# United States v. General Battery Corporation, Inc., Exide Corporation Exide Corporation

> Court of Appeals for the Third Circuit · September 6, 2005 · 423 F.3d 294

URL: https://www.frixlaw.com/law-library/cases/9498361

## Case

- **Full name:** UNITED STATES of America v. GENERAL BATTERY CORPORATION, INC., Exide Corporation Exide Corporation, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 6, 2005
- **Citations:** 423 F.3d 294; 35 Envtl. L. Rep. (Envtl. Law Inst.) 20182; 61 ERC (BNA) 1001; 2005 U.S. App. LEXIS 19216; 2005 WL 2124540
- **Precedential status:** Published
- **Opinion:** Concurring in part by Rendell
- **Judges:** Scirica, Rendell, Fisher
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498361

## How later opinions describe it (automated extraction)

- stating, “[t]he contractual requirement that [the seller corporation] immediately change its name, cease operations, and subsequently liquidate and dissolve, is more characteristic of a merger than an asset purchase”
- finding factor met where the parties’ “agreement expressly provided that [the- successor] would assume [the predecessor's contractual obligations and all other obligations appearing on [the successor’s balance sheet”
- finding de facto merger because the purchasing-company “continued” the selling-company’s “enterprise” where purchaser continued to employ senior executives who “remained active in supervising [manufacturing] plant”
- stating, “an essential characteristic of a merger is that one corporation survives while another ceases to exist”

## Opinion text

RENDELL, Circuit Judge,
Concurring in part and dissenting in part.
I agree with the majority’s conclusion that the fact pattern presented was a de facto merger such that successor liability for purposes of CERCLA exists and therefore concur in its ultimate ruling. However, I part company with the majority regarding its decision to announce that the issue of successor liability in this context is controlled by federal common law. This determination is unnecessary to the resolution of the issues before us and runs counter to recent Supreme Court pronouncements which both call into question the concept of federal common law and explicitly state that only in the most limited of circumstances should we look beyond applicable state law. Moreover, two other courts of appeals — the First and the Ninth — have considered the precise issue before us and our opinion perpetuates a split among the courts of appeals. Those courts have opined that the Supreme Court’s recent directives cast serious doubt on the advisability of creating federal common law to dictate the contours of successor liability under CERCLA. 13 The *310 majority, however, embraces the application of federal common law, relying instead on the outdated notion of promoting uniformity.
Over the course of the last decade, and since we decided Smith Land & Improv. Corp. v. Celotex Corp., 851 F.2d 86 (3d Cir.1988) and Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209 (3d Cir.1993), the Supreme Court has issued several opinions denouncing the creation of federal common law where state law would otherwise apply. Principally, in O’Melveny & Myers v. FDIC, 512 U.S. 79 , 114 S.Ct. 2048 , 129 L.Ed.2d 67 (1994), the Court rejected the notion that a federal common law rule regarding the imputation of corporate officer knowledge to a corporation should be applied in an action against the Federal Deposit Insurance Corporation (“FDIC”). The Court stated:
The first of these contentions need not detain us long, as it is so plainly wrong. “There is no federal general common law, and ... the remote possibility that corporations may go into federal receivership is no conceivable basis for adopting a special federal common-law rule divesting states of authority over the entire law of imputation.”
Id. at 83 , 114 S.Ct. 2048 (internal citation omitted) (citing Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U.S. 29, 33-34 , 77 S.Ct. 119 , 1 L.Ed.2d 93 (1956)).
The O’Melveny Court went on to note that, with regard to “the central question of displacement of [state] law” in favor of a rule federal in nature:
[W]e of course would not contradict an explicit federal statutory provision. Nor would we adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law. * * *
.... As we proceed to explain, even assuming the inapplicability of FIRREA [Financial Institutions Reform, Recovery, and Enforcement Act of 1989] this is not one of those cases in which judicial creation of a special federal rule would be justified.
