IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Case No. 2:17-cv-783-EAS-EPD

JUDGE EDMUND A. SARGUS, JR.

CHIEF MAGISTRATE JUDGE 

ELIZABETH PRESTON DEAVERS

GARRISON SOUTHFIELD PARK LLC,

Plaintiff,

v.

CLOSED LOOP REFINING AND 

RECOVERY, INC., et al.,

Defendants.

Case No. 2:19-cv-1041-EAS-EPD

JUDGE EDMUND A. SARGUS, JR.

CHIEF MAGISTRATE JUDGE 

ELIZABETH PRESTON DEAVERS

OLYMBEC USA LLC,

Plaintiff,

v.

CLOSED LOOP REFINING AND 

RECOVERY, INC., et al.,

Defendants.

MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT EXECUTED

BY PLAINTIFF GARRISON SOUTHFIELD PARK LLC, PLAINTIFF

OLYMBEC USA LLC, AND DEFENDANT COMPUPOINT USA, LLC

Plaintiff Garrison Southfield Park LLC (“Garrison”), Plaintiff Olymbec USA LLC 

(“Olymbec,” along with Garrison referred to as the “Plaintiffs”), and Defendant CompuPoint 

USA, LLC (“Settlor”) move the Court to enter an Order approving the Settlement Agreement

between Plaintiffs and Settlor. This motion is supported by the attached Memorandum and the 

attached Settlement Agreement.

For the Court’s convenience, a proposed order has been attached hereto. 

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MEMORANDUM IN SUPPORT

I. Background

Plaintiffs and Settlor have negotiated a settlement and seek the Court’s approval of the 

Settlement Agreement attached hereto as Exhibit A (“the Settlement Agreement”). The

Settlement Agreement resolves Plaintiffs’ claims against Settlor pursuant to Section 107 of the 

Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 

U.S.C. § 9607, and Ohio common law, for past and future costs to clean up cathode ray tubes 

and other electronic wastes (collectively, “E-Waste”) at Garrison’s two contiguous warehouses 

located at 1655 and 1675 Watkins Road in Columbus, Ohio and at Olymbec’s warehouse located 

at 2200 Fairwood Avenue in Columbus, Ohio (collectively, the “Facility”). 

Defendant Closed Loop Refining and Recovery, Inc. (“Closed Loop”) leased the Facility 

or portions thereof from the Plaintiffs, and Closed Loop and/or Closed Loop Glass Solutions (an 

affiliate of Closed Loop) then received, stockpiled, and abandoned E-Waste received from their 

customers at the Facility. Declaration of Karl R. Heisler (“Heisler Decl.”), ¶¶ 4, 6 (Exhibit B); 

Declaration of Randall B. Womack (Womack Decl.”), ¶¶ 4, 6 (Exhibit C). Plaintiffs allege that 

the E-Waste constitutes hazardous substances subject to CERCLA, based on total lead content 

from samples collected from the Facility and common industry knowledge. Heisler Decl., ¶ 7; 

Womack Decl. ¶ 7. Plaintiffs retained consultants to estimate the total weight of E-Waste in the 

Facility and to estimate the necessary costs that Plaintiffs will incur to remove it, to lawfully 

dispose of it, and to decontaminate the Facility by removing the lead dust deposited on the floors, 

walls, columns, rafters, and contents, all consistent with the U.S. Environmental Protection 

Agency National Contingency Plan at 40 C.F.R. Part 300. Heisler Decl. ¶ 8; Womack Decl., ¶ 

8. The consultants estimate that the Facility contains approximately 159,104,489 pounds (79,552 

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tons) of E-Waste, and that the response costs will be approximately $22,248,442. 1 Heisler Decl.,

¶¶ 8, 9, 11; Womack Decl., ¶¶ 8, 9, 11. 

Plaintiffs have obtained Closed Loop records providing detailed accounts of the weight of 

E-Waste that Closed Loop received from its customers, including accounting spreadsheets, 

commodity purchase agreements, bills of lading, weight tickets, purchase orders, and related 

shipping documentation. Heisler Decl., ¶ 6; Womack Decl., ¶ 6. According to these records,

and as confirmed by Settlor’s reasonable inquiry, Settlor arranged for the transport of the weight 

of E-Waste to the Facility that appears in Appendix A to its Settlement Agreement, which is 

2,926,499 lbs. Heisler Decl., ¶ 6; Womack Decl., ¶ 6. 

Plaintiffs have been using a straightforward cost recovery formula in settlement 

negotiations that allocates a percentage to each potentially responsible party (“PRP”) based on 

records that identify the total weight of E-Waste that the PRP shipped to the Facility, as 

compared to the total weight of the E-Waste shipped to the Facility by all PRPs. Heisler Decl., ¶ 

11; Womack Decl., ¶ 11. Plaintiffs then applied this percentage to the estimated cleanup costs

of $22,248,442. Heisler Decl., ¶ 11; Womack Decl., ¶ 11. Using this formula, Plaintiffs 

calculated Settlor’s share for settlement purposes at $494,948. Heisler Decl., ¶ 11; Womack 

Decl., ¶ 11. Plaintiffs, however, have noted in prior motions for approval of settlement 

agreements that Plaintiffs may make exceptions to this formula for some PRPs when 

circumstances warrant, such as a PRP that is unable to pay its allocated share.

