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

Filing 4240

NOTICE of Reply Local Rule 56.1 Statement re: (628 in 1:07-cv-10470-SAS) Reply Memorandum of Law in Support of Motion,. Document filed by Shell International Petroleum Company, Limited, Shell Western Supply and Trading, Limited. Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:07-cv-10470-SAS(Wallace, Richard)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In Re: Methyl Tertiary Butyl Ether Products Liability
Litigation
This document pertains to:
Commonwealth of Puerto Rico, et al. v. Shell Oil Co.,
et al., No. 07 Civ. 10470 (SAS)

Master File No. 1:00-1898
MDL 1358 (SAS)
M21-88
Civil Action

REPLY LOCAL RULE 56.1 STATEMENT OF MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
OF SHELL WESTERN SUPPLY AND TRADING LIMITED
AND SHELL INTERNATIONAL PETROLEUM LIMITED
On June 12, 2015, Shell Western Supply and Trading Limited and Shell International
Petroleum Limited (collectively, the “Shell Defendants”) filed a Motion for Summary Judgment
(“Motion”) and a Local Rule 56.1 Statement of Material Facts in Support of Motion for
Summary Judgment of the Shell Defendants (“Shell Defendants’ Statement of Facts”).
On July 10, 2015, Plaintiffs, the Commonwealth of Puerto Rico and the Environmental
Quality Board, filed their Opposition to the Shell Defendants’ Motion (“Opposition” or “Opp.”),
Responses in Opposition to Defendants’ Local Rule 56.1 Statement (“Response”), and their own
Local Rule 56.1 Statement in Support of their Opposition. The Opposition, Response, and
additional Local Rule 56.1 Statement each contained additional arguments and material.
“[R]eply papers may properly address new issues raised in the opposition papers so as to
avoid giving unfair advantage to the answering party.” Bayway Ref. Co. v. Oxygenated Mktg. &
Trading A.G., 215 F.3d 219, 226-27 (2d Cir. 2000). Accordingly, the Shell Defendants hereby
respectfully submit their Reply to Plaintiffs’ Response, including the “Additional Material Facts”
submitted by Plaintiffs in opposition to the Shell Defendants’ Motion for Summary Judgment.

Procedural Background
SHELL DEFENDANTS’
COMMONWEALTH’S
UNDISPUTED MATERIAL
RESPONSE
FACTS
1. The Commonwealth filed
Undisputed.
its initial complaint against
certain gasoline suppliers for
supplying or trading in gasoline
products containing MTBE on
June 12, 2007. Complaint,
Dkt. 16.1

SHELL DEFENDANTS’
REPLY
No reply necessary.

1

All references to the docket
herein are to Case No.
1:07-cv-10470 unless otherwise
stated.
2. On November 20, 2007,
Undisputed.
the case was transferred to a
Multidistrict Litigation pending
in the Southern District of New
York. Conditional Transfer
Order (CTO-29), Dkt. 1.
3. On December 3, 2012, the Undisputed.
Commonwealth filed its Third
Amended Complaint (“TAC”),
adding to the case for the first
time several defendants,
including Shell Western Supply
and Trading Limited (“Shell
West”) and Shell International
Petroleum Company Limited
(“SIPC”) as “Refiner/Supplier
Defendants.” Third Amended
Complaint, Dkt. 175.
4. The TAC alleges that these Undisputed.
defendants “refined, marketed
and/or otherwise supplied
(directly or indirectly) gasoline
and/or other products
containing MTBE that each
such Defendant knew or should
have known would be delivered
into the Commonwealth.” Id. ¶
21.

No reply necessary.

No reply necessary.

No reply necessary.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 2

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
5. The TAC alleges five
causes of action against Shell
West and SIPC: (1) strict
products liability for defective
design and failure to warn; (2)
public nuisance; (3) trespass;
(4) negligence; and (5)
violation of Puerto Rico
Environmental Public Policy
Act (“EPPA”), Water Pollution
Control Act, and various
underground storage tank
control regulations. See Id. ¶¶
96-156.

COMMONWEALTH’S
RESPONSE
Undisputed.

SHELL DEFENDANTS’
REPLY
No reply necessary.

Facts Regarding Shell West
SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
6. Shell West is a Barbados
company. Declaration of
Ruben F. Reyna (“Reyna
Decl.”), Ex. 7, September 19,
2014, Declaration of Ian
Charman in Support of the
Shell Defendants’ Motion for
Summary Judgment (“Charman
Decl.”) ¶ 13.
7. Shell West does not own or
operate any facilities to make
or store gasoline, including
refineries, terminals,
distribution systems and
gasoline service stations, in
Puerto Rico, nor has it ever
done so. Id. ¶ 14. Shell West
never owned or operated any
refining or manufacturing
facilities in Puerto Rico, and
thus never made gasoline in or
for the Puerto Rico market,
with or without MTBE. Id. ¶

COMMONWEALTH’S
RESPONSE

SHELL DEFENDANTS’
REPLY

Undisputed that the Shell
Defendants have represented
through the Declaration of Ian
Charmin in Support of the Shell
defendants' Motion for Summary
Judgment that Shell West is a
Barbados Company.

No reply necessary.

Undisputed that during the
discovery period for the first trial
phase that the Shell Defendants
have represented that Shell West
does not own or operate any
facilities to make or store gasoline,
including refineries, terminals,
distribution systems and gasoline
service stations, in Puerto Rico, nor
has it ever done so.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 7.

Disputed to the extent it implies
that Shell West did not participate
in the supply and delivery of

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 3

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
15.

COMMONWEALTH’S
RESPONSE
gasoline containing MTBE in
Puerto Rico. The Court has already
considered substantial evidence in
this case demonstrating that Shell
West was a substantial source of
MTBE gasoline delivered to Shell
PR, which was then distributed to
Shell stations, including the Shell
Trial Site. Shell West is thus in the
direct chain of supply. See
Plaintiff's Memorandum of Law in
Opposition to Certain Defendants'
Motion for Summary Judgment for
Lack of Causation; Court's April
28, 2015 Opinion and Order (Dkt.
No. 595).
Undisputed that during the
discovery period for the first trial
phase that the Shell Defendants
have represented that Shell West
never owned or operated any
underground storage tanks, service
stations or other gasoline storage
facilities in Puerto Rico.

8. Shell West never owned or
operated any underground
storage tanks, service stations
or other gasoline storage
facilities in Puerto Rico, and
thus never handled gasoline in
the Puerto Rico market, with or
without MTBE. Id. ¶ 15. Shell
West never caused a release of
gasoline in Puerto Rico, with or Disputed that Shell West "never
caused" a release of gasoline in
without MTBE. Id. ¶ 15.
Puerto Rico, with or without
MTBE. The Court has already
considered substantial evidence in
this case demonstrating that Shell
West was a substantial source of
MTBE gasoline delivered to Shell
PR, which was then distributed to
Shell stations, including the Shell
Trial Site. Shell West is thus in the
direct chain of supply. See Court's
April 28, 2015 Opinion and Order
(Dkt. No. 595); Plaintiffs
Memorandum of Law in
Opposition to Certain Defendants'
Motion for Summary Judgment for
Lack of Causation; Court's April

SHELL DEFENDANTS’
REPLY

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 8.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 4

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
9. Between September 1997
and October 2003, Shell West
provided trading and supply
services, similar to those
previously provided by SIPC,
to Sol (f/k/a SCPRL). Id. ¶ 16.
Also between November 2003
and October 2004, and between
September 2008 and December
2010, Shell West provided
similar services to SCYI. Id. ¶
16. Shell West did not deliver
gasoline directly to Puerto
Rico, and did not own, store or
distribute gasoline in Puerto
Rico. Id. ¶ 16.

