Confusing Message By EC/EU Not Including Libertad Act In Agendas For Meetings With Secretary Of State Blinken. Not As Important As Advertised?

On 24 March 2021, The Honorable Antony Blinken, United States Secretary of State, visited Brussels, Belgium, and held separate meetings with Brussels, Belgium-based European Commission (EC) President Ursula von der Leyen and Brussels, Belgium-based European Union (EU) High Representative for Foreign Affairs and Security Policy and European Commission Vice President Josep Borrell. 

According to a spokesperson for the Brussels, Belgium-based European Union (EU): “In their meeting, the HRVP [Josep Borrell] and Secretary of State discussed Venezuela, and they agreed to work together in a coordinated approach. Cuba was not discussed on this occasion.”   

The EU spokesperson did not confirm if the Republic of Cuba, Libertad Act and/or Venezuela was discussed during the meeting between President von der Leyen and United States Secretary of State Blinken.  The subjects were not referenced in remarks by President von der Leyen and United States Secretary of State Blinken in advance of their meeting. 

There is a possibility the Republic of Cuba and Libertad Act were discussed during meetings in Brussels between lower-level officials of the EC/EU and United States Department of State. 

There is also a possibility the United States Department of State and EC/EU jointly agreed in advance to exclude the Republic of Cuba and Libertad Act from the official agendas; that the United States Department of State refused to include the Republic of Cuba and Libertad Act in the official agendas; and that the Republic of Cuba and Libertad Act were discussed outside of the official agendas. 

What is known- despite statements from the EC/EU and member states of the EU that the Libertad Act remains since 1996 a material issue impacting the bilateral relationship with the United States; and since May 2019 when Title III of the Libertad Act was made operational by the Trump Administration nine EU-headquartered companies became defendants in lawsuits filed in the United States, the Libertad Act is not material enough to be included in the agenda for the first visit of the Biden Administration United States Secretary of State.

United States Department of State: “Secretary of State Antony J. Blinken will travel to Brussels, Belgium, from March 22-25 to attend the NATO Ministerial, engage with European Union leaders, and meet with Belgian officials. The meetings in Brussels reaffirm the United States’ commitment to our Allies and European partners on our shared agenda… In addition, the Secretary will meet with European Commission President Ursula von der Leyen and EU High Representative for Foreign Affairs and Security Policy and European Commission Vice President Josep Borrell to discuss Transatlantic goals to contain the COVID-19 pandemic, pursue a sustainable global economic recovery, tackle the climate crisis, and strengthen democracy.” 

EU-based defendants total 2019 revenues were US$156 Billion.  EU-based defendants in Libertad Act Title III lawsuits include: Copenhagen, Denmark-based A.P. Moller-Maersk A/S (2019 revenue approximately US$39 billion); Paris, France-based BNP Paribas (2019 revenue approximately US$49 billion); Amsterdam, Netherland-based Booking.com B.V. (2019 revenue approximately US$15 billion); Palma, Spain-based Iberostar Hoteles y Apartamentos S.L. (2019 revenue approximately US$2.6 billion); Palma, Spain-based Melia Hotels International S.A. (2019 revenue approximately US$2 billion); Paris, France-based Pernod Ricard S.A. (2019 revenue approximately US$10.5 billion); Paris, France-based Société Générale S.A. (2019 revenue approximately US$27.4 billion); and Dusseldorf, Germany-based Trivago GmbH (2019 revenue approximately US$940 million).  Additional lawsuits are expected to be filed. 

A diplomatic challenge for President von der Leyen and Vice President Borrell.  H.E. Dr. von der Leyen served in three cabinet positions and was the longest serving member of Chancellor Angela Merkel’s cabinet; and Libertad Act Title III defendant Trivago GmbH is headquartered in Dusseldorf, Germany.  H.E. Josep Borrell was Minister of Foreign Affairs, EU and Cooperation of the Kingdom of Spain; and Libertad Act Title III defendants Melia Hotels International S.A. and Iberostar Hoteles y Apartamentos S.L. are both headquartered in Palma, Spain.   

Thirty-six (36) Libertad Act Title III lawsuits have been filed in United States District Courts.  Some of the lawsuits have since been appealed, consolidated, dismissed, refiled, reversed, and transferred within districts and from district to district.  Some defendants have been dismissed, but the case continues with other defendants. LINK To Lawsuit Filing Statistics   

The Trump Administration on 2 May 2019 made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act” and “Helms-Burton”).  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.  Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  One Canada-based company (Toronto-based Sherritt International) and one Spain-based company (Melia Hotels International) are currently known to be subject to Title IV based upon a certified claim and non-certified claim. 

Into the third month of the Biden Administration, the Republic of Cuba and Venezuela are rarely mentioned in official readouts of conversations by President Joseph Biden, Secretary of State Blinken, and Assistant to the President for National Security Affairs Jake Sullivan with other country leadership.   

Ms. Jen Psaki, Assistant to the President and Press Secretary, and Mr. Ned Price, Spokesperson of the United States Department of State, generally reference the following- with the Libertad Act absent: 

“First, support for democracy and human rights will be at the core of our efforts, because we believe it is the means to empower the Cuban people to determine their own future; and second, as we’ve said before, we also know that Americans, especially Cuban Americans, are in most cases the best ambassadors for freedom and prosperity in Cuba. We are committed to both of these principles. Our review is being animated by both of those principles. We have also committed – and you heard this from Secretary Blinken up on the Hill yesterday – to consult closely with members of Congress as we undertake this review. So it is not that – it is not that this is in any way on the back burner. It is something we’re looking at very closely, and as that review progresses, we’ll consult with members of Congress. And when we have something to share, we’ll let you know.” 

“Well, we’ve talked about this a little bit in here before and nothing has really changed, but I’m happy to reiterate our policy. Our policy, as it relates to Cuba, will be governed by two principles: First, support for democracy and human rights will be at the core of our efforts through empowering the Cuban people to determine their own futures. Second, Americans, especially Cuban Americans, are the best ambassadors for freedom and prosperity in Cuba. A Cuba policy shift is not currently among President Biden's top priorities, but we are committed to making human rights a core pillar of our U.S. policy, and we're committed to carefully reviewing policy decisions made in the prior administration, including the decision to designate Cuba as a State Sponsor of Terrorism.” 

The Biden Administration has four reviews underway relating to the Republic of Cuba: 1) comprehensive policy review led by the National Security Council (NSC) and United States Department of State with a focus upon what changes should be made to policies and regulations implemented during the Trump Administration (2017-2021) including whether to nominate a United States Ambassador to the Republic of Cuba 2) reviews led by the Central Intelligence Agency (CIA) and United States Department of State into the cause(s) of injuries to United States government employees in 2016/2017 while they were in the Republic of Cuba 3) whether to suspend again Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as the “Libertad Act”) and 4) whether to remove the Republic of Cuba from the State Sponsors of Terrorism List maintained by the United States Department of State.   

Absent a crisis in the Republic of Cuba directly impacting the United States, there has been no demonstrated urgency for completing the four reviews.

Twelve Obama Administration Era Officials Who Are Biden Administration Officials- And They All Have Connectivity To Cuba Policy

Instructive to note officials in the Biden Administration (January 2021- ) who served in the Obama Administration (January 2009 to January 2017).  Some were involved with developing and/or implementing policy decisions relating to the Republic of Cuba; and some had roles in the negotiations which led to policy announcements on 17 December 2014 and then additional decisions to 20 January 2017. 

The Honorable Joseph Biden is President of the United States (January 2021- ).  Vice President of the United States (January 2009 to January 2017).  United States Senate (January 1973 to January 2009).  Chairman, United States Senate Committee on Foreign Relations (2001; 2001 to 2003; 2007 to 2009).

The Honorable John Kerry is Special Presidency Envoy for Climate at the United States Department of State (2021- ).  United States Secretary of State (February 2013 to January 2017).  Chairman of the United States Senate Committee on Foreign Relations (January 2009 to February 2013).   

The Honorable Antony Blinken is United States Secretary of State (2021- ).  Assistant to the President and Deputy National Security Advisor (January 2013 to January 2015).  Assistant to the President and National Security Advisor to the Vice President (January 2009 to January 2013).   

The Honorable Jake Sullivan is Assistant to the President for National Security Affairs (2021- ).  Assistant to the President and National Security Advisor to the Vice President of the United States (February 2013 to August 2014).  Director of Policy Planning at the United States Department of State February 2011 to February 2013). 

The Honorable Alejandro Mayorkas is United States Secretary of Homeland Security (February 2021- ).  United States Deputy Secretary of Homeland Security (December 2013 to October 2016).

Mr. Juan Gonzalez is Special Assistant to the President and NSC Senior Director for the Western Hemisphere at The White House (2021- ).  Deputy Assistant Secretary of State for Western Hemisphere Affairs (January 2016 to January 2017).  Special Advisor to Vice President Joe Biden (August 2013 to October 2015).  Director for Western Hemisphere Affairs at the National Security Council (July 2011 to August 2013).  Chief of Staff, Bureau of Western Hemisphere Affairs at the United States Department of State (November 2009 to July 2011).  Foreign Assistance Officer in the Office of Policy and Planning at the United States Department of State (June 2007 to November 2009).  Principal Staff Assistant to the Assistant Secretary of State for Western Hemisphere Affairs (January 2006 to June 2007). 

The Honorable Roberta Jacobson is Special Assistant to the President and Coordinator for the Southwest Border (2021- ).  United States Ambassador to Mexico (June 2016 to May 2018).  Assistant Secretary of State for Western Hemisphere Affairs (July 2011 to May 2016).  Acting Assistant Secretary of State for Western Hemisphere Affairs (July 2011 to March 2012). 

Mr. Roberto Zuniga is Special Envoy to the Northern Triangle at the United States Department of State (2021- ).  Consul General, Sao Paulo, Brazil (July 2015 to September 2018).  Special Assistant to the President and Senior Director for Western Hemisphere Affairs at the National Security Council (June 2012-May 2015).  Political Counselor, United States Embassy in Brasilia (October 2010 to June 2012).  Deputy Director, Office of Cuban Affairs, United States Department of State (July 2008 to October 2010).  Political Counselor, United States Mission to the Organization of American States (July 2007 to July 2008).  Deputy Political Counselor, United States Embassy in Madrid (August 2004 to July 2007).  Political Officer, United States Interests Section in Cuba (July 2002 to July 2004). 

Ms. Emily Mendrala is a Deputy Assistant Secretary of State, Bureau of Western Hemisphere Affairs (2021- ).  Executive Director of the Center for Democracy in the Americas (May 2017 to January 2021). Director for Legislative Affairs in the National Security Council (January 2016 to January 2017).  Special Advisor to the Coordinator for Cuban Affairs at the United States Department of State (August 2015 to June 2016).  Regional Affairs Officer, Central America, Bureau of Western Hemisphere Affairs at the United States Department of State (July 2013 to August 2015).  Staff Member, United States Senate Committee on Foreign Relations (August 2009 to June 2013).

Mr. Daniel Erickson is Deputy Assistant Secretary of Defense for Western Hemisphere Affairs (2021- ). Special Advisor to the Vice President (October 2015 to March 2017).  Senior Advisor for Congressional and Inter-Governmental Affairs, United States Department of State (June 2014 to October 2015).  Senior Advisor for Western Hemisphere Affairs, United States Department of State (June 2010 to May 2014). 

Mr. Steve Ricchetti is Counselor to the President (January 2021- ).  Chief of Staff to the Vice President (December 2013 to January 2017).  

Mr. Michael Donilon is Senior Advisor to the President (January 2021- ).  Counselor to the Vice President (2009 to 2013).

