Might President Trump Suspend Again Title III Of The Libertad Act? Comments From Officials At WH & DOJ

Might President Trump Again Suspend Title III Of The Libertad Act?

Officials From The White House And DOJ Comment

No More Title IV Letters?

EU Could Request

During G7 Or At United Nations General Assembly

Nine Lawsuits Thus Far

Potential Pool Is 5,913 (Certified) To ±200,000 (Non-Certified) 

Another suspension of Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”) may provide value to the United States as it seeks resolution for commercial, economic and political issues impacting Cuba, Iran, Syria and Venezuela- where cooperation from the current 28 members of the European Union (EU) is imperative- and most of the Libertad Act and Libertad Act-related lawsuits thus far impact companies located within the EU.  Transforming the Libertad Act into a tradeable commodity may be advantageous to the Trump Administration. 

From a senior-level official at The White House: “Would we again suspend Title III? Yes. Resolving Venezuela, and tangentially Iran and Syria, is today far more important to the Hemisphere than is today resolving sixty-year-old claims.  If a relevant government or group of governments could link directly another suspension of Title III to the removal of [Venezuela President Nicolas] Maduro, we’d review that very carefully.  We would not dismiss it.  Nothing is off-the-table.  However, we have no indication that Title III is yet a meaningful source of indigestion to members of the EU.” 

There are 5,913 claims certified by the United States Foreign Claims Settlement Commission (USFCSC).  There are an unknown number of non-certified claims, but the United States Department of State reported a potential 200,000 non-certified claimants who could file lawsuits. 

Since 2 May 2019, when lawsuits were permitted, there have been four (4) lawsuits filed by certified claimants, five (5) lawsuits filed by non-certified claimants, and one lawsuit filed in Spain using a statute similar to the Libertad Act.  Some of the lawsuits have multiple plaintiffs and defendants.  There have been far fewer filings than anticipated.  Expectations are for approximately twenty-six lawsuits. 

From a senior-level official of the United States Department of Justice: “We’ve been underwhelmed by how few lawsuits have been filed; it’s been sort of a bust in terms of political opticsWe were led to believe by certain parties that no suspension would immediately result in many lawsuits.” 

The Trump Administration could determine that six months is enough time for Title III filings and determine that a further six-month suspension would permit the 28 members of the EU, 164 members of the World Trade Organization (WTO) and 35 members of the Organization of American States (OAS) to work with the United States to encourage the Republic of Cuba to resolve the certified claims. 

The annual United Nations General Assembly (UNGA) in New York City will commence on 17 September 2019, with The Honorable Donald J. Trump, President of the United States, expected to deliver his remarks on 24 September 2019. 

The President will have attended the 45th G7 Summit held in Biarritz, Nouvelle-Aquitaine, France, from 24 August 2019 to 26 August 2019. 

Libertad Act 

The Trump Administration has made operational Title III and further implemented Title IV of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).   

Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  Since 1996, the United States Department of State has on occasion issued letters requesting information from companies as to their activities in the Republic of Cuba and has informed companies that they could receive letters.  The total number of letters issued since 1996 is reportedly less than twelve (12).  One Canada-based company is currently subject to this provision based upon a certified claim.  There is limited legal recourse for appealing a Title IV determination.  The United States Department of State refuses to divulge how many letters have been sent and/or to whom the letters have been sent. 

Suspension History 

Title III had been suspended every six months since the Libertad Act was enacted in 1996- by President William J. Clinton, President George W. Bush, President Barack H. Obama and President Donald J. Trump.   

On 4 March 2019, The Honorable Mike Pompeo, United States Secretary of State, reported that there would be a suspension for thirty (30) days.

On 3 April 2019, Secretary Pompeo reported a further suspension for fourteen (14) days through 1 May 2019.

On 17 April 2019, the Trump Administration reported that it would no longer suspend Title III. 

On 2 May 2019 certified claimants and non-certified claimants were permitted to file lawsuits in United States courts. 

Certified Claims Background 

There are 8,821 claims of which 5,913 awards valued at US$1,902,202,284.95 were certified by the USFCSC and have not been resolved for nearing sixty years (some assets were officially confiscated in the 1960’s, some in the 1970’s and some in the 1990’s.  The USFCSC permitted simple interest (not compound interest) of 6% per annum (approximately US$114,132,137.10); with the approximate current value of the 5,913 certified claims US$8,521,866,236.75.  

The first asset to be expropriated by the Republic of Cuba was an oil refinery in 1960 owned by White Plains, New York-based Texaco, Inc., now a subsidiary of San Ramon, California-based Chevron Corporation (USFCSC: CU-1331/CU-1332/CU-1333 valued at US$56,196,422.73).  

The largest certified claim (Cuban Electric Company) valued at US$267,568,413.62 is controlled by Boca Raton, Florida-based Office Depot, Inc.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International; the certified claim also includes land adjacent to the Jose Marti International Airport in Havana, Republic of Cuba.  The smallest certified claim is by Sara W. Fishman in the amount of US$1.00 with reference to the Cuban-Venezuelan Oil Voting Trust. 

The two (2) largest certified claims total US$449,377,207.76, representing 24% of the total value of the certified claims.  Thirty (30) certified claimants hold 56% of the total value of the certified claims.  This concentration of value creates an efficient pathway towards a settlement.   

Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 requires that an asset had a value of US$50,000.00 when expropriated by the Republic of Cuba without compensation to the original owner.  Of the 5,913 certified claims, 913, or 15%, are valued at US$50,000.00 or more.  Adjusted for inflation, US$50,000.00 (3.70% per annum) in 1960 has a 2019 value of approximately US$427,267.01.  The USFCSC authorized 6% per annum, meaning the 2019 value of US$50,000.00 is approximately US$1,649,384.54.  

The ITT Corporation Agreement 

In July 1997, then-New York City, New York-based ITT Corporation and then-Amsterdam, the Netherlands-based STET International Netherlands N.V. signed an agreement whereby STET International Netherlands N.V. would pay approximately US$25 million to ITT Corporation for a ten-year right (after which the agreement could be renewed and was renewed) to use assets (telephone facilities and telephone equipment) within the Republic of Cuba upon which ITT Corporation has a certified claim valued at approximately US$130.8 million.  ETECSA, which is now wholly-owned by the government of the Republic of Cuba, was a joint venture controlled by the Ministry of Information and Communications of the Republic of Cuba within which Amsterdam, the Netherlands-based Telecom Italia International N.V. (formerly Stet International Netherlands N.V.), a subsidiary of Rome, Italy-based Telecom Italia S.p.A. was a shareholder.   Telecom Italia S.p.A., was at one time a subsidiary of Ivrea, Italy-based Olivetti S.p.A.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International.  

TITLE III--SEC. 302. LIABILITY FOR TRAFFICKING IN CONFISCATED PROPERTY CLAIMED BY UNITED STATES NATIONALS. 

(a) Civil Remedy.-- (1) Liability for trafficking.--(A) Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of-- (i) the amount which is the greater of-- (I) the amount, if any, certified to the claimant by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949, plus interest; (II) the amount determined under section 303(a)(2), plus interest; or (III) the fair market value of that property, calculated as being either the current value of the property, or the value of the property when confiscated plus interest, whichever is greater; and (ii) court costs and reasonable attorneys' fees.  (B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, United States Code, computed by the court from the date of confiscation of the property involved to the date on which the action is brought under this subsection.   

(2) Presumption in favor of the certified claims.--There shall be a presumption that the amount for which a person is liable under clause (i) of paragraph (1)(A) is the amount that is certified as described in subclause (I) of that clause. The presumption shall be rebuttable by clear and convincing evidence that the amount described in subclause (II) or (III) of that clause is the appropriate amount of liability under that clause. 

(3) Increased liability.-- (A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949, be liable for damages computed in accordance with subparagraph (C).   

(B) If the claimant in an action under this subsection (other than a United States national to whom subparagraph (A) applies) provides, after the end of the 3-month period described in paragraph (1) notice to-- (i) a person against whom the action is to be initiated, or (ii) a person who is to be joined as a defendant in the action, at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30- day period beginning on the date the notice is provided, traffics in the confiscated property that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with subparagraph (C).   

(C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of-- (i) the amount determined under paragraph (1)(A)(ii), and (ii) 3 times the amount determined applicable under paragraph (1)(A)(i).  (D) Notice to a person under subparagraph (B)-- (i) shall be in writing; (ii) shall be posted by certified mail or personally delivered to the person; and (iii) shall contain-- (I) a statement of intention to commence the action under this section or to join the person as a defendant (as the case may be), together with the reasons therefor; (II) a demand that the unlawful trafficking in the claimant's property cease immediately; and (III) a copy of the summary statement published under paragraph (8).  (4) Applicability.--(A) Except as otherwise provided in this paragraph, actions may be brought under paragraph (1) with respect to property confiscated before, on, or after the date of the enactment of this Act. 

(B) In the case of property confiscated before the date of the enactment of this Act, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before such date of enactment.  (C) In the case of property confiscated on or after the date of the enactment of this Act, a United States national who, after the property is confiscated, acquires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section.   

(5) Treatment of certain actions.--(A) In the case of a United States national who was eligible to file a claim with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but did not so file the claim, that United States national may not bring an action on that claim under this section.  (B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section. 

(C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on the date of the enactment of this Act. 

(D) An interest in property for which a United States national has a claim certified under title V of the International Claims Settlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified.  (6) Inapplicability of act of state doctrine.--No court of the United States shall decline, based upon the act of state doctrine, to make a determination on the merits in an action brought under paragraph (1). 

(7) Licenses not required.--(A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, without obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the execution of a judgment against, or the settlement of actions involving, property blocked under the authorities of section 5(b) of the Trading with the Enemy Act that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on the date of the enactment of this Act.

LINK To Complete Analysis

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U.S. Department Of Commerce Adds Huawei Cuba To Restricted List; Impact Uncertain Upon U.S. Telecommunications Companies

United States Department of Commerce

Bureau of Industry and Security

Washington DC 

21 August 2019 

Rule: Addition of Certain Entities to the Entity List and Revision of Entries on the Entity List 

FR Document: 2019-17921
Citation: 84 FR 43493

PDF Pages 43493-43501 (9 pages)
Permalink

Abstract: Huawei Technologies Co., Ltd. (Huawei) and sixty-eight of its non-U.S. affiliates were added to the Entity List effective May 16, 2019. Their addition to the Entity List imposed a licensing requirement under the Export Administration Regulations (EAR) regarding the export, reexport, or transfer (in-country) of any item subject to the EAR to any of these sixty-nine listed Huawei entities. The Bureau of Industry and Security (BIS) is now adding forty-six additional non-U.S. affiliates of Huawei...