10. All of the gasoline that
Shell West supplied to Sol
(f/k/a SCPRL) and nearly all of
the gasoline Shell West

COMMONWEALTH’S
RESPONSE
28, 2015 Opinion and Order (Dkt.
No. 595).
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had "injured the waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to June 12, 2006 "bar date"
claimed in Defendants' Motion and
ii) the identity of the entity or
entities that caused such injury
prior to "bar date."

SHELL DEFENDANTS’
REPLY

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 9.

Disputed that "Shell West did not
deliver gasoline directly to Puerto
Rico, and did not own, store, or
distribute gasoline in Puerto Rico."
The Court has already considered
substantial evidence demonstrating
that Shell West was a substantial
source of MTBE gasoline delivered
to Shell PR, which was then
distributed to Shell stations,
including the Shell Trial Site. Shell
West is thus in the direct chain of
supply. See Plaintiffs
Memorandum of Law in
Opposition to Certain Defendants'
Motion for Summary Judgment for
Lack of Causation; Court's April
28, 2015 Opinion and Order (Dkt.
No. 595); Court's April 28, 2015
Opinion and Order (Dkt. No. 595).
Otherwise, undisputed for purposes
of this motion only.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or

Fails to raise triable facts
relevant to Defendants’
Motion.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 5

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
supplied to SCYI for delivery
to Puerto Rico was acquired
from the St. Croix refinery,
which was owned and operated
by other defendants in this
case, HOVIC and HOVENSA.
Id. ¶ 17. Sol (fka SCPRL) and
SCYI always took title to the
gasoline Shell West supplied
outside of Puerto Rico,
typically if not always at the
loading dock of the St. Croix
refinery. Id. ¶ 17.

COMMONWEALTH’S
RESPONSE

SHELL DEFENDANTS’
REPLY

should have known, that i) MTBE
had "injured the waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to June 12, 2006 "bar date"
claimed in Defendants' Motion and
ii) the identity of the entity or
entities that caused such injury
prior to the June 12, 2006 "bar
date."

The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 10.

Disputed that "[a]ll gasoline that
Shell West supplied to Sol (f/k/a
SCPRL) and nearly all of the
gasoline Shell West supplied to
SCYI for delivery to Puerto Rico
was acquired from the St. Croix
refinery, which was owned and
operated by other defendants in this
case, HOVIC and HOVENSA."
See Plaintiffs Memorandum of Law
in Opposition to Certain
Defendants' Motion for Summary
Judgment for Lack of Causation;
Court's April 28, 2015 Opinion and
Order (Dkt. No. 595); Court's April
28, 2015 Opinion and Order (Dkt.
No. 595)

Facts Regarding SIPC
SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
11. SIPC is a UK company.
Id. ¶ 2.
12. SIPC does not own or
operate any facilities to make
or store gasoline, including
refineries, terminals,
distribution systems and

COMMONWEALTH’S
RESPONSE

SHELL DEFENDANTS’
REPLY

Undisputed.

No reply necessary.

Disputed. Prior to 2006 a division
of SIPC known as Shell
International Trading Company
(SITCO) provided trading and
supply services whereby it acquired

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 6

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
gasoline service stations, in
Puerto Rico, nor has it ever
done so. Id. ¶ 3.

13. SIPC never owned or
operated any refining or
manufacturing facilities in
Puerto Rico, and thus never
made gasoline in or for the
Puerto Rico market, with or
without MTBE. Id. ¶ 4. SIPC
never owned or operated any
underground storage tanks,
service stations or other
gasoline storage facilities in
Puerto Rico, and thus never
handled gasoline in the Puerto
Rico market, with or without
MTBE. Id. ¶ 4. SIPC never
caused a release of gasoline in
Puerto Rico, with or without
MTBE. Id. ¶ 4.
14. For the ten-year period,
from 1985 until 1995, a
division of SIPC known as
Shell International Trading
Company (SITCO) provided
trading and supply services
whereby it acquired gasoline
from a third party and supplied
that gasoline to Sol (f/k/a
SCPRL). Id. ¶ 7. More
specifically, during this period
prior to 1995, SIPC acquired
gasoline from the Curaçao
refinery and supplied that
gasoline to Sol (f/k/a SCPRL).
Id. ¶ 7. The title, or ownership,
of the gasoline passed to Sol

COMMONWEALTH’S
RESPONSE

SHELL DEFENDANTS’
REPLY

gasoline from a third party and
supplied that gasoline to Sol (f/k/a
SCPRL) its business in accordance
with SIPC policies. See
Commonwealth's Local Rule 56.1
Counter-Statement of Material
Facts (CSOF) at ¶ 40.

actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 12.

Disputed. See Response at ¶ 12.
Undisputed that SIPC's evidence
states that "SIPC never owned or
operated any refining or
manufacturing facilities in Puerto
Rico."

Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed to the extent it implies
that SIPC did not participate in the

Dispute any assertion that SIPC
ever owned or operated any
facilities to make or store
gasoline in Puerto Rico.
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 13.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 14.
The Commonwealth’s “dispute”
of this fact is hypocritical
because the Commonwealth
recites this fact twice in its Rule
56.1 counter-statement. See
infra, Additional Material Facts
Asserted by Commonwealth Nos.
23, 37.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 7

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
(f/k/a SCPRL) at the loading
dock in Curaçao. Id. ¶ 7. Sol
(f/k/a SCPRL) in turn imported
that gasoline into Puerto Rico
and supplied gasoline to Shellbranded service stations in
Puerto Rico. Id. ¶ 7. SIPC did
not deliver gasoline directly to
Puerto Rico and did not own,
store or distribute gasoline in
Puerto Rico. Id. ¶ 7.

COMMONWEALTH’S
RESPONSE

SHELL DEFENDANTS’
REPLY

supply and delivery of gasoline
containing MTBE in Puerto Rico.
The evidence demonstrates,
moreover, that all of this gasoline
was distributed as Shell "branded
gasoline" to Shell stations in Puerto
Rico, including the Shell Trial Site.
See Commonwealth's Local Rule
56.1 CounterStatement of Material
Facts (CSOF) at ¶ 36.

Otherwise: undisputed
15. Almost all of the gasoline
See Response to ¶ 14, supra.
that SIPC supplied for delivery
to Puerto Rico was acquired
from the Curaçao refinery. Id.
¶ 8. Sol (f/k/a SCPRL) always
took title to the gasoline SIPC
supplied outside of Puerto
Rico, typically, if not always, at
the loading dock of the
Curaçao refinery. Id. ¶ 8.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 15.

Facts Regarding the Commonwealth’s Knowledge and
Notice About the Claims Against Shell West and SIPC
SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
16. The Commonwealth had
knowledge of the facts,
allegations, and claims asserted
in the original Complaint, and
of the alleged bases for those
claims, when it filed that
Complaint in 2007. Complaint,
Dkt. 16.

COMMONWEALTH’S
RESPONSE
Disputed to the extent it implies
that the Commonwealth had the
requisite knowledge "with the
degree of diligence required by
law" to file the original Complaint
against Shell West and SIPC, when
it filed the Complaint in 2007. See
Commonwealth's Local Rule 56.1
Counter-Statement of Material
Facts (CSOF) at ¶ ¶ 13-20; 30-36.
Disputed that these facts are
"material facts" for meeting

SHELL DEFENDANTS’
REPLY
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 16.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 8

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS

17. The facts, allegations, and
claims which the
Commonwealth later asserted
against Shell West and SIPC in
the TAC in December 2012 are
the same as those asserted in
the original Complaint in 2007,
except for the addition of Shell
West, SIPC, and several other
parties as new defendants.
Complaint, Dkt. 16; Third
Amended Complaint, Dkt. 175.