And… 

The Honorable Robert Menendez (D- New Jersey) is Chairman of the United States Senate Committee on Foreign Relations (January 2021- ).  He was previously chairman from February 2013 to January 2015.  Senator Menendez is of Cuban descent and all issues relating to the Republic of Cuba are personal- particularly the connectivity between a convicted murderer of a New Jersey State Police officer who escaped in 1979 from a correctional facility in New Jersey and resides in the Republic of Cuba. 

LafargeHolcim Of Switzerland And U.S. Plaintiff Agree To Private Mediation In Libertad Act Lawsuit- Prelude To A Settlement?

WILLIAM H. CLAFLIN ET AL V. LAFARGEHOLCIM LTD; INVERSIONES IBERSUIZAS S.A.; HOLCIM TRADING SA (F/K/A) UNION MARITIMA INTERNACIONAL SA; DE RUITER OUDERLANDE B.V.; LAS PAILAS DE CEMENTO S.A.U.; and UNKNOWN SUBSIDIARY OF THE LAFARGEHOLCIM GROUP [1:20-cv-23787; Southern Florida District]. 

Berliner Corcoran & Rowe LLP (plaintiff)
Roig Lawyers (plaintiff)
Fields (plaintiff)
Tutan, Rosenberg, Martin & Bellido (defendant)
Wilkie, Farr & Gallagher (defendant)

LINK TO JOINT STIPULATION AND PROPOSED ORDER REGARDING EXTENSION OF TIME TO RESPOND TO THE COMPLAINT

Excerpt (3/23/21): 

“WHEREAS this joint stipulation will promote the efficient and orderly administration of justice; WHEREAS, the Plaintiffs and Defendant LafargeHolcim Ltd have scheduled on April 22, 2021 a mediation before the Hon. Layn R. Phillips of Phillips ADR Enterprises; WHEREFORE, the Plaintiffs and Defendant LafargeHolcim Ltd, through their undersigned counsel, hereby agree, stipulate, and respectfully request that the Court enter an Order as follows: LafargeHolcim Ltd’s response to the Complaint is due on May 21, 2021, subject to any such further extensions as may be agreed upon by the parties or ordered by the Court.”

“Layn R. Phillips, founder of Phillips ADR Enterprises (PADRE), is both a former United States Attorney and a former United States District Judge. Beginning his judicial career in Oklahoma City at age 35 pursuant to an appointment by President Reagan, he presided over more than 140 trials in Oklahoma, New Mexico, and Texas. He also sat by designation on the United States Court of Appeals for the Tenth Circuit in Denver, Colorado, where he participated in numerous panel decisions and published opinions.

Before his tenure on the bench, Judge Phillips joined the United States Attorney’s office in Los Angeles in 1980 as an Assistant United States Attorney, serving as a federal prosecutor in the Central District of California for four years. During the Reagan administration, he returned to his home state of Oklahoma, where, at age 31, he was nominated to serve as a United States Attorney. Upon resigning from the federal bench, Judge Phillips joined the law firm of Irell & Manella, in Newport Beach, California, where for 23 years he specialized in complex civil litigation, internal investigations, and alternative dispute resolution.

Judge Phillips subsequently founded Phillips ADR Enterprises (PADRE), an alternative dispute resolution firm which focuses on the mediation of complex disputes. For the last decade, he has presided over cases that have collectively resulted in several billion dollars in settlements annually. Some of his notable settlements include the NFL Concussion Litigation, the Petrobras U.S. Securities Litigation, the Bonneville Power Administration Residential Exchange Litigation, the DOE Rockwell Rocky Flats Nuclear Plant Litigation, the Michigan State University Sexual Abuse Cases, the Merck Vioxx Securities Litigation, the Bank of America Merrill Lynch Acquisition Litigation, the High Tech Employees Antitrust Litigation, the Activision Blizzard Stockholder Litigation, the Anthem Data Breach Litigation, the Walmart Consolidated Wage and Hour Litigation, and the Wells Fargo Financial Accounts Securities Litigation. He has also served for several years as the NBA Systems Arbitrator.

For his years of commitment to public service, he was named as one of the 10 Outstanding Young Americans by the U.S. Junior Chamber of Commerce. As a result of his trial work, Judge Phillips was elected into the American College of Trial Lawyers. He has the dual honor of being named by LawDragon Magazine as one of the “Leading Judges in America” and as one of the “Leading Litigation Attorneys in America.” In August 2016, Judge Phillips was named as one of the top seven mediators in the United States of America by Chambers and Partners.

Judge Phillips received both his B.S. and J.D. from the University of Tulsa. He also completed two years of an LLM program at Georgetown University Law Center in the field of antitrust and economic regulation of industry. Judge Phillips has also been inducted into the University of Tulsa Athletic Hall of Fame. He was a four-year letter winner in tennis, serving as the captain of the men’s varsity team and winning the NCAA Missouri Valley Conference Championship at #1 singles. Judge Phillips has a passion for travel and has visited every continent. He currently resides in Laguna Beach, California with his wife, Kathryn. He has three grown children Amanda, Parker and Graham and a granddaughter, Stella Kathryn and a grandson, Owen Layn.”

Habanos Retains Two U.S. Law Firms For Libertad Act Lawsuit; One Represents Cuba In Exxon Mobil Libertad Act Lawsuit; Plaintiff Files Exhibits

LUIS MANUEL RODRIGUEZ, MARIA TERESA RODRIGUEZ, a/k/a MARIA TERESA LANDA, ALFREDO RAMON FORNS, RAMON ALBERTO RODRIGUEZ, RAUL LORENZO RODRIGUEZ, CHRISTINA CONROY, and FRANCISCO RAMON RODRIGUEZ, Plaintiffs, v. IMPERIAL BRANDS PLC, CORPORACIÓN HABANOS, S.A., WPP PLC, YOUNG & RUBICAM LLC, and BCW LLC, a/k/a BURSON COHN & WOLFE LLC [1:20-cv-23287; Southern Florida District]. 

LINK To Plaintiff Notice Of Filing (3/23/21)

Berenthal & Associates (plaintiff)
Rodriguez Tramont & Nunez (plaintiff)
Nelson Mullins (defendant)
Allen & Overy (defendant)
Wilmer Cutler Pickering Hale and Dorr (defendant)
Broad & Cassel (defendant)
Akerman (defendant)
Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis (defendant)
Rabinowitz, Boudin, Standard, Krinsky & Lieberman (defendant) LINK To Exxon Mobil Lawsuit Filings

EU, UK, And Canada Companies Reference Libertad Act Impact In Annual Reports; Imperial Brands Projects Damages Could Be US$365 Million

The Trump Administration on 2 May 2019 made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act” and “Helms-Burton”).   

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.  Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  One Canada-based company (Toronto-based Sherritt International) and one Spain-based company (Melia Hotels International) are currently known to be subject to Title IV based upon a certified claim and non-certified claim. 

European Union (EU)-headquartered defendants in Libertad Act Title III lawsuits include: Copenhagen, Denmark-based A.P. Moller-Maersk A/S (2019 revenue approximately US$39 billion); Paris, France-based BNP Paribas (2019 revenue approximately US$49 billion); Amsterdam, Netherland-based Booking.com B.V. (2019 revenue approximately US$15 billion); Palma, Spain-based Iberostar Hoteles y Apartamentos S.L. (2019 revenue approximately US$2.6 billion); Palma, Spain-based Melia Hotels International S.A. (2019 revenue approximately US$2 billion); Paris, France-based Pernod Ricard S.A. (2019 revenue approximately US$10.5 billion); Paris, France-based Société Générale S.A. (2019 revenue approximately US$27.4 billion); and Dusseldorf, Germany-based Trivago GmbH (2019 revenue approximately US$940 million).  Additional lawsuits are expected to be filed. 

Bristol, United Kingdom-based Imperial Brands plc (2020 revenue approximately US$45 billion), is a defendant in a Libertad Act Title III lawsuit.  The United Kingdom was a member of the EU. 

St. Gallen, Switzerland-based LafargeHolcim Ltd. (2020 revenue approximately US$27 billion), while not located within the EU, is a defendant in Libertad Act Title III lawsuit.

Toronto, Canada-based Sherritt International Corporation (2020 revenues approximately US$497 million) is subject to Title IV sanctions, but is not a Title III defendant. 

Imperial Brands
Bristol, United Kingdom
2020 Annual Report

US Helms-Burton litigation  

Imperial has been named as a defendant in a civil action in federal court in Miami, Florida under Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (“Helms-Burton”) filed on 6 August 2020. Title III provides US nationals with a cause of action and a claim for treble damages against persons who have “trafficked” in property expropriated by the Cuban government. Title III is largely untested because it did not come into effect until May 2019.  Treble damages are automatically available under Helms-Burton. Although the filed claim is for unquantified damages, we understand the claim could potentially reach approximately $365 million, based on the claimants’ claim to own 90% of the property, which they value at $135 million (and then treble). The claim is based on allegations that Imperial, through Corporación Habanos S.A. (a joint venture between one of Imperial’s now former subsidiaries and the Cuban government), has “trafficked” in a factory in Havana, Cuba that the Cuban government confiscated from the claimants’ ancestor in the early 1960s, by using the factory to manufacture, market, sell, and distribute Habanos cigars.  Imperial is subject to an EU law known as the EU Blocking Statute (Regulation (EC) No. 2271/96), which conflicts with Helms-Burton, protects Imperial against the impact of Title III, and impacts how Imperial may respond to the threatened litigation. The EU Blocking Statute continues to apply in the UK during the Brexit “transition period” in place until 31 December 2020. After 31 December 2020, the substance of the law is likely to stay the same in the UK, at least in the near future. On 23 September 2020 the US court granted a stay of the action until 9 February 2021 or until further order of the court, while Imperial awaits the European Commission’s response to its request for authorisation to defend the action.  Separately, two other groups of prospective claimants have indicated that they intend to file a lawsuit against Imperial in federal court in Miami, Florida. Neither claim has been filed. The threatened claims relate to other properties in Cuba, which the prospective claimants claim were confiscated from their ancestors by the Cuban government in the 1960s and which they claim are now used by Corporación Habanos S.A for commercial activities.  The prospective claimants claim to be entitled to treble damages from Imperial. 

Booking Holdings, Inc.
Amsterdam, The Netherlands
2020 Annual Report

Legal, Tax, Regulatory, Compliance and Reputational Risks 

Another example is that the U.S. Government announced in May 2019 that it will no longer suspend the right of private parties to bring litigation under Title III of the Cuban Liberty and Solidarity (Libertad) Act of 1996, popularly known as the Helms-Burton Act, allowing certain individuals whose property was confiscated by the Cuban government beginning in 1959 to sue anyone who "traffics" in the property in question in U.S. courts. We are a defendant in a number of these lawsuits, which seek remedies including the value of the expropriated property (generally, the applicable hotel), plus interest, treble damages, attorneys' fees and costs. We believe that we have meritorious defenses to existing and potential claims and that the results of any related litigation will not be material to our business, financial condition or results of operations. However, litigation is uncertain and there is little judicial history or interpretation of the relevant claims and defenses, in particular as applied to businesses like ours. As a result, there can be no assurance that there will not be an adverse outcome to any such litigation or that such an outcome would not result in an adverse impact on our business, financial condition or results of operations. 

Melia Hotels International
Palma, Spain
2019 Annual Report

Global Risks: Geopolitical Risks The following risks should be noted: 

Worsening relations between the governments of the United States and Cuba. The measures taken by the Trump Administration such as the ban on cruise operations in Cuba, the elimination of travel licenses for educational programs for US citizens known as "People to People", the entry into force of Title III of the Helms Burton Law that has caused reactions among operators such as Trivago, which decided to withdraw numerous hotels from Cuba from its sales channels, and other measures that affected the shipping companies responsible for transporting fuel to Cuba, impacted the operation of the hotels.  In this context, some representatives of the Company have received a notification from the Department of State of the United States under Title IV of the Helms Burton Act. 