Such cases are, as we have said in the past, “few and restricted,” Wheeldin v. Wheeler, 373 U.S. 647, 651 , 83 S.Ct. 1441 , 10 L.Ed.2d 605 (1963), limited to situations where there is a “significant conflict between some federal policy or interest and the use of state law. ” Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68 , 86 S.Ct. 1301 , 16 L.Ed.2d 369 (1966). Our cases uniformly require the existence of such a conflict as a precondition for recognition of a federal rule of decision. Kimbell Foods, 440 U.S. at 728, 99 S.Ct. 1448 . Not only the permissibility but also the scope of judicial displacement of state rules turns upon such a conflict. What is fatal to respondent’s position in the present case is that it has identified no significant conflict with an identifiable federal policy or interest.
O’Melveny & Myers, 512 U.S. at 85, 87-88 , 114 S.Ct. 2048 (some internal citations omitted) (emphasis added). While O’Mel-veny did not involve CERCLA, nonetheless, the pronouncement of the Court regarding displacement of state law makes crystal clear that matters left unaddressed by a comprehensive federal statutory scheme are presumably left subject to the *311 disposition provided by state law 14 — there must exist a conflict, identifiable and specific, with an important federal policy before we consider resorting to federal common law.
Three years after deciding O’Melveny, the Supreme Court again commented on the concept of “federal common law,” in the case of Atherton v. FDIC, 519 U.S. 213 , 117 S.Ct. 666 , 136 L.Ed.2d 656 (1997). In Atherton , the Court again emphasized the “precondition,” id. at 218 , 117 S.Ct. 666 , that a conflict exist to warrant the conception of a federal rule; under the facts of the case before it, the Court stated that its initial inquiry must concern whether the application of the relevant state law standard of care to banks would conflict with, and thereby significantly undermine, an identifiable federal policy or interest:
States normally look to the State of a business’ incorporation for the law that provides the relevant corporate governance general standard of care. And by analogy, it has been argued, courts should look to federal law to find the standard of care governing officers and directors of federally chartered banks. To find a justification for federal common law in this argument, however, is to substitute analogy or formal symmetry for the controlling legal requirement, namely, the existence of a need to create federal common law arising out of a significant conflict or threat to a federal interest. O’Melveny, 512 U.S. at 85, 87 , 114 S.Ct. 2048 .
In sum, we can find no significant conflict with, or threat to, a federal interest. The federal need is far weaker than was present in what the Court has called the “few and restricted’ instances,” Milwaukee v. Illinois, 451 U.S. 304, 313 , 101 S.Ct. 1784 , 68 L.Ed.2d 114 (1981), in which this Court has created a federal common law.
Atherton, 519 U.S. at 224-25 , 117 S.Ct. 666 . The Court then detailed such “few *312 and restricted” cases, which I list in the margin. 15 Again, the Court’s focus was on the presence of a significant conflict. And, to discern whether a conflict is present, we are not to evaluate the jurisprudential landscape of all fifty states; rather, “federal courts should incorporate state law into federal common law unless the particular state law in question is inconsistent with the policies underlying the federal statute.” Kamen v. Kemper Fin. Servs., 500 U.S. 90 , 111 S.Ct. 1711, 1722 , 114 L.Ed.2d 152 (1991) (emphasis added).
Most recently, in United States v. Bestfoods, the Court was called upon to consider whether a parent corporation that actively participated in, and exercised control over, the operations of a subsidiary may, without more, be held liable under CERC-LA as an operator of a polluting facility owned or operated by the subsidiary. 524 U.S. 51, 55 , 118 S.Ct. 1876 , 141 L.Ed.2d 43 (1998). The Court answered in the negative, “unless the corporate veil may be pierced.” Id. In so concluding, the Court expounded upon certain general principles of corporate law- — for example, that parents are not liable for the acts of their subsidiaries, id. at 62 , 118 S.Ct. 1876 , along with the “equally fundamental principle of corporate law” that a corporate veil may be pierced where the corporate form was misused, id. Significantly, the Court explained:
Nothing in CERCLA purports to rewrite this well-settled rule, either. CERCLA is thus like many another congressional enactment in giving no indication “that the entire corpus of state corporation law is to be replaced simply because a plaintiffs cause of action is based upon a federal statute,” Burks v. Lasker, 441 U.S. 471, 478 , 99 S.Ct. 1831 , 60 L.Ed.2d 404 (1979), and the failure of the statute to speak to a matter as fundamental as the liability implications of corporate ownership demands application of the rule that “in order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law,” United States v. Texas, 507 U.S. 529, 534 , 113 S.Ct. 1631 , 123 L.Ed.2d 245 (1993) (internal quotation marks omitted). The Court of Appeals was accordingly correct in holding that when (but only when) the corporate veil may be pierced, may a parent corporation be charged with derivative CERCLA liability for its subsidiary’s actions.