Settlor has informed Plaintiffs that Settlor is unable to pay the share assigned to its E-

 1 The removal preliminary assessments estimated response costs at approximately $18,371,174.98, which provided 

the basis for settlements previously submitted to the Court for judicial approval. Heisler Decl., ¶ 8; Womack Decl., ¶

8. Based on the removal assessment subsequently conducted for purposes of the CERCLA action memoranda and 

hazardous waste closure plans, the estimate was updated and revised to $22,248,442. Heisler Decl., ¶ 8; Womack

Decl., ¶ 8.

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Waste contributions at the Facility under Plaintiffs’ cost recovery formula and has provided 

Plaintiffs with copies income tax returns evidencing financial conditions of the Settlor over the 

last five (5) years to demonstrate this point. Declaration of Murtaza Dohadwala (“Dohadwala 

Decl.”), ¶ 6 (Exhibit D). Plaintiffs have examined these financial records and concur with 

Settlor’s representation. Heisler Decl., ¶ 11; Womack Decl., ¶ 11. 

Settlor has also informed Plaintiffs, however, that Settlor is able to compensate Plaintiffs 

for most of its share through the provision of in-kind, electronic waste recycling services. As inkind services for its share of the environmental cleanup costs at the Facility, and at no cost to 

Plaintiffs, Settlor has agreed to collect, transport, and recycle 2,926,499 lbs of E-Waste from the 

Facility in compliance with federal, state, and local law. Heisler Decl., ¶ 11; Womack Decl., ¶ 

11. Settlor has further agreed to provide such services starting no later than thirty (30) days after 

the Effective Date of the Settlement Agreement and on a schedule of no less than 250,000 lbs of 

E-Waste per week thereafter, unless otherwise agreed to in a written modification entered into by 

the Parties pursuant to Section 13(h) of the Settlement Agreement. Heisler Decl., ¶ 11; Womack 

Decl., ¶ 11. Taking into consideration the market rate of such services and the nature and 

quantity of E-Waste to be recycled, Plaintiffs have valued these in-kind services at 

approximately $400,000. Heisler Decl., ¶ 11; Womack Decl., ¶ 11.

To facilitate the arrangement, Plaintiffs have agreed to make arrangements to pay Settlor 

per-pound processing fees to recycle an additional 2,926,499 lbs of E-Waste, with all costs of 

collection and transport to be borne by Settlor. Heisler Decl., ¶ 11; Womack Decl., ¶ 11. Such 

payments shall be shall be based on prevailing market rates for similar services and shall be 

made via escrow accounts pursuant to escrow agreements between Plaintiffs and the State of 

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Ohio EPA set up for purposes of funding the cleanup effort with settlement proceeds from other 

settlors. Heisler Decl., ¶ 11; Womack Decl., ¶ 11.

The remaining portion of the share assigned to Settlor for E-Waste contributions to the 

Facility (i.e., approximately $94,948) cannot be funded from company assets or any projected

cashflow that might occur in the near future, after taking into account the costs Settlor will incur 

to perform the services, which include transportation costs projected to exceed $250,000. 

Dohadwala Decl., ¶ 6. Settlor does not foresee any opportunity to raise these additional funds 

through its current or anticipated operations. Id., ¶ 6. Consequently, Plaintiffs have agreed to 

settle their claims against Settlor for in-kind services valued at approximately $400,000. See 

Appendix A of the Settlement Agreement. 

This Court has ruled that it is reasonable to consider a defendant’s compromised financial 

position when evaluating the fairness of CERCLA settlements. See, e.g., Responsible Envtl. 

Solutions Alliance v. Waste Mgmt., Inc., 2011 WL 382617, No. 3:04-cv-013, *3-*4, *10 (S.D. 

Ohio, Feb. 3, 2011); United States v. Atlas Lederer Co., 494 F. Supp.2d 629, 637-38 (S.D. Ohio 

2005). Based on Settlor’s limited ability to pay, Plaintiffs and Settlor agree that the Settlement 

Agreement is fair, adequate, and reasonable. 

It is also worth noting that the State of Ohio will not object to the Settlement Agreement 

and will consider Settlor’s CERCLA liability to the State of Ohio satisfied, subject to certain 

preconditions, including this Court’s issuance of contribution protection pursuant to CERCLA 

Section 113(f)(1). See Exhibit G. 

Plaintiffs and Settlor now ask the Court to approve the Settlement Agreement. Pursuant 

to Section 6 of the Settlement Agreement, consummation of the settlement is contingent on the 

Court’s entry of an Order providing that the value of Settlor’s in-kind services for settlement be 

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credited pro tanto, and not pro rata, in determining the equitable share of defendants other than 

Settlor. Plaintiffs and Settlor ask the Court to enter an Order to that effect. 

Plaintiffs and Settlor also request the Court to discharge and/or bar all past, present, and 

future counterclaims, cross-claims and other claims against Settlor relating to the Facility, 

including any claims which have been or which could be made by any party to this case or any 

other person, except for certain claims listed in Paragraphs 4 and 9 of the Settlement Agreement. 

These exceptions include a reopener in Paragraph 9 if new information reveals the weight of 

materials attributable to Settlor is twenty percent (20%) or more in excess of the weight of 

materials identified in Appendix A to the Settlement Agreement, or that the weight of materials 

attributable to Settlor is at least 50,000 lbs in excess of the weight of the materials identified in 

Appendix A to the Settlement Agreement, whichever is lower. This reopener is designed to 

make sure that Settlor pays its fair share even if evidence obtained in future discovery discloses 

that the Settlor is responsible for a quantity of E-Waste not considered in calculating the 

settlement amount in the Settlement Agreement. 

