Royal Caribbean Seeks Dismissal Of Libertad Act Lawsuit; Using Same Arguments Judge Agreed To For Two Other Cases

Certified claimant Havana Docks Corporation has filed four lawsuits using the Title III provision of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”). Given their similarities, one judge in the United States District Court for the Southern District of Florida is presiding over the four cases.

Two of the lawsuits (Norwegian Cruise Line Holdings and MSC Cruises) were this month dismissed with prejudice by one judge; the dismissals with prejudice were unusual.

Those cases will be appealed by the plaintiff.

The remaining two defendants (Carnival Corporation and Royal Caribbean Cruises) have filed Motion To Dismiss or Motion For Judgement On The Pleadings using similar arguments as the judge supported in the two cases that were dismissed.

On 8 January 2020, Carnival Corporation agreed to provide Havana Docks Corporation with additional time (until 31 January 2020) to respond to its Motion for Reconsideration. LINK

0n 10 January 2020, Royal Caribbean Cruises Ltd. filed a Motion for Judgement On The Pleadings.
LINK

If either or both of the remaining two cases are dismissed, Havana Docks Holdings will appeal.

If the judge denies the appeal, plaintiff or defendant could appeal to the three-judge Atlanta, Georgia-based Court of Appeals for the Eleventh Circuit.

LINK To Libertad Act Lawsuit Filing Statistics
LINK To All Libertad Act Lawsuit Filings

The Four Lawsuits Filed By Havana Docks Corporation

HAVANA DOCKS CORPORATION VS. ROYAL CARIBBEAN CRUISES, LTD. [1:19-cv-23590; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Holland & Knight (defendant)

HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23591; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [1:19-cv-23588; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)

HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [1:19-cv-21724; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

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U.S. Cancels Charter Flight Operations To Cities Other Than Havana; Follows Same Restrictions On Regularly-Scheduled Commercial Flights

United States Further Restricts Air Travel to Cuba

United States Department of State
10 January 2020

Michael R. Pompeo

Secretary of State

Today, at my request, the U.S. Department of Transportation (DOT) suspended until further notice all public charter flights between the United States and Cuban destinations other than Havana’s José Martí International Airport. Nine Cuban airports currently receiving U.S. public charter flights will be affected. Public charter flight operators will have a 60-day wind-down period to discontinue all affected flights. Also, at my request, DOT will impose an appropriate cap on the number of permitted public charter flights to José Martí International Airport. DOT will issue an order in the near future proposing procedures for implementing the cap.

Today’s action will prevent the Cuban regime from benefitting from expanded charter service in the wake of the October 25, 2019, action suspending scheduled commercial air service to Cuba’s airports other than Havana. Today’s action will further restrict the Cuban regime’s ability to obtain revenue, which it uses to finance its ongoing repression of the Cuban people and its unconscionable support for dictator Nicolas Maduro in Venezuela. In suspending public charter flights to these nine Cuban airports, the United States further impedes the Cuban regime from gaining access to hard currency from U.S. travelers.

For more information on this action, please refer to the notice posted in the federal docket management system at www.regulations.gov.

LINK To PDF

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Carnival Agrees To Provide Havana Docks Corporation Additional Time To Respond; All Dimissals Will Be Appealed

Two of the four lawsuits filed by Havana Docks Corporation, a certified claimant, have been dismissed with prejudice by one judge. The dismissals with prejudice are unusual. Those cases will be appealed by the plaintiff. If either or both of the remaining two cases are dismissed, those dismissals will also be appealed.

HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [1:19-cv-21724; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)


LINK To:

Plaintiff’s Motion For Extension Of Time To Respond To Carnival’s Motion For Reconsideration
[Proposed] Order Granting Motion To Stay
Joint Motion To Stay Discovery Pending A Ruling On The Motion For Reconsideration
Carnival Corporation’s Motion For Reconsideration
Carnival Corporation’s Revised Motion For Reconsideration
Carnival Corporation’s Revised Motion For Reconsideration
Plaintiff’s Notice Of Hearing

HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23591; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

HAVANA DOCKS CORPORATION VS. ROYAL CARIBBEAN CRUISES, LTD. [1:19-cv-23590; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Holland & Knight (defendant)

HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [1:19-cv-23588; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)

LINK To All Twenty Libertad Act Court Filings

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U.S. Agricultural Commodity Exports To Cuba Decline 79.5% In November; Remain Up 19.3% For Year

ECONOMIC EYE ON CUBA
January 2020

November 2019 Food/Ag Exports To Cuba Decrease 79.5%- 1
111th In November 2019 Of 222 U.S. Food/Ag Export Markets- 2
Year-To-Year Exports Increase 19.3%; Cuba Ranks 61st- 2
November 2019 Healthcare Product Exports US$80,000.00- 2
November 2019 Humanitarian Donations US$366,748.00- 3
Obama Administration Initiatives Exports Continue To Increase- 3
U.S. Port Export Data- 16

NOVEMBER 2019 FOOD/AG EXPORTS TO CUBA DECREASE 79.5%- Exports of food products and agricultural commodities from the United States to the Republic of Cuba in November 2019 were US$2,965,515.00 compared to US$14,505,604.00 in November 2018 and US$21,277,713.00 in November 2017.

United States exports from January 2019 through November 2019 were US$253,288,353.00 compared to US$212,134,634.00 from January 2018 through November 2018, representing an increase of 19.3%.

Total exports of agricultural commodities and food products from the United States to the Republic of Cuba since December 2001 are US$6,128,501,570.00.

The information on exports from the United States to the Republic of Cuba includes products within the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000, Cuban Democracy Act (CDA) of 1992, and regulations implemented (1992 to present) for other products by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury and Bureau of Industry and Security (BIS) of the United States Department of Commerce.

The TSREEA re-authorized the direct commercial (on a cash basis) export of food products (including branded food products) and agricultural commodities from the United States to the Republic of Cuba, irrespective of purpose. The TSREEA does not include healthcare products, which remain authorized and regulated by the CDA.

The data represents the U.S. Dollar value of product exported from the United States to the Republic of Cuba under the TSREEA. The data does not include transportation charges, bank charges, or other costs associated with exports; the government of the Republic of Cuba reports unverifiable data that includes transportation charges, bank charges, and other costs.

Complete Report In PDF Format

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Judge Dismisses Second Libertad Act Lawsuit: Havana Docks Corporation V. Norwegian Cuise Line Holdings

HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23591; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

Published on 7 January 2020, Judge Beth Bloom granted defendants a Motion To Dismiss; and Judge Bloom issued the Motion To Dismiss with Prejudice. The Motion To Dismiss may be appealed.

This is the second lawsuit filed by Havana Docks Corporation to be dismissed this week by Judge Beth Bloom. On 6 January 2020, a similar lawsuit was dismissed against MSC Cruises (USA) Inc.

Likely defendants in the remaining two cases where Havana Docks Corporation, which is a certified claimant, is the plaintiff will file Motions To Dismiss using similar arguments as did Judge Bloom- Carnival Corporation, Norwegian Cruise Line Holdings, and Royal Caribbean Cruises. Whomever is unsuccessful would then be expected to appeal to the three-judge Atlanta, Georgia-based Court of Appeals for the Eleventh Circuit.

LINK To Order On Motion To Dismiss

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Libertad Act Lawsuit Against MSC Cruises Is Dismissed By Judge "With Prejudice"

HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [1:19-cv-23588; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)


Published on 6 January 2020, Judge Beth Bloom granted on 3 January 2020 to defendants a Motion To Dismiss; and Judge Bloom issued the Motion To Dismiss with Prejudice. The Motion To Dismiss may be appealed.

