Fanjul Family Responds To Libertad Act Lawsuit-Plaintiff "conduct is malicious and aimed only at tarnishing the reputation of ASR Group and the Fanjul family."

Irony? The Plaintiff has a shipping document. The Defendant has a shipping document which it maintains contradicts the Plaintiff's shipping document. The government of the Republic of Cuba could provide shipping documents to the Plaintiff and Defendant. The irony- could the government of the Republic of Cuba provide to evidence to exonerate a defendant in a Libertad Act Title III lawsuit- where the defendant is a company owned by the Cuban descendants of those from whom the government of the Republic of Cuba expropriated assets without compensation.

On 2 May 2021, Summit, New Jersey-based Francisco Sugar Company (OTCPK: FRAZ), the 9th largest Certified Claimant (US$53,389,438.37), filed a Libertad Act Title III lawsuit against West Palm Beach, Florida-based ASR Group International, Inc. (2019 revenues approximately US$500 million) relating to a shipment of sugar from the Republic of Cuba to the United Kingdom.  ASR Group International is a part of the commercial holdings of the Fanjul brothers (estimated net worth US$8.2 billion)- Alfonso "Alfy" Fanjul Jr., José "Pepe" Fanjul, Alexander Fanjul, and Andres Fanjul.

The Trump Administration (2021-2021) on 2 May 2019 made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).  Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

Statement in English from Alfonso Fanjul and Jose “Pepe” Fanjul: 

A lawsuit making outrageous claims that ASR Group International, Inc., a company affiliated with the Fanjul family, purchased sugar from Cuba is absolutely false.  We are shocked that the plaintiffs and their attorneys filed these false claims given that publicly available records clearly show the sugar shipment at issue in the claim was purchased by and delivered to another company not affiliated in any way with ASR or the Fanjul family.  Had the lawyers conducted the slightest diligence, as required by ethical and federal court rules, they would have known their allegation that ASR Group purchased sugar from Cuba was false. The Fanjul family, like many Cuban Americans, lost everything as a result of the Castro regime. To falsely accuse the Fanjuls or any of their affiliated companies of violating the embargo with Cuba is offensive, even more so coming from fellow Cubans. 

We provided the lawyers with public records demonstrating that ASR Group did not make the purchase of Cuban sugar they cite a week ago, and they have not dismissed the complaint leading us to believe that their conduct is malicious and aimed only at tarnishing the reputation of ASR Group and the Fanjul family. 

LINK To Peru Customs Document

Statement in Spanish from Alfonso Fanjul and Jose “Pepe” Fanjul: 

Una demanda que hace afirmaciones indignantes de que ASR Group International, Inc., una empresa afiliada a la familia Fanjul, compró azúcar de Cuba es absolutamente falsa. Nos sorprende que los demandantes y sus abogados hayan presentado estos reclamos falsos dado que los registros públicos disponibles muestran claramente que el envío de azúcar en cuestión en el reclamo fue comprado y entregado a otra compañía que no está afiliada de ninguna manera con ASR o la familia Fanjul. Si los abogados hubieran realizado la más mínima diligencia, como lo requieren las reglas éticas y de los tribunales federales, habrían sabido que su alegación de que ASR Group compró azúcar de Cuba era falsa. La familia Fanjul, como muchos cubanoamericanos, lo perdió todo como resultado del régimen de Castro. Acusar falsamente a los Fanjul o cualquiera de sus empresas afiliadas de violar el embargo con Cuba es ofensivo, más aun viniendo de compatriotas cubanos.   

Hace una semana proporcionamos registros públicos a los abogados que demuestran que ASR Group no realizó la compra del azúcar cubano que citan, y no han desestimado la denuncia llevándonos a creer que su conducta es maliciosa y tiene como único objetivo empañar la reputación de ASR Group y de la familia Fanjul.

LINK To Peru Customs Document

LINK TO LAWSUIT: Cuban vs. Cuban- 9th Largest Certified Claimant Sues Billionaire Fanjul Family-Controlled Company For Trafficking In Sugar From Cuba To UK. This Lawsuit Could Be A Brawl. (5/11/21)

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Societe Generale And BNP Paribas Argue That Plaintiffs Should Not "be exempted from the cut-off based on a purported policy argument they profess to glean from legislative history."

JUAN B. PUJOL MOREIRA, in his personal capacity, and as Personal Representative and Administrator of the ESTATE OF NIEVES PUJOL, a/k/a NIEVES MOREIRA MARTINEZ, MARIA JULIA PUJOL MOREIRA, INES MARIA PUJOL FAGET, as Personal Representative and Executor of the ESTATE OF ARCADIO JOAQUIN PUJOL IZQUIERDO, SARA L. PUJOL, as Personal Representative and Administrator of the ESTATE OF LAUREANO PUJOL ROJAS, LUIS R. PUJOL ROJAS, ANA H. FRAGA, LORENZO PEREZ PUJOL, FRANCISCO PUJOL MENESES, PILAR M. PUJOL MENESES, and RAUL PUJOL MENESES, Plaintiffs, v. SOCIETE GENERALE, S.A. and BNP PARIBAS, S.A. [1:20-cv-09380; Southern District Of New York]

Kozyak Tropin & Throckmorton, LLP (plaintiff)
MoloLamken LLC (plaintiff)
Mayer Brown LLP (defendant)
Cleary Gottlieb Steen & Hamilton LLP (defendant)

Link To 27-Page Joint Reply Memorandum Of Law In Support Of Defendants’ Motion To Dismiss The Amended Complaint Pursuant To Federal Rules Of Civil Procedure 12(B)(1), 12(B)(2) And 12(B)(6) (5/10/21)

LINK To One Page Letter From Plaintiffs Attorney (5/6/21)

Link To 55-Page Memorandum Of Law In Opposition To Defendants’ Motion To Dismiss The Amended Complaint (4/19/21)

Excerpts From Defendant’s Motion To Dismiss

Unable to allege actual injury, Plaintiffs argue that they suffered a theoretical harm from “the wrongful exploitation of th[e] confiscated property” (Opp. 9), pointing to “common-law principles” under which a person who interferes “with another person’s property interests” is liable in restitution to the “rightful owners.” Id. at 9-10. But Plaintiffs’ argument fails because, inter alia, reliance on such principles requires an ownership interest in the confiscated assets— and Plaintiffs had no such interest in Banco Pujol at the time of the alleged trafficking.

As shown in the Moving Brief (at 12-18), the statutory language and policy make clear that Section 6084 is a statute of repose—and Plaintiffs brought their claims outside the two-year repose period. Plaintiffs’ response distorts the Act’s text and disregards the statutory purpose.

Further, to the extent that the Estate Plaintiffs maintain that they have now come to own the claims, they cannot meet the Act’s March 12, 1996 cut-off date, because they necessarily acquired the claims from the heirs after the decedents died and thus long after March 12, 1996. Plaintiffs argue that the Estate Plaintiffs should be exempted from the cut-off based on a purported policy argument they profess to glean from legislative history. See Opp. 39-40. But as Glen v. Trip Advisor explained when rejecting that argument, “legislative history can never defeat unambiguous statutory text.” 2021 WL 1200577, at *9 (quoting Bostock v. Clayton Cty., 140 S. Ct. 1731, 1750 (2020)). In any event, Plaintiffs omit the crucial words that preceded the legislative history they purport to quote—“in part”—and thus ignore that Congress had multiple motivations for the cut off.

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Cuban vs. Cuban: 9th Largest Certified Claimant Sues Billionaire Fanjul Family-Controlled Company For Trafficking In Sugar From Cuba To UK. This Lawsuit Could Be A Brawl.

On 2 May 2021, Summit, New Jersey-based Francisco Sugar Company (OTCPK: FRAZ), the 9th largest Certified Claimant (US$53,389,438.37), filed a Libertad Act Title III lawsuit against West Palm Beach, Florida-based ASR Group International, Inc. (2019 revenues approximately US$500 million) relating to a shipment of sugar from the Republic of Cuba to the United Kingdom.  ASR Group International is a part of the commercial holdings of the Fanjul brothers (estimated net worth US$8.2 billion)- Alfonso "Alfy" Fanjul Jr., José "Pepe" Fanjul, Alexander Fanjul, and Andres Fanjul.

The Trump Administration (2021-2021) on 2 May 2019 made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).  Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

Seeking Alpha (December 2016): “Francisco Industries (OTCPK:FRAZ).  You thought there is no way to invest in Cuba? Think again. FRAZ allows you to buy a part of a Cuban land claim by what appears to be a business that used to run a sugar mill on the island until the Cuban revolution, during which many US business had their assets seized by the new government. Some of them launched a legal claim to get compensation, and FRAZ did the same. You can see the biggest verified claims in this Washington Post article, and the company is one of them.” 

