UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CHEVRON CORPORATION,
Plaintiff,
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STEVEN R. DONZIGER, et al.,
Defendants.
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Case No. 11 Civ. 0691 (LAK)
CHEVRON CORPORATION’S RESPONSE TO DEFENDANTS’
MEMORANDUM OF LAW IN RESPONSE TO THE COURT’S ORAL
ORDER TO SHOW CAUSE ON WHY DEFENDANTS SHOULD NOT BE
DEPRIVED OF A JURY DESPITE CHEVRON’S WITHDRAWAL OF ITS
MONEY DAMAGES CLAIMS
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166-0193
Telephone: 212.351.4000
Facsimile: 212.351.4035
Attorneys for Plaintiff Chevron Corporation
Case 1:11-cv-00691-LAK-JCF Document 1496 Filed 10/05/13 Page 1 of 18
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
A. There Is No Right to a Jury Trial Where the Plaintiff Seeks Only
Equitable Relief. ....................................................................................................... 2
B. Any Seventh Amendment Right to a Jury Trial a Party May Have Had
at the Outset of a Case Is Eliminated Once Damages Are Waived. ........................ 6
C. Chevron’s Unjust Enrichment Claim Would Not Create a Jury Trial
Right. ........................................................................................................................ 7
D. Defendants’ Remaining Arguments Are Baseless and Irrelevant. ........................... 9
CONCLUSION ............................................................................................................................. 11
EXHIBITS .................................................................................................................................... 13
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TABLE OF AUTHORITIES
Page(s)
Cases
Alcan Int’l Ltd v. S.A. Day Mfg. Co.,
179 F.R.D. 398 (W.D.N.Y. 1998) ........................................................................................ 8
Anti-Monopoly, Inc. v. General Mills Fun Grp., Inc.,
195 U.S.P.Q. 633 (N.D. Cal. 1976) ...................................................................................... 6
Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Comm’n,
430 U.S. 442 (1977) ............................................................................................................. 1
Austin v. United States,
509 U.S. 602 (1993) ........................................................................................................... 11
Barry v. Edmunds,
116 U.S. 550 (1886) ............................................................................................................. 8
Beacon Theatres, Inc. v. Westover,
359 U.S. 500 (1959) ............................................................................................................. 5
Black v. Boyd,
248 F.2d 156 (6th Cir. 1957) ................................................................................................ 5
Boyd v. United States,
116 U.S. 616 (1866) ........................................................................................................... 10
Conroy v. New York State Dep’t of Corr. Servs.,
333 F.3d 88 (2d Cir. 2003) ................................................................................................... 3
Cunningham v. State,
835 N.E.2d 1075 (Ind. Ct. App. 2005) ............................................................................... 10
Dairy Queen, Inc. v. Wood,
369 U.S. 469 (1962) ............................................................................................................. 5
Daisy Grp., Ltd. v. Newport News, Inc.,
999 F. Supp. 548 (S.D.N.Y. 1998) ................................................................................... 7, 8
Design Strategies, Inc. v. Davis,
367 F. Supp. 2d 630 (S.D.N.Y. 2005) .................................................................................. 3
Dimick v. Schiedt,
293 U.S. 474 (1935) ............................................................................................................. 8
Empresa Cubana Del Tabaco v. Culbro Corp.,
123 F. Supp. 2d 203 (S.D.N.Y. 2000) .............................................................................. 1, 7
F.T.C. v. Verity Int’l, Ltd.,
443 F.3d 48 (2d Cir. 2006) ............................................................................................... 1, 4
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iii
Francis v. Dietrick,
682 F.2d 485 (4th Cir. 1982) ................................................................................................ 6
George Basch Co., Inc. v. Blue Coral, Inc.,
968 F.2d 1532 (2d Cir. 1992) ............................................................................................... 7
Granfinanciera v. Nordberg,
492 U.S. 33 (1989) ............................................................................................................... 3
In re Friedberg,
131 B.R. 6 (S.D.N.Y. 1991) ................................................................................................. 4
Kemp v. Tyson Foods, Inc.,
No. CIV. 5–96–173–JRT (RLE), 2001 WL 1636512 (D. Minn. Nov. 19, 2001) ................ 6