Other contingent liabilities 

On 3 July 2019 the parent company of the Group received notice of a claim filed in Spain for unlawful enrichment during the last 5 years derived from its hotel management activities of two establishments in Cuba. The Company filed plea for lack of jurisdiction and international jurisdiction, which was accepted in full in September 2019. Such sentence was appealed by the petitioner, and is awaiting a decision as at the date of preparation of these consolidated financial statements. The directors, however, consider that such proceeding will not give rise to equity losses for the Group. 

Trivago, N.V.
Dusseldorf, Germany
2020 Annual Report

The U.S. Government announced that, effective May 2, 2019, it will no longer suspend the right of private parties to bring litigation under Title III of the Cuban Liberty and Solidarity (Libertad) Act of 1996, popularly known as the Helms-Burton Act, allowing certain individuals whose property was confiscated by the Cuban government beginning in 1959 to sue in U.S. courts anyone who “traffics” in the property in question.  Five purported class actions were filed against us (and other defendants) in 2019.  Since then, the plaintiffs in all five cases have dropped trivago as a defendant (while the cases continue against other defendants).  These actions seek remedies including the value of the expropriated property (on which the applicable hotel is located), plus interest, treble damages, attorneys’ fees and costs.  If trivago were to be named again as a defendant in these cases, or in other similar cases, we believe that we have meritorious defenses to such potential claims and that the results of any related litigation would not be material to our business, financial condition or results of operations.  However, litigation is uncertain and there is little judicial history or interpretation of the relevant claims and defenses, in particular as applied to businesses like ours.  As a result, there can be no assurance that there will not be an adverse outcome to any such litigation or that such an outcome would not result in an adverse impact on our business, results of operations, financial condition and prospects.  

LafargeHolcim Ltd.
St. Gallen, Switzerland
2020 Annual Report

A Group subsidiary has an investment in a joint venture which owns a cement plant in Cuba. The Trump Administration allowed the waiver of Title III of the Helms-Burton Act (formally known as Cuban Liberty and Democratic Solidarity Act of 1996) to lapse as of 2 May 2019. Previously, Title III had been waived by every Administration since President Clinton waived it shortly after the Act became effective. Title III allows certain persons to file lawsuits in U.S. courts relating to certain property allegedly confiscated by the Cuban government since 1959. A Title III claim has been filed in the federal court in Florida. Although the amounts claimed are substantial, LafargeHolcim believes the lawsuit lacks merit and will defend the matter vigorously in court. Consequently, LafargeHolcim believes that the impact of this claim on the group’s results, financial position or liquidity will not be material. [NOTE: Plaintiff in complaint states they are "entitled to reclaim the property's current market value, estimated at $ 270 million, plus attorney's fees, interest and other costs."]

Sherritt International Corporation
Toronto, Canada
2020 Annual Report

RISKS RELATED TO U.S. GOVERNMENT POLICY TOWARDS CUBA 

The United States has maintained a general embargo against Cuba since the early 1960s, and the enactment in 1996 of the Cuban Liberty and Democratic Solidarity (Libertad) Act (commonly known as the “Helms Burton Act”) extended the reach of the U.S. embargo. 

The U.S. Embargo 

In its current form, apart from the Helms Burton Act, the embargo applies to most transactions involving Cuba, Cuban enterprises, and Cuban nationals and it bars all persons “subject to the jurisdiction of the United States” from participating in such transactions unless such persons have general or specific licenses from the U.S. Department of the Treasury (“U.S. Treasury”) authorizing their participation in the transactions. Persons “subject to the jurisdiction of the United States” include U.S. citizens, U.S. residents, individuals or enterprises located in the United States, enterprises organized under U.S. laws and enterprises owned or controlled by any of the foregoing. Subsidiaries of U.S. enterprises are subject to the embargo’s prohibitions. The embargo also targets dealings directly or indirectly involving entities deemed to be owned or controlled by Cuba and listed as specially designated nationals (“SDNs”). The three entities constituting the Moa Joint Venture in which Sherritt holds an indirect 50% interest have been deemed SDNs by U.S. Treasury. Sherritt, however, is not an SDN. The U.S. embargo generally prohibits persons subject to the jurisdiction of the United States from engaging in transactions involving the Cuban related businesses of the Corporation. Furthermore, generally U.S. origin technology, U.S. origin goods, and many goods produced from U.S. origin components or with U.S. origin technology cannot under U.S. law be transferred to Cuba or used in the Corporation’s operations in Cuba. Additionally, the embargo also prohibits imports into the United States of Cuban origin goods, or of foreign goods made or derived, in whole or in part, of Cuban origin goods, including Cuban nickel. In 1992, Canada issued an order pursuant to the Foreign Extraterritorial Measures Act (Canada) to block the application of the U.S. embargo under Canadian law to Canadian subsidiaries of U.S. enterprises. However, the general embargo limits Sherritt’s access to U.S. capital, financing sources, customers, and suppliers. 

The Helms Burton Act 

Separately from the general provisions of the embargo summarized above, the Helms Burton Act authorizes sanctions on non U.S. individuals or entities that “traffic” in Cuban property that was confiscated from U.S. nationals or from persons who have become U.S. nationals. The term “traffic” includes various forms of use of Cuban property as well as “profiting from” or “participating in” the trafficking of others. 

Contingencies 

A number of the Corporation’s subsidiaries have operations located in Cuba. The Corporation will continue to be affected by the difficult political relationship between the United States and Cuba. The former U.S. administration had announced that it would no longer suspend the right of claimants to bring lawsuits under Title III of the Helms-Burton Act, effective May 2, 2019. The Corporation has received letters in the past from U.S. nationals claiming ownership of certain Cuban properties or rights in which the Corporation has an indirect interest, however, no lawsuits against Sherritt have been initiated or threatened. In the event that any such lawsuits were to be filed, Sherritt does not believe that its operations would be materially affected because Sherritt’s minimal contacts with the United States would likely deprive any U.S. court of personal jurisdiction over Sherritt. Furthermore, even if personal jurisdiction were exercised, any successful U.S. claimant would have to seek enforcement of the U.S. court judgment outside the U.S. in order to reach material Sherritt assets. The Corporation believes it unlikely that a court in any country in which Sherritt has material assets would enforce a Helms-Burton Act judgment against it.

In Brussels Will U.S. Secretary Of State Blinken Discuss Cuba, Libertad Act And Venezuela With EC/EU Officials? Will He Rebuff, Sway Or Be Swayed? Quid Pro Quo?

Suspend Title III? Back-Off Title IV?
EU Defendants Total 2019 Revenues US$156 Billion
U.S. Plaintiffs Potentially Entitled To Hundreds Of Billions In Damages
US$6+ Million In Legal Fees So Far

EU Defendants Waiting 341 Days For EC Guidance.  If Libertad Act So Offensive & Disruptive To EU-U.S. Relations, Why No Guidance? 

Will EC Do What UK Did? 

United States Department of State: “Secretary of State Antony J. Blinken will travel to Brussels, Belgium, from March 22-25 to attend the NATO Ministerial, engage with European Union leaders, and meet with Belgian officials. The meetings in Brussels reaffirm the United States’ commitment to our Allies and European partners on our shared agenda… In addition, the Secretary will meet [March 24 at 5:30 pm] with European Commission [EC] President Ursula von der Leyen and meet [March 24 at 6:30 pm] with EU [European Union] High Representative for Foreign Affairs and Security Policy and European Commission Vice President Josep Borrell to discuss Transatlantic goals to contain the COVID-19 pandemic, pursue a sustainable global economic recovery, tackle the climate crisis, and strengthen democracy.” 

A diplomatic challenge for President von der Leyen and Vice President Borrell.  H.E. Dr. von der Leyen served in three cabinet positions and was the longest serving member of Chancellor Angela Merkel’s cabinet; and Libertad Act Title III defendant Trivago GmbH is headquartered in Dusseldorf, Germany.  H.E. Josep Borrell was Minister of Foreign Affairs, EU and Cooperation of the Kingdom of Spain; and Libertad Act Title III defendants Melia Hotels International S.A. and Iberostar Hoteles y Apartamentos S.L. are both headquartered in Palma, Spain.   

The Trump Administration on 2 May 2019 made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act” and “Helms-Burton”).  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.  Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  One Canada-based company (Toronto-based Sherritt International) and one Spain-based company (Melia Hotels International) are currently known to be subject to Title IV based upon a certified claim and non-certified claim. 

EU-based defendants in Libertad Act Title III lawsuits include: Copenhagen, Denmark-based A.P. Moller-Maersk A/S (2019 revenue approximately US$39 billion); Paris, France-based BNP Paribas (2019 revenue approximately US$49 billion); Amsterdam, Netherland-based Booking.com B.V. (2019 revenue approximately US$15 billion); Palma, Spain-based Iberostar Hoteles y Apartamentos S.L. (2019 revenue approximately US$2.6 billion); Palma, Spain-based Melia Hotels International S.A. (2019 revenue approximately US$2 billion); Paris, France-based Pernod Ricard S.A. (2019 revenue approximately US$10.5 billion); Paris, France-based Société Générale S.A. (2019 revenue approximately US$27.4 billion); and Dusseldorf, Germany-based Trivago GmbH (2019 revenue approximately US$940 million).  Additional lawsuits are expected to be filed. 

Into the third month of the Biden Administration, the Republic of Cuba and Venezuela are rarely mentioned in official readouts of conversations by President Joseph Biden, Secretary of State Blinken, and Assistant to the President for National Security Affairs Jake Sullivan with other country leadership.   

Ms. Jen Psaki, Assistant to the President and Press Secretary, and Mr. Ned Price, Spokesperson of the United States Department of State, generally reference the following- with the Libertad Act absent: 

“First, support for democracy and human rights will be at the core of our efforts, because we believe it is the means to empower the Cuban people to determine their own future; and second, as we’ve said before, we also know that Americans, especially Cuban Americans, are in most cases the best ambassadors for freedom and prosperity in Cuba. We are committed to both of these principles. Our review is being animated by both of those principles. We have also committed – and you heard this from Secretary Blinken up on the Hill yesterday – to consult closely with members of Congress as we undertake this review. So it is not that – it is not that this is in any way on the back burner. It is something we’re looking at very closely, and as that review progresses, we’ll consult with members of Congress. And when we have something to share, we’ll let you know.” 

“Well, we’ve talked about this a little bit in here before and nothing has really changed, but I’m happy to reiterate our policy. Our policy, as it relates to Cuba, will be governed by two principles: First, support for democracy and human rights will be at the core of our efforts through empowering the Cuban people to determine their own futures. Second, Americans, especially Cuban Americans, are the best ambassadors for freedom and prosperity in Cuba. A Cuba policy shift is not currently among President Biden's top priorities, but we are committed to making human rights a core pillar of our U.S. policy, and we're committed to carefully reviewing policy decisions made in the prior administration, including the decision to designate Cuba as a State Sponsor of Terrorism.” 

The Biden Administration has four reviews underway relating to the Republic of Cuba: 1) comprehensive policy review led by the National Security Council (NSC) and United States Department of State with a focus upon what changes should be made to policies and regulations implemented during the Trump Administration (2017-2021) including whether to nominate a United States Ambassador to the Republic of Cuba 2) reviews led by the Central Intelligence Agency (CIA) and United States Department of State into the cause(s) of injuries to United States government employees in 2016/2017 while they were in the Republic of Cuba 3) whether to suspend again Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as the “Libertad Act”) and 4) whether to remove the Republic of Cuba from the State Sponsors of Terrorism List maintained by the United States Department of State.   

Absent a crisis in the Republic of Cuba directly impacting the United States, there has been no demonstrated urgency for completing the four reviews. 

Thirty-six (36) Libertad Act Title III lawsuits have been filed in United States District Courts.  Some of the lawsuits have since been appealed, consolidated, dismissed, refiled, reversed, and transferred within districts and from district to district.  Some defendants have been dismissed, but the case continues with other defendants.   