18. Thus, perforce, by 2007,
the Commonwealth had

COMMONWEALTH’S
RESPONSE
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Otherwise: undisputed
Disputed to the extent it implies
that the Commonwealth had the
requisite knowledge "with the
degree of diligence required by
law" to file the original Complaint
against Shell West and SIPC, when
it filed the Complaint in 2007 See
Commonwealth's Local Rule 56.1
Counter-Statement of Material
Facts (CSOF) at ¶ ¶ 14-20; 33-39.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Otherwise, undisputed.
Disputed to the extent it implies
that the Commonwealth had the

SHELL DEFENDANTS’
REPLY
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 17.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 9

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
knowledge of the facts,
allegations, and claims which it
later asserted against Shell
West and SIPC, and of the
alleged bases for those claims,
setting aside the participation
of Shell West and SIPC in the
conduct alleged in those
claims. Id.

COMMONWEALTH’S
RESPONSE
requisite knowledge "with the
degree of diligence required by
law" to file the original Complaint
against Shell West and SIPC, when
it filed the Complaint in 2007. See
Commonwealth's Local Rule 56.1
Counter-Statement of Material
Facts (CSOF) at ¶ ¶ 14-20; 33-39.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."

SHELL DEFENDANTS’
REPLY
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 18.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Otherwise, undisputed.
The Commonwealth’s Knowledge Regarding Shell West
SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
19. On September 15, 2008,
the Commonwealth served
discovery on all defendants
including Interrogatory No. 5
which requested defendants to:

COMMONWEALTH’S
RESPONSE
Undisputed.

SHELL DEFENDANTS’
REPLY
No reply necessary.

IDENTIFY all jobbers,
franchisees and/or distributors
to whom YOU supplied
MTBE gasoline within
[Puerto Rico] since 1979….
Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 10

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
Reyna Decl., Ex. 1, Defendant
HOVENSA LLC’s Second
Amended Responses and
Objections to Plaintiff’s First
Set of Interrogatories.
20. On March 13, 2009,
HOVENSA responded by
stating “[a]t various times,
HOVENSA sold gasoline to
various entities … at the port of
St. Croix” and by pointing to
“Spreadsheet A indicating
entities that listed the
Commonwealth of Puerto Rico
as a destination for shipments
of gasoline containing at least
0.5% MTBE.” Spreadsheet A
showed that HOVENSA sold
gasoline to “Shell Western
Supply and Trading” that was
destined for Puerto Rico. Id. at
No. 5, and attached
Spreadsheet A.

21. In response to the
Commonwealth’s interrogatory
requesting HOVENSA to
“Describe each refinery that
[HOVENSA] own or owned
which provided MTBE
gasoline to [Puerto Rico] since
1979,” HOVENSA stated that

COMMONWEALTH’S
RESPONSE

Undisputed. But see Reyna Decl.,
Ex. 1, at No. 10 (HOVENSA
stating that "[g]asoline to which
MTBE was intentionally added was
not supplied to ships reportedly
bound for the Commonwealth of
Puerto Rico. Rather, the gasoline
referred to in the following figures
contained trace amounts - albeit
still above 0.5% by volume - due to
exposure of conventional gasoline
to MTBE-containing gasoline
during routine tank service
changes.")
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Undisputed. But see Reyna Decl.,
Ex. 1, at No. 10 (HOVENSA
stating that "[g]asoline to which
MTBE was intentionally added was
not supplied to ships reportedly
bound for the Commonwealth of
Puerto Rico. Rather, the gasoline
referred to in the following figures

SHELL DEFENDANTS’
REPLY

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 20.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 21.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 11

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
“[a]t various times, MTBE
gasoline from HOVENSA’s St.
Croix refinery was loaded on to
ships … reportedly destined for
the Commonwealth of Puerto
Rico” and referenced
Spreadsheet A, which
identified Shell West. Id. at
No. 6, and attached
Spreadsheet A.

22. Similarly, in response to
the Commonwealth’s
interrogatory seeking “the
annual total volume of MTBEcontaining gasoline which
[HOVENSA] supplied, sold,
marketed or distributed within
[Puerto Rico] from 1979 to
present,” HOVENSA stated
that it “supplied … MTBE
gasoline … to ships reportedly
bound for the Commonwealth
of Puerto Rico” and again
referenced Spreadsheet A,
which identified Shell West.
Id. at No. 10, and attached
Spreadsheet A.

COMMONWEALTH’S
RESPONSE
contained trace amounts - albeit
still above 0.5% by volume - due to
exposure of conventional gasoline
to MTBE-containing gasoline
during routine tank service
changes.")
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Undisputed. But see Reyna Decl.,
Ex. 1, at No. 10 (HOVENSA
stating that "[g]asoline to which
MTBE was intentionally added was
not supplied to ships reportedly
bound for the Commonwealth of
Puerto Rico. Rather, the gasoline
referred to in the following figures
contained trace amounts - albeit
still above 0.5% by volume - due to
exposure of conventional gasoline
to MTBE-containing gasoline
during routine tank service
changes.")
Disputed that these facts are
"material facts" · for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is

SHELL DEFENDANTS’
REPLY
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 22.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 12

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS

23. On April 9, 2010,
HOVENSA referred back to
these previous responses when
the Commonwealth asked
HOVENSA to “[i]dentify all
jobbers, resellers, carriers,
distributors, and retailers
supplied by [HOVENSA] and
that provide or provided
gasoline containing MTBE to
the Commonwealth of Puerto
Rico.” Reyna Decl., Ex. 2,
Defendant HOVENSA LLC’s
Responses and Objections to
Plaintiff’s First [sic: Third] Set
of Interrogatories, at No. 3.
24. In the April 2010
responses, HOVENSA
similarly referred back to these
previous responses when the
Commonwealth asked
HOVENSA whether
“[HOVENSA] ever refined or
marketed gasoline containing
MTBE in or into [Puerto
Rico]” and to “[i]dentify the
date [HOVENSA] last blended
MTBE and/or TBA into
gasoline for deliveries into
[Puerto Rico].” Id. at Nos. 9
and 10.

COMMONWEALTH’S
RESPONSE
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the T
AC, prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Otherwise, undisputed.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Otherwise, undisputed.

SHELL DEFENDANTS’
REPLY

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 23.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 24.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 13

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
25. At the April 2, 2009, Case
Management Conference, the
parties jointly submitted a
proposed Case Management
Order which called for
disclosure of “any of the
Defendants’ parents,
subsidiaries and affiliates
which do business relating to
the manufacturing, refining,
importing, distributing or
supplying of gasoline that is
manufactured, refined,
imported, exported, distributed
or supplied to, from or within
the Commonwealth of Puerto
Rico.” Reyna Decl., Ex. 3,
Proposed Case Management
Order.
26. On May 1, 2009, the Shell
Defendants served the
Commonwealth with initial
corporate disclosures, and those
disclosures specifically
identified Shell West even
though it was not then a named
party to this litigation. Reyna
Decl., Ex. 4, Shell Defendants’
Corporate Disclosures.

COMMONWEALTH’S
RESPONSE
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Otherwise, undisputed.

Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Otherwise, undisputed that the
Shell Defendants in their
disclosures stated that "nonparty
Shell Western Supply and Trading
Ltd. is an indirect subsidiary of
Royal Dutch Shell, plc." and
nothing more. The Shell
Defendants did not disclose SIPC.
Reyna Dec., Ex. 4.

SHELL DEFENDANTS’
REPLY
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 25.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 26.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 14

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
27. On April 9, 2010, counsel
for the Shell Defendants sent
counsel for the Commonwealth
a letter which stated that Shell
West “has conducted business
related to the manufacturing,
refining, importing, exporting,
distributing or supplying of
gasoline that is manufactured,
refined, imported, exported,
distributed or supplied to, from
or within the Commonwealth
of Puerto Rico.” Reyna Decl.,
Ex. 5, April 9, 2010, letter from
Reyna to Dias regarding Shell
Defendants’ Corporate
Disclosures.

