Ashland LLC v. Heyman ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ASHLAND LLC, INTERNATIONAL
SPECIALTY PRODUCTS INC., ISP
ENVIRONMENTAL SERVICES lNC., and
ISP CHEMCO LLC,
PlaintiffS/Counterclaim
Defenda.nts,
THE SAMUEL J. HEYMAN 1981
CONTINUING TRUST FOR LAZARUS
S. HEYMAN, et al.,
Defendants/Counterclaim
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v. ) C.A. No. N15C-10-176 EMD CCLD
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Plaintiffs. )
Submitted: December 15, 2016
Decided: March 30, 2017
Upon Plaintijfs ’ Motz``on to Dismz'ss Certa:'n ofDefendants ’ Coumerclaims
GMNTED in part and DENIED in part
Christopher Viceconte, Esquire, Gibbons P.C., Wilmington, Delaware, and Michael R.
Grifiinger, Esquire, William S. Hatf``leld, Esquire, and Camille V. Otero, Esquire, Gibbons P.C.,
Newark, NeW Jersey. Attorneys for Ash!and LLC, Internatz``onal Specialty Products, Inc., ISP
Envfronmenml Services, Inc., and ISP Chemco LLC
Kevin G. Abrams, Esquire, John M. Seaman, Esquire, and April M. Ferra;ro, Esquire, Abrams &
Bayliss LLP, Wilmington, Delaware, and Andrew J. Rossman, Esquire, Jonathan B. Oblak,
Esquire, and Sylvia E. Simson, Esquire, Quirln Emanuel Urquhart & Sullivan, LLP, New York,
New York. Attomeys for The Samiel J. Heyman 1981 Continuing Trustfor Lazarus S. Heyman,
et af.
DAVIS, J.
I. INTRODUCTION
This breach of contract case stemming from environmental liability allocation is assigned
to the Complex Commercial Litigation Division of this Court. Plaintit``fs1 Ashland LLC,
International Specialty Products, lnc. (“ISP”), ISP Environmental Services Inc. (“IES”), and ISP
Chemco LLC (“Chemco”) filed this declaratory judgment and breach of contract case against
Heyrnan Defendants~_The Heyman Seller Defendants, The Heyrnan Trust Defendants, and
Linden Property Holdings LLC (“LP'H”).2
11. BACKGRoUND rivers3
The disputed property (the “Linden Property”) is located at 4000 Road to Grasselli,
Linden, New Jersey.4 The Linden Property has a chemical manufacturing history. For many
years, non-party GAF Chemicals Corporation (“GAF Chemicals”), and its predecessors, owned
and operated the Linden Property.5
On lune l6, 1989, GAF Chemicals and the New Jersey Department of Environmental
Protection (“NJDEP”) entered into an Administrative Consent Order (the “ACO”) regarding
environmental contamination and cleanup at the Linden Propet'ty.6 GAF Chemicals agreed “to
l Plaintiffs collectively Will be called Ashland unless specificity is required. Plaintiff Chemco is a subsidiary of
Plaintiff lSP. Plaintiff IES is a subsidiary of Plaintiff Chemco.
2 The Court is initially using the definitions used by the parties in various pleadings The Court will use the term
“the l-leyman Defendants" collectively unless specificity is required-fl e., LPH or alike.
3 Unless otherwise indicated, the following are the Relevant Facts as alleged in the counterclaims portion of the
Defendants’ Answer to the First Amended Complaint and Counterclaims (the “Counterclaims”). For purposes of
the Motion, the Court must view all well-pleaded facts alleged in the Complaint as true and in a light most favorable
to the Heyman Defendants. See, e.g., Cent. Morrg. Co. v. Morgan Stanley Mor!g. Capz'tal Ho!dings LLC, 27 A.3d
531, 536 (Del. 2011); Doe v. Cedars Acad., LLC, C.A. No. 09C-09-136 JRS, 2010 WL 5825343, at *3 (Del. Super.
Oct. 27, 2010). The Court may also cite to portions ot`` the Ashland’s First Amended Cornplaint to the extent such a
fact is not contested or otherwise material to the Civil Rule 12(b) decision on the MTD Motion. The Court will be
doing this to present a more complete factual background
4 Defs,’ Countercls.1l 1 (Ashland uses the definition of the Linden Property contained in the SPA. The Heyman
Defendants refer to the Linden Property as “Block 587, Lots 1 and 2.1, in the City ofLinden, Union County, New
Jersey (the ‘LPH Site’ or ‘LPH Property’).” So as to maintain consistency with other orders and opinions issued by
the Court, the Court will use the term Linden Propeity.