Likely defendants in the three other cases where Havana Docks Corporation, which is a certified claimant, is the plaintiff will file Motions To Dismiss using similar arguments as did Judge Bloom- Carnival Corporation, Norwegian Cruise Line Holdings, and Royal Caribbean Cruises. Whomever is unsuccessful would then be expected to appeal to the three-judge Atlanta, Georgia-based Court of Appeals for the Eleventh Circuit.

Excerpts From The Motion To Dismiss:

In their Motion, Defendants argue that the Complaint should be dismissed for four reasons: 1) Plaintiff fails to include sufficient allegations regarding Defendants’ alleged trafficking in Plaintiff’s property and impermissibly groups both Defendants together; 2) Plaintiff’s claim of trafficking fails as a matter of law; 3) Title III of the LIBERTAD Act violates the Due Process Clause of the Fifth Amendment; and 4) Title III’s remedy provision violates the Due Process Clause.

Even though there is no identified fee simple owner and it appears that the property reverted to the Cuban Government by the terms of the concession itself, Plaintiff’s claim involving a time-limited concession nevertheless does not give Plaintiff the right to sue for activities that took place years after it no longer has an interest in the property. A broader interpretation would in effect give Plaintiff additional rights from the bundle to which it is not otherwise entitled. This reading is further bolstered in the statute, where it specifies that “[a]n interest in property for which a United States national has a claim certified . . . may not be the subject of a claim in an action under this section by any other person.” 22 U.S.C. § 6082(a)(5)(D).

Thus, for example, if the interest at issue is a leasehold, following the plain language of the statute, a person would have to traffic in the leasehold in order for that person to be liable to the owner of the claim to the leasehold.

22 U.S.C. § 6081(6)(B), (8). However, there is nothing to suggest that Congress intended to grant victims of property confiscations more rights to the property than they would otherwise have simply by virtue of the confiscation.

LINK To Order On Motion To Dismiss

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Libertad Act Lawsuit Filing Statistics Update- More Law Firms, More Attorneys, More Documents

As of 3 January 2020, more than seven months since Trump Administration made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”):

20 Lawsuits Filed 

US$130,960.00 Court Filing Fees

31 Law Firms

105 Listed Attorneys

554+ Document Filings

3,000+ Filed Court Documents

US$4+ Million In Law Firm Billable Hours (estimated 85% by defendants)

103 Companies/Individuals, excluding attorneys, are lawsuit parties

72 Plaintiffs 

4 Class Action status requests

67 Defendants

5 Companies notified as will be added as defendants unless prompt settlement   

Lawsuits have been filed in the United States District Courts in Southern Florida (16), Washington DC (1), Western Washington State (1), Nevada (1) and Delaware (1).  

The 31 Law firms retained by plaintiffs/defendants: Akerman; Andrews & Springer; Arent Fox; Baker & McKenzie; Ballard Spahr; Boies Schiller Flexner; Coffey Burlington; Colson Hicks Eidson; Cueto Law Group; Ewusiak Law; Hogan Lovells; Holland & Knight; Jones Walker; Kozyak Tropin & Throckmorton; Law Offices Of Paul Sack; Manuel Vazquez PA; Margol & Margol; Mayer Brown; Pacifica Law Group; Morgan, Lewis & Bockius; Morris Nichols Arsht & Tunnell; Rabinowitz, Boudin, Standard, Krinsky & Lieberman; Reed Smith; Reid Collins & Tsai; Rice Reuther Sullivan & Carroll; Rivero Mestre; Rosenthal, Monhait & Goddess; Scott Douglass & McConnico; Steptoe & Johnson; Venable; Wicker Smith O’Hara McCoy & Ford.  

The twenty-eight (28) member Brussels, Belgium-based European Union (EU) has confirmed its intention to issue a Request For Proposal (RFP) to law firms in the United States.  The law firms would be retained to file “amicus curiae” (friend-of-the-court) motions and other motions on behalf of each Libertad Act Title III lawsuit defendant who is domiciled in the EU.  

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. 

LINK To Complete Statistics Report

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Libertad Act Lawsuit Had 39 Plaintiffs And 14 Defendants; Now Has 1 Plaintiff And 1 Defendant- But 13 Defendants May Not Be Free From Legal Issues

While accurate to report that Melia Hotels International S.A., Meliá Hotels USA LLC, Trivago GmbH, Grupo Hotelero Gran Caribe, Corporacion de Comercio y Turismo Internacional Cubanacan S.A., Grupo de Turismo Gaviota S.A., Raul Doe 1-5, and Mariela Roe 1-5 are no longer defendants in this Libertad Act lawsuit, the companies and individuals may be a defendant in another case, either one that has been filed or one that will be filed.

Removing defendants is more tactical- with plaintiff attorneys focusing upon the defendant(s) most likely to either settle a case or lose a case at trial.  Each victory, judgement or settlement brings additional leverage for the next case.

MARICELA MATA, ET. AL., V. MELIA HOTELS INTERNATIONAL, S.A., ET AL. [1:19-cv-22529; Southern Florida District]

Rivero Mestre LLP (plaintiff)

Manuel Vazquez, P.A. (plaintiff)

Arent Fox (defendant- Melia Hotels)

Coffey Burlington, P.P. (defendant- Melia Hotels)

Akerman LLP (defendant) for Expedia, Inc.; Hotels.com L.P.; Hotels.com GP, LLC; Orbitz, LLC; and Travelocity.com, LP

Scott Douglass & McConnico LLP (defendant) for Expedia, Inc.; Hotels.com L.P.; Hotels.com GP, LLC; Orbitz, LLC; and Travelocity.com, LP

Baker & McKenzie LLP (defendant) for Booking Holdings Inc. and Booking.com B.V.

31 December 2019

ORDER DISMISSING CERTAIN PARTIES FOLLOWING THE SECOND AMENDED COMPLAINT

THE COURT having granted the Motion for Leave to Amend Complaint (ECF No. 57), and a Second Amended Complaint having been filed on December 9, 2019 (ECF No. 63), and in light of the Second Amended Complaint omitting certain Plaintiffs and certain Defendants, it is hereby ORDERED that the following Plaintiffs are DISMISSED: Mario Echevarria, Esther Sanchez, Consuelo Cuevas, Carmen Florido, Margarita Perkins, Ana M. Perez Perkins, Elena Susy Perez Perkins, Maria Del Carmen Perkins, Ricardo Perkins, Paul Perkins, Bill Perkins, Esther Perkins, Luis A. Perkins, Silvia Milian, Santiago D. Milian, Patricia A. Milian, Edward G. Milian, Susan M. Blackmon, Cristina M. Ganz, Rosa Maria Fernandez Milian, Ingrid Fernandez Milian, Jaime Fernandez Milian, Alex Fernandez Milian, Vivian Viurrun Farrell, Bertha Eugenia Bustamante, Raoul G. Cantero, Anuka G. Cantero, Mario G. Cantero, Eugenio Cantero, Adriana Cantero, Maria De Lourdes Cantero, Evelio Angulo Ramos, Silvia Angulo Ramos, Yoan Arturo Angulo Ledon, and Martha L. Garcia Angulo, it is further ORDERED that the following Defendants are DISMISSED: Meliá Hotels International, S.A., Meliá Hotels USA LLC, Trivago GmbH, Grupo Hotelero Gran Caribe, Corporacion de Comercio y Turismo Internacional Cubanacan S.A., Grupo de Turismo Gaviota S.A., Raul Doe 1-5, and Mariela Roe 1-5; ORDERED that counsel for the dismissed Defendants shall be removed from the service list; and it is further ORDERED that the Clerk of the Court modify the caption of this case to read Marisela Mata, et al. v. Expedia, Inc., et al.

