Seventh Circuit Clarifies Standard For Apportionment In CERCLA § 107(a) Cases

In a recent decision, the Seventh Circuit clarified that to qualify for "apportioned" — rather than "joint-and-several" — liability under CERCLA § 107(a) a defendant must show that there is a factually grounded basis to divide the harm. As a general matter, CERCLA § 107(a) imposes joint-and-several liability on defendants, meaning that it holds each defendant liable for all the harm. An exception exists, however, when the defendant can show that its contribution to the harm is capable of "apportionment," in which case the defendant is only liable for the harm it has actually caused. Given the draconian nature of joint-and-several liability, the Seventh Circuit's decision — Von Duprin LLC v. Major Holdings, LLC, ___ Fed.4th ___, Nos. 20-1711, 20-1793, 2021 WL 4025150 (7th Cir. Sept. 3, 2021) — provides important guidance to parties facing CERCLA § 107(a) liability.