Successor liability under CERCLA: Whither substantial continuity?

Penn State Environmental Law Review

Volumn 14, Issue 1, 2005, Pages 1-29

  Kilbert, Kenneth K ^a,b  

^a UNIVERSITY OF PITTSBURGH   (United States)

^b Pennsylvania Bar Association   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONTAMINATED LAND; ENVIRONMENTAL LEGISLATION; LIABILITY;

EID: 33644556503     PISSN: 15463427     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (222)

1. U.S.C. §§ 9601-9675 (2002).
2. William Meade Fletcher et al., Fletcher Cyclopedia Of The Law Of Private Corporations § 7121 (perm. ed., rev. Vol. 1999) [hereinafter "Fletcher"].
3. A Am. Jur. 2d Corporations § 724 (2004).
4. Dawejko v. Jorgensen Steel Co., 434 A.2d 106 (Pa. Super. Ct. 1981);
5. Fletcher, supra note 2, at § 7122.
6. See, e.g., Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 309 (3d Cir. 1985) (reviewing Pennsylvania law);
7. N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 651 (7th Cir. 1998);
8. Fletcher, supra note 2, at § 7122.
9. U.S.C. § 9607(a)(1)-(4) (2002).
10. The elements of a CERCLA claim for response costs are set forth at 42 U.S.C. § 9607(a) (2002).
11. The statute adopts the strict liability standard of the Clean Water Act, 33 U.S.C. § 1321.
12. 42 U.S.C. § 9601(32).
13. See New York v. Shore Realty Corp., 759 F.2d 1042 (2d Cir. 1985).
14. Defenses to CERCLA liability are few and narrow. 42 U.S.C. § 9607(b).
15. See United States v. Ne. Pharm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986).
16. 42 U.S.C. § 9613(g) (2002).
17. 42 U.S.C. § 9601(21) (2002).
18. See, e.g., N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 649 (7th Cir. 1998);
19. La.-Pac. Corp. v. Asarco, Inc., 909 F.2d 1260 (9th Cir. 1990);
20. Smith Land & Improvement Corp. v. Celotex., 851 F.2d 86, 91-92 (3d Cir. 1988), cert. denied, 488 U.S. 1029 (1989). It should be noted that at least one early district court opinion held that a successor corporation (by merger) could not be a responsible party in the absence of express statutory language in CERCLA so providing.
21. Anspec Co. v. Johnson Controls, Inc., 734 F. Supp. 793, 795-96 (E.D. Mich. 1989), rev'd, 922 F.2d 1240, 1246 (6th Cir. 1991).
22. See, e.g., United States v. Carolina Transformer Co., 978 F.2d 832 (4th Cir. 1992);
23. Pa. Dep't of Envtl. Prot. v. Concept Sciences, Inc., 232 F. Supp.2d 454 (E.D. Pa. 2002).
24. See Smith Land, 851 F.2d at 91.
25. See, e.g., HRW Systems, Inc. v. Washington Gas Light Co., 823 F. Supp. 318 (D. Md. 1993) (successor corporation was liable under CERCLA because it contractually assumed all liabilities and obligations of seller);
26. John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401 (1st Cir. 1993) (purchaser did not succeed to seller's CERCLA liabilities because transactional contracts did not specifically call for assumption of future contingent environmental liabilities).
27. Fletcher, supra note 2, at § 7125.
28. See Atchison, Topeka & Santa Fe Ry. v. Brown & Bryant, Inc., 159 F.3d 358 (9th Cir. 1998);
29. see generally Uniform Fraudulent Conveyance Act, 12 Pa. Cons. Stat. Ann. §§ 5101-5110 (West 2005).
30. See United States v. Vertac Chem. Corp., 671 F. Supp. 595 (E.D. Ark. 1987), vacated in part, 855 F.2d 856 (8th Cir. 1988).
