IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40440

VINE STREET LLC

 Plaintiff - Appellee

 v.

BORG WARNER CORP;

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

Before KING, JOLLY, and COSTA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal requires us to address the scope of so-called “arranger 

liability” under the Comprehensive Environmental Response, Compensation, 

and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a)(3), and the Texas 

Solid Waste Disposal Act (“TSWDA”), Tex. Health & Safety Code § 

361.271(a)(3), in the light of the Supreme Court’s decision in Burlington 

Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009). In 

2006, some three years before the Supreme Court decided Burlington 

Northern, the district court held a bench trial and ruled that Borg Warner 

Corp. was liable to Vine Street LLC for 75% of the costs associated with 

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2015

Lyle W. Cayce

Clerk

 Case: 07-40440 Document: 00512902065 Page: 1 Date Filed: 01/14/2015
No. 07-40440

cleaning up a plume of perchloroethylene, or “PERC,” that discharged from a 

dry cleaning business that operated from 1961 until 1975. The liability was 

associated with a former subsidiary of Borg Warner, Norge, which furnished 

dry cleaning equipment, design assistance, and an initial supply of PERC to 

the cleaning business. 

On appeal, Borg Warner argues that it is not liable to Vine Street under 

either CERCLA or the TSWDA because Norge did not intend to dispose of 

PERC when it sold dry cleaning equipment and an initial supply of PERC to 

the cleaners. Vine Street, the current owner of the subject property, argues, 

however, that Borg Warner intentionally disposed of PERC into the ground

because Norge knew that water separators designed to release wastewater, but 

not PERC, into the sewer were not completely effective. Additionally, Vine 

Street emphasizes that Norge, i.e., Borg Warner, played a key role in designing 

the dry cleaning facility, including connecting the equipment to drains that 

emptied into a sewer, and urges us to conclude that Norge’s role in the design 

supports a finding of intent. After a full review of the parties’ arguments and 

the record, we agree with Borg Warner and REVERSE and VACATE the 

district court’s judgment and REMAND for entry of judgment in favor of Borg 

Warner.

I.

The environmental damage at issue in this litigation stems from the 

operation of a dry cleaning business on a piece of property in Tyler, Texas, from 

1961 until 1975. The business, called “College Cleaners,” operated in 

collaboration with Norge, a former subsidiary of Borg Warner, to function as a 

“Norge Laundry & Cleaning Village” that offered customers self-service dry 

2

 Case: 07-40440 Document: 00512902065 Page: 2 Date Filed: 01/14/2015
No. 07-40440

cleaning.1 Norge sold six to eight dry cleaning machines to College Cleaners 

and provided an initial supply of PERC, the chemical used in the machines to 

clean the clothes.2 Additionally, Norge provided support to College Cleaners, 

assisting with the design of the building, installing machines in the building, 

testing the machines before the opening, and assisting customers with the 

operation of machines at the opening. Particularly relevant to this appeal, the 

district court also determined that Norge designed the drainage system and 

connected the dry cleaning machines to the drains and sewer system. 

As part of the drainage system, Norge equipped the dry cleaning 

machines with water separators that would release wastewater into the sewer 

and recycle PERC for future uses. These water separators were not completely 

effective, however, and some PERC discharged into the sewer along with the 

wastewater through Norge’s water separators.3 PERC was expensive, 

however, and both College Cleaners and Norge took steps to preserve as much 

PERC as possible. College Cleaners employees handled the PERC with care 

to avoid unintended waste. Several years after College Cleaners opened, Norge 

also modified the design of its water separators to reduce any loss of PERC

through the separators. From these facts, the district court concluded that 

1 Borg Warner sold Norge to a company called Fedders in 1968. At the time it sold 

Norge, it purported to assign the liabilities associated with Norge’s business to Fedders. Borg 

Warner has raised the issue of contractual allocation of liability on appeal, but as we explain 

infra, we need not reach that issue in order to decide this appeal. 

2 It appears that Norge only provided the initial supply of PERC. The cleaners 

received additional supplies of PERC from another company, and although Vine Street 

suggested in its brief that Borg Warner supplied its own PERC to the cleaners, there does 

not appear to be any evidence supporting this assertion in the record. 

