Plaintiffs In Libertad Act Lawsuit Against Four Cruise Lines: Court Should Reject Defendants’ Argument That “amount … certified” Means Amount Less Than US$9,179,700.88 Certified By FCSC

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HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [Consolidated to 1:19-cv-23591; 1:19-cv-21724; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [Consolidated to 1:19-cv-23591; 1:19-cv-23588; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)

HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [Consolidated to 1:19-cv-23591; 1:19-cv-23591; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

HAVANA DOCKS CORPORATION VS. ROYAL CARIBBEAN CRUISES, LTD. [Consolidated to 1:19-cv-23591; 1:19-cv-23590; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Holland & Knight (defendant)

LINK: Plaintiff's Reply In Support Of Its Motion For Entry Of Final Judgement
LINK: Libertad Act Title III Lawsuit Filing Statistics

Excerpts:

Defendants oppose Havana Docks’ motion for entry of final judgment on three grounds, none of which has merit.

  • First, Defendants argue that the Court must determine “what amount of the certified claim Plaintiff could recover before applying the applicable interest.” (Resp. at 11). But the plain language of the statute does not say that. Instead, it says that damages are “the amount, if any, certified” by the Foreign Claims Settlement Commission (“FCSC”) to a claimant. 22 U.S.C. § 6082(a)(1)(A)(i)(I). Accordingly, the applicable interest rate is applied to the “amount … certified” to Havana Docks: $9,179,700.88.

  • Second, Defendants ask this Court to reconsider, in light of Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236 (11th Cir. 2022) (en banc), its prior determination that Havana Docks has Article III standing. But Hunstein has no bearing on the Article III standing analysis here, because the plaintiff there alleged only an intangible injury. Here, as this Court has recognized, Havana Docks suffered a tangible economic injury: Defendants deprived Havana Docks of the ability to authorize (and so realize an economic benefit from) their use of the confiscated property.

  • Third, Defendants ask this Court to declare Title III’s statutory damages unconstitutionally excessive, but without any principled basis. The legal standard they urge is incorrect and the “actual” damages they presume do not reflect Havana Docks’ actual injuries. The proper excessiveness standard for statutory damages is whether they are proportional to the offense and the statute’s purpose. Here, Defendants’ trafficking violated United States foreign policy, provided a financial benefit to the Cuban Government, exploited Havana Docks’ confiscated property, and earned them over $1.1 billion in revenue. Measured against Title III’s goals of compensation and deterrence, the statutory damages established by Congress are proportional and should be left undisturbed.

Havana Docks then sued Carnival in this case on May 2, 2019, and each of the Defendants continued to traffic in the Terminal until late May or early June 2019. As Royal’s then-Chairman, Richard Fain, explained: “the change is likely to prompt litigation with companies that do business in Cuba. ‘We believe we have solid defenses and are not expecting to change our itineraries as a result,’ he said.”17 Norwegian’s President and CEO, Mr. Del Rio, put it this way: Cuba “was a profitable itinerary to operate, and we didn’t want to see it stopped.” (ECF No. 235-76 at 78:7- 11.) Mr. Donald summarized the industry’s position on trafficking in confiscated property as follows:

  • Q. Mr. Donald, didn’t this same risk apply to all of Carnival’s cruises to Cuba during the time frame of the 2016 to 2019?

  • A. I think a risk. There was always a risk that someone would try to sue. There's always that risk. And that’s the risk we live with all the time as a large corporation with assets. So people always, you know, trying to sue for one reason or another. So the risk here doesn’t necessarily speak to winning or losing. It speaks, you know, to having to go through the hassle of -- of being sued. I think the consensus in the industry at the time, as I recall, was that this Act would increase the risk that we could be sued, not necessarily increase the risk that, you know, we would lose in final determination, but increase the risk we would be sued, would emboldened those who wanted to seek a claim, you know, to try to do so. So that’s my interpretation of it.

The Defendants knew exactly what they were doing. They had extensive, actual knowledge of the requirements of the LIBERTAD Act, their liability for violating it, and the risks of litigation. They made a business decision to assume those risks and liabilities in the pursuit of profit. Of the alternatives available, litigating to judgment was the path the Defendants picked. They received all the process they were constitutionally due and lost. The Constitution does not absolve them of the known consequences of their business decisions. Judgment should be entered for Havana Docks for the full amount of statutory damages.

CONCLUSION For the above reasons, the Court should reject Defendants’ argument that the “amount … certified” means an amount less than the $9,179,700.88 certified to Havana Docks by the FCSC, deny their request for reconsideration of the Court’s prior determination that Havana Docks possesses Article III standing, and reject their contention that Title III’s statutory damages are unconstitutionally excessive.