Id. at 63-64, 118 S.Ct. 1876 (footnotes omitted).
As noted by the majority, the Bestfoods Court declined to reach the precise issue before us, noting a “disagreement” as to whether “courts should borrow state law, or instead apply a federal common law of *313 veil piercing,” 524 U.S. at 64, n. 9 , 118 S.Ct. 1876 , but sidestepping any conclusion: “Since none of the parties challenges the Sixth Circuit’s holding that [certain companies] incurred no derivative liability, the question is not presented in this case, and we do not address it further,” id. The majority protests that the Court did not declare the use of federal common law inappropriate at this juncture or cite to O’Melveny . But the Court clearly did not need to, or choose to, reach the issue. We should infer nothing from its silence.
I find more significant the Bestfoods Court’s affirmative discussion of “norms of corporate behavior,” which it viewed as constituting crucial reference points, along with the reliability of bedrock principles of corporate law. See, e.g., 524 U.S. at 70 n. 13 & 71, 118 S.Ct. 1876 . I cannot help but conclude that reference to the “norms” bolsters the view that existing state corporate law principles should control, and we need not invent federal law, or deem them “federal”, in order to further CERCLA’s regulatory scheme. The Court’s discussion of “congressional silence” concerning these “bedrock” corporate principles, which it describes as “audible,” supports this view. 524 U.S. at 62 , 118 S.Ct. 1876 . With respect to the silence wrought by Congress’ failure to address, in the statute, the claim at issue in Bestfoods, notably, the Court stated that “CERCLA is thus like many another congressional enactment in giving no indication ‘that the entire corpus of state corporation law is to be replaced simply because the plaintiffs cause of action is based upon our federal statute.’ ” Bestfoods, 524 U.S. at 63 , 118 S.Ct. 1876 (quoting Burks v. Lasker, 441 U.S. 471, 478 , 99 S.Ct. 1831 , 60 L.Ed.2d 404 (1979)). Indeed, the Bestfoods Court chided the district court in that case for having “treated CERCLA as though it displaced or fundamentally altered common law standards of limited liability” because “such a rule does not arise from congressional silence, and CERCLA’s silence is dispositive.” 524 U.S. at 70 , 118 S.Ct. 1876 . Finally, it bears noting that the Supreme Court affirmed the court of appeals’ determination applying Michigan law that a parent may be held liable only where the corporate veil may be pierced. See United States v. Cordova Chem. Co., 113 F.3d 572 , 580 (6th Cir.1997).
After reading these three recent Supreme Court opinions, I am left with the clear impression that the notion of resorting to a federal rule of successor liability here, mandating it as controlling in our Circuit without regard to state law, would not be endorsed by the Supreme Court. The overarching theme is that state law should not be displaced unless the particular state law at issue conflicts with an important federal policy. Noticeably absent is any reference to the majority’s guiding theme — that of the need for uniformity. And, as I discuss more fully below, uniformity for uniformity’s sake is not such a policy.
The courts of appeals that have addressed this issue agree that the Supreme Court’s recent decisions discussed above have moved toward reliance on state law, and away from the creation of federal common law, unless a conflict exists. In Atchison, T. & S.F. Ry. v. Brown & Bryant, 159 F.3d 358 (9th Cir.1997), the Court of Appeals for the Ninth Circuit considered whether the Supreme Court’s pronouncements on this issue in O’Melveny and Atherton (Bestfoods had not yet been decided) were clear enough to cause it to abandon its own previous determination in Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260 (9th Cir.1990) (adopting Third Circuit’s rationale in Smith Land) that the parameters of successor liability under CERCLA should be fashioned by federal common law in order to promote national *314 uniformity. The Atchison court concluded that although the Atherton and O’Melveny opinions implicated FIRREA, and not CERCLA, the underlying analysis was nonetheless applicable and persuasive. 159 F.3d at 362 . Thus, in concluding that the promotion of national uniformity does not justify application of federal common law to CERCLA, the Court effectively rejected its previous determination in Louisiana-Pacific along with that opinion’s underlying rationale — our own opinion in Smith Land.