LINK 

Temporary General License: Extension of Validity, Clarifications to Authorized Transactions, and Changes to Certification Statement Requirements

FR Document: 2019-17920
Citation: 84 FR 43487

PDF Pages 43487-43493 (7 pages)
Permalink

Abstract: On May 16, 2019, Huawei Technologies Co., Ltd. (Huawei) and sixty-eight of its non-U.S. affiliates were added to the Entity List. Their addition to the Entity List imposed a licensing requirement under the Export Administration Regulations (EAR) regarding the export, reexport, or transfer (in-country) of any item subject to the EAR to any of these 69 listed Huawei entities. The Entity List-based licensing requirement applied in addition to any other license requirement, if any, applicable...

LINK

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Update About Airbnb Presence In Cuba: 36,400 Listings Today

The following is an update relating to the activities in the Republic of Cuba by San Francisco, California-based Airbnb, Inc. 

20 August 2019 

From Airbnb to the U.S.-Cuba Trade and Economic Council: 

“Statement  

In April 2015, Airbnb was excited to welcome Cuban hosts to the global community and since then, Airbnb has provided an opportunity for Cuban hosts to earn important supplemental income, as they open their homes to travelers from around the world.  

Background  

Data released in 2017 showed that Airbnb hosts welcomed 560,000 guests since 2015.  From January 2018-January 2019, Cuban hosts welcomed more than 728,000 in just one year.  In 2017, there were 22,000 listings, today there are 36,400.  The average Cuban Airbnb host has lived in the community where they host for 31 years.”  

February 2019 

Airbnb reportedly represents more than 22,000 properties in the Republic of Cuba; and the properties reportedly generated combined gross revenues of approximately US$47 million annually from 2015 through 2019.    

February 2018 

Airbnb reported 32,000 residences were registered in the Republic of Cuba.  If each residence received US$50.00 for one (1) night, and each residence were occupied for 100 nights per year, the gross revenues would be approximately US$160 million. 

June 2017 

Airbnb In Cuba By The Numbers 

$40 million Paid to Cuban individuals from sharing their home, since April 2015

33 nights The average number of nights Cuban hosts share their space per year

$164 The average amount paid per booking to a Cuban host

43 years old The average age of Cuban hosts

$2,700 The average annual payout for a Cuban host

58% Of Cuban Airbnb hosts are women 

Link To Report From Airbnb 

October 2016 

From Airbnb: 

Airbnb had approximately 10,000 listings throughout the Republic of Cuba. 

1) What is the total value of the rental revenue paid to the owners of the residences since Airbnb commenced operations in the Republic of Cuba? 

Our typical fee structure from around the world applies in Cuba, details here: https://www.airbnb.com/help/article/384/what-are-the-service-fees. From there, Airbnb hosts in Cuba will be expected to follow the same rules that apply to all owners of casas particulares in Cuba. Currently, those who use the system of private houses in Cuba must pay 10% of what is earned per month to the government. 

2) What is the average per night rate for the properties in the Republic of Cuba?  In Havana? 

We don’t disclose average per night rate as that can vary greatly depending on the type of listing (entire house, private room, shared room, etc) and won’t give an accurate picture. However, we can confirm that the average booking in Cuba is about US$250, that’s game-changing income for ordinary Cubans. 

3) How are the funds delivered from Airbnb to the owners of the properties in the Republic of Cuba? 

Through intermediaries we are able to deposit funds into many of our Cuban hosts’ bank accounts. For hosts who aren’t able to accept funds this way we have partnered with a 3rd party to remit payments in the manner that our Cuban hosts select including door-to-door delivery of payments. As banking infrastructure in Cuba evolves we will reevaluate our payment procedures to suit the needs of our Cuban host community. 

Guest service fee: We add a percentage-based service fee to guest payments every time a reservation is booked. This helps cover the cost of running our site and services. 

The exact percentage depends on the subtotal of the reservation. The higher the subtotal, the lower the percentage so you can save money when booking large reservations. You'll see the exact amount in the price breakdown on the checkout page before you confirm and pay, and on your billing receipt. 

If you cancel a reservation you booked as a guest, the service fee is non-refundable. If your reservation is canceled by the host and you choose to be refunded, the service fee is refunded in full. 

To help cover the costs of running Airbnb, we charge guests a service fee every time a reservation is confirmed. The amount of this service fee varies and is based on a percentage of the reservation subtotal (before fees and taxes). 

The exact amount of the service fee is displayed before guests confirm a booking. Guest service fees are typically 6-12% but can be higher or lower depending on the specifics of the reservation. The higher the subtotal, the lower the percentage so you can save money when booking large reservations.  We also charge hosts a host service fee to cover the cost of processing payments. 

Host service fee: We deduct a 3% service fee from host payouts every time a reservation is booked at their listing. This helps cover the cost of processing guest payments. 

You can see the exact amount by clicking on the reservation code in your Transaction History from the desktop version of Airbnb. 

VAT: Depending on the country of residence of the host or guest, VAT on the service fees may be included as an additional amount over and above the total Airbnb service fee. Your guest or host service fee includes VAT, when applicable. 

Conversion fee: For guests paying in a currency different from the default currency of the country where the listing is located, a 3% currency conversion fee applies in addition to any system wide base exchange rate in effect. 

PBS Newshour

17 December 2016

Arlington, Virginia 

AMY GUTTMAN: Though the Cuban government has announced plans to double the island’s hotel capacity by 2020, the current shortage of rooms is a boon for another American-run company, Airbnb. The online platform for homestay bookings has listings in more than a hundred countries. But it says Cuba has become its fastest growing market, as measured by listings. 

BRIAN CHESKY: “We estimate now that 20-percent of all Americans that are staying in Cuba are staying in a home with a Cuba host.”

LINK To Complete Report

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OFAC Releases Biennial Report For Trade Sanctions Reform And Export Enhancement Act (TSREEA)

Eighth Biennial Report for Licensing Activities Undertaken Pursuant to the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA). 

OFAC has released a Biennial Report of Licensing Activities pursuant to Section 906(c) of the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), covering activities undertaken by the Treasury Department's Office of Foreign Assets Control (OFAC) under Section 906(a)(1) of the TSRA from October 2014 through September 2016. Under the procedures established in its TSRA-related regulations, OFAC processes license applications requesting authorization to export agricultural commodities, medicine, and medical devices to Iran and Sudan under the specific licensing regime set forth in Section 906 of the TSRA. 

LINK To Report In PDF Format

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Diageo Of UK Creates Joint Venture To Distribute Rum Brand From Cuba; No Mention Of Impact By Libertad Act

Statement by Diageo to the U.S.-Cuba Trade and Economic Council:

“We are of course conscious of all relevant US legislation in relation to Cuba and this transaction has been conducted with the utmost care to ensure we are compliant with all applicable law in relation to Cuba and the US.

We are aware of our obligations and we have taken measures to ensure we do not violate applicable regulations, including, for example, the use of clear prohibitions to ensure no US employees are involved at any stage and in any way.”

Media Release

New joint venture formed to distribute Santiago de Cuba rum 

“12 August 2019: We are pleased to announce the creation of a joint venture, Ron Santiago S.A., between a European Diageo subsidiary and Corporación Cuba Ron S.A., a leader in the production of premium Cuban rums.  The joint venture will have exclusive global distribution rights to Santiago de CubaTM, a premium Cuban heritage rum brand[1].   

Globally, premium and above rum segments are growing ahead of the category overall, with premiumisation trends driving growth[2].  Over the past four years, premium and above rum retail sales value has grown 12%, whilst overall category growth was 3%[3].  Cuban rum brands account for 9% of the retail sales value of this growing segment globally[4].  The premium plus rum segment in Europe, the key market for development of the Santiago de CubaTM brand, is growing at 16%, ahead of luxury spirits, at 9%.[5] 

Santiago de CubaTM will join Diageo Europe’s portfolio of Reserve luxury spirits, building on the trend towards premiumisation and the cocktail culture which are driving growth in key cities and resorts across Europe.  With four core variants (Carta Blanca, Anejo, 11-year old and 12-year old) Santiago de CubaTM is the second largest premium Cuban rum, renowned for its high quality and provenance in the traditional rum distilling region of Cuba.  

Dayalan Nayager, Managing Director, Diageo GB, Ireland and France, commented: ‘The joint venture with Corporación Cuba Ron is in keeping with our strategy to invest behind growth opportunities in premium and above brands.  Consumers are looking for new and authentic experiences and working with Corporación Cuba Ron provides a great opportunity to expand our portfolio in segments of the rum category whose growth is being driven by premiumisation globally and in Europe.’ 

Juan Gonzalez Escalona, President of Corporación Cuba Ron SA, said: ‘We are proud to announce the creation of this joint venture, which will bring the award-winning Santiago de CubaTM to consumers around the world.   More than just a rum, Santiago de CubaTM was born in the city where the history and tradition of Cuban light rum originated. It is an expression of its people and part of our Cuban tradition and culture.   We are looking forward to working with our partners to build the success of this premium rum outside Cuba.’ 

[1] The brand will not be distributed in the United States of America.

[2] Retail sales value, IWSR 2018

[3] Retail sales value, CAGR over the last four years, IWSR 2018

[4] IWSR 2018

[5] Retail sales value, IWSR 2018 

About the Diageo group 

The Diageo group [2018 revenues exceeded US$14 billion] is a global leader in beverage alcohol with an outstanding collection of brands across spirits and beer categories.  These brands include Johnnie Walker, Crown Royal, J&B, Buchanan's and Windsor whiskies, Smirnoff, Cîroc and Ketel One vodkas, Captain Morgan, Baileys, Don Julio, Tanqueray and Guinness.

About Corporación Cuba Ron S.A. 

Cuba Ron is a 100% Cuban-owned company, that produces Havana Club, Santiago de CubaTM, Cubay, Isla del Tesoro, and Siglo y ½.  Its factories in Santiago de CubaTM, the birthplace of Cuban Light Rum, are renowed for the distillation of traditional, authentic Cuban rum, with a heritage dating back over 150 years. 

Cuba Ron’s products and rum making knowledge are part of Cuba’s cultural heritage.  All our products carry the Protected Denomination of Origin (DOP) CUBA, are manufactured from sugar cane and are a reflection of our culture.  