5 rd. ii 24.
6 la 11 37. See also Pls.’ Compl. Ex. B.
conduct a remedial investigation and feasibility study of remedial action alternatives” and
“designate and implement a remedial action alternative to remedy any and all pollutions at the
[Linden Property], emanating from the [Linden Property], or which has emanated from the
[Linden Property].”7 All operations at the Linden Property ceased in 1991 .g
In 1991, GAF Chemicals incorporated ISP as one of`` its subsidiaries and incorporated lES
as ISP’s subsidiary9 GAF Chemicals then transferred ownership of`` the Linden Property to
IES.10 As such, IES became the entity responsible for the ACO.ll In 1996, the Heyman
nerendants epun effisP and IEs) from GAF cheniieele.‘2 GAF Chemieels end isP entered
into an indemnification Agreement, outlining their post-spin off indemnification obligations.'3
In 2006, Chemco executed an Administrative Consent Order Amendment (the “Amended
ACO”) with the NJDEP.14 The Amended ACO did not replace the ACO. Instead, the Aniended
ACO Supplemented and became a part of the AC().15 The Arnended ACO expressly provided
that IES would continue to comply with the terms of the ACO.16
The Sale and Closing
In 2011, Ashland acquired ISP, IES, and Chemco from the Heyman Defendants for $3.2
billion.]7 This was done through a Stock Purchase Agreement, dated as of l\/lay 31, 2011 (the
7 ld.
3 rd. 1125.
9 Id. 11 26.
w 1a 11 28.
“ 1a 1111 27 end 29.
”MLN_
'3 1a 11 21
14 1a 11 45. see else Pls.’ cempl. Ex. C, 11 4 (the Amended Aco).
is Pls,’ Compl. Ex. C at ‘ll 9 (“This ACO Amendment is intended to supplement the existing 1989 ACO. The
provisions of this ACO Arnendrnent shall become part of the 1989 ACO. The 1989 ACO, as amended, shall remain
in full force and effect and [IES] shall continue to comply with the 1989 ACO.“). See also id. at 11 15 (“By the
execution of this ACO Amendment, NJDEP does not release any person from any liabilities or obligations such
person may have pursuant to any other applicable authority, nor does NJDEP waive any of its rights or remedies
pursuant thereto.”).
'6 Id.
'T Defs.’ Countercls.1i 46.
“SPA”) between the Heyman Defendants (as the “Seller Parties”) and Ashland (as the
“Buyer”).13 The Heyman Defendants wanted to retain the Linden Property. So, on August 23,
2011, immediately after the SPA closed, IES conveyed the Linden Property back to the Heyman
Defendants for one dollar.19 Defendant LPH operates the Linden Property.20
The SPA set out the parties’ respective obligations regarding the Linden Property. SPA
Section 2(e) to Schedule 5.19 of the SPA21 states:
In connection with the Linden Transfer, the Seller Parties shall assume all
Liabilities to the extent related to or arising from or existing at the Linden
Property, including Liabilities arising under or relating to (i) Environmental Laws,
provided that such Liabilities shall not include any off-site migration or disposal
of Hazardous Materials from the Linden Property prior to the Closing, any claims
or damages associated with any off-site migration or disposal of Hazardous
Materia] from the Linden Property prior to the Closing, and for the avoidance of
doubt, any off-site contamination of soils, groundwater or sediments, any third
party superfund sites including the Newark Bay Complex, any natural resources
damages or exposure claims relating to operations or discharges prior to
Closing,. . .or (v) the Linden Transfer (including any Liabilities to the extent
arising by virtue of the delivery of a limited Warranty deed, but excluding any
Liabilities arising out of or relating to fraudulent conveyance or similar liability),
in each case, other than as set forth in the proviso in clause (i) above, whether
arising before, on or after the Closing Date (the “Linden Excluded Liabilities”).22
SPA Section 2(f) also discusses the Linden Property transaction_specifically the
”23_and states:
“Linden Transfer
In connection with the Linden Transfer, the Seller Parties shall be responsible, at
their sole cost and expense, for compliance, if applicable, with any requirements
of the Industrial Site Recovery Act (“ISRA”) and, if ISRA applies to the Linden
Transfer, Seller Parties shall (i) within five (5) Business Days after execution of
this Agreement, make any required filings or notifications (such as a General
Information Notice, as defined under ISRA) to the [NJDEP], and (ii) use
reasonable best efforts to, prior to ciosing, make all other filings, undertake all
other measures, including where required undertaking any site investigation or
18 Id
19 Id. 1[ 50‘, see also PlS.’ Compl. 11 60.
20 Defs.’ Countercls. 1l 52.
21 Any further reference to SPA Sections 2 and 4 of Schedule 5. 19 of the SPA will omit reference to Schedule 5. 19
and will be as “SPA Section 2_” or SPA Section 4_.”