11 May 2021 Statement from Alfonso Fanjul and Jose “Pepe” Fanjul

”A lawsuit making outrageous claims that ASR Group International, Inc., a company affiliated with the Fanjul family, purchased sugar from Cuba is absolutely false. We are shocked that the plaintiffs and their attorneys filed these false claims given that publicly available records clearly show the sugar shipment at issue in the claim was purchased by and delivered to another company not affiliated in any way with ASR or the Fanjul family. Had the lawyers conducted the slightest diligence, as required by ethical and federal court rules, they would have known their allegation that ASR Group purchased sugar from Cuba was false. The Fanjul family, like many Cuban Americans, lost everything as a result of the Castro regime. To falsely accuse the Fanjuls or any of their affiliated companies of violating the embargo with Cuba is offensive, even more so coming from fellow Cubans. We provided the lawyers with public records demonstrating that ASR Group did not make the purchase of Cuban sugar they cite a week ago, and they have not dismissed the complaint leading us to believe that their conduct is malicious and aimed only at tarnishing the reputation of ASR Group and the Fanjul family. ASR also had actual knowledge of Cuba’s confiscation of Francisco. ASR executive José F. Fanjul, Jr.’s father has owned 3,989 shares of Francisco for many years. José F. Fanjul, Jr.’s grandfather, Alfonso Fanjul, worked for Francisco prior to confiscation and 6 Through its wholly owned subsidiary Compañia Maritima Guayabal, S.A., Francisco was awarded the Port of Guayabal concession pursuant to Fulgencio Batista’s Presidential Decree No. 3,749, dated November 10, 1955. That Decree was published in La Gaceta de La Habana on November 15, 1955.”   LINK To Peru Customs Document

ASR Group International brands include Domino Sugar, C&H, Repath, Tate & Lyle, Sidul, SRB, Belize, Sugar, Ingenio San Nicolas, and Tellus.  “Florida Crystals Corporation and Sugar Cane Growers Cooperative of Florida, two family-owned sugarcane farmers and millers, came together more than 20 years ago to form a strategic partnership to begin large-scale refining of their raw sugar. The collaboration laid the groundwork for what would quickly become the world's most successful and innovative cane sugar company: ASR Group.  Florida Crystals Corporation was founded by the Fanjul family in South Florida, in the United States in 1960 as a sugarcane farming and milling company. Its first harvest of 4,000 acres in Palm Beach County yielded 10,000 tons of raw sugar. The family has a long tradition in sugarcane, dating back to 1850 in Cuba, and they understood the key to success meant expanding their land holdings in order to secure a supply of sugarcane for their mills. Today, the company farms more than 190,000 acres in Florida where it owns two sugar mills, a sugar refinery, a packaging and distribution center and a rice mill.”  The company has substantial non-certified non-filed claims against the Republic of Cuba.  

North American Congress on Latin America (February 2014): “The Washington Post made a splash Sunday with a long feature on Palm Beach, FL-based sugar magnate and Cuban exile Alfonso “Alfy” Fanjul.  The headline: “Sugar tycoon...now open to investing in Cuba under the right circumstances.”  The article brings to public light what has been an open secret for some time now: over the last few years, Fanjul- a once stalwart funder of anti-Castro causes and organizations like the Cuban American National Foundation and the U.S.-Cuba Democracy PAC (the pro-embargo lobby)- has travelled to Cuba at least twice [April 2012 and February 2013] as part of delegations organized by the Brookings Institution.  On the island, he has met with Cuba’s Foreign Minister and apparently toured under-producing state-owned sugar mills with an eye to future investments.”

Francisco Industries, Inc. v. ASR Group International, Inc. [2:21-cv-14188]
Kozyak Tropin & Throckmorton PA (plaintiff)

Complaint Not Available (filed 5/2/21)

Francisco Industries, Inc. v. ASR Group International, Inc. [2:21-cv-14189]
Kozyak Tropin & Throckmorton PA (plaintiff)

Link To 92-Page Complaint (5/2/21)

Francisco Industries, Inc. v. ASR Group International, Inc. [1:21-cv-21679]
Kozyak Tropin & Throckmorton PA (plaintiff)

Link To 92-Page Complaint (5/2/21)

Irony? The Plaintiff has a shipping document. The Defendant has a shipping document which it maintains contradicts the Plaintiff's shipping document. The government of the Republic of Cuba could provide shipping documents to the Plaintiff and Defendant. The irony- could the government of the Republic of Cuba provide to evidence to exonerate a defendant in a Libertad Act Title III lawsuit- where the defendant is a company owned by the Cuban descendants of those from whom the government of the Republic of Cuba expropriated assets without compensation.

Excerpts:

ASR violated Helms-Burton by purchasing Francisco-grown cane sugar and exporting that sugar from the Port of Guayabal to ASR’s refinery in London. 

As just one example, on or about July 27, 2016, ASR knowingly and intentionally purchased a shipment of cane sugar that all presently known facts suggest derived from Francisco’s confiscated assets north of Guayabal. Francisco’s arable land, as well as sugar produced by that land, constitutes confiscated property as defined by the Helms-Burton Act. 

AZCUBA, an alter ego of the Cuban government, maintains a monopoly on all aspects of the sugar business in Cuba. AZCUBA is as trafficker according to Helms-Burton because it “possesses”, “manages”, “uses” or “holds an interest in” Francisco’s sugar growing land, and it engaged in “a commercial activity using or otherwise benefitting from confiscated property” when it sold Francisco-grown sugar.  The Francisco-grown sugar was shipped from the Port of Guayabal on July 27, 2016, and delivered to ASR’s London refinery on August 16, 2016.

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Discovery To Continue For Norwegian Cruise Line In Libertad Act Lawsuit: Judge- "sufficiency of the government’s actions, not how Defendant may have interpreted them."

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

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

LINK To 24-Page Order On Plaintiff’s Motion To Compel (5/10/21)

Excerpts:

This cause is before the Court on Havana Docks Corporation’s (“Plaintiff”) Motion to Compel Production of Evidence Withheld Under the Attorney-Client Privilege and Work Product Doctrine. ECF No. 128. Defendant Norwegian Cruise Line Holdings, LTD., (“NCL” or “Defendant”) filed a Response, ECF No. 139, and Plaintiff further filed a Reply, ECF No. 144. The Court determined an in camera review of certain documents was necessary related to the second category of documents challenged, and as per the Court’s Interim Order, ECF No. 157, Defendant submitted a sample of 20 documents, as discussed in further detail below. Upon consideration of the Motion, Response, Reply, the in camera documents, oral argument and being otherwise apprised in the matter, Plaintiff’s Motion to Compel is GRANTED in part, and DENIED in part.

Defendant contends its travel to Havana was lawful, and its use of Plaintiff’s dock was “necessary” “given that the Cuban Government mandated use of the Subject Property.” ECF No. 98 at 2. Among other challenges, Plaintiff contests the availability of the lawful travel defense to NCL, which indisputably also traveled on the general license to other ports in Cuba. Plaintiff further challenges Defendant’s contention that use of the port in Havana was “necessary” because Defendant had alternative means of disembarking passengers, for example, anchoring offshore. According to Plaintiff, the contested documents at issue in this Motion relate to and would reveal Defendant’s knowledge and state of mind regarding its use of Plaintiff’s Subject Property.

Defendant avers that the Act’s statement that the United States government “may suspend the right to bring an action under this subchapter for additional periods of not more than 6 months each,” coupled with the fact that Title III was indeed suspended continuously for more than 20 years, would be sufficient to permit an objective person of ordinary intelligence to conclude that, during the time the Act was suspended, no liability would attach.

Without unnecessarily delving into the merits of Defendant’s due process claim, I find that the inquiry here is an objective one; the relevant question considers the sufficiency of the government’s actions, not how Defendant may have interpreted them.

Plaintiff avers that Defendant put its relationship with its in-house legal counsel “at the heart of this case” primarily because Defendant’s General Counsel, Dan Farkas and Lincoln Vidal, “coordinated the berthing requests for [Defendant] ships at the Subject Property, negotiated contracts with the Cuban Government relating to its use of the port, prepared applications for licenses from United States government to operate in Cuba, and participated in [Defendant’s] OFAC compliance program.”

In accordance with my findings above, I find that Defendant, simply by virtue of the fact that its counsel performs dual business and legal functions, did not waive privilege over records reflecting its knowledge and intent to comply with the Act and OFAC regulations.

Upon review of the sample documents provided by Defendant, I find that it has not satisfied its burden to show that COMAR was providing legal services. Rather, these documents reflect a relationship in which COMAR was a liaison between Defendant and the other relevant authorities, essentially shuttling documents back and forth and reporting information to Defendant conveyed from the other contracting parties.

Because Defendant has not shown that the CLIA members share a substantially similar legal interest, Defendant has not carried its burden here and is thus compelled to produce responsive communications with the cruise industry trade association group Cruise Lines International Association (“CLIA”), as well as responsive communications with CLIA members.

An award of attorney’s fees is mandatory under Rule 37(a)(5) to the party who prevails on a motion to compel, unless the court finds the objections to the discovery substantially justified or other circumstances that would render such an award unjust. Because the undersigned finds that Defendant was not justified in withholding the COMAR documents, Plaintiff is entitled to an award of its expenses, unless Defendant intends to show that its position was substantially justified or an award would be otherwise unjust.

