After 43 Months, Florida District Court Judge Hands First Cuba Libertad Act Verdict- Four Cruise Lines Must Pay US$439,217,424.51 Plus US$11,707,484.31 In Legal Fees. Appeals Probable.

“Had the Clinton-Gore Administration (1993-2001), Bush-Cheney Administration (2001-2009), Obama-Biden Administration (2009-2017) and Trump-Pence Administration (2017-2021) in conjunction with the [Fidel] Castro Administration (1976-2008), [Raul] Castro Administration (2008-2018), and Diaz-Canel-Valdes Mesa Administration (2019-) engaged directly in negotiations to resolve the 5,913 certified claims valued at US$1,902,202,284.95 by the United States Foreign Claims Settlement Commission (USFCSC), then Title III of the Libertad Act may not have been implemented in May 2019 by the Trump-Pence Administration and the commercial, economic, and political bilateral trajectory may likely have been far different today than it is today.”

The Trump-Pence Administration (2017-2021) on 2 May 2019 made operational Title III 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.   

On 2 May 2022, Havana Docks Corporation, a certified claimant, was the first to file a Libertad Act Title III lawsuit in the United States Southern District Court in Miami, Florida.  LINK TO COMPLAINT.  The defendants were Carnival Corporation, MSC Cruises, Norwegian Cruise Line Holdings, and Royal Caribbean Cruises. 

Not unnoticed that the first lawsuit filed is the first lawsuit have a judgement, a verdict, by a United States District Court.  The process took forty-three (43) months. 

Next, the defendants, collectively or individually, will decide to: 1) accept the verdict 2) seek to overturn or revise the judgement through a filing to the Atlanta, Georgia-based Eleventh Circuit Court of Appeals or 3) seek to settle with the plaintiff for an amount likely less then the judgement confirmed by the District Court. 

Of the forty-four (44) Libertad Act Title III lawsuits filed since 2 May 2019, one has been settled for an undisclosed amount; one has reached a court verdict/judgement; some have been dismissed; some have been appealed to respective Courts of Appeals; two have sought, but not received review by the United States Supreme Court.

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: Final Judgement Norwegian Cruise Lines (12/30/22)
LINK: Final Judgement Royal Caribbean Cruise Lines (12/30/22)
LINK: Final Judgement Carnival Cruise Lines (12/30/22)
LINK: Final Judgement MSC Cruises (12/30/22)
LINK: Order On Plaintiff's Motion For Entry Of Final Judgement (12/30/22)
LINK: To Libertad Act Title III Lawsuit Filing Statistics

Excerpts:

THIS CAUSE is before the Court following the Court’s Order granting Plaintiff’s Motion for Entry of Judgment, ECF No. [452]. In accordance with Rule 58 of the Federal Rules of Civil Procedure, it is ORDERED AND ADJUDGED as follows: 1. Judgment is entered in favor of Plaintiff Havana Docks Corporation and against Norwegian Cruise Line Holdings, Ltd. 2. Plaintiff is awarded $109,848,747.87 in damages. This sum consists of $9,179,700.88, the amount of the claim certified by the Foreign Claims Settlement Commission, and $27,436,548.41 in interest, which amounts are trebled pursuant to 22 U.S.C. § 6082(a)(3)(C)(ii).  3. In addition, Plaintiff is awarded $2,817,073.61 in attorneys’ fees, and $261,002.00 in costs.  4. Post-judgment interest shall accrue on this Final Judgment pursuant to 28 U.S.C. § 1961.  5. To the extent not otherwise disposed of, all pending motions are denied as MOOT and all deadlines are TERMINATED.  6. The Clerk of Court is directed to CLOSE this case.  DONE AND ORDERED in Chambers at Miami, Florida, on December 30, 2022.

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 United States Foreign Claims Settlement Commission (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 is approximately US$8,750,130,510.77.  

The first asset (along with 382 enterprises the same day) to be expropriated by the Republic of Cuba was an oil refinery on 6 August 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).  

From the certified claim filed by Texaco: “The Cuban corporation was intervened on June 29, 1960, pursuant to Resolution 188 of June 28, 1960, under Law 635 of 1959.  Resolution 188 was promulgated by the Government of Cuba when the Cuban corporation assertedly refused to refine certain crude oil as assertedly provided under a 1938 law pertaining to combustible materials.  Subsequently, this Cuban firm was listed as nationalized in Resolution 19 of August 6, 1960, pursuant to Cuban Law 851.  The Commission finds, however, that the Cuban corporation was effectively intervened within the meaning of Title V of the Act by the Government of Cuba on June 29, 1960.” 

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 third-largest certified claim valued at US$97,373,414.72 is controlled by New York, New York-based North American Sugar Industries, Inc.  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.   

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. 

U.S. Agricultural Commodity/Food Product Exports To Cuba In October Decreased 6.3%. Remain Up 2.8% Year-To-Year

ECONOMIC EYE ON CUBA©
December 2022

October 2022 Ag/Food Exports To Cuba Decrease 6.3% - 1
60th Of 226 October 2022 U.S. Food/Ag Export Markets- 2
Year-To-Year Exports Increase 2.8%- 2
Cuba Ranked 51st Of U.S. Ag/Food Export Markets- 2
October 2022 Healthcare Product Exports US$1,540,605.00- 2
October 2022 Humanitarian Donations US$4,828,631.00- 3
Obama Administration Initiatives Exports Continue- 3
U.S. Port Export Data- 16

OCTOBER 2022 FOOD/AG EXPORTS TO CUBA DECREASE 6.37%- Exports of food products and agricultural commodities from the United States to the Republic of Cuba in October 2022 were US$20,852,560.00 compared to US$22,271,632.00 in October 2021 and US$11,607,415.00 in October 2020. 

January 2022 through October 2022 exports were US$256,057,483.00 compared to January 2021 through October 2021 exports of US$248,984,063.00. An increase of 2.8%.

October 2022 Exports Included among other items: Chicken Leg Quarters (Frozen); Chicken Meat (Frozen); Chicken Legs (Frozen); Meat of Bovines; Meat of Swine; Whole Chickens; Wheat Flour; Preserved Chicken Meat; Coffee; Vegetable Juices; Beer; Non-Alcoholic Beverages; Deodorants; Soap; Shampoo; Dentifrices; Disinfectants.

Humanitarian Donations for the period January 2022 through October 2022 were US$21,448,056.00 compared to US$11,074,090.00 for calendar year 2021.

This report contains information on 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.

Click here for a list of agricultural commodities eligible for export to Cuba under Section 902(1) of the Trade Sanctions Reform and Export Enhancement Act of 2000

COMPLETE REPORT IN PDF FORMAT

HHS References 2021 Cuban Patent Application In Licensing Notification: “HLA Class I-Restricted T Cell Receptors Against RAS with G12D Mutation”

AGENCY: National Institutes of Health, HHS.
ACTION: Notice.
SUMMARY: The National Cancer Institute, an institute of the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an Exclusive Patent License to practice the inventions embodied in the Patents and Patent Applications listed in the Supplementary Information section of this notice to Replay Holdings LLC (“Replay”) located in San Diego, California.
DATES: Only written comments and/or applications for a license which are received by the National Cancer Institute's Technology Transfer Center on or before January 17, 2023 will be considered.
ADDRESSES: Requests for copies of the patent application, inquiries, and comments relating to the contemplated an Exclusive Patent License should be directed to: Suna Gulay French, Technology Transfer Manager, Telephone: (240) 276-7424; Email: suna.gulay@nih.gov.
SUPPLEMENTARY INFORMATION: Intellectual Property Group A

142. Cuban Patent Application No. 2022-0044 effective filing date of February 12, 2021, entitled “HLA Class I-Restricted T Cell Receptors Against RAS with G12D Mutation” [HHS Ref. No. E-031-2020-0-CU-22];

(and U.S. and foreign patent applications claiming priority to the aforementioned applications)

The patent rights in these inventions have been assigned and/or exclusively licensed to the government of the United States of America. The prospective exclusive license territory may be worldwide, and the field of use may be limited to the following:

“Development, manufacture and commercialization of allogeneic Natural Killer (NK) cell therapy products engineered to express a therapeutic T cell receptor claimed in the Licensed Patent Rights for the treatment or prevention of cancer in humans. Specifically excluded from this field of use are Natural Killer T (NKT) cell therapy products engineered via viral and non-viral means for the treatment of human cancers, wherein the NKT cell therapy product contains at least 50% NKT cells.”

Intellectual Property Group A is primarily directed to isolated T cell receptors (TCRs) reactive to mutated Kirsten rat sarcoma viral oncogene homolog (KRAS), within the context of several human leukocyte antigens (HLAs). Mutated KRAS, which plays a well-defined driver role in oncogenesis, is expressed by a variety of human cancers, including pancreatic, lung, endometrial, ovarian and prostate. Due to its restricted expression in precancerous and cancerous cells, this antigen may be targeted on mutant KRAS-expressing tumors with minimal normal tissue toxicity.

This notice is made in accordance with 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive license will be royalty bearing, and the prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the National Cancer Institute receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.

In response to this Notice, the public may file comments or objections. Comments and objections, other than those in the form of a license application, will not be treated confidentially, and may be made publicly available.

License applications submitted in response to this Notice will be presumed to contain business confidential information and any release of information in these license applications will be made only as required and upon a request under the Freedom of Information Act, 5 U.S.C. 552.

Dated: December 23, 2022.
Richard U. Rodriguez,
Associate Director, Technology Transfer Center, National Cancer Institute.
[FR Doc. 2022-28404 Filed 12-29-22; 8:45 am]
BILLING CODE 4140-01-P

LINK TO FEDERAL REGISTER POSTING

Cuba Coffee At GUM Department Store On Red Square In Moscow. Unfortunately, Packages Past Their Sell-By Date

Good News: on 23 December 2022, Coffee From Cuba Available At GUM Department Store Located On Red Square In Moscow.  Bad News: Past Sell By Date.

Packaged: 11 March 2022
Sell By Date: 31 October 2022

Also available were non-ground coffee beans that store personnel offered to dispense from a glass tube display into smaller or larger packages.

Havana Club Rum At Flughafen Frankfurt am Main (Rhein-Main-Flughafen- FRA) Has Better Signage And Product Placement Than Bacardi.