COMMONWEALTH’S
RESPONSE
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Otherwise, undisputed that the
Shell Defendants sent counsel for
the Commonwealth a letter
containing some information
regarding Shell West's corporate
structure approximately one year
after counsel for the
Commonwealth requested
additional information regarding
Shell West.

SHELL DEFENDANTS’
REPLY
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 27.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

The Commonwealth’s Knowledge Regarding SIPC
SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
28. In September 1984, an
“Operation Manager” for SIPC
filed with the Puerto Rico
Office of the Secretary of State
a “Petition, Statement and
Power of Attorney” which
identified SIPC as a UK
company and which prosecuted
on behalf of SIPC a trademark
for the “SHELL” logo in the

COMMONWEALTH’S
RESPONSE
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'

SHELL DEFENDANTS’
REPLY
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 28.
The Commonwealth’s response

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 15

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
familiar red, white and yellow.
That Petition explained that
SIPC “adopted and used the
trademark … for sale and
distribution [of] fuels [ ]
including leaded and unleaded
motor gasoline ….” Reyna
Decl., Ex. 6a, Petition,
Statement and Power of
Attorney of SIPC dated Sept.
16, 1984.

29. The 1984 Petition also
stated that the trademark “has
been continuously used and
applied to said goods in the
applicant’s [SIPC’s] business
in Puerto Rico since January 5,
1977.” Id.

COMMONWEALTH’S
RESPONSE
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.
Otherwise, undisputed that the
Petition, Statement and Power of
Attorney was only for the purpose
of registering a trademark.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,

SHELL DEFENDANTS’
REPLY
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 29.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 16

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS

30. Along with the filing of the
1984 Petition, the Operation
Manager of SIPC also
submitted to the
Commonwealth a notarized
“Declaration” in support of the
trademark petition which again
identified SIPC and stated that
SIPC “has the right to use said
trademark in Puerto Rico ….”
Reyna Decl., Ex. 6b,
Declaration, dated Sept. 5,
1984.

COMMONWEALTH’S
RESPONSE
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.
Otherwise, undisputed that the
Petition, Statement and Power of
Attorney was only for the purpose
of registering a trademark.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.

31. The 1984 Declaration also

SHELL DEFENDANTS’
REPLY

Otherwise, undisputed that the
Declaration was only for the
purpose of registering a trademark.
Disputed that these facts are

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 30.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 17

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
stated that “said trademark is
used by said corporation
[SIPC] in commerce in Puerto
Rico….” Id.

COMMONWEALTH’S
RESPONSE
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.

32. In October 1987, SIPC
submitted another Certification
to clarify the record and to
make clear that SIPC was not
actually located in or doing
business within Puerto Rico.
Reyna Decl., Ex. 6c,
Certification of Correction,
dated Oct. 23, 1987.
33. In July 1985, in response to
the SIPC Petition, the Puerto
Rico Department of State
issued a certificate which

SHELL DEFENDANTS’
REPLY
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 31.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Otherwise, undisputed that the
Declaration was only for the
purpose of registering a trademark.
Undisputed that SIPC submitted to No reply necessary.
the Commonwealth another
Certification explaining that SIPC
was not actually located in or doing
business within Puerto Rico.

Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or

Fails to raise triable facts
relevant to Defendants’
Motion.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 18

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
registered the “SHELL”
trademark to SIPC. The
certificate described SIPC as “a
company organized under the
laws of Great Britain”; verified
that SIPC did “duly file” the
trademark application with the
Department of State in 1984;
and concluded that “said
Trademark has been duly
Registered this day in the
Department of State of Puerto
Rico to Shell International
Petroleum Company Limited
….” Reyna Decl., Ex. 6d,
Certificate, dated July 12,
1985.

34. In March 1987, the
Department of State issued a
certification confirming its
prior registration of the
“SHELL” logo to SIPC. This
certification recited that the
“SHELL” trademark “was duly
registered in this Department
on July 12, 1985 … in favor of
Shell International Petroleum
Company Limited, of London,
England and San Juan, Puerto
Rico, a company organized
under the laws of Great Britain,
for … ‘sale and
distribution/fuels [ ] including

COMMONWEALTH’S
RESPONSE

SHELL DEFENDANTS’
REPLY

should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."

The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 33.

Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.
Otherwise, undisputed that the
Certificate was only for the
purpose of registering a trademark.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts

The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 34.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 19

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
leaded and unleaded motor
gasoline ….” Id. The
certification also stated that the
Commonwealth had granted
the registration, and that the
registered trademark was still
in full force and effect in
Puerto Rico. Reyna Decl., Ex.
6e, Certification, dated March
9, 1987.

35. In February 1993, SIPC
applied for a trademark for the
Shell “EMBLEM” of a seashell
in the familiar red and yellow.
The application identified SIPC
as the applicant; listed its place
of organization as England and
its address in London;
explained that SIPC used the
“EMBLEM” for such goods as
“[m]otor fuels (including
leaded and unleaded motor
gasolines…)…”; and stated
that the trademark was used “in
the commerce of Puerto Rico”
since January 31, 1977. Reyna
Decl., Ex. 6f, Application,
dated Feb. 11, 1993.

COMMONWEALTH’S
RESPONSE
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.
Otherwise, undisputed that the
Certificate was only for the
purpose of registering a trademark.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.

SHELL DEFENDANTS’
REPLY
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 35.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 20

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS

36. In June 1993, the Puerto
Rico Department of State
issued a “Certificate of
Registration” which stated that
SIPC “a corporation organized
under the laws of England,”
had filed the application for the
Shell “EMBLEM” trademark
for “[m]otor fuels (including
leaded and unleaded motor
gasolines, ‘diesel’ fuels,
kerosene and liquified
petroleum gas) …” and that the
trademark has been duly
registered. Reyna Decl., Ex.
6g, Certification, dated June
28, 1993.

37. In November 1993, SIPC
applied for a trademark for a
certain brand of gasoline
known as “FORMULA
SHELL.” The application
identified SIPC as the
applicant; listed its place of
organization as England and its

COMMONWEALTH’S
RESPONSE
Otherwise, undisputed that the
application was only for the
purpose of registering the Shell
"EMBLEM."
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.
Otherwise, undisputed that the
Certificate was only for the
purpose of registering a trademark.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,

SHELL DEFENDANTS’
REPLY

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 36.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 37.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 21

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
address in London; explained
that SIPC used the
“FORMULA SHELL”
trademark for “Oils, greases,
lubricants, fuels”; and stated
that the trademark was used “in
the commerce of Puerto Rico”
since July 1993. Reyna Decl.,
Ex. 6h, Application, dated Nov.
10, 1993.

COMMONWEALTH’S
RESPONSE
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.

Otherwise, undisputed that the
application was only for the
purpose of registering a trademark
for the Shell "FORMULA SHELL"
brand of gasoline.
38. In July 1994, the Puerto
Disputed that these facts are
Rico Department of State
"material facts" for meeting
issued a “Certificate of
Defendants' burden of showing that
Registration” which stated that the Commonwealth knew, or
SIPC “of London, England, a
should have known, that i) MTBE
corporation organized under
had injured "waters of the
the laws of England,” had filed Commonwealth," as that term is
the application for the
defined in Paragraph 5 of the TAC,
“FORMULA SHELL”
prior to the June 12, 2006 "bar
trademark for “oils, greases,
date" claimed in Defendants'
lubricants, fuels” and that the
Motion and ii) the identity of the
trademark has been duly
entity or entities that caused such
registered. Reyna Decl., Ex. 6i, injury prior to the June 12, 2006
Certification, dated July 20,
"bar date."
1994.
Disputed that these facts
demonstrate that the
Commonwealth should have

SHELL DEFENDANTS’
REPLY
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 38.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 22

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS

39. In May 1995, SIPC
submitted an application to the
Department of State to renew
its registration of the “SHELL”
trademark for another 10 years.
Reyna Decl., Ex. 6j,
Application, dated May 31,
1995.

