From Court Filing: "CMA CGM S.A. is entangled between two conflicting legal systems and therefore AMERICA seeks a stay until thirty (30) days after CMA CGM S.A. receives authorization from the EU... The duration of the requested stay is reasonable and will be further limited if Defendant’s request for authorization is granted prior to the stay’s expiration date... The European Commission has received at least two comparable requests for authorization to participate in lawsuits under the Helms-Burton Act. The two requests are currently pending before the European Commission and have been pending for at least 17 months. Given the circumstances and overlapping policy considerations, AMERICA anticipates that the European Commission will act on its authorization in a much shorter period of time than with the prior applicants."

“There are currently two such requests pending from other cases filed under the Helms-Burton Act in the United States District Court for the Southern District of Florida. The Honorable Robert N. Scola Jr. and the Honorable Darrin P. Gayles both granted motions to stay the proceedings under similar circumstances. See Order Granting Iberostar’s Motion to Stay, Marti v. Iberostar Hoteles y Apartamentos S.L., No. 20-CV-20078-Scola (S.D. Fla. Apr. 24, 2020), [D.E. 17]; Paperless Order Granting Motion to Stay, Rodriguez et al. v. Imperial Brands PLC, et al., No. 20-CV-23287-Gayles (S.D. Fla. Sept. 23, 2020), [D.E. 49].“

“The Commission is actively considering these requests. Just two weeks ago, the Secretary General of the European Commission issued a report specifically confirming the Commission is currently assessing an application for authorisation in” one of the two cases stayed in the Southern District of Florida.”

ODETTE BLANCO DE FERNANDEZ née BLANCO ROSELL; EMMA RUTH BLANCO, in her personal capacity, and as Personal Representative of the ESTATE OF ALFREDO BLANCO ROSELL, JR; HEBE BLANCO MIYARES, in her personal capacity, and as Personal Representative of the ESTATE OF BYRON BLANCO ROSELL; SERGIO BLANCO DE LA TORRE, in his personal capacity, and as Administrator Ad Litem of the ESTATE OF ENRIQUE BLANCO ROSELL; EDUARDO BLANCO DE LA TORRE, as Administrator Ad Litem of the ESTATE OF FLORENTINO BLANCO ROSELL; LIANA MARIA BLANCO; SUSANNAH VALENTINA BLANCO; LYDIA BLANCO BONAFONTE; JACQUELINE M. DELGADO; BYRON BLANCO, JR.; MAGDALENA BLANCO MONTOTO; FLORENTINO BLANCO DE LA TORRE; JOSEPH E. BUSHMAN; CARLOS BLANCO DE LA TORRE; and GUILLERMO BLANCO DE LA TORRE; Plaintiffs, v. CMA CGM S.A. (a/k/a CMA CGM THE FRENCH LINE; a/k/a CMA CGM GROUP); CMA CGM (AMERICA) LLC. [1:21-cv-22778; Southern Florida District]

Berliner Corcoran & Rowe LLP (plaintiff)
Horr, Novak & Skipp P.A. (plaintiff)
Fields PLLC (plaintiff)
Law Offices of John S. Gaebe P.A. (plaintiff)

Links:
Defendant CMA CGM (America) LLC’s Motion To Stay Proceedings Pending International Request (9/20/21)
Defendant CMA CGM (America) LLC’s Certificate Of Interested Parties And Corporate Disclosure Statement (9/21/21)
Defendant CMA CGM (America) LLC’s Certificate Of Interested Parties And Corporate Disclosure Statement (9/21/21)
Defendant CMA CGM (America) LLC’s Certificate Of Interested Parties And Corporate Disclosure Statement (9/20/21)

Report From The Commission To The European Parliament And The Council Relating To Article 7(A) Of Council Regulation (EC) No 2271/96 (‘Blocking Statute’)

Liberta d Act T it le III Lawsuit Statistics

Excerpts From Motion To Stay:

COMES NOW Defendant CMA CGM (AMERICA) LLC (hereinafter sometimes referred to as “AMERICA”). It files this motion to temporarily stay all proceedings while codefendant CMA CGM S.A. pursues a “request for authorization” to participate in these proceedings to avoid violating European Union and French blocking statutes. In support of its motion, AMERICA submits the Declaration of Me. Le Franc-Barthe and following memorandum of law.