For more information about Cuba Ron and its brands, visit our web site: www.cubaron.com or Facebook: @CubaRonS.A @RonSantiagoDeCubaOficial @RonCubayOfficial RonPerlaDelNorteOficial @FestivalRonCubaOficial @RonIslaDelTesoroOficial

Cuba Ron, the original producer.”

LINK To Media Release In PDF Format

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Who Might President Trump Meet At The UN In September? Will He Trade The Lotte For Trump Tower? A Hamburger At "21"​ With Chairman Kim?

Who Might President Trump Meet With At The United Nations In September 2019?

Fourteen Meetings Which Would Be Optimal Optically

A New Form Of “Shock-And-Awe

Trump Tower To Replace Lotte

I will Extend My Hand.  Will You Extend Your Hand?

The “21” Club For A Hamburger With Chairman Kim? 

The annual United Nations General Assembly (UNGA) in New York City will commence on 17 September 2019, with The Honorable Donald J. Trump, President of the United States, expected to deliver his remarks on 24 September 2019. 

What is known- President Trump gravitates towards rupturing tradition and re-engineering decisions of Oval Office predecessors.  Less certain is the impact by those surrounding him- and those to whom he reaches outward and those who reach him through television.   

President Trump will use the speech at the UNGA to discuss reductions in United States military deployments (Afghanistan, Syria), advertise new/revised bilateral and multilateral trade agreements/efforts (South Korea, Japan, USMCA, China, EU, United Kingdom); express concern about a renewal of a global arms race, but reconfirm a commitment by the United States to counter any threat; lament problems with and offer solutions for the United Nations, WTO, EU, and NATO (accepting credit for increasing burden-sharing among members); list countries where the UN should focus attention; mention the efforts of this daughter relating to women’s issues; laud United States military prowess and equipment exports; and describe how and recommend that other countries follow the commercial, economic and political lead of the United States so that their countries may be as muscular and respected as the United States has become since his inauguration on 20 January 2017- he will name the successes and name the failures, which will include both friend and foe.  

The President’s September 2019 speech to the UNGA will be the set-up for his September 2020 speech to the UNGA- which will be less than six weeks prior to the 3 November 2020 election.   

The September 2020 speech will be his list of accomplishments delivered on a global stage unavailable to his opponent.  He will take personal credit for the positives and reject personal responsibility for the failures.  He will project that the United States is again respected; while some in the audience will receive that message as the United States has since 20 January 2017 become more bullying, more threatening, more menacing, and more feared rather than respected.  The event will assuredly not be boring. 

G7 Meeting 

Prior to arriving in New York City in September 2019, the President will steadily increase meetings at The White House with heads of state and heads of government. 

The President will have been energized from attending the 45th G7 Summit held in Biarritz, Nouvelle-Aquitaine, France, from 24 August 2019 to 26 August 2019.   

There are reports that the United States is evaluating a proposal to expand the G7 (Canada, France, Germany, Italy, Japan, United Kingdom and United States, and leadership of the EU).  There are officials who believe the G7 has become an anachronism by not including China and India, the second-largest GDP (China) and fifth-largest GDP (India) and the largest (China) and second largest (India) by population.  It should be the G9.  And, the argument by the Trump Administration that China should no longer be considered a developing country by the WTO is strengthened by including China within an expanded G7.  One perspective for China in the G9: more difficult for China to misbehave on the global stage. 

UNGA In September 2019 

The President wants to be perceived as the global leader who can be a catalyst to bring together parties with disagreements- regardless of whether the United States has a direct or indirect interest in an issue: North Korea (South Korea and Japan), Syria (Iran, Russia and Turkey), Ukraine (Russia), Afghanistan (Pakistan), Kashmir (India, Pakistan), Venezuela (Brazil, China, Colombia, Cuba, Russia, Turkey) among others. 

President Trump has demonstrated an insatiable energy to engage with leadership of other countries.   

This September, his schedule and time spent in New York City may be one of the most robust of any occupant of the Oval Office.   

He may use his three-story penthouse in Trump Tower as he has used his Mar-a-Lago Club in Palm Beach, Florida: For high-profile intimate meetings and meals.  Trump Tower is preferred to a suite or meeting room at the [South Korea-owned] Lotte New York Palace Hotel located less than five blocks from Trump Tower.   

Is there a better optic for the President than welcoming world leaders to the lobby of Trump Tower- from where he announced his campaign in 2015?  He would be in his comfort zone- and that’s important.   

The President accepts criticism that meetings may be photo opportunities, but he believes that once a photograph is taken, it’s permanent and provides a better foundation from which to move forward than lack of that moment. 

This White House staff may object, members of his Cabinet may demure, careerists at departments and agencies may urge caution, members of the United States Congress may deride, allies across the borders and across the seas and oceans may feel exasperated… yet all will energize him. 

The President continues to believe that there are elements within the permanent-class of the United States government who work energetically to undermine his policies; and he believes that other heads of state and heads of government with whom he believes to have personal relationships, or could have, are also undermined by the permanent-class within their respective governments which is a reason commercial, economic and political agreements have been delayed.  Those governments include China, Cuba, Iran, North Korea, Russia, Syria, Turkey, and Venezuela among others.  

From the perspective of President Trump, a strong leader has no fear in meeting with those with whom there are disagreements; a weak leader recoils from a challenge.  Would President Trump chase-down at the United Nations a head of government or head of state for a conversation?  He might well.  The President is a disciple of the school of dexterity. 

President Trump will also continue to remind heads of state and heads of government that predictive modeling analysis was wrong in 2016… and could be wrong again in 2020.  And, whomever takes of oath of office on 20 January 2021 will likely have a United States Senate controlled by the Republican Party and a United States House of Representatives controlled by the Democratic Party and an national electorate nearly evening divided.  So, a country embracing a “wait-him-out” strategy might be catastrophically wrong; and imagine his mood to be accommodative during his second, and final term in office? 

The UNGA will be approximately thirteen (13) months- 407 days until the 2020 Presidential Election, so the Trump Administration will want to demonstrate a global mastery of events- and try to craft solutions to be announced.  The President will continue to, when necessary, separate his relationship with a head of government or head of state with that of actions by the United States government.  President Trump’s schedule may include, among others, individual high-profile meetings with: 

H.E. Miguel Diaz-Canel, President of the Republic of Cuba; H.E. Hassan Rouhani, President of Iran; H.E. Kim Jong-Un, Chairman of the Presidium, North Korea; H.E. Bashar al-Assad, President of Syria; H.E. Vladimir Putin, President of Russia; H.E. Xi Jinping, President of China; H.E. Recep Tayyip Erdogan, President of Turkey; H.E. Volodymyr Zelensky, President of Ukraine; H.E. Nicolas Maduro, President of Venezuela; Mr. Juan Guaido, Interim President of Venezuela 

Venezuela- A meeting with President Maduro and self-declared Interim President Guaido to resolve the commercial, economic and political issues impacting Venezuela.  An expanded gathering might include H.E. Jair Bolsonaro, President of Brazil, H.E. Ivan Duque, President of Colombia, President Putin, President Diaz-Canel, and President Xi. 

Cuba- A meeting with President Diaz-Canel to discuss bilateral relations and commercial, economic and political issues impacting Cuba and Venezuela. 

Syria- A meeting with President al-Assad, President Putin, President Rouhani, and President Erdogan to resolve the commercial, economic and political issues impacting Syria. 

Iran- Despite statements to the contrary, efforts are continuing for a meeting with President Trump and President Rouhani. 

Kashmir- A meeting with H.E. Imran Khan, Prime Minister of Pakistan, and H.E. Narendra Modi, Prime Minister of India. 

Afghanistan- A meeting with H.E. Imran Khan, Prime Minister of Pakistan, and H.E. Ashraf Ghani, President of Afghanistan.  The President would enthusiastically support using his speech at the UNGA to announce the signing of a formal withdrawal of most United States military forces from Afghanistan. 

Russia- A meeting with President Putin to discuss renewal of the Intermediate-Range Nuclear Forces (INF) Treaty. 

Reunification Of Ireland- A meeting with The Honorable Boris Johnson, Prime Minister of the United Kingdom, and The Honorable Leo Varadkar, Taoiseach of Ireland to discuss the reunification Ireland with UK-controlled Northern Ireland.

United Kingdom/United States Trade Agreement- Prime Minister Boris Johnson has an interest in a United States-United Kingdom bilateral trade agreement ready to be implemented at 12:01 am on 31 October 2019.  President Trump would seek to support Prime Minister Johnson.  At minimum, the United States and the United Kingdom would adopt a medium-term bilateral trade agreement that mimics existing EU-based terms. 

USMCA- A meeting with H.E. Andres Manuel Lopez Obrador, President of Mexico, and The Honorable Justin Trudeau, Prime Minister of Canada, to reiterate their support for enacting the United States-Mexico-Canada Agreement (USMCA). 

China- A meeting with President Xi to discuss the bilateral trade agreement and issues relating to the WTO.  A goal of President Trump is for the United States to be perceived as seeking a resolution rather than as an obstacle to a resolution.  President Trump will continue to separate his relationship with President Xi from the United States relationship with China. 

Ukraine- A meeting with President Zelensky and President Putin to seek a resolution to some Russia-Ukraine bilateral issues- prisoner exchanges, return of vessels, border integrity.  

Turkey- A meeting with President Erdogan to discuss military issues, regional issues, and bilateral issues including NATO, Syria and Venezuela.  President Trump wants to determine a means to retain the financial and employment benefits from the export of the F-35 aircraft to Turkey and opportunities for the export of the Patriot missile system. 

North Korea- The United States continues to identify means of transporting Chairman Kim from North Korea to the United States to attend the UNGA.  Two options considered include the use of a United States government aircraft C-32 (military version of the commercial version of the Boeing 757) with seating for fifty-five passengers or an aircraft chartered by the United States government- perhaps an Air China Boeing 747-400 combo aircraft or Singapore Airlines Airbus A350-900 aircraft.  The C-32 would require a refueling stop as its range is approximately 5,500 nautical miles and the distance from Pyongyang to John F. Kennedy International Airport (JFK) is 6,002 nautical miles.  The Boeing 747-400 and Airbus A350-900 can travel nonstop from Pyongyang to JFK (or Joint Base Andrews in Maryland near Washington DC where the Boeing VC-25 is stored- when the President is aboard, the Boeing 747-200 aircraft has the call-sign Air Force One).  President Trump could invite Chairman Kim to Trump Tower on Fifth Avenue and to have a (well-done) hamburger at The “21” Club Restaurant.

LINK To Complete Analysis In PDF Format

Transcript Of First Court Arguments In A Carnival Corporation Libertad Act Lawsuit

This is the complete 100-page transcript of the first motion to dismiss for a Libertad Act lawsuit.  