COMMONWEALTH’S
RESPONSE

SHELL DEFENDANTS’
REPLY

known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.
Otherwise, undisputed that the
Certificate was only for the
purpose of registering a trademark.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.

Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 39.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Otherwise, undisputed that the
application was only for the

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 23

SHELL DEFENDANTS’
UNDISPUTED MATERIAL
FACTS
40. In October 1996, the
Puerto Rico Department of
State issued a Certificate of
Renewal, which renewed the
registration. Reyna Decl., Ex.
6k, Certificate, dated Oct. 16,
1996. The renewal stated that
the “SHELL” trademark was
registered to SIPC, “a company
organized under the laws of
England.”

COMMONWEALTH’S
RESPONSE
purpose of renewing a trademark.
Disputed that these facts are
"material facts" for meeting
Defendants' burden of showing that
the Commonwealth knew, or
should have known, that i) MTBE
had injured "waters of the
Commonwealth," as that term is
defined in Paragraph 5 of the TAC,
prior to the June 12, 2006 "bar
date" claimed in Defendants'
Motion and ii) the identity of the
entity or entities that caused such
injury prior to the June 12, 2006
"bar date."
Disputed that these facts
demonstrate that the
Commonwealth should have
known that SIPC was located or
doing business in Puerto Rico. See
Defendants' Brief at n.3 ("In 1987,
SIPC submitted another
Certification to clarify the record
and to make clear that SIPC was
not actually located in or doing
business within Puerto Rico.");
Reyna Decl., Ex. 6c.

SHELL DEFENDANTS’
REPLY
Fails to raise triable facts
relevant to Defendants’
Motion.
The Commonwealth does not
actually dispute the Shell
Defendants’ Undisputed Material
Fact No. 40.
The Commonwealth’s response
referring to “June 12, 2006 ‘bar
date’ claimed in Defendants’
Motion” is nonsensical as no
such bar date was referenced in
the Shell Defendants’ motion.
The bar date for the
Commonwealth’s claims is
December 3, 2011.

Otherwise, undisputed that the
Certificate was only for the
purpose of renewing a trademark.

Procedural Background
ADDITIONAL MATERIAL FACTS
SHELL DEFENDANTS’ RESPONSE AND
ASSERTED BY COMMONWEALTH
OBJECTIONS
1. This case was initially filed on June 12, 2007 in Undisputed that this litigation was first initiated
the United States District Court for the District of
on June 12, 2007.
Puerto Rico, Case No. 07 Civ. 1505. Complaint,
Dkt. 16.
Dispute to the extent that it implies that the

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 24

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH

2. The Commonwealth named the following Shell
entities in its Original Complaint ("OC"): Shell Oil
Company, Shell Company Puerto Rico Ltd.
("SCPRL"), Shell Chemical Yabucoa, Inc.
("SCYI"), Shell Trading (US) Company, Motiva
Enterprises, LLC, and Equilon Enterprises, LLC
(collectively "Original Shell Defendants"). Id.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
Commonwealth’s claims against Shell West and
SIPC were raised before the Commonwealth filed
the Third Amended Complaint on December 3,
2012.
Dispute the Commonwealth’s definition of the
“Original Shell Defendants.”
Dispute the Commonwealth’s characterization of
SCPRL as a “Shell entit[y].” Shell Company
Puerto Rico Ltd. (“SCPRL”) was not a Shell entity
when the Commonwealth initiated this litigation
on June 12, 2007. Sol Investments Limited
acquired all of the stock of SCPRL on June 13,
2006 and subsequently changed the name of
SCPRL to Sol. The Commonwealth has admitted
this point, and thus it is undisputed. See Reply
Local Rule 56.1 Statement of Material Facts in
Support of Motion for Summary Judgment of the
Shell Defendants, Dkt. 4139.
Object to the Commonwealth’s continued attempt
to either confuse or deliberately conflate the Shell
defendants and Sol.

Furthermore, the Commonwealth’s definition
excludes TMR Company, an additional Shell
defendant named in the Original Complaint. See
Complaint, Dkt. 16.
3. The First Amended Complaint was filed shortly Undisputed that the First Amended Complaint
thereafter on October 4, 2007 in the District Court
was filed on October 4, 2007, adding the language
of Puerto Rico. The Commonwealth added "Does 1 “Does 1 through 99,” but that fact is irrelevant for
through 99" (i.e. corporations, partnerships,
purposes of evaluating Defendants’ motion.
associations, natural persons or other entities related
to other Defendants, of which the true names and
identities were not known to the Commonwealth
and were therefore sued under fictitious names).
First Amended Complaint, Dkt. 16-4.
4. The Second Amended Complaint was filed on
Undisputed that the Second Amended Complaint
September 8, 2008 after the August 12, 2008 CMC, was filed on September 8, 2008, but that fact is
at which the Commonwealth was ordered to file an irrelevant for purposes of evaluating Defendants’
amended complaint no later than September 8, 2008 motion.
(more than a year after the case was filed) and then
discovery would be begin no later than September

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 25

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
15, 2008. Second Amended Complaint, Dkt. 23.
5. On December 3, 2012, the Commonwealth
filed its Third Amended Complaint ("TAC") after
receiving permission from the Court at the October
22, 2012 Case Management Conference. Third
Amended Complaint, Dkt. 175. Cardenas Decl., Ex.
6 (Transcript of the Oct. 22, 2012 Case
Management Conference at pp. 11:1-12:1.)
6. In its TAC, the Commonwealth added Shell
Western Supply and Trading ("Shell West"), Shell
International Petroleum Company, Limited
("SIPC"), and Shell Western Services as
defendants. Id.
7. The facts, allegations, and claims asserted in
the TAC are the same as in the OC except for the
naming of the additional parties, including the Shell
Defendants. Id.
8. The Original Shell Defendants, Shell West and
SIPC are closely related. Together, they arranged or
supplied gasoline to Puerto Rico, are wholly owned
subsidiaries of Royal Dutch Shell plc., and are all
represented by the firm of Sedgwick LLP. See
Local Rule 56.1 Statement of Material Facts in
Support of Motion for Summary Judgment of the
Shell Defendants (Dkt. 469) ("Shell Defendants'
SOF (469)"), at ¶¶ 2, 4, 28-40, and 100; Declaration
of Ruben F. Reyna in Support of Motion for
Summary Judgment of Shell Western Supply and
Trading Limited and Shell International Petroleum
Limited (Dkt. 609) ("Reyna Decl."), Exhibit 7
(Declaration of Ian Charman In Support of the Shell
Defendants' Motion for Summary Judgment), at¶¶
7, 16, 18; Plaintiffs Rule 56.1 Statement of
Undisputed Facts Regarding the Motion for
Summary Judgment of the Shell Defendants, dated
November 8, 2014 (Dkt. 541), at ¶¶ 1, 10; Notice
of Motion and Motion for Summary Judgment of
the Shell Defendants (Dkt. 467), at 1, 2.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
Undisputed that the Third Amended Complaint
was filed on December 3, 2012.
Dispute the Commonwealth’s suggestion that it
could not have sought leave to add Shell West or
SIPC before 2012.
Undisputed.

Undisputed.

