11th Circuit Reverses District Judge. Rules Libertad Act Cuba Lawsuits Against Expedia-Owned Trivago (Germany) And Booking.com (Netherlands) May Proceed. Louis Vuitton Decision Has A Role.

11th Circuit Court Of Appeals Reverses District Judge And Rules Libertad Act Lawsuits Against Trivago (Germany) Owned By Expedia (US) And Booking.com (Netherlands) Relating To Cuba May Proceed.  There Is Jurisdiction.  Louis Vuitton Decision Has A Role.  

MARIO DEL VALLE, ENRIQUE FALLA, MARIO ECHEVARRIA V. EXPEDIA, INC., HOTELS.COM L.P., HOTELS.COM GP, ORBITZ, LLC, BOOKING.COM B.V., BOOKING HOLDINGS INC.  Initial defendants were: TRIVAGO GMBH, BOOKING.COM B.V., GRUPO HOTELERO GRAN CARIBE, CORPORACION DE COMERCIO Y TURISMO INTERNACIONAL CUBANACAN S.A., GRUPO DE TURISMO GAVIOTA S.A., RAUL DOE I-5, AND MARIELA ROE 1-5, [1:19-cv-22619 Southern Florida District; 20-12407 11th Circuit Court of Appeals] 

Rivero Mestre LLP (plaintiff)
Manuel Vazquez, P.A. (plaintiff)
Baker & McKenzie, LLP (defendant)
Scott Douglass & McConnico (defendant)
Akerman (defendant)

LINK To Opinion Of The Court (11/22/22)
LINK To Libertad Act Title III Lawsuit Filing Statistics

Excerpts From Opinion:

In this appeal we confront questions of personal jurisdiction and Article III standing in an action brought under Title III. We conclude that, based on the uncontroverted allegations in the plain-tiffs’ complaint, the district court has specific jurisdiction over the defendants pursuant to Fla. Stat. § 48.193(1)(a)(2) and that the exercise of jurisdiction does not violate the Due Process Clause of the Fourteenth Amendment. We also conclude that the plaintiffs have standing to assert their Title III claims. 

The Booking Entities and Expedia Entities moved to dismiss the complaint for lack of personal jurisdiction, lack of subject-matter jurisdiction, and failure to state a claim. Notably, they did not submit any affidavits or other exhibits rebutting the jurisdictional allegations in the complaint. The personal jurisdiction challenge, therefore, was facial and not factual.  The district court dismissed the plaintiffs’ Title III claims without leave to amend, ruling that it lacked personal jurisdiction over the defendants under the relevant provisions of Florida’s long-arm statute. See Fla. Stat. §§ 48.193(1)(a)(1), 48.193(1)(a)(2), 48.193(2). The district court did not reach the defendants’ other grounds for dismissal. 

Following a review of the record, and with the benefit of oral argument, we reverse. The plaintiffs alleged that the Booking Entities and Expedia Entities operate fully interactive travel websites that are accessible in Florida, and that Florida residents have used those websites to book accommodations at the Resorts. These allegations, which were not controverted below, establish personal jurisdiction. We also conclude that the plaintiffs have Article III standing for their Title III claims. 

With respect to the first step of the personal jurisdiction analysis, we begin (and end) with § 48.193(1)(a)(2) of Florida’s long-arm statute. A specific jurisdiction provision, it provides that a non-resident defendant is subject to personal jurisdiction for any cause of action “arising from” a “tortious act” committed in Florida. We have consistently held that, under Florida law, a non-
resident defendant commits a tortious act in Florida by performing an act outside the state that causes injury within Florida.

In Louis Vuitton, we held that a nonresident defendant committed a tortious act in Florida under § 48.193(1)(a)(2) when he sold trademark-infringing goods to Florida residents through his website.  See 736 F.3d at 1354. The district court here distinguished Louis Vuitton because “it involved a trademark infringement claim in which the infringement occurred through the website. In other words, the use of the website constituted the claim itself.” D.E. 71 at 5. The district court explained that the tort at the heart of the Helms-Burton Act claims against the Booking Entities and Expedia Entities is “traffick[ing] in . . . confiscated property, which occurred in Cuba.” We respectfully disagree, and conclude that Louis Vuitton is a closer fit than the district court thought. 

III and provides for specific personal jurisdiction under §48.193(1)(a)(2). See Internet Solutions Corp., 39 So.3d at 1215. See also Wendt, 822 So.2d at 1260 (“‘[C]ommitting a tortious act in Florida’ . . . can occur through the nonresident defendant’s tele-phonic, electronic, or written communications into Florida.”); Rennaissance Health Pub., LLC v. Resveratol Partners, LLC, 982 So. 2d 739, 742 (Fla. 4th DCA 2008) (“An interactive website which allows a defendant to enter into contracts to sell products to Florida residents, and which ‘involve[s] the knowing and repeated trans-mission of computer files over the internet,’ may support a finding of personal jurisdiction.”).