22 Pls.’ Compl. Ex. A, p. 14. (emphasis in original).
23 The “Linden Transfer” is defined in SPA Section 2(a). See Pls.’ Compl. Ex. A, p. 14.
4
Remedial Action required by ISRA. ln addition, the [SPA] Seller Parties shall use
reasonable best efforts to amend any consent decree or other binding agreement
with any Governmental Entity relating to the Linden Excluded Liabilities, and to
replace or substitute any related financial assurance (including any bond or letter
of credit), to include the name of the Linden Transf``eree following the Linden
Transfer and, if permitted by NJDEP, to remove the name of ISP or any of the
Companies therefrom24
Paragraph 2 of the Contribution Agreement mirrors SPA Section 2(e).25 That is, LPH._
whose membership interests were transferred from Ashland to the Heyman Defendants, became
responsible for:
All liabilities to the extent related to or arising form or existing at the Linden
Property, including Liabilities arising under or relating to (a) Environmental Laws
(provided that such Liabilities shall not include any off-site migration or disposal
of Hazardous Materials from the Linden Property prior to the Closing, any claims
or damages associated with any off-site migration or disposal of Hazardous
Material from the Linden Property prior to the Closing, and for the avoidance of
doubt, any off-site contamination of soils, groundwater or sediments, any third
party superfund sites including the Newarl< Bay Complex, any natural resources
damages or exposure claims relating to operations or discharges prior to
Closing).26
The Trusls ’ Post-c[osing Activitj)
On July 18, 2011, prior to closing, IES notified NJDEP of the pending Linden Property
transfer, and advised NJDEP that IES (or any ISP affiliate) would not be associated with the
Linden Property after August 25, 2011.27
LPH performed some affirmative duties under the ACO. lt replenished the outstanding
letter of credit.28 It made payments to New Jersey to comply with its portion of the ACO.29
And, it applied for Remedial Action Permits (“RAPS”) for soil and groundwater at the Linden
24 ld-
25 Def``s.’ Countercls. 11 5 l.
26 ld
27 1a y 62. see else Pls.’ Compl. Ex. D_
28 Defs.’ Countercls. 11 60.
”mym.
Property.30 On February l?, 2012, NJDEP issued RAPS for soil and groundwater at the Linden
Property to LPH only.3ll
On July 3, 2012, LPH’s Environmental Compliance manager requested from NJDEP a
full satisfaction compliance letter.32 On December 23, 2013, NJDEP denied LPH’s full
compliance request33 NJDEP’s letter specifically required an investigation, ecological risk
assessment, and remediation of off-site contamination34 This letter also noted that (i) LPH had
no standing under the ACO as LPH was not an ordered party, and (ii) IES had hill responsibility
for the ACO under the Amended rliCO.35
On January 21, 2014, LPH responded to NJDEP’s December 23, 2014 letter. LPH
explained who was responsible for the Linden Property after the closing on the SPA.36 This
appears to be the first time that LPH disclosed that IES transferred the Linden Property to LPH,
and LPH had taken over on-site responsibilities37 LPH also alleged that IES was responsible for
any off-site remediation pursuant to the ACO.38 On April 9, 2014, LPH again wrote to the
NJDEP. LPH argued that it agreed to assume on-site liabilities, While Ashland assumed off-site
liabilities pursuant to the ACO.39 Further, LPH argued that all on-site remediation was
complete40
3° 1a 11 61.
31 ld-
32 1a 11 63. see else 1a Ex. 26.