Disputed.
The Commonwealth’s description that these
entities “are closely related” is a legal conclusion
and does not raise triable facts relevant to Shell
Defendants’ Motion.
Dispute the Commonwealth’s definition of the
“Original Shell Defendants.” See supra Shell
Defendants’ Response to Additional Material Facts
Asserted by Commonwealth No. 2.
Undisputed that between September 1997 and
October 2003, Shell West provided trading and
supply services to Sol (f/k/a SCPRL), another
defendant in this litigation. Also admit that
between November 2003 and October 2004, and
between September 2008 and December 2010,
Shell West provided similar services to Shell
Chemical Yabucoa, Inc. See Shell Defendants’
Undisputed Material Fact No. 9.
Undisputed that for the ten-year period, from
1985 until 1995, a division of SIPC known as Shell
International Trading Company (SITCO) provided
trading and supply services whereby it acquired
gasoline from a third party and supplied that

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 26

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
gasoline to Sol (f/k/a SCPRL). See Shell
Defendants’ Undisputed Material Fact No. 14.
Undisputed that Shell West and SIPC are both
subsidiaries of Royal Dutch Shell plc, but that fact
is irrelevant for purposes of evaluating
Defendants’ motion. The ultimate parent, Royal
Dutch Shell pls, is not a party to this case.
Undisputed that subsequent to the Commonwealth
bringing claims against Shell West and SIPC in
December 2012, Shell West and SIPC hired the
law firm of Sedgwick LLP to represent them, but
that fact is irrelevant for purposes of evaluating
Defendants’ motion. There is no evidence that
Shell West or SIPC engaged, or even
communicated with, Sedgwick LLP prior to being
added to this case in 2012.

Facts Regarding Shell Western Supply and Trading Limited
ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
9. Until 2006, SCPRL was part of the Shell family
of companies, at which time it was bought and
changed its name to Sol Puerto Rico Limited
("Sol"). See Shell Defendants' SOF ( 469), at ¶¶ 2,
4.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
Undisputed that Sol Investments Limited acquired
all of the stock of SCPRL and subsequently
changed the name of SCPRL to Sol Puerto Rico
Limited in 2006, a year before the Commonwealth
initiated this litigation. See Reply Local Rule 56.1
Statement of Material Facts in Support of Motion
for Summary Judgment of the Shell Defendants,
Dkt. 4139.
Dispute the Commonwealth’s argumentative
characterization of SCPRL as “part of the Shell
family of companies.” See supra Shell
Defendants’ Response to Additional Material Facts
Asserted by Commonwealth No. 2.

10. Shell West was a substantial supplier of

Object to the Commonwealth’s continued attempt
to either confuse or deliberately conflate the Shell
defendants and Sol.
Undisputed that “Between September 1997 and

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 27

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
gasoline to both SCPRL/Sol and SCYI, two of the
Original Shell Defendants, due to the vertical
integration of the Shell business. "Between
September 1997 and December 2010, Shell West
supplied 516 shipments of gasoline to Sol (f/k/a
SCPRL) and 140 shipments of gasoline to SCYI
mainly from and at the St. Croix refinery." See
Shell Defendants' SOF (469), at ¶ 100; Reyna
Decl., Ex. 7, at ¶ 18.

11. Also, between November 2003 and October
2004, and between September 2008 and December
2010, Shell West provided similar services to
another company, also a separate defendant in this
case, [SCYI] [an Original Shell Defendant]." See
Reyna Decl., Ex. 7, at ¶ 16.

12. This long-term relationship of sustained
transactions and interaction between Shell West and
Original Shell Defendants, SCPRL and SCYI,
support a finding that Shell West had a pre-existing
bond that constitutes a relationship of perfect
solidarity. Moreover, the Shell Defendants' May 1,
2009 Corporate Disclosure expressly identified
Shell West as an indirect subsidiary of Royal Dutch
Shell plc. See Reyna Decl., Ex. 4 (Shell Defendants'
Corporate Disclosures), at ¶ 7.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
December 2010, Shell West supplied 516
shipments of gasoline to Sol (f/k/a SCPRL) and
140 shipments of gasoline to SCYI mainly from
and at the St. Croix refinery.”
Dispute the Commonwealth’s characterization of
SCPRL/Sol as an “Original Shell Defendant.” See
supra Shell Defendants’ Response to Additional
Material Facts Asserted by Commonwealth No. 2.
Object to the Commonwealth’s continued attempt
to either confuse or deliberately conflate the Shell
defendants and Sol.
Undisputed that “between November 2003 and
October 2004, and between September 2008 and
December 2010, Shell West provided similar
services to another company, also a separate
defendant in this case, [SCYI].”
Dispute the Commonwealth’s definition of the
“Original Shell Defendants.” See supra Shell
Defendants’ Response to Additional Material Facts
Asserted by Commonwealth No. 2.
Disputed.
The Commonwealth’s characterization of “a preexisting bond that constitutes a relationship of
perfect solidarity” is a legal conclusion and does
not raise triable facts relevant to Shell Defendants’
Motion.
Dispute the Commonwealth’s characterization of
SCPRL/Sol as an “Original Shell Defendant.” See
supra Shell Defendants’ Response to Additional
Material Facts Asserted by Commonwealth No. 2.
Object to the Commonwealth’s continued attempt
to either confuse or deliberately conflate the Shell
defendants and Sol.
Undisputed that “the Shell Defendants’ May 1,
2009 Corporate Disclosure expressly identified
Shell West as an indirect subsidiary of Royal
Dutch Shell plc.,” but that fact is irrelevant for

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 28

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
13. On May 29, 2009, the Commonwealth sent a
letter to counsel for Shell advising them that the
Corporate Disclosures submitted by Shell failed to
provide any detailed information with respect to
Shell West and its connection to Puerto Rico.
Cardenas Decl., Ex. 1 (May 29, 2009 Letter from
Dias to Reyna).

14. Shell did not respond to the Commonwealth's
request for more information until April 9, 2010,
approximately one year later. Reyna Decl., Ex. 5
(April 9, 2010 Letter from Reyna to Dias).
15. On the same day, Shell represented in Shell's
Objections and Responses to Plaintiffs 1st
Interrogatories that the "Shell Defendants have not
supplied gasoline containing MTBE to any jobbers,
resellers, carriers, distributors, or retailers that
provide or provided gasoline containing MTBE to
the Commonwealth of Puerto Rico." Cardenas
Decl, Ex. 2 (The Shell Defendants' Objections and
Responses to Plaintiffs First Set of Interrogatories
to Defendants), at No.3.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
purposes of evaluating Defendants’ motion.
Undisputed that on May 29, 2009, counsel for the
Commonwealth sent counsel for the Shell
defendants a letter. Further admit that the letter
identified the Shell defendants named in the
litigation at that time as Shell Oil Company, Shell
Chemical Yabucoa, Inc., Shell Trading (US)
Company, Motiva Enterprises LLC, Equilon
Enterprises LLC, and TMR Company. That
identification did not include Shell West or SIPC.
Dispute that this letter “advis[ed] them that the
Corporate Disclosures submitted by Shell failed to
provide any detailed information with respect to
Shell West and its connection to Puerto Rico.”
Cardenas Decl., Ex. 1 (May 29, 2009 Letter from
Dias to Reyna). Further, dispute that this letter
said anything at all regarding Shell West. Id.
Undisputed, but that fact is irrelevant for
purposes of evaluating Defendants’ motion.
Undisputed that on April 9, 2010, the Shell
defendants named in the litigation at that time,
Shell Oil Company, Shell Chemical Yabucoa, Inc.,
Shell Trading (US) Company, Motiva Enterprises
LLC, Equilon Enterprises LLC, and TMR
Company, responded to the Commonwealth’s
Interrogatory No. 3 by stating, that they “have not
supplied gasoline containing MTBE to any
jobbers, resellers, carriers, distributors, or retailers
that provide or provided gasoline containing
MTBE to the Commonwealth of Puerto Rico.”
Further admit that the Shell defendants qualified
that response by stating that “some shipments of
gasoline from the Shell Defendants provided to the
Commonwealth of Puerto Rico may have
contained MTBE at de minimus levels.”
Irrelevant for purposes of evaluating Defendants’
motion.
Dispute the Commonwealth’s suggestion that
Shell West or SIPC were Shell defendants at the

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 29

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
time of these responses.
16. The Shell Defendants represented that they "did Undisputed that on April 9, 2010, the Shell
not refine or market gasoline containing MTBE in
defendants named in the litigation at that time,
or into the Commonwealth of Puerto Rico." Id., at
Shell Oil Company, Shell Chemical Yabucoa, Inc.,
No.9.
Shell Trading (US) Company, Motiva Enterprises
LLC, Equilon Enterprises LLC, and TMR
Company, responded to the Commonwealth’s
Interrogatory No. 9 by stating, that they “did not
refine or market gasoline containing MTBE in or
into the Commonwealth of Puerto Rico.” Further
admit that the Shell defendants qualified that
response by stating that “some shipments of
gasoline from the Shell Defendants provided to the
Commonwealth of Puerto Rico may have
contained MTBE at de minimus levels.”
Irrelevant for purposes of evaluating Defendants’
motion.