Initially, the Atchison Court correctly noted that “simply because a federal statute is involved does not always mean that federal courts should fashion a uniform federal rule.” 159 F.3d at 362 (citation omitted). “Frequently, state rules of decision will furnish an appropriate and convenient measure of the governing federal law.” Id. The subsequent discussion merits repeating in full:
In Louisiana-Pacific, we agreed with the Third Circuit that CERCLA’s “ ‘meager legislative history available indicates that Congress expected the courts to develop a federal common law to supplement the statute.’ ” 909 F.2d at 1263 (quoting Smith Land, 851 F.2d 86 at 91). This legislative history consists of a discussion in Congress that common law should govern the issue of joint and several liability under CERC-LA. Louisiana-Pacific recognized that Congress did not address the particular issue of successor liability under CERC-LA.
O’Melveny tells us that when dealing with a “comprehensive and detailed” federal statutory regulation, a court should instead presume that matters left unaddressed in such a scheme are subject to state law. “Congress acts ... against the background of the total corpus juris of the states.... ” Atherton, 117 S.Ct. at 670 (alteration in original). The formation of corporations and the dissolution and continuing liability of corporations are traditional areas of state law. As CERCLA lacks any clear directive that federal courts develop standards for successor liability, we turn to the Kimbell Foods test, as clarified by O’Melveny and Atherton.
Although Louisiana-Pacific refers to the “need for national uniformity” as a reason for developing federal rules for successor liability, Atherton notes that “to invoke the concept of ‘uniformity’ ... is not to prove its need.” 117 S.Ct. at 671 ; see also O’Melveny, 114 S.Ct. at 2055 (recognizing how generic and “lightly invoked” is the need for uniformity). Although often invoked in this context, there has been no real explanation of the need for uniformity in the particular area of successor liability— especially since state law will in many other instances determine whom the EPA may or may not look to for compensation. If state law varied widely on the issue of successor liability, perhaps the need for a uniform federal rule would be more apparent. This is not the case, however, as “the law in the fifty states on corporate dissolution and successor liability is largely uniform.” Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1249 (6th Cir.1991) (Kennedy, J., concurring) (holding that state law determines successor liability under CERCLA). The argued “need” for uniformity thus stems not from disarray among the various states, but from the alleged need for a more expansive view of successor liability than state law currently provides — in other words, the notion that state law on this issue is inadequate for CERCLA’s purposes.
*315 But O’Melveny and Atherton also speak to this argument. Before a court can recognize a federal rule of decision, there must be a “‘significant conflict between some federal policy or interest and the use of state law.’ ” O’Melveny, 114 S.Ct. at 2055 (quoting Wallis, 384 U.S. 63 at 68 , 86 S.Ct. 1301 , 16 L.Ed.2d 369 ). Indeed, such a conflict is a “precondition” to fashioning federal common law rules. Atherton, 117 S.Ct. at 670 . The Court’s recent cases clarify that to demonstrate such a conflict, more than speculation is required — there must be a “specific, concrete federal policy or interest that is compromised” by the application of state law. O’Melveny, 114 S.Ct. at 2055 . We therefore doubt that the concern noted in Louisiana-Pacific is sufficient grounds for developing a federal rule of decision.
Atchison, 159 F.3d at 362-64 (certain internal citations and footnotes omitted). 16 The Atchison Court concluded that it would not adopt the “substantial continuation” exception (which would have expanded federal common law liability). It then reasoned that because the same result would flow in the case before it under either state law or federal common law, it need not decide whether state or federal law governs successor liability under CERCLA. Id. at 364 . Despite bypassing the question we now consider, it is abundantly clear that the Ninth Circuit, were its hand forced, would follow the recent directives of the Supreme Court and hold that state law should govern successor liability under CERCLA.