There are 118 plaintiffs and seventy defendants of which twenty-five are located in the United States.  Fifteen countries are impacted.  Nine defendants are headquartered within member countries of the EU.  Seventy-five law firms have been retained with more than 218 attorneys listed within lawsuit filings.  More than 13,500 documents have been introduced.  Estimated law firm billable hours are US$6+ million.  Countries impacted include Canada, Chile, China, Denmark, France, Germany, Netherlands, Panama, Republic of Cuba, Singapore, Spain, Switzerland, Thailand, United Kingdom, United States.  LINK To Lawsuit Filing Statistics. 

In the third quarter of 2019, the then twenty-eight, now twenty-seven member EU confirmed its intention to issue a Request For Proposal (RFP) to law firms in the United States.  The law firm(s) 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.  The RFP has yet to materialize.  

Defendants and plaintiffs have been waiting 341 days for the EC, the administrative body for the EU, to issue guidance as to whether an EU-based defendant may defend itself against a Libertad Act Title III lawsuit filed in the United States. 

On 5 February 2021, the United Kingdom Department of International Trade provided guidance to Bristol, United Kingdom-based Imperial Brands plc (2020 revenue approximately US$45 billion), authorizing the company to defend itself against a Libertad Act Title III lawsuit filed on 6 August 2020 in the United States. 

One lawsuit plaintiff filing: “On April 23, 2020, Defendant Iberostar Hoteles y Apartamentos S.L. (the “Defendant” or “Iberostar”) moved to stay these proceedings so that it could obtain a ruling from the European Commission on its request for an authorization to file a response to Plaintiff’s Complaint [D.E. 16] (the “Motion to Stay”). In its filing, Defendant specifically limited the requested stay to a period of seventy-five (75) days. Motion to Stay at ¶ 2 (“To avoid a protracted delay, this request for a stay is limited to no more than 75 days.”). The next day, this Court stayed these proceedings indefinitely “until the European Union grants Iberostar’s request for authorization” and required Defendant to submit status reports every thirty days [D.E. 17] (the “April Stay Order”) (emphasis added).” 

One lawsuit defendant filing: “The European Commission acknowledged receipt of Defendant’s Application on May 19, 2020.  On June 15, 2020, Iberostar requested the European Commission to provide an update on the status of the Application.  On June 22, 2020, the European Commission confirmed that it is “currently assessing [Defendant’s] application,” and that the Commission does “[its] utmost to ensure that a decision is taken in due course.”  On August 10, 2020, the European Commission informed Iberostar regarding the procedures involved in the consideration of the pending Application. They explained that it requires “extensive consultation of both the Commission’s services and Member States’ authorities.”  On September 23, 2020, the Commission replied that its “services are actively assessing [Iberostar’s] application.” The Commission highlighted that the “complexity of [Iberostar’s] request requires careful consideration, including extensive consultation of both the Commission services and Member States’ authorities.” Finally, the Commission confirmed that, “[d]espite the challenges presented by the current health situation, [they] do [their] utmost to ensure that a decision is taken in due course.”  On November 19, 2020, the European Commission informed Iberostar regarding the status of its pending Application. They explained that “challenges presented by the current health situation [have] lengthened the process.” Further, it confirmed they “are doing [their]utmost to ensure a timely response.”  On December 20, 2020, the European Commission sent a communication to Iberostar in which it confirmed the Commission has “been actively liaising to complete the required consultations of both the Commission Services and Member States’ authorities, as required.” The Commission “trust[s] any such assessments and investigations will shortly be completed and the authorization process will pursue its course.”  On February 18, 2021, the European Commission sent a new communication to Iberostar in which it confirmed Iberostar’s “application is still undergoing assessment by [the Commission] services.” The Commission added that “the consultation of the Commission services raised questions and possible gaps of information that require further investigation.””

LINK TO COMPLETE POST IN PDF FORMAT

Commander Of United States Southern Command Mentioned Cuba In Statement Before U.S. Senate

STATEMENT OF ADMIRAL CRAIG S. FALLER COMMANDER, UNITED STATES SOUTHERN COMMAND BEFORE THE 117TH CONGRESS SENATE ARMED SERVICES COMMITTEE MARCH 16, 2021

These threats include ESAs [external state actors] like the PRC, Russia, and Iran that actively seek to take advantage of the nascent, fragile democracies in this region and look to exploit the region’s resources and proximity to the United States; TCOs that run all forms of illicit activities to turn a profit, at the expense of the rule of law, and more importantly, of the lives of all who are impacted along the way; and malign regional state actors – those countries within our own neighborhood, like Cuba, Venezuela, and Nicaragua, that perpetuate corruption and challenge freedom and democracy by opening the door to ESAs and TCOs at the expense of their own people.

Cuba. Cuba remains a regional corrosive influence that enables and inspires autocratic regimes in the hemisphere and is the primary supporter of the illegitimate Maduro regime in Venezuela. Cuba is the entry point for ESA influence in the region and its reach extends beyond this hemisphere. Like the PRC, Cuba uses medical diplomacy to build international goodwill and gain back door access to undermine fragile democracies. Havana has fully exploited the COVID-19 pandemic to reinvigorate its medical outreach, a key revenue generator for the island at a time when it is desperate for income.

LINK To Complete Statement In PDF Format

UK Government Regulation Text Authorizing Imperial Brands To Defend Itself In Libertad Act Lawsuit; EU-Based Defendants Await Guidance; Could UK Be Template For EU?

Defendant Imperial Brands PLC's Fourth Status Report (2/8/21)
Defendant Imperial Brands PLC's Fifth Status Report (1/25/21)

Libertad Act Lawsuit Filing Statistics

Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.

STATUTORY INSTRUMENTS
2021 No. 132 PROTECTION OF TRADING INTERESTS TRADE
The Protection of Trading Interests (Authorisation) Regulations 2021
Made - - - - at 9.00 p.m. on 5th February 2021

The Secretary of State makes the following Regulations in exercise of the powers conferred by Article 5, second paragraph, point (a), of Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom(1).

Citation
1. These Regulations may be cited as the Protection of Trading Interests (Authorisation) Regulations 2021.

Interpretation
2. In these Regulations, “the Helms-Burton Act” means the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996(2).

Authorisation to comply with Title III of the Helms-Burton Act
3. The person specified in Part 1 of the Schedule is, for the purpose specified in Part 2 of the Schedule, authorised to comply with any requirement or prohibition based on or resulting from Title III of the Helms-Burton Act(3) (protection of property rights of United States nationals). (1) EUR 1996/2271, amended by S.I. 2020/1660. EUR 1996/2271 was incorporated into domestic law at 11 p.m. on 31st December 2020 under section 3 of the European Union (Withdrawal) Act 2018 (c. 16). (2) 22 U.S.C. §§ 6021-6091. (3) Title III of the Helms-Burton Act is codified in 22 U.S.C. §§ 6081-6085.

Signed by authority of the Secretary of State for International Trade At 9.00 p.m. on 5th February 2021
Ranil Jayawardena, Parliamentary Under Secretary of State Department for International Trade

SCHEDULE Regulation 3
Authorisation to file motion to dismiss
PART 1 Authorised person Imperial Brands plc(4)
PART 2 Authorised purpose
Filing and litigating a motion to dismiss the complaint brought before the federal judiciary of the United States of America under Title III of the Helms-Burton Act in which Imperial Brands plc is named as a defendant (case number 1:20-cv-23287-DPG).

EXPLANATORY NOTE (This note is not part of the Regulations)

These Regulations, which come into force at the time they are made, authorise compliance by a specified person, for a specified purpose, with a requirement or prohibition referred to in the first paragraph of Article 5 of Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (EUR 1996/2271, amended by S.I. 2020/1660).

The law of the United States of America referred to in these Regulations may be found online at https://uscode.house.gov/. A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary, or public sector is foreseen.

(4) Imperial Brands plc is a public limited company registered in England and Wales (company number 3236483).

2020 Annual Report
Imperial Brands
US Helms-Burton litigation

Imperial has been named as a defendant in a civil action in federal court in Miami, Florida under Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (“Helms-Burton”) filed on 6 August 2020. Title III provides US nationals with a cause of action and a claim for treble damages against persons who have “trafficked” in property expropriated by the Cuban government. Title III is largely untested because it did not come into effect until May 2019. Treble damages are automatically available under Helms-Burton. Although the filed claim is for unquantified damages, we understand the claim could potentially reach approximately $365 million, based on the claimants’ claim to own 90% of the property, which they value at $135 million (and then treble). The claim is based on allegations that Imperial, through Corporación Habanos S.A. (a joint venture between one of Imperial’s now former subsidiaries and the Cuban government), has “trafficked” in a factory in Havana, Cuba that the Cuban government confiscated from the claimants’ ancestor in the early 1960s, by using the factory to manufacture, market, sell, and distribute Habanos cigars. Imperial is subject to an EU law known as the EU Blocking Statute (Regulation (EC) No. 2271/96), which conflicts with Helms-Burton, protects Imperial against the impact of Title III, and impacts how Imperial may respond to the threatened litigation. The EU Blocking Statute continues to apply in the UK during the Brexit “transition period” in place until 31 December 2020. After 31 December 2020, the substance of the law is likely to stay the same in the UK, at least in the near future. On 23 September 2020 the US court granted a stay of the action until 9 February 2021 or until further order of the court, while Imperial awaits the European Commission’s response to its request for authorisation to defend the action. Separately, two other groups of prospective claimants have indicated that they intend to file a lawsuit against Imperial in federal court in Miami, Florida. Neither claim has been filed. The threatened claims relate to other properties in Cuba, which the prospective claimants claim were confiscated from their ancestors by the Cuban government in the 1960s and which they claim are now used by Corporación Habanos S.A for commercial activities. The prospective claimants claim to be entitled to treble damages from Imperial.

UK Approves Imperial Brands To Defend Itself In Libertad Act Lawsuit; Nearing A Year, Iberostar Of Spain Awaiting Answer From EU

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] 

Zumpano Patricios P.A. (plaintiff)
Bird & Bird (defendant)
Holland & Knight (defendant)

Defendant’s Response To Plaintiff’s Renewed Motion To Lift Stay, And If Denied, Motion For Certification Of Order Under 28 U.S.C. § 1292(B) (3/17/21) 

Defendant Imperial Brands PLC's Fourth Status Report (2/8/21)
Defendant Imperial Brands PLC's Fifth Status Report (1/25/21)

Plaintiff’s Renewed Motion To Lift Stay, And If Denied, Motion For Certification Of Order Under 28 U.S.C. § 1292(B) (3/3/21) 

Plaintiffs In Libertad Act Lawsuit Against Spain's Iberostar Hotels Want Court To Move Ahead Without Waiting For EU To Respond- Nearing 12 Months  

Libertad Act Lawsuit Filing Statistics

Excerpts From Defendant’s Response (3/17/21): 

This Court granted the Stay to allow Defendant, an E.U. national subject to the laws of the European Union, to seek a mandatory authorization from the European Commission (“Commission”) to submit pleadings responsive to the Complaint, as required by E.U. regulations. Iberostar applied for authorization to the Commission on April 15, 2020 (“Application”), and it has diligently and actively pursued a determination from the European agency since then.  

2. The Stay is not immoderate for multiple reasons. It is framed within reasonable limits, as described in the Order. In its Second Order the Court noted the Stay will extend only as long as it takes for the Commission to decide on Iberostar’s Application. See Second Order, p. 1 [ECF No. 25]. This Court is not declining to exercise jurisdiction over this case, but temporarily abstaining from exercising jurisdiction, with no prejudice to Plaintiff, to allow a European entity to obtain a mandatory authorization to appear in this proceeding.1 Defendant is between a rock and a hard place, and it is strictly following the procedure under E.U. law to defend this litigation.