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U.S. District Courts Increase Libertad Act Title III Lawsuit Filing Fee To US$6,800.00

United States District Courts
Washington DC

District Court Miscellaneous Fee Schedule

The fees included in the District Court Miscellaneous Fee Schedule¹ are to be charged for services provided by the district courts. Effective on: December 1, 2020. For filing an action brought under Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, P.L. 104-114, 110 Stat. § 785 (1996), $6,800. (This fee is in addition to the filing fee prescribed in 28 U.S.C. § 1914(a) for instituting any civil action other than a writ of habeas corpus.)

History Of Fees

“The 26-member Judicial Conference is the policy-making body for the federal court system. By statute, the Chief Justice of the United States serves as its presiding officer and its members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.” 

From Judicial Conference Proceedings: 

September 1996: “MISCELLANEOUS FEE - CUBAN LIBERTY AND DEMOCRATIC SOLIDARITY ACT.  The Cuban Liberty and Democratic Solidarity Act of 1996 (Public Law No. 104-1 14) authorizes United States citizens claiming ownership of property confiscated by the Cuban government on or after January 1, 1959, to sue any "person" who traffic in that property.  The Act requires the Judicial Conference to establish a fee for filing these actions "at a level sufficient to recover the costs to the court of actions brought under this section." The Judicial Conference approved a Court Administration and Case Management Committee recommendation that, pursuant to the revenue-neutral mandate imposed by Congress, a miscellaneous fee of US$4,180.00 be established for cases filed under this Act.” 

September 2003: The Committee on Court Administration and Case Management undertook a comprehensive review of the miscellaneous fees set by the Judicial Conference for the courts of appeals, the district courts, the United States Court of Federal Claims, the bankruptcy courts, and the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. §§ 1913, 1914, 1926, 1930, and 1932, respectively, and recommended several changes, including adjustments for inflation, specific fee increases, establishment of new fees, and clarification of certain provisions, as specifically noted below. The Committee’s recommendations were endorsed in relevant part by the Budget and Bankruptcy Committees.  Inflationary increases. In September 1996, the Judicial Conference raised certain miscellaneous fees to account for inflation and rising court costs (JCUS-SEP 96, p. 54). At that time, the Committee on Court Administration and Case Management determined that it would be appropriate to review the miscellaneous fee schedules approximately every five years to determine if any inflationary adjustments were warranted. At this session, the Conference approved a recommendation of the Committee to adopt inflationary increases to most miscellaneous fees. 

September 2011: “On recommendation of the Court Administration and Case Management Committee, the Conference determined to raise many of these fees to account for inflation, as set forth below, effective November 1, 2011. These fees have not been adjusted for inflation since 2003: 13. Cuban Liberation Civil Filing Fee- Current Fee US$5,431.00.  New Fee US$6,355.00.” 

September 2016: “MISCELLANEOUS FEE SCHEDULES Inflationary Fee Increases. The Judicial Conference prescribes miscellaneous fees for the courts of appeals, district courts, United States Court of Federal Claims, bankruptcy courts, and Judicial Panel on Multi district Litigation, pursuant to 28 U.S.C. §§ 1913, 1914, 1926, 1930, and 1932, respectively. On recommendation of the Court Administration and Case Management Committee, the Conference raised many of these fees to account for inflation, as set forth below, effective December 1, 2016. The last time miscellaneous fees were increased for inflation was in September 2011.  Cuban Libertad Act Filing: Current Fee US$6,355.00.  New Fee US$6,548.00.” 

September 2018: “For filing an action brought under Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, P.L. 104-114, 110 Stat. § 785 (1996), $6,548. (This fee is in addition to the filing fee prescribed in 28 U.S.C. § 1914(a) for instituting any civil action other than a writ of habeas corpus.) 

December 2020: The fees included in the District Court Miscellaneous Fee Schedule¹ are to be charged for services provided by the district courts. Effective on: December 1, 2020- For filing an action brought under Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, P.L. 104-114, 110 Stat. § 785 (1996), $6,800. (This fee is in addition to the filing fee prescribed in 28 U.S.C. § 1914(a) for instituting any civil action other than a writ of habeas corpus.)

Related: 28 U.S. Code § 1914 - District court; filing and miscellaneous fees; rules of court (a) The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $350, except that on application for a writ of habeas corpus the filing fee shall be $5.” 

LINK To Libertad Act Title III Lawsuit Filing Statistics

King Ranch Of Texas, 67th Largest Certified Claimant, Sues Nine Cuba Companies, Including One In Panama (Havanatur S.A.)

KING RANCH, INC. v. EMPRESA AGROPECUARIA NUEVITAS et al [EMPRESA AGROPECUARIA NUEVITAS; GRUPO EMPRESARIAL AGRÍCOLA EMPRESA FORESTAL INTEGRAL DE CAMAGUEY; GRUPO EMPRESARIAL AGROFORESTAL; EMPRESA CUBANA EXPORTADORA DE ALIMENTOS Y PRODUCTOS VARIOS; EMPRESA EXTRAHOTELERA PALMARES, S.A.; GRUPO INTERNACIONAL DE TUROPERADORES Y AGENCIAS DE VIAJES HAVANATUR S.A. (HAVANATUR CUBA0; HAVANATUR S.A. (PANAMA); GRUPO EMPRESARIAL VIAJES CUBA] [21-cv-00594 District of Columbia District] 

Steptoe & Johnson (plaintiff) 

LINK To Complaint (3/5/21) 

LINK To Libertad Act Title III Lawsuit Filing Statistics

“Houston, Texas-based King Ranch, Inc., [2019 revenues estimated approximately US$250 million] is a privately-held agricultural production and resource management company established in 1853.  Headquartered in Texas and owner of the historic 825,000 acre King Ranch, its operations include cattle breeding and production, horses, wildlife management and recreation, and the production of a number of agricultural commodities including cotton, milo, sugar cane, almonds and pistachios and various vegetables.  King Ranch operates extensive turfgrass operations and is the majority owner of the largest citrus producer in the United States. The Company operates various retail operations, including the famous King Ranch Saddle Shop, and has branding partnerships with Ford Motor Co., Textron Aviation and most recently with the Fertitta Family for the expansion of the King Ranch Texas Kitchen restaurant concept.” 

“After World War II, the ranch’s agricultural business was extended, in part to expand the national and global presence of the Santa Gertrudis breed. Acquisitions came through the purchase of property in Kentucky, Pennsylvania, Mississippi, and West Texas, and through joint ventures and partnerships in Florida. Management developed ranching operations overseas with land purchases in Argentina, Cuba, Brazil, Australia, Venezuela, Spain, and Morocco. The systematic and ambitious expansion of this period – in agriculture, energy, and real estate, together with expanded retail operations – created the platform for the business segments of King Ranch today.” 

Excerpts From Complaint 

Defendants use and continue to profit from the Confiscated Property by, among other things, operating it as a tourist attraction (called Rancho King) and monetizing its natural resources through the production of charcoal from the marabu that naturally grows on the land. 

Defendant Empresa Forestal Integral de Camaguey (“EFIC”) was created by Resolution No. 9 on December 15, 1976 by the then President of the Instituto Nacional de Desarrollo y Aprovechamiento Forestal, which is currently integrated in the Grupo Empresarial Agroforestal controlled by the Cuban Ministry of Agriculture.  On information and belief, EFIC is currently harvesting marabu, a woody plant that provides a source of charcoal, in an area of over 500,000 acres in the province of Camaguey including the Confiscated Property. The marabu is used to produce marabu charcoal for export. 

Defendant Grupo Empresarial Agroforestal (“GAF”) was created by the Cuban Ministry of Agriculture with the aim of unifying under a single entity all of the productive activities of the mountainous areas and of forestry and beekeeping in Cuba. It was formed by the merger of the assets of the Cuba-Café Group, the For Cuba Group, and the National Apiculture Company, which occurred in July 2000, integrating certain Cuban industries including forestry, coffee, cacao, beekeeping and henequén as well as the production of various crops and livestock. GAF is also involved in the production of marabu charcoal. 

HAVANATUR PANAMA is totally controlled and dominated by the government of Cuba, over and above the normal supervisory control exercised by a parent over a subsidiary. Also, HAVANATUR PANAMA is properly treated as an agent of the government of Cuba with respect to the conduct at issue here. 

46. Prior to 1960, King Ranch maintained a cattle ranch in Cuba, operated through a Cuban enterprise known as Companía Ganadera Becerra, S.A. (the “Ranch”). King Ranch had a 50 percent ownership interest in the Ranch and also owned certain cattle located on land owned by the Ranch. 

47. On November 1, 1960, King Ranch’s property rights in the Ranch and in its cattle were expropriated by the Cuban Government in violation of international law. Specifically, the Cuban Government nationalized the Ranch and all associated assets, including cattle and other livestock. As a result, King Ranch was deprived of its interest therein and was forced to abandon further operations in Cuba. 