3 Although there was some dispute in the district court as to the effectiveness of these 

separators, most of the PERC was recycled. It appears from the record that the parties 

largely operated on the assumption that the water separators were generally at least 95% 

effective.

3

 

 Case: 07-40440 Document: 00512902065 Page: 3 Date Filed: 01/14/2015
No. 07-40440

when the pollution occurred, “neither party intended to allow the discharge of 

PERC into the ground.” 

Some of College Cleaners’ PERC ultimately escaped from the sewer 

system and entered the soil and groundwater, contaminating both the College 

Cleaners property and another neighboring property. Vine Street later

acquired both pieces of property and learned of the PERC contamination. It 

applied to participate in the Texas Commission on Environmental Quality’s 

voluntary cleanup program. To offset its costs, Vine Street filed suit against 

Borg Warner and a number of other defendants. The case against Borg Warner 

proceeded to a bench trial, and the district court held it responsible for 75% of 

the past, present, and future cleanup costs, along with a number of other 

expenses. Vine Street was responsible for the remainder.

Borg Warner filed a timely notice of appeal, but this case was stayed 

shortly after Borg Warner filed its initial brief because Fedders, another party 

to the action, declared bankruptcy. Fedders was subsequently dissolved in 

bankruptcy, and this appeal resumed after the conclusion of those proceedings.

II.

As this case proceeded to a bench trial, “this court reviews findings of 

fact for clear error and legal issues de novo.” Delahoussaye v. Performance 

Energy Servs., L.L.C., 734 F.3d 389, 392 (5th Cir. 2013). Borg Warner has not 

challenged any of the district court’s factual findings on appeal, and thus this 

appeal turns on whether those facts support the district court’s legal 

conclusion, namely that Borg Warner is a responsible person for purposes of 

CERCLA and the TSWDA. We address each statute in turn.

A.

To establish CERCLA liability, the plaintiff must show: 

(1) that the site in question is a “facility” as defined in [42 U.S.C.] 

§ 9601(9); (2) that the defendant is a responsible person under [42 

4

 Case: 07-40440 Document: 00512902065 Page: 4 Date Filed: 01/14/2015
No. 07-40440

U.S.C.] § 9607(a); (3) that a release or a threatened release of a 

hazardous substance has occurred; and (4) that the release or 

threatened release has caused the plaintiff to incur response costs.

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989). The parties 

agree that the only dispute is whether Borg Warner is a “responsible person” 

under the second prong of the analysis.4 

The category of responsible persons under CERCLA applicable here is

the “arranger” category, which extends to

any person who by contract, agreement, or otherwise arranged for 

disposal or treatment, or otherwise arranged with a transporter 

for transport for disposal or treatment, of hazardous substances 

owned or possessed by such person, by any other party or entity, 

at any facility or incineration vessel owned or operated by another 

party or entity and containing such hazardous substances.

42 U.S.C. § 9607(a)(3). Borg Warner now concedes that its liability is coextensive with Norge’s, and thus our review focuses on Norge’s actions. In 

order to resolve this appeal, we need only interpret the phrase “arranged for 

disposal . . . of hazardous substances.” Id. We focus on the term “arrange,” 

which implies a scienter requirement, and the term “disposal,” which 

distinguishes between waste and useful products.

1.

a.

The Supreme Court recently clarified the standard applicable to 

CERCLA arranger claims in a case that bears a striking resemblance to the 

case before us. Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 

599 (2009). In Burlington Northern, an agricultural chemical distributor 

purchased several chemical products from Shell Oil Company. Id. at 602. 

4 Borg Warner does contest the amount of damages as an alternative argument on 

appeal. As we explain infra, we conclude that Borg Warner is not liable as an arranger, and 

thus we do not reach the issue as to damages. 

5

 

 Case: 07-40440 Document: 00512902065 Page: 5 Date Filed: 01/14/2015
No. 07-40440

Shell transported the chemicals to the distributor by common carrier, and they 

were transferred on arrival from tanker trucks into a storage tank. The 

distributor would then move the storage tanks around its property. Id. at 603–

604. Leaks frequently occurred during each stage of these transfers, and, 

critically, Shell was aware of the frequent spills on the distributor’s land. Id. 