II. Argument

A. The Settlement Agreement Should Be Approved By The Court 

Because Settlements Are Favored, And The Settlement Agreement Is

Fair, Is Reasonable, And Satisfies The Requirements of CERCLA.

“The general policy of the law is to support voluntary settlements.” United States v. 

Cantrell, 92 F. Supp.2d 718, 723 (S.D. Ohio 2000) (approving CERCLA consent decrees). See 

also United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990) (“In the first place, it 

is the policy of the law to encourage settlements”). While a trial court must evaluate a settlement 

agreement, “public policy generally supports ‘a presumption in favor of voluntary settlement’ of 

litigation.” United States v. Lexington-Fayette Urban County Gov’t, 591 F.3d 484, 490 (6th Cir. 

2010), quoting United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1436 (6th Cir. 1991).

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The Sixth Circuit has stated that the district courts must evaluate a CERCLA settlement 

for “fairness, reasonableness and consistency with the statute.” Akzo Coatings, 949 F.2d at 1426. 

Accord, Cannons Eng’g, 899 F.2d at 85. The same standards apply to CERCLA settlements 

between private parties. Responsible Envtl. Solutions Alliance v. Waste Mgmt., Inc., 2011 WL 

382617, No. 3:04-cv-013, *2 (S.D. Ohio, Feb. 3, 2011).

A district court is not required to delve into the fine points of a settlement, or to 

determine if other options are available. It is not the court’s “function to determine whether [a 

settlement] is the best possible settlement that could have been obtained, but only whether it is 

fair, adequate and reasonable.” Akzo Coatings, 949 F.2d at 1436. As explained in Subsections 1 

through 4 below, the proposed settlement is fair, reasonable, and consistent with CERCLA. 

1. The Settlement Negotiations Satisfy Procedural Fairness.

A CERCLA settlement “must be both procedurally and substantively fair.” Responsible 

Envtl. Solutions, 2011 WL 382617 at *2, citing Cannons Eng’g, 899 F.2d at 86. With respect to 

procedural fairness, “[t]here is a strong presumption in favor of voluntary settlements in 

CERCLA litigation.” United States v. 3M Co., 2014 WL 1872914, at *5, No. 3:14-cv-32 (S.D. 

Ohio, May 8, 2014), citing Akzo Coatings, 949 F.2d at 1436.

The procedural component is satisfied if the negotiations were conducted fairly. “To 

measure procedural fairness, a court should ordinarily look to the negotiation process and 

attempt to gauge its candor, openness, and bargaining balance.” Cannons Eng’g, 899 F.2d at 86. 

While “there can be no easy-to-apply check list of relevant factors” to measure fairness, one 

factor to be considered is whether all defendants have “had an opportunity to participate in the 

negotiations.” Id. at 86-87. “The Court must determine that the negotiators bargained in good 

faith.” Cantrell, 92 F. Supp.2d at 724, citing Kelley v. Thomas Solvent Co., 717 F. Supp. 507, 

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517 (W.D. Mich. 1989). See also Cantrell, 92 F. Supp.2d at 724 (“The Court should gauge the 

candor, openness, and bargaining balance of the negotiations,” citing Cannons Eng’g). 

In this case, Plaintiffs have reviewed Closed Loop’s records to identify the PRPs that 

arranged for E-Waste to be transported to the Facility. Heisler Decl., ¶¶ 6, 12; Womack Decl.,

¶¶ 6, 12. Plaintiffs’ counsel have, by letter, electronic mail, and/or telephone, invited all of these 

PRPs to negotiate settlements to pay for the removal and remediation of the E-Waste that they 

contributed to the Facility, except for bankrupt, dissolved, or defunct PRPs and PRPs that sent 

only a de minimus amount of Waste that will cost no more than $6000 to remediate. Heisler 

Decl., ¶ 12; Womack Decl., ¶ 12. Plaintiffs have negotiated with all PRPs that have expressed 

an interest in negotiations, and those negotiations are continuing. Heisler Decl., ¶ 12; Womack 

Decl., ¶ 12. These negotiations led to the settlement with Settlor, and may result in other 

settlements. Heisler Decl., ¶ 12; Womack Decl., ¶ 12 .

The parties to the Settlement Agreement negotiated in good faith over a period of time. 

Heisler Decl., ¶ 13; Womack Decl., ¶ 13; Dohadwala Decl., ¶ 5. These negotiations included, 

but were not limited to, evaluations of Settlor’s potential liability, the evidence tying Settlor to 

Plaintiffs’ Facility, the defenses asserted by Settlor, the potential legal fees and costs if 

settlement does not occur, past and projected future remediation costs, Settlor’s capability to 

handle the in-kind services in compliance with applicable law, and Settlor’s ability to pay. 

Heisler Decl., ¶ 13; Womack Decl., ¶ 13; Dohadwala Decl., ¶ 7. Thus, the settlement is the 

product of arm’s length negotiations conducted in good faith. Plaintiffs’ counsel have used and 

will continue to consider the same factors to negotiate settlements with other PRPs, except where 

warranted by unusual circumstances. Heisler Decl., ¶ 13; Womack Decl., ¶ 13. Thus, the 

procedural fairness test has been met.

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2. The Settlement Agreement Is Substantively Fair.