Iberostar is, however, the first European entity to request the Commission to issue an authorization under the European Council Regulation 2271/96, Protecting Against the Effects of the Extra-Territorial Application of Legislation Adopted by a Third Country, and Actions Based Thereon or Resulting Therefrom, 1996 O.J. (L 309) 1 (EC) (“Council Regulation 2271/96”).  

4. As a result, there is no precedent to guide the Commission’s decision, which is of utmost importance for the European Union and its 27 members’ interests. As opposed to the U.S. Department of State or the U.K. Department for International Trade, the Commission operates as a cabinet government with 27 members or commissioners, one member per member state. Each of them needs to be consulted before the Commission makes its decision. This decision will set precedent for other applications relating to, not only the Helms-Burton Act (“Act’”), but also other U.S. legislation covered by Council Regulation 2271/96.

Plaintiff also refers to another Title III case in which Honorable Judge Gayles stayed the action against a British defendant, Imperial Brands PLC, pending authorization to participate in the case. See Rodriguez et al., v. Imperial Brands et al., Case No. 20-cv-23287-DPG (S.D. Fla. Sept. 23, 2020).  

30. Plaintiff suggests the authorization was granted in around five months because “the court applied the necessary pressure to obtain the required authorization within a reasonable time.” Motion, p. 5. The authorization, however, was granted in five months because the United Kingdom left the European Union and the Commission did not make the decision, but the U.K. Department for International Trade did instead. Plaintiff’s assertion that, “if the U.K. only needed little over a month to publish its decision regarding Imperial, despite simultaneously undergoing the “Brexit” transition, the European Commission certainly does not need more time” shows a fundamental misunderstanding of how the European Union, the Commission and the Brexit transition work.  

Finally, the Commission has not, as Plaintiff contends, “defiantly strengthened its opposition to the Helms-Burton Act” since the Stay was mandated. Motion, p. 2. The E.U. has opposed the Act since its passing for 25 years, and Council Regulation 2271/96 is proof of that opposition. Council Regulation 2271/96, nonetheless, provides that an E.U. entity may seek authorization to comply with an order arising out of the Act, as Iberostar has sought.  

On March 16, 2021, Iberostar sent a new request to the Commission, seeking further guidance as to the progress that the Commission has made, the steps that lie ahead, and a timeframe, if possible, for when a determination may be made. Iberostar will inform the Court of the Commission’s response in due course.

2020 Annual Report
Imperial Brands
US Helms-Burton litigation

Imperial has been named as a defendant in a civil action in federal court in Miami, Florida under Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (“Helms-Burton”) filed on 6 August 2020. Title III provides US nationals with a cause of action and a claim for treble damages against persons who have “trafficked” in property expropriated by the Cuban government. Title III is largely untested because it did not come into effect until May 2019. Treble damages are automatically available under Helms-Burton. Although the filed claim is for unquantified damages, we understand the claim could potentially reach approximately $365 million, based on the claimants’ claim to own 90% of the property, which they value at $135 million (and then treble). The claim is based on allegations that Imperial, through Corporación Habanos S.A. (a joint venture between one of Imperial’s now former subsidiaries and the Cuban government), has “trafficked” in a factory in Havana, Cuba that the Cuban government confiscated from the claimants’ ancestor in the early 1960s, by using the factory to manufacture, market, sell, and distribute Habanos cigars. Imperial is subject to an EU law known as the EU Blocking Statute (Regulation (EC) No. 2271/96), which conflicts with Helms-Burton, protects Imperial against the impact of Title III, and impacts how Imperial may respond to the threatened litigation. The EU Blocking Statute continues to apply in the UK during the Brexit “transition period” in place until 31 December 2020. After 31 December 2020, the substance of the law is likely to stay the same in the UK, at least in the near future. On 23 September 2020 the US court granted a stay of the action until 9 February 2021 or until further order of the court, while Imperial awaits the European Commission’s response to its request for authorisation to defend the action. Separately, two other groups of prospective claimants have indicated that they intend to file a lawsuit against Imperial in federal court in Miami, Florida. Neither claim has been filed. The threatened claims relate to other properties in Cuba, which the prospective claimants claim were confiscated from their ancestors by the Cuban government in the 1960s and which they claim are now used by Corporación Habanos S.A for commercial activities. The prospective claimants claim to be entitled to treble damages from Imperial.

U.S. Senator Robert Menendez: Biden Administration "Consulting" With Him

On Cuba News
Miami, Florida
17 March 2021

Bob Menéndez says he feels better with the Biden administration than with Obama’s in terms of its stance towards Cuba

According to the Cuban-American senator, this administration is consulting the issue of Cuba with him and other colleagues and does not see an imminent rapprochement with the island.

Cuban-American Democratic Senator Bob Menéndez thinks that the White House’s statements that Cuba is not a priority for the current administration is because the United States is concentrating on fighting the COVID-19 pandemic and other more pressing issues.

“We are meeting the challenge of the global pandemic of COVID-19, we are dealing with the issue of China—a threat to the interests of the United States and a power that we are going to have to confront—, and we continue with economic difficulties in the country. The president’s plan that was passed through the House and the Senate, is now headed for his signature and is important to rescue families in this country, their health and economically speaking. Anyway, all those things have taken a priority,” he affirmed in an interview with the Miami channel America TV.

In the program A Fondo, the senator, Chairman of the Senate Foreign Relations Committee, said that Cuba was the main enemy of the United States in the hemisphere because it had its “tentacles” everywhere, mainly in Venezuela, and denied that various socialized political gestures during the last weeks, such as the request of 80 congresspeople to normalize U.S.-Cuba relations and the presentation of various proposals in that regard, are something new. On the contrary, they have been common in other administrations, he said.

“Many [especially in Florida] see that any performance is always something threatening. If we are going to see the truth, the participation of all colleagues…, with legislation and letters, has existed for a long time. They existed in the time of President Trump, they also existed during the time of President Obama. There is nothing new in their initiatives,” he noted.

However, he underlined that the fact “there is a Democratic president…does not mean that what has existed for years, both in Republican and Democratic administrations, of members of Congress, has new relevance. I think the administration, legitimately, is looking and saying: How can we help the Cuban people? How do we really create the necessary openings for democracy, respect for human rights, and that the people do not have to flee their country? If we are honest…after decades of Republican or Democratic administrations, what we want to achieve has not been achieved: the freedom of the Cuban people. We have to think about what else we can do to achieve it. In this sense, there are several ideas that I am giving to the administration and they are reviewing a policy that could achieve what we want for the Cuban people.”

According to the senator for New Jersey, “within the administration, the National Security Corps and the State Department understand that Obama’s effort did not yield what was expected. The regime did absolutely nothing to change any element in human rights, in economic openings, in cultural openings, for example, like what we have seen with the San Isidro Movement. They saw that it did not work. I think they understand it and that is why they are looking for a path that can give results.”

When asked if the idea of a rapprochement with Cuba could be imminent, he pointed out: “all my instincts and conversations [indicate that] that is not what is going to happen.”

“President Obama did not consult with Congress, I feel better now (we will see later) because we have an administration that first, has not ideologically decided to return to Obama’s policy, and at the same time is consulting with this servant and with others what that policy should be,” said the senator, who stated that he had met with President Biden during his campaign and had not been able to meet with him during his term, although he said that he had agreed to meet soon. However, Menéndez said he has spoken frequently with Secretary of State Antony Blinken, and during those conversations “we have spoken to him very clearly about the realities of the Castro regime,” he pointed out.

Regarding the future, Menéndez does not see great changes in the strong-arm stance of the exiles towards the government of the island, like a change in the perception of the Democrats. “I don’t think they are going to perceive the Cuban American community and voters as political enemies,” he said.

“What I do believe is that they are going to have a constructive conversation to determine, as I have said before, what the means is. Because from 1959 to the present we have not had the opportunity to achieve what we want for the Cuban people. We have to do something else because what we have done has not been achieved and we have to recognize that,” he stressed.

Two Additional Libertad Act Lawsuits Filed In New Jersey And Texas: Now Total Is 36 Lawsuits Since May 2019

NORTH AMERICAN SUGAR INDUSTRIES INC., Plaintiff, v. DSV AIR & SEA INC., Defendant. [2:21-cv-00080; New Jersey District].

Gibson, Dunn & Crutcher (plaintiff)
Morgan, Lewis & Bochius (defendant)

LINK To Complaint (1/4/21)

LINK To Plaintiff’s Notice Of Unopposed Motion To Stay This Action Pending Final Resolution Of Defendant’s Motion To Dismiss The First-Filed Action For Lack Of Personal Jurisdiction (1/15/21)

NORTH AMERICAN SUGAR INDUSTRIES INC., Plaintiff, v. BBC CHARTERING USA, LLC, Defendant. [4:21-cv-00012; Southern District Texas]

Gibson, Dunn & Crutcher (plaintiff)

LINK To Complaint (1/4/21)
LINK To [Proposed] Order Granting Plaintiff's Unopposed Motion To Stay This Action Pending Final Resolution Of Defendant's Jurisdictional Challenges In The First-Filed Action (1/26/21)

NORTH AMERICAN SUGAR INDUSTRIES INC., V. XINJIANG GOLDWIND SCIENCE & TECHNOLOGY CO., LTD., GOLDWIND INTERNATIONAL HOLDINGS (HK) LTD., DSV AIR & SEA INC., BBC CHARTERING USA, LLC, and BBC CHARTERING SINGAPORE PTE LTD., [1:20-cv-22471; Southern Florida District].

Gibson, Dunn & Crutcher (plaintiff)
Mandel & Mandel (plaintiff)
Morgan, Lewis & Bochius (defendant)
Akerman (defendant)
Hogan Lovells LLP (defendant)

LINK TO Libertad Act Lawsuit Filing Statistics

Plaintiffs In Libertad Act Lawsuit Against Spain's Iberostar Hotels Want Court To Move Ahead Without Waiting For EU To Respond- Nearing 12 Months

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]

Zumpano Patricios P.A. (plaintiff)
Bird & Bird (defendant)
Holland & Knight (defendant)

LINK: Plaintiff’s Renewed Motion To Lift Stay, And If Denied, Motion For Certification Of Order Under 28 U.S.C. 1292(b) (3/3/21)

Defendant Imperial Brands PLC's Fourth Status Report (2/8/21)
Defendant Imperial Brands PLC's Fifth Status Report (1/25/21)

LINK: Defendant’s Status Report (2/18/21)
LINK: Defendant’s Status Report (1/19/21)

Excerpts:

Plaintiff Maria Dolores Canto Marti, as personal representative of the Estates of Dolores Martí Mercadé and Fernando Canto Bory (“Plaintiff”), respectfully moves this Court to lift the stay previously entered on April 24, 2020 [D.E. 17], and if denied, to certify the order denying such motion for certification under 28 U.S.C. § 1292(b) and in support states as follows:

On April 23, 2020, Defendant Iberostar Hoteles y Apartamentos S.L. (the “Defendant” or “Iberostar”) moved to stay these proceedings so that it could obtain a ruling from the European Commission on its request for an authorization to file a response to Plaintiff’s Complaint [D.E. 16] (the “Motion to Stay”). In its filing, Defendant specifically limited the requested stay to a period of seventy-five (75) days. Motion to Stay at ¶ 2 (“To avoid a protracted delay, this request for a stay is limited to no more than 75 days.”). The next day, this Court stayed these proceedings indefinitely “until the European Union grants Iberostar’s request for authorization” and required Defendant to submit status reports every thirty days [D.E. 17] (the “April Stay Order”) (emphasis added).