Indeed, Shell developed additional protocols, including more detailed safety 

manuals and a discount program for distributors, to reduce spillage. Id. 

Despite Shell’s efforts, the distributor’s land became increasingly 

contaminated, and a number of parties to the cleanup sought to hold Shell 

liable as an arranger under § 9607(a)(3). 

The Court in Burlington Northern first noted two hypotheticals at 

opposite ends of the arranger liability spectrum: (1) an entity is always liable

under CERCLA if it enters into a transaction “for the sole purpose of discarding 

a used and no longer useful hazardous substance;” and (2) an entity is not liable

under CERCLA “merely for selling a new and useful product if the purchaser 

of that product later, and unbeknownst to the seller, disposed of the product in 

a way that led to contamination.” Id. at 610. Difficult issues of arranger 

liability arise, however, under “the many permutations of ‘arrangements’ that 

fall between these two extremes—cases in which the seller has some 

knowledge of the buyers’ planned disposal or whose motives for the ‘sale’ of a 

hazardous substance are less than clear.” Id. Because there are so many 

permutations, the Court recognized that whether an entity is an arranger is 

often a fact-specific question. Id. It also emphasized, though, that arranger 

“liability may not extend beyond the limits of the statute itself.” Id. 

Thus, the Court interpreted the term “arrange” to imply “action directed 

to a specific purpose” and held that “an entity may qualify as an arranger 

under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous 

substance.” Id. at 611. On the facts of Burlington Northern, the Court accepted 

6

 Case: 07-40440 Document: 00512902065 Page: 6 Date Filed: 01/14/2015
No. 07-40440

as true that Shell knew that its shipping conditions would result in spillage of 

hazardous substances. Id. at 612. Knowledge, standing alone, did not give rise 

to liability because “knowledge alone is insufficient to prove that an entity 

‘planned for’ the disposal, particularly when the disposal occurs as a peripheral 

result of the legitimate sale of an unused, useful product.” Id.

b.

Relevant to this appeal, Burlington Northern effected a partial change 

in this Circuit’s law. This Court has long recognized the so-called “useful 

product doctrine,” and we have held that a party is not liable as an arranger if 

it were engaged in the mere sale of a useful product that is not properly 

considered to be “waste.” See Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. 

Co., W.R., 906 F.2d 1059, 1065–66 (5th Cir. 1990). We did not require that a 

party intend to dispose of waste, however, as we imposed liability as long as 

there was a sufficient “nexus” between the purported arranger and the disposal 

of waste. See Geraghty & Miller, Inc. v. Conoco Inc., 234 F.3d 917, 929 (5th 

Cir. 2000). After Burlington Northern, we have recognized that Geraghty & 

Miller is no longer controlling authority. Celanese Corp. v. Martin K. Eby 

Constr. Co., 620 F.3d 529, 532 n.1 (5th Cir. 2010). 

On appeal, Borg Warner urges us to apply Burlington Northern and 

reverse the district court’s judgment in favor of Vine Street, which was based 

on the outdated nexus standard from Geraghty & Miller. We will review this 

appeal under the standard in Burlington Northern and, in doing so, conclude 

that Borg Warner is not an “arranger” under CERCLA.5

5 As a threshold matter, we conclude that Borg Warner preserved this issue for review 

on appeal. Generally, we must decide an appeal based on the law as it stands at the time we 

render our decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 n.16 (1981). An 

intervening change in the law, however, “normally does not permit a party to raise an entirely 

new argument that could have been articulated below or in the party’s opening brief.” 

Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 256 (5th Cir. 2013). In Learmonth, we 

7

 

 Case: 07-40440 Document: 00512902065 Page: 7 Date Filed: 01/14/2015
No. 07-40440

2.

Under Burlington Northern, the plaintiff must establish that the 

purported arranger took “intentional steps to dispose of a hazardous

substance.” 556 U.S. at 611. Thus, CERCLA arranger liability is premised

upon an intentional act directed toward the disposal of hazardous waste.

a.

i.