Maersk, Inc. v. Neewra, Inc.,
687 F. Supp. 2d 300 (S.D.N.Y. 2009) .................................................................................. 5
Markman v. Westview Instruments, Inc.,
517 U.S. 370 (1996) ............................................................................................................. 2
Molloy v. Primus Auto. Fin. Servs.,
247 B.R. 804 (Bankr. C.D. Cal. 2000) ................................................................................. 5
NSC Int’l Corp. v. Ryan,
531 F. Supp. 362 (D. Ill. 1981) ............................................................................................ 5
Pac. Mut. Life Ins. Co. v. Haslip,
499 U.S. 1 (1999) ............................................................................................................... 11
Partecipazioni Bulgari, S.p.A. v. Meige,
No. 86–2516–CIV–RYS (KAMP), 1988 WL 113346 (S.D. Fla. May 23, 1988) ................ 6
People by Abrahms v. 11 Cornwell Co.,
695 F.2d 34 (2d Cir. 1982) ................................................................................................... 6
Pereira v. Farace,
413 F.3d 330 (2d Cir. 2005) ................................................................................................. 3
Plechner v. Widener College, Inc.,
569 F.2d 1250 (3d Cir. 1977) ............................................................................................... 5
R.B. Ventures, Ltd. v. Shane,
112 F.3d 54 (2d Cir. 1997) ............................................................................................... 1, 8
Rosenman Colin Freund Lewis & Cohen v. Richard,
656 F. Supp. 196 (S.D.N.Y. 1987) ....................................................................................... 7
S.E.C. v. Commonwealth Chem. Sec., Inc.,
574 F.2d 90 (2d Cir. 1978) ............................................................................................... 3, 9
Skippy, Inc. v. CPC Int’l, Inc.,
674 F.2d 209 (4th Cir. 1982) ................................................................................................ 4
Stonewall Ins. Co. v. Nat’l Gypsum Co.,
No. 86 Civ. 9671 (JSM), 1992 WL 281401 (S.D.N.Y. Sept. 25, 1992) .......................... 4, 6
Case 1:11-cv-00691-LAK-JCF Document 1496 Filed 10/05/13 Page 4 of 18
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United States v. Carson,
52 F.3d 1173 (2d Cir. 1995) ............................................................................................. 4, 9
United States v. Int’l Brotherhood of Teamsters,
708 F. Supp. 1388 (S.D.N.Y. 1989) ........................................................................... 4, 9, 10
United States v. Philip Morris, Inc.,
273 F. Supp. 2d 3 (D.D.C. 2002) ............................................................................... 4, 9, 10
United States v. Private Sanitation Indus. Ass’n,
44 F.3d 1082 (2d Cir. 1986) ............................................................................................... 11
United States v. Stein,
452 F. Supp. 2d 276 (S.D.N.Y. 2006) .................................................................................. 5
Whitson v. Knox Cnty. Bd. of Educ.,
468 F. App’x 532 (6th Cir. 2012) ......................................................................................... 6
Windsurfing Int’l, Inc. v. Osterman,
534 F. Supp. 581 (S.D.N.Y. 1982) ....................................................................................... 5
Woodell v. Int’l Brotherhood of Elec. Workers,
502 U.S. 93 (1991) ............................................................................................................... 3
Other Authorities
Charles Alan Wright, et al., Federal Practice & Procedure § 2311 (3d ed. 2013) ........................ 5
Moore’s Federal Practice - Civil § 38.30 (3d ed. 2013) ................................................................ 4
N.Y. Pattern Jury Instr. – Civil 4:2 (3d ed. 2013) ........................................................................... 7
Rules
Fed. R. Civ. P. 39(a)–(b) ................................................................................................................. 6
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PRELIMINARY STATEMENT
The sole question presented here is straightforward: Whether Defendants have a Seventh
Amendment right to a jury trial despite the fact that Chevron Corporation (“Chevron”) has
waived money damages and has declared its intention to pursue only equitable relief at the up-
coming trial. The answer to this question is a resounding “no.” “The fact that only an equitable
remedy is available eviscerates the defendants-appellants’ contention that the Seventh Amend-
ment confers a right to a jury trial in this case.” F.T.C. v. Verity Int’l, Ltd., 443 F.3d 48, 67 (2d
Cir. 2006). Indeed, this has been a settled question since the Seventh Amendment’s ratification
in 1791. See, e.g., Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Comm’n, 430
U.S. 442, 460 (1977) (“[T]he Seventh Amendment was never intended to establish the jury as the
exclusive mechanism for factfinding in civil cases.”).
