Managing Environmental Liability and Litigation Risk in Business Transactions

(252 Ratings)

Produced on: April 24, 2017

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 90 minutes
Difficulty Intermediate

Navigating environmental risk in deal transactions is a multi-faceted endeavor. It requires an in-depth understanding of several moving parts that together comprise environmental liability risk for any business concern involved in a deal, including: a panoply of environmental law and regulation in the United States and those of other countries where transactions involve international assets and corporate entities, the potential magnitude of site contamination or regulatory non-compliance risk at play in comparison with a deal’s size, and the practical realities associated with impacts on development or operating costs and timeframes. Proper allocation of risk as between buyer and seller, target and acquirer and lender and borrower is, at its base, an exercise in liability/litigation risk management. An awareness of the modern tools for environmental due diligence investigations, third-party risk transfer mechanisms, is key to effective management of those risks.

Using several case studies as examples of deal types, two veteran attorneys from Kelley Drye & Warren’s Environmental Practice Group, Michael Dobbs and Steven Humphreys, take an in-depth look at how to effectively identify and approach environmental concerns in a variety of deal settings so that it does not get in the way of a timely deal signing and closing.

Learning Objectives: 

  1. Understand the legal landscape that drives environmental liability risk in deal transactions
  2. Tailor due diligence efforts to relevant risks based on deal type (e.g., real estate, asset, equity, debt) and size
  3. Gain insight on options for achieving effective contractual risk allocations quickly and efficiently

  4. Identify the modern innovative tools for shifting risk to third-party vendors (e.g., insurance and guaranteed remediation contracts)

  5. Grasp how to minimize potential liability and litigation exposure for cost recovery, personal injury and property damage claims and to preserve rights to pursue cost recovery claims against other responsible parties

Faculty

Steven L. Humphreys

Kelley Drye & Warren LLP

Steve Humphreys is special counsel in the firm's Parsippany office, where he concentrates in all aspects of environmental law and related counseling of businesses. He also assists business clients in such emerging fields as environmental sustainability business auditing, renewable energy development and energy conservation infrastructure. Other areas of emphasis in Mr. Humphreys' practice include litigation and regulatory compliance counseling in matters arising under CERCLA, the federal Resource Conservation and Recovery Act (RCRA), Clean Air Act, Clean Water Act, and various state and local environmental laws, as well as environmental aspects of business transactions.

 

Mr. Humphreys represents purchasers and sellers of contaminated or potentially contaminated and “brownfields” properties in transactions involving single and multiple properties, both in the United States and abroad, and he represents lenders and borrowers in commercial loan transactions and loan workouts. He has particular experience in developing strategies for the identification, management and allocation of environmental risk in business transactions, including the use of environmental insurance products, guaranteed remediation contracts and governmental liability protections to offset risk.

 

Mr. Humphreys also represents owners of real property seeking to manage environmental liabilities through voluntary cleanup programs and property transfer laws such as the New Jersey Industrial Site Recovery Act. He has experience retaining and managing environmental engineering firms, including response action contractors, for projects involving the investigation and remediation of contaminated property.

 

Another aspect of Mr. Humphreys' practice involves the representation of clients in prosecuting and defending claims under the federal Superfund law (CERCLA) and comparable state statutes for recovery of costs associated with cleaning up environmental contamination at various types of industrial and commercial properties. Mr. Humphreys also has represented corporate clients regarding regulatory enforcement actions and/or obligations arising under CERCLA, RCRA, the Clean Air Act, Clean Water Act, federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and various state and local environmental laws. In addition, Mr. Humphreys has represented corporate clients and property owners in the prosecution of several insurance recovery cases, leading to the recovery of millions of dollars in proceeds under insurance policies for environmental-related damages and losses.

 

Mr. Humphreys' practice also includes counseling clients in a wide range of compliance issues arising under federal and state environmental laws, primarily with regard to hazardous waste regulation and water and air permitting matters. He has participated in the development of significant federal rulemakings under CERCLA and RCRA through the submission of comments on behalf of affected parties.

 

Mr. Humphreys has written numerous articles on various environmental law issues, including environmental considerations in real estate and corporate transactions, criminal enforcement of environmental laws and hazardous waste cleanup cost recovery. He also is a frequent speaker at conferences and seminars on environmental law topics. His recent speaking engagements have included such topics as "Water Rights and Resource Management," "Buying and Selling Contaminated Properties" and "New York's Brownfields Cleanup Program."

 

Representative Experience

 

Environmental Aspects of Transactions

Oversaw environmental due diligence and negotiation of contractual allocations of environmental risk in the following transactions:

  • The merger of two leading generator sales and service companies.
  • More than a dozen bank branch real estate purchase and leasing transactions for a leading global financial services firm.
  • A leading manufacturer and distributor in the automotive aftermarket industry in a sale-leaseback transaction involving a Long Island City facility.
  • A private equity firm in the acquisition of a medical device manufacturer.
  • A private equity firm and the private equity arm of a global bank in the sale of a medical device manufacturer to a global rehabilitation device company.
  • A multibillion-dollar global software, hardware and services company in the acquisition of an international mail and messaging business.
  • An Indian telecommunications provider in its purchase of a sub-sea cable system connecting North America, Asia and Europe.
  • A private equity company in the acquisition of a medical device manufacturer.
  • One of the largest suppliers of gases and gas handling equipment in the acquisition of six air separation plants in divestiture of the assets of another gas products company.
  • A global investment bank and a private investment firm in the acquisition of a publishing company.
  • A global investment bank Series A financing of “Mosquito Magnet” manufacturer.
  • A national commercial real estate company in an asset purchase from a consumer products company.
  • A leading public/private community development company in its partnership/leases with three military bases under Residential Communities Initiative.
  • A golf course construction and management company joint venture for redevelopment into a golf course of a municipal landfill.
  • A leading manufacturer and distributor in the automotive aftermarket industry in asset purchases from an automotive manufacturer.