LINKS:

Order

Order

Plaintiffs’ Notice Of Intention To Take Jurisdictional Discovery

Order

Order Dismissing Certain Defendants Following The Amended Complaint

Emails

Order Dismissing Certain Parties Following The Second Amended Complaint

Renewed Motion For Entry Of Order Dismissing Certain Parties Following The Second Amended Complaint And Incorporated Memorandum Of Law

United States Department Of State Designates Minister Of Defense Of Cuba For Violations Of Human Rights

Public Designation of Leopoldo Cintra Frias Due to Involvement in Gross Violations of Human Rights
01/02/2020 04:43 PM EST


Michael R. Pompeo, Secretary of State

The Department is publicly designating Leopoldo Cintra Frias, Minister of the Revolutionary Armed Forces of Cuba (MINFAR), under Section 7031(c) of the FY 2019 Department of State, Foreign Operations, and Related Programs Appropriations Act, due to his involvement, by command responsibility, in gross violations of human rights. Section 7031(c) provides that, in cases where the Secretary of State has credible information that foreign government officials have been involved in significant corruption or a gross violation of human rights, those individuals and their immediate family members are ineligible for entry into the United States.

The law also requires the Secretary of State to publicly or privately designate such officials and their immediate family members. In addition to the public designation of Leopoldo Cintra Frias, the Department is also publicly designating his children, Deborah Cintra Gonzalez and Leopoldo Cintra Gonzalez.

As Minister of the Revolutionary Armed Forces of Cuba, Cintra Frias bears responsibility for Cuba’s actions to prop up the former Maduro regime in Venezuela. Alongside Maduro’s military and intelligence officers, MINFAR has been involved in gross human rights violations and abuses in Venezuela, including torturing or subjecting Venezuelans to cruel, inhumane, or degrading treatment or punishment for their anti-Maduro stances. Dismantling Venezuela’s democracy by terrifying Venezuelans into submission is the goal of MINFAR and the Cuban regime.

The international community can clearly see how fearful Cuba is of democracy – both for its own citizens and Venezuelans. We strongly encourage other governments and international organizations to continue promoting accountability for the Cuban regime for its involvement in violations or abuses of human rights and fundamental freedoms in Cuba, Venezuela, and beyond.

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In 7,019-Word Statement About His Accomplishments, President Trump Uses 119 Words To Discuss Cuba- And Mentions Libertad Act Lawsuits

The White House
Office of the Press Secretary
FOR IMMEDIATE RELEASE
December 31, 2019

PRESIDENT DONALD J. TRUMP HAS DELIVERED RECORD BREAKING RESULTS FOR THE AMERICAN PEOPLE IN HIS FIRST THREE YEARS IN OFFICE

“We are making America stronger, prouder, and greater than ever before.” – President Donald J. Trump

ADVANCING AMERICA’S INTERESTS ABROAD: President Trump is putting America first and advancing our interests across the world.

Excerpts:

President Trump has promoted democracy throughout the Western Hemisphere and imposed heavy sanctions on the regimes in Venezuela, Cuba, and Nicaragua.

The President reversed the previous Administration’s disastrous Cuba policy.

President Trump has enacted a new policy aimed at stopping any revenues from reaching the Cuban military or intelligence services, imposed stricter travel restrictions, and reaffirmed the focus ensuring the Cuban regime does not profit from U.S. dollars.

Earlier this year, the Trump Administration put a cap on remittances to Cuba.

President Trump is enabling Americans to file lawsuits against persons and entities that traffic in property confiscated by the Cuban regime, the first time that these kind of claims have been available for Americans under the Helms-Burton Act.

President Trump has stood with the democratically elected National Assembly and the Venezuelan people and worked to cut off the financial resources of the Maduro regime.

President Trump recognized Juan Guaido as the Interim President of Venezuela and rallied an international coalition of 58 countries to support him.

Earlier this year, President Trump blocked all property of the Venezuelan Government in the jurisdiction of the United States.

President Trump has sanctioned key sectors of the Venezuelan economy exploited by the regime, including the oil and gold sectors.

The Administration sanctioned Maduro’s key financial lifelines, including the Venezuelan Central Bank, the Venezuelan Development Bank, and Petroleos de Venezuela.

LINK To Complete Statement

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New Court Filings In Libertad Act Class Action Lawsuit Against Melia Hotels; Motions To Dismiss Continue To Be Denied

MARICELA MATA, ET. AL., V. MELIA HOTELS INTERNATIONAL, S.A., ET AL. [1:19-cv-22529; Southern Florida District]

Rivero Mestre LLP (plaintiff)

Manuel Vazquez, P.A. (plaintiff)

Arent Fox (defendant- Melia Hotels)

Coffey Burlington, P.P. (defendant- Melia Hotels)

Akerman LLP (defendant) for Expedia, Inc.; Hotels.com L.P.; Hotels.com GP, LLC; Orbitz, LLC; and Travelocity.com, LP

Scott Douglass & McConnico LLP (defendant) for Expedia, Inc.; Hotels.com L.P.; Hotels.com GP, LLC; Orbitz, LLC; and Travelocity.com, LP

Baker & McKenzie LLP (defendant) for Booking Holdings Inc. and Booking.com B.V.

Links To New Court Filings

Court Order

Court Order

Court Order

Plaintiffs’ Certificate Of Interested Parties

Notice Of Voluntary Dismissal Of Travelocity.com, LP

Defendants’ Joint Motion To Dismiss The Second Amended Class Action Complaint, And Incorporated Memorandum Of Law

Defendants’ Joint Motion To Stay Discovery Pending Resolution Of Defendants’ Motion To Dismiss, And Memorandum Of Law In Support

Motion For Entry Of Order Dismissing Certain Parties Following The Second Amended Complaint And Incorporated Memorandum Of Law

Order Setting Trial And Pre-Trial Schedule Requiring Mediation, And Referring Certain Matters To Magistrate Judge

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Governments Pushed Too Far To Accept U.S. Decisions, May Seek To Undermine Permanently U.S. Decisions

The United States has during the last nine years increased the use of sanctions, specifically sanctions upon non-United States-based financial institutions and non-United States-based companies to seek behavioral change from state and non-state actors.  Many governments believe such sanctions to be extraterritorial and, thus a violation of sovereignty.   

During the Trump Administration, the use of tariffs, as well as sanctions, as tools of coercion have been commonplace.  

From 20 January 2017 through 27 December 2019, the United States Department of the Treasury has issued 2,826 sanctions targeting individuals, entities, vessels, and aircraft. 

Some of the countries impacted by United States sanctions include United Kingdom, Canada, France, Germany, Spain, Ireland, Russia, Turkey, Venezuela, Cuba, China, North Korea, Japan and South Korea.  

When governments, friend, ally, foe believe decisions by the United States while inarticulate do for them contain a foundational albeit perhaps long-term benefit, the governments will grudgingly “go along” with the United States either publicly or privately.  

However, when governments (and international institutions United Nations, European Union and NATO) believe their interests will not align with those of the United States- and, significantly, the United States disregards third-party impact and will likely continue to use sanctions in spite of pleadings otherwise, there will be manifest efforts, proactive efforts to contain the United States.  