31. Boston Gas, 992 F.2d at 408-09;
32. Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 310 (3d Cir. 1985);
33. In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1010 (D. Mass. 1989).
34. See, e.g., Phila. Elec. Co., 762 F.2d at 310;
35. N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 652-53 (7th Cir. 1998).
36. Fletcher, supra note 2, at § 7124.50.
37. See United States v. Keystone Sanitation Co., No. Civ.A 1:CV-93-1482, 1996 WL 672891 at *4 (M.D. Pa. Aug. 22, 1996);
38. La.-Pac. Corp. v. Asarco, Inc., 909 F.2d 1260, 1264-65 (9th Cir. 1990).
39. N. Shore Gas, 152 F.3d at 654;
40. United States v. Carolina Transformer Co., 978 F.2d 832, 838 (4th Cir. 1992).
41. Kelley v. Thomas Solvent Co., 725 F. Supp. 1446, 1458 (W.D. Mich. 1988);
42. N. Shore Gas, 152 F.3d at 654-55.
43. United States v. Mexico Feed & Seed Co., 980 F.2d 478, 487 (8th Cir. 1992);
44. Carolina Transformer, 978 F.2d at 838.
45. N. Shore Gas, 152 F.3d at 654.
46. See generally Fletcher, supra note 2, at § 7124.10. By contrast, continuity rather than identity of shareholders would suffice for the de facto merger exception.
47. See also United States v. General Battery Corp., 423 F.3d 294 (3d Cir. 2005).
48. See, e.g., Mexico Feed, 980 F.2d at 487;
49. Gould v. A&M Battery & Tire Service, 950 F. Supp. 653, 656-57 (M.D. Pa. 1997).
50. See, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987);
51. Mozingo v. Correct Mfg. Corp., 752 F.2d 168 (5th Cir. 1985);
52. Turner v. Bituminous Casualty Co., 244 N.W.2d 873 (Mich. 1976).
53. See Fletcher, supra note 2, at § 4892.75;
54. New York v. National Services Industries, Inc., 352 F.3d 682, 687 (2d Cir. 2003). Pennsylvania law has not recognized the substantial continuity exception.
55. 978 F.2d 832.
56. 980 F.2d 478.
57. A more local example is Atl. Richfield Co. v. Blosenski, 847 F. Supp. 1261, 1283-95 (E.D. Pa. 1994).
58. Carolina Transformer, 978 F.2d at 834-36.
59. Id. at 838.
60. Id. at 837-38 (citations omitted).
61. Id. at 838.
62. Among the authorities cited by the Carolina Transformer court were Mozingo and Fall River Dyeing. Mozingo v. Correct Mfg. Corp., 752 F.2d 168 (5th Cir. 1985) (product liability);
63. Fall River Dyeing & Finishing Corp. v. NLRB, 428 U.S. 27 (labor).
64. Carolina Transformer, 978 F.2d at 840-41.
65. 980 F.2d at 489-90.
66. Mexico Feed, 980 F.2d at 482-83.
67. Id. at 487.
68. Id. at 489.
69. Id. at 487-88.
70. Id. at 488.
71. Although the Mexico Feed court did not squarely decide whether to apply state or federal common law to analyze successor liability because the issue was not raised by the litigants, the Eighth Circuit noted that "considering the national application of CERCLA and fairness to similarly situated parties, the district court was probably correct in applying federal law." Id. at 487.
72. Id. at 488 n.10.
73. Id. at 489-90.
74. Courtney Price, Assistant Administrator for Enforcement and Compliance Monitoring, "Liability of Corporate Shareholders and Successor Corporations for Abandoned Sites Under CERCLA" (EPA Directive No. 9832.10) (June 13, 1984). The directive also urged adoption of the non-traditional "product line" exception in CERCLA cases.
75. United States v. Carolina Transformer Co., 978 F.2d 832 (4th Cir. 1992) (buyer corporation liable as successor);
76. Mexico Feed, 980 F.2d 478 (buyer corporation not liable as successor).
77. United States v. Davis, 261 F.3d 1 (1st Cir. 2001);
78. New York v. Nat'l Serv. Indus., Inc., 352 F.3d 682 (2d Cir. 2003);
79. City Mgmt. Corp. v. United States Chem. Co., 43 F.3d 244 (6th Cir. 1994);
80. Atchison, Topeka & Santa Fe Ry. v. Brown & Bryant, Inc., 159 F.3d 358 (9th Cir. 1998);
81. United States v. General Battery Corp., 423 F.3d 294 (3d Cir. 2005).
82. Davis, 261 F.3d at 53-54 (applying Connecticut law);
83. City Mgmt. Corp., 43 F.3d at 252-53 (applying Michigan law).
84. Interestingly, the Sixth Circuit recognized that Michigan had adopted the substantial continuity test in product liability cases, but held that Michigan law otherwise did not recognize the substantial continuity test. Id.