Defendants also claim that if this Court allows Chevron to reinstate its claim for unjust
enrichment it will somehow trigger a jury trial right. Defendants are wrong. Courts have con-
sistently held that disgorgement of profits via unjust enrichment is an equitable claim. See, e.g.,
Empresa Cubana Del Tabaco v. Culbro Corp., 123 F. Supp. 2d 203, 206 (S.D.N.Y. 2000); see
also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 60 (2d Cir. 1997) (under New York law, unjust
enrichment is a “non-contractual, equitable remed[y]”). And that is all Chevron seeks by way of
reinstatement of its unjust enrichment claim—an equitable remedy to prevent these Defendants
from being unjustly enriched now that they have obtained beneficial ownership of Chevron IP
trademarks through foreign enforcement proceedings in Ecuador.
Devoid of any plausible “right” to have a jury decide Chevron’s equitable claims, De-
fendants have filed yet another press release under the guise of a legal brief. They continue to
hurl baseless insults at this Court—contending, for instance, that the result of any bench trial
would “lack legitimacy and credibility,” Dkt. 1491 at 1—just eight days after the Second Circuit
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rejected this scurrilous strategy the same day the matter was argued. In addition, Defendants
claim that a jury right attaches because Chevron has called Donziger a “criminal” and “stigma-
tized” him. To be sure, Donziger is a criminal. But this case is a civil proceeding subject to
well-established Seventh Amendment principles, which do not provide a jury trial right here now
that Chevron is pursuing only equitable relief. Defendants also lodge several critiques about the
form of injunction that Chevron seeks and whether it is available, but this has nothing to do with
the jury-trial question presented here. Those are questions to be resolved by the Court later if
and when it finds liability. There is no question now, though, that this is a bench trial.
In sum, waiver of money damages means Defendants have no right to a jury trial. The
Court should so find, and the bench trial should proceed as scheduled on October 15.
ARGUMENT
A. There Is No Right to a Jury Trial Where the Plaintiff Seeks Only Equitable Relief.
The civil RICO statute, 18 U.S.C. § 1964, and New York Judiciary Law section 487 do
not provide a statutory jury-trial right. Accordingly, the only possible “right” to a jury trial that
could exist here would be under the Seventh Amendment. But the Seventh Amendment does not
provide a jury-trial right where a plaintiff seeks only equitable relief, as Chevron does here.
The Seventh Amendment provides that “[i]n Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” U.S.
Const., Amend. 7. “[T]he right of trial by jury thus preserved is the right which existed under the
English common law when the Amendment was adopted.” Markman v. Westview Instruments,
Inc., 517 U.S. 370, 376 (1996). In other words, the Seventh Amendment preserves the right to
jury trials in “[s]uits at common law,” which refers to “suits in which legal rights were to be as-
certained and determined, in contradistinction to those where equitable rights alone were recog-
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nized, and equitable remedies were administered.” Granfinanciera v. Nordberg, 492 U.S. 33, 41
(1989) (emphasis in original; quotation marks and citation omitted).
Federal courts employ a two-part test to determine whether the Seventh Amendment pro-
vides a jury-trial right for a particular claim, examining both the nature of the claim and the rem-
edy sought. Courts first must “compare the statutory action to 18th-century actions brought in
the courts of England prior to the merger of the courts of law and equity” and second, must “ex-
amine the remedy sought and determine whether it is legal or equitable in nature.” Woodell v.
Int’l Brotherhood of Elec. Workers, 502 U.S. 93, 97 (1991). “The second inquiry [remedy] is the
more important in our analysis.” Id.; see also Granfinanciera, 492 U.S. at 42 (“The second stage
of this analysis is more important than the first.”); Pereira v. Farace, 413 F.3d 330, 337 (2d Cir.
2005) (courts must “giv[e] greater weight to” the second inquiry).1
Indeed, the second inquiry (the form of remedy) is dispositive where—as here—a plain-
tiff seeks only equitable relief. See, e.g., S.E.C. v. Commonwealth Chem. Sec., Inc., 574 F.2d 90,
94–95 (2d Cir. 1978) (Friendly, J.) (explaining the longstanding view that “a suit for an injunc-
tion, whether by the Government or a private party, was the antithesis of a suit ‘at common law’
in which the Seventh Amendment requires that the right to trial by jury”); Conroy v. New York
State Dep’t of Corr. Servs., 333 F.3d 88, 99 n.1 (2d Cir. 2003) (noting that a plaintiff “[sought]
1 Defendants rely on Design Strategies, Inc. v. Davis, 367 F. Supp. 2d 630 (S.D.N.Y. 2005), for the proposition
that the “label that attaches to a given cause of action or remedy may not by itself tell us whether the claim is legal
or equitable.” Dkt. 1491 at 3 (citing Design Strategies, 367 F. Supp. 2d at 637). Chevron, however, is not relying
merely on labels, but on the fact that will be seeking traditional equitable remedies rather than money damages. A
look behind the labels does not compel a finding that there is a right to a jury trial, as Defendants’ own case demon-
strates. The court in Design Strategies proceeded to analyze the plaintiff’s claims for which it did not seek money
damages and concluded that they were “equitable in nature [and] there is no longer any basis on which [plaintiff]
may correctly claim to be entitled to a jury.” Id. at 646.