We focus first on the basic intent requirement, as the district court found

that the discharges of PERC were unintentional. In its opinion, the district 

court stated that “[w]hile the pollution happened many years ago, neither party 

intended to allow the discharge of PERC into the ground.” Vine Street seizes 

on the phrase “into the ground” and argues that even though Norge did not 

intend to pollute the groundwater, it nonetheless intended for PERC to 

discharge into the sewer. We believe that Vine Street overemphasizes the 

value in this phrase, when considered in the light of the district court’s opinion.

To be sure, the district court repeated and clarified its finding as to intent 

throughout its opinion. The district court noted that a witness “recalled no 

spills or intentional disposals of PERC that occurred and indicated College 

Cleaners personnel handled the rather expensive PERC with a high degree of 

care.” It also found no evidence of a manufacturing defect or improper 

declined to consider a new issue on appeal when the plaintiff “could have made the ‘general 

argument’ below.” Id. at 257.

Here, Borg Warner plainly made the same general argument below that it makes 

today. Before the district court, Borg Warner urged the court to consider “whether the 

purpose of the transaction was waste disposal” under the pre-existing nexus approach. It 

also argued that the so-called “useful product doctrine” was relevant to deciding whether 

there was a disposal of waste. Additionally, we note that Vine Street also argued the case 

under the Burlington Northern standard at oral argument. Vine Street merely contends that 

it meets Burlington Northern. Thus, we proceed to evaluate the case under Burlington 

Northern. 

8

 

 Case: 07-40440 Document: 00512902065 Page: 8 Date Filed: 01/14/2015
No. 07-40440

maintenance. Each of these separate findings underscores that the district 

court found a lack of intent on the part of Norge and that it imposed liability 

solely based on the weaker nexus that existed between Norge and the ultimate 

disposal of PERC down College Cleaners’ sewer line. 

ii.

Although the district court ruled before the Supreme Court decided 

Burlington Northern, we see no need to remand the case for any further fact 

finding under the Burlington Northern standard; Norge’s actions were plainly 

unintentional when viewed under that standard. Although the distinction 

between an intentional and a knowing act is a relatively fine one, Burlington 

Northern provides crucial clarification. First, the Court explained that Shell 

knew its shipping procedures “would result in the spilling of a portion of the 

hazardous substance of the purchaser or common carrier.” 556 U.S. at 612. In 

that same vein, the plaintiffs argued that Shell could anticipate the spills and 

thus it was properly liable as an arranger. Id. Vine Street makes a similar 

argument in different terms today: Norge knew that PERC would escape the 

water separators into the sewer system, and because the discharge was 

inevitable, Norge necessarily intended to discharge PERC into the sewer.

The Court rejected these arguments advanced by the plaintiffs, however, 

underscoring two factors. First, the Court emphasized that the disposal 

occurred “as a peripheral result of the legitimate sale of an unused, useful 

product.” Id. at 612. Critical to this appeal, the Court evaluated the 

underlying transaction and concluded that the purpose behind the transaction 

was to sell useful chemicals to distributors and not to dispose of them. Second, 

the Court pointed out that although Shell was aware of the spills, the spills 

were unintentional because “the evidence revealed that Shell took numerous 

steps to encourage its distributors to reduce the likelihood of such spills.” Id.

at 613. Thus, “[a]lthough Shell’s efforts were less than wholly successful, given 

9

 Case: 07-40440 Document: 00512902065 Page: 9 Date Filed: 01/14/2015
No. 07-40440

these facts, Shell’s mere knowledge that spills and leaks continued to occur is 

insufficient grounds for concluding that Shell ‘arranged for’ the disposal of [a 

hazardous substance].” Id. 

Both factors implicated in Burlington Northern are also implicated here. 

Vine Street and Borg Warner acknowledge that PERC was a useful product 

that was necessary to College Cleaners’ operation.6 To the point, the district 

court concluded both that College Cleaners employees handled PERC with care 

and that Norge designed its machines to recycle as much of the PERC as 

possible. Here, Norge’s dry cleaning machines contained water separators that 

would recycle most of the PERC and discharge wastewater into the sewer. 

Moreover, when we view the business relationship between Norge and College 

Cleaners as a whole, it is clear that the transaction centered around the 

successful operation of a dry cleaning business—not around the disposal of 

waste.