85. The Ninth Circuit in Atchison strongly indicated that state common law should determine issues of successor liability under CERCLA, and noted that California common law did not recognize the substantial continuity exception. Atchison, Topeka & Santa Fe, 159 F.3d 358.
86. But the Ninth Circuit ultimately did not decide whether state or federal common law should determine successor liability under CERCLA, because it held that federal common law also should reject the substantial continuity test. Id. at 364.
87. 352 F.3d 682 (2d Cir. 2003).
88. The Ninth Circuit entertained the prospect of adopting the substantial continuity exception for CERCLA in Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1265-66 (9th Cir. 1990), but did not squarely do so. Subsequently, the Ninth Circuit rejected the substantial continuity exception in another CERCLA case. Atchison, 159 F.3d at 364.
89. Atchison, 159 F.3d at 364.
90. 524 U.S. 51 (1998).
91. 99 F.3d 505 (2d Cir. 1996).
92. In denying a petition for rehearing, the Second Circuit clarified its prior opinion at 112 F.3d 88 (2d Cir. 1997).
93. Betkowski, 99 F.3d at 518-20.
94. Id. at 519.
95. As described by the Betkowski court, CERCLA's goals include assuring that those responsible for pollution bear the cost of remediation rather than the public, such that its liability provisions should be liberally construed. Id. at 514.
96. See also 112 F.3d at 90-91 (opinion denying rehearing but clarifying prior opinion).
97. New York v. Nat'l Serv. Indus., Inc., 352 F.3d 682, 683-84 (2d Cir. 2003).
98. 524 U.S. 51 (1998).
99. Id. at 70-72.
100. Id. at 63-64.
101. Id. at 62-63.
102. National Services Industries, 352 F.3d at 685.
103. Id. at 686-87.
104. Id. at 687.
105. 851 F.2d 86 (3d Cir.), cert. denied, 488 U.S. 1029 (1989).
106. Id.
107. "In resolving the successor liability issues here, the district court must consider national uniformity; otherwise, CERCLA aims may be evaded easily by a responsible party's choice to arrange a merger or consolidation under the laws of particular states which unduly restrict successor liability. The general doctrine of successor liability in operation in most states should guide the court's decision rather than the excessively narrow statutes which might apply in only a few states." Smith Land, 851 F.2d at 92 (citations omitted).
108. It also should be noted that the Third Circuit in another CERCLA case unrelated to successor liability ruled that state law should govern interpretation of an indemnity provision rather than federal common law, but only so long as the state law was not hostile to the aims of CERCLA. Beazer East, Inc. v. Mead Corp., 34 F.3d 206, 211-15 (3d Cir. 1994).
109. The Third Circuit took pains to distinguish between interpretation of a private contract, to which it applied state common law, and questions of liability under CERCLA. The Beazer East, Inc. v. Mead Corp. opinion stressed several circuits apply state common law to construe private contractual terms in CERCLA cases but nevertheless use federal common law to decide CERCLA liability issues such as successor liability. Id. at 212 n.2 (collecting cases).
110. CERCLA liability issues, emphasized the Third Circuit, must be decided by federal common law, citing Smith Land and Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209 (3d Cir. 1993), in which the court had applied federal common law to govern when veil-piercing was justified under CERCLA.
111. Gould v. A&M Battery & Tire Service, 950 F. Supp. 653 (M.D. Pa. 1997);
112. Atl. Richfield Co. v. Blosenski, 847 F. Supp. 1261 (E.D. Pa. 1994).
113. Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 12 F. Supp.2d 391 (M.D. Pa. 1998);
114. Elf Atochem N. America v. United States, 908 F. Supp. 275 (E.D. Pa. 1995).
115. United States v. Atlas Minerals & Chem., Inc., 824 F. Supp. 46 (E.D. Pa. 1993);
116. Action Mfg. Co. v. Simon Wrecking Co., No. Civ.A. 02-CV-8964, 2005 WL 2104310 (E.D. Pa. Aug. 31, 2005).
117. 423 F.3d 294 (3d Cir. 2005).
118. Id. at 309. The title of this article as originally written was "Successor Liability Under CERCLA: Whither the Third Circuit on Substantial Continuity?" Since the General Battery opinion largely ended the suspense of where the Third Circuit was going on substantial continuity shortly before this article was published, the article was revised to incorporate the General Battery opinion and re-titled.
