Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.
A unanimous panel held that Asarco’s settlement in bankruptcy for its “share of response costs” did not preclude it from later bringing a CERCLA contribution claim.
TerraForm Power Settles Derivative Lawsuit by Increasing Independence
Bankruptcy
At the risk of stating the obvious, the collapse of oil and gas prices in the last several quarters has had a profound impact on the industry. Some E & P companies have been able to weather this storm, but other have not been so fortunate. In the time between 2014 and September 14, 2016, 102 oil and gas producers with cumulative debts of over $67 billion, 13 midstream companies with cumulative debts of over $17 billion and 132 oilfield service companies with cumulative debts of over $14 billion have filed bankruptcy petitions.
We recently reported on the Court of Session's decision that a liquidator of a company being wound up in Scotland may abandon both heritable property and statutory licences. A full copy of that article can be accessed here.
The Court has now issued its written decision. This provides further analysis and confirms the position that we previously reported.
Parties represented
A statutory waste removal obligation incurred by a company before it entered liquidation was held to be dischargeable as an expense of the liquidation (Re Doonin Plant Limited [2018] ScotCS CSOH 89).
JWS has achieved a significant win on behalf of Linc’s liquidators, PPB Advisory, in their proceedings against the Queensland State Government in relation to Linc’s environmental liabilities. The Queensland Court of Appeal has unanimously overturned the Supreme Court judgment of Jackson J, which was the subject of an appeal hearing in September 2017 at which Bret Walker SC appeared for the liquidators.
Briefings
A recent ruling by the English High Court in BILTA v RBS1, concerning EU Emissions Allowances (“EUAs” or “carbon-credits”) trading has re-opened the debate on when materials forming part of an internal investigation can benefit from litigation privilege. The decision further undermines the restrictive approach taken by Andrews J in SFO v ENRC2 when applying the “sole or dominant purpose test” to dual-purpose communications.
Background – Emissions Trading Fraud
The Scottish Government has been ahead of the rest of the UK in its attempts to introduce methods which are designed to change behaviour and encourage people to operate in buildings in a more energy efficient manner.
The Assessment of Energy Performance of Non-domestic Buildings (Scotland) Regulations 2016 came into effect on 1 September and are aimed at effecting those behavioural changes.