33 Id. 11 65. See also id. Ex. 26.
34 let
On luly 21, 2015, the NJDEP sent Ashland and GAF (and its successors) a Demand for
Stipulated Penalties for the parties’ collective failure to comply with the ACO.41
The Litigation
Ashland commenced this action on October 20, 2015, and filed its First Amended
Complaint (the “Complaint”) on December 3, 2015. The Complaint alleges five causes of action
relating to purported obligations of the Defendants in connection with Schedule 5.19 of the SPA
and purported responsibility for the investigation, remediation, and cleanup costs regarding
environmental contamination of the Arthur Kill, an off-site location. Relevant here, Countl of
the Complaint is a Declaratory Judgment - Breach of Contract claim asserted by Ashland against
the Heyman Parties for, among other things, the purported breach of Section 2(f) of Schedule
5.19 of the SPA. Among other things, Count l alleges that the Defendants’ failure to amend the
ACO to include the name of LPH and remove ISP and its subsidiaries therefrom is in breach of
Section 2(f).
On January 6, 2016, the Heyman Defendants filed their Answer to the Complaint and
Counterclaims (the “Counterclaims”). The Counterclaims lay out six causes of action related to
the same off-site liabilities Counterclaim l is a declaratory judgment action. The Heyman
Defendants request the Court use its declaratory judgment power to declare that lES assumed
clean-up responsibility under the 1991 Assumption Agreement. ln Counterclaims ll and III, the
Heyman Defendants assert claims for breach of contract and a declaratory judgment relating to
breach of contract These counterclaims request the Court specifically outline the parties’
responsibilities under SPA Sections 2(e) and 2(f``) of Schedule 5.19 of the SPA and/or assess
damages for the breach of these provisions Counterclaim IV is a claim for breach of the implied
covenant of good faith and fair dealing The Heyman Defendants allege that Ashland acted in
“' 1a 1173_
bad faith by refusing to comply with SPA Sections 2(e) and 2(f). LPH seeks relief in
Counterclaims V and VI. Counterclaim V is a Spill Act claim Counterclaim Vl is an
indemnification claim. LPH alleges that, pursuant to the 1996 lndemnification Agreement,
Ashland must indemnify LPH for any and all costs, including penalties, assessed by NJDEP.
On February 25, 201 6, Ashland filed its Plaintiff/Counterclaim Defendants’ Motion to
Dismiss Certain of Defendants’ Counterclaims (the “MTD Motion”). Ashland moved to dismiss,
in all or in part, all six of the Counterclaims First, Ashland argues that Counterclaim I must be
dismissed because the Heyman Defendants improperly seek a declaration of the parties’ rights
pursuant to the Assumption Agreement because none of the Defendants was a party to the
Assumption Agreement. Second, Ashland contends that Counterclaims ll and Ill must be
dismissed as to LPH because LPH was not a party to the SPA. Ashland also claims that Counts
ll and lll as to the remaining Heyman Defendants must be dismissed because they were not a
party to the Contribution Agreement. 'l``hird, Ashland argues the Heyman Defendants fail to
plead a breach of the implied covenant of good faith and fair dealing. Fourth, Ashland contends
that LPH fails to properly plead a Spill Act claim and, therefore, this claim must be dismissed
Fif``th, Ashland claims that LPH may not bring a claim for breach of the Indemnification
Agreement, because it was not a signatory Finally, Ashland argues that, to the extent LPH
makes a claim pursuant to the Contribution Agreement in any Counterclaim (specifically
Counterclaims ll and III), those claims must be heard before an arbitrator as the Contribution
Agreement contains a mandatory arbitration provision which divests this Court of jurisdiction
On April 25, 2016, the Heyman Defendants filed their Counterclaim Plaintiffs’
Opposition to Counterclaim Defendants’ Motion to Disrniss Certain Counterclaims (the
“Opposition”). The Heyman Defendants argue that they may bring a declaratory judgment
action to determine lES’s rights and obligations under the Assumption Agreement because their
rights are affected42 The Heyman Defendants also contend that Counterclaims ll and lll should
remain because the two contracts at issue, the SPA and the Contribution Agreement, are
inextricably linked As to Counterclaim V, the Heyman Defendants contend that they have pled
a reasonable set of circumstances regarding their Spill Act claim to stave off dismissal Further,
the Heyman Defendants argue that Counterclairn lV, their implied covenant of good faith claim,
should survive dismissal because they have adequately pled an implied covenant which Ashland
breached Last, the Heyman Defendants argue that LPH may bring its lndemnification
Agreement claim because LPH was an assignee of the Indemnification Agreement’s signatories.
The Court heard oral argument on October 4, 2016. At the close of the hearing, the Court
took the MTD Motion under advisement The parties submitted post-trial briefing and sur-
replies in November, completing the process on December 15, 2016. This is the Court’s decision
on the MTD Motion.
