According To Libertad Act Court Filing, Carnival Corporation President/CEO Lobbied U.S. Secretary Of State Mike Pompeo About Cuba Operations
/HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [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’ REPLY IN SUPPORT OF MOTION TO COMPEL AND MEMORANDUM OF LAW ON CARNIVAL’S WAIVER OF ATTORNEY-CLIENT PRIVILEGE
Excerpts:
Carnival Corporation (“Carnival”), in shotgun fashion, has lodged twenty-nine affirmative defenses to the sole count asserted in Plaintiff Havana Docks Corporation’s (“Havana Docks”) second amended complaint.1 (D.E. 160 at 18-23.) As observed at the January 11th hearing in this case, many of these defenses are not defenses at all and should be withdrawn.2 Two of these improper defenses inject Carnival’s corporate state of mind and are therefore pertinent to Havana Docks’ motion to compel (the “Motion,” D.E. 202): the “Fourth Defense—Due Process” and the “Thirteenth Defense—Lack of Intent.”
If this case is tried, Carnival will parade out its legal department, one by one, to testify about OFAC regulations and Carnival’s purported compliance with them, and then present its CEO to testify about how the Obama Administration allegedly “encouraged” Carnival to go to Cuba. But Carnival has known about its obligations under the LIBERTAD Act and Havana Docks for many years. (Mot. at 9-11.) And through discovery in this case it is apparent that Carnival was counseled that its conduct on the Subject Property was not as lawful as it now claims in this litigation.
For example, if Carnival truly believed that its conduct on the Subject Property was lawful under the LIBERTAD Act such that it actually relied on executive branch regulations and representations to insulate it from liability under that law, then why would Carnival’s President and CEO, Arnold Donald, be lobbying the Secretary of State in February 2019 for an “enabling order policy or rule” to “clarify the lawful travel exclusion [under the LIBERTAD Act] applies to cruise ships calling at Cuban ports”? (D.E. 202-6.). [NOTE: D.E. means Docket Entry; 202-6 is currently sealed and unknown if request was by plaintiff or defendant.]
By the same token, if Carnival truly believed that its conduct on the Subject Property was lawful under the LIBERTAD Act, then why would [FOUR LINES OF REDACTED TEXT].
Contrary Carnival’s position in this litigation, someone clearly was advising Mr. Arison and Mr. Donald that Carnival’s conduct was not lawful under the LIBERTAD Act. It would be manifestly unfair to allow Carnival to create a false narrative through its presentation of “objective” evidence of Government representations, while depriving Havana Docks of the ability to rebut that showing by demonstrating that Carnival knew that, regardless of what the executive branch said or did, operating on confiscated property subject to a certified claim would expose it to liability under the LIBERTAD Act.
As set forth above and in the Motion, Carnival injected its knowledge of the law into this case. Havana Docks, thus, respectfully requests that the Court order Carnival to produce withheld evidence reflecting its knowledge of the LIBERTAD Act and OFAC regulations.
LINK To Court Filing (22 February 2021)
Libertad Act Suspension History
Title III has been suspended every six months since the Libertad Act was enacted in 1996- by President William J. Clinton, President George W. Bush, President Barack H. Obama and President Donald J. Trump.
On 16 January 2019, The Honorable Mike Pompeo, United States Secretary of State, reported a suspension for forty-five (45) days.
On 4 March 2019, Secretary Pompeo reported a suspension for thirty (30) days.
On 3 April 2019, Secretary Pompeo reported a further suspension for fourteen (14) days through 1 May 2019.
On 17 April 2019, the Trump Administration reported that it would no longer suspend Title III.
On 2 May 2019 certified claimants and non-certified claimants were permitted to file lawsuits in United States courts.