Related Links: 

Despite Russia Relationship With Cuba, Vnukovo Airport Features Havana Club And Bacardi- With Captain Morgan Separating Them Dec 26, 2022

At Warsaw Chopin Airport, Barcardi Rum Has More Shelve Space And Better Placement, But Havana Club 7 Anos Has A "Best Choice" Sign Dec 19, 2022  

Havana Club And Bacardi... Facing-Off In Back-To-Back Duty Free Displays At Berlin Brandenburg Airport. October 28, 2022 

At Vnukovo International Airport In Moscow, Havana Club Rum Has A Presence, But Bacardi Has More Real Estate In The Duty Free Shop. For Cigars, It's All About Cuba's Brands. March 18, 2022 

In Terminal 4 At Madrid-Barajas Airport, "Havana Club" From Cuba Has A Display, Bacardi From Bermuda Has A Display. No "Havana Club" From Bacardi. July 08, 2022 

In Belarus, Minsk Airport Duty Free Stores, Bacardi Outselling Havana Club. March 24, 2022 

Despite Russia Relationship With Cuba, Vnukovo Airport Features Havana Club And Bacardi- With Captain Morgan Separating Them

Related Links: 

At Warsaw Chopin Airport, Barcardi Rum Has More Shelve Space And Better Placement, But Havana Club 7 Anos Has A "Best Choice" Sign Dec 19, 2022  

Havana Club And Bacardi... Facing-Off In Back-To-Back Duty Free Displays At Berlin Brandenburg Airport. October 28, 2022 

At Vnukovo International Airport In Moscow, Havana Club Rum Has A Presence, But Bacardi Has More Real Estate In The Duty Free Shop. For Cigars, It's All About Cuba's Brands. March 18, 2022 

In Terminal 4 At Madrid-Barajas Airport, "Havana Club" From Cuba Has A Display, Bacardi From Bermuda Has A Display. No "Havana Club" From Bacardi. July 08, 2022 

In Belarus, Minsk Airport Duty Free Stores, Bacardi Outselling Havana Club. March 24, 2022 

Mr. de Cossio At MINREX In Cuba Not Quite Accurate With His Comments About Biden-Harris Administration Efforts With MSMEs And Remittances

Carlos Fernández de Cossío, Deputy Minister of Foreign Relations of the Republic of Cuba (MINREX), shared this week the following statements which were then and remain now contrary to previous statements from officials of the government of the Republic of Cuba relating to authorizing micro, small, and medium-sized enterprises (MSMEs) to receive direct foreign investment and direct foreign financing from United States-based sources which the Biden-Harris Administration (2021) first authorized on 10 May 2022.   

If the government of the Republic of Cuba is supportive, then why nearing an eight-month delay for the issuance of regulations so that unilateral decisions by the Biden-Harris Administration may begin to deliver value to MSMEs?  

• “If this [unilateral decisions by the Biden-Harris Administration] allows greater prosperity of any sector of the economy, we will not put up obstacles. If they manage to devise exceptions that benefit some and continue to punish others, we will not try to prevent it either.” 

• On Biden-Harris Administration decisions since 20 January 2022: “it has not had perceptible changes” to the overall United States-Republic of Cuba bilateral relationship. 

• About Biden-Harris Administration decisions reported “with much fanfare” he saw none. 

• “There is still no regular flow of remittances... and if it happens in the near future, it is due to steps that Cuba has taken and not to decisions taken by the United States.” 

For the last statement, Mr. de Cossío is partially correct noting the Biden-Harris Administration has yet to authorize direct correspondent banking.  To be factual, the Obama-Biden Administration (2009-2017) authorized in 2015 United States-based financial institutions to have correspondent accounts with Republic of Cuba government-operated financial institutions.  However, without explanation- and there continues to be no rationale provided by the Biden-Harris Administration, the 2015 decision by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury did not authorize Republic of Cuba government-operated financial institutions to have correspondent accounts with United States-based financial institutions.  The lack of direct correspondent banking means that funds (particularly commercially-related: those supporting MSMEs, and United States agricultural commodity and food product exports) from the United States to the Republic of Cuba and funds from the Republic of Cuba to the United States must navigate through financial institutions located in third countries- thus a triangle rather than a straight line.  Result is more time, more cost, and less transparency.   

Where Mr. de Cossío is not accurate- the government of the Republic of Cuba could have provided alternative Republic of Cuba government-operated financial institutions when the Trump-Pence Administration (2017-2021) in October 2020 included one in the Cuba Restricted List (CRL) maintained by the United States Department of State.  Remittance forwarders, financial institutions, and companies in the United States asked repeatedly the government of the Republic of Cuba to permit other Republic of Cuba government-operated financial institutions to receive and send remittances.  Those requests were denied by the government of the Republic of Cuba.  Only in February 2022 did the government of the Republic of Cuba authorize another Republic of Cuba government-operated financial institution to process remittances.  The delay was self-inflicted. 

As Expected, Government Of Cuba Extends Import Duty Exemptions For Acompanied Baggage.

Ministry of Finances And Prices
Havana, Republic of Cuba
18 December 2022

Taking into consideration that the limitations in the supply of food and other products in the national market persist, as an effect of the intensification of the economic, commercial and financial blockade exercised by the US administration against our country and the worsening of the world and multidimensional economic crisis, which has resulted in the growth of the international prices of the goods necessary for the satisfaction of the needs of the population and the economic and social development of the country, it has been decided to extend until June 30, 2023 the tariff benefits temporarily approved by Resolution 309, dated July 15, 2021, regarding the exemption from payment of the Customs Tax for the non-commercial import of food, toiletries and medicines, by way of passengers as accompanied baggage. Consequently, the benefit of importing these products without limits in value and quantities is extended.

On this occasion, the measure is implemented through Resolution 298 of December 9, 2022, of the Ministry of Finance and Prices, published in Official Gazette No. 83 Extraordinary of December 15, 2022. The Ministry of Public Health and the General Customs of the Republic have extended the suspension of the import limits for medicines, food and cleaning products, through the respective resolutions.

In connection with the temporary tariff benefits provided by MFP Resolutions 318 and 321 of July 2021, which expire on December 31, 2021, on the exemption from the payment of tariffs on imports of food products and personal and household hygiene products by state entities and international economic associations; As well as inputs and raw materials destined to non-state management forms for the exercise of their activities, the referred Resolution 298 of 2022 grants an extension of these benefits to imports to be made in 2023, provided that the goods have been shipped at origin until December 31 of this year.

As part of the gradual recovery of the economy and the objective of achieving the stabilization of macroeconomic indicators, among which is the reduction of the fiscal deficit, it is necessary to maximize tax revenues in correspondence with the activities and taxable events incurred. Tariff benefits for the importation of products, raw materials and inputs for certain productive and service activities shall be issued by the MFP on a timely basis, upon request and justification of the importing entities or those rendering import services, taking into account the benefits they bring to the national economy and the population, and according to the procedure established for such purposes.

MINISTRY OF FINANCE AND PRICES

At Warsaw Chopin Airport, Barcardi Rum Has More Shelve Space And Better Placement, But Havana Club 7 Anos Has A "Best Choice" Sign

At a Duty Free retail store located in Warsaw Chopin Airport (WAW), there are more rum products offered by Bacardi than by Havana Club.  However, Havana Club has a “Best Choice” sign in front of its Havana Club 7 Anos. 

Related Links:

Havana Club And Bacardi... Facing-Off In Back-To-Back Duty Free Displays At Berlin Brandenburg Airport. October 28, 2022

At Vnukovo International Airport In Moscow, Havana Club Rum Has A Presence, But Bacardi Has More Real Estate In The Duty Free Shop. For Cigars, It's All About Cuba's Brands. March 18, 2022

In Terminal 4 At Madrid-Barajas Airport, "Havana Club" From Cuba Has A Display, Bacardi From Bermuda Has A Display. No "Havana Club" From Bacardi. July 08, 2022

In Belarus, Minsk Airport Duty Free Stores, Bacardi Outselling Havana Club. March 24, 2022

Libertad Act Cuba Lawsuit Against China Company Dismissed By District Court Due To "Personal Jurisdiction" Issues. Will There Be An Appeal? Eight Expensive Law Firms Battle.

NORTH AMERICAN SUGAR INDUSTRIES INC., V. XINJIANG GOLDWIND SCIENCE & TECHNOLOGY CO., LTD., GOLDWIND INTERNATIONAL HOLDINGS (HK) LTD., DSV AIR & SEA INC., BBC CHARTERING USA, LLC, and BBC CHARTERING SINGAPORE PTE LTD., [1:20-cv-22471; Southern Florida District].

Gibson, Dunn & Crutcher (plaintiff)
Mandel & Mandel (plaintiff)
Morgan, Lewis & Bochius (defendant)
Akerman (defendant)
Hogan Lovells LLP (defendant)
Leto Law Firm (defendant)
Venable LLP (defendant)
Strook & Strook & Lavan LLP (defendant)

12/14/2022- 299 ORDER ADOPTING  Judge Otazo-Reyes's Report 277 and granting Defendants' Motions to Dismiss for Lack of Personal Jurisdiction 197 198 201 202. Closing Case. Signed by Judge Darrin P. Gayles See attached document for full details. (hs01) (Entered: 12/14/2022)

12/05/2022- 298 Defendant's RESPONSE to 297 Notice of Supplemental Authority by BBC Chartering Singapore PTE Ltd., BBC Chartering USA, LLC, DSV Air & Sea Inc., Goldwind International Holdings (HK) Ltd., Xinjiang Goldwind Science & Technology Co., Ltd.. (Carver, Christopher) (Entered: 12/05/2022)

12/02/2022- 297 Notice of Supplemental Authority re 282 Objections to Report and Recommendations by North American Sugar Industries, Inc. (Attachments: #1 Exhibit (A) Del Valle v Trivago GmbH) (Mandel, David) (Entered: 12/02/2022)

11/02/2022- 296 PAPERLESS ORDER denying 293 Plaintiff North American Sugar Industries Inc.'s Motion for Leave to File a Reply in Further Support of Plaintiff's Objections to Magistrate Judge Otazo-Reyes's Report and Recommendation on Defendants' Motions to Dismiss for Lack of Personal Jurisdiction and denying as moot 294 Plaintiff North American Sugar Industries Inc.'s Motion to File Under Seal Its Unredacted Proposed Reply in Support of Its Objections to Magistrate Judge Otazo-Reyes's Report and Recommendation on Defendants' Motions to Dismiss for Lack of Personal Jurisdiction. Signed by Judge Darrin P. Gayles (hs01) (Entered: 11/02/2022)

Link To Order
Link To Libertad Act Title III Lawsuit Filing Statistics

Excerpts From Order 

This action is one of several that United States nationals, including Plaintiff, filed following the Trump Administration’s activation of Title III of the Cuban Liberty and Democratic Solidarity Act of 1996, 22 U.S.C. § 6021, et seq. (the “Act”). In each of these actions, the plaintiffs seek compensation under the Act from defendants who have profited from using property in Cuba that plaintiffs owned before the Cuban revolution.