Even more recently, and with the benefit of the Bestfoods opinion, the Court of Appeals for the First Circuit, considering displacement of Connecticut state law to determine successor liability under CERC-LA, did just that:
We have concluded that the majority rule is to apply state law “so long as it is not hostile to the federal interests animating CERCLA,” and have applied Massachusetts contracts law to determine an issue of successor liability. John S. Boyd Co., Inc. v. Boston Gas Co., 992 F.2d 401, 406 (1st Cir.1993). Recent Supreme Court precedent confirms that Boyd’s approach is correct. The Court applied state corporation law in a recent CERCLA case involving the potential liability of a parent corporation for its subsidiary and left little room for the creation of a federal rule of liability under the statute. See United States v. Bestfoods, 524 U.S. 51, 63 , 118 S.Ct. 1876 , 141 L.Ed.2d 43 (1998) (“CERCLA is ... like many another congressional enactment in giving no indication that the entire corpus of state corporation law is to be replaced simply because a plaintiffs cause of action is based upon a federal statute.”) (internal quotation marks omitted). The Court’s state *316 ments in Bestfoods and O’Melveny demonstrate that to justify the creation of a federal rule, “there must be a specific, concrete federal policy or interest that is compromised by the application of state law.” Atchison, Topeka & Santa Fe Railway Co. v. Brown & Bryant, Inc., 159 F.3d 358, 363-64 (9th Cir.1998) (internal quotation marks omitted). We see no evidence that application of state law to the facts of this case would frustrate any federal objective. Connecticut’s “mere continuation” test thus is the correct test for determining successor liability for the hazardous waste disposed.
United States v. Davis, 261 F.3d 1, 54 (1st Cir.2001).
As recognized by the Atchison and Davis courts, the Supreme Court has repeatedly emphasized that a specific and identifiable conflict must be present before we should invoke and apply a federal rule of decision. Here, no such conflict exists. Absent evidence that application of Pennsylvania state law, not the hypothetical application of the law of 49 other states, does frustrate CERCLA’s purpose — holding liable parties responsible for the costs associated with the clean up of hazardous waste sites' — -and in the face of recent Supreme Court opinions discouraging the creation of a federal rule of decision, it is readily apparent that resort to any law other than Pennsylvania’s is unnecessary and uncalled for.
I subscribe to and seek to reiterate a number of the majority’s threshold observations, which it appears to note but then discard: namely, that the Supreme Court has “cautioned against the unwarranted displacement of state law” (Maj. Op.) (citing O’Melveny, 512 U.S. at 87 , 114 S.Ct. 2048 ); additionally, that “[incorporation of state law is particularly favored in the area of corporate law, because business decisions proceed in reliance on the applicable state standards” (Id.) (citing Kamen, 111 S.Ct. at 1722 ); and, finally, that absent some significant conflict arises between a federal policy interest and the use of state law, “state corporation law generally should be integrated into the federal statutory regime.” (Id.) (citing United States v. Kimbell Foods, Inc., 440 U.S. 715 , 99 S.Ct. 1448 , 59 L.Ed.2d 711 (1979)) (other citations omitted). But, it is not clear to me why, in the face of these guiding principles, the majority then frames the issue before us simply as “whether CERCLA requires a uniform federal standard of corporate successor liability.” (Maj. Op.)
The majority’s determination that application of federal common law is warranted here hinges on our previous terse treatment of the issue in Smith Land & Improv. Corp. v. Celotex Corp., 851 F.2d 86 (3d Cir.1988) and Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209 (3d Cir.1993), cases in which the Court advanced only one animating rationale for adopting the “general doctrine of successor liability in operation in most states,” 851 F.2d at 92 — the need for a uniform and predictable body of law. We did so in a few conclusory sentences, without any meaningful discussion. Intervening Supreme Court precedent makes clear, however, that this rationale is no longer, if it ever was, paramount when evaluating whether we are confronted with “one of those extraordinary cases in which the judicial creation of a federal rule of decision is warranted.” O’Melveny & Myers v. FDIC, 512 U.S. 79, 89 , 114 S.Ct. 2048 , 129 L.Ed.2d 67 (1994). To the extent Smith Land and Lansford-Coaldale command us to