Here, like in Mais, resolving the issue at hand – the propriety of a stay in this context – would certainly materially advance the case and shorten the litigation. To wit, this stay, which is pegged to the European Commission’s authorization can persist indefinitely. And, given the EU’s further opposition to the Helms-Burton Act, which was made clear in its recent Communication, such authorization may never come. Or, at best, such authorization will be substantially delayed. Determining the propriety of such a stay has the potential to move the case forward to resolution more quickly. Moreover, resolving the issue presented herein will likely reduce the amount of litigation necessary on remand because it would prevent the Defendant from repeatedly seeking authorization to participate in this case at every stage of the litigation, preventing this Court from having to stay this case at every such stage. See Section III.C., supra for a more detailed discussion on the piecemeal litigation stemming from staying this case. Even if the European Commission will grant its authorization for Defendant to move to dismiss the case in the interim, the European Commission may not otherwise allow Defendant to participate in this case without first seeking authorization, resulting in re-staying this case again and again.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court vacate the stay and allow this case to proceed. And, if this Court denies Plaintiff’s motion, Plaintiff respectfully requests that this Court certify this Court’s order denying the Motion to the Eleventh Circuit pursuant to 28 U.S.C. § 1292(b).

U.S. Government Reports Cuba Sought To Support Biden And "Undermine" Trump And Republicans In 2020 Election

Director of National Intelligence (DNI)
National Intelligence Council
Intelligence Community Assessment
Foreign Threats to the 2020 US Federal Elections
10 March 2021
Washington DC

Excerpts (BOLD text is from document) 

Key Judgment 5: We assess that a range of additional foreign actors-including Lebanese Hizballah, Cuba, and Venezuela-took some steps to attempt to influence the election. In general, we assess that they were smaller in scale than the influence efforts conducted by other actors this election cycle. Cybercriminals disrupted some election preparations; we judge their activities probably were driven by financial motivations.

We assess Cuba sought to undermine former President Trump's electoral prospects by pushing anti-Republican and pro-Democrat narratives to the Latin American community. Cuban intelligence probably conducted some low-level activities in support of this effort. 

LINK To 15-Page Report In PDF Format

President Trump Seeking To Oust Cuban-American Member Of Congress; Exacting Revenge More Important Than Number Of Cuban-Americans In Congress?

Punchbowl News
Los Angeles, California
17 March 2021

“Max Miller, a former White House aide to Donald Trump, is running in a primary against Ohio Rep. Anthony Gonzalez, who supported impeaching the 45th president. Gonzalez is a well-liked former Ohio State football star who played in the NFL and later graduated from Stanford Business School.”  

From Wikipedia: “Gonzalez's Cuban-American father immigrated to the U.S. from Cuba after Fidel Castro took power.” 

Members of the United States Congress identifying as of Cuban descent:   

United States Senate
The Honorable Ted Cruz (R- Texas)
The Honorable Marco Rubio (R- Florida)
The Honorable Robert Menendez (D- New Jersey)

United States House of Representatives
The Honorable Albio Sires (New Jersey; D- 8th)
The Honorable Alex Mooney (West Virginia; R- 2nd)
The Honorable Anthony E. González (Ohio; R- 16th)
The Honorable Mario Díaz-Balart (Florida; R-25th)
The Honorable Carlos Gimenez (Florida; R- 26th)
The Honorable Maria Elvira Salazar (Florida; R- 27th)
The Honorable Nicole Malliotakis (New York; R- 11th)

The Biden Administration will remain concerned about the 435-member United States House of Representatives where the Democratic Party has a nine-seat majority in the 117th United States Congress.  

The 2020 Census is expected to deliver to Florida two (2) additional seats in the United States House of Representatives- which increases the electoral prominence of the state in the 2022 and 2024 elections (24 votes of the required 270 votes for victory in the Electoral College).    

The state legislature in Florida is controlled by Republican Party.  In 2021, the Florida Senate (24- R and 16- D) and the Florida House of Representatives (78- R and 42- D) will expectantly seek to craft favorably the two new districts for the United States House of Representatives and recraft existing districts to lessen the number of Democrats.  There will likely too be court challenges. 

One result will be current Democratic Party members of the United States House of Representatives from Florida will tact right, meaning against Biden Administration Republic of Cuba initiatives in their primaries or general election. 

There will also be Democratic Party members of the United States House of Representatives and United States Senate from other states who will oppose perceived lessening of pressures upon the Republic of Cuba. 

What some advocates will promote as a vote of legislative courage others will decry as a shortcut to the unemployment line.

Efforts to request the Biden Administration suspend Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”) made operational on 2 May 2019 by the Trump Administration risks antagonizing an important constituency in Florida and conflicting with President Biden’s appreciation of not interrupting the judicial process from his tenure as Chairman of the United States Senate Committee on the Judiciary (1987-1995).   

There have been thirty-three lawsuits filed since 2019 and some are at Courts of Appeals.  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.   

And there are the many unknowns which can influence the 2022 and 2024 elections in Florida and other states: H.E. Nicolas Maduro, President of Venezuela, is removed from office.  H.E. Daniel Ortega, President of Nicaragua, is removed from office.  The government of the Republic of Cuba decides to robustly engage with the Biden Administration; the 5,913 certified claims are resolved.  

The Biden Administration and Democratic Party will continue to appease the State of Florida and its 2020 population of 21.48 million residents (14.5 million registered voters) where the Republican Party has 5,219,015 and the Democratic Party has 5,335,965; and 3,790,478 have no party affiliation.  In the 2020 Presidential Election, Florida voted 51.2% Republican to 47.9% Democratic; in 2016, 49.0% Republican to 47.8% Democratic; in 2012, 50.0% Democratic to 49.1% Republican; and in 2008, 51.0% Democratic to 48.2% Republican.  That data does not suggest a red state.   

Neither the Biden Administration nor the Democratic Party headquarters in Washington DC will abandon Florida and policies relating to the Republic of Cuba will reflect the electoral realities of Florida. 

Cuba’s Return To State Sponsors Of Terrorism List Ricochets To Impact Negotiations For Certified Claimants, Embassy Staffing Levels- Trap Set By Trump Administration? Diplomats Bait?

33 Years On. 6 Years Off. 64 Days On.
11 Terrorism Lawsuits And US$5.1 Billion In Judgements

Terrorism Lawsuits Again Permitted Against Government Of Cuba
If Cuba Doesn’t Defend Lawsuits, Default Judgements Can Exist In Perpetuity
New Marketing Effort To Sell Judgements- It’s Legal
U.S. Government Can File To Dismiss The Lawsuits

Injured U.S. Diplomats May Now Sue Government Of Cuba
Was This The Secret Strategy Of The Trump Administration?
Will Government Of Cuba Accept Additional U.S. Diplomats If Sued By U.S. Diplomats?

If Biden Administration Removes Cuba From Terrorism List, Attorneys Will Have 45 Days To File Lawsuits

Chairman Of U.S. Senate Committee On Foreign Relations Robert Menendez Will Have Input- And Perhaps Leverage

May There Be A Moment When Neither Current Government In Havana Or Future Government In Havana Will Have The Means Or Desire To Satisfy The Certified Claims And Judgements?

Original 1960 Value Of 5,913 Certified Claims US$1.9 Billion Plus 6% Annual Interest
Terrorism Judgements Come Ahead Of Certified Claimants
Terrorism Judgements Used 100% Of Funds Meant To Compensate Certified Claimants
Cuba Funds Frozen In U.S. To Repay Certified Claimants Used For Terrorist Judgements

When the Obama Administration removed the Republic of Cuba from the State Sponsors of Terrorism List on 29 May 2015, there was a certification to leadership of the United States Congress that “the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and ... has provided assurances that it will not support acts of international terrorism in the future.”   

At the time of the removal from the State Sponsors of Terrorism List, the President of the Republic of Cuba was H.E. General Raul Castro (2008-2018).  Presumably, the Obama Administration obtained a written or verbal assurance from President Castro.   

Since 2019, H.E. Miguel Diaz-Canel has been President of the Republic of Cuba.  Has or would the Biden Administration need obtain a written or verbal assurance from President Diaz-Canel prior to providing a certification to the United States Congress?  Would President Diaz-Canel provide such certification? 

The Biden Administration has four reviews underway relating to the Republic of Cuba: 1) comprehensive policy review led by the National Security Council (NSC) and United States Department of State with a focus upon what changes should be made to policies and regulations implemented during the Trump Administration (2017-2021) including whether to nominate a United States Ambassador to the Republic of Cuba 2) reviews led by the Central Intelligence Agency (CIA) and United States Department of State into the causes of injuries to United States government employees in 2016/2017 while they were in the Republic of Cuba 3) whether to suspend again Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as the “Libertad Act”) and 4) whether to remove the Republic of Cuba from the State Sponsors of Terrorism List maintained by the United States Department of State.   

Impacting the Biden Administration timeline for conclusion of the reviews has among others included: 1) obtaining confirmation in the evenly-divided United States Senate for cabinet secretaries, sub-cabinet officials, agency officials, ambassadors, and judicial appointments 2) obtaining legislative approval for US$1.9 trillion in COVID-19-related funding 3) obtaining legislative approval for US$1+ trillion in infrastructure-related funding 4) approval of a budget  5) obtaining legislative approval for an increase to the national minimum wage and 6) obtaining political support for foreign policy initiatives. 

Absent a crisis in the Republic of Cuba impacting directly the United States, there has been no demonstrated urgency for completing the four reviews. 

On 28 February 2021, Thomson Reuters reported: “The Biden administration also appears to have little sense of urgency for major gestures toward Cuba despite hopes for a softer approach after Trump, often citing its support for Maduro, rolled back historic Obama-era détente with Havana.  Some Biden advisers had suggested earlier that he could start by loosening up the flow of remittances from Cuban Americans and ease restrictions on family travel to the Communist-ruled island.  But while acknowledging such changes could have a positive impact, the official said a Cuba policy shift was not currently among Biden’s top priorities, which include the coronavirus pandemic, economic recovery and rebuilding alliances abroad.  “Frankly, first things first,” the official said.  There has also been no sign of any immediate plans to rescind Cuba’s designation as a state sponsor of terrorism, though Biden officials have said Trump’s last-minute decision to return Havana to the U.S. blacklist is under review.” 

On 3 March 2021, Thomson Reuters reported “Asked about the prospects for loosening up remittances and easing restrictions on family trips, the White House official said: “The best ambassadors are the American people, specifically the Cuban-American people maybe coming in with remittances and travel.  A White House official dampened hopes for a quick Cuba policy shift in an interview with Reuters at the weekend, saying it was not currently among Biden’s top priorities,.…” 

SSTL History (1982-2021) 

The Reagan-Bush Administration (1981-1989) first added the Republic of Cuba to the State Sponsors of Terrorism List on 1 March 1982.   

The Obama-Biden Administration (2009-2017) removed the Republic of Cuba from the State Sponsors of Terrorism List on 29 May 2015.   

The Trump-Pence Administration (2017-2021) returned the Republic of Cuba to the State Sponsors of Terrorism List on 12 January 2021.   

The Biden-Harris Administration (2021- ) is expected to remove the Republic of Cuba from the State Sponsors of Terrorism List.  A forty-five-day advance notification to the United States Congress is required. 

ANECDOTE: From 26 September 2002 to 30 September 2002, while the Republic of Cuba was on the State Sponsors of Terrorism List, the [George W.] Bush Administration authorized 923 representatives of United States-based companies participated in the U.S. Food & Agribusiness Exhibition held at the Palacio de Convenciones de la Habana (Pabexpo) in the city of Havana, Republic of Cuba, during which the Republic of Cuba contracted for to purchase US$91.9 million in agricultural commodities and food products from the United States.  More than 154,000 pounds of cargo, including livestock, was transported using four aircraft from the United States to the Republic of Cuba for the exhibition.  This was and remains the single-largest gathering of United States business representatives to visit the Republic of Cuba since 1959.  More than 16,000 Republic of Cuba nationals visited the exhibition, which was held under licenses issued by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury.  

