In Brussels Will U.S. Secretary Of State Blinken Discuss Cuba, Libertad Act And Venezuela With EC/EU Officials? Will He Rebuff, Sway Or Be Swayed? Quid Pro Quo?
/Suspend Title III? Back-Off Title IV?
EU Defendants Total 2019 Revenues US$156 Billion
U.S. Plaintiffs Potentially Entitled To Hundreds Of Billions In Damages
US$6+ Million In Legal Fees So Far
EU Defendants Waiting 341 Days For EC Guidance. If Libertad Act So Offensive & Disruptive To EU-U.S. Relations, Why No Guidance?
Will EC Do What UK Did?
United States Department of State: “Secretary of State Antony J. Blinken will travel to Brussels, Belgium, from March 22-25 to attend the NATO Ministerial, engage with European Union leaders, and meet with Belgian officials. The meetings in Brussels reaffirm the United States’ commitment to our Allies and European partners on our shared agenda… In addition, the Secretary will meet [March 24 at 5:30 pm] with European Commission [EC] President Ursula von der Leyen and meet [March 24 at 6:30 pm] with EU [European Union] High Representative for Foreign Affairs and Security Policy and European Commission Vice President Josep Borrell to discuss Transatlantic goals to contain the COVID-19 pandemic, pursue a sustainable global economic recovery, tackle the climate crisis, and strengthen democracy.”
A diplomatic challenge for President von der Leyen and Vice President Borrell. H.E. Dr. von der Leyen served in three cabinet positions and was the longest serving member of Chancellor Angela Merkel’s cabinet; and Libertad Act Title III defendant Trivago GmbH is headquartered in Dusseldorf, Germany. H.E. Josep Borrell was Minister of Foreign Affairs, EU and Cooperation of the Kingdom of Spain; and Libertad Act Title III defendants Melia Hotels International S.A. and Iberostar Hoteles y Apartamentos S.L. are both headquartered in Palma, Spain.
The Trump Administration on 2 May 2019 made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act” and “Helms-Burton”). Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset. Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims. One Canada-based company (Toronto-based Sherritt International) and one Spain-based company (Melia Hotels International) are currently known to be subject to Title IV based upon a certified claim and non-certified claim.
EU-based defendants in Libertad Act Title III lawsuits include: Copenhagen, Denmark-based A.P. Moller-Maersk A/S (2019 revenue approximately US$39 billion); Paris, France-based BNP Paribas (2019 revenue approximately US$49 billion); Amsterdam, Netherland-based Booking.com B.V. (2019 revenue approximately US$15 billion); Palma, Spain-based Iberostar Hoteles y Apartamentos S.L. (2019 revenue approximately US$2.6 billion); Palma, Spain-based Melia Hotels International S.A. (2019 revenue approximately US$2 billion); Paris, France-based Pernod Ricard S.A. (2019 revenue approximately US$10.5 billion); Paris, France-based Société Générale S.A. (2019 revenue approximately US$27.4 billion); and Dusseldorf, Germany-based Trivago GmbH (2019 revenue approximately US$940 million). Additional lawsuits are expected to be filed.
Into the third month of the Biden Administration, the Republic of Cuba and Venezuela are rarely mentioned in official readouts of conversations by President Joseph Biden, Secretary of State Blinken, and Assistant to the President for National Security Affairs Jake Sullivan with other country leadership.
Ms. Jen Psaki, Assistant to the President and Press Secretary, and Mr. Ned Price, Spokesperson of the United States Department of State, generally reference the following- with the Libertad Act absent:
“First, support for democracy and human rights will be at the core of our efforts, because we believe it is the means to empower the Cuban people to determine their own future; and second, as we’ve said before, we also know that Americans, especially Cuban Americans, are in most cases the best ambassadors for freedom and prosperity in Cuba. We are committed to both of these principles. Our review is being animated by both of those principles. We have also committed – and you heard this from Secretary Blinken up on the Hill yesterday – to consult closely with members of Congress as we undertake this review. So it is not that – it is not that this is in any way on the back burner. It is something we’re looking at very closely, and as that review progresses, we’ll consult with members of Congress. And when we have something to share, we’ll let you know.”
“Well, we’ve talked about this a little bit in here before and nothing has really changed, but I’m happy to reiterate our policy. Our policy, as it relates to Cuba, will be governed by two principles: First, support for democracy and human rights will be at the core of our efforts through empowering the Cuban people to determine their own futures. Second, Americans, especially Cuban Americans, are the best ambassadors for freedom and prosperity in Cuba. A Cuba policy shift is not currently among President Biden's top priorities, but we are committed to making human rights a core pillar of our U.S. policy, and we're committed to carefully reviewing policy decisions made in the prior administration, including the decision to designate Cuba as a State Sponsor of Terrorism.”