These proactive efforts for containment of the United States can have lasting impact- diminishing the importance, relevance of the United States- lessening the use of the United States Dollar for global transactions; lessening the belief that it should be the world’s reserve currency.  

While the interests of Russia (Ruble) and China (RMB) and EU (Euro) are distinct, watch in 2020 for continuing efforts to reduce the use of the United States Dollar as a global trade pricing point unless the United States creates more robust by-in from other governments.

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USDA Does Not Include Cuba In Caribbean Basin Country Report; If It Did, Cuba Would Rank 2nd Of 23

On 16 December 2019, the United States Department of Agriculture (USDA) published an Exporter Guide for the twenty-three (23) country Caribbean Basin (CB).  The Republic of Cuba, with a population of approximately 11.4 million, is not included in the CB. 

The CB countries, which the USDA noted has a combined population of 4 million, include: Anguilla, Antigua and Barbuda, Aruba, The Bahamas, Barbados, Bermuda, BES Islands (Bonaire, St. Eustatius, and Saba), British Virgin Islands, Cayman Islands, Curaçao, Dominica, Grenada, Guadeloupe, Martinique, Montserrat, Saint Barthélemy, Saint Kitts and Nevis, Saint Lucia, Saint Martin, Saint Vincent and the Grenadines, Sint Maarten, Trinidad and Tobago, and Turks and Caicos Islands.  

The Report Highlights: “In 2018, the United States exported over $1 Billion in U.S. consumer-oriented products to the Caribbean Basin. With limited agricultural production, most Caribbean islands rely heavily on imported food products, particularly from the United States. The United States, with a 53 percent market share, is the main supplier of food products to the Caribbean. This report aims to provide U.S. suppliers general information on export opportunities in the Caribbean Basin.” 

For 2018, which the USDA references for CB Top Markets the largest United States export market was The Bahamas with US$226,237.00.  For 2018, the Republic of Cuba was US$224,910,413.00, which would have ranked it second among CB countries. 

United States agricultural commodity and food product exports to the Republic of Cuba increased 15.9% from 2016 to 2017; decreased 16.3% from 2017 to 2018; and from January 2019 through October 2019 were US$250,322,837.00 compared to US$206,438,247.00 from January 2018 through October 2018, representing an increase of 21.2%.   

For 2018, the USDA references that “Chicken Cuts And Edible Offal (including Livers) Frozen” valued at US$143,631,669.00 were the largest United States export to CB countries.  For 2018, similar exports to the Republic of Cuba were US$154,537,803.00 

The Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000 re-authorized the direct commercial (on a cash basis) export of food products (including branded food products) and agricultural commodities from the United States to the Republic of Cuba, irrespective of purpose.  

The data represents the U.S. Dollar value of product exported from the United States to the Republic of Cuba under the TSREEA. The data does not include transportation charges, bank charges, or other costs associated with exports; the government of the Republic of Cuba reports unverifiable data that includes transportation charges, bank charges, and other costs.

LINK To USDA Report

LINK To Complete Analysis

LINK To December 2019 EEOC Trade Report

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Might Jurisdiction Defense By King & Spalding In Turkey’s Halkbank Case Be Instructive For Libertad Act Lawsuits? Exxon Mobil?

From Halkbank: Although initially the Bank had been planned to be privatized through a block sale under the resolution of the Privatization High Council in 2006, the government surprisingly cancelled the initial plan and decided to privatize 25% of the shares through an IPO in early 2007. As of 10 May 2007, 24.98% of the shares of the Bank have been sold through a very successful public offering and the shares have been listed in Istanbul Stock Exchange. Halkbank’s IPO represents the largest one that ever occurred in the Turkish capital markets. Halkbank is now celebrating its 70th anniversary of its establishment.”

Reuters- 6 December 2019 

Turkey’s majority state-owned Halkbank said on Friday that it will use all its legal rights to challenge a U.S. Federal Court ruling that it must enter a formal plea to charges that it helped Iran evade sanctions.  Halkbank said in a statement it requests the right to defend its position that the U.S. court lacks jurisdiction over the claims made on the bank as Halkbank does not have any branch or physical operation in the United States.  On Thursday, a U.S. judge ruled that Halkbank must enter a formal plea to charges that it helped Iran evade sanctions before it can challenge a U.S. court’s ability to hear the case.  

Ahval News- 6 December 2019 

A judge in New York on Thursday rejected an appeal by litigators from law firm King & Spalding to enter a special appearance on behalf of Halkbank in a money laundering and sanctions evasion case filed against it. 

U.S. Federal Judge Richard Berman once again rejected King & Spalding partner Andrew Hruska’s request to make a special appearance for the bank after he rejected the same appeal in early November.  “The court denies Halkbank’s request to enter a ‘special appearance,’” Berman said. 

Despite his rejection, Berman allowed Hruska to further make its argument by a brief. King & Spalding on Monday said Turkey’s state-owned Halkbank could not be labelled as a fugitive for failing to appear at a Manhattan court to enter a plea against criminal charges since corporations cannot be fugitives. 

“Congress has explicitly authorized the applicability of the fugitive disentitlement doctrine to corporations,” Berman wrote in response to law firm's position.  However, Berman found it irrelevant to label Halkbank a fugitive. And, he has left the bank with the choice of appearing in court for arraignment or face the risk of contempt of court.  “If the court were to reach this issue, it would almost certainly conclude that the fugitive disentitlement doctrine applies and that the doctrine’s principles would render Halkbank a fugitive,” Berman said. 

U.S. Attorney Michael D. Lockard on Oct 22. said that Halkbank was a fugitive from the charges and is in contempt after providing no representation at the proceedings against the bank.  "The judge did not yet resolve a pending motion from prosecutors to schedule a contempt hearing for Halkbank, whose King & Spalding attorney Andrew Hruska did not immediately respond to an email requesting comment," U.S. Courthouse News Service journalist Adam Klasfeld said. 

In a footnote of the ruling, Berman rattled off the top-level Turkish officials engaged in this blitz to prevent the controversy from reigniting in U.S. courts.  “This remarkable campaign involved, among others, Turkish President Recep Tayyip Erdoğan; Turkish Justice Minister Bekir Bozdag; former Turkish Deputy Prime Minister Mehmet Şimşek; Berat Albayrak, President Erdogan’s son-in-law and Turkish Minister of Finance; and Turkish Minister of Foreign Affairs Mevlut Cavusoglu,” the footnotes states. 

“Rudolph W. Giuliani, former New York City mayor and former United States attorney for the Southern District of New York, and Michael B. Mukasey, former United States attorney general & former chief district judge of the Southern District of New York, participated on behalf of defendant Reza Zarrab,” the footnotes continues. 

bne IntelliNews- 5 December 2019  

Turkey’s state-owned Halkbank must enter a formal plea to charges that it assisted Iran in evading sanctions before it can challenge a US court’s ability to hear the case, a New York judge ruled on December 5. 

“If Halkbank wishes the district court to decide its jurisdictional motion, this international bank holds the key to unlock its dilemma: travel to New York and answer the charges or have its legal counsel do so,” US District Judge Richard Berman wrote in his ruling, Reuters reported. Halkbank would not give up its right to challenge the court’s jurisdiction by appearing and entering a plea, the judge added. 

Prosecutors of the Southern District of New York (SDNY) filed the indictment on October 16, at a time when tensions between the US and Turkey were high as the latter was launching a military incursion in northeast Syria. Turkish President Recep Tayyip Erdogan, who has been implicated in the case but denies any wrongdoing, called the indictment an “unlawful, ugly” step.  Halkbank has to date refused to make a formal appearance in the case, causing prosecutors to describe it as “fugitive”. 