The substantive fairness test relates to the actual harm caused by a party at the subject 

site. “[A] party should bear the cost of the harm for which it is legally responsible.” 3M Co., 

2014 WL 1872914 at *5, quoting Cannons Eng’g, 899 F.2d at 87. But “[t]here is no universally 

correct approach” to determining substantive fairness. Atlas Lederer, 494 F. Supp.2d 629, 636 

(S.D. Ohio 2005), quoting Cannons Eng’g, 899 F.2d at 87. 

Settlements must be “based upon, and roughly correlated with, some acceptable measure 

of comparative fault, apportioning liability among the settling parties according to rational (if 

necessarily imprecise) estimates of how much harm each PRP has done.” Cannons Eng’g, 899 

F.2d at 87. However, a settlement is not held to a rigid formula for comparing fault, but can 

“diverge from an apportionment formula in order to address special factors not conducive to 

regimented treatment,” such as uncertainty about a settlor’s liability and discounts for early 

settlements. Id. at 87-88. “There is no universally correct approach” for assessing comparative 

fault, and a settlement allocation with “a plausible explanation” will be approved. Id. at 87. 

Consistent with these principles, Plaintiffs have considered the amount of Settlor’s EWaste contributions to the Facility as well as Settlor’s ability to pay. The Settlement Agreement 

contains reopeners that allow Plaintiffs to seek additional in-kind services or cleanup costs from 

Settlor if new evidence reveals that the amount of Settlor’s E-Waste is substantially greater than 

the amount of E-Waste currently attributed to Settlor. Thus, Plaintiffs and Settlor have entered 

into a Settlement Agreement that is fair to everyone and satisfies the substantive fairness test. 

3. The Settlement Agreement Is Reasonable Because It Reflects Settlor’s

Actual or Potential Liability.

The Court has the task of determining if a Settlement Agreement compensates “for the 

actual (and anticipated) costs of remedial and response measures.” Cannons Eng’g, 899 F.2d at 

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90. Plaintiffs have evaluated the alleged quantity of E-Waste disposed by Settlor, and have 

determined that Settlor’s settlement is fair and reasonable given the past and projected future 

remediation costs, Settlor’s connection to the Facility, and Settlor’s ability to pay. Heisler Decl., 

¶¶ 6, 11, 13; Womack Decl., ¶¶ 6, 11, 13. 

The strength of the evidence and the probability of success on the merits also come into 

play in determining if a specific settlement agreement is reasonable. Cannons Eng’g, 899 F.2d at 

90. Thus, a “reasonableness equation relates to the relative strengths of the parties’ litigation 

positions.” Id. The strengths and weaknesses of plaintiffs’ and defendants’ evidence in a 

contribution action will by necessity impact the outcome of settlement negotiations. 

The negotiations between Plaintiffs and Settlor included, but were not limited to, 

evaluations of Settlor’s potential liability, the strengths and weaknesses of the evidence tying 

Settlor to Plaintiffs’ Facility, the defenses asserted by Settlor, the potential legal fees and costs if 

settlement does not occur, past and projected future remediation costs, Settlor’s capability to 

handle the in-kind services in compliance with applicable law, and Settlor’s ability to pay. 

Heisler Decl., ¶ 13; Womack Decl., ¶ 13; Dohadwala Decl., ¶ 7. Based on these considerations, 

Plaintiffs and Settlor believe that the Settlement Agreement is fair, adequate, and reasonable. 

Heisler Decl., ¶ 13; Womack Decl., ¶ 13; Dohadwala Decl., ¶ 7. Thus, this settlement is 

reasonable, since it is based on the relative strengths and weaknesses of the evidence and the 

chances of prevailing on the merits for both Plaintiffs and Settlor. 

4. The Settlement Agreement Is Consistent With CERCLA.

The primary policy underlying CERCLA’s provisions is “to ensure prompt and efficient 

cleanup of hazardous waste sites and to place the costs of those cleanups on the PRPs.” Akzo 

Coatings, 949 F.2d at 1417. Settlement agreements with PRPs further the primary policy of 

CERCLA to investigate and remediate hazardous substances in a prompt and efficient manner. 

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Settlement funds help to continue the work commenced by Plaintiffs to address the E-Waste. 

In addition, the settlement furthers CERCLA’s goal of requiring that “those responsible 

for problems caused by the disposal ... bear the costs and responsibility for remedying the 

harmful conditions they created.” 3M Co., 2014 WL 1872914 at *7, quoting Cannons Eng’g, 

899 F.2d at 90-91. See Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 841 (4th 

Cir.), cert. denied, 506 U.S. 940 (1992) (“The statute encourages private cleanup of such 

[environmental] hazards by providing a cause of action for the recovery of costs incurred in 

responding to a ‘release’ of hazardous substances at any ‘facility.’”). 

Finally, the Settlement Agreement relieves the settling parties and the Court of the burden 

of proceeding with the claims against Settlor all the way to trial, thereby conserving the Court’s 

and the parties’ resources in time and in money. The Settlement Agreement reached with Settlor

is consistent with the underlying intent and policies of CERCLA. 

B. The Court Should Approve the Contribution Bar in the Settlement 

Agreement.