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only equitable relief, and therefore, is not entitled to a jury trial under the Seventh Amendment”);
Verity Int’l, 443 F.3d at 67.2
Courts have thus held that civil RICO defendants do not have a right to a jury trial where
the plaintiff seeks only equitable relief, including relief in the form of disgorgement. See United
States v. Philip Morris, Inc., 273 F. Supp. 2d 3, 8 (D.D.C. 2002) (concluding that disgorgement
under RICO is “equitable in nature”); United States v. Int’l Brotherhood of Teamsters, 708 F.
Supp. 1388, 1408 (S.D.N.Y. 1989) (where government sought an injunction and disgorgement in
civil RICO suit, the relief sought was “equitable in nature, thereby not giving rise to the right to a
jury trial”); see also Moore’s Federal Practice - Civil § 38.30 (3d ed. 2013) (civil RICO claims
do not warrant a jury trial where only equitable relief is sought); United States v. Carson, 52 F.3d
1173, 1181 (2d Cir. 1995) (“Included within [a court’s] broad equitable power [under 18 U.S.C.
§ 1964] is the power to order defendants to disgorge any proceeds from the unlawful conduct of
or participation in the enterprise’s affairs.” (quotation marks and citation omitted)).3
Similarly, “claims grounded in fraud are not distinctively legal or equitable,” and “the ju-
ry right turns on the remedy sought and the context in which the claim of fraud arises.” In re
Friedberg, 131 B.R. 6, 12 (S.D.N.Y. 1991) (quotation marks and citation omitted); see also
Skippy, Inc. v. CPC Int’l, Inc., 674 F.2d 209, 214 (4th Cir. 1982) (“[T]he jury right [in fraud
2 Defendants cite a single case where a court required a jury trial on equitable claims after a plaintiff withdrew its
request for damages. Dkt. 1491 at 4. But the case is inapposite. In Stonewall Ins. Co. v. Nat’l Gypsum Co., the
plaintiff sought a declaratory judgment that its insurers were “obligated to pay certain sums and indemnify [the
plaintiff] for sums within the policy limits.” No. 86 Civ. 9671 (JSM), 1992 WL 281401, at *1 (S.D.N.Y. Sept. 25,
1992). At bottom, the claim sought monetary relief under a contract—and such claims were deemed common law
claims pre-merger—thus giving rise to a jury trial right. Id. The court acknowledged, however, that “[w]ere [the
plaintiff’s] remaining claims solely equitable in nature, the Court would be compelled to grant [the plaintiff’s] de-
mand for a bench trial.” Id.
3 Moreover, at least one court has expressly found a civil RICO action not to be an action at law under the first
prong of the Seventh Amendment inquiry. See Philip Morris, 273 F. Supp. 2d at 6–7.
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claims] turns on the remedy sought.”).4 Here, to the extent Chevron seeks only equitable relief—
not damages—this is “relief of a kind historically available only in equity,” and therefore “there
is no right to a jury” on a common-law fraud claim. Charles Alan Wright, et al., Federal Prac-
tice & Procedure § 2311 (3d ed. 2013); see also Plechner v. Widener College, Inc., 569 F.2d
1250, 1258 (3d Cir. 1977) (no right to jury where claimant can be made whole by specific relief
available in equity); Black v. Boyd, 248 F.2d 156, 161–62 (6th Cir. 1957) (no jury right attached
to fraud claim seeking only equitable relief); cf. United States v. Stein, 452 F. Supp. 2d 276, 279
(S.D.N.Y. 2006) (“Actions for specific performance and for injunctions always have been equi-
table in nature. The Seventh Amendment therefore affords [defendant] no right to a jury trial.”).5
In short, the Seventh Amendment does not provide a right to a jury trial where, a party
has waived money damages, as Chevron has done here, and seeks only equitable relief on its
RICO, fraud, and other claims.