The First Circuit’s decision in United States v. General Electric Co., 670 

F.3d 377 (1st Cir. 2012), provides a useful contrast. In General Electric, an

alleged arranger had accumulated a glut of a scrap material, low-quality 

Pyranol, that it sold at bargain prices to a manufacturer that intended to use 

the scraps as a paint additive. Id. at 380. The manufacturer missed payments 

on the scrap material, but the arranger continued to send supplies of the scrap 

material. Id. The First Circuit concluded that the scrap Pyranol was not a 

useful product because there was no evidence that the arranger viewed the 

product as having value or marketed it as valuable. Id. at 386–87. The court 

6 Vine Street argues that Borg Warner has waived its useful product arguments 

because the useful product doctrine is an affirmative defense that Borg Warner failed to plead 

in its complaint or raise at trial. Borg Warner repeatedly raised its useful product arguments 

in the district court, and we may consider its arguments on appeal, particularly as they are 

now intertwined with the Burlington Northern analysis of intent. 

10

 

 Case: 07-40440 Document: 00512902065 Page: 10 Date Filed: 01/14/2015
No. 07-40440

also emphasized the suspicious facts in that case, where the manufacturer 

received unsolicited increases of the Pyranol and received such shipments even 

after regularly missing payments. Id. at 388. In short, the CERCLA defendant

in General Electric attempted to dispose of excess waste products through the 

guise of a legitimate transaction.

Here, there is no evidence to suggest that Norge engaged in subterfuge 

to disguise the disposal of PERC as a legitimate transaction surrounding the 

operation of a dry cleaning business. Unlike General Electric, Norge’s PERC 

was unused and not a scrap material, and Norge also sold College Cleaners the 

equipment needed to put the PERC to use. Indeed, the record reveals that 

College Cleaners successfully operated for some fifteen years at that location 

and that it used, and reused, Norge’s supply of PERC.7 Thus, as in Burlington 

Northern, the purpose of the transaction between Norge and College Cleaners 

was to sell PERC and dry cleaning equipment, two unused, useful products. 

Both Norge and College Cleaners intended that the water separators would 

recycle the expensive PERC for future uses.

In an analogous context, we declined to hold manufacturers of asbestos 

liable for environmental cleanup costs because the manufacturers designed the 

materials “for the primary purpose of creating a new useful and marketable 

product for the construction industry.” Dayton, 906 F.2d at 1065. When those 

manufacturers sold the materials to the CERCLA plaintiffs, they were not 

“disposing” of the product. Id. To that end, we have said that arranger liability 

applies to those “who would attempt to dispose of hazardous wastes or 

substances under various deceptive guises in order to escape liability for their 

7 Indeed, Vine Street’s counsel stated at oral argument that Norge’s initial supply of 

PERC to College Cleaners constituted approximately 20% of the PERC used throughout the 

fifteen-year lifetime of the cleaners. This fact underscores that Norge’s supply of PERC was 

a useful product and that much of the PERC was successfully recycled. 

11

 

 Case: 07-40440 Document: 00512902065 Page: 11 Date Filed: 01/14/2015
No. 07-40440

disposal.” Id. at 1066. Here, that description simply does not apply to Norge. 

We repeat that distinction: Norge supplied College Cleaners with a supply of 

unused, useful PERC, and some of that PERC inadvertently discharged 

because the water separators were not completely effective.

Furthermore, Norge developed the water separators to separate 

wastewater from PERC and proceeded to develop additional measures to 

reduce any discharges of PERC after it learned that the separators were not 

completely efficient. The district court treated Norge’s subsequent remedial 

measures as evidence that Norge did arrange for the disposal of a hazardous 

substance because the measures confirmed Norge’s knowledge of the 

discharges. Following Burlington Northern, however, it is evident to us that 

these remedial measures, coupled with the design of the water separators,

generally cut against a finding of intent.

In sum, we hold that Norge did not intend to discharge PERC under the 

standard set out in Burlington Northern. 

b.

Finally, Vine Street attempts to distinguish this case on the basis that 

Norge was integrally involved in installing the dry cleaning machines and 

connected them to the drains and sewer line. We are unmoved by this 

distinction.