“We disagree with the district court’s decision denying Halkbank’s motion for a special appearance, which would have allowed the Bank to challenge the court’s jurisdiction without waiving its rights,” Ana Buling, a lawyer for Halkbank, said in an emailed statement cited by Reuters. “We will carefully review the ruling with our client and consider our legal options.” 

Prosecutors have alleged that Halkbank and its executives conspired between 2012 and 2016 to help Iran spend oil and gas sales revenues abroad using sham food and gold transactions, in violation of US sanctions. Turkish-Iranian gold trader Reza Zarrab, who turned state’s witness, and Turkish officials aided the effort, prosecutors said. 

Judge Berman presided over the trial of Mehmet Hakan Atilla, a former executive at Halkbank, lately made chief executive of the Istanbul Stock Exchange in what was widely seen as the Erdogan administration admonishing US officials for pursuing the Halkbank case, which the Turkish president behind the scenes has previously tried to persuade both US President Donald Trump and his predecessor Barack Obama to halt. Zarrab pleaded guilty and testified against Atilla, who was convicted and sentenced to 32 months in prison. 

Halkbank said in a court filing that it intends to move for Berman to recuse himself from the case. It claims the judge has “made statements both in and out of the courtroom that call into question the court’s impartiality.” The bank has not elaborated on its allegation.  Berman also ruled on December 5 that he will not consider that motion unless Halkbank formally answers the charges.  Erdogan has claimed the entire sanctions busting prosecution is the result of efforts made by his Gulenist enemies. 

Court Documents:

LINK: 5 December 2019 Court Denial Of Halkbank Application
LINK: 5 December 2019 FedEx Tracking Document
LINK: 5 December 2019 Exhibit B
LINK: 2 December 2019 King & Spalding Letter Opposing U.S. Government
LINK: 19 November 2019 King & Spalding Letter Requesting “Special And Limited Appearance”
LINK: 15 October 2019 Superseding Indictment
LINK: 7 February 2018 United States v. Atilla Decision & Order

LINK: Exxon Mobil Corporation v. Corporacion Cimex And Union Cuba-Petroleo
https://www.cubatrade.org/blog/2019/10/8/3o56g5y55n8stbsuol27xnqs3vy1ot?rq=exxon%20mobil

LINK: 11 November 2019 Exxon Mobil Plaintiff Amended Complaint
https://static1.squarespace.com/static/563a4585e4b00d0211e8dd7e/t/5de13da4e6b0e7013a5faa94/1575042469742/merged_24062_-1-1574966348.pdf

2020 Presidential Election And Libertad Act Lawsuit Decisions- What Winners Do, Losers Do, Politicans Do?

What If U.S. Courts Decide Near 3 November 2020 Against U.S. Plaintiffs And In Favor Of Defendants In EU-Member Countries? 

How Will The Trump Administration React?  Congress? 

What If U.S. Courts Decide Near 3 November 2020 In Favor Of U.S. Plaintiffs Against Defendants From EU-Member Countries? 

Some of the 106 listed attorneys from 29 law firms representing the 72 plaintiffs and 67 defendants believe, baring dismissals or out-of-court settlements, that United States District Courts in Delaware (1 case), Nevada (1 case), Southern Florida (16 cases), Washington DC (1 case) and Western Washington (1 case) will render decisions in 2020 for some or all of the twenty filed lawsuits using Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).  The total damages sought by the twenty lawsuits, some (certified claimants) of which are entitled to seek treble damages, are valued at more than US$1 billion.  LINK To Statistics 

Given that 80% of the lawsuits filed thus far are before judges in the United States District Court Southern District of Florida, there is an inescapable political context given the significance how the 13,507,074 registered voters (as of 30 September 2019) in the state of Florida vote in the 3 November 2020 election for president of the United States. 

For example, unless dismissed or settled, Jose Ramon Lopez Regueiro vs. American Airlines Inc. is scheduled for a two-week trial on 23 November 2020 with mediation completed by 7 August 2020 and Havana Docks Corporation vs. Royal Caribbean Cruises Ltd. is scheduled for a two-week trial on 4 January 2021 with mediation completed by 22 September 2020.     

There will be pressures to have in place decisions, settlements, and judgements that directly and indirectly impact the Republic of Cuba, particularly non-United States-based defendant companies, so the decision by the Trump Administration to implement Title III will be deemed a domestic political success.   

Title III authorizes lawsuits in United States District Courts against companies and individuals who are using property 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.   

If plaintiffs secure judgements against defendants whose corporate headquarters are located within the current twenty-eight (28) member Brussels, Belgium-based European Union (EU), and those plaintiffs seek to enforce those judgements against assets located in the United States, how will the EU respond?  

There exist EU regulations and statutes, and regulations and statutes enacted by individual EU members, but none have been tested judicially as there was little thought given to Title III ever being implemented.  It’s been twenty-three years since the Libertad Act was signed into law- a twentieth century law enacted in the twenty-first century. 

If a U.S. plaintiff obtains a judgement, and then seizes funds controlled by the defendant that are in a U.S. financial institution, will the EU then seek the same against the U.S. plaintiff if the U.S. plaintiff has an account at a financial institution within reach of the EU?  

For U.S. plaintiffs with a judgement from a United States District Court, the first effort will be to seize bank accounts held in United States-based financial institutions.  Next up, monies that third-parties are paying to the defendants.  Lastly, physical assets located in the United States. Whatever funds remain uncollected become a potentially perpetual I.O.U. 

The Trump Administration, with support from members of the United States Congress, may seek to divert funds paid by financial institutions and companies to the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury for unauthorized or illegal/unauthorized transactions with the Republic of Cuba and other countries.   

The Clinton Administration embraced a similar concept when it permitted individuals having court judgements against the Republic of Cuba to invade approximately US$200 million in funds belonging to the government of the Republic of Cuba that had been blocked for use to compensate certified claimants. 

The Trump Administration might advocate similar action first for non-certified claimants rather than certified claimants; believing politically beneficial in an election year for Republic of Cuba nationals whose assets were expropriated without compensation by the government of the Republic of Cuba to be made whole before the interests of certified claimants (assets owned by individuals/companies who were United States citizens/owners at the time of expropriation).  Providing monies to individuals is generally more politically appealing than providing monies to corporations. 

Certified claimant Irving, Texas-based Exxon Mobil (2018 revenues approximately US$279 billion), should it be victorious in its Title III lawsuit against Republic of Cuba government-operated Corporacion Cimex S.A. and Republic of Cuba government-operated Union Cuba-Petroleo, for the expropriation of assets valued at US$71,611,002.90, would have the greatest global reach by which to seek recovery of any judgment.  Exxon Mobil is seeking treble damages; the total sought is US$214,833,008.70.  The company will likely be pressured by activist shareholders, members of the United States Congress, and the Trump Administration to use all means available to satisfy any judgement.   