ignore in our analysis longstanding, ingrained principles of state corporate law in favor of “that most generic (and lightly invoked) of alleged federal interests, the interest in uniformity,” id. at 88, 114 S.Ct. *317 2048 , those decisions should be reevaluated. George Harms Constr. Co. v. Chao, 371 F.3d 156, 161 (3d Cir.2004) (“We recognize that we may reevaluate a precedent in light of intervening authority even without en banc consideration.”); United States v. Adams, 252 F.3d 276, 286 (3d Cir.2001) (“Although a panel of this court is bound by, and lacks authority to overrule, a published decision of a prior panel, a panel may reevaluate a precedent in light of intervening authority.”) (internal quotations omitted). We must reevaluate the exalted position that we previously afforded “uniformity” in light of the Supreme Court’s direction that we are to employ a different mode of analysis. 17
The majority asserts that resort to federal common law is necessary because state laws concerning successor liability are not uniform and thus, without fashioning a federal rule of decision, predictability will be lacking. To say that the need for uniformity is the articulated federal policy supplying the rationale for creating federal common law is to put the analytic rabbit in the hat, so to speak. If uniform application is indeed the goal, resort would never be had to state law assuming some variation as among the different laws. Uniformity cannot be, and has never been said to be, the single animating principle. While it is a laudable goal, it is not one that has served as the basis on which the Supreme Court, or any other court of appeals to have addressed the issue, has rejected the application of state law. Rather, as discussed above and made clear in O’Melveny and Atherton , those courts that have considered rejecting the application of a particular state law in favor of a federal scheme have done so only when the state law in question clearly conflicted with an important federal policy to be advanced. See, e.g., Kamen, 500 U.S. at 98 , 111 S.Ct. 1711 ; Boyle, 487 U.S. at 504 , 108 S.Ct. 2510 ; Texas Industries, Inc., 451 U.S. at 641, 101 S.Ct. 2061 ; Wallis, 384 U.S. at 68 , 86 S.Ct. 1301 ; Sabbatino, 376 U.S. at 425, 84 S.Ct. 923 ; Wheeldin, 373 U.S. at 651 , 83 S.Ct. 1441 ; Lyons, 360 U.S. at 596, 79 S.Ct. 1331 ; Standard Oil Co. of Cal., 332 U.S. at 305, 67 S.Ct. 1604 . See also Redwing Carriers, Inc., v. Saraland Apartments, 94 F.3d 1489, 1501-02 (11th Cir.1996) (holding that state law should be adopted as the federal standard for determining whether a limited partner may be held accountable for the CERCLA liability of the partnership). These cases also make clear that it is the second factor of the Kimbell Foods test 18 which should receive paramount consideration. The Supreme Court in O’Melveny and Atherton cite to the Kimbell Foods test in direct support of the precept that “when courts decide to fashion rules of federal common law, ‘the guiding principle is that a significant conflict between some federal policy or interest and the use of state law ... must first be specifically shown.’ Indeed, such a ‘conflict’ is normally a ‘precondition.’” Atherton, 519 U.S. at 218 , 117 S.Ct. 666 (quoting O’Melveny, 512 U.S. at 87 , 114 S.Ct. 2048 , and citing Kimbell Foods, 440 U.S. at 728 , 99 S.Ct. 1448 ). *318 The Court in Atherton cites to Kimbell Foods an additional time, where it explains, “To invoke the concept of ‘uniformity,’ [ ] is not to prove its need.” 519 U.S. at 220 , 117 S.Ct. 666 (citing Kimbell Foods, 440 U.S. at 730 , 99 S.Ct. 1448 (rejecting “generalized pleas for uniformity”)). Certainly, neither opinion relies, as the majority seems to do, on Kimbell Foods’ other espoused consideration — whether the federal program requires uniformity, or come close to elevating this factor to the point of deeming it a “precondition,” as has the Court with respect to the presence of a significant conflict. 19
Clearly, the required conflict does not exist here; application of Pennsylvania law produces the desired result. Therefore, we need not abandon Pennsylvania law, nor should we label the rule applied today by the majority “federal.” Accordingly, I respectfully dissent from the reasoning contained in the majority’s opinion but concur in the resulting affirmance of the District Court’s order.
.Interestingly, as we note below, one of the courts' — the Ninth Circuit — had previously followed our lead in Smith Land, but more recently reevaluated its view in light of later *310 Supreme Court precedent concluding, as we should, that creating federal common law should be a last resort.