The Court should approve the contribution bar in the Settlement Agreement so that 

Settlor can be dismissed from this case without facing claims from other PRPs. Defendants who 

wish to settle will have little incentive to do so if they cannot exit the litigation and avoid 

additional monetary claims from non-settlors, as aptly noted by one court that granted the 

settling parties’ request for a contribution bar: 

Courts have recognized a strong federal interest in promoting settlement. This 

interest is especially pronounced in complex matters such as CERCLA claims, 

where the amount of evidence to be gathered for assessing liability is 

voluminous. It is hard to imagine that any defendant in a CERCLA action 

would be willing to settle if, after the settlement, it would remain open to 

contribution claims from other defendants. The measure of finality which a 

cross-claim bar provides will make settlements more desirable. A settling 

defendant therefore “buys its peace” from the plaintiff, as being relieved of 

liability to co-defendants frees the settling defendant from the litigation. The 

court finds that the degree to which a bar on contribution cross-claims will 

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facilitate settlement outweighs the prejudice of such a bar on non-settling 

defendants. Accordingly, the court grants this aspect of the motions of 

Plaintiffs and Defendants Hydrosol and Henkel.

Allied Corp. v. ACME Solvent Reclaiming, Inc., 771 F. Supp. 219, 222 (N.D. Ill. 1990) (internal 

cites omitted).

The Court has the authority to encourage settlement by terminating and precluding all 

present and future claims against Settlor, and should do so because it furthers the purposes of 

CERCLA. See Responsible Envtl. Solutions, 2011 WL 382617, at *5 (approving settlement with 

contribution bar because “the imposition of such a bar rests on equitable considerations, and, 

further, since contribution bars will foster the voluntary settlement of complex CERCLA 

lawsuits, a goal which is worthy of being furthered”).

The federal courts, including the Southern District of Ohio, have routinely issued orders 

under CERCLA Section 113(f)(1) approving settlement agreements containing contribution bars 

prohibiting non-settling PRPs from filing claims against settling PRPs. The following language 

of CERCLA Section 113(f)(1) provides for court-approved settlements that can cut off 

contribution claims by non-settling PRPs:

(f) Contribution

(1) Contribution

Any person may seek contribution from any other person who is liable or 

potentially liable under section 9607(a) of this title, during or following any 

civil action under section 9606 of this title or under section 9607(a) of this title. 

Such claims shall be brought in accordance with this section and the Federal 

Rules of Civil Procedure, and shall be governed by Federal law. In resolving 

contribution claims, the court may allocate response costs among liable parties 

using such equitable factors as the court determines are appropriate. Nothing in 

this subsection shall diminish the right of any person to bring an action for 

contribution in the absence of a civil action under section 9606 of this title or 

section 9607 of this title.

42 U.S.C. § 9613(f)(1) (emphasis added). 

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The courts have used the principles in model laws such as the 1977 Uniform Comparative 

Fault Act (“UFCA”) and the Uniform Contribution Among Tortfeasors Act (“UCATA”) to 

equitably allocate cleanup costs among PRPs. United States v. Alcan Aluminum Corp., 990 F.2d

711, 724 (2d Cir. 1993); Responsible Envtl. Solutions, 2011 WL 382617, at *4. These model 

acts shield settling parties from claims of non-settlors on the premise that the settlors have paid 

their fair share. Alcan, 990 F.2d at 725. The courts have found that these equitable principles 

implement congressional intent underlying CERCLA, and have adopted these principles as 

federal common law. Id. at 724-25; Responsible Envtl. Solutions, 2011 WL 382617, at *4. 

A decision by the Southern District of Ohio explains how the courts use Section 113(f)(1) 

to impose a contribution bar against non-settling PRPs:

Nevertheless, a number of courts have held that it is permissible to bar 

contribution claims against the settling parties in a CERCLA contribution 

action, in accordance with the federal common law as exemplified by § 6 of the 

Uniform Comparative Fault Act or § 4 of the Uniform Contribution Among 

Tortfeasors Act. 

****

In its Decision of March 27, 2008, this Court indicated that it was inclined to 

follow the decisions adopting a contribution bar as part of the federal common 

law, even though such a bar is not authorized by § 113(f)(2), because such a 

holding is in accordance with § 113(f)(1) of CERCLA, which provides that, 

“[i]n resolving contribution claims, the court may allocate response costs among 

liable parties using such equitable factors as the court determines are 

appropriate” (42 U.S.C. § 9613(f)(1)), given that the imposition of such a bar 

rests on equitable considerations, and, further, since contribution bars will foster 

the voluntary settlement of complex CERCLA lawsuits, a goal which is worthy 

of being furthered. . . . Quite simply, there has been no intervening authority, 

nor has CWM presented any argument causing this Court to decline to follow its 

earlier inclination. Therefore, this Court adopts a bar, preventing CWM and 

every other PRP from seeking contribution from the Settling Defendants and 

TLC.

Id. This rationale resulted in an order that barred all PRPs from bringing contribution claims 

against the settling defendants. Id. at *5. This approach has also been productive for fostering 

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CERCLA settlements in Hobart Corp. v. Dayton Power & Light Co., No. 3:13-cv-115 (S.D. 

Ohio 2014). See Exhibit E hereto, providing a sample of the orders in that case approving 

settlement agreements and barring all claims against the settlors in Paragraph 3 of each order. 

This Court also has applied the contribution bar in the instant case for each of the previous 

settlements approved by the Court. Doc. # 312, PageId # 3655, ¶ 3; Doc. # 400, PageId # 4506, 

¶ 3; Doc. # 536, PageId # 6035, ¶ 3. 

