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Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 38 of 56meeting minutes or otherwise, to suggest UCC’s “intimateparticipation” in the Bhopal Plant clean-up, and certainly noevidence that UCC approved the creation of a landfill in a solarevaporation pond. Finally, Plaintiffs base liability on a “soilwashing” effort at Bhopal prior to the creation of the landfill,purportedly directed by UCC, pursuant to which liquid from twoponds was pumped into the third pond. However, the documentsindicate that UCIL undertook the soil washing experiment, (2011Heck Decl., Ex. 8 at UCC03062), and, more importantly, thepumping and soil washing had no environmentally destructiveeffects as there was no seepage from the ponds. (Id. atUCC03063).The Court has carefully considered all of the documents inthe expanded summary judgment record and finds no evidence thatUCC’s involvement, if any, in the back-integration scheme, wastedisposal plans, technology development, and remediation createdor maintained an environmental nuisance at Bhopal. In reality,Plaintiffs’ theory of direct liability is nothing more than anattempt to hold a parent company liable for the subsidiary’sactions without satisfying strict veil-piercing requirements.B. Concerted Action Liability“The theory of concerted action provides for joint andseveral liability on the part of all defendants having anunderstanding, express or tacit, to participate in a common plan38
Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 39 of 56or design to commit a tortious act.” Rastelli v. Goodyear Tire& Rubber Co., 591 N.E.2d 222, 224 (N.Y. 1992) (citationsomitted). “It is essential that each defendant charged withacting in concert have acted tortiously.” Id.Plaintiffs have not adduced evidence that both UCC and UCILparticipated in the creation of a nuisance. The only conductattributable to UCC is the endorsement of UCIL’s 1973 CapitalBudget Plan, which is not in and of itself a tort, and theprovision of design packages and certain technical services toUCIL pursuant to contractual agreements. (Handley Decl., Exs.JJ, LL). The Court has already determined that any unproventechnology used at Bhopal was developed by UCIL. Moreover,there is no allegation or evidence that training or othertechnical assistance UCC provided to UCIL pursuant to a November1973 Technical Services Agreement was performed negligently orin any way contributed to environmental pollution at Bhopal.Nor is there evidence of an agreement to pollute, as, forexample, UCC’s July 21, 1972 preliminary study of waste disposalat Bhopal only gave UCIL suggestions to help avoid pollution ofsubsurface waters. (2005 Heck Decl., Ex. D3 at UCC04129).C. Agent Liability“Suing a parent corporation on an agency theory is quitedifferent from attempting to pierce the corporate veil. In thefirst instance, the claim against the parent is premised on the39
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dismissed their claims and their requests for injunctive relief

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