Plaintiff’s property in Cuba (the “Confiscated Property”) includes the commercial shipping port, Puerto Carupano. Plaintiff alleges that Defendants trafficked in the Confiscated Property in violation of the Act. In particular, Plaintiff claims that Defendants conspired to transport wind turbine blades from Tianjin, China to Carupano, Cuba for use in a wind farm project (the “Project”). 

Following jurisdictional discovery, a hearing on the Motions, and post-hearing briefing, Judge Otazo-Reyes issued her Report. [ECF No. 277]. The Report made the following findings: 1. The Court does not have personal jurisdiction over DSV US pursuant to Florida Statute § 48.193(1)(a)(1)—the long-arm statute’s business activity prong—because Plaintiff’s claims do not arise from DSV US’s Florida-based business operations; 2. The Court does not have personal jurisdiction over any Defendant pursuant to Florida Statute § 48.193(1)(a)(2)—the long-arm statute’s tortious act prong—because (a) the place of the alleged injury is not in Florida and (b) a substantial aspect of the alleged tort was not committed in Florida; 3. Even if the long-arm statute were satisfied, Defendants do not have minimum contacts with Florida sufficient to satisfy the Due Process clause; 4. The Court does not have personal jurisdiction over Defendants pursuant to Rule 4(k)(2) because exercising jurisdiction would not be consistent with the United States Constitution; and 5. Plaintiff’s claim for conspiracy does not provide a basis for personal jurisdiction over the Defendants because Plaintiff has not established that Defendants committed a tortious act in Florida in furtherance of the alleged conspiracy. Id.

At Least Three Members Of U.S. Congress Visit Cuba. Not One Mentions On Official Web Site, In Media Release. That Sends Unhelpful Message. One In 11th Visit In Twenty Years

At Least Three Members Of The United States Congress Visited Cuba On 10 December 2022.  Not One Mentioned On Their Official Web Site, In Media Release. 

That Sends Unhelpful Message.  Why The Secrecy?

One In 11th Visit In Twenty Years.

As Of 3 January 2023, All Three Will No Longer Represent Majority Party In United States House Of Representatives.

James McGovern (D- 2nd Massachusetts)- Twelve visits to the Republic of Cuba since 2001.
Mark Pocan (D- 2nd Wisconsin)- First Visit.
Troy Carter (D- 2nd Louisiana)- First Visit.

LINK TO LIST OF MEMBERS OF U.S. CONGRESS WHO VISITED REPUBLIC OF CUBA

Image PROVIDED BY GOVERNMENT OF THE REPUBLIC OF CUBA

Cuba's Turquino Coffee Sold At Singapore Changi Airport, By Company With Roots In Morocco. 3.5 Ounces For US$9.79.

At the Singapore Changi Airport there is a Bacha Coffee retail store presenting coffee sourced from the Republic of Cuba.  

A package of twelve (12) Turquino Coffee Bags was priced at 26.17 Singapore Dollars (US$18.98).   

100 grams (.22 pounds or 3.5 ounces) of whole Turquino Coffee Beans was priced at 13.50 Singapore Dollars (US$9.79). 

https://bachacoffee.com/en 

From The Company:  

“Bacha Coffee was founded in Marrakech in 1910, and specialises in 100% Arabica coffees, providing customers with a unique opportunity to travel the world through their cup by exploring harvests from over 30 of the most well-reputed coffee producing countries. Even our distinctive fine blended, fine flavoured and naturally decaffeinated coffees are produced using only 100% Arabica beans to give coffee lovers the widest choice, without ever sacrificing quality or flavour. 

The story of Bacha Coffee begins in the medina of Marrakech, Morocco. Built in 1910, the spectacular Dar el Bacha palace, which means “house of the Pasha”, united the greatest cultural and political minds of the century over glittering pots of “coffee of Arabia” or Arabica, as it is known today. Closed for 60 years, Bacha Coffee has reopened to continue the tradition offering fine 100% Arabica coffees from around the world. Discover more about our locations below. 

You are invited to our Coffee Rooms to enjoy our unique traditional method of coffee preparation and an all day dining menu created to enhance your coffee drinking experience. Shop our collection of over 200 coffees from 33 producing countries around the world in our Coffee Boutiques.

In 2019, Bacha Coffee reopened its original location in Marrakech and has since quickly grown into a global brand, with international coffee rooms and boutiques in Europe and Asia. Today, Bacha Coffee continues to attract today’s philosophers, musicians, politicians, artists, and film stars, as well as a new generation of coffee lovers who are discovering the magic of Bacha Coffee for themselves.”

Another Bank Outside U.S. Reported To Cease Providing Wire Transfers To Cuba. No Reason Provided. Shows Urgent Need For Permitting Correspondent Accounts For Cuba Banks With U.S. Banks.

Established in 1974, Cayman National Corporation Ltd. is the largest financial services company based in the Cayman Islands, providing banking, company management, fund administration and wealth management services to clients locally and around the world, from the Cayman Islands and the Isle of Man, with a representative office in Dubai. Cayman National is publicly traded on the Cayman Islands Stock Exchange.  Cayman National is part of the Republic Group which was established in the Caribbean in 1837 as the Colonial Bank and becoming Barclays Bank of Trinidad and Tobago. The Republic Group is one of the region’s largest and most successful financial institutions.  Cayman National group of companies comprises of: Cayman Islands Cayman National Bank Ltd., Cayman National Fund Services Ltd., Cayman National Securities Ltd.; Isle of Man Cayman National Bank (Isle of Man) Ltd. and Cayman National Trust Company (Isle of Man) Ltd.; Dubai Cayman National (Dubai) Ltd.

29 August 2022: Cayman National Corporation announces plans for merger with Republic Bank (Cayman) Limited George Town, Cayman Islands, August 29, 2022: Cayman National Corporation Ltd. ((CSX: CNC) KY) (“CNC”) has announced that, subject to all regulatory approvals, Cayman National Bank Ltd. (“CNB”) will acquire by way of merger, the banking operations of Republic Bank (Cayman) Limited (“RBKY”). In addition, the securities operations of RBKY will also be merged into the operations of Cayman National Securities Ltd. (“CNS”). CNB and CNS will be the remaining entities following the mergers. 

CNB, CNS, and RBKY are all indirectly owned by Republic Financial Holdings Limited (“RFHL”). The merger of these entities rationalizes operations in the Cayman Islands and creates efficiencies, with no loss of service to clients or displacement of staff. All Caymanians at RBKY will continue to be employed within the Cayman National Group following the completion of the mergers. 

According to Nigel Baptiste, President and Chief Executive Officer of Republic Financial Holdings Limited, “The merger of Republic Bank (Cayman) Limited into the Cayman National Corporation Group, brings the RFHL Group one step closer to streamlining our operations in the Cayman Islands. This move will enable the RFHL Group to enhance the experience of the existing clients of Republic Bank (Cayman) Limited by providing access to a wider array of products and services, and eliminating some of the duplication that currently exists across both entities.” 

Stuart Dack, CEO of CNC, said, “We believe this transaction will add great value to the Cayman National Corporation Group and look forward to welcoming both the RBKY clients and staff of RBKY.” 

RBKY will communicate further information about the proposed transition directly to its clients in the coming weeks. Subject to regulatory approvals, once the merger is completed an announcement will be provided.  

About Cayman National: Established in 1974, Cayman National is the largest financial services company based in the Cayman Islands, providing banking, company management, fund administration, and wealth management services to clients locally and around the world, from the Cayman Islands, and the Isle of Man, with an office also in Dubai. Cayman National is publicly traded on the Cayman Islands Stock Exchange. Cayman National comprises: Cayman National Bank Ltd., Cayman National Fund Services Ltd., Cayman National Securities Ltd., Cayman National Bank (Isle of Man) Limited and Cayman National Trust Company (Isle of Man) Limited, and Cayman National (Dubai) Ltd. 

About Republic Bank (Cayman) Limited: Republic Bank (Cayman) Limited was established in 1992 and currently holds a Trust License and an Unrestricted Class B Banking License under the Banks and Trust Companies Law of the Cayman Islands, as amended. Republic Bank (Cayman) Limited also holds a Mutual Funds License and is a registered Excluded Person for purposes of the Securities Investment Business Law of the Cayman Islands (SIBL[1]EP). 

About RFHL: RFHL is a publicly quoted financial holding company listed on the Trinidad and Tobago Stock Exchange, licensed under the Financial Institutions Act, Chap 79:09 of the Laws of Trinidad and Tobago and has over US$16 billion of total assets. RFHL, along with its twenty four (24) subsidiaries, provides a complete range of commercial banking and related services. These include investment banking, mortgage financing, securities trading and related activities, trustee services, credit card operations, foreign exchange and trade finance services as well as deposit taking and lending operations. Through its subsidiaries and associated companies, RFHL has operations domiciled in Anguilla, Barbados, British Virgin Islands, Cayman Islands, Dominica, Ghana, Grenada, Guyana, St. Lucia, St Kitts and Nevis, St. Maarten, St Vincent and the Grenadines and Suriname in addition to Trinidad and Tobago. 

Recent Administration Policy Changes Background And Issue With Payments 

The Biden-Harris Administration (2021- ) policies and regulations have, thus far, focused upon providing connective and re-connective opportunities to the re-emerging private sector in the Republic of Cuba.    

The remaining challenge to transition Biden-Harris Administration policies from aspirational to operational is recreating a cost-efficient, timely, transparent, and secure mechanism to move funds from the United States to the Republic of Cuba and from the Republic of Cuba to the United States through the authorization of direct correspondent banking.  

On 10 May 2022, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury issued a license authorizing direct investment in and direct financing to a privately-owned company located in the Republic of Cuba owned by a Republic of Cuba national.  Investment funds and dividends, and financing funds and interest/interest/principal payments must currently be transferred through financial institutions located in third countries.  