Examples of other cases that have used Section 113(f)(1) to bar contribution claims 

against settling PRPs in private cases include the following: Evansville Greenway & 

Remediation Tr. v. S. Ind. Gas & Elec. Co., No. 3:07-CV-66-SEB-WGH, 2010 WL 3781565, at 

*4, n. 3 (S.D. Ind., Sept. 20, 2010); Foamseal, Inc. v. Dow Chem. Co., 991 F. Supp. 883, 886 

(E.D. Mich. 1998); Stearns & Foster Bedding Co. v. Franklin Holding Corp., 947 F. Supp. 790, 

813 (D. N.J. 1996); Mavigliano v. McDowell, No. 93 C 7216, 1995 WL 704391, at *2 (N.D. Ill., 

Nov. 28, 1995); Hillsborough Cty. v. A & E Rd. Oiling Serv., Inc., 853 F. Supp. 1402, 1408 

(M.D. Fla. 1994); United States v. SCA Servs. of Indiana, Inc., 827 F. Supp. 526, 532 (N.D. Ind. 

1993); Am. Cyanamid Co. v. King Indus., Inc., 814 F. Supp. 215, 217-19 (D. R.I. 1993); Barton 

Solvents, Inc. v. Sw. Petro-Chem, Inc., 834 F. Supp. 342, 345–46 (D. Kan. 1993); and Allied 

Corp. v. ACME Solvent Reclaiming, Inc., 771 F. Supp. 219, 222 (N.D. Ill. 1990). Additional 

cases in support of contribution bars are cited in the next two paragraphs below. 

Because a non-settling defendant could circumvent a contribution bar against CERCLA 

claims by suing a settling defendant under a different cause of action, the courts have used 

CERCLA Section 113(f)(1) to bar claims for all potential causes of action. The Southern District 

of Ohio followed this approach in Hobart Corp. See Paragraph 3 of the orders in Exhibit E

hereto, barring “[a]ll claims ... under Sections 106, 107 or 113 of CERCLA and/or any other 

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federal, state or local statute, regulation, rule, ordinance, law or common law.” Also see San 

Diego Unified Port Dist. v. Gen. Dynamics Corp., No. 07-CV-01955-BAS-WVG, 2017 WL 

2655285, at *8-*10 (S.D. Cal., June 20, 2017) (barring all claims “pursuant to any federal or 

state statute, common laws, or any other theory”); City of San Diego v. Nat'l Steel & 

Shipbuilding Corp., No. 09CV2275 WQH BGS, 2015 WL 1808527, at *11-*13 (S.D. Cal., Apr. 

21, 2015) (barring state law claims); AmeriPride Servs. Inc. v. Valley Indus. Servs., Inc., No. 

CIVS 00-113 LKK JFM, 2007 WL 1946635, at *2-*5 (E.D. Cal., July 2, 2007) (barring claims 

under state law and common law). In accordance with this principle, Plaintiffs and Settlor 

request that the Court bar all claims against Settlor under all legal theories, as it has done in its 

past approvals of settlements in this case. 

Some decisions have applied the contribution bar against every PRP, including PRPs who 

were not parties to the lawsuits in which the settlements were approved. San Diego Unified Port 

Dist., 2017 WL 2655285, at *10 (barring all claims “regardless of when such claims are asserted 

or by whom”); Lewis v. Russell, 2012 WL 671670, No. CIV 2.03-2646 WBS, at *6 (E.D. Cal., 

Nov. 9, 2012). This is the approach followed by the Southern District of Ohio in Hobart 

Corporation. See Paragraph 3 of the orders included in Exhibit E. This Court has also followed 

this approach for the previous settlements in the instant case. Doc. # 312, PageId # 3655, ¶ 3; 

Doc. # 400, PageId # 4506, ¶ 3, Doc. # 536, PageID # 6035, ¶ 3. Plaintiffs and Settlor request 

that the Court follow the same approach for the attached settlement. 

Plaintiffs have served a copy of the Motion for Approval of Settlement Agreement on all 

defendants and will soon send it to all other currently known PRPs. Heisler Decl., ¶ 14; 

Womack Decl., ¶ 14. Plaintiffs and Settlor request that the contribution bar apply to all claims 

that could be asserted against Settlor. 

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C. The Value of Settlor’s In-Kind Services Should Be Credited Pro 

Tanto, and Not Pro Rata, in Determining Other Defendants’ Equitable 

Shares at Trial. 

The Court’s order approving this Settlement Agreement should credit the value of 

Settlor’s in-kind services pro tanto and not pro rata in determining other defendants’ equitable 

shares of remediation costs, just as the Court has done for the previous settlements in the instant 

case. Doc. # 312, PageId # 3655, ¶ 4; Doc. # 400, PageId # 4506, ¶ 4; Doc. # 536, PageID # 

6035, ¶ 3. As explained below, pro tanto crediting encourages early settlements, encourages 

voluntary site cleanups, promotes faster site remediation, and reduces trial time. 

The pro tanto and pro rata methods are derived from the UCATA and the UCFA, 

respectively, which advocate competing methods of accounting for a settling party’s share when 

determining the amount of a nonsettling defendant’s liability. Ameripride Servs. Inc. v. Texas E. 

Overseas Inc., 782 F.3d 474, 483 (9th Cir. 2015). When a litigant has settled with one party, the 

UCFA would reduce the shares of other liable persons by the percentage of the settlor’s fault 

(UCFA § 2). Akzo Nobel Coatings, Inc. v. Aigner Corp., 197 F.3d 302, 308 (7th Cir. 1999). 