Vine Street’s purported distinction flows in large part from dicta in a 

Ninth Circuit case, in which that court held that a dry cleaning equipment 

manufacturer was not liable as a CERCLA arranger but still took time to note

that there was no evidence that the manufacturer “hooked up [the equipment] 

to the sewer.” Team Enters., LLC v. W. Inv. Real Estate Trust, 647 F.3d 901, 

12

 Case: 07-40440 Document: 00512902065 Page: 12 Date Filed: 01/14/2015
No. 07-40440

911 (9th Cir. 2011).8 The Team Enterprises court, however, was only pointing 

out the complete lack of evidence in the case before it; it did so by pointing to a 

number of factual scenarios that might give rise to a finding of intent that were 

absent in the case before it. The Ninth Circuit plainly did not hold that merely 

connecting dry cleaning equipment to a sewer is sufficient evidence of intent.

To be certain, the reasoning of Team Enterprises actually contradicts 

Vine Street’s position here. In Team Enterprises, dry cleaning equipment was 

designed so that the machines would deposit wastewater into a bucket. PERC 

would separate from the wastewater in the bucket, and the cleaner could 

recycle PERC while pouring wastewater (along with invisible amounts of 

PERC) down the drain. Id. at 906. Much like Vine Street here, the plaintiff in 

Team Enterprises argued that “intent can be inferred from [the 

manufacturer’s] designing its product in such a way as to render disposal 

inevitable.” Id. at 909. Here, Vine Street argued repeatedly that intent can be 

inferred from the fact that discharge was “inherent” from the inefficiencies of 

the water separators. The Ninth Circuit concluded, however, that “[t]he selfevident purpose of the [dry cleaning machine] was to recover and to recycle 

usable [PERC] that would otherwise be discarded.” Id. Thus, the court held 

that the plaintiff had failed to show that the manufacturer intended to 

discharge PERC. Id. at 909–10.

As in Team Enterprises, Norge designed its machines and the dry 

cleaning facility with the intent that College Cleaners could reuse its supply of 

8 Additionally, Vine Street points to a pre-Burlington Northern case from a California 

district court in which the court concluded that a CERCLA plaintiff could survive a motion 

to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, in part because the 

complaint alleged that the equipment manufacturer connected the machines “to the building 

drain, which was itself connected to the sewer system.” Cal. Dep’t of Toxic Substances Control 

v. Payless Cleaners, 368 F. Supp. 2d 1069, 1080 (E.D. Cal. 2005). As we explain infra, we 

find this district court case unpersuasive. 

13

 

 Case: 07-40440 Document: 00512902065 Page: 13 Date Filed: 01/14/2015
No. 07-40440

PERC. It did not intend to dispose of PERC, and thus Borg Warner is not liable 

as an arranger. 

B.

Finally, we turn to Vine Street’s additional claim under the Texas Solid 

Waste Disposal Act. An entity is an arranger under the TSWDA if it:

(3) by contract, agreement, or otherwise, arranged to process, 

store, or dispose of, or arranged with a transporter for transport to 

process, store, or dispose of, solid waste owned or possessed by the 

person, by any other person or entity at:

(A) the solid waste facility owned or operated by another 

person or entity that contains the solid waste; or

(B) the site to which the solid waste was transported that 

contains the solid waste.

Tex. Health & Safety Code § 361.271(a)(3). We have held that “we are 

confident that the Texas Supreme Court would apply Burlington [Northern] to 

[a party’s] SWDA claim.” Celanese Corp., 620 F.3d at 534. Thus, we hold that 

Vine Street’s TSWDA fails for the same reasons as its CERCLA claim.

III.

Consequently, Borg Warner is entitled to judgment in its favor on Vine 

Street’s CERCLA and TSWDA claims because Norge, its subsidiary, did not 

intentionally dispose of a waste product when it sold dry cleaning equipment 

and an initial supply of PERC to College Cleaners. We should note that the 

Supreme Court’s decision in Burlington Northern changed the relevant law 

while this case was on appeal. Accordingly, we hold that the district court’s 

decision cannot stand in the light of Burlington Northern.

REVERSED, VACATED, and REMANDED,

for entry of judgment in favor of Borg Warner.

14

 Case: 07-40440 Document: 00512902065 Page: 14 Date Filed: 01/14/2015