• Biden-Harris Administration Approves First Equity Investment Since 1960 In A Private Cuban Company May 10, 2022

• With U.S. Government Authorization For First Direct Equity Investment Into A Private Company In Cuba, Here Is Important Context And Details. About The Parties; About The Message. May 16, 2022

The issuance of the licenses in May 2022, September 2022, and November 2022 by the OFAC and BIS will result in two-way transfers that are small in value but consistent.  Privately-owned companies located in the Republic of Cuba sending dividend (profit sharing) payments to the source (s) of direct investment and sending interest and principal payments for direct financing.  Republic of Cuba nationals and privately-owned companies located in the Republic of Cuba sending payment(s) for the purchase of an electric vehicle.  

From Mr. John Felder, Founder and Chief Executive Officer of PAE, “Essential for the OFAC to authorize direct correspondent banking so payments for electric vehicles may be transferred by citizens of Cuba with the least amount of cost, least amount of effort, least amount of time, most amount of security, and most amount of transparency.  Payments should not need to move through third-country banks.  Support two-way transactions rather than three-way transactions.”  

A significant transaction hurdle remains receiving payments in the United States from Republic of Cuba nationals residing in the Republic of Cuba who are restricted in the amount of Cuban Pesos they may exchange for convertible currencies, including United States Dollars and Euros.   

The OFAC authorizes United States financial institutions to have correspondent accounts with Cuba-based financial institutions.   

The decision by the Obama-Biden Administration (2009-2017) not to authorize Republic of Cuba-based financial institutions to have correspondent accounts with United States-based financial institutions never made sense- the marketplace, meaning United States-based financial institutions and their customers should determine if they want to engage in direct correspondent banking.  As written, the OFAC regulations today do not provide United States companies with a viable mechanism to avoid the use (and delay and expense) of third-country financial institutions to send or receive authorized payments.  Why one way, but not both ways?    

The use of correspondent accounts is particularly critical to the re-emerging private sectors in Cuba as represented by MSMEs. 

The current requirement to move funds from the Republic of Cuba and to the Republic of Cuba through third-country financial institutions is inefficient, not transparent, and expensive- especially when considering that MSME transactions are often small which makes the fees far more onerous as a percentage of the total transaction. And, now another third-country financial institution has reportedly ceased providing a service of value to United States exporters, importers, and service providers.  

There are discussions within the Bureau of Industry and Security (BIS) of the United States Department of Commerce, OFAC, and United States Department of State to authorize Republic of Cuba-based financial institutions to have correspondent accounts with United States-based financial institutions which would then permit the efficient, transparent, and cost-effective movement of funds for authorized transactions.   

• Facing Extinction Like Javan Rhino? Non-U.S. Banks Engaging With U.S. And Non-U.S. Entities For Authorized Transactions Involving Cuba Due To Risk Of OFAC Penalties. Since 2015, Only Two U.S. Banks. October 17, 2022

LINKS To Related Analyses 

Home Delivery For Electric Scooters To Cuba: As Biden-Harris Administration Expands U.S. Export Opportunities, A U.S. Company Responds Quickly To Customer Requests. Next Correspondent Banking? Dec 4, 2022

First “Made In USA” Electric Scooter Delivered To Female Customer From Holguin, Cuba.  Customer Traveled By Bus 12 Hours To Havana.  E-Scooter Traveled By Air: Miami-Toronto-Havana. Nov 21, 2022

Eleven Months After Denial, Biden-Harris Administration Approves Four-Year License To Export Electric Vehicles To Micro, Small & Medium-Size Enterprises (MSME's) In Cuba Nov 21, 2022

Biden-Harris Administration Re-Engagement With Cuba’s Re-Emerging Private Sector Brings Urgency To Re-Authorization Of Direct Correspondent Banking, U-Turn Transactions. One-Way Does Not Work.  October 06, 2022 

Ten Months After Denial, Biden-Harris Administration Approves Exports Of Electric Motorcycles, Electric Scooters To Cuba Nationals And To Privately-Owned Companies In Cuba October 05, 2022 

BIS "Returned Without Action" License Application To Donate EV Chargers To U.S. Embassy In Havana Because "Ultimate Consignee" Cancelled Transaction March 07, 2022  

U.S. Department Of State Appoints "Chief Sustainability Officer"- Mandate Text Includes Focus On "Electrifying Fleet" And "Host Partners" Does This Mean EVs For Cuba? President Biden Supports?  February 10, 2022   

While Promoting EV Use In The United States, Biden-Harris Administration Refuses To Permit Exports Of EVs To Cuba For Use By Re-Emerging Private Sector- And U.S. Embassy In Havana Does Not Want One.  February 08, 2022   

Surprise Decision: Biden-Harris Administration Renews Trump-Pence Administration License To Export EVs To Embassies In Cuba. Company Offers To Donate EV Chargers To U.S. Embassy/Ambassador Residence  January 25, 2022    

President Biden Rejects BIS License Application To Export Electric Vehicles/Chargers To Cuba's Self-Employed, MSME's. Reversal Of "General Policy Of Approval." President Trump Authorized EV Exports.  December 20, 2021    

Beginning Today Residents Of Cuba May Purchase And Install Residential Solar Systems. Cost 55,000.00 Pesos (US$2,300.00). Call 7833-3333.  November 04, 2021    

Cuba Has Nickel And Cobalt. Vehicle Electric Batteries Use Nickel And Cobalt. Cuba Should Benefit.  September 25, 2021     

Cuba Owes Partner Canada's Sherritt International Corporation Tens Of Millions Of US Dollars. But, Both Cuba & Patient Company (And Shareholders) Anticipate Profitable Role With Electric Vehicles.  July 03, 2021   

Restriction On Sale Of Premium Gasoline May Benefit Electric Vehicles & Solar Panels; Embassies Concerned.  April 07, 2017    

Florida Company Receives License To Export Electric Vehicles To Cuba; Charging Stations From New Jersey-Based Company.  January 25, 2017 

Florida Company Receives License To Export Electric Vehicles To Cuba; Charging Stations From New Jersey-Based Company January 25, 2017

Home Delivery For Electric Scooters To Cuba: As Biden-Harris Administration Expands U.S. Export Opportunities, A U.S. Company Responds Quickly To Customer Requests. Next Correspondent Banking?

“Effective immediately New Delivery Information: All Electric scooter quotes will include Air Freight and HOME Delivery to all of Cuba.”   

On 17 November 2022, Columbia, Maryland-based Premier Automotive Export, Ltd. (PAE) delivered the first electric scooter to a Republic of Cuba national authorized using a license issued by the Bureau of Industry and Security (BIS) of the United States Department of Commerce.  

On 29 November 2022, given marketplace demand, PAE revised its purchase policy by including in the electric scooter quoted price air freight from the United States to the Republic of Cuba and home delivery throughout the Republic of Cuba.  

From Mr. John Felder, Founder and Chief Executive Officer of PAE, “Now we really have the ultimate advantage” to provide value for customers who reside in the Republic of Cuba by responding to their requests.  

LINKS To Related Analyses 

First “Made In USA” Electric Scooter Delivered To Female Customer From Holguin, Cuba.  Customer Traveled By Bus 12 Hours To Havana.  E-Scooter Traveled By Air: Miami-Toronto-Havana. Nov 21, 2022  

Eleven Months After Denial, Biden-Harris Administration Approves Four-Year License To Export Electric Vehicles To Micro, Small & Medium-Size Enterprises (MSME's) In Cuba. Nov 21, 2022  

Background

On 17 November 2022, on the sideline of the Havana International Fair (FIHAV) in the Republic of Cuba, Virgen Ricardo Disotuar, a Republic of Cuba national residing in the city of Holguin, Republic of Cuba, accepted delivery of the first United States-manufactured electric scooter to be exported from the United States to the Republic of Cuba using a license issued by the Bureau of Industry and Security (BIS) of the United States Department of Commerce. 

The customer traveled by bus to Havana from the city of Holguin, Republic of Cuba, on a journey of approximately 422 miles which required approximately twelve (12) hours.  For the return journey by bus, the 190-pound electric scooter, priced at US$2,100.00 with a two-year, 24,000-mile warranty, was partially disassembled and placed in the cargo hold.   

The first BIS-authorized electric scooter was sold in the Republic of Cuba by Columbia, Maryland-based Premier Automotive Export, Ltd. (PAE).  The electric scooter was a Scout model manufactured by Deerfield Beach, Florida-based Life Electric Vehicles, Inc.  Electric scooter pricing ranges from US$1,900.00 to US$2,700.00 depending upon selected options. 

On 28 September 2022, the BIS issued a license to PAE for the export of electric scooters and electric bicycles to Republic of Cuba nationals and to Micro, Small, & Medium-size Enterprises (MSMEs) in the Republic of Cuba.   

PAE is also offering electric bicycles manufactured by Morgantown, West Virginia-based Z Electric Vehicle Corporation.  Replacement parts for electric scooters and electric bicycles are delivered to the Republic of Cuba from Miami, Florida.  Customer Service operations are in Miami and in Havana.  

So PAE would have an electric scooter to display at FIHAV (14 November 2022 to 18 November 2022), one was disassembled and transported as baggage on a regularly-scheduled commercial flight operated by San Antonio, Texas-based Southwest Airlines from Fort Lauderdale, Florida, to Jose Marti International Airport (HAV) in the Republic of Cuba. 

For the delivery of the first Scout to the first customer, with no United States-based air carriers providing direct air freight service from the United States to the Republic of Cuba with conditions to transport an electric scooter, and Jacksonville, Florida-based Crowley Liner Services requiring a payment of approximately US$4,000.00 (minimum for commercial cargo) for a 40-foot container, the electric scooter was transported from the United States to Canada and then from Canada to HAV. 

The 2,968-mile journey by air began at Miami International Airport (MIA) in Miami, Florida, to Toronto Pearson International Airport (YYZ) in Mississauga, Ontario, Canada, and then to HAV.  The one-way cost to transport the electric scooter was US$795.00. The air cargo company transporting the electric scooter was Miami, Florida-based America Cargo Services and the freight forwarder was Miami, Florida-based Malvar Freight Forwarding.  

From order date to delivery, the process was approximately two weeks versus three or more months if ordering a non-United States manufactured electric scooter through Panama or the People’s Republic of China.  

To date, PAE has sold two electric scooters and received US$100.00 deposits for eight (8) electric scooters with additional orders in process.  The deposits and the remaining payments were delivered to PAE in the United States by relatives/friends of the BIS-authorized end users residing in the Republic of Cuba.   