4 Defendants cite three cases as support for their argument that they are entitled to a jury trial on Chevron’s RICO
claims. Dkt. 1491 at 5. In all three of those cases, however, the plaintiff sought money damages, not merely injunc-
tive relief. See Maersk, Inc. v. Neewra, Inc., 687 F. Supp. 2d 300, 340–41 (S.D.N.Y. 2009) (noting that the plain-
tiffs sought money damages, which the court recognized was the “more important” consideration and what ultimate-
ly gave rise to a jury trial right); Molloy v. Primus Auto. Fin. Servs., 247 B.R. 804, 807 (Bankr. C.D. Cal. 2000)
(“Plaintiff seeks compensatory and punitive damages . . . .”); NSC Int’l Corp. v. Ryan, 531 F. Supp. 362, 363 (D. Ill.
1981) (“Monetary damages for injury to property have traditionally been considered a legal remedy for purposes of
the seventh amendment.”).
5 Ignoring these settled principles and well developed case law, Defendants argue that the Seventh Amendment
provides a right to a jury trial on Chevron’s fraud claim because Chevron will have to show “irreparable harm and
inadequacy of legal remedies” in order to obtain an injunction. Dkt. 1491 at 6. Defendants assert that Chevron “has
not” and “cannot” make this showing. Id. But whether or not Chevron is able to prove entitlement to equitable re-
lief at trial (and Chevron believes that it will) has nothing to do with the Seventh Amendment and whether a jury or
court decides this issue. Even further afield is Defendants’ reliance on Beacon Theatres, Inc. v. Westover, 359 U.S.
500 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962). Dkt. 1491 at 6. These cases address whether a
defendant is entitled to a jury trial on equitable issues that are in “common” with issues presented in a plaintiff’s
claims for damages, which must be tried to a jury. When courts are confronted with such “common” issues, “the
legal claims involved in the action must be determined prior to any final court determination of respondents’ equita-
ble claims.” Dairy Queen, 369 U.S. at 479. Again, this rule is inapplicable here because it presupposes a legal
claim for damages—which Chevron has waived. For this same reason, Windsurfing Int’l, Inc. v. Osterman, 534 F.
Supp. 581 (S.D.N.Y. 1982), cited on pages 4–5 of Defendants’ brief, is also irrelevant. See id. at 585 (denying re-
quest to strike jury demand where the complaint sought both damages and injunctive relief, and the plaintiff’s deci-
sion to seek declaratory relief first did not “extinguish” the jury trial right on the other claims).
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B. Any Seventh Amendment Right to a Jury Trial a Party May Have Had at the Outset
of a Case Is Eliminated Once Damages Are Waived.
Defendants also suggest that Chevron would be bound by the jury demand in its com-
plaint, even after expressly waiving money damages. See Dkt. 1491 at 1 (“Fundamental fairness
requires a jury trial. Chevron demanded a jury when it filed the instant matter more than two
years ago.”). Defendants are wrong. “[T]he right to a jury trial does not depend only on the ini-
tial pleadings. When subsequent events leave only equitable issues to be resolved, the right to a
jury trial does not exist and is not preserved by the Seventh Amendment or Federal Rule of Civil
Procedure 38.” Whitson v. Knox Cnty. Bd. of Educ., 468 F. App’x 532, 537–38 (6th Cir. 2012);
see Francis v. Dietrick, 682 F.2d 485, 486–87 (4th Cir. 1982) (affirming denial of request for a
jury trial after plaintiff amended his complaint to withdraw a request for legal damages).6
Federal Rule of Civil Procedure 39 makes clear that if before trial the Court “finds that on
some or all of those issues [to be tried] there is no federal right to a jury trial,” then the issues are
to be “tried by the court.” Fed. R. Civ. P. 39(a)–(b). Accordingly, “[i]t is well settled that when
a party withdraws its damages claims and pursues only equitable relief, a jury trial is no longer
available and issues must be tried by the court.” Stonewall, 1992 WL 281401, at *1; see also
People by Abrahms v. 11 Cornwell Co., 695 F.2d 34, 43 (2d Cir. 1982) (“Once the State with-
drew its claim for damages, however, the suit was entirely in equity and there was no right to tri-
al by jury.”), vacated on other grounds, 718 F.2d 22 (2d Cir. 1983); Rosenman Colin Freund