. The issue before us is not the meaning of a term contained in CERCLA, as was the case in many of the cases cited by the majority. Rather, the issue before us is whether state or federal law regarding successor liability will apply when the courts are fashioning remedies under CERCLA. No one has contended we are construing a word or phrase in the statute. If we are, we should request further briefing on this issue as it has not been addressed by the parties.
CERCLA now counts a "corporation” as a "person" for purposes of liability, see 42 U.S.C. § 9601 (21), but the statute itself clearly does not reference or provide for successor liability. Therefore, we are confronted with a matter in an otherwise detailed federal statutory scheme, not a mere need to attach meaning to a term of art employed but not defined by Congress, as was the case in Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 , 123 S.Ct. 1673 , 155 L.Ed.2d 615 (2003) (looking "to the common law to fill gaps in statutory text, particularly when an undefined term has a settled meaning at common law,” in this case to define employee under the ADA) (emphasis added); Burlington Indus. v. Ellerth, 524 U.S. 742, 755 , 118 S.Ct. 2257 , 141 L.Ed.2d 633 (relying on general common law of agency to define term "agent” under Title VII where state court decisions "determinations of employer liability under state law rely in large part on federal court decisions”); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47, n. 22 , 109 S.Ct. 1597 , 104 L.Ed.2d 29 (1989) (using federal common law to define "domicile” under the Indian Child Welfare Act and noting that Congress had, in other parts of the legislation, stated explicitly where it wanted terms "defined by reference to tribal law or custom and to state law”); and Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740 , 109 S.Ct. 2166 , 104 L.Ed.2d 811 (1989) (employing federal common law to define "work made for hire” under provisions of the Copyright Act of 1976, a statute intended to broadly preempt state statutory and common-law copyright regulation). These cases would be informative if we too were focusing on the meaning given to a term in a federal statute, but that is not our focus.
. As enumerated by the Court in Atherton: See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 , 58 S.Ct. 803 , 82 L.Ed. 1202 (1938) (controversy between two States regarding apportionment of streamwater); Boyle v. United Technologies Corp., 487 U.S. 500 , 108 S.Ct. 2510 , 101 L.Ed.2d 442 (1988) (Federal Government contractors and civil liability of federal officials); United States v. Standard Oil Co. of Cal., 332 U.S. 301, 305 , 67 S.Ct. 1604 , 91 L.Ed. 2067 (1947) (relationship between Federal Government and members of its armed forces); Howard v. Lyons, 360 U.S. 593, 597 , 79 S.Ct. 1331 , 3 L.Ed.2d 1454 (1959) (liability of federal officers in the course of official duty); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 , 84 S.Ct. 923 , 11 L.Ed.2d 804 (1964) (relationships with other countries). See also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 , 101 S.Ct. 2061 , 68 L.Ed.2d 500 (1981) ("Absent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases”).
. The majority excerpts a line of dicta from Atchison in which the Court muses that if “state law varied widely on the issue of successor liability, perhaps the need for a uniform federal rule would be more apparent.” (Maj. Op.) However, as the more fully excerpted passage above shows, the Court goes on to explain that this need not preoccupy it because, first and foremost, the Supreme Court has made clear that there must exist a significant conflict between some federal policy or interest and the use of state law.
In disagreeing with the Atchison Court on this point, and by citing what it views as a varied set of state laws concerning successor liability as the jumping off point for application of a federal rule, the majority leapfrogs over the critical inquiry — whether there exists a conflict between Pennsylvania law and an important federal policy or interest. Lack of uniformity itself does not satisfy the requirement that a conflict exist — only after a conflict has been identified does the Supreme Court direct us to evaluate the need for a uniform rule.
. To the extent that it could be argued that adopting this position requires us to convene the Court en banc and overrule prior opinions, then I would urge that we do so.
. The Kimbell Foods test details three considerations relevant to the determination of whether federal common law or state law should provide the rule of decision: 1) whether the nature of the federal program requires national uniformity; 2) whether the application of state law would frustrate specific objectives of the federal program; and 3) whether the application of federal law would disrupt commercial relationships predicated on state law. See Adams v. Madison Realty & Dev., Inc., 937 F.2d 845 , 856 (3d Cir.1991) (citing Kimbell Foods, 440 U.S. at 728-29 , 99 S.Ct. 1448 ).
. Bestfoods does not even cite to Kimbell Foods .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498361. Public record. Not legal advice.