17. The Shell Defendants' April 9, 2010 discovery
responses also refer the Commonwealth to the Shell
Defendants' November 7, 2008 responses, in which
they state that the Shell Defendants "have never
supplied MTBE gasoline to any jobber, franchisee
and/or distributor, anywhere in the Relevant
Geographic Area." Cardenas Decl., Ex. 3 (Shell
Defendants' Objections and Responses to Plaintiff
Commonwealth of Puerto Rico's First Set of
Interrogatories to Defendants), at No. 5.

Dispute the Commonwealth’s suggestion that
Shell West or SIPC were Shell defendants at the
time of these responses.
Undisputed that on November 7, 2008, the Shell
defendants named in the litigation at that time,
Shell Oil Company, Shell Chemical Yabucoa, Inc.,
Shell Trading (US) Company, Motiva Enterprises
LLC, Equilon Enterprises LLC, and TMR
Company, responded to the Commonwealth’s
Interrogatory No. 5 by stating, that they “have
never supplied MTBE gasoline to any jobber,
franchisee and/or distributor, anywhere in the
Relevant Geographic Area.”
Irrelevant for purposes of evaluating Defendants’
motion.

18. Furthermore, the Shell Defendants state that
they "do not engage in terminaling or retailing or
gasoline products anywhere in the Relevant
Geographic Area." Id. at No. 10.

Dispute the Commonwealth’s suggestion that
Shell West or SIPC were Shell defendants at the
time of these responses.
Undisputed that on November 7, 2007, the Shell
defendants named in the litigation at that time,
Shell Oil Company, Shell Chemical Yabucoa, Inc.,
Shell Trading (US) Company, Motiva Enterprises
LLC, Equilon Enterprises LLC, and TMR

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 30

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
Company, responded to the Commonwealth’s
Interrogatory No. 10 by stating, that they “do not
engage in terminaling or retailing or gasoline
products anywhere in the Relevant Geographic
Area.”
Irrelevant for purposes of evaluating Defendants’
motion.

19. In fact, it was not until May 2012 that the Shell
Defendants admitted it had gasoline supply
relationships with certain entities in Puerto Rico,
including Sol (f/k/a SCPRL, an Original Shell
Defendant, who may have supplied gasoline to one
or more of the sites. Cardenas Decl., Ex. 4 (The
Shell Defendants Objections and Responses to
Plaintiffs First Set of Interrogatories to Defendants
Regarding Plaintiffs' Trial Sites), at Nos. 1 and 13.

Dispute the Commonwealth’s suggestion that
Shell West or SIPC were Shell defendants at the
time of these responses.
Disputed.
Dispute the Commonwealth’s suggestion that the
Shell defendants have not been forthcoming in all
phases of discovery in this litigation.
Dispute the Commonwealth’s suggestion that
Shell West or SIPC were “Shell defendants” in this
litigation prior to the Commonwealth asserting
claims against them in December 2012.
Dispute the Commonwealth’s characterization of
SCPRL/Sol as an “Original Shell Defendant.” See
supra Shell Defendants’ Response to Additional
Material Facts Asserted by Commonwealth No. 2.

20. Subsequently, on August 16, 2012, the
Commonwealth received the first document
produced by Sol (by this time not a Shell
Defendant) of an invoice on Shell West letterhead
that conclusively demonstrated that Shell West had
done more that act as an intermediary but actually
supplied gasoline to Puerto Rico. Cardenas Decl,
Ex. 5 (SOL 58983).

Object to the Commonwealth’s continued attempt
to either confuse or deliberately conflate the Shell
defendants and Sol.
Disputed.
Dispute the Commonwealth’s suggestion that Sol
was ever a Shell defendant. Sol was not a Shell
defendant when the Commonwealth initiated this
litigation on June 12, 2007, nor has it ever been.
See supra Shell Defendants’ Response to
Additional Material Facts Asserted by
Commonwealth No. 2.
Dispute the Commonwealth’s suggestion that it
was not until August 16, 2012, that the
Commonwealth acquired the requisite knowledge

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 31

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
21. Less than two months after confirming Shell
West's participation, the Commonwealth sought and
received permission from this Court to add
additional Shell Defendants to the TAC. Cardenas
Decl., Ex. 6 (Transcript of the Oct. 22, 2012 Case
Management Conference), at pp. 11:1- 12:1.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
regarding Shell West necessary to assert claims
against it.
Disputed.
Dispute the Commonwealth’s suggestion that it
was not until August 16, 2012, that the
Commonwealth acquired the requisite knowledge
regarding Shell West necessary to assert claims
against it.
Dispute the Commonwealth’s suggestion that it
could not have sought leave to add Shell West or
SIPC before 2012.

Facts Regarding Shell International Petroleum Company, Inc.
ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
22. SIPC has had very close ties to Shell business
operations in Puerto Rico, including with Original
Shell Defendant, SCPRL/Sol. See, infra, ¶¶ 23-33.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
Disputed.
The Commonwealth’s characterization of “very
close ties” is a legal conclusion and does not raise
triable facts relevant to Shell Defendants’ Motion.
Dispute the Commonwealth’s characterization of
SCPRL/Sol as an “Original Shell Defendant.” See
supra Shell Defendants’ Response to Additional
Material Facts Asserted by Commonwealth No. 2.

23. From 1985 to 1995, a division of SIPC
provided trading and supply services whereby it
acquired gasoline from a third party and supplied
that gasoline to SCPRL. See Reyna Decl., Ex. 7, at
¶ 7; see also Shell Rule 56.1 Statement, at ¶ 14.
SIPC submitted a Certification on October 1987 to
clarify the record and to make clear that SIPC was
not actually located in or doing business within
Puerto Rico. Reyna Decl., Ex. 6c, Certification of
Correction, dated Oct. 23, 1987.

Object to the Commonwealth’s continued attempt
to either confuse or deliberately conflate the Shell
defendants and Sol.
Undisputed that “from 1985 to 1995, a division of
SIPC provided trading and supply services
whereby it acquired gasoline from a third party and
supplied that gasoline to SCPRL.”
Undisputed that SIPC did not do business in
Puerto Rico, but that fact is irrelevant for
purposes of evaluating Defendants’ motion. The
Commonwealth asserts claims against SIPC for
conduct outside of Puerto Rico, notwithstanding

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 32

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
24. SIPC was responsible for registering the Shell
trademark in Puerto Rico, although it claims that it
did not actually do business in Puerto Rico. See
Shell Defendants' Rule 56.1 Statement in Support
of Motion for Summary Judgment (Dkt .. 608), at
¶¶ 28-40.