The FCSC certified that King Ranch suffered a loss of $3,216,084.97 as a result of the Cuban government’s expropriation of the Confiscated Property. The FCSC certified the claim in this amount and further awarded interest on this amount at the rate of 6 percent per annum from the date of loss to the date of settlement. [CU-1507/5751]

Spain's Melia Hotels International Reports First Quarter For Cuba: Occupancy Rate -82.3% For Its 32 Hotels (19,916 rooms) Under Management Contract

Melia Hotels International (2019 revenues approximately US$2.1 billion)
Palma de Mallorca, Spain

2021 First Quarter results
Management Contracts For Hotels In Republic Of Cuba: 32
Rooms Under Management Contract In Republic Of Cuba: 19,916
Republic of Cuba Occupancy Rate: -82.3%
Republic of Cuba Third Party Fees: -90.4%
Republic of Cuba Hotels: 16.8% of rooms (of 317 global)
Republic of Cuba Hotel Pipeline: 7.3% of rooms (of 51 global)
Hotels Expected In 2022: 1 (401 rooms)
Hotels Expected In 2023: 3 (523 rooms total)

Excerpts:

“In Cuba, expectations of a slow but gradual improvement in tourist arrivals in the first quarter of the year were quickly frustrated. At the end of the year, a new wave of the pandemic began which caused the country to once again impose travel restrictions from the first week of January and significantly reduce the number of flights by all airlines. From the same date, travellers were also required to present a negative PCR test and some of them not travelling with a package tour were required to quarantine. In the first quarter, air travel was basically restricted to a few flights from Russia to the Cayo Coco area and from Germany to the Varadero area, in addition to a few flights to Havana from Spain, France and Panama. On the other hand, the renovations in important hotels in the country continued in the quarter.”

“In Cuba, the situation with flights and visitor arrivals in the second quarter of the year is expected to be similar to the first quarter. The positive news continues to come from Russian market, with the announcement of the restart of seven weekly flights to Varadero from April 18. At the moment there is no confirmation of other flights from other markets in the second quarter, although Canada and Latin America plan to resume operations from July. A recent development with potentially favorable implications for the destination is the progress to Stage 3 in March of two domestically produced vaccines, which could allow the country to undertake a massive vaccination campaign which would cover a very high proportion of its population by June or July.”

LINK TO COMPLETE REPORT

USDA Accepting MAP/FMD Applications For Funding Use In Cuba; Since 2018, Only 8 Applications And 1 Use

USDA Accepting Applications for FY 2022 Export Programs (30 April 2021)

“The U.S. Department of Agriculture’s Foreign Agricultural Service is accepting applications from eligible organizations for fiscal year 2022 funding for five export market development programs. FAS recently published the FY 2022 Notices of Funding Opportunity for the Market Access Program, Foreign Market Development Program, Technical Assistance for Specialty Crops Program, Quality Samples Program and Emerging Markets Program. The application deadline for the five programs is June 25, 2021.” 

“Under the Market Access Program, USDA provides competitive, cost-share assistance to U.S. exporters and agricultural, fish, and forest product trade organizations for international marketing and promotion of U.S. commodities and products. More information about the program and the FY 2021 funding opportunity is available at:  https://www.fas.usda.gov/programs/market-access-program-map.” 

“Under the Foreign Market Development Program, USDA partners with nonprofit agricultural and forest product trade associations to build longer-term international demand for U.S. commodities. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/foreign-market-development-program-fmd.”

“The Technical Assistance for Specialty Crops Program funds projects that address sanitary, phytosanitary, and technical barriers that prohibit or threaten the export of U.S. specialty crops. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/technical-assistance-specialty-crops-tasc.”

“The Quality Samples Program helps agricultural trade organizations provide small samples of their products to potential importers. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/quality-samples-program-qsp.”

“The Emerging Markets Program supports technical assistance activities for the promotion of U.S. agricultural, fish, and forest products in emerging markets. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/emerging-markets-program-emp.”

USDA Updates Reporting On Usage In Cuba Of MAP/FMD Funding Authorized By 2018 Farm Bill (Published 2 February 2021)

In 2018, legislative advocates maintained that inserting a Market Access Program (MAP) and Foreign Market Development (FMD) provision in the Farm Bill was critical to “laying the groundwork” for increasing exports of agricultural commodities and food products to the Republic of Cuba.  Statements from members of Congress included: “… an important first step to regaining our presence in Cuba.”  Yet, there was not one application to the United States Department of Agriculture (USDA) in 2018 or 2019.  

Most observers reasonably concluded that legislative advocates- within the United States Congress and organizations located in Washington DC and located outside of the beltway would have prominently teed-up at least one high-profile applicant to publicize in advance they would use the provision if it became law or at least one high-profile applicant to immediately and publicly request funding when the Farm Bill became law on 21 December 2018.  

The most significant impact of a shockingly low number of MAP/FMD requests in 2018, 2019, 2020, and 2021 is what the lack of interest portends for other legislative efforts in the United States Congress to rescind prohibitions upon the provision of payment terms for agricultural commodity and food product exports from the United States to the Republic of Cuba.  

Use to date of USDA MAP/FMD Republic of Cuba-focused funding provisions in the 2018 Farm Bill has been anemic.  Since 2018, One entity has used MAP funding in the Republic of Cuba.  No entity has used FMD funding in the Republic of Cuba.  The USDA reported no applications were rejected. 

Since 2019, a total of eight applications were received by the USDA to use MAP and/or FMD.  According to the USDA, “Although the table indicated nine expressions of interest over two years, these represent fewer than nine organizations as some of the organizations applied in multiple years.  The earlier table only included those entities that expressed interest in Cuba directly, not anyone that sought to add Cuba to a regional program.”   

According to the USDA, at least one participant in 2021 and 2020 sought to add the Republic of Cuba to a regional program for MAP, but none for FMD.  No entity pursued or was rejected for activities in the Republic of Cuba through a regional program.  In some respects, that some entities applied more than once, but did not ultimately use MAP and/or FMD in the Republic of Cuba is more consequential because it begs the question- why did the entities apply, but not choose to use MAP and/or FMD in the Republic of Cuba? 

One entity received MAP funding (US$60,000.00) in the Republic of Cuba- Denver, Colorado-based Potatoes USA which in November 2020 delivered to the Republic of Cuba 33,118 pounds of potato seeds valued at US$44,760.00.  Sample costs are ineligible for MAP or FMD funding. 

In 2020, one (1) entity applied to use, but did not use FMD funding and four (4) entities applied to use MAP funding while one (1) entity (Potatoes USA) used MAP funding.  From the USDA, “… any unspent funds would normally remain in participants’ agreements, available for the agency to approve for plans a participant submits in a future year.”    

In 2021, no entity applied to use FMD funding and three entities applied to use MAP funding, but no entity has yet used MAP funding.  From the USDA, “Most MAP programs operate on a January to December year, however, some run on a July to June year.  The regulations allow groups to continue already approved activities up to thirty days after the end of the program year.  Thus, the latest a participant could continue an activity funded by MAP 21 would be July 30, 2022, if their MAP 21 program began June 1, 2021.  A participant would have until the end of January 2022, if their MAP program began January 1, 2021.  The MAP regulations allow a participant to file claims up to six months after the end of the program year.”  In 2021, sixty-seven (67) entities received funding for MAP and twenty-one (21) entities received funding for FMD.

USDA Accepting Applications for FY 2021 Export Programs

“The U.S. Department of Agriculture’s Foreign Agricultural Service is accepting applications from eligible organizations for fiscal year 2021 funding for five export market development programs. FAS recently published the FY 2021 Notices of Funding Opportunity for the Market Access Program, Foreign Market Development Program, Technical Assistance for Specialty Crops Program, Quality Samples Program and Emerging Markets Program. The application deadline for the five programs is June 26, 2020.

Under the Market Access Program, USDA provides competitive, cost-share assistance to U.S. exporters and agricultural, fish, and forest product trade organizations for international marketing and promotion of U.S. commodities and products. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/market-access-program-map.

Under the Foreign Market Development Program, USDA partners with nonprofit agricultural and forest product trade associations to build longer-term international demand for U.S. commodities. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/foreign-market-development-program-fmd.”

What Is FMD & MAP?

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

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

“MAP reaches virtually every corner of the globe, helping to build markets for a wide variety U.S. farm and food products. FAS provides cost-share assistance to eligible U.S. organizations for activities such as consumer advertising, public relations, point-of-sale demonstrations, participation in trade fairs and exhibits, market research and technical assistance. When MAP funds are used for generic marketing and promotion, participants must contribute a minimum 10-percent match. For promotion of branded products, a dollar-for-dollar match is required. Each year, FAS announces the MAP application period and criteria in the Federal Register. Applicants apply for MAP through the Unified Export Strategy (UES) process, which allows eligible organizations to request funding from multiple USDA market development programs through a single, strategically coordinated proposal. FAS reviews the proposals and awards funds to applicants that demonstrate the potential for effective performance based on a clear, long-term strategic plan.”

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

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

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

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

Value Of MAP/FMD  

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

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

LINK TO COMPLETE ANALYSIS IN PDF FORMAT

U.S. Ag/Food Exports To Cuba Increase 74.7% In March 2021; Increase 54.3% Year-To-Year

ECONOMIC EYE ON CUBA©
May 2021

March 2021 Food/Ag Exports To Cuba Increase 74.7%- 1
54th Of 215 March 2021 U.S. Food/Ag Export Markets- 2
Year-To-Year Exports Increase 54.3%- 2
Cuba Ranked 53rd Of 2021 U.S. Ag/Food Export Markets- 2
2021 Healthcare Product Exports US$0.00- 2
2021 Humanitarian Donations US$383,750.00- 3
2021 Obama Administration Initiatives Exports Continue- 3
U.S. Port Export Data- 16

MARCH 2021 FOOD/AG EXPORTS TO CUBA INCREASE 74.7%- Exports of food products and agricultural commodities from the United States to the Republic of Cuba in March 2021 were US$28,442,805.00 compared to US$16,278,071.00 in March 2020 and US$41,165,385.00 in March 2019.