While the Republic of Cuba was on the State Sponsor of Terrorism List from 1982 to 2015, plaintiffs won primarily in state courts eleven (11) lawsuits using the terrorism exception to the Foreign Sovereign Immunities Act (FSIA).   

Total Compensatory Damages and Punitive Damages are US$4,420,592,158.37 plus annual interest for uncollected judgements with the State of Florida permitting 11% annual interest.  According to the Washington DC-based Congressional Research Service (CRS), many of the judgements “involved conduct that occurred prior to Cuba’s terrorism designation, and all were obtained as default judgments without an entry of appearance by the Cuban government.” 

Who Now Can Sue? 

As of 12 January 2021, any individual subject to United States jurisdiction believing they have a personal claim against the government of the Republic of Cuba for acts of terrorism may file a lawsuit in a state court or federal court seeking damages from the government of the Republic of Cuba.   

With the expectation the government of the Republic of Cuba will not appear to defend itself, as in previous lawsuits, almost any legal argument can result in a default judgement.  With eleven of the previous lawsuits obtaining default judgements of US$4.2 billion, likely not a difficult decision to obtain legal counsel, pay court fees, file a lawsuit, and await the default judgement. 

Among those who may file lawsuits could be some of the reported twenty-four (24) United States nationals injured during their posting to the Republic of Cuba in 2016/2017 remain employed by the United States government, including at the United States Department of State and Central Intelligence Agency (CIA).  According to the heavily redacted 2018 report from the United States Department of State Accountability Review Board, the health impact for some were “so severe they may never be able to return to their previous jobs.” 

To file a lawsuit, United States law requires a country to be included on the State Sponsors of Terrorism List when a terrorism-related action is taken, although there have been instances where lawsuits were filed, and judgements were rendered for actions attributed to the Republic of Cuba prior to its inclusion on the State Sponsors of Terrorism List.  The United States Department of State could have sought to have courts void the judgements using the Foreign Sovereign Immunities Act (FSIA) in those instances where the Republic of Cuba was sued for terrorist acts while not on the State Sponsors of Terrorism List.  The United States Department of State declined to do so.  

Did Trump Administration Set A Trap For Biden Administration?   

Perhaps, a trap by the Trump Administration was to use the return of the Republic of Cuba to the State Sponsors of Terrorism List as an enticement for some of the twenty-four injured individuals and/or their families to file lawsuits believing accurately that once lawsuits are filed the bipartisan political atmospherics would be challenging for the Biden Administration to remove the Republic of Cuba from the State Sponsors of Terrorism List.  The message then from some Democrats and Republicans in the United States Congress to the Biden Administration- do not remove an opportunity for justice.   

If some of the individuals are injured permanently might they and their families want compensation?  Suing the United States Government is generally problematic.  Suing the Republic of Cuba may provide justice, but not necessarily result in economic pain for the Republic of Cuba because collecting on a judgement is not an easy process.   

Since the Republic of Cuba has maintained it did not cause the injuries and does not know who caused the injuries, it would unlikely present a defense in a lawsuit.  The result would be a default judgement.  If the lawsuit is filed in the State of Florida, the judgement would be subject to an 11% annual interest rate for what remains outstanding.  Judgements are valid for twelve (12) years and may be renewed to endure- and may be transferred, sold, bartered, and inherited.  The ultimate monetary ticking time bomb. 

With a judgment, a plaintiff may seek throughout each of the fifty states and territories of the United States any asset to which the government of the Republic of Cuba has an interest- and then once identified, ask a relevant court to enforce the judgement.  

The Biden Administration can seek to have FSIA lawsuits against the government of the Republic of Cuba dismissed by courts.  One argument is such lawsuits are an interference and hindrance to the conduct of foreign policy by the executive branch. 

Complicating legal and political matters further are the reports that United States nationals employed by the United States Government injured during their posting to the People’s Republic of China and to the Russian Federation have reported injuries similar to those reported in the Republic of Cuba.  Neither the People’s Republic of China nor Russian Federation are on the State Sponsors of Terrorism List. 

A Formidable Political Obstacle From New Jersey 

There are impediments for a removal of the Republic of Cuba from the State Sponsors of Terrorism List.  As previous occupants of The White House have done, the Trump Administration reinterpreted the United States statutory definition of “terrorism” which can add time for evaluation and complicates the evaluation process.   

The chairman of the United States Senate Committee on Foreign Relations, The Honorable Robert Menendez (D- New Jersey) is of Cuban descent and all issues relating to the Republic of Cuba are personal- particularly the connectivity between a convicted murderer of a New Jersey State Police officer who escaped in 1979 from a correctional facility in New Jersey and resides in the Republic of Cuba.   

In returning the Republic of Cuba to the State Sponsors of Terrorism List, the Trump Administration, like previous administrations, referenced Mrs. JoAnne Chesimard who remains since 2 May 2013 as the first woman to be on the FBI Most Wanted Terrorists List.  There is a US$2 million reward.  The Honorable Robert Mueller was Director of the Federal Bureau of Investigation (FBI) from 4 September 2001 to 4 September 2013. The Honorable Christopher Christie was Governor of the State of New Jersey from 19 January 2010 to 16 January 2018. 

Connectivity With Kerry, Blinken And Sullivan 

Senator Menendez was previously chairman of the United States Senate Committee on Foreign Relations from 1 February 2013 to 3 January 2015 during the Obama Administration (2009-2017) when Mrs. Chesimard was added to the FBI Most Wanted Terrorists List.  The United States Secretary of State during the period 1 February 2013 to 20 January 2017 was The Honorable John Kerry (D- Massachusetts) who served as chairman of the United States Senate Committee on Foreign Relations from 6 January 2009 to 1 February 2013.  The Honorable Antony Blinken, United States Secretary of State, was Assistant to the President and Deputy National Security Advisor from 20 January 2013 to 9 January 2015 and Assistant to the President and National Security Advisor to the Vice President from 20 January 2009 to 20 January 2013.  The Honorable Jake Sullivan, Assistant to the President for National Security Affairs, served as Assistant to the President and National Security Advisor to the Vice President of the United States from 26 February 2013 to 1 August 2014.  Mr. Sullivan was Director of Policy Planning at the United States Department of State from 4 February 2011 to 15 February 2013. 

Terrorism Judgements Against The Republic Of Cuba 

“Compensatory damages awarded to plaintiffs are designed to give justice to them after being wronged.  There are two types of compensatory damages- general and actual.  Actual damages are intended to provide funds to only replace what was lost.  General compensatory damages awarded are more complex, as these compensatory damages do not represent a monetary expenditure.  Punitive damages are designed to prevent others from being hurt by the same or similar actions.”

Cuba On The Of State Sponsors Of Terrorism List From Congressional Research Service (CRS)  

The “state sponsors of terrorism list” is mandated under Section 6(j) of the Export Administration Act of 1979, as amended (P.L. 96-72; 50 U.S.C. app. 2405(j)), under which the Secretary of State makes a determination when a country “has repeatedly provided support for acts of international terrorism.” 

Both Section 620A of the Foreign Assistance Act and Section 40 of the Arms Export Control Act have provisions similar to Section 6(j) of the Export Administration Act in which the Secretary of State may publish a determination that a country is supporting international terrorism. However, the only published determinations by the Secretary of State have been those under Section6(j) and constitute what is known as the “state sponsors of terrorism list.” 

In addition to the terrorism list sanctions imposed by the Export Administration Act, Section 40A of the Arms Export Control Act (P.L. 90-629; 22 U.S.C. 2781) prohibits the sale or export of defense articles and defense services if the President determines and certifies to Congress, by May 15 of each year, that the country “is not cooperating fully with United States antiterrorism efforts.” This list has been issued annually since 1997, and currently includes Cuba. 

Cuba was first added to the State Department’s list of states sponsoring international terrorism in 1982 [1 March 1982], pursuant to Section 6(j) of the Export Administration Act of 1979 (P.L. 96-72). At the time, numerous U.S. government reports and statements under the Reagan Administration alleged Cuba’s ties to international terrorism and its support for terrorist groups in Latin America. Cuba had a history of supporting revolutionary movements and governments in Latin America and Africa, but in 1992 Fidel Castro stressed that his country’s support for insurgents abroad was a thing of the past. Cuba’s policy change was in large part a result of Cuba’s diminishing resources following the breakup of the Soviet Union and the loss of billions of dollars in annual subsidies to Cuba. 

While the Administration provided no explanation in the Federal Register notice as to why Cuba was added to the terrorism list, various U.S. government reports and statements under the Reagan Administration in 1981 and 1982 alleged Cuba’s ties to international terrorism. In addition, a 1998 State Department chronology on U.S.-Cuban relations and a 2003 State Department document provide further explanation of why Cuba originally was designated a state sponsor of terrorism.  The Central Intelligence Agency’s Patterns of International Terrorism 1980, published in June 1981, stated: “Havana openly advocates armed revolution as the only means for leftist forces to gain power in Latin America, and the Cubans have played an important role in facilitating the movement of men and weapons into the region. Havana provides direct support in the form of training, arms, safe havens, and advice to a wide variety of guerrilla groups. Many of these groups engage in terrorist operations.”  

In January 1982, President Reagan stated in his State of the Union address: “Toward those who would export terrorism and subversion in the Caribbean and elsewhere, especially Cuba and Libya, we will act with firmness.” In February 1982, the Department of State published a research paper on “Cuba’s Renewed Support for Violence in Latin America,” originally presented in December 1981 to the Subcommittee on Western Hemisphere Affairs of the Senate Foreign Relations Committee, which detailed Cuba’s support for armed insurgencies and terrorist activities in Latin America and the Caribbean.7 The State Department asserted in the paper that Cuba has “encouraged terrorism in the hope of provoking indiscriminate violence and repression, in order to weaken government legitimacy and attract new converts to armed struggle.”  

The paper maintained that Cuba was most active in Central America, especially Nicaragua, where it wanted to exploit and control the revolution, and El Salvador and Guatemala, where it wanted to overthrow the governments.8 Cuba also was reported “to provide advice, safe haven, communications, training, and some financial support to several violent South American organizations.” This included training Colombian M-19 guerrillas, with the objective of establishing a “people’s army.” The State Department’s Patterns of International Terrorism: 1982stated that “both Cuba and the Soviet Union continue to provide financial and logistical support and training to leftist forces in the area [Central America] that conduct terrorist activity.” The report further stated: “In its efforts to promote armed revolution by leftist forces in Latin America, Cuba supports organizations and groups that use terrorism to undermine existing regimes. In cooperation with the Soviets, the Cubans have facilitated the movement of people and weapons into Central and South America and have directly provided funding, training, arms, safe haven, and advice toa wide variety of guerrilla groups, and individual terrorists.”  

A 1998 State Department chronology of U.S.-Cuban relations from 1958 to 1998 notes that the United States added Cuba to the terrorist list in 1982 because of its support for the M-19 guerrilla group in Colombia. In January 1982, State Department officials asserted that Cuba was involved in providing arms to the M-19 in exchange for facilitating U.S.-bound drug smuggling. M-19 was responsible for hijacking a plane from Colombia in January 1982; the incident ended when the hijackers were given safe passage to Cuba. A 2003 State Department document broadened the explanation of why Cuba was designated a state sponsor of terrorism in 1982. Reflecting the rationale set forth in the documents from 1981 and1982 described above, the State Department maintains that Cuba was added to the list because of its support for terrorist groups in Latin America. It contends that Cuba was providing support for terrorist organizations at the time, including the Puerto Rican nationalist group known as the Armed Forces of National Liberation (FALN), the Farabundo Marti National Liberation Front (FMLN) in El Salvador, and the Sandinista National Liberation Front (FSLN) in Nicaragua. It also asserts that “Cuba helped transship Soviet arms to Nicaragua and El Salvador for use by terrorist organizations, trained anti-American insurgents elsewhere in Latin America, and supported insurgencies or war efforts in Angola and Ethiopia.” 