III. STANDARD OF REVIEW_MOTION TO DISMISS
Upon a motion to dismiss under Civil Rule 12(b)(6), the Court (i) accepts all well-
pleaded factual allegations as true, (ii) accepts even vague allegations as well-pleaded if they
give the opposing party notice of the claim, (iii) draws all reasonable inferences in favor of the
non-moving party, and (iv) only dismisses a case where the plaintiff Would not be entitled to
recover under any reasonably conceivable set of circumstances43 However, the Court must
“ignore conclusory allegations that lack specific supporting factual allegations.”44
42 see 10 net c. §6501.
43 See Cenlml Mortg. Co. v. Morgan Stanley Mor!g. Capiml Holdr``ngs LLC, 227 A.Bd 531, 536 (Del. 201 l); Doe v.
Cedars Academy, No. 09C-09-136, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010).
44 Ramunno v. Crawley, 705 A.Zd 1029, 1034 (Dcl. 1998).
9
IV. DISCUSSION
A. DECLARATORY JUnGMENT REGARDING THE AssuMPTloN AGREEMENT wch Nor
Movn LmGATIoN FonAnr)
The Delaware Declaratory ludgment Act provides that “any person . . . whose rights,
status, or other legal relations are affected by a . . . contract . . . may have determined any
question of construction or validity arising under the . . . contract[.]”45
The Heyman Defendants
contend that the Court has the power to declare their rights in conjunction with the Assumption
Agreement signed by ISP and GAF Chemicals Corporation. Ashland argues, without citing any
case law, that the Heyman Defendants lack standing
This claim seems non-controversial The Heyman Defendants seek the Court to declare
that IES, as successor, assumed obligations under the Assumption Agreement. Ashland agrees.46
To the extent the Heyman Defendants seek a declaration that IES (and Ashland) assumed all off-
site obligations, they seek the same claims in their breach of contract claim. The Court finds that
exercising its discretion under Delaware’s Declaratory Judgrnent Act would not fruitfully move
this matter forward The parties’ dispute revolves around the SPA and SPA Sections 2(e) and
2(f), not the Assurnption Agreement_z``.e. , the purported “actual and justiciable” controversy
raised in Paragraph 82 of the Counterclaims is the dispute between Ashland and the Heyman
Defendants asserted in Counterclaims ll and lll. As such, the Court will grant the MTD Motion
as to Counterclaim l.
45 10 net c § 6502.
46 See Plaintiffs’ Compl. 11 40 (“GAF Chemicals Corporation transferred ownership of the [Linden Property] to IES
in 1991 .”). See also id. 11 41 (“Upon information and belief, the [Trusts] or their predecessor(s) created IES,
arranged for the transfer of the [Linden Property] to IES, and volunteered IES to complete the remediation required
by the ACO so that the remediation under the ACO could be completed and the {Linden Property] made suitable for
redevelopment.”),
10
B. THE SPA AND CoNTRIBUTloN AGREEMENTS ARE RELATED, AND MUsr BE REAI)
TocETHER
Ashland argues, Without citing to authority, that LPH may not bring a claim because it
did not sign the SPA. The Court finds that LPH and the Heyman Trusts have standing to bring
claims pursuant to the SPA and the Contribution Agreement. Section 9.3 of the SPA provides
that the SPA “shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, legal representatives and permitted assigns.”47 Section 2(a) of Schedule
5.19 of the SPA, as amended, plainly states that:
[Ashla.nd] shall cause [ISP and its Subsidiaries] to, (i) immediately following the
Closing, assign, transfer, convey and deliver to [LPH] . . . , a Delaware limited
liability corporation (the “Linden Subsidiary”) formed by [IES] . . . all right, title
and interest of the Companies in and to the following assets (and no other
assets): (A) the Linden Property, (B) any rights to receive the proceeds of any
insurance policies covering the Linden Property, (C) any Contracts to the extent
related to operation of the Linden Property and (D) any personal property assets
located thereon . . . by limited warranty deed, and (ii) immediately following the
actions contemplated by subclause (i), assign, transfer, convey and deliver to the
Seller Parties or their designee (the ‘°Linden Transferee”) the Linden Subsidiary
((i) and (ii) collectively the “Lrnden Transrer”).“
The parties clearly contemplated that LPH was coming into existence, and it would have rights
pursuant to the SPA. As set forth below, the Court finds that LPH may pursue its breach of
contract claim under the SPA.
