In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 3931

DECLARATION of Kevin Wilson in Support re: (364 in 1:07-cv-10470-SAS, 3927 in 1:00-cv-01898-SAS-DCF, 34 in 1:14-cv-01014-SAS) MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Tauber Oil. Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:07-cv-10470-SAS, 1:14-cv-01014-SAS(Walsh, Michael)

UNITED
STATES
DISTRICT
COURT
SOUTHERl~ DISTRICT OF NEW YORK
Master File No. 1:00 -1898
MDL 1358 (SAS)
M21-88

In Re: Methyl Tertiary Butyl Ether ("MTBE")
Products Liability Litigation

This Document Relates To:
Commonwealth
of Puerto Rico, et
Shell Oil Co., et al., No. 07 Civ. 10470

al.

v.

DECLARA TION OF
KEVIN WILSON

I, KEVIN WILSON, declare as follows:
1. My name is Kevin Wilson. I am over the age of twenty-one, reside in Houston,
Texas, and am competent to give testimony.
upon my personal

knowledge,

The facts set forth in this declaration are based

the records of Tauber Oil Company

("Tauber"),

and

information collected and made available to me by knowledgeable employees of Tauber.
2. I am currently employed as Vice President at Tauber and have worked at Tauber
since 1992.
3. I am knowledgeable concerning the current and historic business operations and
organizational structure of Tauber.
4. Tauber is a Texas company, incorporated and registered in Texas.
5. Tauber principal place of business is in Texas.
6. Tauber has never manufactured,

marketed, traded, stored, sold or otherwise

handled finished gasoline, gasoline containing MTBE, or MTBE in Puerto Rico.
7. Tauber its distributors, and agents have never solicited, advertised or marketed the
sale of gasoline or MTBE in Puerto Rico and have never taken any actions to create a market
for gasoline or MTBE in Puerto Rico.

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8. Tauber does not have a distribution agreement with any person, company, or
agent to distribute gasoline containing MTBE, or MTBE in Puerto Rico.
9. Tauber has never entered into a distribution agreement with a person, company, or
agent to solicit, advertise, market, or sell MTBE or gasoline containing MTBE in Puerto
Rico.
10. Tauber never designed MTBE, gasoline containing MTBE, or any product to be
specifically used in Puerto Rico.

Tauber has never had any of its officers, directors,

employees or agents travel to Puerto Rico for any business-related purpose or activity.
11. Tauber has never filed, and is not required to file, any tax returns in Puerto Rico
and has never paid taxes in Puerto Rico.
12. Tauber owns no real or personal property located in Puerto Rico.
13. Tauber has never leased real or personal property in Puerto Rico.
14. Tauber has never maintained,

controlled,

leased, or operated storage tanks,

pipelines, or service stations in Puerto Rico.
15. Tauber has never maintained a place of business or office in Puerto Rico and
employs no agents or employees in Puerto Rico.
16. Tauber has never had any officers, directors, employees or agents acting on its
behalf present in Puerto Rico, including any agent for service of process in Puerto Rico.
17. Tauber has never had a bank account, phone number, fax number, or any
corporate records located in Puerto Rico.
18. Tauber has not initiated litigation in Puerto Rico.

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19. Tauber has not engaged in any commercial activity to purposefully avail itself of
the protections of the laws of Puerto Rico and has not engaged in conduct purposefully
directed at Puerto Rico.
20. Tauber has not delivered its goods, including MTBE, in the stream of commerce
with the expectation that they would be purchased by Puerto Rico users.
21. Tauber has not participated in any conventions, meetings or sales events in Puerto
Rico or engaged in conduct "targeting" Puerto Rico for its products.
22. Tauber does not have a single contact with Puerto Rico.
23. Tauber's

website did not promote the sale of MTBE or gasoline containing

MTBE in Puerto Rico.

Tauber's website is in English and is not translated to Spanish or

otherwise targeted to customers in Puerto Rico.
24. Tauber has never refined and/or manufactured petroleum products, including, but
andMTBE.

not limited

25. Tauber has never sold or distributed MTBE or gasoline containing MTBE at any
station, port, or any other location in the Commonwealth of Puerto Rico.
26. Tauber has never blended finished gasoline or added chemicals such as MTBE to
gasoline for shipment or sale in Puerto Rico.
27. Tauber has not traded gasoline for sale in Puerto Rico.
28. Tauber has not traded gasoline containing MTBE for sale in Puerto Rico.
29. Tauber has reviewed its records and hereby states that Tauber sold MTBE to
Phillips Petroleum Company ("PPC") and the following related divisions, Phillips 66 Co.
("Phillips 66") and Phillips Chemical Co. ("PCC").

