After 720 Days, Has Title III Of The Libertad Act Resulted In What Its Authors & Advocates In 1996 Proffered That It Would Accomplish? The "Jury" Is Still Out...
/Two Years Since Title III Lawsuits Permitted
Thus Far No Verdicts Or Judgements Requiring Defendants To Pay Anything
More Than 223 Attorneys Billing Millions Of Dollars
Plaintiffs Continue To Wait
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”).
After 720 days, has implementing Title III of the Libertad Act resulted in what its authors and advocates in 1996 proffered that it would accomplish? The jury’s still out.
To date, none of the thirty-six lawsuits have had a trial by jury, no judge has issued a monetary judgement, none of the more than seventy defendants have confirmed they have settled with plaintiffs.
What is known: Attorneys representing plaintiffs and defendants may have accumulated approximately US$19 million in billable hours. For the plaintiffs, they are collectively seeking billions of United States dollars in damages.
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 III was suspended in six-month increments as required by the Libertad Act by the Clinton Administration (1993-2001), Bush Administration (2001-2009), Obama Administration (2009-2017) and through the first half of the Trump Administration (2017-2021).
36 Lawsuits Filed (11 Certified Claimants & 25 Non-Certified Claimants)
4 Of The Dismissed Lawsuits At Court Of Appeals
US$244,800.00+ Court Filing Fees (not including attorney court appearance fees)
79+ Law Firms
223+ Attorneys
13,500+ Filed Court Documents
US$19+ Million Law Firm Billable Hours (estimated 85% by defendants)
15 Countries Impacted
118 Plaintiffs (some in multiple cases)
4 Class Action Requests
70 Defendants (including corporate parent, subsidiaries; some sued in multiple lawsuits)
25 United States Defendants (not including subsidiaries)
6 Republic of Cuba Initial Defendants (three remaining)
30 Non-United States Defendants
9 European Union-Based Defendants
5 Companies Notified As Potential Defendants
The Republic of Cuba’s unattractiveness as a depository for Direct Foreign Investment (DFI) has far more to do with its commercially inhospitable landscape, a direct byproduct of directives of the Communist Party of Cuba, than with the affect and effect of United States policies, regulations and statues, as well as the Libertad Act. As a result, there are few companies, particularly those globally-connected, who have a substantial DFI or other type of presence within the Republic of Cuba.
Given the Republic of Cuba’s 11.3 million population, its level of DFI should be in the tens of billions of dollars- even with the commercial, economic and political sanctions implemented by the United States.
Libertad Act Background
The Trump Administration has made operational Title III and further implemented Title IV 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.
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 and one Spain-based company are currently known to be subject to this provision based upon a certified claim and non-certified claim.
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.
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 US$8.7 billion.
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.