6 See also Kemp v. Tyson Foods, Inc., No. CIV. 5–96–173–JRT (RLE), 2001 WL 1636512, at *2 (D. Minn.
Nov. 19, 2001) (holding that “the nature of [plaintiff’s] claims and withdrawal of its damage claims . . . require[d]
that the jury demand . . . be stricken”); Partecipazioni Bulgari, S.p.A. v. Meige, No. 86–2516–CIV–RYS (KAMP),
1988 WL 113346, at *3 (S.D. Fla. May 23, 1988) (holding that “the right to trial by jury is determined by the issues,
not by the pleadings,” and “a plaintiff may amend his complaint and withdraw his claim for damages, and where the
remaining issues are only equitable in nature there is no right to trial by jury”); Anti-Monopoly, Inc. v. General Mills
Fun Grp., Inc., 195 U.S.P.Q. 633, 633–34 (N.D. Cal. 1976) (holding that the plaintiff no longer had a right to a jury
trial because the defendant withdrew its claim for damages).
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Lewis & Cohen v. Richard, 656 F. Supp. 196, 196 (S.D.N.Y. 1987) (striking jury demand be-
cause “the instant petition is equitable in nature and therefore must be tried to the court”).
C. Chevron’s Unjust Enrichment Claim Would Not Create a Jury Trial Right.
Defendants admit that “an unjust enrichment claim may be equitable in nature” depend-
ing on the “remedy sought.” Dkt. 1491 at 11. Defendants also concede that “pure disgorgement
may be wholly equitable.” Id. And because the only remedies Chevron seeks on its unjust en-
richment claim are equitable—that is, to have its trademarks restored and a constructive trust to
ensure that any ill-gotten gains obtained by the LAPs are disgorged—the reinstatement of Chev-
ron’s unjust enrichment claim does not give Defendants a right to a jury trial.7
Contrary to Defendants’ arguments, Chevron’s request for disgorgement as a remedy for
unjust enrichment is not a “rough proxy” for damages. Dkt. 1491 at 11. Despite Defendants’
attempt to muddy the waters, Dkt. 1491 at 11, the Second Circuit has “resolved” the issue of
whether “disgorgement of profits in a trademark case constitutes a claim for damages entitling
the defendant to a jury trial.” Empresa Cubana Del Tabaco, 123 F. Supp. 2d at 206. Specifical-
ly, in George Basch Co., Inc. v. Blue Coral, Inc., the Second Circuit explained that courts have
the equitable power to grant complete relief by awarding profits for unjust enrichment in trade-
mark infringement suits. 968 F.2d 1532, 1538 (2d Cir. 1992). Accordingly, disgorgement of
profits on an unjust enrichment theory did not entitle the parties to a jury trial in Empresa. 123
F. Supp. 2d at 206. The district court in Daisy Grp., Ltd. v. Newport News, Inc., on which De-
7 Defendants also claim that because of Chevron’s unjust enrichment claim, if the case is tried to the bench, “sig-
nificant parts of the case if not the whole case would have to be re-tried in front of a jury.” Dkt. 1491 at 11. This is
incorrect. The model jury instructions issued by the New York judiciary, on which Defendants rely, presume a legal
claim exists in the case, giving rise to the jury trial right. See N.Y. Pattern Jury Instr. – Civil 4:2 (3d ed. 2013) (stat-
ing that “[t]his charge is for use in unjust enrichment cases” involving “quasi-contractual remedies” and that “[i]t
should never be left for the jury to decide whether equitable considerations warrant a finding of unjust enrichment”).
The issue here is whether there exists any Seventh Amendment right to a jury trial if Chevron seeks only equitable
relief under its claim for unjust enrichment.
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8
fendants also rely, arrived at a different result because the plaintiff sought disgorgement as a
“rough proxy measure of its damages.” 999 F. Supp. 548, 552 (S.D.N.Y. 1998). The plaintiff
had no evidence of lost sales as a result of the alleged trademark infringement, so it sought dis-
gorgement of the defendant’s profits as a “surrogate for damages,” thus the “remedy [was] fun-
damentally compensatory and legal in nature.” Id. (quotation marks and citation omitted). But
the court in Daisy acknowledged that a straightforward “claim for profits based on a theory of
unjust enrichment, a traditionally equitable theory of recovery, is triable without a jury.” Id.
(emphasis added); cf. Alcan Int’l Ltd v. S.A. Day Mfg. Co., 179 F.R.D. 398, 401–02 (W.D.N.Y.
1998) (holding that where a claim for profits for trademark infringement is “a rough proxy
measure [of] damages”—as distinct from a claim profits based on a theory that “defendant has
been unjustly enriched”—the remedy is compensatory).