Since 2017, PAE has received five (5) licenses from the BIS to export electric vehicles from the United States to the Republic of Cuba including passenger cars, trucks, motorcycles, scooters, and bicycles along with respective parts.  The first electric passenger sedan was sold in 2017 to the Embassy of Guyana in Havana.   

From Mr. John Felder, Founder and Chief Executive Officer of PAE, “Our focus is to deliver the finest selection of “Made in America” assembled and manufactured vehicles to the citizens of Cuba and to assist with increasing transportation and operational efficiencies to the country’s re-emerging private sector.”  

PAE is also introducing Bidirectional Charge Stations (BCS) to several embassies in Havana.  From Mr. John Felder, Founder and Chief Executive Officer of PAE, “If the 124 embassies located in Havana had a fleet of electric vehicles and installed BCS, there would be less drain upon the national electrical grid.”  BCS can divert power to a residence, office, or the electrical grid. 

According to the government of the Republic of Cuba, there are 5,643 private MSMEs in the Republic of Cuba of which includes sixty-eight (68) Republic of Cuba government-operated entities and fifty-nine non-agricultural cooperatives.  Fifty-two percent (52%) of the entities are conversions of pre-existing enterprises and forty-eight percent (48%) are new enterprises. 

Recent Administration Policy Changes Background And Issue With Payments 

The Biden-Harris Administration (2021- ) policies and regulations have, thus far, focused upon providing connective and re-connective opportunities to the re-emerging private sector in the Republic of Cuba.    

The remaining challenge to transition Biden-Harris Administration policies from aspirational to operational is recreating a cost-efficient, timely, transparent, and secure mechanism to move funds from the United States to the Republic of Cuba and from the Republic of Cuba to the United States through the authorization of direct correspondent banking.  

On 10 May 2022, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury issued a license authorizing direct investment in and direct financing to a privately-owned company located in the Republic of Cuba owned by a Republic of Cuba national.  Investment funds and dividends, and financing funds and interest/interest/principal payments must currently be transferred through financial institutions located in third countries.  

• Biden-Harris Administration Approves First Equity Investment Since 1960 In A Private Cuban Company May 10, 2022

• With U.S. Government Authorization For First Direct Equity Investment Into A Private Company In Cuba, Here Is Important Context And Details. About The Parties; About The Message. May 16, 2022

The issuance of the licenses in May 2022, September 2022, and November 2022 by the OFAC and BIS will result in two-way transfers that are small in value but consistent.  Privately-owned companies located in the Republic of Cuba sending dividend (profit sharing) payments to the source (s) of direct investment and sending interest and principal payments for direct financing.  Republic of Cuba nationals and privately-owned companies located in the Republic of Cuba sending payment(s) for the purchase of an electric vehicle.  

From Mr. John Felder, Founder and Chief Executive Officer of PAE, “Essential for the OFAC to authorize direct correspondent banking so payments for electric vehicles may be transferred by citizens of Cuba with the least amount of cost, least amount of effort, least amount of time, most amount of security, and most amount of transparency.  Payments should not need to move through third-country banks.  Support two-way transactions rather than three-way transactions.”  

A significant transaction hurdle remains receiving payments in the United States from Republic of Cuba nationals residing in the Republic of Cuba who are restricted in the amount of Cuban Pesos they may exchange for convertible currencies, including United States Dollars and Euros.   

The Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury authorizes United States financial institutions to have correspondent accounts with Cuba-based financial institutions.   

The decision by the Obama-Biden Administration (2009-2017) not to authorize Republic of Cuba-based financial institutions to have correspondent accounts with United States-based financial institutions never made sense- the marketplace, meaning United States-based financial institutions and their customers should determine if they want to engage in direct correspondent banking.  As written, the OFAC regulations today do not provide United States companies with a viable mechanism to avoid the use (and delay and expense) of third-country financial institutions to send or receive authorized payments.  Why one way, but not both ways?    

The use of correspondent accounts is particularly critical to the re-emerging private sectors in Cuba as represented by MSMEs. 

The current requirement to move funds from the Republic of Cuba and to the Republic of Cuba through third-country financial institutions is inefficient, not transparent, and expensive- especially when considering that MSME transactions are often small which makes the fees far more onerous as a percentage of the total transaction.  This is true for vehicles and vehicle parts. 

There are discussions within the BIS, OFAC, and United States Department of State to authorize Republic of Cuba-based financial institutions to have correspondent accounts with United States-based financial institutions which would then permit the efficient, transparent, and cost-effective movement of funds for authorized transactions.   

• Facing Extinction Like Javan Rhino? Non-U.S. Banks Engaging With U.S. And Non-U.S. Entities For Authorized Transactions Involving Cuba Due To Risk Of OFAC Penalties. Since 2015, Only Two U.S. Banks. October 17, 2022

PAE BIS License History 

This is the fifth (5) BIS license issued to PAE for the export of vehicles (gasoline and electric) to the Republic of Cuba, including for use by embassies.  The first BIS license was issued during the Obama-Biden Administration (2009-2017), the second BIS license was issued during the Trump-Pence Administration (2017-2021), and the third, fourth, and fifth BIS licenses were issued during the Biden-Harris Administration.    

From the BIS: “There is a general policy of denial for exports and reexports to Cuba of items subject to the EAR, as described in Section 746.2(b) of the EAR. However, there are exceptions to the general policy of denial, some of which are listed below: … Items necessary for the environmental protection of U.S. and international air quality, waters and coastlines, including items related to renewable energy or energy efficiency, are generally approved.”   

• BIS License D1297862 (11/17/22- 11/30/26)- Electric vehicles and chargers to republic of cuba nationals with the “ULTIMATE CONSIGNEE: Privately owned companies in the Republic of Cuba owned by Cuba Nationals.”

• BIS License D1290656 (9/28/22-9/30/26)- Electric scooters and electric bicycles to individuals of Cuban descent and to Micro, Small and Medium-Size Enterprises (MSMEs) in the Republic of Cuba owned by Republic of Cuba nationals.

• BIS License D1267261 (1/24/22-1/31/26)- Sales only to embassies. Automobiles: Gasoline powered, Pickup trucks with ICE, Electric or Hybrid Engines. Options to include 4x4, 2 or 4 door cab.

• BIS License D1166163 (7/3/19-7/31/23)- Sales only to embassies. Forty-one (41) different parts for gasoline powered vehicles.

• BIS License D1076571 (1/9/17-1/31/21)- To export Nissan Leaf electric vehicle and Clipper Creek level II 40-amp electric charger with J-1772 universal charging connector to embassy of Guyana in Havana, Republic of Cuba. LINK

• BIS License Exception (2017/2018)- Four (4) electric scooters. A license exception is a general authorization to export or reexport certain items without a license under stated conditions. Only the license exceptions, or portions thereof, listed Section 746.2(a)(1) of the EAR are available for Cuba…. Support for the Cuban People: License Exception Support for the Cuban People (SCP) “§ 740.21 Support for the Cuban People (SCP). (a) Introduction. This License Exception authorizes certain exports and reexports to Cuba that are intended to support the Cuban people by improving their living conditions and supporting independent economic activity; strengthening civil society in Cuba; and improving the free flow of information to, from, and among the Cuban people. (b) Improving living conditions and supporting independent economic activity.…. (1) Items for use by the Cuban private sector for private sector economic activities… (2) Items sold directly to individuals in Cuba for their personal use or their immediate family's personal use,”

LINKS To Related Analyses 

First “Made In USA” Electric Scooter Delivered To Female Customer From Holguin, Cuba.  Customer Traveled By Bus 12 Hours To Havana.  E-Scooter Traveled By Air: Miami-Toronto-Havana. Nov 21, 2022

Eleven Months After Denial, Biden-Harris Administration Approves Four-Year License To Export Electric Vehicles To Micro, Small & Medium-Size Enterprises (MSME's) In Cuba Nov 21, 2022

Biden-Harris Administration Re-Engagement With Cuba’s Re-Emerging Private Sector Brings Urgency To Re-Authorization Of Direct Correspondent Banking, U-Turn Transactions. One-Way Does Not Work.  October 06, 2022 

Ten Months After Denial, Biden-Harris Administration Approves Exports Of Electric Motorcycles, Electric Scooters To Cuba Nationals And To Privately-Owned Companies In Cuba October 05, 2022 

BIS "Returned Without Action" License Application To Donate EV Chargers To U.S. Embassy In Havana Because "Ultimate Consignee" Cancelled Transaction March 07, 2022  

U.S. Department Of State Appoints "Chief Sustainability Officer"- Mandate Text Includes Focus On "Electrifying Fleet" And "Host Partners" Does This Mean EVs For Cuba? President Biden Supports?  February 10, 2022   

While Promoting EV Use In The United States, Biden-Harris Administration Refuses To Permit Exports Of EVs To Cuba For Use By Re-Emerging Private Sector- And U.S. Embassy In Havana Does Not Want One.  February 08, 2022   

Surprise Decision: Biden-Harris Administration Renews Trump-Pence Administration License To Export EVs To Embassies In Cuba. Company Offers To Donate EV Chargers To U.S. Embassy/Ambassador Residence  January 25, 2022    

President Biden Rejects BIS License Application To Export Electric Vehicles/Chargers To Cuba's Self-Employed, MSME's. Reversal Of "General Policy Of Approval." President Trump Authorized EV Exports.  December 20, 2021    

Beginning Today Residents Of Cuba May Purchase And Install Residential Solar Systems. Cost 55,000.00 Pesos (US$2,300.00). Call 7833-3333.  November 04, 2021    

Cuba Has Nickel And Cobalt. Vehicle Electric Batteries Use Nickel And Cobalt. Cuba Should Benefit.  September 25, 2021     

Cuba Owes Partner Canada's Sherritt International Corporation Tens Of Millions Of US Dollars. But, Both Cuba & Patient Company (And Shareholders) Anticipate Profitable Role With Electric Vehicles.  July 03, 2021   

Restriction On Sale Of Premium Gasoline May Benefit Electric Vehicles & Solar Panels; Embassies Concerned.  April 07, 2017    

Florida Company Receives License To Export Electric Vehicles To Cuba; Charging Stations From New Jersey-Based Company.  January 25, 2017 

Florida Company Receives License To Export Electric Vehicles To Cuba; Charging Stations From New Jersey-Based Company January 25, 2017

If MSMEs Are Important To Cuba, Why Nearing Seven Months And No Regulations Authorizing Foreign Investment And Foreign Financing? Biden Administration And 6,000 MSMEs In Cuba Are Waiting.

