Pernod Ricard Of France Sued By Former Property Owner In Cuba Using Libertad Act
/MARLENE CUETO IGLESIAS AND MARIAM IGLESIAS ALVAREZ V. PERNOD RICARD [1:20-cv-20157; Southern Florida District]
Law Offices of Andre G. Raikhelson LLC (plaintiff)
Ainsworth & Clancy PLLC (plaintiff)
Carlton Fields P.A. (defendant)
NOTE: The United States is the largest market for Pernod Ricard brands, representing 18% of global sales. Pernod Ricard has offices in New York, New York, and Ft. Lauderdale, Florida. Havana Club is a rum brand distributed by Pernod Ricard outside of the United States.
Excerpts From Plaintiff Complaint
13. Plaintiff, a U. S. national as defined by 22 U.S.C. § 6023(15), is the rightful owner of a 100% interest in certain property of Conac Cueto, C.I.A, a Cuban company, originally located at Avenue 25 #5401, Almendares, Buena Vista, Havana, Cuba (the “Subject Property”, “Conac Cueto” or “Company”).
14. Plaintiff’s family were well known in the Havana area and owned various businesses and properties.
15. Specifically, Plaintiff’s father, Fernando Tomas Cueto Sanchez, founded Conac Cueto in the early 1950s.
16. Conac Cueto produced and sold cognac and other spirits in the Republic of Cuba throughout the 1950s and until 1963 when the communist Cuban Government confiscated the Subject Property. The Conac Cueto product line included Conac Cueto Extra Viejo, Conac Cueto Anejo V.S., Conac Cueto Extra Dry, Champagne Conac Cueto, Aguardiente Cueto and others.
17. The Company’s assets included intellectual property, oak barrels, bottles, labels, corks, tasters, meters and other assets the Company used in the production and sale of cognac. The Company employed a house chemist, a house taster, staff accountants, a general manager, and numerous employees and sales representatives.
18. The communist Cuban Government confiscated the Subject Property and forcefully took possession and control of all Company assets, the Company market segment and the Company intellectual property. In 1963, the communist government of Cuba gathered all Company assets and took them to the rum company of the Cuban government, “Cuban Government Rum Company,” which was the result of the Cuban government nationalizing other spirit companies including the now infamous, Jose Arechabala S.A, who was the original owner of Havana Club brand. Similar to the fate of Jose Arechabala S.A and the Havana Club brand, the Company’s brand Conac Cueto Extra-Viejo and all other assets were forcefully transferred to the Cuban Government Rum Company and eventually rebranded as Havana Club.
19. The communist Cuban Government maintains possession of the Subject Property and has not paid any compensation to Plaintiff for its seizure. The Cuban Government has partnered with the Defendant to distribute the Havana Club brand as well as other ventures to be found in discovery.
20. The communist Cuban Government expropriated, and seized ownership and control of the Subject Property. The Subject Property has not been returned and adequate and effective compensation has not been provided. Further, the claim to the Subject Property has not been settled
pursuant to an international claims settlement agreement or other settlement procedure.
21. More specifically, the communist Cuban Government seized ownership and control of the Subject Property since 1963 and used the rights in the Subject Property to produce and sell the Company’s product lines and utilize the intellectual property of the Company under the name Havana Club without consent from or compensation paid to Plaintiff, a U.S. citizen.
22. Plaintiff never abandoned her legitimate interest in the Subject Property.
23. Plaintiff’s interest in the Subject Property is based upon an uncertified claim, and Plaintiff did not have the ability to bring a claim under the Settlement of International Claims Act of 1949.
24. Upon information and belief, beginning on or about 1993 and continuing to today, the Defendants knowingly and intentionally commenced, conducted, promoted and distributed its Havana Club brand and line of products worldwide using the Subject Property by using the assets
and intellectual property of the Subject Property without the authorization of Plaintiff.
25. Upon information and belief, beginning on or about 1993 and continuing for at least a year thereafter, the Defendants also knowingly and intentionally participated in and profited from the communist Cuban Government’s possession of the Subject Property without the authorization of Plaintiff.
26. The Defendants’ knowing and intentional conduct with regard to the confiscated Subject Property is trafficking as defined in 22 U.S.C. § 6023(13)(A).
27. As a result of the Defendants’ trafficking in the Subject Property, the Defendants are liable to Plaintiff for all money damages allowable under 22 U.S.C § 6082(a).
28. Plaintiff timely provided the Defendants with written notice by certified mail of Plaintiff’s intent to commence this action with respect to the Subject Property in accordance 22 U.S.C. § 6082(a)(3).
Excerpts From Defendant Motion To Dismiss
The Complaint should be dismissed under any of four separate and independent provisions of Rule 12 of the Federal Rules of Civil Procedure.
First, the Court lacks personal jurisdiction over PRSA, a French company headquartered in Paris, on the face of the Complaint and on the declaration being presented simultaneously to the Court. This evidence demonstrates that PRSA does not do business in Florida, is not licensed in Florida, and does not have an office or physical presence in Florida. The Court accordingly lacks general personal jurisdiction over PRSA. PRSA’s declarant also explains that PRSA does not manufacture cognac in Cuba, and it does not distribute Havana Club branded rums in Florida or anywhere in the United States, since Cuban origin spirits cannot be sold in the U.S. pursuant to U.S. embargo regulations. Cueto cannot, consequently, establish specific personal jurisdiction over PRSA. Don King Prods., Inc. v. Mosley, 2016 WL 3950930, *3–4 (S.D. Fla. Jan. 27, 2016) (Williams, J.) (dismissing for lack of specific 1 Unless otherwise noted, all emphasis is added and internal citations and quotations omitted.-2- jurisdiction where no “connexity” between claim and defendant’s contacts with forum).
Second, Cueto failed to properly serve PRSA in accordance with the Hague Convention and the prescribed laws of France for service of process. The notice of service was not addressed, directed to, or served on, a legal representative, the representative’s proxy, or a person empowered to accept service of process in accordance with French law.
Third, the Court lacks subject matter jurisdiction because Cueto lacks standing. Cueto’s claim that the Cuban government expropriated Conac Cueto’s property in Cuba, folded Conac Cueto’s described assets into a new company and rebranded its offerings “Havana Club,” fails to allege an injury, or even the exacerbation of an injury, that is fairly traceable to PRSA.
Fourth, Cueto has failed to sufficiently or plausibly state a claim under the Helms-Burton Act. That Act is not generally applicable; it has a host of specific elements that must be pled and proved to sustain a claim and which are noticeably absent from the Complaint.
For all of these reasons, the Complaint should be dismissed pursuant to Rule 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6).