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30. Tauber sold MTBE to PPC, PCC and Phillips 66 through what are referred to as
"spot sales."

I

31. Other than the listed Phillips entities, Tauber has located no records concerning
any other party to Commonwealth's

Third Amended Complaint in action 07-cv-10470 or the

First Amended Complaint in action 14-cv-l

°14 indicating that such party purchased MTBE

from Tauber and that such MTBE was shipped to Puerto Rico.
32. Upon information and belief, no Phillips entity (PPC, PCC or Phillips 66) to
which Tauber sold and delivered title to MTBE was or is located in Puerto Rico.
33. Tauber has reviewed its records and identifies the following sales of MTBE to
Phillips free on board (FOB) Houston2:
rDate
Aug. 8,1985
Feb. 10, 1994
. Mar. 18,1994
Aug. 8,1994
Mar. 22, 1995
Oct. 24, 1995
Jan. 27, 1997
Aug. 27, 1997
Sept. 18, 1997
Oct. 22, 1997

50,000
40,000
41,375
52,1384
20,011
52,595
54,905
54,958
54,012
30,002

Phillips Entity

# of bbl '
I

PPC

Phillips 66
Phillins 66
Phillips 66
PCC
' PCC (see fn 2)
PCC
PCC
PCC
PCC
I

,

34. The above listed sales of MTBE constitute all known sales of MTBE by Tauber to
Phillips.
1 A spot sale is a term to distinguish the sale from other sales such as those under a supply agreement.
A spot sale is
a stand-alone agreement for a purchase of a specified quantity "on the spot" typically reflecting the current market
price of the commodity. Supply agreements differ from spot sales in that a contract under a supply agreement
usually runs for more than a year and will cover all of the purchaser's requirements for that product during that
period.
2 The agreement for the October 24, 1995 sale with Phillips Chemical Company provided for title to transfer in Jose,
Venezuela to PCC and, at PCe's instruction, to be shipped to "Guayarna, Puerto Rico" with terms CIF (which
remained the responsibility of Tauber's seller, EcoFuel).
3 The sales acknowledgment
for the Aug. 8, 1985 transaction listed the amount sold in barrels. All remaining sales
were invoiced in gallons, but have been converted to barrels for purposes of this declaration.
4 This sale was subject to an agreement for three shipments but delivery and invoice records reflect only one
delivery.

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35. Tauber is a trader of energy products and the total volume of spot sales by Tauber
to PPC, Phillips 66 and PCC represent a negligible percentage by volume of petrochemicals
sold by Tauber during the relevant time period.
36. Tauber had no involvement in any decision by any Phillips entity to use MTBE,
including that it did not provide any economic analysis of MTBE versus any other oxygenate
to substitute for lead.
37. Tauber has no distribution or agency agreement with any Phillips entity.
38. Tauber had no discussions with any Phillips entity concerning any purported
economic "advantage" to using MTBE over any other alternative.
39. Tauber did not market or sell TBA to Phillips or any other party for delivery or
use in Puerto Rico.
40. Tauber provided no information
concerning gasoline capacity or

nor has it ever been provided

information

supply or demand for any Phillips entity and

specifically for the Phillips Core facility.
41. PPC, PCC and Phillips 66 took delivery at locations outside of Puerto Rico in
each of the above-referenced sales of MTBE by Tauber.
42. The price for any MTBE was not contingent on MTBE being shipped to Puerto
Rico.
43. Based on materials provided by counsel, various Phillips related entities provided
discovery responses purporting to identify the entities that "supplied MTBE to the Core
facility" and some of those Phillips entities identified Tauber for the time period 1982-1989.
44. Based upon a review of Tauber's records, and as confirmed at my deposition on
behalf of Tauber in this matter, no sale was ever made by Tauber to Phillips Puerto Rico

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Core, Inc. or any entity in Puerto Rico. All sales were between Tauber and PPC, PCC or
Phillips 66, all located in Bartlesville, Oklahoma, and title transferred in all FOB outside of
Puerto Rico.
45. To the extent that MTBE sold by Tauber to Phillips was subsequently sold and
delivered to Puerto Rico, Tauber is in possession of no information, documents or other
evidence establishing or in any manner inferring that any MTBE sold by Tauber was blended
into gasoline that was sold for use Puerto Rico.
46. I do not believe there is anyone person who is knowledgeable of all of the
matters stated in this declaration.

Accordingly, this declaration was prepared with the

assistance and advice of representative of Tauber and counsel for Tauber.
Pursuant to 28 U.S.c. § 1746, I declare under penalty of perjury under the laws of the
United States that the foregoing is true and correct.

KEVIN WIlSON

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