Litigation against European companies under the Helms-Burton Act of 1996 can subject such companies to “differing legal commands of separate sovereigns.” In two recent cases, judges in this District thus recognized that the “interest of international comity” necessitated stays pending an international “request for authorization” from the European Union. CMA CGM (AMERICA) LLC respectfully seeks such a stay. America acts as general agent for Defendant CMA CGM S.A. in the United States. A stay is necessary to avoid violating European Union and French blocking statutes for participating in this case and thereby defending against Plaintiffs’ self-described “bank shot” theory of monetary liability, on decades-old claims, regarding the same property that Plaintiffs are litigating over elsewhere.

CMA CGM S.A. is a company organized and existing under the laws of the French Republic and is confronted with conflicting legal obligations. AMERICA is the general agent in the United States for CMA CGM S.A. This necessitates a temporary stay of the proceedings.

Under U.S. law, the CMA CGM Companies, including AMERICA, must defend themselves in these proceedings. However, CMA CGM S.A. is legally precluded by another sovereign from participating in the lawsuit. It must receive authorization from the European Commission in compliance with a European Union “blocking statute” (“EU Blocking Statute”), and various articles of a French national blocking statute are similarly at issue.

The EU Blocking Statute prohibits compliance by European Union operators with any requirement or prohibition based on specified foreign laws, which includes Title III of the Helms-Burton Act. In compliance with the EU Blocking Statute, on September 19, 2021, CMA CGM S.A. filed a request for authorization before the European Commission.

In its request for authorization to the European Commission, CMA CGM S.A. requested expedited treatment. The request for authorization does not have suspensive effect, and the European Commission’s authorization becomes effective as of the date the applicant receives such authorization. Therefore, in the interim, CMA CGM S.A. is obligated to comply with the EU Blocking Statute.

CMA CGM S.A. is also subject to obligations under the French blocking statute enacted in 1968 (“French Blocking Statute”). To avoid any further delay and ensure compliance with French law, CMA CGM S.A. has initiated a process to comply with provisions of the French blocking statute as well.

Subject to and without waiving any of its defenses, including defenses as to personal jurisdiction, and other Rule 12 defenses, AMERICA as an agent now seeks a temporary stay of the proceedings. This should continue until thirty (30) days after the European Commission has granted CMA CGM S.A.’s request for authorization, subject to status reports on the progress of its application every sixty (60) days, or as otherwise directed by the Court.

CMA CGM S.A. has a genuine interest in participating in the proceedings before this Court. At the same time, CMA CGM S.A. must comply with the laws of its home jurisdiction. The European Commission grants authorizations to EU operators in specific and duly motivated circumstances, when it is necessary to avoid serious damage to an EU operator’s interests or those of the European Union.

Following reinstatement of Title III, the EU Commission received a “substantial number of notifications” concerning the EU Blocking Statute, as demonstrated below.37 In total, 28 notifying parties informed the Commission or the relevant national competent authority about litigation before a US judicial authority or proceedings before a US administrative authority. Most of these notifications concern the application of Title III of the Helms-Burton Act which covers “trafficking” in property expropriated by the Cuban government.

There are currently two such requests pending from other cases filed under the Helms-Burton Act in the United States District Court for the Southern District of Florida. The Honorable Robert N. Scola Jr. and the Honorable Darrin P. Gayles both granted motions to stay the proceedings under similar circumstances. See Order Granting Iberostar’s Motion to Stay, Marti v. Iberostar Hoteles y Apartamentos S.L., No. 20-CV-20078-Scola (S.D. Fla. Apr. 24, 2020), [D.E. 17]; Paperless Order Granting Motion to Stay, Rodriguez et al. v. Imperial Brands PLC, et al., No. 20-CV-23287-Gayles (S.D. Fla. Sept. 23, 2020), [D.E. 49].

The Commission is actively considering these requests. Just two weeks ago, the Secretary General of the European Commission issued a report specifically confirming the Commission is currently assessing an application for authorisation in” one of the two cases stayed in the Southern District of Florida.