One target for Exxon Mobil could be Denver, Colorado-based Western Union Company (2018 revenues approximately US$6 billion) which has electronically delivered annually transfers of reportedly valued in the hundreds of millions of dollars from the United States to the Republic of Cuba.  The Republic of Cuba has earned in fees at least US$939,367.20 (or US$4,264,727.08 with interest), the value of a certified claim held by Western Union Company.  Eliminate or reduce the fee paid by Western Union Company to Republic of Cuba government-operated Fincimex (a subsidiary of Republic of Cuba government-operated Corporacion Cimex S.A.) and the certified claim evaporates.  Western Union Company does not report data as to the value of transfers from the United States to the Republic of Cuba; consistent media reporting estimates that remittances from the United States to the Republic of Cuba are annually approximately US$1.5 billion to US$3 billion, with the majority of the funds delivered as currency by individuals traveling to the Republic of Cuba.  On 14 March 2018, Havana Times, an online publication edited in Nicaragua, reported without verification that Western Union Company delivered “more than 3 billion US dollars annually” to the Republic of Cuba, but did not mention as to the origin(s) of the funds- whether from the United States and/or other countries.  To send US$100.00 from the United States to the Republic of Cuba where the recipient will receive the funds in currency, using www.westernunion.com, the fees range from 9% to 14.99% to 19.49% depending upon delivery time and method of payment used for the transaction.  The Republic of Cuba reportedly receives approximately 20% of the fee paid by customers to Western Union. LINK To Western Union Company certified claim.

Claims Background

The Trump Administration commenced implementation of Title III through a series of announcements beginning in on 16 January 2019 and continuing through 4 March 2019, 3 April 2019, 17 April 2019 and finally on 2 May 2019.  

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) within the United States Department of Justice and have not been resolved for more than 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$8,521,866,236.75.  There are an unknown number of non-certified claims; the United States Department of State has referenced an estimate of approximately 200,000.  

The first asset to be expropriated by the Republic of Cuba was an oil refinery in 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).  Chevron has not filed a lawsuit using the Libertad Act.   

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.  Marriott International manages one hotel (and plans for a second in 2020) in the Republic of Cuba.  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.  Neither Office Depot nor Marriott International have filed a lawsuit using the Libertad Act. 

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.   

LINK To Complete Analysis

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Attorneys For Javier Garcia-Bengochea File 23-Page Response To Carnival Corporation Motion To Dismiss: “… the only credibility lost is Carnival’s.”

Attorneys For Javier Garcia-Bengochea File 23-Page Response To Carnival Corporation Motion To Dismiss: “… the only credibility lost is Carnival’s.” 

“Carnival’s most recent filings attempt, unsuccessfully, to discredit and delegitimize Dr. Garcia and his family history. But the only credibility lost is Carnival’s, and the Court should deny the Motion for three reasons.  

First, Carnival submits over 500 pages of foreign evidence and multiple expert affidavits that it wishes the Court to consider in adjudicating a motion governed under the Rule 12(b)(6) standard. The Court already admonished Carnival that evidence is improper at the pleading stage. (ECF No. 41 at pp. 9-10.) The Motion should be summarily denied for this reason alone.  

Second, Carnival’s attack on Dr. Garcia’s inheritance is meritless. Carnival’s experts present an incomplete, simplistic, and misleading analysis of Costa Rican probate law. Plaintiff, in fact, inherited his claim and has standing to bring this case.  

And, third, Carnival requests the Court to construe the LIBERTAD Act, 22 U.S.C. § 6021 et seq. (the “Act”), in a manner that would both render Title III’s cause of action a nullity and require dismissal of nearly all certified claimants. This interpretation contravenes prevailing Eleventh Circuit and Supreme Court precedent, and is incompatible with Congress’ clearly expressed belief that “no court should dismiss a certification in an action brought under this title.” J. Stmt. of Comm. of Conf. for LIBERTAD Act, 142 Cong. Rec. H1645-02 at H1661. The Court should reject Carnival’s construction of 22 U.S.C. § 6082(a)(4)(B).” 

LINK To Response  

JAVIER GARCIA-BENGOCHEA V. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINE, A FOREIGN CORPORATION [1:19-cv-21725; Southern Florida District] 

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

LINK To Case Filings

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Banco Nunez Attorneys File 31-Page Reponse To Societe Generale Motion To Dismiss: “SocGen does not dispute that BNC is a trafficker; that’s because it is.”

Plaintiff attorneys for Banco Nunez file thirty-one page response to Motion To Dismiss by Paris, France-based Societe Generale 

“SocGen does not dispute that BNC is a trafficker; that’s because it is.” 

“LEGAL ARGUMENT  

This Court should deny SocGen’s Motion. The reasons to do so are as follows:  

First, Plaintiff’s claim is an appropriate action under Helms-Burton. Cuba’s BNC engages in trafficking under Helms-Burton by managing, possessing, and engaging in commercial activity using the Plaintiff’s equity interests in BNC that resulted from the 1960 uncompensated confiscation of Banco Nuñez and Inmobiliaria Norka, S.A. Helms-Burton liability extends to all entities who participate in or profit from BNC’s trafficking or its related commercial activities, including SocGen.  

Second, Plaintiff has standing to bring its claim. The injury for which Plaintiff seeks redress—uncompensated trafficking in the Nuñezes’ property—is traceable to SocGen, which is profiting from the illicit trafficking without Plaintiff’s consent.  

Third, this Court has personal jurisdiction over SocGen under the federal long-arm statute. That statute is applicable because the Helms-Burton claim arises under federal law and SocGen is not subject to general jurisdiction in the United States. Federal due process permits assertion of specific jurisdiction in this instance because SocGen engaged in $15 billion or more of transactions in the United States involving BNC, and those transactions are related to Plaintiff’s cause of action.  

Fourth, U.S. nationals held a claim for trafficking in confiscated property as of March 1996. Their claims are not defeated simply because they were assigned to a Florida corporation a month after President Clinton suspended all private rights of action under Helms-Burton.  

Fifth, the domestic takings rule is not a bar to Plaintiff’s Helms-Burton claim. That rule states that expropriations of a foreign national’s property by the foreign national’s government do not violate international law. Congress did not limit Helms-Burton liability to confiscations in violation of international law, as Congress had done vis-à-vis the Foreign Sovereign Immunities Act. Rather, Congress allows relief related to all confiscations by the Cuban Government, including for Cuban nationals who fled communist Cuba and became United States citizens thereafter.” 

LINK To Complete 31-Page Filing  

SUCESORES DE DON CARLOS NUNEZ Y DONA PURA GALVEZ, INC., BDA BANO NUNEZ V. SOCIÉTÉ GÉNÉRALE, S.A., D/B/A SG AMERICAS, INC.; THE BANK OF NOVA SCOTIA, D/B/A SCOTIA HOLDINGS (US) INC., A/K/A THE BANK OF NOVA SCOTIA, MIAMI AGENCY; THE NATIONAL BANK OF CANADA, D/B/A NATIONAL BANK OF CANADA FINANCIAL GROUP, INC.; AND BANCO BILBAO VIZCAYA ARGENTARIA, S.A., D/B/A BBVA, USA., 

Kozyak Tropin & Throckmorton, LLP (plaintiff) and Law Offices Of Paul Sack A. Law, P.A. (plaintiff) 

Mayer Brown LLP (defendant) and ReedSmith LLP (defendant) 

LINK To All Case Filings

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USDA Requested To Publish Organizations/Funding Amounts Approved For FY2020 FMD/MAP Funds In Cuba

NOTE: On 19 December 2019, the United States Department of Agriculture (USDA) notified by email that no information would be released. A Freedom of Information Act (FOIA) request for the information was filed on 22 December 2019.

The Honorable Sonny Perdue, United States Secretary of Agriculture, has been requested to make public the names of participants (or number of participants) and the amount of funding per participant (or total amount of funding) approved to use United States Department of Agriculture (USDA) Fiscal Year 2020 MAP (Market Access Program) and FMD (Foreign Market Development) funding in the Republic of Cuba.

