CERCLA Bona Fide Prospective Purchaser Defense: Securing and Maintaining Liability Protection

Strategies for Overcoming BFPP Defense Challenges and Restrictions

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, March 28, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to counsel for parties involved in the purchase of a contaminated site to secure and maintain the CERCLA bona fide prospective purchaser (BFPP) defense. The panel will offer best practices for redevelopment of contaminated sites in light of recent federal court decisions.

Description

Prior to asserting a BFPP defense, purchasers must understand all of the potential pitfalls. The Fourth Circuit’s ruling in PCS Nitrogen v. Ashley II limits the availability of the BFPP defense and underscores the need for purchasers to tread carefully as they must successfully prove the required elements by a preponderance of the evidence in addition to fulfilling other statutory prerequisites.

The Ashley II decision combined with the Ninth Circuit’s decision in Voggenthaler v. Maryland Square L.L.C. and others on the BFPP defense have made real estate transactions involving BFPPs more complicated. These decisions put counsel on the alert that the courts and other PRPs will carefully scrutinize a BFPP defense.

Counsel to parties involved in CERCLA litigation should proceed with caution to avoid serious potential pitfalls when seeking to qualify for the BFPP defense.

Listen as our authoritative panel of environmental law attorneys examines recent court decisions, analyzes the implications of and lessons from those decisions, and outlines how to approach asserting or confronting challenges to a BFPP defense. The panel will also offer best practices for redevelopment of contaminated sites in light of recent case law.

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Outline

  1. Court treatment of bona fide prospective purchaser defense
  2. CERCLA and the BFPP defense
  3. Best practices to get and maintain the BFPP defense

Benefits

The panel will review these and other key issues:

  • What factors should purchasers consider prior to agreeing to indemnify prior owners of contaminated property?
  • What are the lessons from recent court decisions for utilizing the BFPP defense?
  • What steps should purchasers and counsel take to maintain CERCLA liability protection after acquiring an interest in contaminated property?

Faculty

Bradley R. Sugarman
Bradley R. Sugarman

Partner
Krieg DeVault

Mr. Sugarman is Chair of the firm's Environmental Practice Group. A significant area of his practice has been...  |  Read More

Charles S. Warren
Charles S. Warren

Partner
Kramer Levin Naftalis & Frankel

Mr. Warren, Chair of the firm’s Environmental Practice, counsels and represents clients in a comprehensive range...  |  Read More

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