CUBA Trends and Developments Contributed by: Martin Domb, Pedro A. Freyre, Augusto E. Maxwell, Christopher Carver and Lorayne Perez, Akerman LLP
North American Sugar The plaintiff, North American Sugar, holds a certified claim in excess of USD97 million for the Cuban gov- ernment’s confiscation of an array of assets used in the sugar-producing business, including a large commer- cial shipping port its affiliate owned in Puerto Padre, Cuba. In 2020, North American Sugar sued three sets of foreign defendants in Florida – each of which had a role in the shipment of wind turbine blades from China to Puerto Carupano, a Cuban port in which the plaintiff claims an interest. The plaintiff alleged that the court had personal jurisdiction over the defendants because the shipments briefly stopped in Miami, Florida, en route to Cuba, and because the defendants allegedly conspired to violate the Helms-Burton Act. The defendants moved to dismiss the complaint for lack of personal jurisdiction, which the trial court granted based on extensive declarations and exhibits but without holding an evidentiary hearing. On appeal, the Eleventh Circuit vacated the district court’s order and remanded for further proceedings. The Eleventh Circuit found that the district court read the definition of “traffics” in the Act too narrowly when it found that the alleged Helms-Burton violations occurred only in Cuba, and that it improperly credited the defend- ants’ evidence over the plaintiff’s conflicting evidence without holding an evidentiary hearing. On remand, to overcome the jurisdictional defences, the plaintiff will need to show that “the Defendants, their agents, or their co-conspirators committed Helms-Burton traf- ficking while they were physically located in Florida”. Exxon Unlike the majority of Helms-Burton Act cases, which are brought against private companies, this case involves claims against Cuba state-owned entities and thus is essentially a lawsuit against the Cuban government. Exxon sued three entities in the DC dis- trict court: (i) CIMEX, a conglomerate that, among other things, operates hundreds of service stations, (ii) its Panama affiliate, and (iii) CUPET, Cuba’s state- owned oil company. Exxon alleged that these entities traffic in properties Cuba confiscated from Exxon by using those properties to extract, import, and refine crude oil, and by operating service stations that sell the refined oil products.
by the Cuban government and to draw profits there- from) in the Port of Havana that would have expired in 2004 but for the Cuban government’s expropriation of that interest in 1960. In 2019, Havana Docks sued four cruise lines for their alleged trafficking in the Port of Havana between 2016 and 2019 by having their ships dock at the Port and one of its piers, having its pas- sengers embark and disembark there, and using the property as a start and end point for shore excursions. The district court entered summary judgment for the plaintiff in the sum of about USD110 million against each of the four cruise lines. That amount represented the value of Havana Dock’s property (USD9,179,700.88), as determined by the Foreign Claims Settlement Commission (FCSC) in 1971 pur- suant to the Cuban Claims Act of 1964, plus simple interest, plus treble damages. The main issue on appeal – one of first impression – was whether the cruise lines could “traffic” in Havana Docks’ property where Havana Docks’ concession would have expired in 2004, years before the cruise lines made any use of the Port of Havana. The Elev- enth Circuit panel, in a two-to-one decision, held that because the alleged conduct took place years after Havana Docks’ concession would have expired by its own terms, the cruise lines had not engaged in traf- ficking in that property interest in 2016 through 2019. The dissenting judge disagreed, viewing the Act’s text as not requiring a plaintiff to demonstrate that it would have owned the property at issue during the time of the trafficking, but for the confiscation; and stating that it should be sufficient that the plaintiff owned a claim to the confiscated property when the trafficking occurred. Havana Docks petitioned the US Supreme Court for a writ of certiorari. The question presented is “whether a plaintiff must prove that the defendant trafficked in property confiscated by the Cuban government as to which the plaintiff owns a claim”, or, instead, that the defendant trafficked in property that the plaintiff would have continued to own at the time of trafficking in a counterfactual world “as if there had been no expro- priation”. As noted above, the Supreme Court recently granted the petition and will decide that issue during the current term.
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