The words of the judge, plaintiff and defendant are instructive as to how lawsuits using Title III of the Libertad Act may be shaped- and may be decided. 

The U.S.-Cuba Trade and Economic Council requested and made payment for the transcript and is providing it for reference use: LINK   

“He says he owns it. He may be totally wrong. He may be totally wrong, maybe -- well, it may be proven, totally, totally wrong for a lot of reasons.  But it's a claim. We're talking about a claim against the defendant because of the confiscation by the Cuban Government.”  Judge King

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 1:19-CV-21725-JLK 

31 July 2019

10:02 am to 12:20 pm

 

JAVIER GARCIA-BENGOCHEA, Miami, Florida, PLAINTIFF  

vs. 

CARNIVAL CORPORATION, A FOREIGN CORPORATION DOING BUSINESS AS CARNIVAL CRUISE LINES

 

DEFENDANT'S MOTION TO DISMISS ORAL ARGUMENT 

BEFORE THE HONORABLE JAMES LAWRENCE KING

UNITED STATES SENIOR DISTRICT JUDGE 

APPEARANCES: 

FOR THE PLAINTIFF:  

ROBERTO MARTINEZ, ESQ.

STEPHANIE ANNE CASEY, ESQ.

Colson Hicks Eidson

RODNEY MARGOL, ESQ.

Margol & Margol, P.A.

 

FOR THE DEFENDANT:  

STUART HAROLD SINGER, ESQ.

EVAN EZRAY, ESQ.

Boies Schiller & Flexner

 

GEORGE J. FOWLER, III, ESQ.

LUIS EMILIO LLAMAS, ESQ.

Jones Walker, LLP

ALSO PRESENT:  

JAVIER GARCIA-BENGOCHEA, Plaintiff

ARZIZA MARTINEZ, colleague of Martinez

MICHAEL CALVIN, Technician of Singer 

Libertad Act 

The Trump Administration has made operational Title III and further implemented Title IV of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).   

Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  Since 1996, the United States Department of State has on occasion issued letters requesting information from companies as to their activities in the Republic of Cuba and has informed companies that they could receive letters.  The total number of letters issued since 1996 is reportedly less than twelve (12).  One Canada-based company is currently subject to this provision based upon a certified claim.  There is limited legal recourse for appealing a Title IV determination.  The United States Department of State refuses to divulge how many letters have been sent and/or to whom the letters have been sent. 

Suspension History 

Title III has been suspended every six months since the Libertad Act was enacted in 1996- by President William J. Clinton, President George W. Bush, President Barack H. Obama and President Donald J. Trump.   

On 4 March 2019, The Honorable Mike Pompeo, United States Secretary of State, reported that there would be a suspension for thirty (30) days. 

On 3 April 2019, Secretary Pompeo reported a further suspension for fourteen (14) days through 1 May 2019. 

On 17 April 2019, the Trump Administration reported that it would no longer suspend Title III. 

On 2 May 2019 certified claimants and non-certified claimants were permitted to file lawsuits in United States courts. 

Certified Claims Background 

There are 8,821 claims of which 5,913 awards valued at US$1,902,202,284.95 were certified by the USFCSC and have not been resolved for nearing sixty years (some assets were officially confiscated in the 1960’s, some in the 1970’s and some in the 1990’s.  The USFCSC permitted simple interest (not compound interest) of 6% per annum (approximately US$114,132,137.10); with the approximate current value of the 5,913 certified claims US$8,521,866,236.75.  

The first asset to be expropriated by the Republic of Cuba was an oil refinery in 1960 owned by White Plains, New York-based Texaco, Inc., now a subsidiary of San Ramon, California-based Chevron Corporation (USFCSC: CU-1331/CU-1332/CU-1333 valued at US$56,196,422.73).  

The largest certified claim (Cuban Electric Company) valued at US$267,568,413.62 is controlled by Boca Raton, Florida-based Office Depot, Inc.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International; the certified claim also includes land adjacent to the Jose Marti International Airport in Havana, Republic of Cuba.  The smallest certified claim is by Sara W. Fishman in the amount of US$1.00 with reference to the Cuban-Venezuelan Oil Voting Trust. 

The two (2) largest certified claims total US$449,377,207.76, representing 24% of the total value of the certified claims.  Thirty (30) certified claimants hold 56% of the total value of the certified claims.  This concentration of value creates an efficient pathway towards a settlement.   

Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 requires that an asset had a value of US$50,000.00 when expropriated by the Republic of Cuba without compensation to the original owner.  Of the 5,913 certified claims, 913, or 15%, are valued at US$50,000.00 or more.  Adjusted for inflation, US$50,000.00 (3.70% per annum) in 1960 has a 2019 value of approximately US$427,267.01.  The USFCSC authorized 6% per annum, meaning the 2019 value of US$50,000.00 is approximately US$1,649,384.54.  

The ITT Corporation Agreement 

In July 1997, then-New York City, New York-based ITT Corporation and then-Amsterdam, the Netherlands-based STET International Netherlands N.V. signed an agreement whereby STET International Netherlands N.V. would pay approximately US$25 million to ITT Corporation for a ten-year right (after which the agreement could be renewed and was renewed) to use assets (telephone facilities and telephone equipment) within the Republic of Cuba upon which ITT Corporation has a certified claim valued at approximately US$130.8 million.  ETECSA, which is now wholly-owned by the government of the Republic of Cuba, was a joint venture controlled by the Ministry of Information and Communications of the Republic of Cuba within which Amsterdam, the Netherlands-based Telecom Italia International N.V. (formerly Stet International Netherlands N.V.), a subsidiary of Rome, Italy-based Telecom Italia S.p.A. was a shareholder.  Telecom Italia S.p.A., was at one time a subsidiary of Ivrea, Italy-based Olivetti S.p.A.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International.  

TITLE III--SEC. 302. LIABILITY FOR TRAFFICKING IN CONFISCATED PROPERTY CLAIMED BY UNITED STATES NATIONALS. 

(a) Civil Remedy.-- (1) Liability for trafficking.--(A) Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of-- (i) the amount which is the greater of-- (I) the amount, if any, certified to the claimant by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949, plus interest; (II) the amount determined under section 303(a)(2), plus interest; or (III) the fair market value of that property, calculated as being either the current value of the property, or the value of the property when confiscated plus interest, whichever is greater; and (ii) court costs and reasonable attorneys' fees.  (B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, United States Code, computed by the court from the date of confiscation of the property involved to the date on which the action is brought under this subsection.   

(2) Presumption in favor of the certified claims.--There shall be a presumption that the amount for which a person is liable under clause (i) of paragraph (1)(A) is the amount that is certified as described in subclause (I) of that clause. The presumption shall be rebuttable by clear and convincing evidence that the amount described in subclause (II) or (III) of that clause is the appropriate amount of liability under that clause. 

(3) Increased liability.-- (A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949, be liable for damages computed in accordance with subparagraph (C).   

(B) If the claimant in an action under this subsection (other than a United States national to whom subparagraph (A) applies) provides, after the end of the 3-month period described in paragraph (1) notice to-- (i) a person against whom the action is to be initiated, or (ii) a person who is to be joined as a defendant in the action, at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30- day period beginning on the date the notice is provided, traffics in the confiscated property that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with subparagraph (C).   

(C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of-- (i) the amount determined under paragraph (1)(A)(ii), and (ii) 3 times the amount determined applicable under paragraph (1)(A)(i).  (D) Notice to a person under subparagraph (B)-- (i) shall be in writing; (ii) shall be posted by certified mail or personally delivered to the person; and (iii) shall contain-- (I) a statement of intention to commence the action under this section or to join the person as a defendant (as the case may be), together with the reasons therefor; (II) a demand that the unlawful trafficking in the claimant's property cease immediately; and (III) a copy of the summary statement published under paragraph (8).  (4) Applicability.--(A) Except as otherwise provided in this paragraph, actions may be brought under paragraph (1) with respect to property confiscated before, on, or after the date of the enactment of this Act. 

(B) In the case of property confiscated before the date of the enactment of this Act, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before such date of enactment.  (C) In the case of property confiscated on or after the date of the enactment of this Act, a United States national who, after the property is confiscated, acquires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section.   

(5) Treatment of certain actions.--(A) In the case of a United States national who was eligible to file a claim with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but did not so file the claim, that United States national may not bring an action on that claim under this section.  (B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section. 

(C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on the date of the enactment of this Act. 

(D) An interest in property for which a United States national has a claim certified under title V of the International Claims Settlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified.  (6) Inapplicability of act of state doctrine.--No court of the United States shall decline, based upon the act of state doctrine, to make a determination on the merits in an action brought under paragraph (1). 

(7) Licenses not required.--(A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, without obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the execution of a judgment against, or the settlement of actions involving, property blocked under the authorities of section 5(b) of the Trading with the Enemy Act that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on the date of the enactment of this Act.

Court-Reporter-Typing.jpg

U.S. Ag/Food Exports To Cuba Decline 11.3% In June; Remain Up 6.9% Year-To-Year

ECONOMIC EYE ON CUBA©

August 2019 

June 2019 Food/Ag Exports To Cuba Decrease 11.3%- 1

Cuba Ranked In June 53rd of 229 U.S. Food/Ag Export Markets- 2

Cuba Year-To-Year Exports Increase 6.9%- 2

US$6 Billion Exported To Cuba Since 2001- 2

June 2019 Healthcare Product Exports US$23,375.00- 2

June 2019 Humanitarian Donations US$465,907.00- 3

Obama Administration Initiatives Exports Continue To Increase- 3

U.S. Port Export Data- 16 

JUNE 2019 FOOD/AG EXPORTS TO CUBA DECREASE 11.3%- Exports of food products and agricultural commodities from the United States to the Republic of Cuba in June 2019 were US$18,815,665.00 compared to US$21,225,971.00 in June 2018 and US$24,630,738.00 in June 2017.   

Exports from January 2019 through June 2019 were US$154,937,855.00 compared to US$144,811,965.00 from January 2018 through June 2018, representing an increase of 6.9%.   

Exports since December 2001 exceed US$6,030,151,076.00. 

The data is for exports from the United States to the Republic of Cuba- products within the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000, Cuban Democracy Act (CDA) of 1992, and regulations implemented (1992 to present) for other products by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury and Bureau of Industry and Security (BIS) of the United States Department of Commerce. 

The TSREEA re-authorized the direct commercial (on a cash basis) export of food products (including branded food products) and agricultural commodities from the United States to the Republic of Cuba, irrespective of purpose. The TSREEA does not include healthcare products, which remain authorized and regulated by the CDA. 

