some of these matters, in which our lawyers have been principal advocates, include cases that decided:
- Whether the EPA has a non-discretionary duty under the Clean Water Act to make decisions about remediation of contaminated sediments;
- Whether there was a federal common law nuisance for cleanup of Lake Michigan, in light of the adoption of the Clean Water Act and later CERCLA;
- Whether there was an implied right of contribution under CERCLA and before the passage of SARA that could be asserted by defendants in cleanup actions to "spread the pain" amongst scores of other generator defendants who brought waste to the site.
In other notable representations, we:
- Represented General Electric Company in the landmark case, General Electric Company v. Litton Business Systems (deemed “the leading case in the country” on certain federal law Superfund issues);
- Convinced a Court of Appeals that an indemnity clause in a 1973 contract was broad enough to transfer cleanup responsibilities required by CERCLA;
- Served as lead counsel for a group of companies in a complex Superfund cost-recovery case on a site that includes 35 miles of the Kalamazoo River;
- Obtained summary judgment and complete relief from a multi-million-dollar cost-recovery action by a group of potentially responsible parties on behalf of a defendant, by demonstrating the plaintiffs could not establish when hazardous substances were disposed;
- Represented two private corporations in a case tried against the U.S. Government over environmental contamination that the Government generated during World War II and in which the court allocated 100 percent of the environmental liability to the U.S., affording our clients complete recovery.
- Served as common counsel for PRP steering committees in resolving EPA claims and in asserting contribution actions against third-party defendants.
We routinely assist in providing representation for responding to requests for information and subpoenas, in working with other parties to provide a joint response to negotiate allocation of parties’ shares to a clean-up and to make claims against other parties, including the U.S.
back to top
ENFORCEMENT BY CITIZENS AND AGENCIES
We have extensive experience defending enforcement actions, whether brought by governmental agencies or by citizens. These enforcement actions include administrative orders brought before EPA administrative law judges, enforcement cases before state environmental agencies and those brought in federal and state courts. We understand what arguments can be successful in what forum and under what circumstances. Quite often the procedural motions become dispositive of the case. Representative matters include:
- In a Clean Air Act enforcement case, we moved to stay the federal enforcement case pending resolution of a parallel state administrative proceeding. At issue was a very technical applicability issue. Using a Colorado River abstention argument, the federal court stayed the federal enforcement case pending an adjudicatory hearing before the state agency. When the state agency ruled that our client was not regulated by the rule that EPA was seeking to enforce, the federal district court deferred to the state for its interpretation of its own regulations.
- In a citizen suit, we were able to successfully extract our client, the owner of a railcar stock, from liability for an improper and tardy emergency notification by the user. We were able to convince the district court that rolling stock was not a "facility" within the meaning of the Community-Right-To-Know laws, and that the requisite notice was satisfied by calling 911.
- Before an administrative law judge, we were able to get a case dismissed due to EPA's failure to follow the OMB registration requirements for data compilation under the applicable EPA rule (the Part BB boiler and industrial furnace regulations).
While we have been able to win for our clients in a variety of courts, we are mindful of two admonitions from our clients that continue to guide us: "Win if you can, but if you can't win, don't lose;" and, "We are in the business of making ‘widgets’, not law." We seek early resolution of cases whenever possible, and engage in frank discussions with the enforcement personnel to avoid protracted litigation in unnecessary disputes. In that regard, the following are noteworthy examples of successful resolutions, in which we:
- Achieved a $600 million settlement on behalf of Wisconsin Electric Power Company of U.S. Government claims under New Source Review provisions of the Clean Air Act. This Settlement is expected to eliminate more than 105,000 tons of air pollutants annually from five coal-fired generating plants in Wisconsin and Michigan;
- Represented Outboard Marine Corporation in a $20-million clean-up of Waukegan Harbor. After negotiating an innovative settlement, we defeated a citizens’ suit to stop implementation of work. This representation also included litigation and negotiation of disputes with the remedial principal contractor, and negotiation and litigation with the U.S. EPA over oversight cost claims;
- Obtained favorable settlement to resolve a high-profile enforcement action by U.S., state, and local authorities against a large urban landlord, for alleged violations of lead-based paint laws.
back to top
TOXIC TORTS AND ENVIRONMENTAL ACCIDENTS
We continue to defend a diverse range of toxic tort and environmental claims for clients in a variety of industries. We have a proven record in the defense of these claims--whether for personal injuries, fear of cancer, medical monitoring, "stigma" damages, or property damages--extending from localized, single-incident matters to complex class action or multi-district litigations. Recent and ongoing cases involve claims relating to asbestos, lead-based paint and pigments, silica, manganese, hexavalent chromium, perchlorate, MTBE, TCE and other industrial solvents, and dioxin.
Among these cases, our attorneys have:
- Brought suit and settled on favorable terms claims by a multinational chemical manufacturer against its technology vendor arising out of a chemical plant explosion, while resolving related personal injury and property damage claims;
- Obtained summary judgment for a Fortune 500 company on a multimillion-dollar claim for alleged contamination of home sites with PCBs;
- Represented a national railroad against the State of Illinois on civil penalty, cost recovery, and public nuisance claims related to a train wreck and diesel fuel spill;
- Negotiated a favorable settlement for a major livestock producer in a public nuisance action involving alleged contamination of downstream properties;
- Defended an aircraft manufacturer in consolidated actions brought by more than 3,000 individual neighbors concerning air and water exposure to hexavalent chromium and other industrial solvents;
- Represented a Fortune 100 company in a California toxic tort litigation alleging cancer and other personal injuries and property damage to surrounding inhabitants stemming from its operation of a U.S. government manufacturing facility;
- Achieved favorable settlement of “stigma” damages in a case arising out of a Superfund site, requiring more than $100 million in remedial activities;
- Represented public utilities, municipalities and a Fortune 100 corporation in EMF-related litigation.
We have represented clients both as primary trial counsel and national or regional coordinating counsel. We emphasize early case evaluation and understanding the client's business and specific litigation goals so that we can prepare a thorough, cost-effective, and successful defense. We have expertise in computer-aided imaging and information management technologies essential for management of these kinds of fact-intensive cases. We focus from the outset of an engagement on the development of trial-enhancing strategies and evidence, including forceful demonstrative materials. With this approach, we are able to "make sense" for the jury the highly complex facts involved in toxic tort and environmental disaster cases or, as appropriate, to settle cases for our clients on favorable terms.
Our attorneys have deep experience with the substantive law and underlying science of toxic tort litigation, including the use of and success with Daubert hearings. We have expertise in modeling, pathway exposure analysis, other fate and transport issues, and injury causation. Our attorneys and other professionals also have special knowledge and expertise in various disciplines, including biological sciences, engineering, physical geography, physical science and medical science, which often translate into time- and cost-savings for our clients. We also offer our clients preventative counseling, risk management, business contingency planning, and post-litigation analytical services to evaluate past and potential environmental issues and problems, in order to avoid future difficulties arising out of their products or operations.
For information on our Product Liability and Toxic Tort Practice, click here.
back to top
For E-Library resources, please click here.