March 2021 Exports: Chicken Leg Quarters (Frozen); Chicken Meat (Frozen); Chicken Legs (Frozen); and Woodpulp.

Since December 2001, agricultural commodity and food product exports reported from the United States to the Republic of Cuba is US$6,364,931,538.00.

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

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

LINK TO COMPLETE REPORT

Libertad Act Lawsuit Dismissed Against Tech Resources Of Canada; Plaintiffs May Appeal

HEREDEROS DE ROBERTO GOMEZ CABRERA, LLC v. TECK RESOURCES LIMITED [1:20-cv-21630; Southern Florida District]

Hirzel Dreyfuss & Dempsey, PLLC (plaintiff)
Roig & Villarreal, P.A. (plaintiff)
Law Office of David A. Villarreal, P.A. (plaintiff)
Pillsbury Winthrop Shaw Pittman (defendant)

Link To Order Granting Motion To Dismiss (27 April 2021)

Link To Plaintiff’s Second Unopposed Motion For Extension Of Time To File Motion To Compel Responses To Plaintiff’s First Set Of Requests For Production (22 April 2021)

Excerpts From Motion To Dismiss

In its motion to dismiss, Teck argues that the amended complaint should be dismissed because the Court lacks personal jurisdiction over it, the complaint fails to allege that HRGC has an actionable ownership interest or that Teck intentionally trafficked on the confiscated property. In response, the Plaintiff argues that the Court has jurisdiction over Teck under the federal long-arm statute and that the amended complaint has sufficiently stated a claim for relief under Title III of the Act.

Here, it is undisputed that Teck is not a Florida resident as it is incorporated in Canada and has its principle place of business there. Accordingly, the Court finds that Teck is not subject to the Court’s general personal jurisdiction.

The Plaintiff fails to explain how its claim for unlawful trafficking in Cuba is related to Teck’s activities in Florida, which at this point appear to be nonexistent. Indeed, the amended complaint alleges that Teck is a Canadian corporation with its principle place of business in Canada, with subsidiaries in Washington and Alaska, and is otherwise silent as to whether Teck has any contacts with Florida. For these reasons, HRGC has failed to plead specific personal jurisdiction over Teck.

In this case, the Plaintiff has known that Teck would argue that this Court lacks personal jurisdiction over the matter since the filing of the subject motion to dismiss in September 2020.

Additionally, the Plaintiff’s request is procedurally improper.

The Court agrees that HRGC did not sufficiently allege that it had an actionable ownership interest because it did not allege that it obtained the interest prior to March 12, 1996. The relevant provision of the Helms-Burton Act provides: In the case of property confiscated before March 12, 1996, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before March 12, 1996.

The Court also agrees that HRGC has not sufficiently alleged that Teck knowingly and intentionally trafficked in the confiscated property.

For the reasons set forth above, the Court grants Teck’s motion to dismiss (ECF No. 14) and dismisses HRGC claims without prejudice. HRGC alternatively seeks permission to file a second amended complaint. (ECF No. 23 at 23.) This request is improper and is therefore denied.

Conference on the Americas: Vice President Harris & Assistant Sec Of State Chung Don't Mention Cuba; Secretary Of State Blinken Does; So Does Rep. Meeks, Chair Of Foreign Affairs Committee

Americas Society/Council of the Americas
New York, New York
4 May 2021

51st Annual Washington Conference on the Americas  (in order of appearance)

The Honorable Kamala Harris, Vice President of the United States, did not mention the Republic of Cuba in her remarks. 

The Honorable Julie Chung, Acting Assistant Secretary of State for Western Hemisphere Affairs, United States Department of State, did not mention the Republic of Cuba in her remarks. 

The Honorable Gregory Meeks (D- 5th New York), Chairman of the Committee on Foreign Affairs, United States House of Representatives, did mention the Republic of Cuba in his remarks. 

The Honorable Antony Blinken, United States Secretary of State, did mention the Republic of Cuba near the end of his pre-recorded remarks.  “And we will continue to advocate for the human rights of the Cuban people, including the right to freedom of expression and assembly, and condemn the repression of human rights on the island.”

Judge Rules Against Plaintiffs In Non-Libertad Act Title III Lawsuit Against Spain's Melia Hotels; Lawsuit Will Continue

On 3 May 2021, Judge Margalida Victoria Crespi, Magistrate-Judge of the Court of First Instance No. 24 of Palma, Spain, again rejected the jurisdiction of the Court to hear the procedure, which obliges again plaintiffs to return to the Provincial Court.

Neither Gaviota S.A. nor the government of the Republic of Cuba responded to the Court. Judge Crespi then ruled that since the defendants did not respond, and they are indispensable parties to the lawsuit, the case cannot go forward. Plaintiffs will appeal. LINK To Ruling

On 12 March 2002, Palma de Mallorca, Spain-based Meliá Hotels International (2019 revenues approximately US$2.1 billion) reportedly offered US$5 million to the descendants of Mr. Rafael Lucas Sanchez Hill as payment to prevent the United States Department of State from using Title IV relating to the Sol Rio de Oro Hotel in response to enactment in 1996 of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as "Libertad Act").

Title IV of the Libertad Act restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims. Employees of one Canada-based company is currently known to be subject to this provision based upon a certified claim.

On 26 March 2002, Sol Melia International, reportedly believing the [George W. Bush Administration; 20 January 2001 to 20 January 2009] United States Department of State would neither implement Title III nor Title IV of the Libertad Act, Melia Hotels International withdrew the offer of US$5 million and proposed US$3,197.75 representing a value (.06%) based upon the twenty-nine (29) acres of land occupied by the Sol Rio de Oro Hotel of the approximately 120,000 acres of land claimed by the descendants of the owners of the property. The US$3,197.75 was determined by Melia Hotels International as the corresponding percentage of the US$5 million tax loss carry-forward amount with the Internal Revenue Service (IRS) in the 1960's.

On 29 May 2019, descendants of Mr. Rafael Lucas Sanchez Hill, acting as Central Santa Lucia L.C., filed a lawsuit in Spain seeking US$10 million from Palma de Mallorca, Spain-based Melia Hotels International S.A. (2019 revenues approximately US$2 billion) seeking damages for the use of land upon which a hotel is located in the Republic of Cuba. The lawsuit is not using provisions of Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).

Title III of the Libertad Act 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.

On 11 January 2021, the judge ordered the inclusion of the government of the Republic of Cuba and Gaviota S.A., but not Gesmesol S.A. Plaintiff attorneys objected as the complaint alleges “unjust enrichment” only against Melia Hotels International S.A. Plaintiff attorneys did not appeal the order to avoid the risk of a dismissal. Plaintiff attorneys are serving the government of the Republic of Cuba and Gaviota S.A. through the required diplomatic channels. The government of the Republic of Cuba may claim sovereign immunity, but Gaviota S.A. is subject to the jurisdiction of the court. The government of the Republic of Cuba and Gaviota S.A. are not subject to plaintiff claim of “unjust enrichment,” but are deemed necessary parties by the judge since they are responsible for the initial expropriation and current operation of property of plaintiff.

On 10 February 2021, Central Santa Lucia L.C. filed its response to the court. The focus of the response was the government of the Republic of Cuba may only be added as a defendant if the government of the Republic of Cuba consents to being a defendant; the plaintiff does not believe the government of the Republic of Cuba needs to be a defendant while Melia Hotels International S.A. believes that the government of the Republic of Cuba should be a defendant.

LINK TO PREVIOUS POSTS

Spanish Appellate Court Rules Sánchez Hill (non-Libertad Act) Lawsuit Against Meliá Hotels International Has Jurisdiction to Proceed; Discovery Begins (28 April 2021)

In Lawsuit Filed In Spain Against Melia Hotels, Plaintiff Argues That Government Of Cuba Is Not Required To Be A Defendant; Melia Hotels Says Otherwise (10 February 2021)

Third Meeting In Two Months- EU High Representative for Foreign Affairs Borrell Again Does Not Discuss Cuba With U.S. Secretary Of State Blinken. Confirms Cuba Not Important To EU-U.S. Relations.

United States Department of State
Washington DC
4 May 2021

Secretary Blinken’s Meeting with EU High Representative for Foreign Affairs and Security Policy Borrell

”Secretary of State Antony J. Blinken met today with EU High Representative for Foreign Affairs and Security Policy and Vice President of the European Commission Josep Borrell on the margins of the G7 Meeting in London. Secretary Blinken reiterated the U.S. commitment to revitalize and raise the level of ambition in U.S.-EU relations, and he and High Representative Borrell discussed the U.S.-EU Summit to be held in June. The Secretary and High Representative also discussed ways to deepen U.S.-EU cooperation on shared foreign policy priorities, including Russia, Iran, China, Afghanistan, and the Horn of Africa.”