This allocation method is known as the pro rata, or proportionate share, method. “Courts 

adopting the UCFA proportionate share approach ‘must therefore determine the responsibility of 

all firms that have settled, as well as those still involved in the litigation.’” Ameripride, 782 F.3d 

at 483-84 (quoting American Cyanamid Co. v. Capuano, 381 F.3d 6, 20 (1st Cir. 2004)). The 

consequence of this approach is that tortfeasors who have not settled “will be responsible only 

for their proportionate share of the costs, even if the settling tortfeasor settles for less than its fair 

share of the injury.” Ameripride, 782 F.3d at 484.

The UCATA’s pro tanto method, by contrast, reduces non-settlors’ liability only by the 

dollar amount of the settlements (UCATA § 4). Id. CERCLA Section 113(f)(2) (42 U.S.C. § 

9613(f)(2)) applies the pro tanto method to PRP settlements with the United States or a state. Id. 

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(noting that Section 113(f)(2) provides that a settlement with the United States or a state 

“reduces the potential liability of the others by the amount of the settlement”). CERCLA does 

not prescribe the accounting method to be used in private settlements. 

The Seventh Circuit has mandated the use of pro tanto as the only acceptable allocation 

method in CERCLA cases, observing that any other method would undermine the congressional 

preference for pro tanto revealed in CERCLA Section 113(f)(2)). Akzo, 197 F.3d at 307-308. 

Other circuits have ruled that the district courts have the discretion to use whichever of the two 

methods is most suited to the facts of the case. Ameripride Servs. Inc., 782 F.3d at 487 (district 

courts may use either method, whichever is “ʻthe most equitable method of accounting for 

settling parties’ in private-party contribution actions”); American Cyanamid, 381 F.3d at 21 

(stating that “CERCLA provides the district court with the discretion to allocate response costs 

among liable parties” and affirming the district court’s use of pro tanto allocation). 

“These competing approaches can produce substantial differences in incentives to settle 

and in the complexity of litigation.” Akzo, 197 F.3d at 307. Pro rata is sometimes employed on 

the premise that it ensures, “in theory, that damages are apportioned equitably among the liable 

parties.” American Cyanamid, 381 F.3d at 20. However, pro tanto has several important 

advantages in the context of this case. 

First, the pro tanto method is better at furthering CERCLA’s goals than pro rata, because 

it encourages PRPs to negotiate and leads to earlier settlements:

In general, the pro tanto approach, by placing the risk of lenient settlements on 

PRP hold-outs ..., facilitates CERCLA’s goal of encouraging early settlement and 

private remediation. In a pro rata regime, PRPs ... who assume responsibility for 

cleanup ... will have no flexibility to negotiate in settlements. If they accept 

anything less from a PRP than what a court later determines to have been that 

PRP’s proportionate share, they will have to pay for the difference out of their 

own pockets. Further, the defendant PRPs will have no incentive to settle early 

on, because the early settlements of other PRPs will have no effect on the 

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potential liability of remaining PRPs. In such a regime, it would be more difficult 

to settle with contribution defendants. As a result, contribution plaintiffs would be

forced to litigate against more PRPs, spending non-recoverable attorneys fees. 

Such a prospect would make it less likely that PRPs would be willing to sign 

consent decrees ... and voluntarily undertake remediation of polluted sites. 

In contrast, under a pro tanto regime, contribution plaintiffs will have more 

flexibility in settling with defendant PRPs, because any potential shortfalls of 

early settlements can be shared by the contribution plaintiffs and non-settling 

PRPs in an equitable allocation at trial.... If it is easier for PRP groups to recover 

costs by settling early with other PRPs, they are more likely to come forward to 

settle ... and take on the task of remediating contaminated sites, furthering 

CERLCA’s goals of private party remediation and early settlement.

Action Mfg. Co. v. Simon Wrecking Co., 428 F. Supp.2d 288, 326 (E.D. Pa. 2006), aff’d, 287 

Fed. Appx. 171 (3d Cir. 2008), citing Joseph A. Fischer, “All CERCLA Plaintiffs Are Not 

Created Equal: Private Parties, Settlements, and the UCATA,” 30 Hous. L. Rev. 1979 (1994). 

Another court has noted that pro tanto accounting, unlike the pro rata method, encourages a 

plaintiff to voluntarily clean up hazardous substances: 

The pro tanto approach best furthers CERCLA's primary goal of promoting 

prompt and effective cleanups by assuring that the private-party § 9607 plaintiff 

will not be shortchanged in their attempt to recover cleanup costs. Because the 

plaintiff knows the precise amount their settlement will be worth and the rest of 

the response costs will be recoverable from other PRP's held strictly liable under 

the statue, the plaintiff can be virtually assured of complete recovery. By 

contrast, under the proportionate approach, the private party who conducted 

cleanup is likely to be left holding the proverbial bag if they inaccurately 

forecast the relative culpability of a settling defendant.... Since a non-PRP 

private party who conducts CERCLA related cleanup already faces the hurdle 

and expense of pursuing litigation to receive compensation for its response 

costs, the prospect of less than full recovery would add an additional 

disincentive to private party cleanups and would therefore be contrary to 

CERCLA's principle goals. 

Veolia Es Special Servs., Inc. v. Hiltop Investments Inc., No. CIV.A. 3:07-0153, 2010 WL 

898097, at *7 (S.D. W.Va., Mar. 12, 2010). The Southern District of Ohio has expressed the 

same sentiments as reasons for approving pro tanto accounting in CERCLA settlements. See

Hobart Corp., Order of Apr. 18, 2016 (Exhibit F), pp. 5-6. The Court in the instant case has 

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concurred in this rationale as well with respect to the previous settlements. This Court has found 

the pro tanto approach to be appropriate for the previous settlements in the instant case. Doc. # 

400, PageId ## 4503-4505; Doc # 536, PageId ## 6032-6036. In cases with multiple defendants, 

like this case, the pro rata approach “encourages defendants to hold out until a fault-based 

allocation can be made, requiring the plaintiff to continuing litigating and thereby reduce its net 

recovery.” Veolia, 2010 WL 898097, at *7. 

