-i- TO THE SUBROGATE PRESIDENT OF THE ... - Chevron

Second, since TexPet already undertook remediation, any compensation to the
plaintiffs for unjust enrichment would be to ask the company to pay twice for the same
alleged environmental damage. 1093
Third, the unjust enrichment damages requested by both the plaintiffs in their
September 16, 2010 submission at 5:15 p.m. and through Mr. Cabrera suffer from the
same fatal mistakes. Both are based on data gathered in the Cabrera Report, which is
tainted by fraud and fundamentally flawed. Willfully ignoring Ecuadorian law, the
Cabrera Report recommends that Chevron pay US$8.31 billion for unjust enrichment
because TexPet allegedly obtained profits “by not having invested sufficient money in
appropriate environmental controls during its operation of the Concession.” 1094 While
the Cabrera Report does not provide enough information to replicate its calculations of
supposed unjust enrichment, 1095 it is clear that the calculations are exaggerated,
erroneous, or both. Serious errors in the Cabrera Report, and the plaintiffs’ submission
of September 16, 2010 at 5:15 p.m. that was based on its data, include, but are not
limited to:
• Neither the Cabrera Report nor the report of Jonathan Shefftz, submitted
by the plaintiffs with their September 16, 2010 filing at 5:15 p.m.,
recognizes two factors that should have been taken into account in the
calculation of the supposed unjust enrichment: (1) the minority status of
TexPet in the Consortium, and (2) income tax paid by the Consortium.
Taking into account these factors, TexPet would be liable for only 2.1
percent of any unjust enrichment claim. 1096 All told, TexPet received
1093
See Chevron’s Motion filed Sept. 16, 2010, at 4:35 p.m., § II.B.4.b.iii, at 138; SOUTHGATE,
Douglas, CONNOR, John & MACNAIR, Douglas, Response to the Allegations of Mr. Cabrera Regarding
Supposed Unjust Enrichment of Texpet, attached as an appendix to Chevron’s Objections to Expert
Cabrera’s Global Report, filed Sept. 15, 2008, at 2:14 p.m., Record at 146342-370, 146349. See also
LEAMER, Edward, Ph.D., Evaluation of Economic Analysis Contained in Summary Report of Expert
Examination and Answers to the Plaintiffs’ Questions About the Expert Report in the Case of Maria
Aguinda et al. v. Chevron Corporation, No. 002-2003, dated Sept. 8, 2010, attached as Annex 11 to
Chevron’s Motion filed Sept. 16, 2010, at 4:35 p.m., at 49.
1094
SOUTHGATE, Douglas, CONNOR, John & MACNAIR, Douglas, Response to the Allegations
of Mr. Cabrera Regarding Supposed Unjust Enrichment of Texpet, attached as an appendix to Chevron’s
Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008, at 2:14 p.m., Record at 146342-370,
146345 (citing Expert Cabrera’s Global Report, filed Apr. 1, 2008, at 8:30 a.m., at 55, Record at 134228-
134289, 134284).
1095 Mr. Cabrera failed to record dates and sources of information that are indispensable for
reproducing his calculations. See Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15,
2008, at 2:14 p.m., Record at 141082-203, 141176; see also Chevron’s Motion filed Sept. 16, 2010, at
4:35 p.m., § II.B.4.b.iv.5, at 146.
1096 See SOUTHGATE, Douglas, CONNOR, John A., Response to the Report of Mr. J. S. Shefftz
with Regard to “Analysis of Unjust Enrichment,” issued 13 September 2010, in the Matter of Maria
Aguinda et al. vs. Chevron, at 10, attached as Annex 1 to Chevron’s Motion filed Oct. 29, 2010 at 5:20
p.m.; Chevron’s Motion filed Sept. 16, 2010, at 4:35 p.m., § II.B.4.b.iv.2, at 142-43.
CERT. INTERMARK VER: JD
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