119. General Battery, 423 F.3d at 296-97.
120. Id. at 298-304.
121. Id. at 298-301.
122. Id. at 298-305.
123. Id. at 301-303.
124. The General Battery court also reasoned that federal law rather than state law should govern successor liability under CERCLA because it was engaging in interpretation of the term "corporation" under the statute. Id. at 305,
125. citing 42 U.S.C. § 9601(21).
126. In a partially dissenting opinion, Judge Rendell argued, principally in reliance on O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994),
127. Atherton v. FDIC, 519 U.S. 213 (1994),
128. and United States v. Bestfoods, 524 U.S. 51 (1998), that state common law should apply to determinations of successor liability under CERCLA, absent evidence that the law of Pennsylvania frustrated CERCLA's purpose of holding responsible persons liable for cleanup costs.
129. General Battery, 423 F.3d at 309-18, (Rendell, J., concurring in part and dissenting in part).
130. General Battery, 423 F.3d at 303,
131. quoting Smith Land & Improvement Corp. v. Celotex., 851 F.2d 86, 92 (3d Cir. 1988), cert. denied, 488 U.S. 1029 (1989).
132. General Battery, 423 F.3d at 305-09.
133. Id. at 309 n.11.
134. Id.
135. "We briefly address the District Court's alternative holding that Exide is liable under CERCLA on a 'substantial continuity' theory of successor liability. Prior to Bestfoods, several courts adopted the 'substantial continuity' test as a basis for CERCLA successor liability. 'Substantial continuity' eliminates certain elements of the de facto merger analysis - including the continuity of ownership requirement - and in effect creates a more expansive rule of liability than is accepted in most states. Recently, however, several courts of appeals have rejected the doctrine as inconsistent with Bestfoods. We agree Bestfoods held that CERCLA does not, sub silentio, abrogate fundamental common law principles of indirect corporate liability. Accordingly, 'substantial continuity' is untenable as a basis for successor liability under CERCLA." General Battery, 423 F.3d at 309 (citations omitted).
136. It should be noted that in Polius v. Clark Equipment Co., the Third Circuit rejected use of the "continuity of enterprise" exception in a products liability case decided under Virgin Island law. 802 F.2d 75, 80 (3d Cir. 1986).
137. The Polius decision seemed to be based primarily on a view that Section 402A of the Restatement (Second) of Torts was not sufficiently different from traditional negligence law so as to justify an extension of the traditional mere continuation exception that would impose liability upon a party which had no connection to the acts causing injury. Id. at 81.
138. Judge Mansmann in a concurring opinion urged adoption of the substantial continuity exception. Id. at 94 (Mansmann, J., concurring).
139. See also Atl. Richfield Co. v. Blosenski, 847 F. Supp. 1261, 1285-86 (E.D. Pa. 1994) (distinguishing Polius en route to applying substantial continuity exception in CERCLA case).
140. General Battery, 423 F.3d at 309.
141. United States v. Davis, 261 F.3d 1, 53-54 (1st Cir. 2001) (applying Connecticut law);
142. City Mgmt. Corp. v. United States Chem. Co., 43 F.3d 244, 252-53 (6th Cir. 1994) (applying Michigan law).
143. Interestingly, the Sixth Circuit recognized that Michigan had adopted the substantial continuity test in product liability cases, but held that Michigan law otherwise did not recognize the substantial continuity test. Id.
144. The Ninth Circuit in Atchison strongly indicated that state common law should determine issues of successor liability under CERCLA, and noted that California common law did not recognize the substantial continuity exception. Atchison, Topeka & Santa Fe Ry. v. Brown & Bryant, Inc., 159 F.3d 358, 364 (9th Cir. 1998).
145. But the Ninth Circuit ultimately did not decide whether state or federal common law should determine successor liability under CERCLA, because it held that federal common law also should reject the substantial continuity test. Id.
146. Fletcher, supra note 2, at § 4892.75;
147. New York v. Nat'l Serv. Indus., Inc., 352 F.3d 682, 687 (2d Cir. 2003).
148. Fletcher at § 4892.75;
149. National Services Industries, 352 F.3d at 687.
150. See, e.g., United States v. Carolina Transformer Co., 978 F.2d 832, 837-38 (4th Cir. 1992);
151. Blosenski, 847 F. Supp. at 1283.
152. Pennsylvania recognizes the four traditional exceptions to the general rule of non-liability for asset purchasers. In addition, Pennsylvania law has recognized a fifth exception: whether the purchase was made without adequate consideration and provisions were not made for creditors of the seller. See Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 308-09 (3d Cir. 1985).