Complete Report To Be Published Soon.

LOGO-STILLUP.jpg

Waiting Until The Last Minute, Cuba Decides To Defend Against Exxon Mobil In Title III Lawsuit

Nearing the last moment available for motions prior to the judge potentially issuing a default judgement, the defendants have elected to retain counsel. 

On 2 May 2019, Irving, Texas-based Exxon Mobil Corporation (2018 revenues of US$290 billion) filed a lawsuit [LINK] in the United States District Court for the District of Colombia against Republic of Cuba government-operated Corporacion Cimex S.A. and Republic of Cuba government-operated Union Cuba-Petroleo

Exxon Mobil Corporation has brought the lawsuit using Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996. [LINK]

Exxon Mobil Corporation is the second-largest company in the United States and second-largest oil and gas company in the world. 

On 2 August 2019, New York, New York-based Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., the longtime law firm representing the government of the Republic of Cuba, informed the court that it will be representing [LINK and LINK] the defendants and requested an extension to prepare its motions [LINK].  The defendants had three months during which they did not respond to the summons presented by the plaintiff. 

The defendants will seek to show that they have no interests in the United States so the case should be dismissed.  The plaintiff will seek to show that at least one of the defendants has connectivity to the United States, specifically Corporacion Cimex S.A. through its travel-related services which include individuals subject to United States jurisdiction as clients (defendants will argue that these services are exempt from the lawsuit); and its currency delivery services, which have an agreement [LINK] with Denver, Colorado-based Western Union Company (2018 revenues approximately US$6 billion).

Libertad Act 

The Trump Administration has made operational Title III and further implemented Title IV of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).   

Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  Since 1996, the United States Department of State has on occasion issued letters requesting information from companies as to their activities in the Republic of Cuba and has informed companies that they could receive letters.  The total number of letters issued since 1996 is reportedly less than twelve (12).  One Canada-based company is currently subject to this provision based upon a certified claim.  There is limited legal recourse for appealing a Title IV determination.  The United States Department of State refuses to divulge how many letters have been sent and/or to whom the letters have been sent. 

Suspension History

Title III has been suspended every six months since the Libertad Act was enacted in 1996- by President William J. Clinton, President George W. Bush, President Barack H. Obama and President Donald J. Trump. 

On 4 March 2019, The Honorable Mike Pompeo, United States Secretary of State, reported that there would be a suspension for thirty (30) days.

On 3 April 2019, Secretary Pompeo reported a further suspension for fourteen (14) days through 1 May 2019.

On 17 April 2019, the Trump Administration reported that it would no longer suspend Title III. 

On 2 May 2019 certified claimants and non-certified claimants were permitted to file lawsuits in United States courts. 

Certified Claims Background 

There are 8,821 claims of which 5,913 awards valued at US$1,902,202,284.95 were certified by the USFCSC and have not been resolved for nearing sixty years (some assets were officially confiscated in the 1960’s, some in the 1970’s and some in the 1990’s.  The USFCSC permitted simple interest (not compound interest) of 6% per annum (approximately US$114,132,137.10); with the approximate current value of the 5,913 certified claims US$8,521,866,236.75.  

The first asset to be expropriated by the Republic of Cuba was an oil refinery in 1960 owned by White Plains, New York-based Texaco, Inc., now a subsidiary of San Ramon, California-based Chevron Corporation (USFCSC: CU-1331/CU-1332/CU-1333 valued at US$56,196,422.73).  

The largest certified claim (Cuban Electric Company) valued at US$267,568,413.62 is controlled by Boca Raton, Florida-based Office Depot, Inc.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International; the certified claim also includes land adjacent to the Jose Marti International Airport in Havana, Republic of Cuba.  The smallest certified claim is by Sara W. Fishman in the amount of US$1.00 with reference to the Cuban-Venezuelan Oil Voting Trust. 

The two (2) largest certified claims total US$449,377,207.76, representing 24% of the total value of the certified claims.  Thirty (30) certified claimants hold 56% of the total value of the certified claims.  This concentration of value creates an efficient pathway towards a settlement.   

Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 requires that an asset had a value of US$50,000.00 when expropriated by the Republic of Cuba without compensation to the original owner.  Of the 5,913 certified claims, 913, or 15%, are valued at US$50,000.00 or more.  Adjusted for inflation, US$50,000.00 (3.70% per annum) in 1960 has a 2019 value of approximately US$427,267.01.  The USFCSC authorized 6% per annum, meaning the 2019 value of US$50,000.00 is approximately US$1,649,384.54.  

The ITT Corporation Agreement 

In July 1997, then-New York City, New York-based ITT Corporation and then-Amsterdam, the Netherlands-based STET International Netherlands N.V. signed an agreement whereby STET International Netherlands N.V. would pay approximately US$25 million to ITT Corporation for a ten-year right (after which the agreement could be renewed and was renewed) to use assets (telephone facilities and telephone equipment) within the Republic of Cuba upon which ITT Corporation has a certified claim valued at approximately US$130.8 million.  ETECSA, which is now wholly-owned by the government of the Republic of Cuba, was a joint venture controlled by the Ministry of Information and Communications of the Republic of Cuba within which Amsterdam, the Netherlands-based Telecom Italia International N.V. (formerly Stet International Netherlands N.V.), a subsidiary of Rome, Italy-based Telecom Italia S.p.A. was a shareholder.  Telecom Italia S.p.A., was at one time a subsidiary of Ivrea, Italy-based Olivetti S.p.A.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International.  

TITLE III--SEC. 302. LIABILITY FOR TRAFFICKING IN CONFISCATED PROPERTY CLAIMED BY UNITED STATES NATIONALS. 

(a) Civil Remedy.-- (1) Liability for trafficking.--(A) Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of-- (i) the amount which is the greater of-- (I) the amount, if any, certified to the claimant by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949, plus interest; (II) the amount determined under section 303(a)(2), plus interest; or (III) the fair market value of that property, calculated as being either the current value of the property, or the value of the property when confiscated plus interest, whichever is greater; and (ii) court costs and reasonable attorneys' fees.  (B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, United States Code, computed by the court from the date of confiscation of the property involved to the date on which the action is brought under this subsection.   

(2) Presumption in favor of the certified claims.--There shall be a presumption that the amount for which a person is liable under clause (i) of paragraph (1)(A) is the amount that is certified as described in subclause (I) of that clause. The presumption shall be rebuttable by clear and convincing evidence that the amount described in subclause (II) or (III) of that clause is the appropriate amount of liability under that clause. 

(3) Increased liability.-- (A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949, be liable for damages computed in accordance with subparagraph (C).   

(B) If the claimant in an action under this subsection (other than a United States national to whom subparagraph (A) applies) provides, after the end of the 3-month period described in paragraph (1) notice to-- (i) a person against whom the action is to be initiated, or (ii) a person who is to be joined as a defendant in the action, at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30- day period beginning on the date the notice is provided, traffics in the confiscated property that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with subparagraph (C).   

(C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of-- (i) the amount determined under paragraph (1)(A)(ii), and (ii) 3 times the amount determined applicable under paragraph (1)(A)(i).  (D) Notice to a person under subparagraph (B)-- (i) shall be in writing; (ii) shall be posted by certified mail or personally delivered to the person; and (iii) shall contain-- (I) a statement of intention to commence the action under this section or to join the person as a defendant (as the case may be), together with the reasons therefor; (II) a demand that the unlawful trafficking in the claimant's property cease immediately; and (III) a copy of the summary statement published under paragraph (8).  (4) Applicability.--(A) Except as otherwise provided in this paragraph, actions may be brought under paragraph (1) with respect to property confiscated before, on, or after the date of the enactment of this Act. 

(B) In the case of property confiscated before the date of the enactment of this Act, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before such date of enactment.  (C) In the case of property confiscated on or after the date of the enactment of this Act, a United States national who, after the property is confiscated, acquires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section.   

(5) Treatment of certain actions.--(A) In the case of a United States national who was eligible to file a claim with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but did not so file the claim, that United States national may not bring an action on that claim under this section.  (B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section. 

(C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on the date of the enactment of this Act.

(D) An interest in property for which a United States national has a claim certified under title V of the International Claims Settlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified.  (6) Inapplicability of act of state doctrine.--No court of the United States shall decline, based upon the act of state doctrine, to make a determination on the merits in an action brought under paragraph (1). 

(7) Licenses not required.--(A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, without obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the execution of a judgment against, or the settlement of actions involving, property blocked under the authorities of section 5(b) of the Trading with the Enemy Act that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on the date of the enactment of this Act.

LINK To Complete Analysis In PDF Format

Irony? EU-Based Company (Germany's DHL) Facilitating Title III Lawsuits Against Cuba Opposed By EU

Irony?  EU-Based Company Facilitating Title III Lawsuits Opposed By EU Against Cuba 

How Does U.S. Plaintiff Inform Defendant In Cuba That It’s Being Sued? DHL (with a little benefit to the German government) Or USPS (with a little benefit to the United States government) 

Might Cuba Prohibit DHL and USPS from delivering Libertad Act-Related Documents?  

Bonn, Germany-based DHL Express Worldwide, is a wholly-owned subsidiary of Bonn, Germany-based Deutsche Post (2018 revenues exceeded US$68 billion).  The government of Germany has a 21% shareholding in Deutsche Post.  

DHL Worldwide Express Cuba Profile: https://www.dhl.com/en/cu/country_profile.html 

Video From DHL Express Worldwide On Shipping To Cuba: https://www.youtube.com/watch?v=xbhe49g0qFs

Both DHL Worldwide Express and Washington DC-based United States Postal Service (USPS) contract with Republic of Cuba government-operated Grupo Empresarial Correos de Cuba [https://www.correos.cu] for the delivery of items throughout the Republic of Cuba. 

Why the government of Germany, with its leadership position within the 28-member Brussels, Belgium-based European Union (EU) which opposes the implementation of the Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”), not discourage or impede or prohibit DHL Worldwide Express from delivering Title III-related documents to the Republic of Cuba using as a basis EU (and EU-member) statutes/regulations/policies discouraging cooperation with Title III-related activities?  

Irving, Texas-based Exxon Mobil Corporation (2018 revenues exceeded US$290 billion) paid DHL Express Worldwide to deliver its summons and complaint to Republic of Cuba government-operated Corporacion Cimex S.A. [Label LINK] and Republic of Cuba government-operated Union Cuba-Petroleo [Label LINK].  

