Asarco, LLC (Asarco) appealed a lower court’s entry of judgment in favor of Noranda Mining, Inc. (Noranda) in Asarco’s contribution action under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) § 113 (f). The U.S. District Court held that Asarco was judicially estopped from pursuing its contribution claim against Noranda because of representations Asarco made in bankruptcy court regarding its settlement agreement with the U.S. Environmental Protection Agency (EPA) for the cleanup of the site. Essentially, the lower court held that Asarco’s comments, as a matter of law, were proof that it could not establish that it paid more than its fair share of cleanup costs in settling with EPA. The Court of Appeals for the Tenth Circuit reversed the lower court’s entry of judgment. The court rejected Noranda’s argument that Asarco’s representation to the bankruptcy court that the settlement was fair, thereby contradicted Asarco’s later position that it was entitled to contribution from Noranda. [Asarco, LLC v. Noranda Mining Co., ___F.3d___, Case No. 16-4045 (10th Cir. Jan. 3, 2017).]

Representations to the court, on settlement or otherwise, should be clear, concise, and precise – or ambiguity or, worst, and admission, can be the result. The court’s decision is accessible online at: https://scholar.google.com/scholar_case?case=7646665532014000387&q=Asarco,+LLC+v.+Noranda+Mining+Co&hl=en&as_sdt=2006&as_vis=1

(Thierry Montoya)