Total MAP/FMD for Fiscal Year 2020 is US$203,811,813.00 compared to US$201,697,191.00 in 2019. There were 87 approved applicants in Fiscal Year 2020 and 87 approved applicants in Fiscal Year 2019.

According the USDA, no request was made in Fiscal Year 2019 to use the Republic of Cuba provision in H.R. 2, the five-year Agriculture Improvement Act, known as the “Farm Bill” signed into law on 20 December 2018 by The Honorable Donald J. Trump, President of the United States. Unknown if there was a request or requests for Fiscal Year 2020 funding.

In 2018, advocates maintained that the Farm Bill provision was critical to “laying the groundwork” for increasing exports of agricultural commodities and food products to the Republic of Cuba. Statements from members of Congress included: “… an important first step to regaining our presence in Cuba.” Yet, there was not one request to the USDA for Fiscal Year 2019.

Most observers reasonably concluded that legislative advocates- within the United States Congress and organizations located in Washington DC and located outside of the beltway would have prominently teed-up at least one high-profile applicant to request funding on 21 December 2018- regardless of whether the USDA was expected to approve including the Republic of Cuba in Fiscal Year 2019 allocations.

The most significant impact of not having any MAP/FMD requests for Fiscal Year 2019 to use the Republic of Cuba provision in the Farm Bill is what the lack of interest portended for other legislative efforts in the United States Congress to rescind prohibitions upon the provision of payment terms for agricultural commodity and food product exports from the United States to the Republic of Cuba.

There has yet to be a United States agricultural commodity exporter or United States financial institution who has publicly stated that they would today provide payment terms and/or financing and what those payment terms and financing terms would be for Republic of Cuba government-operated entities. That absence- which has remained consistent since 2000, is a massive legislative hurdle. Lacking pressure, why would the Trump Administration do anything that it does not want to do?

From USDA

On 3 August 2018, the USDA wrote to the USCTEC: “Per the 2019 MAP NOFA (Federal Register Notices attached), All applications must be received by 5 p.m. Eastern Daylight Time, on Friday, June 8, 2018. Applications received after this date will not be considered. FAS anticipates that the initial funding selections will be made by the end of October 2018, with the initial award dates estimated to be by the end of December 2018. Hence, groups are not able to submit additional applications. Groups can request to make changes to their Unified Export Strategy in order to reallocate funding from one approved project to another. These modifications are routine and groups work with their FAS Marketing Specialist to submit changes for approval.”

On 20 March 2019, the USDA wrote to the USCTEC: “Applications for FY19 MAP/FMD funds were made in 2018 when Cuba was not an eligible country. USDA is not allowing those funds to shift to Cuba. USDA will consider proposals for FY20 MAP/FMD funds for Cuba projects.”

On 5 April 2019, the USDA wrote to the USCTEC: “For FY 2019, FMD and MAP are being operated according to the NOFAs [Notice of Funding Availability] published in May 2018, at which time Cuba was ineligible. At this time FAS has no plans, nor has it received any requests, to authorize the redirection of already allocated funds to Cuba this fiscal year. For FY 2020, the NOFAs are currently under development and FAS program managers are working to ensure that the funding solicitations reflect the intent of Congress as expressed in the Farm Bill vis-à-vis Cuba.”

USDA Background

In 2018, the Foreign Agricultural Service (FAS) of the USDA reported none of the applications for Fiscal Year 2019 submitted by the 8 June 2018 deadline included funding requests for MAP/FMD to be allocated for use in the Republic of Cuba.

That none of the applications included the Republic of Cuba was not unexpected as the Republic of Cuba was not eligible for MAP/FMD funding and applicants may not have known on 8 June 2018 that an amendment would be introduced in the United States Senate on 13 June 2018 to authorize MAP/FMD funds to be available for the Republic of Cuba and whether that amendment would become a statute and when it would become a statute.

According to the USDA in 2018, if the Republic of Cuba was included among Fiscal Year 2019 eligible countries for MAP/FMD funding, applications submitted by 8 June 2018 would be authorized by the USDA to be amended. The FMD Year began in October 2018 and the MAP Year began in January 2019.

According to the USDA in 2018, absent changes to the then-existing USDA application process by Secretary Perdue, applications submitted by 8 June 2018 would have only been permitted to be amended- not to seek additional USDA funding, but reallocate previously-submitted funding requests from one country to another country, in this instance the Republic of Cuba.

The USDA reported in 2018 that it recognized there were unplanned events that impact an applicant’s ability to use previously-requested or previously-authorized MAP/FMD funds.

For example, the People’s Republic of China and members of the Brussels, Belgium-based European Union (EU) implemented tariffs on certain food products and agricultural commodities after 8 June 2018, so an applicant might not want or might have been precluded from using requested or allocated funds towards activities in the People’s Republic of China and EU; so, the applicant might have wanted to submit a request to the USDA to reallocate all or a portion of funds towards use within another country.

According to the USDA in 2018, there may also have been impacting events that remained unknown through 2018 and became known in 2019, after the USDA had allocated all MAP/FMD funds to applicants, so then an entity having received a MAP/FMD funding allocation could request a reallocation from the USDA.

The USDA does not provide any payments to selected applicants in advance of the applicant making disbursements. The USDA provides payment upon receipt of an invoice from the applicant. The invoices are audited by the USDA and a claw back of payments is permitted. Any Republic of Cuba-related invoice is likely to receive additional scrutiny due to an amendment to the Farm Bill submitted by The Honorable Marco Rubio (R- Florida), a member of the United States Senate.

What Is FMD & MAP?

MAP: “Through the Market Access Program (MAP), FAS partners with U.S. agricultural trade associations, cooperatives, state regional trade groups and small businesses to share the costs of overseas marketing and promotional activities that help build commercial export markets for U.S. agricultural products and commodities.”

For Fiscal Year 2020, the USDA allocated US$176,849,915.00 in taxpayer funds to 65 participants under the MAP compared to US$174,600,000.00 to 65 participants in Fiscal Year 2019 and US$173,802,447.00 to 66 participants in Fiscal Year 2018.

“MAP reaches virtually every corner of the globe, helping to build markets for a wide variety U.S. farm and food products. FAS provides cost-share assistance to eligible U.S. organizations for activities such as consumer advertising, public relations, point-of-sale demonstrations, participation in trade fairs and exhibits, market research and technical assistance. When MAP funds are used for generic marketing and promotion, participants must contribute a minimum 10-percent match. For promotion of branded products, a dollar-for-dollar match is required.

Each year, FAS announces the MAP application period and criteria in the Federal Register. Applicants apply for MAP through the Unified Export Strategy (UES) process, which allows eligible organizations to request funding from multiple USDA market development programs through a single, strategically coordinated proposal. FAS reviews the proposals and awards funds to applicants that demonstrate the potential for effective performance based on a clear, long-term strategic plan.”

FMD: “The Foreign Market Development (FMD) Program, also known as the Cooperator Program, helps create, expand and maintain long-term export markets for U.S. agricultural products. Under the program, FAS partners with U.S. agricultural producers and processors, who are represented by non-profit commodity or trade associations called “cooperators,” to promote U.S. commodities overseas.”

For Fiscal Year 2020, the USDA allocated US$26,961,898.00 to 22 participants under the FMD compared to US$27,097,191.00 in taxpayer funds to 22 participants in Fiscal Year 2019 and US$26,484,947.00 to 23 participants in Fiscal Year 2018.