Why The Delay?  Nearing Nineteen Months And Cuba Has Yet To Issue Investment And Financing Regulations, Procedures For MSMEs.  Biden Administration Authorized Investment And Financing In May 2022.  There Are Nearing 6,000 MSMEs That Could Receive Support From U.S. Investors And U.S. Financiers.    

Delays Are An Incentive For The Republic Of Cuba’s “Best And Brightest” Who Will Create And Manage And Grow MSME’s To Leave The Country And Pursue Opportunities Elsewhere- Particularly In The United States. That’s Not Good For The Republic Of Cuba.

Nearing seven months after the Biden-Harris Administration (2021- ) approved on 10 May 2022 the first license authorizing direct investment and direct financing to a privately-owned company owned by a Republic of Cuba national and located in the Republic of Cuba, the Diaz-Canel-Valdes Mesa Administration (2019- ) has yet to publish regulations as to the process for delivering the direct investment and direct financing. 

With each day in delay, the government of the Republic of Cuba increases the level of suspicion by individuals and corporate entities that the self-stated commitment to the re-emerging private sector in the Republic of Cuba is sustainable.   

Direct investment to and direct financing for a Micro, Small, and Medium-sized Enterprises (MSMEs) should not be equated to direct investment to and direct financing to a Republic of Cuba government-operated company or to a joint venture, economic cooperation agreement, or other form of engagement with a Republic of Cuba government-operated entity. 

The process for MSMEs to receive direct investment and direct financing should be simple, should be easy, and should not require a committee to approve.  Provided the MSMEs self-certify that they are in compliance with regulations issued by the government of the Republic of Cuba, MSMEs must be deemed to be compliant absent evidence of non-compliance. 

According to the most recent data published by the government of the Republic of Cuba, there are 5,643 private MSMEs in the Republic of Cuba which includes sixty-eight (68) Republic of Cuba government-operated entities and fifty-nine non-agricultural cooperatives.  Fifty-two percent (52%) of the entities are conversions of pre-existing enterprises and forty-eight percent (48%) are new enterprises. 

On 10 May 2022, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury issued a license authorizing direct investment in and direct financing to a privately-owned company located in the Republic of Cuba owned by a Republic of Cuba national.  Investment funds and dividends, and financing funds and interest/interest/principal payments must currently be transferred through financial institutions located in third countries because the OFAC authorizes United States-based financial institutions to have correspondent accounts at Republic of Cuba government-operated financial institutions, but does not authorize Republic of Cuba government-operated financial institutions to have correspondent accounts with United States-based financial institutions. 

• Biden-Harris Administration Approves First Equity Investment Since 1960 In A Private Cuban Company May 10, 2022 

• With U.S. Government Authorization For First Direct Equity Investment Into A Private Company In Cuba, Here Is Important Context And Details.  About The Parties; About The Message. May 16, 2022  

• Biden Administration Will Use Cuba's Authorization Of SMSE's As Means To Expand Support For Cuba Private Sector- U.S. Investments And Loans May Be Next June 02, 2021 

• Remittances: Will Biden-Harris Administration Repeat Mistakes Of Obama-Biden Administration And Learn From Mistakes Of Trump-Pence Administration? No Triangles. Yes Loans. Yes Investments. May 18, 2021 

• Might Cubaexport In 2020 Permit “Independent Entrepreneurs” To Export Coffee Beans, Cocoa and Honey To The United States? January 14, 2020 

Granma
Havana, Republic of Cuba
2 June 2021

Aprueba Consejo de Ministros perfeccionamiento de actores de la economía cubana.  El Consejo de Ministros aprobó en su más reciente sesión el perfeccionamiento de los actores de la economía cubana, que incluye a la empresa estatal socialista; a las cooperativas no agropecuarias; a las micro, pequeñas y medianas empresas y al trabajo por cuenta propia, convocados todos a impulsar, cada uno desde su ámbito, el desarrollo de la nación.

“The Council of Ministers approves the improvement of actors in the Cuban economy.  The Council of Ministers approved in its most recent session the improvement of the actors of the Cuban economy, which includes the socialist state enterprise; non-agricultural cooperatives; to micro, small and medium-sized enterprises and self-employment, all summoned to promote, each one from their own sphere, the development of the nation.” 

Miami Herald
Miami, Florida
6 April 2021

“Cuba’s Ministry of Foreign Trade and Foreign Investment is opening the door to Cuban Americans who want to participate in foreign investment projects as the island tries to jump-start its beleaguered economy and encourage Washington to loosen sanctions. Katia Alonso, the ministry’s director of foreign capital investments, told the Miami Herald by email in response to a list of questions that Cuba won’t reject potential business bids from Cuban Americans based on the sole fact that they live in the U.S. — something she said the law has never prohibited, though in the past exile entrepreneurs haven’t always been welcomed either. “Cuba is open to foreign capital regardless of its place of origin,” Alonso explained, “so if a Cuban American were interested — whether they were born in the U.S. or migrated to that country — in investing on the island, their interest would be evaluated just like any other potential investor from any other place of origin.”” 

Recent Administration Policy Changes Background And Issue With Payments  

The Biden-Harris Administration (2021- ) policies and regulations have, thus far, focused upon providing connective and re-connective opportunities to the re-emerging private sector in the Republic of Cuba.     

The remaining challenge to transition Biden-Harris Administration policies from aspirational to operational is recreating a cost-efficient, timely, transparent, and secure mechanism to move funds from the United States to the Republic of Cuba and from the Republic of Cuba to the United States through the re-authorization of direct correspondent banking.   

The issuance of OFAC licenses and Bureau of Industry and Security (BIS) of the United States Department of Commerce licenses in May 2022, September 2022, and November 2022 will by implementation result in two-way transfers that are small in value but consistent.   

Privately-owned companies located in the Republic of Cuba will need to send funds for product purchases (including recently BIS-licensed electric vehicles), send dividend (profit sharing) payments to the source(s) of direct investment, and sending interest and principal payments to source(s) of direct financing.  

For the United States Department of State to continue to require transactions include a third-country financial institution (and the number of third-country financial institutions willing to engage with Republic of Cuba-related transactions continues to decline) is cost inefficient, less transparent, and an impediment to fulfilling the goals of the licenses issued thus far by the OFAC and BIS. 

COMPLETE ANALYSIS IN PDF FORMAT

Latest 16 Pleadings In “Unjust Enrichment” Lawsuit Filed In Spain Against Melia Hotels Including If Government Of Cuba And Gaviota Are “Indispensable Parties” And/Or Subject To Spain Jurisdiction.

The Latest Pleadings From Plaintiff And Defendants In The “Unjust Enrichment” Lawsuit Filed In Spain Against Palma de Mallorca, Spain-based Melia Hotels International S.A. Including Documents Filed As To Whether The Government Of The Republic of Cuba And Republic of Cuba Government-Operated Gaviota S.A. Are “Indispensable Parties” And/Or Subject To The Jurisdiction Of Courts In Spain. 

Background   

On 12 March 2002, Palma de Mallorca, Spain-based Meliá Hotels International (2019 revenues approximately US$2.1 billion) reportedly offered US$5 million to the descendants of Mr. Rafael Lucas Sanchez Hill as payment to prevent the United States Department of State from using Title IV relating to the Sol Rio de Oro Hotel in response to enactment in 1996 of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as "Libertad Act").  

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

On 26 March 2002, Sol Melia International, reportedly believing the [George W. Bush Administration; 20 January 2001 to 20 January 2009] United States Department of State would neither implement Title III nor Title IV of the Libertad Act, Melia Hotels International withdrew the offer of US$5 million and proposed US$3,197.75 representing a value (.06%) based upon the twenty-nine (29) acres of land occupied by the Sol Rio de Oro Hotel of the approximately 120,000 acres of land claimed by the descendants of the owners of the property. The US$3,197.75 was determined by Melia Hotels International as the corresponding percentage of the US$5 million tax loss carry-forward amount with the Internal Revenue Service (IRS) in the 1960's.   

On 29 May 2019, descendants of Mr. Rafael Lucas Sanchez Hill, acting as Central Santa Lucia L.C., filed a lawsuit in Spain seeking US$10 million from Meliá Hotels International seeking damages for the use of land upon which a hotel is located in the Republic of Cuba. The lawsuit is not using provisions of Title III of the Libertad Act.   

Title III of the Libertad Act 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. LINK To Libertad Act Title III Lawsuit Statistics  

LINKS To Recent Court Filings In Spain 

Sanchez Hill Spain Lawsuit Documents 11 2022\Alegaciones a declinatoria de GAVIOTA_firmado_firmado.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\002_PRESENTACION ESCRITO LEXNET CON IDENTIFICADOR 1202210520961848.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\003_DEC GAV 26 09 2022 PERSONAC.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\005_EMPLAZAMIENTO TSP A GAVIOTA1 ACTA DE ENTREGA DE DOCS.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\006_CARTA GAVIOTA A MINREX.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\007_RESPUESTA MINREX A GAVIOTA.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\0704042024120220000086717.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\0704042024120220000086718.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\0704042024120220000088764.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\0704042024120220000088765.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\0704042024120220000095201.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\DOC 1 Nota verbal Republica Cuba_firmado.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\Historial_20221107_084700 (1).pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\Historial_20221107_084700.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\Historial_20221107_095700.pdf

Sanchez Hill Spain Lawsuit Documents 11 2022\SANTA LUCIA 2022-11-16 OPOSICION A DECLINATORIA DE GAVIOTA.pdf 

Related Sanchez Hill Lawsuit Analyses By The USCTEC 

In Lawsuit Filed In Spain Against Melia Hotels, Plaintiff Argues That Government Of Cuba Is Not Required To Be A Defendant; Melia Hotels Says Otherwise February 10, 2021

Lawsuit Against Spain's Melia Hotels International Takes Another Turn... Government Of Spain Never Served Cuba. Repeat. Start Again. July 06, 2021

Judge Rules Against Plaintiffs In Non-Libertad Act Title III Lawsuit Against Spain's Melia Hotels; Lawsuit Will Continue May 04, 2021

Court In Spain Requires Government Of Cuba And Gaviota Tourism Company Be Included In "Unjust Enrichment" Lawsuit Against Melia Hotels International January 16, 2021