The harm for which Chevron seeks restitution is neither “the mere entry of the judgment
against it” nor any of its lost profits. Dkt. 1491 at 11. Instead, Chevron has requested that its
property—i.e., its Ecuadorian trademarks—be restored and that any unjust windfall to the LAPs
from the use or sale of those trademarks be disgorged.8 Dkt. 1471. Chevron’s unjust enrichment
claim does not result from, for example, Defendants and Chevron being parties to a broken con-
tract. Rather, Defendants unjustly possess Chevron’s property, which Chevron seeks to have re-
turned. This is an equitable action. See R.B. Ventures, 112 F.3d at 60 (under New York law, un-
just enrichment is a “non-contractual, equitable remed[y]”). Because “the court is not awarding
8 Defendants also rely on Dimick v. Schiedt, 293 U.S. 474 (1935), and Barry v. Edmunds, 116 U.S. 550 (1886), to
argue that a determination of the extent of LAPs’ unjust enrichment is a “factual matter[] that cannot be abrogated
from the jury.” Dkt. 1491 at 12. But Dimick and Barry addressed whether a court may reject or alter a verdict is-
sued by an already empaneled jury, which only begs the question. See Dimick, 293 U.S. at 486; Barry, 116 U.S. at
565. Thus, both cases are inapposite, because each involved claims for money damages in which it was clear that a
Seventh Amendment jury right existed in the first instance. But whatever limitations may apply when a court be-
lieves a jury has come to the wrong decision, those limitations are inapplicable here.
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damages to which plaintiff is legally entitled but is exercising [its] discretion to prevent unjust
enrichment,” the disgorgement sought here is an equitable remedy. Commonwealth Chem. Sec.,
574 F.2d at 95 (Friendly, J.); see also Carson, 52 F.3d at 1181; Philip Morris, 273 F. Supp. 2d at
8; Teamsters, 708 F. Supp. at 1408.
D. Defendants’ Remaining Arguments Are Baseless and Irrelevant.
Lacking any plausible support under the Seventh Amendment, Defendants also invoke
various other Amendments, and notions of “fairness,” in an effort to conjure up a jury trial right
that does not exist. Defendants’ various arguments can be easily dispatched.
First, Defendants claim that“[f]undamental fairness requires a jury trial” because this
Court is biased against them. Dkt. 1491 at 1; see also id. (arguing that the Court has “promoted,
encouraged, and amplified” Chevron’s “global smear campaign” against Donziger); id. at 2
(claiming that Chevron is “retreat[ing] to the safe offices of [this] court” instead of “an impartial
fact finder”); id. (“Your Honor (with all his documented biases readily obvious) . . . .”); id. (ar-
guing that any decision by this Court “will lack legitimacy and credibility”). As the Court is well
aware, this Court’s alleged “bias” formed the cornerstone of Defendants’ failed petition and reas-
signment request, which the Second Circuit denied last week. Defendants’ attacks on this Court
are disgraceful and sanctionable, and at the very least they do not give rise to a jury trial “right.”
Second, Defendants claim that they have a right to a jury trial because Chevron has called
Donziger a “criminal” in open court and elsewhere, and because Chevron has “stigmatiz[ed]”
Defendants with “the ‘terrorizing’ effect of civil RICO.” Dkt. 1491 at 1, 3. As noted above,
Donziger is a criminal, and the supporting evidence is overwhelming. But Chevron is a civil
plaintiff seeking equitable relief on civil claims. No Seventh (or Sixth) Amendment right to jury
trial attaches merely because the plaintiff in a civil case refers to the defendant as a “criminal.”
And as discussed above, courts have held that there is no jury trial right in a civil RICO action
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where the plaintiff seeks only equitable relief. See, e.g., Philip Morris, 273 F. Supp. 2d at 8;
Teamsters, 708 F. Supp. at 1408.
Third, Defendants argue that injunctive relief is unavailable on Chevron’s RICO claim.
Dkt. 1491 at 5. This Court has stated that it “will deal with that question when, as, and if [Chev-
ron] prevail[s] on liability.” Ex. 1 (Hr’g Tr. 12:09–10 Sept. 3, 2013). Accordingly, assuming
Chevron does prevail in the liability phase of the upcoming trial, Defendants will have the oppor-
tunity to persuade this Court that Chevron may not obtain equitable remedies on its RICO claim.
In any event, this question has nothing to do with Defendants’ supposed jury trial right.
