134 F.3d 376

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
A.O. SMITH CORPORATION, Plaintiff-Appellant,
v.
RHEEM MANUFACTURING COMPANY, Defendant-Appellee.

No. 96-16988.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1997.
Decided Jan. 22, 1998.

Before GOODWIN, FLETCHER, and RYMER, Circuit Judges

We withdraw certification, dismiss the appeal, and remand to the district court.

The district court certified two questions in this case that are indeed close questions as to which there are substantial grounds for difference of opinion. We withdraw certification for two reasons, however. First, the district court addressed only one of the four elements of the de facto merger doctrine, any one of which may have been dispositive. Thus, even were we to address the question of whether the continuity of shareholder requirement may be satisfied where a company's stock is purchased with both cash and stock, the district court would still have to address whether the other elements of the de facto merger doctrine had been met. If one of the other three elements are not met, appellate review would have been in vain.

Second, and more importantly, however, this court has very recently determined that successor liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) is governed by state law, not federal common law. See Atchison, Topeka and Santa Fe v. Brown & Bryant, No. 96-15529 (Slip Op. Dec. 30, 1997). That decision overruled Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1262 (9th Cir.1990), which was the basis for both parties' arguments to this court. Accordingly, remand to the district court is appropriate so that the parties may address the implications of Atchison.

We WITHDRAW CERTIFICATION, DISMISS, and REMAND.