Court In Spain Rules Against Melia Hotels Effort To Obtain Ruling By Court Of Justice Of the European Union July 09, 2020

Spanish Appellate Court Rules Sánchez Hill (non-Libertad Act) Lawsuit Against Meliá Hotels International Has Jurisdiction to Proceed; Discovery Begins April 28, 2020

Spain's Melia Hotels International CEO Confirms He Is Restricted From Entering United States Due To Libertad Act Title IV Letter; Says 50 Other Companies Impacted February 05, 2020

Melia Hotels International Presents In Spain Its Response To Appeal By Plaintiffs Of Case Dismissal; Company Reportedly Receives Title IV Letter November 23, 2019

Plaintiffs Appeal Dismissal Of Lawsuit In Spain Against Melia Hotels; Plaintiffs Sue In U.S.; Why Did Melia Hotels Offer US$5 Million Then US$3,197.75? October 05, 2019

Court In Spain Dismisses Lawsuit Against Melia Hotels International Relating To Operations In Cuba; Plaintiffs Now Expected To Sue In U.S. Using Libertad Act September 04, 2019

Recent Court Filings In Spain (Not United States) Lawsuit Against Melia Hotels International July 23, 2019

Melia Hotels International Sued In Spain By United States Descendants Of Property Owner June 17, 2019

11th Circuit Upholds Dismissal Of One Libertad Act Cuba Lawsuit Against Cruise Lines. Significantly, One Justice Sends Message To U.S. Congress And Opens Door For Revising Law To Help Plaintiffs

JAVIER GARCIA-BENGOCHEA V. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINE, A FOREIGN CORPORATION [1:19-cv-21725 Southern Florida District; 20-12960 11th Circuit Court of Appeals]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Creed & Gowdy (plaintiff- appellate)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

JAVIER GARCIA-BENGOCHEA VS. ROYAL CARIBBEAN CRUISES, LTD. [1:19-cv-23592; Southern Florida District; 20-14251 11th Circuit Court of Appeals]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Creed & Gowdy, P.A. (plaintiff)
Holland & Knight (defendant)

JAVIER GARCIA-BENGOCHEA V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23593; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Creed & Gowdy, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

11/23/2022- Opinion issued by court as to Appellant Javier Garcia-Bengochea in 20-12960, 20-14251. Decision: Affirmed. Opinion type: Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [20-12960, 20-14251] [Entered: 11/23/2022 09:44 AM]

11/23/2022- Judgment entered as to Appellant Javier Garcia-Bengochea in 20-12960, 20-14251. [20-12960, 20-14251] [Entered: 11/23/2022 09:48 AM] 

LINK To Opinion (11/23/2)
LINK To Libertad Act Title III Lawsuit Statistics

Excerpts From Opinion And Concurring

When Fidel Castro overthrew Fulgencio Batista in 1959, most Cubans who fled to the United States hoped that they would one day return to their homeland. But many would never again see the beaches of Varadero or stroll along the Malecón. They built homes and lives in the United States, never forgetting what they left behind on an island just 90 miles off the coast of Key West. 

This appeal concerns a number of issues pertaining to claims brought under Title III. First, does the plaintiff, Dr. Javier Garcia- Bengochea, have Article III standing to assert his claims against Carnival and Royal Caribbean? Second, has Dr. Garcia-Bengochea stated plausible Title III claims? We heard oral argument on these matters, invited the Department of Justice to file an amicus curiae brief addressing certain questions about the Act, and permitted the parties to respond to that brief.  We conclude that Dr. Garcia-Bengochea has standing to assert his Title III claims, but that those claims fail on the merits. We therefore affirm the district court’s grant of judgment on the pleadings in favor of Carnival and Royal Caribbean. 

Carnival and Royal Caribbean argue that Dr. Garcia-Bengochea’s injury is not concrete because he was not affected in any way by their use of La Marítima. As Carnival puts it, Dr. Garcia- Bengochea would be “in precisely the same position he stands in now” had it never sailed to Cuba or used La Marítima.

The cruise lines also contend that there is no historical analogue for the Title III cause of action that Dr. Garcia-Bengochea is asserting, and that Congress’ judgment does not identify any real injury. We disagree on both points. 

We begin where we must—with the text. When the words of a statute are clear, “we must enforce it according to its terms.” King v. Burwell, 576 U.S. 473, 486 (2015). Though the Helms-Burton Act defines a number of terms, see § 6023 (setting out the meaning of 15 words and phrases), it does not define the word “acquire[ ].” So we turn to ordinary meaning. See Barton v. U.S. Att'y Gen., 904 F.3d 1294, 1298 (11th Cir. 2018) (“[U]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.”) (internal quotation marks and citation omitted).

In our view, the district court came to the correct conclusion. We agree with the Fifth Circuit’s analysis in American Airlines: 

Dr. Garcia-Bengochea has Article III standing to assert his Title III claims against Carnival and Royal Caribbean under Title III of the Helms-Burton Act. But those claims fail under § 6082(a)(4)(B) of the Act because the Cuban government confiscated La Marítima prior to March 12, 1996, and because Dr. Garcia-Bengochea acquired his interest in the property through inheritance after that date. AFFIRMED. 

Concurring: Judge Adalberto Jordan (born in Havana, Republic of Cuba), Appointed In 2012 By Barack Obama, President Of The United States 

With respect to our decision today, I join Parts I and II of the court’s opinion. As to Part III, I concur in the judgment but do so reluctantly because our interpretation of 22 U.S.C. § 6082(a)(4)(B)—which I think is unavoidable given the language of § 6082(a)(4)(C)—undermines the express purposes of Title III of the Act and leaves many (and maybe most) U.S. nationals without a remedy for the trafficking of their confiscated properties. 

The word “acquires” has both broad and narrow meanings, and dictionaries do not tell us what meaning to use for Title III. So we have to rely on matters outside of the text to interpret the text. 

These codified purposes, it seems to me, call for a narrow interpretation of the word “acquires” that does not encompass interests in property obtained by inheritance. Such a reading benefits U.S. nationals whose property was confiscated by the Cuban government (furthering the compensatory purpose) and deters those who might later traffic in that property (furthering the deterrence purpose).

f the word “acquires” in § 6082(a)(4)(B) is read to encompass interests obtained by inheritance, then the provision operates contrary to Congress’ express statutory purposes and is very hard to explain. The Cuban government carried out most of its confiscations of property held by U.S. nationals and U.S. companies in the early 1960s, shortly after Fidel Castro came to power.

The individual U.S. owners of confiscated property—assuming they were at least 20, the voting age in Cuba at the time, see Constitution of the Republic of Cuba, Title VII, Art. 99 (1940)—would be in their 80s today, assuming they were still alive. What compensatory and/or deterrent effect would Title III have if the only thing potential traffickers had to do was wait until the original owners died to benefit from their confiscated properties? 

That does not make much (if any) sense. I can think of no rational basis for allowing heirs to sue if they inherited their interests in confiscated properties prior to the passage of the Helms-Burton Act, while at the same time precluding heirs who inherited their interests after enactment. 

(“There is no more likely way to misapprehend the meaning of language—be it in a constitution, a statute, a will, or a contract—than to read it literally, forgetting the object which the document as a whole is meant to secure.”); Stanley Fish, The Trouble with Principle 5 (1999) (explaining that, when a statute is “detached from the history that renders it intelligible,” it “becomes unreadable, or . . . readable in any direction you like”). 

Given what I have said in Part II.B, one might wonder why this is a concurrence and not a dissent. That is a fair question, and one I will try to answer. Legislation is not always pristine. And sometimes Congress, despite a very clear intent, drafts poorly. That is what I think happened here. At the end of the day, there is one reason why I ultimately conclude that § 6082(a)(4)(B) must be interpreted as written despite its incongruity with express legislative purpose. The reason is that § 6082(a)(4)(B) cannot be read in isolation and must be inter preted with reference to its statutory companion, § 6082(a)(4)(C). 

Interpreting § 6082(a)(4)(B) as the Fifth Circuit did (and as we do today) goes against the express purposes of Title III, but it is not absurd. While the reach of Title III is narrowed—and maybe significantly so—there is still a group of people whose heirs will be able to file suit under the Act—namely, the U.S. national heirs of owners who passed away and bequeathed their property interest prior to the passage of the Helms-Burton Act. 

I join Parts I and II of the court’s opinion and concur in the judgment as to Part III. If, as I suspect, the language of §6082(a)(4)(B) was the result of sloppy drafting, I urge Congress to fix it.

11th Circuit Reverses District Judge. Rules Libertad Act Cuba Lawsuits Against Expedia-Owned Trivago (Germany) And Booking.com (Netherlands) May Proceed. Louis Vuitton Decision Has A Role.

11th Circuit Court Of Appeals Reverses District Judge And Rules Libertad Act Lawsuits Against Trivago (Germany) Owned By Expedia (US) And Booking.com (Netherlands) Relating To Cuba May Proceed.  There Is Jurisdiction.  Louis Vuitton Decision Has A Role.  

MARIO DEL VALLE, ENRIQUE FALLA, MARIO ECHEVARRIA V. EXPEDIA, INC., HOTELS.COM L.P., HOTELS.COM GP, ORBITZ, LLC, BOOKING.COM B.V., BOOKING HOLDINGS INC.  Initial defendants were: TRIVAGO GMBH, BOOKING.COM B.V., GRUPO HOTELERO GRAN CARIBE, CORPORACION DE COMERCIO Y TURISMO INTERNACIONAL CUBANACAN S.A., GRUPO DE TURISMO GAVIOTA S.A., RAUL DOE I-5, AND MARIELA ROE 1-5, [1:19-cv-22619 Southern Florida District; 20-12407 11th Circuit Court of Appeals] 

Rivero Mestre LLP (plaintiff)
Manuel Vazquez, P.A. (plaintiff)
Baker & McKenzie, LLP (defendant)
Scott Douglass & McConnico (defendant)
Akerman (defendant)

LINK To Opinion Of The Court (11/22/22)
LINK To Libertad Act Title III Lawsuit Filing Statistics

Excerpts From Opinion:

In this appeal we confront questions of personal jurisdiction and Article III standing in an action brought under Title III. We conclude that, based on the uncontroverted allegations in the plain-tiffs’ complaint, the district court has specific jurisdiction over the defendants pursuant to Fla. Stat. § 48.193(1)(a)(2) and that the exercise of jurisdiction does not violate the Due Process Clause of the Fourteenth Amendment. We also conclude that the plaintiffs have standing to assert their Title III claims. 