“The FMD program focuses on generic promotion of U.S. commodities, rather than consumer-oriented promotion of branded products. Preference is given to organizations that represent an entire industry or are nationwide in membership and scope.

FMD-funded projects generally address long-term opportunities to reduce foreign import constraints or expand export growth opportunities. For example, this might include efforts to: reduce infrastructural or historical market impediments, improve processing capabilities, modify codes and standards, or identify new markets or new uses for the agricultural commodity or product.

Each year, FAS announces the FMD application period and criteria in the Federal Register. Organizations apply for the FMD program through the Unified Export Strategy (UES) process, which allows applicants to request funding from multiple USDA market development programs through a single, strategically coordinated proposal. FAS reviews the proposals and awards funds to applicants that demonstrate the potential for effective performance based on a clear, long-term strategic plan.”

Value Of MAP/FMD

For the United States business community, the MAP/FMD amendment to the Farm Bill was significant, but more likely to provide greater financial value to the government of the Republic of Cuba than to United States food product and agricultural commodity exporters using provisions of the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000.

The likelihood of a value to United States taxpayers, as members of the United States Senate have posited, of US$28.00 returned for every US$1.00 in expenditures of MAP/FMD throughout the world, and now including the Republic of Cuba, will be challenging to measure- but it will be important to measure and the USDA should focus upon the cost-benefit analysis.

FMD Participant FY 2020 Allocation
Almond Board of California $192,819
American Hardwood Export Council, APA - The Engineered Wood Association, Softwood Export Council, and Southern Forest Products Association $2,578,929
American Peanut Council $461,575
American Seed Trade Association $187,182
American Sheep Industry Association $119,814
American Soybean Association $6,993,963
Cotton Council International $4,084,667
Cranberry Marketing Committee $162,365
Mohair Council of America $29,094
National Renderers Association $591,347
National Sunflower Association $162,360
North American Millers Association $50,679
U.S. Dairy Export Council $523,346
U.S. Dry Bean Council $99,367
U.S. Grains Council $2,754,371
U.S. Hide, Skin and Leather Association $700,675
U.S. Livestock Genetics Export, Inc. $373,044
U.S. Meat Export Federation $1,154,347
U.S. Wheat Associates $3,472,254
USA Dry Pea and Lentil Council $31,819
USA Poultry and Egg Export Council $890,505
USA Rice Federation $1,347,376
Total: $26,961,898

https://www.fas.usda.gov/programs/foreign-market-development-program-fmd/fmd-funding-allocations-fy-2020

MAP Participant FY 2020 Allocation
Alaska Seafood Marketing Institute $4,226,181
American Hardwood Export Council, APA - The Engineered Wood Association, Softwood Export Council, and Southern Forest Products Association $8,413,475
American Peanut Council $2,438,722
American Pecan Council $596,856
American Pistachio Growers/Cal-Pure Produce, Inc. $1,717,957
American Seed Trade Association $331,757
American Sheep Industry Association $441,441
American Soybean Association $4,402,578
American Sweet Potato Marketing Institute $212,565
Blue Diamond Growers/Almond Board of California $4,959,208
Brewers Association, Inc. $650,770
California Agricultural Export Council $981,458
California Cherry Marketing and Research Board $490,309
California Fresh Fruit Association $394,319
California Olive Committee $131,864
California Pear Advisory Board $363,530
California Prune Board $2,796,257
California Strawberry Commission $290,446
California Table Grape Commission $3,246,556
California Walnut Commission $3,927,959
Cherry Marketing Institute $290,296
Cotton Council International $14,454,482
Cranberry Marketing Committee $1,603,192
Distilled Spirits Council of the United States $489,298
Florida Department of Citrus $3,368,994
Florida Tomato Committee $246,201
Food Export Association of the Midwest USA $9,842,666
Food Export USA NE $8,602,188
Ginseng Board of Wisconsin $416,017
Hop Growers of America $378,030
Intertribal Agriculture Council $716,965
Mohair Council of America $77,685
National Association of State Depts. of Agriculture $2,744,277
National Confectioners Association $1,167,993
National Potato Promotion Board $4,610,157
National Renderers Association $972,413
National Sunflower Association $948,772
National Watermelon Promotion Board $193,136
New York Wine and Grape Foundation $411,447
Northwest Wine Coalition $1,029,921
Organic Trade Association $812,786
Pear Bureau Northwest $2,693,703
Pet Food Institute $1,401,529
Raisin Administrative Committee $2,680,808
Southern United States Trade Association $6,761,723
Sunkist Growers, Inc $1,653,152
Synergistic Hawaii Agriculture Council $306,400
The Popcorn Board $318,362
U.S. Apple Export Council $473,152
U.S. Dairy Export Council $4,641,021
U.S. Dry Bean Council $967,689
U.S. Grains Council $8,886,830
U.S. Hide, Skin and Leather Association $316,633
U.S. Highbush Blueberry Council $196,836
U.S. Livestock Genetics Export, Inc. $1,479,906
U.S. Meat Export Federation $12,954,232
U.S. Wheat Associates $5,869,104
USA Dry Pea and Lentil Council $1,022,920
USA Poultry and Egg Export Council $5,400,208
USA Rice Federation/U.S. Rice Producers Association $2,733,761
Washington Apple Commission $4,734,994
Washington State Fruit Commission $1,665,504
Welch Foods Inc. $864,644
Western U.S. Agricultural Trade Association $8,136,536
Wine Institute $6,299,144
Total: $176,849,915

https://www.fas.usda.gov/programs/market-access-program-map/map-funding-allocations-fy-2020

Previous Posts:

https://www.cubatrade.org/blog/2019/10/9/why-is-usda-stonewalling-response-to-follow-up-about-fmdmap-funding-for-which-it-previously-provided-answers?rq=FMD

https://www.cubatrade.org/blog/2019/4/7/7cb0as049n0xbcz6emunepm577w2zj?rq=FMD

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U.S. Ag/Food Exports To Cuba Collapse 61.8% In October 2019; Remain Up 21.2% Year-To-Year

ECONOMIC EYE ON CUBA©

December 2019

October 2019 Food/Ag Exports To Cuba Decrease 61.8%- 1

111th In October 2019 Of 222 U.S. Food/Ag Export Markets- 2

Year-To-Year Exports Increase 21.2%; Cuba Ranks 58th- 2

October 2019 Healthcare Product Exports US$0.00- 2

October 2019 Humanitarian Donations US$338,917.00- 3

 RIMCO (Caterpillar Distributor) Exports Railway Fixtures- 3

Obama Administration Initiatives Exports Continue To Increase- 3

U.S. Port Export Data- 16

OCTOBER 2019 FOOD/AG EXPORTS TO CUBA DECREASE 61.8%- Exports of food products and agricultural commodities from the United States to the Republic of Cuba in October 2019 were US$3,704,369.00 compared to US$9,698,149.00 in October 2018 and US$21,436,667.00 in October 2017.

United States exports from January 2019 through October 2019 were US$250,322,837.00 compared to US$206,438,247.00 from January 2018 through October 2018, representing an increase of 21.2%.

The exports from the United States to the Republic of Cuba are products within the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000, Cuban Democracy Act (CDA) of 1992, and regulations implemented (1992 to present) for other products by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury and Bureau of Industry and Security (BIS) of the United States Department of Commerce.

The TSREEA re-authorized the direct commercial (on a cash basis) export of food products (including branded food products) and agricultural commodities from the United States to the Republic of Cuba, irrespective of purpose. The TSREEA does not include healthcare products, which remain authorized and regulated by the CDA.

LINK To Complete Report

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