153. The Pennsylvania Superior Court also has recognized the "product line" exception in product liability cases. Dawejko v. Jorgenson Steel Co., 434 A.2d 106 (Pa. Super. Ct. 1981). But Pennsylvania courts have not adopted the substantial continuity exception.
154. See Davis, 261 F.3d 1;
155. City Mgmt. Corp., 43 F.3d 244.
156. United States v. Bestfoods, 524 U.S. 51, 64 n.9 (1998) (The Court noted there is "significant disagreement among courts and commentators" regarding whether courts should employ state common law or federal common law of veil piercing, but found that it need not address the issue.).
157. 440 U.S. 714 (1979).
158. Id. at 728-29.
159. 512 U.S. 79 (1994).
160. 519 U.S. 213 (1994).
161. As Rep. James Florio (D-N.J.) stated during the final Superfund debates: [CERCLA] sets forth the classes of persons (for example, owners, operators, generators) who are liable for all costs of removal or remedial action, other necessary costs of response, and damages to natural resources. Rather than announce the standard [of liability], and then cut back on its applicability, this bill refers to section 311 of the Clean Water Act and to traditional and evolving principles of common law in determining the liability of such joint tortfeasors. To insure the development of a uniform rule of law, and to discourage business dealing in hazardous substances from locating primarily in States with more lenient laws, the bill will encourage the further development of a federal common law in this area. 126 Cong. Rec. 31, 965 (1980) (statement of Rep. Florio) (emphasis added).
162. See also 126 Cong. Rec. 30, 932 (1980) (statement of Sen. Randolph) ("It is intended that issues of liability not resolved by this act, if any, shall be governed by traditional and evolving principles of common law.') (emphasis added).
163. See also Smith Land & Improvement Corp. v. Celotex., 851 F.2d 86, 91 (3d Cir. 1988), cert. denied, 488 U.S. 1029 (1989) ("It is not surprising that, as a hastily conceived and briefly debated piece of legislation, CERCLA failed to address many important issues, including corporate successor liability. The meager legislative history available indicates that Congress expected the courts to develop a federal common law to supplement the statute.").
164. See Smith Land, 851 F.2d at 91-92.
165. Id. at 92;
166. United States v. General Battery Corp., 423 F.3d 294, 298-304 (3d Cir. 2005).
167. See 42 U.S.C. § 9613(f)(1) (2000). Alternatively, if the laws of forum states were applied, the same asset transfer transaction could result in CERCLA successor liability in one court but no such liability in another district.
168. See General Battery, 423 F.3d at 308-09 (noting CERCLA by its nature, including retroactive liability, upsets expectations of buyers and sellers of corporate assets).
169. Only one other appellate decision has addressed substantial continuity post-Bestfoods in a CERCLA case. In United States v. Davis, the First Circuit applying Connecticut law refused to use the substantial continuity test. 261 F.3d 1 (1st Cir. 2001).
170. The Davis court relied not only upon Bestfoods, but upon Boston Gas, a First Circuit precedent which had applied state common law in interpreting an indemnity provision in a CERCLA case. Id. at 54;
171. John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401 (1st Cir. 1993).
172. New York v. Nat'l Serv. Indus., Inc., 352 F.3d 682, 687 (2d Cir. 2003);
173. General Battery, 423 F.3d at 309.
174. The Ninth Circuit in Atchison, Topeka & Santa Fe Railroad v. Brown & Bryant, Inc. also chose not to use the substantial continuity test under federal common law without deciding whether state or federal common law should apply. 159 F.3d 358, 364 (9th Cir. 1998).
175. United States v. Bestfoods, 524 U.S. 51, 63 n.9 (1998).
176. Id.
177. Id. at 62-63.
178. See 19 Charles Alan Wright, Arthur Miller, & Edward H. Cooper, Federal Practice And Procedure: Jurisdiction § 4518 (2d ed.);
179. La. Acorn Fair Housing v. LeBlanc, 211 F.3d 298, 303 (5th Cir. 2000) (adopting own rule in Fair Housing Act case after noting circuit split).