European Union
Brussels, Belgium
4 May 2021

United States: High Representative/Vice-President Josep Borrell meets with Secretary of State Antony Blinken

”On 4 May, EU High Representative for Foreign Affairs and Security Policy/Vice-President of the European Commission, Josep Borrell, met with the Secretary of State of the United States of America, Antony Blinken, in London, in the margins of the G7 Ministerial. The meeting was an opportunity to discuss on a bilateral basis some of the most urgent foreign and security challenges ahead, which were also the subject of discussion among G7 Foreign Ministers in their two-day meeting. High Representative/Vice-President Borrell and Secretary Blinken addressed the latest developments in the ongoing discussions on the Joint Comprehensive Plan of Action (JCPOA) – the Iran nuclear deal – in view of a possible return of the United States to the JCPOA and how to ensure the full and effective implementation of the JCPOA. They also discussed relations with Russia in light of Russia’s recent military build-up in illegally-annexed Crimea and on the border with Ukraine, the health of Alexei Navalny, and Russia’s actions against EU Member States and sanctions against EU citizens. High Representative Borrell and Secretary Blinken also discussed the situation in Afghanistan in light of recent US policy decisions, as well as relations with China. The High Representative also raised concern over the increasing instability in Colombia and the need to move forward on the implementation of the peace agreement. The upcoming EU-US Summit in Brussels in June will provide further momentum in the EU-US relationship."

EC/EU Interaction With Secretary Of State Blinken

15 February 2021- European Parliament Member Wrote Mr. Borrell About Cuba
24 March 2021- Secretary Of State Blinken Visits Brussels- Cuba Not Discussed
29 March 2021- Mr. Borrell Writes To EP Member He Would “Address” Cuba With Biden Administration
15 April 2021- One Year Since EU-Based Libertad Act Lawsuit Defendant Asked EC For Guidance
15 April 2021- Secretary Of State Blinken Visits Brussels- Cuba Not Discussed
4 May 2021- Secretary Of State Blinken Visits London, Meets With Mr. Borrell- Cuba Not Discussed
15 June 2021- President Biden Visit To Brussels For U.S.-EU Summit

On 29 March 2021, HRVP Borrell responded to an inquiry from Mr. Javier Moreno Sanchez, a member of the Strasbourg, France-based EP who is a member of the “Group of Friendship and Solidarity with the People of Cuba.” The response from HRVP Borrell was inaccurately publicized as an agreement by Mr. Borrell to “mediate” rather than “address” the issue with the United States:

Dear Members of the European Parliament, Thank you for your letter of 15 February on the designation of Cuba as a state sponsor of terrorism by the previous US administration. As I have stated to Foreign Minister Rodriguez at the EU-Cuba Joint Council on 20 January, the EU rejects this designation. The decision taken by the previous US administration has no factual basis, given the positive role Cuba has played in the peace negotiations between the Colombian government and the National Liberation Army (Ejercito de Liberacion Nacional, ELN). The ELN members were in Cuba as part of the now aborted peace negotiations with the Colombian government, having travelled there at the request of the Colombian government for the negotiation process, which has had the full support of the EU. As I have indicated in my statement referred to above (1), this designation adds to the hardship caused to the Cuban people by the US embargo. In our contacts with the new US administration, we will address this issue and call on the US to lift this designation. Yours faithfully, Josep Borrell Fontelles

From The Miami Herald: Biden in no hurry to normalize ties to Cuba, aide says.

The Miami Herald
Miami, Florida
30 April 2021

Biden in no hurry to normalize ties to Cuba, aide says. Makes sense, it would be political suicide

By Andres Oppenheimer

The Biden administration is in no rush to return to a full normalization of relations with Cuba, despite pressure from the Democratic Party’s far-left wing — at least judging from what President Biden’s top adviser on Latin American affairs told me in an interview.

Juan S. Gonzalez, the White House National Security Council’s senior director for the Western Hemisphere, told me on April 27 that the administration would have to see “concrete steps” toward an economic or political opening in Cuba before deciding to fully return to the Obama-era normalization of ties with the island.

Gonzalez says that Biden will go ahead with his campaign promises to relax restrictions on U.S. travel and remittances to Cuba and seek to grant 20,000 visas a year to Cuban migrants.

But the decision on whether to relax the embargo is “up to the U.S. Congress,” he said. The fact that General Raul Castro recently retired from his job as leader of Cuba’s Communist Party — the most powerful position in the one-party country — does not by itself mean a whole lot, Gonzalez suggested.

“Look, we are prepared to talk with the Cubans,” Gonzalez said, noting that the United States has diplomatic relations with Cuba. “But the most important thing is that the president’s policy will be one in which Americans, especially Cuban-Americans, will be the best ambassadors of U.S. diplomacy.” And, he added, “Human rights will be a key factor in any conversation that we may have with the regime.”

Gonzalez concluded that the Biden administration has “no major urgency to invest a lot of time” on Cuba “unless we see concrete things” on the island. Translation: The ball is in Cuba’s court.

The way I see it, Biden is doing the right thing by resisting the pressures from his party’s left wing on Cuba.

In March, 80 Democratic members of the U.S. House of Representatives signed a letter to the president urging him to pursue “a more constructive approach” toward Cuba “by promptly returning to the Obama-Biden administration policy of engagement and normalization of relations.” The majority of House Democrats did not sign the letter.

Ben Rhodes, Obama’s deputy national security adviser, who was the architect of the former president’s normalization of ties with Cuba, tweeted disapprovingly on April 23 that, “So far, Biden has been completely indistinguishable from Trump on Cuba policy and messaging.”

But the fact is that none of the 80 House Democrats who signed that letter are from Florida or — in most cases — don’t know much about Cuba. And Rhodes has a personal investment in seeing his policy continued by Biden.

But the administration would be committing political suicide in Florida — a key state in the 2022 mid-term and the 2024 presidential elections — if it made friendly gestures toward Cuba, barring any steps toward an economic or political opening on the island.

The Democrats lost two seemingly solid House seats in Miami in the November elections, both taken by Republicans who won a majority of Cuban-American votes and who were helped by Trump’s claims that Biden was a “socialist” who would restore full ties with Cuba.

If Biden wants to keep control of the House and pass his ambitious government plans, he should fight to recover those two seats in Congress, and try to keep Florida from becoming a solidly Republican state.

Relaxing some of the travel and remittances restrictions put in place by Trump is a good idea, as long as it’s done under rules that would keep U.S. dollars from going into the Cuban military’s pockets.

U.S. tourists, for instance, should not be allowed to go to Cuban military-owned hotels. Making sure that they stay at private guest houses would help create a stronger private sector in Cuba.

But a bigger U.S. opening toward Cuba would be a kiss of death for the president’s party in Florida and would be totally inconsistent with Biden’s vow to restore human rights and democracy as cornerstones of America’s foreign policy.

It wouldn’t make sense for Biden to make an exception with Cuba, a 63-year-old dictatorship that is one of the world’s worst police states. Right now, Biden is doing the right thing by not rewarding its repressive regime.

After 720 Days, Has Title III Of The Libertad Act Resulted In What Its Authors & Advocates In 1996 Proffered That It Would Accomplish? The "Jury" Is Still Out...

Two Years Since Title III Lawsuits Permitted
Thus Far No Verdicts Or Judgements Requiring Defendants To Pay Anything
More Than 223 Attorneys Billing Millions Of Dollars
Plaintiffs Continue To Wait

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”).  

After 720 days, has implementing Title III of the Libertad Act resulted in what its authors and advocates in 1996 proffered that it would accomplish?  The jury’s still out. 

To date, none of the thirty-six lawsuits have had a trial by jury, no judge has issued a monetary judgement, none of the more than seventy defendants have confirmed they have settled with plaintiffs.   

What is known: Attorneys representing plaintiffs and defendants may have accumulated approximately US$19 million in billable hours.  For the plaintiffs, they are collectively seeking billions of United States dollars in damages.  

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 III was suspended in six-month increments as required by the Libertad Act by the Clinton Administration (1993-2001), Bush Administration (2001-2009), Obama Administration (2009-2017) and through the first half of the Trump Administration (2017-2021). 

36 Lawsuits Filed (11 Certified Claimants & 25 Non-Certified Claimants)
4 Of The Dismissed Lawsuits At Court Of Appeals
US$244,800.00+ Court Filing Fees (not including attorney court appearance fees)
79+ Law Firms
223+ Attorneys
13,500+ Filed Court Documents
US$19+ Million Law Firm Billable Hours (estimated 85% by defendants)
15 Countries Impacted
118 Plaintiffs (some in multiple cases)
4 Class Action Requests
70 Defendants (including corporate parent, subsidiaries; some sued in multiple lawsuits)
25 United States Defendants (not including subsidiaries)
6 Republic of Cuba Initial Defendants (three remaining)
30 Non-United States Defendants
9 European Union-Based Defendants
5 Companies Notified As Potential Defendants

The Republic of Cuba’s unattractiveness as a depository for Direct Foreign Investment (DFI) has far more to do with its commercially inhospitable landscape, a direct byproduct of directives of the Communist Party of Cuba, than with the affect and effect of United States policies, regulations and statues, as well as the Libertad Act.  As a result, there are few companies, particularly those globally-connected, who have a substantial DFI or other type of presence within the Republic of Cuba. 