The law firm representing another of Libertad Act Title III plaintiff relied upon the USPS to deliver its summons and complaint to Amsterdam, Netherlands-based Booking.com B.V. [Label LINK; Summons LINK], Republic of Cuba government-operated Grupo Hotelero Gran Caribe [Label LINK], Corporacion de Comercio y Turismo International Cubanacan S.A. [Label LINK] and Republic of Cuba government-operated Grupo de Turismo Gaviota S.A. [Label LINK].  

On 16 March 2016, the USPS re-established direct services to the Republic of Cuba: https://www.cubatrade.org/blog/2017/3/6/usps-commences-deliveries-to-cuba?rq=USPS 

On 10 April 2019, two officials of the EU wrote [Letter LINK] to The Honorable Michael R. Pompeo, United States Secretary of State, reiterating the opposition by the EU to any implementation of Title III of the Libertad Act.

European Union

Council Regulation (EC) No. 2271/96 Of 22 November 1996 [LINK] 

Article 4 

No judgment of a court or tribunal and no decision of an administrative authority located outside the community giving effect, directly or indirectly, to the laws specified in the Annex or to actions based thereon or resulting there from, shall be recognized or be enforceable in any manner. 

Article 5 

No person referred to in Article 11 (2. “any legal person incorporated within the Community,”)   shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.  

From The Archives- Economic Eye On Cuba In 2000 

“Global Express Guaranteed service from the United States to the Republic of Cuba is offered through an agreement with Brussels, Belgium-based DHL International Limited, which commenced operations within the Republic of Cuba in 1990.   

DHL International Limited headquarters for Republic of Cuba operations is in the city of Havana and there are branch offices in the city of Santiago de Cuba (860 kilometers east of Havana) and in the resort area of Varadero (140 kilometers east of Havana).  DHL International Limited also has offices in all provincial capitals of the Republic of Cuba and in resort areas within the Republic of Cuba.   

Panama City, Panama-based Republic of Cuba government-operated Utisa (under the auspice of the Ministry of Information and Communications of the Republic of Cuba), a subsidiary of Republic of Cuba government-operated Cutisa (under the auspice of the Ministry of Information and Communications of the Republic of Cuba) is the representative of DHL International Limited within the Republic of Cuba.  DHL International Limited owns 23% of Redwood City, California-based DHL Worldwide Express, Inc., and the founders (and their families) of DHL International Limited own a minority share of DHL Worldwide Express, Inc.   

Bonn, Germany-based government of Germany-operated Deutsche Post AG (2000 revenues approximately US$25 billion) controls 51% of DHL International Limited and Cologne, Germany-based Deutsche Lufthansa Aktiengesellschaft (Lufthansa Airlines) owns 25% of DHL International Limited.  The founders and their families reportedly own the remaining 24% of DHL International Limited.  DHL Worldwide Express has authorization from the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury in Washington, D.C., to provide delivery services between the United States and the Republic of Cuba. DHL Worldwide Express, Inc., which is controlled by individuals subject to United States law, receives revenues from DHL International Limited for package delivery services to the Republic of Cuba.   

The delivery services are limited to 2-pound packages containing documents, brochures, videotapes, compact discs, etc. DHL Worldwide Express sends packages from the United States to the Republic of Cuba through Mexico City, Mexico, where the packages are transferred from the operational control of DHL Worldwide Express, Inc., to the operational control of DHL International Limited.  The packages are then sent by commercial aircraft (Mexico City, Mexico-based Aeromexico and Mexico City, Mexico Mexico-based Mexicana de Aviacion SA de CV) to the Republic of Cuba.   

The cost of sending a one-pound package from the United States to the Republic of Cuba is approximately US$81.00.  The cost of sending a one-pound package from the Republic of Cuba to the United States is approximately US$39.00.  The delivery time for packages sent from the United States to Havana, Republic of Cuba, is four days.  The delivery time for packages sent from Havana, Republic of Cuba, to the United States is three days.   

In 1998, DHL International Limited delivered from various countries approximately 80,000 packages to the Republic of Cuba.  In 1998, DHL International Limited sent approximately 32,000 packages from the Republic of Cuba to various countries.  Republic of Cuba government-operated Seguros Internacionales de Cuba S.A. (ESICUBA) has an agreement with DHL International Limited to insure packages sent by DHL International Limited from the Republic of Cuba to other countries.   

Neither Atlanta, Georgia-based United Parcel Service of America, Inc. (2000 revenues exceeded US$24 billion) nor Memphis, Tennessee-based FedEx Corporation (2000 revenues exceeded US$17 billion) currently operates direct delivery services or indirect delivery services between the United States and the Republic of Cuba.

LINK To Complete Analysis In PDF Format

Cuba Publishes Commercial/Economic Data, But The Data Remains Incomplete- Especially For Creditors

NOTE: Important to reference that the data provided by the government of the Republic of Cuba is not independently audited and there remain inconsistencies with previously-published data.  Also, the values are reported as Gross Revenues, not reported as Gross Revenues and Net Revenues. There is also no means to verify that funds identified were received as opposed to expected or promised.

Thomson Reuters

London, United Kingdom

2 August 2019 

HAVANA (Reuters) - Cash-strapped Cuba on Friday for the first time published details of its foreign exchange earnings from services such as telecommunications, hotels, health and education assistance, in an apparent concession to creditors.  

Service exports make up most of the Communist-run country’s foreign exchange earnings. But for decades the Caribbean island nation has refused to publish details despite requests by foreign governments and businesses.  

A number of western diplomats involved in debt and trade talks with Cuba in recent months have expressed frustration that officials have not provided details on the country’s financial situation.  

A common complaint of potential foreign business partners is that their Cuban counterparts refuse to provide information needed for proper due diligence, for example, when discussing potential collateral through telecommunications or transportation earnings.  

According to the report on the National Statistics Office web page (here.pdf) the biggest export earner in 2018 was health services at $6.4 billion, followed by "support services" at $1.3 billion.  

The report on page 47 said hotel and related services garnered $970 million, followed by telecommunications at $722 million and transportation and support services, which includes everything from airlines to docking fees, at around $600 million.  The report did not provide data for previous years.  

The country’s foreign exchange earnings have declined in recent years in tandem with the implosion of its ally and main economic partner, Venezuela, forcing the government to adopt austerity measures aimed at limiting imports.  

Total exports were $18.6 billion in 2013 and $14.5 billion last year. Imports fell from $15.6 billion to $12.6 billion.  

The economy has stagnated and tough new U.S. sanctions on some 175 Cuban companies, tourism and investment are expected to worsen the situation in 2019.  

Cuba last reported its foreign debt at $18.2 billion for 2016 and considers its current account and reserves state secrets.

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First Arguments In Carnival Corporation Libertad Lawsuit Don't Bode Well For Dismissal; Judge Has Long History WIth Cuba Cases

Helms-Burton Suit Against Carnival May Float Despite Holes

By Nathan Hale  

Law360, Miami (July 31, 2019, 6:40 PM EDT) -- A Florida federal judge indicated Wednesday that he will deny Carnival's bid to dismiss a lawsuit seeking damages under the Helms-Burton Act over its use of Cuban port facilities that were confiscated by the Castro regime, but counsel for the cruise line said they still see several deficiencies in the claims.  

At a hearing in Miami, senior U.S. District Judge James Lawrence King said he was prepared to make a tentative ruling that, viewing the pleaded facts as true, plaintiff Javier Garcia-Bengochea has made a sufficient claim to an ownership interest in the La Maritima and Terminal Naviera docks in Santiago de Cuba.

The judge reserved the right to change his mind in his final order; however, he also suggested several times that Carnival's arguments for dismissal ask him to make findings that he is not prepared to make at this stage of the case.

"It seems to me that it's taking the court beyond perhaps where it should be at this point," the judge said, adding that he has always viewed the "guiding star" when deciding a motion to dismiss is "facts well pled."

After the hearing, George J. Fowler III of Jones Walker LLP, who is representing Carnival Corp. and was involved in the drafting of Helms-Burton, said he thinks Judge King is inclined to rule against the company at this stage but said that gaps in Garcia-Bengochea's pleadings about the basis for his ownership claim could portend problems for his case down the road.

"It may not be reflected in this first decision," said Fowler, who characterized the judge's comments as, "He said, 'I'm not going to dot all the I's and cross all the T's at this point.'"

Counsel for both sides noted the first impression issues presented by the case, which was filed May 2, the first day a policy shift by the Trump administration allowed Title III of the 1996 Helms-Burton Act to take effect, allowing U.S. nationals to bring litigation over property seized by Fidel Castro's communist government. Carnival also faces a similar suit over its use of docks in Havana.

In his eight-page complaint, Garcia-Bengochea, who is currently a resident of Jacksonville, Florida, claims that Doral, Florida-based Carnival is liable for money damages under Helms-Burton for trafficking in confiscated Cuban property through its use of the La Maritima docks to disembark passengers after it started offering cruises to the Caribbean island in May 2016.

Garcia-Bengochea asserts that he is the rightful owner of an 82.5% interest in the La Maritima property, and attached a form from the Foreign Claims Settlement Commission certifying a portion of his claim representing a 32.5% interest in the property.

But Carnival says Garcia-Bengochea's ownership claims are conclusory. The cruise line pointed out that the commission's certification lists an Albert Parreno as the owner of the claim and the complaint offers no explanation for Garcia-Bengochea's assertion that he possesses a right to the claim now.

The company also has argued that dismissal is warranted because Garcia-Bengochea's claim relates to ownership of stock in the La Maritima corporation that owned the docks, not the docks themselves, so he cannot allege that Carnival trafficked in the property he allegedly owned. Furthermore, he cannot bring a derivative claim on behalf of La Maritima because it was incorporated in Cuba and does not qualify as a U.S. national eligible to bring a claim under Helms-Burton.

During the hearing, Garcia-Bengochea's counsel, Roberto Martinez of Colson Hicks Eidson PA, told the court that Garcia-Bengochea inherited the claims through two cousins, which he said is certainly allowed under Helms-Burton.

"It was not the intent of Helms-Burton to allow the Cuban government to run out the clock on old Cubans," Martinez said.  Martinez also argued that the law features a "very expansive definition of property" that extends to patents, copyrights and any interest in property.

He also argued that the complaint is sufficient, having alleged that Garcia-Bengochea has an ownership interest in the waterfront property and that Carnival has used it.  

"A claim is really nothing more than an assertion to a right to a payment," Martinez said.  Judge King said he was swayed that Garcia-Bengochea's claims were sufficient for this stage of the litigation.

"He says he owns it. It may be totally wrong. It may be proven totally wrong. But it's a claim," the judge said.

