Excerpts From Amicus Brief:

"The United States deplores the nationalization and expropriation of property of U.S. nationals by the Cuban government in the strongest terms and has repeatedly communicated to the Cuban government the need to provide compensation for such takings of property. The United States also condemns the trafficking in nationalized and expropriated property by the Cuban government and others. It is the longstanding policy of the United States to achieve compensation for U.S. nationals with outstanding claims related to Cuban expropriations."

"As explained below, the application of the lawful travel exclusion is underdeveloped in the records of these cases."

"Relying on that well-established regulatory regime ensures that potentially sensitive foreign policy questions regarding the lawfulness of travel to Cuba are decided by the political branches."

"The Court asked for the United States’ views on the effect of the lawful travel exclusion on the plaintiffs’ claims. Because none of the district court decisions applied the lawful travel exclusion, and because the issue is generally underdeveloped in the record, the United States does not take a position on whether or how the exclusion might apply to the facts of these cases. But the United States does note that, in its view, a plaintiff does not bear the burden to plead specific allegations that would establish that the defendant’s travel-related transactions were not “incident to lawful travel.”

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)

Motion By The United States To File Over-Length Brief (4/11/22)
Brief For United States As Amicus Curiae (4/11/22)
USDOJ Appearance Counsel Form (1/25/22)
Notice Of Amicus Participation By The United States (3/22/22)
Del Valle v. Expedia Group Inc., No. 20-12407 - Rule 28(j) Letter Citing Supplemental Authority (4/4/22)
Libertad Act Lawsuit Filing Statistics

Excerpt From Amicus Brief:

“SUMMARY OF ARGUMENT I.A. 22 U.S.C. § 6082(a)(4)(B) and (C) partially define the class of “United States national[s]” who may bring suit under Title III of the LIBERTAD Act. As a matter of grammar and statutory structure, the “United States national” referred to in 22 U.S.C. § 6082(a)(4)(B) and (C) is the plaintiff bringing suit. Other provisions of the statute define different classes of “United States nationals,” but there is nothing inconsistent about interpreting those provisions as identifying different classes of United States nationals for the different ends furthered by the provisions. B. Under its ordinary meaning, the undefined term “acquire[]” in 22 U.S.C. § 6082(a)(4)(B) includes inheritance. The qualification in 22 U.S.C. § 6082(a)(4)(C) that a United States national may not bring suit related to property expropriated after March 12, 1996, if the person “acquires ownership of a claim to the property by assignment for value” demonstrates that Congress qualified the ordinary meaning of “acquire[]” when it intended to do so. Because there is no federal law governing when a claim is acquired by an heir, state or foreign law determines the date on which a LIBERTAD plaintiff acquired his interest in the relevant property through inheritance. II. The President’s statutory authority to suspend the effective date of Title III or the right of action does not affect the class of individuals who may bring suit under the LIBERTAD Act. Congress gave the President suspension authority to afford the President flexibility to respond to unfolding developments in Cuba. But nothing in the statute suggests that the grant of the President’s suspension authority alters the class of individuals who may sue or that the President’s exercise of that authority expands the class beyond that specified by the statute. III. Travel to Cuba by persons subject to U.S. jurisdiction is highly restricted under federal law and is lawful only if the transactions related to such travel are authorized by OFAC’s Cuban Assets Control Regulations. The Libertad Act’s lawful travel exclusion implicitly points to that body of law. The phrase “lawful travel to Cuba,” 22 U.S.C. § 6023(13)(B)(iii), thus means travel that is permissible under OFAC regulations. And “transactions and uses of property” are “incident to lawful travel to Cuba, to the extent that such transactions and uses of property are necessary to the conduct of such travel,” id., if the transactions and uses of property are “ordinarily incident to a licensed transaction” involving travel to Cuba “and necessary to give effect thereto,” 31 C.F.R. § 515.421(a). Transactions related to travel to Cuba are lawful only if they are authorized by OFAC regulations at the time of the transaction, so the possibility that OFAC may change its regulations does not affect the lawful travel exclusion in the LIBERTAD Act. OFAC provides various resources to assist persons in determining the legality of activities involving travel to Cuba, including examples in its regulations, answers to frequently asked questions on the agency’s website, and a telephone hotline. The record in these cases is not sufficiently developed for the United States to opine on the application of the lawful travel exclusion to plaintiffs’ claims. However, it is not the burden of a plaintiff asserting claims under Title III to plead that transactions related to travel to Cuba were unlawful. The facts to establish that a transaction was incident to lawful travel to Cuba are uniquely in the possession of the person engaging in the transaction, and it is unlikely that any plaintiff could have a basis to allege that the conduct at issue did not fall within the lawful travel exclusion. Accordingly, the better interpretation of the statute is that a plaintiff bringing suit under Title III does not have an obligation to plead that challenged activity does not come within the lawful travel exclusion.”