Given the Republic of Cuba’s 11.3 million population, its level of DFI should be in the tens of billions of dollars- even with the commercial, economic and political sanctions implemented by the United States.  

Libertad Act Background 

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. 

Libertad Act Suspension History 

Title III has 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.

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 Bethesda, Maryland-based Marriott International. 

LINK TO COMPLETE LIBERTAD ACT TITLE III LAWSUIT STATISTICS

Ernst & Young Seeking Senior Auditor For Cuba Office

Cuba Has 1.42% Shareholding In Hungary-Based International Investment Bank

Ernst & Young Office In Cuba Publishes 15-Page Information Alert For 2020 Legislative Reforms

Liebherr Of Austria, Womy of Germany, Peinemann Of The Netherlands, Bouygues Of France Link For Hotel Construction Equipment To Cuba. Competition For Caterpillar And Deere.

An image created on 26 March 2021 which shows a hotel construction site along the Malecon (1st Street and 3rd Street & D Street and E Street) in the city of Havana, Republic of Cuba. The 600-room twin-tower property is owned by Republic of Cuba government-operated Gaviota S.A., a subsidiary of Republic of Cuba government-operated GAESA [Grupo de Administración Empresarial S.A.] which is controlled by the Revolutionary Armed Forces of the Republic of Cuba (FAR).

The crane was manufactured by Nenzing, Austria-based Liebherr-Werk Nenzing GmbH (2020 revenues approximately US$13 billion) and in use by Paris, France-based Bouygues Batiment International (Bouygues S.A. 2019 revenues approximately US$40 billion) which has since 1999 a substantial presence in the Republic of Cuba. The company “has handed over more than 30,000 rooms, or 50 percent of the accommodations offered in Cuba and 100 percent of those in five-star establishments.” In the United States (with approximately 9,600 employees), company projects have included Miami, Florida’s, Brickell City Centre & other Florida projects.  LINK To Previous Post 

Liebherr-Werk Nenzing GmbH is “one of the world's largest manufacturers of construction machinery.  The more than 48,000 employees [more than 1,200 in the United States] also help to shape technological advances in many other industries.  The Liebherr Group is still managed by the Liebherr family.” 

“Our national parts distribution center in Newport News, Virginia, along with our distribution centers in California, Florida, Maryland, Michigan, Missouri, Nevada, New Jersey, North Carolina, Texas and Wyoming, are dedicated to expediting parts orders, improving operational efficiency and minimizing transit time.  We also have a new global logistics hub in Germany to supply spare parts for the earthmoving business.  These facilities ensure outstanding customer support throughout the U.S. and North America.” 

“Liebherr markets a wide variety of products and technologies through its companies located across the United States.  The companies are Liebherr- Aerospace Saline, Inc., Liebherr Gear Technology, Inc., Liebherr Automation Systems, Co., Liebherr Mining Equipment Newport News Co., and Liebherr USA, Co., the umbrella company for eight divisions that are positioned across the United States.” 

Sales and Service Center in Miami, Florida: “The new sales and service center located in Hialeah Gardens in Miami, Florida opened in 2013.  The state-of-the-art facility serves as a major hub for the Maritime Cranes, and the Refrigeration and Freezers divisions of Liebherr USA, Co.  The new sales and service center is ideally located.  The port of Miami and the Miami International Airport are in close proximity to the new site.  This allows Liebherr to respond to customer enquiries within a short time and to accelerate the distribution of parts and services.  Besides maritime cranes such as mobile harbor cranes, container cranes, ship cranes, offshore cranes, stacking and gantry cranes (RMG, RTG), reachstackers and straddle carriers, Liebherr markets a variety of residential and commercial appliances in North America from this location.  The Miami sales and service center also offers a broad range of training courses for customers, operators, crane and service staff.” 

Standards of conduct for the area of foreign trade law: “As an international Group, Liebherr supplies goods and provides services all over the world.  Consequently, the Group is regularly confronted with laws and regulations from the area of foreign trade law (which we also consider the provisions of customs law to be part of).  Violations against the applicable laws and provisions of foreign trade law usually have far-reaching consequence for the companies involved and the individuals responsible for the violations.  Both in our own interest and in the interest of our customers and buyers, we therefore ensure that in our company the applicable national or intergovernmental rules and provisions of foreign trade law are observed and that appropriate processes and structures are maintained for this purpose.” 

First new Liebherr LTM 1220-5.2 mobile crane for Cuba.  Long-term use in a lead and zinc mine.  Liebherr provides reliable, fast service in Cuba in conjunction with its agent, CON-IMPEX 1 July 2016 

“Liebherr recently completed the first delivery of an LTM mobile crane to Cuba. Womy Rental construction machinery and crane rental company took delivery of the 5-axle LTM 1220-5.2. The crane is destined for long-term use in an [ a joint venture of Singapore-based Trafigura Group Pte. Ltd. and Republic of Cuba government-operated Geominera S.A.] ENIMCAR mine in Santa Lucía which extracts minerals for the production of lead and zinc.  The mine is currently being prepared and, among other things, will have its own port facility where a used Liebherr LHM 1400 port mobile crane will be used. ENIMCAR has also imported two used Liebherr LTM cranes, an LTM 1080/1 and an LTM 1055-3.1.” 

“The decision by the mine to use Liebherr mobile and port cranes was based on the fact that Liebherr can provide fast, efficient customer service in the region through sales and service company Liebherr Mexico, S. de R.L. de C.V. and can also supply spare parts in Cuba. Furthermore, ENIMCAR has had several Liebherr earthmoving machines, such as excavators and crawler tractors, for some considerable time. Liebherr works there with Berlin, Germany-based CON-IMPEX [Group], which is the official customer service point for Liebherr mobile cranes and earthmoving machinery on Cuba. CON-IMPEX Handelsgesellschaft mbH & Co. KG is a company based in Cuba and Germany which specialises in providing agency services for high quality technical products on Cuba. Its own technicians for construction machinery and cranes were trained at Liebherr Training Centres for this purpose.” 

“Liebherr Mexico provides commercial and technical advice and support for difficult situations with technicians from Mexico who can travel to Cuba in less than 24 hours. From its head office in Mexico City, this Liebherr company covers Central America and the Caribbean. There is a total of twenty Liebherr LTM series mobile cranes currently in use on Cuba, seven of which are operated by state crane rental company Cubiza.” 

Port Of Moerdijk, The Netherlands-Base Womy Equipment Supply: “We have continued expanding our activities since our foundation in 1996. We now specialise in the rental, sale and service of all kinds of equipment. All over the world you can find public transport, lift trucks, warehouse trucks, mobile cranes, aerial platforms, container handling equipment, earthmoving and construction equipment which bears our signature. Expanding our potential and capabilities within the diversity of this trade, has allowed to participate and undertake far-reaching and complex projects around the world. Our main office is located in the port of Moerdijk, close to the ports of Rotterdam, Amsterdam and Antwerp. The 20.000m² area offers warehousing, a construction and maintenance site, offices and stock parking. Our group owns companies in Cuba, Ivory Coast, Portugal, Poland, Romania, Oman, Ghana, Turkey and Liberia.  Working on an international scale implies showing respect for the cultures we work with. It also means investing in a partnership with local authorities and companies to help them achieve their goals. Merely supplying goods isn’t enough. We are a full service company which believes in cooperation. 

The opening of Womy Equipment Rental in ZED Mariel: “[Mariel, Cuba] Tuesday 31st October 2017: Womy Equipment Rental [https://www.womy.cu/en/], the extension of the already existing Womy Equipment Supply B.V. (2016), has officially opened the doors of their 1st facility in ZED Mariel Cuba.  Womy Equipment Supply has been around in Cuba for quite some time. With over 26 years of experience in providing all sorts of transport, lifting and after sales solutions, the company expands their current course of actions with a rental company.” 

“Womy Equipment Supply has already been involved with renting equipment in Cuba before. Womy Equipment Supply won the tender of changing the flares at Havana's refinery in cooperation with Cubiza. All the meetings, the discussions and studies regarding the possibilities of the execution, in combination with the opportunity offered by ZED Mariel, enlightened the spark for Womy to start a company only involved with the rental of equipment, Womy Equipment Rental.” 

“Womy Equipment (Rental and Supply) is part of [Hoogvliet, The Netherlands-based] Mobilift International [subsidiary of Hoogvliet, The Netherlands-based Peinemann Mobilift Groep B.V.; 2019 revenue approximately US$220 million; office in Spring, Texas] Mobilift International is known for its huge equipment rental operations throughout the Netherlands, especially in the harbour of Rotterdam. However, Mobilift's focus is internationally active as well. With offices in multiple parts of Europe, West-Africa, the Middle East and now their second office in Cuba, the group is becoming a global player in the horizontal- and vertical transport industry.” 

“A lot of experience, knowledge and expertise is a result of clustering all offices within Mobilift International. With combining all forces of the offices together, a strong foundation has been built for Womy Equipment Rental in Mariel. The office will be the centre point for the support in construction, logistics, renewable energy, and repair industry in Cuba.” 