Carnival also contends that its use of the property does not meet the definition of "trafficking" under Helms-Burton because the law carved out an exception for "uses of property incident to lawful travel to Cuba" and "necessary to the conduct of travel." It said it is undisputed that it was acting lawfully under a license to provide cruises to Cuba granted by the U.S. Treasury Department's Office of Foreign Assets Control, and it says Garcia-Bengochea's pleadings were insufficient because they did not mention lawful travel.

"You cannot plead trafficking without addressing whether the use of the property was lawful," Carnival counsel Stuart H. Singer of Boies Schiller & Flexner LLP argued, suggesting the court can dismiss the case based on judicial notice of Carnival's OFAC license.  

In response, Martinez argued that Carnival's lawful travel argument is an affirmative defense, calling the suggestion it had to be included in the complaint nonsense. Carnival's assertions that its use of the docks was incidental and necessary to travel and that it complied with its license are issues of fact that Garcia-Bengochea disputes. Martinez declined further comment after the hearing.  

Garcia-Bengochea alleges that he is entitled to money damages equal to three times the greater of the amount certified by the Foreign Claims Settlement Commission, plus interest; an amount determined by a special master; or fair market value of the property.  

Garcia-Bengochea is represented by Roberto Martinez, Francisco Raul Maderal Jr. and Stephanie A. Casey of Colson Hicks Eidson PA and Rodney S. Margol of Margol & Margol PA.  

Carnival is represented by Stuart H. Singer and Evan Ezray of Boies Schiller & Flexner LLP and George J. Fowler III and Luis E. Llamas of Jones Walker LLP.  

The case is Garcia-Bengochea v. Carnival Corp., case number 1:19-cv-21725, in the U.S. District Court for the Southern District of Florida.  

The Honorable James King, Senior Judge of the United States District Court for the Southern District of Florida  

Garcia-Bengochea v. Carnival Corporation (1:19-cv-21725-JLK)

https://www.fjc.gov/history/judges/king-james-lawrence  

https://www.flsd.uscourts.gov/content/senior-judge-james-lawrence-king 

https://en.wikipedia.org/wiki/James_Lawrence_King

U.S. Department Of State Imposes Visa Restrictions Upon Cuban Officials & Their Families

https://www.state.gov/visa-actions-against-cuban-officials/

Visa Actions Against Cuban Officials

Press Statement

Michael R. Pompeo, Secretary of State

July 26, 2019

The Cuban government engages in exploitative and coercive labor practices while it earns money on the backs of its citizens through its overseas medical missions program.  To address this labor abuse, the Department has imposed visa restrictions on certain Cuban officials and other individuals responsible for these coercive labor practices under the Immigration and Nationality Act Section 212(a)(3)(C).  These practices include working long hours, housing in unsafe areas, and compelling Cuban medical professionals to advance the regime’s political agenda.  Such visa restrictions could include immediate family members of these individuals.

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No USDA Taxpayer Support Required: U.S. Soybean Exports To Cuba For First Five Months Of 2019 Exceed Entire Exports For Calendar Year 2018

Soybean product (soybeans, soybean oil cake) exports from the United States to the Republic of Cuba have thus far in 2019 exceeded the entire calendar year 2018, representing an increase of 14.59%

Soybean product exports to the Republic of Cuba for the period January 2019 through May 2019 were US$46,627,034.00 compared to calendar year 2018 of US$40,687,867.00. 

The Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000 re-authorized the direct export of agricultural commodities and food products from the United States to the Republic of Cuba albeit on a payment-of-cash-in-advance basis.  

Since the first exports using provisions of the TSREEA in December 2001, the Republic of Cuba has purchased more than US$6,011,335,411.00 in agricultural commodities and food products exclusive of transportation charges, bank charges, or other costs associated with exports. 

On 25 July 2019, the United States Department of Agriculture (USDA) announced a “Support Package for Farmers” valued at US$16 billion “aimed at supporting American agricultural producers while the Administration continues to work on free, fair, and reciprocal trade deals.”  Soybean products are a significant component of the Support Package as soybean product exports from the United States to the People’s Republic of China have decreased substantially: 

https://www.usda.gov/media/press-releases/2019/07/25/usda-announces-details-support-package-farmers 

LINK To Economic Eye On Cuba Report

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U.S. Department Of State Fourth Update To Cuba Restricted List Includes Second Kempinski Property & Aerogaviota

Munich, Germany-based Kempinski Hotels S.A. (seventy-five properties in thirty countries) has their second property (the first was Gran Hotel Manzana Kempinski La Habana) in the Republic of Cuba included on the Cuba Restricted List: https://www.kempinski.com/en/cayo-guillermo/cayo-guillermo-resort/ 

From The United States Department Of State: 

The Department of State is publishing an update to its List of Restricted Entities and Subentities Associated with Cuba (Cuba Restricted List) with which direct financial transactions are generally prohibited under the Cuban Assets Control Regulations (CACR). This Cuba Restricted List is also considered during review of license applications submitted to the Department of Commerce's Bureau of Industry and Security (BIS) pursuant to the Export Administration Regulations (EAR). 

DATES: The Cuba Restricted List is updated as of July 26, 2019. 

LINK To PDF Of List 

Background 

On June 16, 2017, the President signed National Security Presidential Memorandum-5 on Strengthening the Policy of the United States Toward Cuba (NSPM-5). As directed by NSPM-5, on November 9, 2017, the Department of the Treasury's Office of Foreign Assets Control (OFAC) published a final rule in the Federal Register amending the CACR, 31 CFR part 515, and the Department of Commerce's Bureau of Industry and Security (BIS) published a final rule in the Federal Register amending, among other sections, the section of the Export Administration Regulations (EAR) regarding Cuba, 15 CFR 746.2. The regulatory amendment to the CACR added § 515.209, which generally prohibits direct financial transactions with certain entities and subentities identified on the State Department's Cuba Restricted List. The regulatory amendment to 15 CFR 746.2, notes BIS will generally deny applications to export or re-export items for use by entities or subentities identified on the Cuba Restricted List. The State Department is now updating the Cuba Restricted list, as published below and available on the State Department's website (https://www.state.gov/cuba-sanctions/cuba-restricted-list/). 

This update includes four additional subentities. This is the fourth update to the Cuba Restricted List since it was published November 9, 2017 (82 FR 52089). Previous updates were published November 15, 2018 (see 83 FR 57523), March 9, 2019 (see 84 FR 8939), and April 24, 2019 (see 84 FR 17228). The State Department will continue to update the Cuba Restricted List periodically. 

The publication of the updated Cuba Restricted List further implements the directive in paragraph 3(a)(i) of NSPM-5 for the Secretary of State to identify the entities or subentities, as appropriate, that are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security services or personnel, and publish a list of those identified entities and subentities with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba. 

This document and additional information concerning the Cuba Restricted List are available from the Department of State's website (https://www.state.gov/cuba-sanctions/cuba-restricted-list/). 

List of Restricted Entities and Subentities Associated With Cuba as of July 26, 2019 

Below is the U.S. Department of State's list of entities and subentities under the control of, or acting for or on behalf of, the Cuban military, intelligence, or security services or personnel with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba. For information regarding the prohibition on direct financial transactions with these entities, please see 31 CFR 515.209. All entities and subentities were listed effective November 9, 2017, unless otherwise indicated. 

* * * Entities or subentities owned or controlled by another entity or subentity on this list are not treated as restricted unless also specified by name on the list. * * *

State Department Updates the Cuba Restricted List

07/26/2019 10:32 AM EDT  

The State Department has updated the Cuba Restricted List to add four sub-entities owned by the Cuban military.  The changes take effect today, July 26, as Cuba celebrates more than 60 years since the start of the Cuban Revolution.  Sixty years after Castro promised to improve the lives of the Cuban people, the revolution continues to fail its people by squandering Cuba’s economic potential through mismanagement and oppressing brave Cubans that continue the fight for freedom.  The Department remains committed to ensuring U.S. funds do not directly support Cuba’s state security apparatus, which not only violates the human rights of the Cuban people, but also exports this repression to Venezuela to support the corrupt Maduro regime. 

In accordance with the June 2017 National Security Presidential Memorandum-5, “Strengthening the Policy of the United States Toward Cuba,” the U.S. government generally prohibits direct financial transactions with listed entities and sub-entities because they would disproportionately benefit the Cuban military, intelligence, and security services or personnel at the expense of the Cuban people or private enterprise in Cuba. 

For more information on the regulations prohibiting direct financial transactions with entities and sub-entities on the Cuba Restricted List, please refer to the November 2017 regulatory amendments by the Departments of the Treasury (31 CFR part 515) and Commerce (15 CFR parts 730-774). 

For further information, please contact WHA Press at WHAPress@state.gov and EB Press at EEB-A-PD-DL@state.gov

The post State Department Updates the Cuba Restricted List appeared first on United States Department of State.

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U.S. Cash-In-Advance Food/Ag Exports To Cuba Exceed US$6 Billion

In December 2001, the first agricultural commodity exports were delivered directly from the United States to the Republic of Cuba using provisions of the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000. 

The TSREEA re-authorized the direct commercial (on a cash basis) export of food products (including branded food products) and agricultural commodities from the United States to the Republic of Cuba, irrespective of purpose. The TSREEA does not include healthcare products, which remain authorized and regulated by the Cuban Democracy Act (CDA) of 1992. 

The data represents the U.S. Dollar value of product exported from the United States to the Republic of Cuba under the TSREEA. The data does not include transportation charges, bank charges, or other costs associated with exports; the government of the Republic of Cuba reports unverifiable data that includes transportation charges, bank charges, and other costs.

LINK To Economic Eye On Cuba Report

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U.S. Exports To Cuba Decrease 5.1% In May 2019; Remain Up 8.5% Year-To-Year; Cuba Hits US$6 Billion In Purchases

ECONOMIC EYE ON CUBA©

July 2019

US$6 Billion Exported To Cuba Since 2001- 1

May 2019 Food/Ag Exports To Cuba Decrease 5.1%- 1

Cuba Ranked of 50th of 229 U.S. Food/Ag Export Markets- 2

Cuba Year-To-Year Exports Increase 10.1%- 2

May 2019 Healthcare Product Exports US$144,860.00- 2

May 2019 Humanitarian Donations US$1,412,237.00- 3

Obama Administration Initiatives Exports Continue To Increase- 3

U.S. Port Export Data- 16 

MAY 2019 FOOD/AG EXPORTS TO CUBA DECREASED 5.1%- Exports of food products and agricultural commodities from the United States to the Republic of Cuba in May 2019 were US$27,657,057.00 compared to US$29,169,203.00 in May 2018 and US$31,720,403.00 in May 2017.   

