Next Filing Due 11 January 2023 After EC Issues “Sensitive Decision” In Iberostar Of Spain Libertad Act Lawsuit. After Waiting 967 Days, U.S. Court Of Appeals Had Enough- No More “Comity”
/Next Filing Due By 11 January 2023 After European Commission Issues “Sensitive Decision” In Iberostar Of Spain Libertad Act Lawsuit. After Waiting 967 Days, U.S. Court Of Appeals Had Enough- No More “Comity”
The Trump-Pence Administration (2017-2021) on 2 May 2019 made operational Title III 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.
After waiting 967 days, on 21 November 2022 the United States Court of Appeals for the Eleventh Circuit in Atlanta, Georgia, ruled that “comity” had been elasticized past its reasonable limitations by a lower court in a lawsuit first filed on 8 January 2020 in the Southern District of the United States District Court in Miami, Florida. The plaintiff had waited long enough.
The Cornell Law School Legal Information Institute defines “comity” where “courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdictions- whether state, federal or international- not as a matter of obligation but out of deference and mutual respect.”
Adding to what will likely be further indigestion by both the United States Court of Appeals for the Eleventh Circuit and the Southern District of the United States District Court will be the decision taken by the Brussels, Belgium-based European Commission (EC), the administrative body for the twenty-seven country members of the European Union (EU) relating to the defendant, Palma, Spain-based Iberostar Hoteles y Apartamentos S.L.
The EC required nearly three years to decide to decide to instruct the defendant to “the extent necessary to file and defend a motion to dismiss the Complaint.” The EC also reminded the Court that it “should restrain from exercising jurisdiction over Defendant on the basis of international comity.” Lastly, the Decision by the EC was “labeled as sensitive” and “cannot be made public without the Commission’s authorization, and it must be stored securely and encrypted in storage and transmission.”
Quite likely that the plaintiff in this lawsuit along with other plaintiffs and defendants in some of the other forty-four Libertad Act Title III lawsuits filed since 2 May 2019, particularly those with connectivity to the EC, will seek to have the complete text of the EC decision publicly available.
MARIA DOLORES CANTO MARTI, AS PERSONAL REPRESENTATIVE OF THE ESTATES OF DOLORES MARTI MERCADE AND FERNANDO CANTO BORY V. IBEROSTAR HOTELES Y APARTAMENTOS SL [1:20-cv-20078; Southern Florida District; 21-11906 11th Circuit Court of Appeals]
Zumpano Patricios P.A. (plaintiff)
Bird & Bird (defendant)
Holland & Knight (defendant)
Response/Answer Due Deadline: Iberostar Hoteles Y Apartamentos SL response/answer due 1/11/2023. PER DE#67 (cds) (Entered: 12/22/2022)
PAPERLESS ORDER: reopening this matter and directing the Defendant to respond to the Plaintiff's complaint no later than January 11, 2023, in accordance with the mandate of the Eleventh Circuit Court of Appeals (ECF No. 66) and the Defendant's most recent status report dated December 16, 2022 (ECF No. 65). The parties are further reminded of their duty to meet and confer regarding discovery and scheduling issues and to submit a joint discovery plan and conference report to the Court, as directed in the Court's order requiring scheduling conference. (ECF No. 5.) The Clerk is directed to reopen this matter. Signed by Judge Robert N. Scola, Jr. (cst) (Entered: 12/21/2022)
LINK: Defendant’s Interim Status Report (12/16/22)
LINK: Court Costs (12/20/22)
LINK: Opinion From Court Of Appeals (11/21/22)
LINK: Libertad Act Title III Lawsuit Filing Statistics
Excerpt From Opinion From Court Of Appeals
“Maria Dolores Canto Marti has waited almost three years for Iberostar Hoteles y Apartamentos S.L. to respond to her lawsuit. In January 2020 she sued Iberostar under the Helms[1]Burton Act, which grants the right to sue companies trafficking in property confiscated by the Cuban government. 22 U.S.C. § 6082. Marti claims that Cuba seized her family’s hotel in 1961 and that Iberostar and the Cuban government now operate the hotel together.
Shortly after the suit was filed, the district court stayed the case at Iberostar’s request. In support of the stay, Iberostar pointed to a European Union blocking regulation that prohibits participation in Helms-Burton suits—on pain of a fine that could reach 600,000 euros here. Iberostar had applied for an exception to the regulation, and the district court stayed the case pending the European Commission’s decision. The suit has remained frozen ever since. As months passed with no progress from the European Commission, Marti sought to end the stay. She twice moved to lift it, first in July 2020 and again in March 2021. The district court refused, relying on international comity, fairness, and judicial economy.
Marti now appeals the denial of her second motion. European Commission deliberations have stopped this case in its tracks, with no end in sight. Marti has effectively been pushed out of federal court. That means we have jurisdiction over the stay order, which is “immoderate” and thus unlawful. It is indefinite in duration and has stalled the case for almost three years. Considering this delay, we find that any earlier justifications for the stay have eroded. We reverse the district court’s denial of Marti’s renewed motion and vacate the stay. The case must go on.”
Defendant’s Interim Status Report
Defendant IBEROSTAR HOTELES Y APARTAMENTOS, S.L.U. (“Iberostar”) submits1 this interim status report pursuant to this Court’s Order Granting Defendant’s Motion to Stay Proceedings dated April 24, 2020 (D.E. 17), directing Defendant to submit status reports every 30 days on its request for authorization to the European Union Commission. Defendant states as follows:
1. On December 14, 2022, Iberostar received a Commission Decision Implementing Decision from the European Commission (“Decision”) on its application for authorization to respond to the Complaint in this action which was filed with the European Commission on April 15, 2020 (“Application”). Defendant’s Motion to Stay, ¶ 2. (D.E. 16). 1 Iberostar reserves all its rights and intends to move to dismiss based on its Rule 12 defenses consistent with the authorization received from the European Commission.
2. In the Decision the European Commission authorized Iberostar to move to dismiss this action. The Commission considered that Iberostar’s Application was necessary and justified. It further stated that the authorization is of “exceptional” nature and limited to “the extent necessary to file and defend a motion to dismiss the Complaint.”
3. In the Decision, the Commission stated the European Union’s position that the extra-territorial application of sanctions by the U.S. is an outright violation of international public law. The Commission also restated that this Court does not have jurisdiction over Defendant, and should restrain from exercising jurisdiction over Defendant on the basis of international comity.
4. Finally, the Decision was labeled as “sensitive” by the Commission. As a result, the Decision cannot be made public without the Commission’s authorization, and it must be stored securely and encrypted in storage and transmission.