Caterpillar And Deere & Company In Cuba 

In 2017, Deere & Company (2019 revenues approximately US$39.26 billion) established a distribution center in the Republic of Cuba, joining San Juan, Puerto Rico-based RIMCO, the Republic of Cuba distributor for Peoria, Illinois-based Caterpillar Inc. (2019 revenues approximately US$53.8 billion) established the same year.  At the time, neither Deere & Company nor Caterpillar issued media releases or posted information on their respective Internet sites.  

Since November 2017, Deere & Company delivered more than US$800,000.00 in agricultural equipment to the Republic of Cuba for use at its distribution center. Antioch, Tennessee-based Wirtgen America, Inc., a subsidiary of Windhagen, Germany-based Wirtgen Group (2020 revenues approximately US$3 billion), a construction equipment machinery subsidiary (acquired in 2017) of Deere & Company has also delivered products to the Republic of Cuba.  RIMCO continues to deliver equipment for use at its distribution center in the Republic of Cuba, including excavators, backhoes, graders, scrapers, bulldozers, railway fixtures, and signaling equipment, valued at more than US$4 million since December 2018.  

John Deere Financial Services was to provide payment terms/financing for the exports, primarily Series 5000 (price range US$25,000.00 to US$80,000.00) with a limited quantity of Series 7000 (price range US$219,000.00 to US$280,000.00).  According to the company, several hundred tractors, parts and accessories may be exported from the United States to the Republic of Cuba during the next four years, with the first deliveries (for testing and evaluation) scheduled for mid-November 2017.  The potential value of the several hundred products exported from the United States to the Republic of Cuba that would be financed could range from US$9 million to US$30 million.  John Deere Financial Services has not commented as to whether the product sales goals have been achieved or if there have been issues relating to the receipt of payments.  Caterpillar has not disclosed if the company has provided payment terms for its products exported to the Republic of Cuba. 

Exxon Mobil Libertad Act Lawsuit Against Cuba- Judge- Exxon Has Standing, "Exxon's injury is concrete"; Cuba Wins Too; Court References "mantle of triviality" and "baffling"

EXXON MOBIL CORPORATION V. CORPORACION CIMEX, S.A. (Cuba), CORPRACION CIMEX, S.A. (Panama), AND UNION CUBA-PETROLEO [1:19-cv-01277; Washington DC]

Steptoe & Johnson (plaintiff)
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C. (defendant)

LINK To 46-Page Memorandum and Order (4/20/21)

Excerpts:

Defendants now move to dismiss Exxon’s complaint, arguing that this court lacks subject matter jurisdiction over the dispute. For the reasons that follow, the court denies Defendants’ motion to dismiss as to CIMEX, defers ruling as to CUPET and CIMEX (Panama), and allows limited jurisdictional discovery as to CUPET and CIMEX (Panama).

Defendants have moved to dismiss the Second Amended Complaint for lack of subject matter and personal jurisdiction. See Defs.’ Mot. to Dismiss Action with Prejudice, & for Other Relief, ECF No. 42 [hereinafter Defs.’ Mot.]. As to subject matter jurisdiction, Defendants assert that: (1) they are agencies or instrumentalities of a foreign sovereign, Cuba, and thus are immune from suit pursuant to the Foreign Sovereign Immunities Act (“FSIA”), and (2) Exxon lacks Article III standing.

The parties agree that Cuba wholly owns Defendants CIMEX, CIMEX (Panama), and CUPET, and therefore Defendants are presumptively immune from suit in U.S. courts as agencies or instrumentalities of a foreign state.

In addition, Congress was careful to anticipate and explicitly provide instructions for instances in which Title III was in tension with existing doctrines, suggesting that Congress would have explicitly stated the FSIA did not apply to Title III if that were its intention.

Having determined that Title III does not supply the waiver of sovereign immunity needed to advance Exxon’s case, the court turns to the FSIA’s immunity exceptions. Two are relevant here: the commercial activity exception and the expropriation exception.

mantle of triviality

It is not entirely clear what Defendants contend Exxon’s action is based upon, but the court has little doubt that CIMEX’s use of confiscated property to participate in the remittance business is an “act . . . in connection with a commercial activity,” as required by section 1605(a)(2).

In sum, with respect to the requirement of direct effects in the United States, the court concludes: (1) CIMEX’s processing of remittances and its purchase and sale of goods imported from the United States have a direct effect in the United States; (2) Defendants’ use of Exxon’s confiscated property and CUPET’s competition in the global oil market, alleged pollution, and participation in a handful of meetings in the United States have not caused a direct effect in the United States; and (3) no acts of CIMEX (Panama), directly or as an alter ego of CIMEX, have been shown to have a direct effect in the United States.

FSIA’s Expropriation Exception

Exxon resists this conclusion by arguing that this court “must presumptively accept Plaintiff’s certified claim [from the FCSC] as conclusive proof of Plaintiff’s ownership interest in the property at issue.” Pl.’s Br. at 40–41. But that argument suffers from two problems. First, the FCSC’s certification of a claim at most creates a property right under domestic law, not international law. And second, the FCSC certifies claims for ownership interests that are broader than the property rights recognized under customary international law. The FCSC has jurisdiction to adjudicate “any rights or interests . . . owned wholly or partially, directly or indirectly . . . by nationals of the United States.” 22 U.S.C § 1643b(a) (emphasis added). By contrast, the expropriation exception requires the plaintiff to identify “rights in property” that have been “taken in violation of international law,” 2

Exxon resists this conclusion by arguing that this court “must presumptively accept Plaintiff’s certified claim [from the FCSC] as conclusive proof of Plaintiff’s ownership interest in the property at issue.” Pl.’s Br. at 40–41. But that argument suffers from two problems. First, the FCSC’s certification of a claim at most creates a property right under domestic law, not international law. And second, the FCSC certifies claims for ownership interests that are broader than the property rights recognized under customary international law. The FCSC has jurisdiction to adjudicate “any rights or interests . . . owned wholly or partially, directly or indirectly . . . by nationals of the United States.” 22 U.S.C § 1643b(a) (emphasis added). By contrast, the expropriation exception requires the plaintiff to identify “rights in property” that have been “taken in violation of international law,” 2

6 Exxon’s contention that Garcia-Bengochea v. Carnival Corp., 407 F. Supp. 3d 1281 (S.D. Fla. 2019), supports the proposition that “indirect ownership is permissible” under the expropriation exception is frankly baffling.

To recap, the court has found that the commercial activity exception reaches Exxon’s Title III claim against CIMEX, but not against CUPET or CIMEX (Panama). The court also has concluded that the expropriation exception cannot sustain a claim against any Defendant.

Though the court thinks it is a close call, it will permit limited jurisdictional discovery into the topics identified by Exxon concerning CUPET’s and CIMEX (Panama)’s trafficking activities that may have caused direct effects in the United States. Such discovery is limited to the three topics the court has identified.

Here, there can be no question that Congress legislated an injury in fact in Title III.

And Exxon’s injury is concrete.

Exxon possesses a claim from the FCSC certifying that it “suffered a loss in the total amount of $71,611,002.90.” FCSC Claim at 9. Quite plainly, a loss totaling almost $72 million constitutes a real and not abstract injury, and Exxon has sufficiently satisfied the concreteness element of standing.

Finally, although Defendants do not challenge the redressability of Exxon’s injury, it is clear that, if Defendants are found liable in this action, Title III provides for Exxon to receive “the amount, if any, certified to [it] by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949, plus interest.” 22 U.S.C. § 6082(a)(1)(A)(i)(I). A favorable decision would therefore redress Exxon’s injury. See Lujan, 504 U.S. at 561.

The court concludes that Exxon has Article III standing to bring a claim under Title III of the LIBERTAD Act.

For the foregoing reasons, the court grants in part and defers in part Defendants’ Motion to Dismiss. The court denies Defendants’ Motion to Dismiss as to CIMEX and orders limited jurisdictional discovery as to CUPET and CIMEX (Panama). The parties shall meet and confer and propose to the court by May 4, 2021, a schedule for discovery that is consistent with the limited scope of discovery described in this Memorandum Opinion and Order.

U.S. Department Of State Comments On Retirement Of First Secretary General Raul Castro

United States Department of State
Washington DC
20 April 2021

Briefing With Spokesperson Ned Price

QUESTION: He spent a lot longer than just two months. (Laughter.) In fact, I think the Qataris might be giving him honorary citizenship. He’s been over there for the last two years, so like – but speaking of people who have been in places for a long time, do you guys have anything to say about Raul Castro’s retirement, resignation? He’s been a fixture of the Cuban Government for longer than I’ve been alive, for longer than you’ve been alive —

MR PRICE: I —

QUESTION: — I think probably everybody in this room has been alive.

MR PRICE: I appreciate the transition there. What I would say is, of course, it is for the Cuban people to speak to the results of the Cuban party congress. We have spoken about our review of our Cuba policy, which remains ongoing, but we know, of course, that will be governed by two principles. First, support for democracy and human rights will be at the core of those efforts, and we will seek to empower the Cuban people to determine their own future. And second, Americans, as we’ve said, are – tend to be the best ambassadors for freedom in Cuba. Don’t have anything to add about the change that has been announced. Again, it’s for the Cuban people to speak to the results of their party congress.