The Biden Administration has four reviews underway relating to the Republic of Cuba: 1) comprehensive policy review led by the National Security Council (NSC) and United States Department of State with a focus upon what changes should be made to policies and regulations implemented during the Trump Administration (2017-2021) including whether to nominate a United States Ambassador to the Republic of Cuba 2) reviews led by the Central Intelligence Agency (CIA) and United States Department of State into the cause(s) of injuries to United States government employees in 2016/2017 while they were in the Republic of Cuba 3) whether to suspend again Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as the “Libertad Act”) and 4) whether to remove the Republic of Cuba from the State Sponsors of Terrorism List maintained by the United States Department of State.
Absent a crisis in the Republic of Cuba directly impacting the United States, there has been no demonstrated urgency for completing the four reviews.
Thirty-six (36) Libertad Act Title III lawsuits have been filed in United States District Courts. Some of the lawsuits have since been appealed, consolidated, dismissed, refiled, reversed, and transferred within districts and from district to district. Some defendants have been dismissed, but the case continues with other defendants.
There are 118 plaintiffs and seventy defendants of which twenty-five are located in the United States. Fifteen countries are impacted. Nine defendants are headquartered within member countries of the EU. Seventy-five law firms have been retained with more than 218 attorneys listed within lawsuit filings. More than 13,500 documents have been introduced. Estimated law firm billable hours are US$6+ million. Countries impacted include Canada, Chile, China, Denmark, France, Germany, Netherlands, Panama, Republic of Cuba, Singapore, Spain, Switzerland, Thailand, United Kingdom, United States. LINK To Lawsuit Filing Statistics.
In the third quarter of 2019, the then twenty-eight, now twenty-seven member EU confirmed its intention to issue a Request For Proposal (RFP) to law firms in the United States. The law firm(s) would be retained to file “amicus curiae” (friend-of-the-court) motions and other motions on behalf of each Libertad Act Title III lawsuit defendant who is domiciled in the EU. The RFP has yet to materialize.
Defendants and plaintiffs have been waiting 341 days for the EC, the administrative body for the EU, to issue guidance as to whether an EU-based defendant may defend itself against a Libertad Act Title III lawsuit filed in the United States.
On 5 February 2021, the United Kingdom Department of International Trade provided guidance to Bristol, United Kingdom-based Imperial Brands plc (2020 revenue approximately US$45 billion), authorizing the company to defend itself against a Libertad Act Title III lawsuit filed on 6 August 2020 in the United States.
One lawsuit plaintiff filing: “On April 23, 2020, Defendant Iberostar Hoteles y Apartamentos S.L. (the “Defendant” or “Iberostar”) moved to stay these proceedings so that it could obtain a ruling from the European Commission on its request for an authorization to file a response to Plaintiff’s Complaint [D.E. 16] (the “Motion to Stay”). In its filing, Defendant specifically limited the requested stay to a period of seventy-five (75) days. Motion to Stay at ¶ 2 (“To avoid a protracted delay, this request for a stay is limited to no more than 75 days.”). The next day, this Court stayed these proceedings indefinitely “until the European Union grants Iberostar’s request for authorization” and required Defendant to submit status reports every thirty days [D.E. 17] (the “April Stay Order”) (emphasis added).”
One lawsuit defendant filing: “The European Commission acknowledged receipt of Defendant’s Application on May 19, 2020. On June 15, 2020, Iberostar requested the European Commission to provide an update on the status of the Application. On June 22, 2020, the European Commission confirmed that it is “currently assessing [Defendant’s] application,” and that the Commission does “[its] utmost to ensure that a decision is taken in due course.” On August 10, 2020, the European Commission informed Iberostar regarding the procedures involved in the consideration of the pending Application. They explained that it requires “extensive consultation of both the Commission’s services and Member States’ authorities.” On September 23, 2020, the Commission replied that its “services are actively assessing [Iberostar’s] application.” The Commission highlighted that the “complexity of [Iberostar’s] request requires careful consideration, including extensive consultation of both the Commission services and Member States’ authorities.” Finally, the Commission confirmed that, “[d]espite the challenges presented by the current health situation, [they] do [their] utmost to ensure that a decision is taken in due course.” On November 19, 2020, the European Commission informed Iberostar regarding the status of its pending Application. They explained that “challenges presented by the current health situation [have] lengthened the process.” Further, it confirmed they “are doing [their]utmost to ensure a timely response.” On December 20, 2020, the European Commission sent a communication to Iberostar in which it confirmed the Commission has “been actively liaising to complete the required consultations of both the Commission Services and Member States’ authorities, as required.” The Commission “trust[s] any such assessments and investigations will shortly be completed and the authorization process will pursue its course.” On February 18, 2021, the European Commission sent a new communication to Iberostar in which it confirmed Iberostar’s “application is still undergoing assessment by [the Commission] services.” The Commission added that “the consultation of the Commission services raised questions and possible gaps of information that require further investigation.””