25. A division of SIPC entered into a Shell Retail
International Franchise Agreement with original
defendant SCPRL, under which the SIPC division
would provide "franchise specialist advice and
services ... for Shell Operating Companies
throughout the world that have a Retail Business ....
" Plaintiffs Rule 56.1 Statement of Undisputed
Facts Regarding the Motion for Summary Judgment
of the Shell Defendants, dated November 8, 2014
(Dkt. 541), at ¶ 1.
26. According to the agreement, SIPC's division
and SCPRL agreed to comply with certain core
elements as "central to the achievement of common
standards throughout the [Shell global network of
retail businesses] .... These ... [included]: ... (ii)
[Health, Safety and Environment] core standards;
and (iii) adherence to ... performance specifications
for equipment and systems .... " Id.
27. SIPC' s division was required to "[p]ublish
guidelines on ... [Health, Safety and Environment
core standards] together with details on how to
acquire the relevant specification and standards
documents ... and [SCPRL] agree[d] to comply with
the guidelines." Id.
28. The agreement also required SIPC's division to
provide "comprehensive advice and business
support for products and services" regarding
"[e]ngineering design" and "[s]ite operations and

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
the fact that SIPC has never been located in Puerto
Rico and did not conduct business there.
Dispute the Commonwealth’s vague
characterization that “SIPC was responsible for
registering the Shell trademark in Puerto Rico.”
Undisputed that SIPC registered trademarks
pertaining to the gasoline market in Puerto Rico.
Undisputed that SIPC did not do business in
Puerto Rico, but that fact is irrelevant for
purposes of evaluating Defendants’ motion. The
Commonwealth asserts claims against SIPC for
conduct outside of Puerto Rico, notwithstanding
the fact that SIPC has never been located in Puerto
Rico and did not conduct business there.
Undisputed, but that fact is irrelevant for
purposes of evaluating Defendants’ motion.

Undisputed, but that fact is irrelevant for
purposes of evaluating Defendants’ motion.

Undisputed, but that fact is irrelevant for
purposes of evaluating Defendants’ motion.

Undisputed, but that fact is irrelevant for
purposes of evaluating Defendants’ motion.

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 33

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
training" among other things. Id .The SIPC
division's website was "the central information
point for [SCPRL] and the method by which [SIPC]
provide[d] information and documents, and
reports .... " Id.
29. SIPC approved expenditures for "major
improvements to the Cataño" dock and also
approved SCPRL's "proposal to increase
expenditure" on that project. Id at ¶ 10.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS

Undisputed that the quoted language is found in
the reference exhibit, but dispute the
Commonwealth’s argumentative characterization
of the statements which has taken them out of
context.
The quoted language is irrelevant for purposes of
evaluating the Shell Defendants’ motion.

30. SIPC was not disclosed on the Shell
Defendants' Corporate Disclosure filed May 1,
2009. Reyna Decl., Ex. 4 (Shell Defendants'
Corporate Disclosures).

Dispute the Commonwealth’s suggestion that
SIPC was a Shell defendant in this litigation on
May 1, 2009.

Otherwise, undisputed, but this fact is irrelevant
for purposes of evaluating Defendants’ motion.
31. The Shell Defendants did not identify SIPC in
Dispute the Commonwealth’s suggestion that
any of its discovery responses. See generally
SIPC was a “Shell defendant” in this litigation
Cardenas Decl., Ex. 3 (Shell Defendants' Objections prior to the Commonwealth asserting claims
and Responses to Plaintiff Commonwealth of
against it in December 2012.
Puerto Rico's First Set of Interrogatories to
Defendants), at No. 5; Reyna Decl., Ex. 4 (Shell
Otherwise, undisputed, but this fact is irrelevant
Defendants' Corporate Disclosures).
for purposes of evaluating Defendants’ motion.
32. The Shell Defendants did not disclose any
Dispute the Commonwealth’s suggestion that
information regarding SIPC's role in the purchase,
SIPC was a “Shell defendant” in this litigation
sales, supply or distribution of gasoline petroleum
prior to the Commonwealth asserting claims
products in Puerto Rico from 1985 to 1995
against it in December 2012.
unti12013, after the Commonwealth added SIPC to
the TAC. Cardenas Decl., Ex. 7 (Responses of Shell Otherwise, undisputed, but this fact is irrelevant
International Petroleum Company Limited to
for purposes of evaluating Defendants’ motion.
Plaintiffs' Request for Production of Documents
and Interrogatories to Certain Defendants
Regarding Stations, Refineries, and Terminals), at
No. 15.
33. The Shell Defendants produced Franchise
Undisputed, but that fact is irrelevant for
Agreements on February 20, 2009 which referred to purposes of evaluating Defendants’ motion.
SIPC as the owner of the Shell trademark, the
"SHELL" logo, the Shell red, white and yellow
color scheme, etc. However, SIPC is not identified
as having any role in the purchase, sales, supply, or

Reply Local Rule 56.1 Statement of Material Facts ISO Shell West and SIPC Motion for Summary Judgment

Page 34

ADDITIONAL MATERIAL FACTS
ASSERTED BY COMMONWEALTH
distribution of petroleum products in Puerto Rico.
Cardenas Decl., Ex. 8 (SH-PR-SOL003649-3706).
34. The first documents identifying SIPC as having
a role in the sales, purchasing, supply or
distribution of petroleum products in Puerto Rico
were produced by Sol in August 2012. Cardenas
Decl., Ex. 9 (SOL 66603).
35. The public documents that the Shell
Defendants claim put the Commonwealth on notice
of SIPC's involvement in Puerto Rico relate solely
to the registration of trademarks. Reyna Decl., Exs.
6a-6j.
36. The trademark registrations do not establish
that SIPC was doing business in or operating in
Puerto Rico. To the contrary, as the Shell
Defendants point out, the certificates confirm that
SIPC was arguing the exact opposite - "SIPC was
not actually located in or doing business within
Puerto Rico" during that time. See Defendants'
Motion at 6.
37. For the ten-year period, from 1985 until 1995, a
division of SIPC known as Shell International
Trading Company (SITCO) provided trading and
supply services whereby it acquired gasoline from a
third party and supplied that gasoline to Sol (f/k/a
SCPRL)." See Reyna Decl., Ex. 7, at ¶ 88.
38. These close ties included a February 1988 and
a January 1, 1999 agreement between SITCO and
Sol. See Plaintiffs Rule 56.1 Statement of
Undisputed Facts Regarding the Motion for
Summary Judgment of the Shell Defendants at ¶ 1
(Dkt. 541); "White Oils Agreement" at Bates range:
Sol 139371 through 139382. Similarly, this longterm relationship of sustained transactions between
SIPC and the early added Defendant Sol supports a
finding that SIPC had a pre-existing bond that
constitutes a relationship of perfect solidarity.

SHELL DEFENDANTS’ RESPONSE AND
OBJECTIONS
Disputed.
There is ample evidence that the Commonwealth
was provided documents and information
identifying SIPC as “having a role” in the Puerto
Rico gasoline market. See supra Shell
Defendants’ Undisputed Material Fact Nos. 28-40
Disputed.
The trademarks pertained directly to the Puerto
Rico gasoline market. See supra Shell
Defendants’ Undisputed Material Fact Nos. 28-40
Undisputed that SIPC was not operating in Puerto
Rico, but that fact is irrelevant for purposes of
evaluating Defendants’ motion. The
Commonwealth asserts claims against SIPC for
conduct outside of Puerto Rico, notwithstanding
the fact that SIPC has never been located in Puerto
Rico and did not conduct business there.
Undisputed.

Disputed.
Dispute the assertion that there were “sustained
transactions” between SIPC and Sol as the
Commonwealth fails to cite to any evidence
beyond the “White Oils Agreement.”
The Commonwealth’s assertion that the alleged
long-term relationship of sustained transactions
“supports a find that SIPC had a pre-existing bond
that constitutes a relationship of perfect solidarity”
is a legal conclusion and does not raise triable facts
relevant to Shell Defendants’ Motion.

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Dated: July 24, 2015

By:

s/ Ruben F. Reyna
Richard E. Wallace, Jr.
Peter C. Condron
Ruben F. Reyna
SEDGWICK LLP
2900 K Street, N.W.
Harbourside, Suite 500
Washington, D.C. 20007
Telephone: [phone]
Facsimile: 202.204.1001
Attorneys for Defendants: Shell Western Supply
and Trading Limited and Shell International
Petroleum Company Limited

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