At this stage in the proceedings, the Court also finds that the SPA and the Contribution
Agrcement must read in conjunction With another. The Court understands that these are two
separate agreements and that the agreements were not executed simultaneously; however, the
sale of the Linden Property to LPH is contemplated in and part of the SPA transaction SPA
Section 5.19 refers the parties to SPA Schedule 5.19. SPA Schedule 5.19 contains SPA Section
‘” counterclaims Ex. 2 ar 99.
43 rd. Ex. 19 ar 3 emphasis added).
ll
Z(a), and Section 2(a) above contemplates creating LPH. The Contribution Agreement is, in
part, the device that Ashland used to sell the Linden Property to LPH.
Delaware law allows for agreements related to the same business transaction and subject
matter, and entered into in close temporal proximity of one another, to be read together as one
overall agreement49 The Court, by doing this, is not saying that it will treat the Contribution
Agreement and the SPA as one document or contract. lnstead, the Court sees that the SPA
contemplates sale of stock of the entity which owned the Linden Property to Ashland and the
later conveyance of the Linden Property back to LPH. This is part of an overall agreement
Ashland’s argument about the three months between closing on the SPA and the sale of the
Linden Property is too technical and narrow, and Seerns to purposefully ignore part of the
purpose of the SPA.50
The SPA dictated the assignment of all rights, title, and interests in the Linden Property
(SPA Schedule 5.19) and thus the assignment set forth in, and effectuated by, the execution of
the Contribution Agreement.".’l In fact, the Contribution Agreement expressly stated it was being
entered into “as required by Section 5.19 and Schedule 5.19 of the [SPA] and in satisfaction of
such requirements,” and contained an integration clause that stated as follows: “[this] Agreement
. . . , together with the [SPA] . . . , the other Ancillary Agreements and the Deed, contains the
f 9352
entire agreement between the parties hereto with respect to the subject matter hereo Because
the two agreements are intertwined, the Court finds that the SPA and the Contribution
49 See, e.g., E.l. du Pont de Nemours & Co. v. Shell Oil Co, 498 A.2d 1108, ll 15 (Del. 1935) (finding that the
specific terms of two agreements and the “interre|ationship thereof ma[d]e it clear that the parties intended [rhern] to
operate as two halves of the same business transaction.”).
50 The Court says “part” of the purpose as, obviously, the SPA does more than deal with the Linden Property_
among many other things, the SPA deals with stock sales (“ISP and its subsidiaries”) and the transfer of the Wayne
Property.
51 See Counterclaims Ex. 18 at 12-13 (Section 2(a) of Schedule 5.19 of the SPA), Ex. 19 at 3 (amending Section
Z(a) of Schedule 5.19 of the SPA).
52 1a Ex. 20 at1,4.
12
Agreement must be read together as part of a single agreement The Court will, therefore, deny
the MTD Motion to the extent it seeks to have Counterclaims ll and III dismissed as to LPH.
The Court will also deny the MTD Motion as to its jurisdictionfarbitration argument
regarding lack of jurisdiction as to the Contribution Agreement. Ashland initiated this civil
action. Ashland is suing the Heyman Defendants, including LPH, in connection with SPA
Section 5.19, SPA Schedule 5.19 and the provisions of SPA Schedule 5 .19 (i.e., SPA Sections
2(e) and 2(f``)). Section 2 of the Contribution Agreement mirrors, with exceptions, SPA Section
Z(e).
The Court recognizes the existence of the binding arbitration provision of the
Contribution Agreement and understands the importance of upholding such provisions.53
However, Ashland engaged LPH in this Court on LPH’s obligations under SPA Section 5.19,
SPA Schedule 5.19 and the ACO. The Heyman Defendants asserted Counterclaims ll and lll
which include similar claims under the SPA and the Contribution Agreement. Now, Ashland
argues that LPH and the other Heyman Defendants must sever any of their SPA claims from the
Contribution Agreement claims. Ashland’s position would promote inefficiencies and could
provide for inconsistent results (this Court’s determinations as to the AC() and off-site migration
liability under the SPA and the New York JAMS arbitration panel (using Delaware law) on the
same issue but as to the Contribution Agreement). This is not an instance where LPH and the
Heyman Defendants are trying to take advantage of the situation and assert a separate and
unrelated claim. Ashland initiated the litigation and the Heyman Defendants asserted the
Counterclaims As such, the Court agrees with and will apply the legal principle that to send
claims arising from one agreement (the Contribution Agreement) elsewhere (New York JAMS
53 See, e.g., NA MA Hozdings, LLC v. named Worzd M;e. Crr., LLC, 922 A.zd 417 (Del. ch. 2007).
13
arbitration panel) while keeping claims from another related agreement (the SPA) here in this
Court would result in obvious inefficiencies and confusion.54
C. IMPLIED CovENANT oF Goon FArrH AND FAIR DEALING MUsT BE msMissED
The Heyman Defendants contend in Counterclaim lV that Ashland breached the implied
covenant of good faith and fair dealing The Heyman Defendants argue that Ashland owes them
a duty to refrain from arbitrary or unreasonable conduct which prevents another from receiving
the fruits of their bargain.