United States exports from January 2019 through May 2019 were US$136,122,190.00 compared to US$123,585,994.00 from January 2018 through May 2018, representing an increase of 10.1%. 

Total exports of agricultural commodities and food products from the United States to the Republic of Cuba since December 2001 is US$6,011,335,411.00 through May 2019.   

The information on exports from the United States to the Republic of Cuba includes- products within the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000, Cuban Democracy Act (CDA) of 1992, and regulations implemented (1992 to present) for other products by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury and Bureau of Industry and Security (BIS) of the United States Department of Commerce. 

The TSREEA re-authorized the direct commercial (on a cash basis) export of food products (including branded food products) and agricultural commodities from the United States to the Republic of Cuba, irrespective of purpose. The TSREEA does not include healthcare products, which remain authorized and regulated by the CDA 

LINK To Complete Report

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Recent Court Filings In Spain (Not United States) Lawsuit Against Melia Hotels International

The two most recent filings for the lawsuit filed on 29 May 2019 in Spain against Palma de Mallorca, Spain-based Melia Hotels International S.A. relating to the use by the company of expropriated property in the Republic of Cuba.   

The lawsuit is not using provisions of the 1996 Cuba Liberty and Democratic Solidarity Act (known as “Libertad Act”) although Melia Hotels International S.A. does reference the Libertad Act in its response. 

8 July 2019 on behalf of Melia Hotels International S.A. [LINK]

17 July 2019 on behalf of Central Santa Lucia L.C. [LINK]

29 May 2019 on behalf of Central Santa Lucia L.C. (original lawsuit filing) [LINK]

Libertad Act 

The Trump Administration has made operational Title III and further implemented Title IV of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).   

Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  One Canada-based company is currently subject to this provision based upon a certified claim. 

Certified Claims Background 

There are 8,821 claims of which 5,913 awards valued at US$1,902,202,284.95 were certified by the USFCSC and have not been resolved for nearing sixty years (some assets were officially confiscated in the 1960’s, some in the 1970’s and some in the 1990’s.  The USFCSC permitted simple interest (not compound interest) of 6% per annum (approximately US$114,132,137.10); with the approximate current value of the 5,913 certified claims US$8,521,866,236.75.  

The first asset to be expropriated by the Republic of Cuba was an oil refinery in 1960 owned by White Plains, New York-based Texaco, Inc., now a subsidiary of San Ramon, California-based Chevron Corporation (USFCSC: CU-1331/CU-1332/CU-1333 valued at US$56,196,422.73).  

The largest certified claim (Cuban Electric Company) valued at US$267,568,413.62 is controlled by Boca Raton, Florida-based Office Depot, Inc.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International; the certified claim also includes land adjacent to the Jose Marti International Airport in Havana, Republic of Cuba.  The smallest certified claim is by Sara W. Fishman in the amount of US$1.00 with reference to the Cuban-Venezuelan Oil Voting Trust. 

The two (2) largest certified claims total US$449,377,207.76, representing 24% of the total value of the certified claims.  Thirty (30) certified claimants hold 56% of the total value of the certified claims.  This concentration of value creates an efficient pathway towards a settlement.   

Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 requires that an asset had a value of US$50,000.00 when expropriated by the Republic of Cuba without compensation to the original owner.  Of the 5,913 certified claims, 913, or 15%, are valued at US$50,000.00 or more.  Adjusted for inflation, US$50,000.00 (3.70% per annum) in 1960 has a 2019 value of approximately US$427,267.01.  The USFCSC authorized 6% per annum, meaning the 2019 value of US$50,000.00 is approximately US$1,649,384.54.  

The ITT Corporation Agreement 

In July 1997, then-New York City, New York-based ITT Corporation and then-Amsterdam, the Netherlands-based STET International Netherlands N.V. signed an agreement whereby STET International Netherlands N.V. would pay approximately US$25 million to ITT Corporation for a ten-year right (after which the agreement could be renewed and was renewed) to use assets (telephone facilities and telephone equipment) within the Republic of Cuba upon which ITT Corporation has a certified claim valued at approximately US$130.8 million.  ETECSA, which is now wholly-owned by the government of the Republic of Cuba, was a joint venture controlled by the Ministry of Information and Communications of the Republic of Cuba within which Amsterdam, the Netherlands-based Telecom Italia International N.V. (formerly Stet International Netherlands N.V.), a subsidiary of Rome, Italy-based Telecom Italia S.p.A. was a shareholder.  Telecom Italia S.p.A., was at one time a subsidiary of Ivrea, Italy-based Olivetti S.p.A.  The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International.  

TITLE III--SEC. 302. LIABILITY FOR TRAFFICKING IN CONFISCATED PROPERTY CLAIMED BY UNITED STATES NATIONALS. 

(a) Civil Remedy.-- (1) Liability for trafficking.--(A) Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of-- (i) the amount which is the greater of-- (I) the amount, if any, certified to the claimant by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949, plus interest; (II) the amount determined under section 303(a)(2), plus interest; or (III) the fair market value of that property, calculated as being either the current value of the property, or the value of the property when confiscated plus interest, whichever is greater; and (ii) court costs and reasonable attorneys' fees.  (B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, United States Code, computed by the court from the date of confiscation of the property involved to the date on which the action is brought under this subsection.   

(2) Presumption in favor of the certified claims.--There shall be a presumption that the amount for which a person is liable under clause (i) of paragraph (1)(A) is the amount that is certified as described in subclause (I) of that clause. The presumption shall be rebuttable by clear and convincing evidence that the amount described in subclause (II) or (III) of that clause is the appropriate amount of liability under that clause. 

(3) Increased liability.-- (A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949, be liable for damages computed in accordance with subparagraph (C).   

(B) If the claimant in an action under this subsection (other than a United States national to whom subparagraph (A) applies) provides, after the end of the 3-month period described in paragraph (1) notice to-- (i) a person against whom the action is to be initiated, or (ii) a person who is to be joined as a defendant in the action, at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30- day period beginning on the date the notice is provided, traffics in the confiscated property that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with subparagraph (C).   

(C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of-- (i) the amount determined under paragraph (1)(A)(ii), and (ii) 3 times the amount determined applicable under paragraph (1)(A)(i).  (D) Notice to a person under subparagraph (B)-- (i) shall be in writing; (ii) shall be posted by certified mail or personally delivered to the person; and (iii) shall contain-- (I) a statement of intention to commence the action under this section or to join the person as a defendant (as the case may be), together with the reasons therefor; (II) a demand that the unlawful trafficking in the claimant's property cease immediately; and (III) a copy of the summary statement published under paragraph (8).  (4) Applicability.--(A) Except as otherwise provided in this paragraph, actions may be brought under paragraph (1) with respect to property confiscated before, on, or after the date of the enactment of this Act. 

(B) In the case of property confiscated before the date of the enactment of this Act, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before such date of enactment.  (C) In the case of property confiscated on or after the date of the enactment of this Act, a United States national who, after the property is confiscated, acquires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section.   

(5) Treatment of certain actions.--(A) In the case of a United States national who was eligible to file a claim with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but did not so file the claim, that United States national may not bring an action on that claim under this section.  (B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section. 

(C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on the date of the enactment of this Act. 

(D) An interest in property for which a United States national has a claim certified under title V of the International Claims Settlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified.  (6) Inapplicability of act of state doctrine.--No court of the United States shall decline, based upon the act of state doctrine, to make a determination on the merits in an action brought under paragraph (1). 

(7) Licenses not required.--(A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, without obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the execution of a judgment against, or the settlement of actions involving, property blocked under the authorities of section 5(b) of the Trading with the Enemy Act that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on the date of the enactment of this Act.

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Societe Generale Of France Is Target Of 9th Lawsuit Using Libertad Act

1:19-cv-22842-DPG Sucesores de Don Carlos Nunez y Dona Pura Galvez, Inc. v. Societe Generale, S.A.
Darrin P. Gayles, presiding

Date filed: 07/10/2019 

LINK To Filing 

Societe Generale sued for $792 million by heirs of Cuban bank seized by Castro 

Reuters

By Jonathan Stempel

10 July 2019 

(Reuters) - The family of the former owners of a Cuban bank seized by Fidel Castro’s government nearly six decades ago sued Societe Generale (SOGN.PA) for approximately $792 million, saying the French bank owes damages for circumventing U.S. sanctions against Cuba. 

In a complaint filed on Wednesday with the U.S. District Court in Miami, 14 grandchildren of Carlos and Pura Nuñez, who once owned Banco Nuñez, want to hold Societe Generale liable under U.S. law for doing business with Cuba’s central bank, which nationalized Banco Nuñez and other lenders in 1960. 

A lawyer for the plaintiffs said he believed the case was the first against a bank that allegedly “trafficked” in property expropriated by the Castro regime, since the Trump administration said in April it would begin letting U.S. nationals sue companies for such conduct. 

“Victims of the Cuban regime who had their property confiscated now have a vehicle to get justice,” Javier Lopez, the lawyer, said in an interview. “We have multiple financial institutions that we’re looking to target.”  Societe Generale did not immediately respond to requests for comment after market hours. 

The lawsuit was filed eight months after Societe Generale agreed to pay $1.34 billion and enter a deferred prosecution agreement to settle U.S. and New York regulatory charges that it handled billions of dollars of transactions related to Cuba and other countries under U.S. sanctions. 

According to the plaintiffs, Societe Generale generated hundreds of millions of dollars of fees by lending money to and processing transactions for Banco Nacional de Cuba from 2000 to 2010. 

The plaintiffs said they own a claim to 10.5% of the equity in Banco Nacional de Cuba, roughly the percentage that Banco Nuñez represented when it was seized.  Lawyers for the plaintiffs at Kozyak Tropin & Throckmorton based the $792 million damages estimate on Banco Nuñez’s $7.8 million worth at the time, plus 6% annual interest and triple damages under the Helms-Burton Act, a 1996 federal law. 

The right to sue under that law had been suspended for 23 years because of opposition from the international community and concern that U.S. courts could be overrun by lawsuits. 

Secretary of State Mike Pompeo announced the lifting of that suspension in April, to boost pressure on Havana to end Cuban support for Venezuela’s socialist president, Nicolas Maduro. 

The case is Sucesors de Don Carlos Nuñez y Doña Pura Galvez Inc v Societe Generale SA, U.S. District Court, Southern District of Florida, No. 19-22842.

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