The Booking Entities and Expedia Entities moved to dismiss the complaint for lack of personal jurisdiction, lack of subject-matter jurisdiction, and failure to state a claim. Notably, they did not submit any affidavits or other exhibits rebutting the jurisdictional allegations in the complaint. The personal jurisdiction challenge, therefore, was facial and not factual.  The district court dismissed the plaintiffs’ Title III claims without leave to amend, ruling that it lacked personal jurisdiction over the defendants under the relevant provisions of Florida’s long-arm statute. See Fla. Stat. §§ 48.193(1)(a)(1), 48.193(1)(a)(2), 48.193(2). The district court did not reach the defendants’ other grounds for dismissal. 

Following a review of the record, and with the benefit of oral argument, we reverse. The plaintiffs alleged that the Booking Entities and Expedia Entities operate fully interactive travel websites that are accessible in Florida, and that Florida residents have used those websites to book accommodations at the Resorts. These allegations, which were not controverted below, establish personal jurisdiction. We also conclude that the plaintiffs have Article III standing for their Title III claims. 

With respect to the first step of the personal jurisdiction analysis, we begin (and end) with § 48.193(1)(a)(2) of Florida’s long-arm statute. A specific jurisdiction provision, it provides that a non-resident defendant is subject to personal jurisdiction for any cause of action “arising from” a “tortious act” committed in Florida. We have consistently held that, under Florida law, a non-
resident defendant commits a tortious act in Florida by performing an act outside the state that causes injury within Florida.

In Louis Vuitton, we held that a nonresident defendant committed a tortious act in Florida under § 48.193(1)(a)(2) when he sold trademark-infringing goods to Florida residents through his website.  See 736 F.3d at 1354. The district court here distinguished Louis Vuitton because “it involved a trademark infringement claim in which the infringement occurred through the website. In other words, the use of the website constituted the claim itself.” D.E. 71 at 5. The district court explained that the tort at the heart of the Helms-Burton Act claims against the Booking Entities and Expedia Entities is “traffick[ing] in . . . confiscated property, which occurred in Cuba.” We respectfully disagree, and conclude that Louis Vuitton is a closer fit than the district court thought. 

III and provides for specific personal jurisdiction under §48.193(1)(a)(2). See Internet Solutions Corp., 39 So.3d at 1215. See also Wendt, 822 So.2d at 1260 (“‘[C]ommitting a tortious act in Florida’ . . . can occur through the nonresident defendant’s tele-phonic, electronic, or written communications into Florida.”); Rennaissance Health Pub., LLC v. Resveratol Partners, LLC, 982 So. 2d 739, 742 (Fla. 4th DCA 2008) (“An interactive website which allows a defendant to enter into contracts to sell products to Florida residents, and which ‘involve[s] the knowing and repeated trans-mission of computer files over the internet,’ may support a finding of personal jurisdiction.”).

As explained above, the complaint’s allegations satisfied the requirements for specific jurisdiction pursuant to § 48.193(1)(a)(2). Because the Booking Entities and Expedia Entities did not rebut those allegations, we next consider whether the exercise of personal jurisdiction comports with the Constitution. The Due Process Clause of the Fourteenth Amendment protects a party from being subject to the binding judgment of a forum with which it has established no meaningful “contacts, ties, or relations.”

The first prong—which addresses the concept of related-ness—focuses on the “causal relationship between the defendant, the forum, and the litigation.” Fraser, 594 F.3d at 850 (internal quo-tation marks omitted). Importantly, the Supreme Court recently rejected the contention that specific jurisdiction may attach only when the defendant’s forum conduct directly gave rise to the plain-tiff’s claims. See Ford Motor Co., 141 S. Ct. at 1026-27 (“[W]e have never framed the specific jurisdiction inquiry as always requiring proof of causation—i.e., proof that the plaintiff’s claim came about because of the defendant’s in-state conduct.”).  This prong is readily met here. Though direct causation is not required, the plaintiffs’ Helms-Burton Act claims arise at least in part directly out of the contacts of the Booking Entities and the Expedia Entities with Florida—the promotion targeted at and di-rected to Florida residents, the accessing of their websites by Florida residents, and the use of those websites by some Florida residents to book accommodations at the Resorts. To borrow the language of Louis Vuitton, the ties of the Booking Entities and Expedia Entities “to Florida . . . involve the advertising [and] selling” of accommodations at the Resorts to Florida residents. 736 F.3d at 1356. 

The Booking Entities and Expedia Entities also assert that we lack subject-matter jurisdiction over this case because the plaintiffs do not have Article III standing to bring their Title III claims. In essence, they argue that the plaintiffs cannot allege injury-in-fact; even if the Booking Entities and Expedia Entities never trafficked in the properties, the properties would still have been confiscated by the Cuban government and the plaintiffs’ positions would be unchanged. They further argue that any injury is not traceable to them because they did not confiscate the  plaintiffs’ properties and do not operate the hotels. As we explain in more detail in Garcia-Bengochea v. Carnival Corp., Nos. 20-12960 & 20-14251, ___ F.4th ___ (11th Cir. 2022), this lack-of-standing theory fails. 

As we note in Garcia-Bengochea, all the courts that have tackled this question have concluded that similarly-situated plain-tiffs have Article III standing to bring a claim under Title III. See, e.g., Glen v. Am. Airlines, Inc., 7 F.4th 331, 334–36 (5th Cir. 2021); Glen v. Trip Advisor LLC, 529 F.Supp.3d 316, 326–28 (D. Del. 2021), aff’d, 2022 WL 3538221, at *2 (3d Cir. August 18, 2022); de Fernandez v. Crowley Holdings, Inc., No. 21-CV-20443, 2022 WL 860373, at *3–*4 (S.D. Fla. Mar. 23, 2022); Exxon Mobil Corp. v. Corporación CIMEX S.A., 534 F.Supp.3d 1, 30–32 (D.D.C. 2021); Sucesores de Don Carlos Nuñez y Doña Pura Galvez, Inc. v. Société Générale, S.A., 577 F.Supp.3d 295, 307–10 (S.D.N.Y. Dec. 22, 2021); Moreira v. Société Générale, S.A., 573 F.Supp.3d 921, 925–29 (S.D.N.Y. Nov. 24, 2021); N. Am. Sugar Indus. Inc. v. Xinjiang Goldwind Sci. & Tech. Co., No. 20-CV-22471 (DPG), 2021 WL 3741647, at *3–*6 (S.D. Fla. Aug. 24, 2021); Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 484 F.Supp.3d 1215, 1226–31 (S.D. Fla. 2020); Havana Docks Corp. v. MSC Cruises SA Co., 484 F. Supp. 3d 1177, 1190–95 (S.D. Fla. 2020); Havana Docks Corp. v. Carnival Corp., No. 19-CV-21724 (BB), 2020 WL 5517590, at *6– *11 (S.D. Fla. Sept. 14, 2020). We agree with this unanimous perspective. 

Based on the uncontroverted allegations in the complaint, the district court has specific personal jurisdiction over the Booking Entities and Expedia Entities pursuant to Fla. Stat. § 48.193(1)(a)(2), and the exercise of such jurisdiction does not violate the Due Process Clause of the Fourteenth Amendment. The plaintiffs also haveplausibly alleged Article III standing. We therefore reverse the district court’s dismissal of the plaintiffs’ complaint and remand for further proceedings.

With Appeals Court Ruling In Iberostar Of Spain Libertad Act Lawsuit, Why Would Any Defendant Subject To European Union Jurisdiction Waste Their Time Seeking Guidance From European Commission?

MARIA DOLORES CANTO MARTI, AS PERSONAL REPRESENTATIVE OF THE ESTATES OF DOLORES MARTI MERCADE AND FERNANDO CANTO BORY V. IBEROSTAR HOTELES Y APARTAMENTOS SL [1:20-cv-20078; Southern Florida District; 21-11906 11th Circuit Court of Appeals] 

Zumpano Patricios P.A. (plaintiff)
Bird & Bird (defendant)
Holland & Knight (defendant)

09/16/2022- Oral argument held this date. Oral Argument presented by Leon Patricios for Appellant Maria Dolores Canto Marti and Rebecca M. Plasencia for Appellee Iberostar Hoteles Y Apartamentos SL. [Entered: 09/16/2022 01:17 PM]

11/21/2022- Opinion issued by court as to Appellant Maria Dolores Canto Marti. Decision: Reversed, Vacated and Remanded. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [Entered: 11/21/2022 02:10 PM]

11/21/2022- Judgment entered as to Appellant Maria Dolores Canto Marti. [Entered: 11/21/2022 02:14 PM]

LINK To Defendant's Status Report (11/7/22)
LINK To Opinion United States Court Of Appeal (11/21/22)

Excerpts From Opinion:

European Commission deliberations have stopped this case in its tracks, with no end in sight. Marti has effectively been pushed out of federal court. That means we have jurisdiction over the stay order, which is “immoderate” and thus unlawful. It is indefinite in duration and has stalled the case for almost three years. Considering this delay, we find that any earlier justifications for the stay have eroded. We reverse the district court’s denial of Marti’s renewed motion and vacate the stay. The case must go on.

Lastly, the court relied on the “efficient use of judicial resources” in continuing the stay. In explaining this justification, the court said only that judicial economy weighed in favor of the stay because there was “no reason to presume that the European Commission is unlikely to render a prompt decision.” That rationale has evaporated. With the additional passage of time, ample reason now exists to doubt the Commission’s promptness. What’s more, because nothing the Commission says will affect the merits of this case, waiting on its decision serves more to conserve Iberostar’s resources than those of the United States courts.

Almost three years have passed since Marti first filed her lawsuit. She cannot recoup those three years. But now she can pursue her claims, Iberostar can assert its defenses, and this suit can USCA11 Case: 21-11906 Date Filed: 11/21/2022 Page: 21 of 22 22 Opinion of the Court 21-11906 continue. We REVERSE the court’s May 2021 order denying the renewed motion to lift the stay, VACATE the stay, and REMAND for the case to proceed.

LINK: Iberostar Hoteles Of Spain Makes Cat's Nine Lives Look Weak- Judge In Cuba Libertad Lawsuit Delaying Trial Three Times What A Cat Expects. October 12, 2022