The implied covenant of good faith and fair dealing cannot be used to grant contractual
protections that parties forwent at the bargaining table.55 The covenant is not a license to rewrite
contractual language56 A party generally cannot base a claim for breach of the implied covenant
on conduct authorized by the agreement57
lf the facts underlying Counterclaims ll and lll are proven, the Heyman Defendants will
get the same relief sought in Counterclaim IV - damages (or a declaration of rights) related to
breach of the conditions of SPA Section 5.19 and Schedule 5.19’s SPA Sections Z(e) and Z(f``).
The Court finds that the Heyman Defendants have not pleaded a valid claim for breach of an
implied covenant of good faith and fair dealing as the Heyman Defendants have not alleged any
implied contractual terms. lnstead, the Heyman Defendants pursued a counterclaim for breach
of an implied covenant where the conduct is already specifically addressed in the SPA. The
Heyman Defendant’s Counterclaim IV arises from the parties’ disagreement over the
interpretation of the SPA and its allocation of liabilities Therefore, this issue is better suited for
54 See Ashall Homes Ltd. v. ROK Emm ’t Grp., Inc., 992 A.2d 1239, 1251 (Del. Ch. 2010) (dismissing case in
Delaware for litigation in English courts where, in part, important policy reasons (avoiding inefficiencies and
confusion) supported adjudicating disputes over multiple agreements that were separate parts Of a Single integrated
scheme in one court).
55 see Aspen Advisors LLC v. UnaedA»-rnrs Thearre Co., 361 A.2d 1251, 1260 (Del. 2004).
56 Nemec v. shrader, 991 A.zd 1120, 1126 (De1.2010).
57 1a ar1125_26.
14
the Heyman Defendants’ breach of contract claims asserted in Counterclaims ll and IlI.
Accordingly, the Court will grant the relief requested in the MTD Motion and dismiss
Counterclaim IV.
D. SPILL ACT LlABILITY CLAlM REMAINS
Ashland moves to dismiss Counterclaim V_LPH’s Spill Compensation and Control Act
(the “Spill Act”) Claim.53 Ashland argues that LPH fails to allege any facts that Ashland ever
discharged any hazardous substance on the Linden Property. And, Ashland never owned or
operated the Linden Property. LPH counters that Ashland, as parent to ISP, IES, and Chemco, as
historical owners of the property, may all be liable under the Spill Act.
The Spill Act imposes liability on: “any person who has discharged a hazardous
substance, or is in any way responsible for any hazardous substance, shall be strictly liable,
jointly and severally, without regard for fault, for all clean up and removal costs no matter by
whom occurred.”59 Discharge means, “any intentional or unintentional action or omission
resulting in the releasing, spilling, leaking, pumping, pouring, emitting or dumping of hazardous
substances into the waters or onto the lands of the State[.]”60
New Jersey Courts interpret “in
any way possible” as liberal as possible to effect the Spill Act’s purpose.é] Liability may arise
even if operations on a property have ceased.62 So, it makes no difference at this stage that
operations ceased on the Linden Property in 1991.
Spill Act lawsuits often require experts to determine what hazardous substances have
been discharged, the extent to which they have been discharged, and to apportion liability if
53 N.i.s.A. 53;10-23.11 er seq.
59 1a 53:10-23.11g(c)(1).
turn 53:10_23.111>.
61 See, e.g., State, Dept. ofEnvironmental Protection v. Ventron Corp., 468 A.2d 150, 165 (N.J. 1983).
62 Marsh v_ New Jersey Dept. of Envir'onmental Protectr'on, 703 A.2d 927 (N..l. 1997) (holding a landowner liable
for gasoline leakage even though the gas stations ceased to exist prior to the landowner’s obtaining the property).