As explained above, the complaint’s allegations satisfied the requirements for specific jurisdiction pursuant to § 48.193(1)(a)(2). Because the Booking Entities and Expedia Entities did not rebut those allegations, we next consider whether the exercise of personal jurisdiction comports with the Constitution. The Due Process Clause of the Fourteenth Amendment protects a party from being subject to the binding judgment of a forum with which it has established no meaningful “contacts, ties, or relations.”

The first prong—which addresses the concept of related-ness—focuses on the “causal relationship between the defendant, the forum, and the litigation.” Fraser, 594 F.3d at 850 (internal quo-tation marks omitted). Importantly, the Supreme Court recently rejected the contention that specific jurisdiction may attach only when the defendant’s forum conduct directly gave rise to the plain-tiff’s claims. See Ford Motor Co., 141 S. Ct. at 1026-27 (“[W]e have never framed the specific jurisdiction inquiry as always requiring proof of causation—i.e., proof that the plaintiff’s claim came about because of the defendant’s in-state conduct.”).  This prong is readily met here. Though direct causation is not required, the plaintiffs’ Helms-Burton Act claims arise at least in part directly out of the contacts of the Booking Entities and the Expedia Entities with Florida—the promotion targeted at and di-rected to Florida residents, the accessing of their websites by Florida residents, and the use of those websites by some Florida residents to book accommodations at the Resorts. To borrow the language of Louis Vuitton, the ties of the Booking Entities and Expedia Entities “to Florida . . . involve the advertising [and] selling” of accommodations at the Resorts to Florida residents. 736 F.3d at 1356. 

The Booking Entities and Expedia Entities also assert that we lack subject-matter jurisdiction over this case because the plaintiffs do not have Article III standing to bring their Title III claims. In essence, they argue that the plaintiffs cannot allege injury-in-fact; even if the Booking Entities and Expedia Entities never trafficked in the properties, the properties would still have been confiscated by the Cuban government and the plaintiffs’ positions would be unchanged. They further argue that any injury is not traceable to them because they did not confiscate the  plaintiffs’ properties and do not operate the hotels. As we explain in more detail in Garcia-Bengochea v. Carnival Corp., Nos. 20-12960 & 20-14251, ___ F.4th ___ (11th Cir. 2022), this lack-of-standing theory fails. 

As we note in Garcia-Bengochea, all the courts that have tackled this question have concluded that similarly-situated plain-tiffs have Article III standing to bring a claim under Title III. See, e.g., Glen v. Am. Airlines, Inc., 7 F.4th 331, 334–36 (5th Cir. 2021); Glen v. Trip Advisor LLC, 529 F.Supp.3d 316, 326–28 (D. Del. 2021), aff’d, 2022 WL 3538221, at *2 (3d Cir. August 18, 2022); de Fernandez v. Crowley Holdings, Inc., No. 21-CV-20443, 2022 WL 860373, at *3–*4 (S.D. Fla. Mar. 23, 2022); Exxon Mobil Corp. v. Corporación CIMEX S.A., 534 F.Supp.3d 1, 30–32 (D.D.C. 2021); Sucesores de Don Carlos Nuñez y Doña Pura Galvez, Inc. v. Société Générale, S.A., 577 F.Supp.3d 295, 307–10 (S.D.N.Y. Dec. 22, 2021); Moreira v. Société Générale, S.A., 573 F.Supp.3d 921, 925–29 (S.D.N.Y. Nov. 24, 2021); N. Am. Sugar Indus. Inc. v. Xinjiang Goldwind Sci. & Tech. Co., No. 20-CV-22471 (DPG), 2021 WL 3741647, at *3–*6 (S.D. Fla. Aug. 24, 2021); Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 484 F.Supp.3d 1215, 1226–31 (S.D. Fla. 2020); Havana Docks Corp. v. MSC Cruises SA Co., 484 F. Supp. 3d 1177, 1190–95 (S.D. Fla. 2020); Havana Docks Corp. v. Carnival Corp., No. 19-CV-21724 (BB), 2020 WL 5517590, at *6– *11 (S.D. Fla. Sept. 14, 2020). We agree with this unanimous perspective. 

Based on the uncontroverted allegations in the complaint, the district court has specific personal jurisdiction over the Booking Entities and Expedia Entities pursuant to Fla. Stat. § 48.193(1)(a)(2), and the exercise of such jurisdiction does not violate the Due Process Clause of the Fourteenth Amendment. The plaintiffs also haveplausibly alleged Article III standing. We therefore reverse the district court’s dismissal of the plaintiffs’ complaint and remand for further proceedings.