180. See General Battery, 423 F.3d at 313 (Rendell, J., concurring in part, dissenting in part).
181. Bestfoods, 524 U.S. at 62-63.
182. O'Melveny & Myers v. FDIC, 512 U.S. 79, 84 (1994) (no reason why federal common law must conform to the law followed by most jurisdictions).
183. See Wright & Miller, supra note 103, at n.4 (collecting cases).
184. See also Smith Land & Improvement Corp. v. Celotex., 851 F.2d 86, 91-92 (3d Cir. 1988), cert. denied, 488 U.S. 1029 (1989).
185. See, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987);
186. Mozingo v. Correct Mfg. Corp., 752 F.2d 168 (5th Cir. 1985).
187. See United States v. Carolina Transformer Co., 978 F.2d 832 (4th Cir. 1992);
188. United States v. Mexico Feed & Seed Co., 980 F.2d 478 (8th Cir. 1992).
189. At least three Pennsylvania district court opinions applied the substantial continuity exception post-Bestfoods. Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 12 F. Supp.2d 391, 405-06 (M.D. Pa. 1998);
190. Pennsylvania Dep't of Envtl. Protection v. Concept Sciences, Inc., 232 F. Supp.2d 454, 457-59 (E.D. Pa. 2002);
191. United States v. Exide Corp., No. Civ.A 00-CV-3057, 2002 WL 319940 at *10-12 (E.D. Pa. Feb. 27, 2002), rev'd in part sub nom. General Battery, 423 F.3d 294.
192. Mexico Feed, 980 F.2d at 487;
193. N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 651 (7th Cir. 1998).
194. Smith Land, 851 F.2d at 91-92.
195. See, e.g., Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 310 (3d Cir. 1985). Dissolution of the seller as a factor has a history under the substantial continuity exception as applied to product liability cases, too.
196. See Turner v. Bituminous Casualty Co., 244 N.W.2d 873, 883-84 (Mich. 1976) (in this pioneering case applying the "continuity of enterprise" exception in a product liability context, the Michigan Supreme Court required that the seller dissolve soon after the sale in order to justify the exception).
197. Precisely how substantially related the seller and buyer corporation shareholders must be under this plus factor probably is incapable of a bright-line formulation applicable in all cases. But all of the exceptions to the rule of asset purchaser non-liability are equitable in nature and imprecise in definition and application. The oft-cited, eight-factor test for substantial continuity depends upon judicial judgment both with respect to each factor individually and with respect to the weight accorded to the various factors collectively. There is little precision, as well, about what constitutes fraud or the existence and weight of factors in the traditional de facto merger and mere continuation exceptions. Lack of precision in the formulation of this plus factor should not tarnish its utility.
198. 978 F.2d at 838.
199. Carolina Transformer, 978 F.2d at 838.
200. Id. at 835, 839.
201. Id. at 840-41.
202. Id. at 835.
203. Id. at 841.
204. United States v. Mexico Feed & Seed Co., 980 F.2d 478, 488 n.10 (8th Cir. 1992).
205. Id. at 489-90.
206. 824 F. Supp. 46 (E.D. Pa. 1993).
207. Id. at 50-51.
208. No. Civ.A. 02-CV-8964, 2005 WL 2104310 (E.D. Pa. Aug. 31, 2005).
209. Id. at *16, 18.
210. The court decided that the substantial continuity test did not apply, even though both sides briefed and argued the case as though the substantial continuity exception applied. Id. at *3 n.7.
211. The opinion, issued one week before the Third Circuit's General Battery decision, held that federal common law governed determination of successor liability under CERCLA, but the substantial continuity exception could not apply because it was not recognized in most jurisdictions and was an expansion of traditional common law. Id. at *6-12.
212. See Gould v. A&M Battery & Tire Service, 950 F. Supp. 653 (M.D. Pa. 1997);
213. Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 12 F. Supp.2d 391 (M.D. Pa. 1998).
214. 12 F. Supp.2d 391.
215. 908 F. Supp. 275 (E.D. Pa. 1995).
216. Andritz, 12 F. Supp. 2d at 406;
217. Elf Atochem, 908 F. Supp. at 282.
218. 950 F. Supp. 653 (M.D. Pa. 1997).
219. Id. at 657.
220. Elf Atochem, 908 F. Supp at 282-83.
221. Andritz, 12 F. Supp. 2d at 404.
222. New York v. Nat'l Serv. Indus., Inc., 352 F.3d 682, 694 (2d Cir. 2003) (Leval, J. concurring).