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necessary Discovery is ongoing LPH has adequately pled that Ashland and ISP are the direct
or indirect parents of IES, who owned the Linden Property for more than two decades63 And_,
LPH has alleged that Chemco was IES’s financial guarantor during IES’s ownership period.64
As noted, the Spill Act’s scope of liability is broad, and may encompass anyone “in any way
responsible.” At this stage, the Court must accept LPH’s allegations as true. With that, the
Court cannot hold that the Heyman Defendants would not be entitled to recover under any
reasonably conceivable set of circumstances on their Spill Act Claim. Although Counterclaim V
may not survive the summary judgment, the Court will not dismiss Counterclaim V as failing to
state a claim upon which relief can be granted under Civil Rule lZ(b).
E. LPH’s DECLARATORY JUDGMENT CLAlM REGARDING THE INDEMNIFICATION
AGREEMENT FAILS
Last, Ashland moves to dismiss LPH’s Counterclaim VI, which is a declaratory judgment
claim as to the Indemnification Agreement. ln Counterclaim VI, LPH seeks that the Court
declare Ashland may have to indemnify LPH for losses associated with the Linden Property.
LPH argues that a 1996 lndemniflcation Agreement between ISP and GAF Chemicals
Corporation encompasses this dispute
ln 1996, GAF Chemicals Corporation and ISP executed an Indemnif``ication Agreement.65
Article 2.2(b)(l) of the lndemnification Agreement states:
ISP Holdings shall indemnify, defend and hold harmless the GAF Group and each
of their respective Representatives and Affiliates from and against all ISP
Holdings Liabilities and any and all indemnifiable Losses of the GAF Group and
each of their respective Representatives and Affiliates arising out of or due to,
directly or indirectly, the ISP Holdings Liabilities, whether such ISP Holdings
Liabilities arose before, or arise after, the Spin Off Date.66
63 See Counterclaims 1111 20-22, 28, 52.
64 1a 11 30.
55 Defendants’ Answers/Counterc|aims Ex. 21.
66 1a as
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Conversely, Article 2.2(a)(1) says that:
GAF and G-I Holdings shall jointly and severally indemnify, defend and hold
harmless ISP Holdings, its Post Spin Subsidiaries and each of their respective
present and future Representatives and Affiliates from and against all GAF
Liabilities and all lndernniliable Losses of ISP Holdings, its Post Spin
Subsidiaries and each of their respective Representatives and Afiiliates arising out
of or due to, directly or indirectly, the GAF Liabilities, whether such GAF
Liabilities arose before, or arise ener, the spin off t)ete.67
“GAF oroop” mendes “Amlietee” of Gnr.68 c‘isP noldioge Liebiiinee” included “e11
3369
Liabilities of ISP and its subsidiaries “Liabilities” was defined as “all debts, liabilities,
expenses, costs and obligations of any kind[.]”70 The Indemnification Agreement remained in
effect after the SPA closed.-’l
The Heyman Defendants argue that the disputed off-site liabilities were included in the
Indemnification Agreement. Further, the Haymen Defendants argue that LPH is an express
intended third-party beneficiary So, LPH is entitled to indemnification from Ashland. Ashland
argues that LPH was never an intended beneficiary, and has no standing
In Delaware, “intended third-party beneficiaries have a right to enforce a contract which
confers a benefit to them. To qualify, ‘not only is it necessary that performance of contract
confer benefit upon third-parties that was intended, but the conferring of a beneficial effect on
such third-party . . . should be a material part of the contract’s purpose.”’72 There is none here
for LPH. Article 2.2(a)(l) suggests that GAF would indemnify any future representatives or
affiliates There is no counterpart in Article 2.2(b)(l). The contract reads that ISP would
indemnify GAF and its respective affiliates There is no future-looking language LPH was
67 lot et 7 (emphesis edded).
68 1a er 3.
69 Id. at 4.
70 Id
" See id. Ex. 3 Sections l.l(a).
72 RHA Constr., lnc. v. Scott Eng'g, Inc., 2011 WL 3908765, at *5 (Del. Super. Sept. 1, 2011).
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created after the SPA closed as an entity that would own the Linden Property. LPH is, for lack
of a better word, affiliated with the Heyman Defendants and not IES, ISP Holdings. GAF or
Ashland. LPH did not exist when the SPA was negotiated and came into existence at or around
closing on the SPA. LPH’s purported intended-beneficiary claim status is too distant from the
Indemnification Agreement’s formation and operation
V. CONCLUSION
The Court will GRANT the MTD Motion as to Counterclaims I. IV and VI. The Court
will DENY the MTD Motion as to the remaining Counterclaims
IT lS SO ORDERED.
© t …
Eric M. Davis, Judge
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