Background

The Court asks that the United States file its amicus brief by February 25, 2022, at which time the parties in the cases will be permitted to respond. Should the United States elect not to file an amicus brief, it should so notify the Court by January 25, 2022: U.S. ATTORNEY GENERAL; UNITED STATES SOLICITOR GENERAL; OFFICE OF THE LEGAL ADVISER, U.S. DEPARTMENT OF STATE; UNITED STATES OF AMERICA (Southern District Attorneys). On Appeal from the United States District Court for the Southern District of Florida . BEFORE: JORDAN, NEWSOM, and BURKE,* District Judge. ORDER: The Court invites the United States – through the Attorney General, the Solicitor General, and/or the Office of the Legal Adviser to the State Department –to file an amicus brief in Mario Del Valle, et al., v. Trivago GMBH, et al., No.20-12407 (argued Oct. 4, 2021), Javier Garcia-Bengochea v. Carnival Corporation, No. 20-12960 (argued Oct. 4, 2021), and Javier Garcia-Bengochea v. Royal Caribbean Cruises, LTD., No. 20-14251 (argued Oct. 4, 2021), pursuant to Fed.R.App.P. 29(a)....The Court invites the United States to address the following questions concerning the Helms-Burton Act, 22 U.S.C. § 6082:...The court asks that the U.S. file its amicus brief by 2/25/22... AJ, KCN and LCB (See attached order for complete text) [20-12407, 20-12960, 20-14251] [Entered: 12/20/2021 04:48 PM]. The Court invites the United States to address the following questions concerning the Helms-Burton Act, 22 U.S.C. § 6082:

Does the term “United States national” in 22 U.S.C. §§ 6082(a)(4)(B) and 6082(a)(4)(C) refer to the plaintiff bringing the action, or the original claimant to the confiscated property, or both?
What does the word “acquire[ ]” in 22 U.S.C. § 6082(a)(4)(B) mean? Is inheritance encompassed in the term “acquire[ ]?” And if “acquire[ ]” does include inheritance, at what point is a claim “acquire[d]” by an heir within the meaning of the statute?
How, if at all, does the phrase “assignment for value” in 22 U.S.C. §6082(a)(4)(C) affect the pool of eligible claimants compared to the pool of eligible claimants under 22 U.S.C. §6082(a)(4)(B)?
What effect, if any, does the President’s ability to suspend Title III pursuant to 22 U.S.C. § 6085(b) have on defining the class of eligible claimants who can bring an action under 22 U.S.C. § 6082(a)(4)? Does the President’s ability to suspend Title III imply that the statute was drafted to allow the heirs of American citizens – whose property was unlawfully confiscated and “trafficked” by third parties – to bring claims under 22 U.S.C. § 6082(a)(4)?
What effect, if any, does the lawful travel exception, 22 U.S.C. §6023(13)(B)(iii), have on the plaintiffs’ claims? What effect, if any, does the possibility that the Office of Foreign Assets Control (OFAC) can change the permissible reasons for travel to Cuba have on the lawful travel exception?
What does the phrase “incident to lawful travel” in 22 U.S.C. §6023(13)(B)(iii) mean? Who or what defines “lawful travel” (e.g. OFAC)? What guidance should persons and entities look to in determining whether their activities are “incident to lawful travel?”

“ORDER: The motion filed by the United States for an extension of time, up to and including April 11, 2022, to file the amicus brief is GRANTED. The motion for an extension to March 11, 2022, to notify the Court that the United States elects not to file an amicus brief is GRANTED.”

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