 

Superfund

  • Served as liaison counsel to a mid-tier group of 18 potentially responsible parties (PRPs) at the Mattiace Petrochemical Superfund Site in Glen Cove, N.Y., bringing the group's potential liability to a settlement that included an innovative remediation contractor liability buy-out for future costs, the first ever such arrangement accepted by EPA Region II headquarters at a federal Superfund site.
  • Represented individual PRPs and/or defendants at the Combe Fill South Landfill Superfund Site in Chester, N.J.; Burlington Environmental Management Services Superfund Site in Burlington County, N.J.; Maryland Sand and Gravel Superfund Site in Elkton, Md.; Bypass 601 Superfund Site in Concorde, N.C.; ILCO Superfund Site in Leeds, Ala.; Neals Landfill Superfund Site in Monroe County, Ind.; and Parker Landfill Superfund Site in Lyndon, Vt.
  • Prosecuted and defended New Jersey Spill Act cost recovery claims on behalf of a developer in two cases involving nine chromium-contaminated sites in Hudson County, N.J.

 

Regulatory Enforcement Actions

  • Represented a plumbing products manufacturer in a civil complaint by L.A. City Attorney's office pertaining to storm water discharges.
  • Represented a plumbing products manufacturer in a civil complaint by EPA Region IX involving alleged violations of SARA Title III.
  • Represented a consumer electronics, lighting and home appliances company in an appeal of a state water discharge permit matter before the Indiana Supreme Court, resulting in the reversal of two lower court rulings. [Case reported at 614 N.E.2d 916 (Ind. 1993)].
  • Represented property owners and responsible parties in contaminated site remediation projects arising under state cleanup and/or property-transfer statutes, including sites located in New Jersey, New York, Connecticut, Massachusetts, District of Columbia, Illinois, Texas and Florida.
  • Represented corporate clients in enforcement actions brought under various federal and state environmental laws, including the Clean Water Act, Clean Air Act, RCRA, FIFRA, New Jersey Toxic Catastrophe Prevent Act, New York pesticide law, South Carolina air pollution control law, Florida underground storage tank law, California "Proposition 65" law and District of Columbia underground storage tank law.

 

Memberships & Associations

  • American Bar Association, Section on Natural Resources, Energy and Environmental Law
  • New Jersey State Bar Association, Environmental Law Section
  • Federal Bar Association, Section on Environment, Energy and Natural Resources, Environmental Law Committee, Former Chairman

 

Professional Activities

  • Serve as judge for environmental law moot court competitions.

 

Community Activities

  • Patriots' Path Council of Boy Scouts of America, Board of Directors
  • Basketball coach for extramural youth league

 

Honors & Awards

  • Recognized by the Federal Bar Association for service as chairman of FBA Environmental & Energy Committee.

 

Pro Bono

  • Represented indigent plaintiff in complaint against District of Columbia for mishandling of deceased son's corpse.

Michael Dobbs

Kelley Drye & Warren LLP

Micheal Dobbs has nearly two decades of experience in commercial, environmental and tort litigation matters, with an emphasis on environmental litigation and regulatory matters.  He has served in leading roles in some of the largest and most complex environmental litigation matters in the country, and has been at the forefront of contaminated waterway issues.  Micheal represents clients in a wide range of other environmental matters, including CERCLA, RCRA, the Oil Pollution Act, the Clean Water Act and property-damage claims.  In addition, he has extensive experience representing clients in a variety of commercial litigation matters, including matters involving condemnation, breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation and contract interpretation.

Micheal also spends significant time resolving real estate and environmental regulatory matters, including negotiating and facilitating the purchase, sale, lease and cleanup of environmentally impacted properties.  In connection with these transactional matters, Micheal provides particular expertise in property transfer issues, easement and leasehold negotiations, indemnity protections and the negotiation and administration of property cleanup and remediation agreements.  He also handles environmental regulatory matters before state and federal agencies.

Micheal has resolved environmental claims valued into the hundreds of millions of dollars.  Micheal serves as special counsel to the Attorney General of the state of New Jersey in pursuing remediation costs, economic damages and natural resource damages associated with the dioxin contamination of the Passaic River and Newark Bay.  This decade-long litigation settled for $355 million in costs and damages, including $67.5 million in restoration projects, and up to an additional $400 million for future remediation costs.  Micheal also represented the Port of Houston Authority in litigation against a neighboring pesticide plant for releases of hazardous substances into the adjacent property and navigable waters.  The port obtained a settlement valued at $100 million, which the National Law Journal named as one of the ten most significant settlements in Texas that year. 

 
COMMUNITY ACTIVITIES

Micheal Dobbs is also an Eagle Scout and is active in the Boy Scouts of America.


Reviews

RV
Ron V.

Excellent overview of environmental law and practice

JL
Joseph L.

Course was pretty good.

HL
Harold L.

Good presentation.

WZ
William Z.

Excellent.

PL
Paul L.

good

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$89

$ 89 Environmental Law and Litigation In Stock

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