The second advantage of using the pro tanto method in this case is that it will serve 

judicial economy. Under both methods, a court must determine the settlement’s fairness. 

Veolia, 2010 WL 898097, at *8. For the pro rata method, “a court must determine the relative 

culpability of all parties - including settling parties - and their equitable share at trial.” Id. In 

CERCLA cases, “the assignment of liability to missing parties at trial will often be more time 

consuming and costly.” Id., citing American Cyanamid, 381 F.3d at 20 (which notes that “[s]uch 

a process can lead to a “complex and unproductive inquiry”); Akzo Nobel Coating 197 F.3d at 

308; Action Mfg., 428 F. Supp.2d at 326 (pro tanto is easier to administer). 

A court using the pro tanto approach evaluates fairness at the time of settlement, not trial. 

Id. No evidentiary fairness hearing is necessary prior to approval of the settlement. See Cannons 

Eng’g, 899 F.2d at 94 (stating that “[i]n general, we believe that evidentiary hearings are not 

required under CERCLA when a court is merely deciding whether monetary settlements 

comprise fair and reasonable vehicles for disposition of Superfund claims”). The Southern 

District of Ohio, in declining to hold a fairness hearing in another CERCLA case employing pro 

tanto accounting, has found that evidentiary hearings for CERCLA settlements are rarely 

granted, are unnecessary in the absence of any evidence of collusion or unfairness, and would be 

the “functional equivalent of a full-blown trial” that would discourage settlement by PRPs who 

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want to settle to avoid litigation costs. Hobart Corp., Order of Apr. 18, 2016 (Exhibit F), pp. 9-

12. Based on this principle, settlements in the instant case are appropriate for pro tanto

accounting, which will serve the purpose of judicial economy.

Thus, the “[a]doption of the pro tanto rule in CERCLA cases encourages early 

settlement, the allocation of private resources towards the hazardous waste disposal problem, and 

ultimately the expeditious cleanup of hazardous waste sites.” Veolia, 2010 WL 898097, at *7. 

This accounting method also efficiently conserves the resources of the court and the parties. The 

same principles apply here. The Court should approve the Settlement Agreement and direct that 

Settlor’s settlement be credited pro tanto, just as the Southern District of Ohio has done in the 

instant case and other cases. See Doc. # 312, PageId # 3655, ¶ 4; Doc. # 400, PageId # 4506, ¶ 

4; Doc. # 536, PageID # 6035, ¶ 4. Hobart Corp., No. 3:13-cv-115 (S.D. Ohio 2014, Apr. 4, 

2016) (Exhibit E); Responsible Envtl. Solutions, 2011 WL 382617 at *2-*5 (approving motion 

for approval of settlement agreement with request for pro tanto allocation). Also see Paragraph 4 

in the orders in Hobart Corporation included in Exhibit E. 

V. Conclusion

For all the foregoing reasons, Plaintiffs and Settlor request that the Court grant the Order 

approving their Settlement Agreement.

Respectfully submitted,

BROWN LAW OFFICE LLC

/s/ Daniel A. Brown

Daniel A. Brown (#0041132)

Trial Attorney

204 S. Ludlow St., Suite 300

Dayton, OH 45402

Tel: (937) 224-1216 (direct)

Fax: (937) 224-1217

Email: dbrown@brownlawdayton.com

VAN KLEY & WALKER, LLC 

/s/ Jack A. Van Kley

Jack A. Van Kley (#0016961)

Trial Attorney

132 Northwoods Blvd., Suite C-1

Columbus, OH 43235

Tel: (614) 431-8900

Fax: (614) 431-8905

Email: jvankley@vankleywalker.com

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Of Counsel:

GLANKLER BROWN, PLLC

/s/ Randall B. Womack

Randall B. Womack (pro hac vice)

6000 Poplar Avenue, Suite 400

Memphis, TN 38119

Tel: (901) 525-1322 (direct)

Fax: (901) 525-2389

Email: rwomack@glankler.com

Attorneys for Plaintiff Olymbec USA LLC

Of Counsel:

KING & SPALDING LLP

/s/ Karl R. Heisler _______________

Karl R. Heisler (pro hac vice)

353 N. Clark Street, 12th Floor

Chicago, IL 60654

Tel: (312) 764-6927

Fax: (312) 995-6330

Email: kheisler@kslaw.com

Attorneys for Plaintiff Garrison 

Southfield Park LLC

GRANGER CO., L.P.A.

s/ Mark R.Granger _______________

Mark S. Granger (#0068620)

132 Northwoods Blvd., Suite B

Columbus, Ohio 43235

Tel: (614) 854-0615

Fax: (614) 885-7574

mgranger@grangercolpa.com

Attorney for Defendant CompuPoint USA, LLC.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that, on September 1, 2020, a copy of the foregoing 

Motion to Approve Settlement Agreement was filed electronically with the Court’s CM/ECF 

system, which will send notification to all attorneys registered to receive such service. Parties 

may access this filing through the Court’s electronic filing system.

/s Jack A. Van Kley

Jack A. Van Kley (#0016961)

Trial Attorney

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