Certified Claims Background 

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) and have not been resolved for nearing 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$8.7 billion.  

The first asset (along with 382 enterprises the same day) to be expropriated by the Republic of Cuba was an oil refinery on 6 August 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).  

From the certified claim filed by Texaco: “The Cuban corporation was intervened on June 29, 1960, pursuant to Resolution 188 of June 28, 1960, under Law 635 of 1959.  Resolution 188 was promulgated by the Government of Cuba when the Cuban corporation assertedly refused to refine certain crude oil as assertedly provided under a 1938 law pertaining to combustible materials.  Subsequently, this Cuban firm was listed as nationalized in Resolution 19 of August 6, 1960, pursuant to Cuban Law 851.  The Commission finds, however, that the Cuban corporation was effectively intervened within the meaning of Title V of the Act by the Government of Cuba on June 29, 1960.” 

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.  The third-largest certified claim valued at US$97,373,414.72 is controlled by New York, New York-based North American Sugar Industries, Inc.  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. 

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.   

The ITT Corporation Agreement 

In July 1997, then-New York City, New York-based ITT Corporation and then-Amsterdam, the Netherlands-based STET International Netherlands N.V. signed an agreement whereby STET International Netherlands N.V. would pay approximately US$25 million to ITT Corporation for a ten-year right (after which the agreement could be renewed and was renewed) to use assets (telephone facilities and telephone equipment) within the Republic of Cuba upon which ITT Corporation has a certified claim valued at approximately US$130.8 million.  ETECSA, which is now wholly-owned by the government of the Republic of Cuba, was a joint venture controlled by the Ministry of Information and Communications of the Republic of Cuba within which Amsterdam, the Netherlands-based Telecom Italia International N.V. (formerly Stet International Netherlands N.V.), a subsidiary of Rome, Italy-based Telecom Italia S.p.A. was a shareholder.  Telecom Italia S.p.A., was at one time a subsidiary of Ivrea, Italy-based Olivetti S.p.A.  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 Marriott International.  

Libertad Act 

The Trump Administration has made operational Title III and further implemented Title IV 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.   

Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims.  One Canada-based company and one Spain-based company are currently known to be subject to this provision based upon a certified claim and non-certified claim. 

Suspension History 

Title III had been suspended every six months since the Libertad Act was enacted in 1996- by President William J. Clinton, President George W. Bush, President Barack H. Obama, and President Donald J. Trump. 

On 16 January 2019, The Honorable Mike Pompeo, United States Secretary of State, reported a suspension for forty-five (45) days. 

On 4 March 2019, Secretary Pompeo reported a suspension for thirty (30) days. 

On 3 April 2019, Secretary Pompeo reported a further suspension for fourteen (14) days through 1 May 2019. 

On 17 April 2019, the Trump Administration reported that it would no longer suspend Title III. 

On 2 May 2019 certified claimants and non-certified claimants were permitted to file lawsuits in United States courts.

LINK TO COMPLETE ANALYSIS IN PDF FORMAT

FROM FATF/GAFILAT: Cuba's Progress In Strengthening Measures To Tackle Money Laundering & Terrorist Financing

Cuba's progress in strengthening measures to tackle money laundering and terrorist financing 

AML: Anti-Money Laundering

CFT: Countering The Financing Of Terrorism

MER: Mutual Evaluation Report 

From January 2021: “Cuba continues making significant progress in addressing the Technical Compliance deficiencies identified in its MER and has been re-rated for R.31 (Partially Compliant to Compliant), R.28 (Partially Compliant to Compliant) and R. 35 (Partially Compliant to Largely Compliant). It also maintained its rating of Partially Compliant regarding R.8, and of Compliant regarding R.2, R.5, R.18 and R.21. Finally, it was re-rated in R.15 (from Compliant to Partially Compliant).” 

LINK To Publications 

GAFILAT Fourth Regular Follow-Up Report And Re-Rating Of Cuba (2021) 

GAFILAT Technical Analysis Of FATF Recommendations- Re-Rating Of Cuba (2017) 

GAFILAT Mutual Evaluation Report Of The Republic Of Cuba (2015) 

FATF Methodology For Assessing Technical Compliance With The FATF Recommendations And The Effectiveness Of AML/CFT Systems (2013) 

FATF-GAFI Cuba Profile

“Paris, France-based Financial Action Task Force (FATF) is the global money laundering and terrorist financing watchdog. The inter-governmental body sets international standards that aim to prevent these illegal activities and the harm they cause to society. As a policy-making body, the FATF works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas. 

With more than 200 countries and jurisdictions committed to implementing them.  The FATF has developed the FATF Recommendations, or FATF Standards, which ensure a co-ordinated global response to prevent organised crime, corruption and terrorism. They help authorities go after the money of criminals dealing in illegal drugs, human trafficking and other crimes.  The FATF also works to stop funding for weapons of mass destruction. 

The FATF reviews money laundering and terrorist financing techniques and continuously strengthens its standards to address new risks, such as the regulation of virtual assets, which have spread as cryptocurrencies gain popularity.  The FATF monitors countries to ensure they implement the FATF Standards fully and effectively, and holds countries to account that do not comply.” 

“The purpose of the Financial Action Task Force of Latin America, GAFILAT, (formerly known as Financial Action Task Force of South America (GAFISUD)) is to work toward developing and implementing a comprehensive global strategy to combat money laundering and terrorist financing as set out in the FATF Recommendations.  The effort includes encouraging the creation of the offence of money laundering in relation to serious crimes, the development of legal systems to effectively investigate and prosecute these offences, the establishment of systems for reporting suspicious transactions, the promotion of mutual legal assistance.  GAFILAT also fosters the training of persons involved in anti-money laundering efforts.  GAFILAT enables regional factors to be taken into account in the implementation of anti-money laundering measures.‌ 

The origins of GAFILAT go back to ongoing efforts to integrate anti-money laundering efforts in South America and was encouraged by the creation of other anti money-laundering regional groups that were established following the FATF model.  It was created as GAFISUD on 8 December 2000 in Cartagena, Colombia by means of a memorandum of understanding by representatives of the governments of nine South American countries.  The Organization of American States (OAS) is also a member in an advisory capacity through the Inter-American Commission against Drug Abuse (CICAD).  Following the events of 11 September 2001, GAFISUD expanded its scope to include the countering of terrorist financing. The GAFISUD Plenary of 7-11 July 2014 approved the change of name from GAFISUD to GAFILAT to reflect the expansion of its membership to include all Latin American countries.  

GAFILAT is committed to carrying out mutual evaluations and co-ordinating anti-money laundering training and educational efforts in the region.  Its work mandate is set out in a memorandum of understanding containing specific terms of reference for the group.  GAFILAT is supported by a Secretariat, which serves as the focal point for its activities.  GAFILAT became and Associate Member of the FATF in 2006.”

EC Responds To European Parliament Inquiry About EU Ambassador To Cuba Letter To President Biden- Navarro "Committed Two Major... Failures..."

H.E. Josep Borrell Fontelles
High Representative
Vice President of the European Commission
Brussels, Belgium

Excerpt:

"Ambassador Navarro has acknowledged that it is not within the scope of his functions as a diplomatic representative of the European Union to subscribe to this type of initiative, even less so when they are addressed to the leader of a third country."

LINK To Letter In PDF Format

U.S. Department Of State Appoints Former Ambassador With Focus Upon "Havana Syndrome"

United States Department of State
Washington DC
12 March 2021

Ambassador Pamela Spratlen Designated as Senior Advisor to Department Health Incident Response Task Force

Office of the Spokesperson

The Department has designated Ambassador Pamela Spratlen to serve as the Senior Advisor to the Health Incident Response Task Force (HIRTF), reporting directly to the Department’s senior leadership. Since its creation in 2018, the HIRTF has served as the coordinating body for the Department and interagency’s response to unexplained health incidents for personnel and dependents under Chief of Mission security responsibility, including identification and treatment of affected personnel and family members; investigation and risk mitigation; messaging; and diplomatic outreach.

A career member of the Foreign Service for nearly 30 years, Ambassador Spratlen was formerly Senior Advisor of the Office of Inspector General in the U.S. State Department, Inspections Division. She was the U.S. Ambassador to Uzbekistan from 2015-2018 and Ambassador to the Kyrgyz Republic (Kyrgyzstan) from 2011-2014. She has also served as the Deputy Chief of Mission at the U.S. Embassy in Kazakhstan (2009-2011).

In addition to numerous Washington assignments and a tour as Diplomat in Residence at the East-West Center in Honolulu, Ambassador Spratlen also served in Russia (Moscow and Vladivostok), France (U.S. Mission to the OECD) and Latin America (Guatemala and the U.S. Mission to the Organization of American States).

As Secretary Blinken said, “The selection of Ambassador Spratlen will help us make strides to address this issue wherever it affects Department personnel and their families. She will streamline our coordination efforts with the interagency community, and reaffirm our commitment to make certain that those affected receive the care and treatment they need.”

United States Department of State
Washington DC
12 March 2021

Ned Price, Department Spokesperson

QUESTION: (Inaudible) health advisor. In the written announcement, there was nothing said about Cuba or any particular country where these issues may arise. Is that for a reason? Is it broader than that? And then my second question has to do with – it’s one that I brought up before with the Houthis, and that is that this situation seems to be getting worse rather than better – the humanitarian situation – since you guys removed them from the FTO list and since the three leaders were removed from the terrorism part of the SDGT list. And so I’m just wondering, I mean, is there any thought that you guys may have made a mistake in doing that? Thank you.

MR PRICE: Thanks, Matt. To your first question, as we mentioned, we do have no higher priority than the safety and security of U.S. personnel, their families, and other U.S. citizens. Of course, these health incidents have been a priority for Secretary Blinken even before he was officially Secretary Blinken. He requested a comprehensive briefing on these incidents during the transition when he was secretary-designate. On his first day, full day here at the department, he received an update. He has since received comprehensive briefings.

He also wanted to ensure that the task force that has been established and working on these incidents since May of 2018 had connectivity directly to him, and directly to his senior leadership team. And so that is why we have decided, and he has decided to name Ambassador Spratlen as the senior advisor to the task force.

We didn’t specifically mention countries in that announcement because as you know, Matt, there have been now several countries where these incidents have been reported. We are seeking a full accounting of all of those who may have been affected by these incidents. That will be a large part of Ambassador Spratlen’s role, is to ensure that we know the full extent of these incidents.

There is also an individual on the task force who is responsible solely for engaging with those who may have been victims of these incidents. So we will continue to pay close attention to this. Secretary Blinken will continue to pay close attention to this, because he has no higher priority than the health and the safety and security than the department and dependents of department personnel.

U.S. Department Of State Spokesperson Answers Question About Cuba Policy; Reiterates Previous Positions

United States Department of State
Washington DC
11 March 2021

Mr. Ned Price, Department Spokesperson:

QUESTION: Hey, Ned. On Cuba, the White House says a policy shift with Cuba is not a top priority for President Biden. Does that mean that the administration finds value in the current policy, or is it quite literally just not a top priority and something that you imagine you’ll get to later?

MR PRICE: It is a policy that we are reviewing. Secretary Blinken spoke to this yesterday. He spoke to the core principles that animate that review.

First, support for democracy and human rights will be at the core of our efforts, because we believe it is the means to empower the Cuban people to determine their own future; and second, as we’ve said before, we also know that Americans, especially Cuban Americans, are in most cases the best ambassadors for freedom and prosperity in Cuba. We are committed to both of these principles. Our review is being animated by both of those principles. We have also committed – and you heard this from Secretary Blinken up on the Hill yesterday – to consult closely with members of Congress as we undertake this review. So it is not that – it is not that this is in any way on the back burner. It is something we’re looking at very closely, and as that review progresses, we’ll consult with members of Congress. And when we have something to share, we’ll let you know.