The principles of international comity direct federal courts to “take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.”

AMERICA needs CMA CGM S.A. to contribute to its defense once CMA CGM S.A has received authorization under EU and French law. But without the contributions of CMA CGM S.A.—even if CMA CGM S.A. is dismissed as a formal party from the case43—AMERICA will be unable to properly and fairly defend itself. See Turner Ent. Co., 25 F.3d at 1522 (“Ensuring the ability of the parties to fully and fairly litigate their claims in some tribunal surely is a paramount goal of international abstention principles.”).

CMA CGM S.A. is entangled between two conflicting legal systems and therefore AMERICA seeks a stay until thirty (30) days after CMA CGM S.A. receives authorization from the EU.

48. The duration of the requested stay is reasonable and will be further limited if Defendant’s request for authorization is granted prior to the stay’s expiration date. See Ortega Trujillo, 221 F.3d at 1264 (observing that a district court’s stay must not be “immoderate”).

49. The European Commission has received at least two comparable requests for authorization to participate in lawsuits under the Helms-Burton Act. The two requests are currently pending before the European Commission and have been pending for at least 17 months. Given the circumstances and overlapping policy considerations, AMERICA anticipates that the European Commission will act on its authorization in a much shorter period of time than with the prior applicants.

If the motion to stay is granted, to prevent any potentially immoderate length, AMERICA will provide status reports on the progress of CMA CGM S.A.’s application every sixty (60) days, or as otherwise directed by the Court. AMERICA further warrants that it will continue to press for an expeditious disposition of CMA CGM S.A.’s pending application before the European Commission and the French Ministry of Justice.

LINK: Defendant CMA CGM (America) LLC’s Motion To Stay Proceedings Pending International Request

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL relating to Article 7(a) of Council Regulation (EC) No 2271/96 (‘Blocking Statute’) (3 September 2021)

Excerpts:

3. OVERVIEW OF NOTIFICATIONS UNDER ARTICLE 2 OF THE BLOCKING STATUTE

The Commission has received a majority of notifications from companies engaged in international trade or banking activities. It has also received a number of notifications from individuals and other entities, like associations, diplomatic missions, and business federations. In total, between 1 August 2018 and 1 March 2021 the Commission received 63 notifications: 35 related to US sanctions against Cuba; and 28 related to US sanctions against Iran.

3.4. Administrative and judicial proceedings in the United States In total, 28 notifying parties informed the Commission or the relevant national competent authority about litigation before a US judicial authority or proceedings before a US administrative authority. Most of these notifications concern the application of Title III of the Helms-Burton Act which covers ‘trafficking’ in property expropriated by the Cuban government. While actions taken under Title III exclusively affect EU companies, Title IV proceedings target individuals.

Litigation related to the application of Title III of the Helms-Burton Act (Cuba)

Several EU persons and companies reported that they received a notice of intent to start an action before US courts under Title III of the Helms-Burton Act.

These notices were sent by US persons or companies claiming that EU companies had engaged in ‘trafficking’ of expropriated properties in Cuba. They generally inform the EU company that legal action will be initiated unless the recipient of the notice immediately ‘ceases to traffic’ in the property. 12 The Commission was also notified of the start of formal proceedings before US courts.

In this regard, courts in the US on two occasions accepted to stay the proceedings while the EU defendant requests authorisation from the Commission. The Commission is currently assessing an application for authorisation in such a case.

Administrative proceedings in the United States under Title IV of the Helms-Burton Act (Cuba)

A few individuals reported that the US Department of State had informed them of the start of, or the intention to initiate, proceedings under Title IV of the Helms-Burton Act. Title IV allows the US Department of State to deny entry to US territory to any foreign natural person and their families whom the Department of State recognises as having ‘trafficked’ in confiscated property in Cuba claimed by US nationals. The individuals targeted are managers or high-level employees of companies accused of ‘trafficking’ in confiscated US properties. The Commission is also aware that certain EU citizens and their families have been barred from entering the US on these grounds.

LINK: Report From The Commission To The European Parliament And The Council Relating To Article 7(A) Of Council Regulation (EC) No 2271/96 (‘Blocking Statute’)

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