Fourth, Defendants claim that the precise form of equitable relief that Chevron seeks is
“obviously and perilously close to the relief that the Court entered and the Second Circuit vacat-
ed in the Count 9 injunction.” Dkt. 1491 at 6. Again, even if true, this is irrelevant to the ques-
tion of whether Defendants have a jury trial right. And as the Second Circuit necessarily found
in denying Defendants’ mandamus petition, Count 9 was a different case—if this Court ultimate-
ly awards Chevron any equitable remedies, such relief will be reviewable on appeal.9
Fifth, Defendants posit a new “rule” that whenever “a civil plaintiff seeks to invoke crim-
inal law or concepts, or even just the stigmatizing language of criminal law,” the right to a jury
trial attaches. Dkt. 1491 at 8–9 (emphasis added). Defendants’ cited authorities say no such
thing. See Boyd v. United States, 116 U.S. 616, 634 (1866) (no mention of the Seventh Amend-
ment, but noting that certain the Fourth and Fifth Amendment protections applied in civil forfei-
ture proceedings); Cunningham v. State, 835 N.E.2d 1075, 1079 (Ind. Ct. App. 2005) (defendant
9 It bears mention that during the Second Circuit argument last week, Judge Parker asked the LAPs’ counsel:
“[A]ssuming arguendo . . . that the judge who entered a judgment had been bribed, would it be beyond the authority
of the court to enjoin the person who paid the bribe from benefitting from the judgment?” Ex. 2 (Hr’g Tr. 24:13–17
Sept. 26, 2013 (2d Cir.)). The LAPs’ counsel eventually conceded: “As a legal proposition -- as against the person
who gave the bribe, I would not have a problem with that.” Id. at 25:03–15.
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in a speeding case had a right to a jury trial under the Indiana Constitution, because “speeding
infractions remain quasi-criminal in nature”).
Finally, Defendants argue that a jury right attaches here because courts have required
“strong procedural safeguards” when awarding “punitive damages,” which are “quasi-criminal
punishment.” Dkt. 1491 at 10 (quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54 (1999)).
But such “safeguards” do not include a jury trial right—and in any event this is entirely beside
the point where Chevron is not seeking any damages, punitive or otherwise. Likewise, Defend-
ants cannot locate a jury trial right anywhere in the Eighth Amendment. Dkt. 1491 at 10 (citing
Austin v. United States, 509 U.S. 602 (1993) (discussing the Eighth Amendment’s Excessive
Fines Clause in the context of a civil forfeiture remedy)).10
CONCLUSION
For these reasons, the Court should find that Defendants do not retain a Seventh Amend-
ment right to a jury trial as Chevron has waived money damages and has indicated it will be pur-
suing only equitable relief at the upcoming trial, and accordingly that this case will be tried to the
Court.
Dated: October 5, 2013 Respectfully submitted,
New York, New York
/s/ Randy M. Mastro
Randy M. Mastro
Andrea E. Neuman
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166
10 Defendants also quote Judge Heaney’s dissent in United States v. Private Sanitation Indus. Ass’n, Dkt. 1491 at
10, but omit the italicized text: “Government-prosecuted civil RICO actions in which the remedies go beyond rough
compensation must be considered quasi-criminal.” 44 F.3d 1082, 1086 (2d Cir. 1986) (Heaney, J., dissenting) (em-
phasis added). The quoted language is irrelevant here because this is not a “Government-prosecuted” action. In any
event, Judge Heaney’s view—which he acknowledged was “contrary” to the law of the Circuit—was that the con-
ventional summary judgment standards should not apply to a government-prosecuted RICO case. Id. at 1085, 1089.
That view has no bearing on Defendants’ right to a jury at the upcoming trial.
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Telephone: 212.351.4000
Facsimile: 212.351.4035
William E. Thomson
333 South Grand Avenue
Los Angeles, California 90071
Telephone: 213.229.7000
Facsimile: 213.229.7520
Attorneys for Chevron Corporation
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EXHIBITS
Index of Exhibits to Chevron Corporation’s Response to Defendants’
Memorandum of Law in Response to the Court’s Oral Order to Show Cause
on Why Defendants Should Not Be Deprived of a Jury
Despite Chevron’s Withdrawal of Its Money Damages Claims
Exhibit 1: Excerpts from the transcript of a hearing held before the Southern District of
New York on September 3, 2013 in Chevron Corp. v. Donziger, No. 11 Civ. 691 (LAK).
Exhibit 2: Excerpts from the transcript of a hearing held before the Second Circuit
Court of Appeals on September 26, 2013 in Naranjo v. Chevron Corp., No. 13-772-cv.
Case 1:11-cv-00691-LAK-JCF Document 1496 Filed 10/05/13 Page 18 of 18