ELR Citation: ELR 20658
No(s). 90-12624-K (D. Mass. Jun 26, 1991)

The court holds that a complaint by condominium project developers against corporate officers for their alleged failure to inform the developers of contamination on the corporation's property fails to state a cause of action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The defendant corporations stored and transferred chemical solvents on their property. The court first rejects the developers' claim that both corporate and individual defendants are liable under the Massachusetts Consumer Protection Act (MCPA) for their failure to inform the plaintiffs of the contamination on the corporations' property despite their alleged knowledge of the plaintiffs' plan for condominium development. The court holds that the MCPA does not apply absent a showing that the condominium project owners and the corporations were engaged in any business transaction. Turning to claims against the corporate officers, the court holds that the CERCLA counts in the complaint are insufficient. The CERCLA counts failed to give fair notice of the legal theory on which they were based and failed to state that the individual officers were being charged under CERCLA's "owner and operator" category. The common law counts failed to inform the defendants that plaintiffs are attempting to show personal involvement rather than piercing the corporate veil. Further, the complaint fails to state the facts underlying the allegation that the individual defendants participated and exerted control over contamination of the site. The court observes that CERCLA requires a high standard of particularity in pleading. CERCLA involves many of the circumstances that have led courts to impose higher standards of specificity in other areas. For example, the consequences of individual liability may be severe and defending against a non-meritorious claim can be very expensive. The court concludes that the claims against the individual defendants will be dismissed unless plaintiffs file an amended complaint that pleads at least an outline of the factual basis for the claims.

Counsel for Plaintiffs
Carl K. King
Posternak, Blankstein & Lund
100 Charles River Plaza, Boston MA 02114
(617)367-9595

Counsel for Defendants
Robert S. Sanoff, Nicholas C. Theodorou
Foley, Hoag & Eliot
1 Post Office Sq., Boston MA 02109
(617)482-1390