CUBA Trends and Developments Contributed by: Martin Domb, Pedro A. Freyre, Augusto E. Maxwell, Christopher Carver and Lorayne Perez, Akerman LLP
Cuban government. This was so even if Seaboard did not directly encroach upon Azucarera’s confiscated land. Seaboard argued that, even if it did use or benefit from the confiscated property, there was no evidence that it did so “knowingly and intentionally,” as required by the statute. The Eleventh Circuit disagreed. It held that letters sent by Fernandez warning Seaboard of her claim and of its continued violations put Seaboard on notice and, because it continued the shipments thereafter, a genuine dispute existed as to whether it did so knowingly and intentionally. Finally, the Court analysed whether Seaboard was entitled to summary judgment on its lawful travel defence. Under the Act, the term “traffics” excludes “transactions and uses of property incident to lawful travel to Cuba, to the extent that such transactions and uses of property are necessary to the conduct of such travel”. The Court found that the Act and fed- eral regulations implementing the Act distinguished between trade and travel, and that the sale of frozen chickens constituted trade with Cuba, not travel to or from Cuba. Seaboard has filed a petition for writ of certiorari with the US Supreme Court, which will likely be granted or denied before the end of 2025. If granted, this case should also be decided during the current term. Regueiro v American Airlines Plaintiff Regueiro sued American Airlines for its alleged trafficking in Cuba’s main airport by operating flights in and out of the airport. Regueiro claimed that the air- port previously belonged to a corporation owned his father when the Cuban government confiscated it in 1959. The district court dismissed the case for failure to state a claim because Regueiro’s father was not a US citizen when the airport was confiscated by the Cuban government, and because plaintiff Regueiro became a US citizen only after he inherited an interest in the property. On appeal, the Eleventh Circuit reversed, finding that the plain text of the Act did not require that the con- fiscated property belong to a US citizen at the time of confiscation, or that the plaintiff be a US national
at the time he inherits the claim to the confiscated property. The Court reasoned that the Act included an amendment to the Cuban Claims Act which allowed the Foreign Claims Settlement Commission to make a factual finding as to the validity and value of a claim “whether or not the United States national qualified as a national of the United States... at the time of the action by the Government of Cuba”. This was evi- dence that the Helms-Burton Act did not require that the confiscated property belong to a US citizen at the time of confiscation, and likewise did not require the plaintiff to be a US citizen when he acquired the claim. The Court also rejected American Airlines’ alternative argument that Regueiro did not own an interest in the confiscated airport, but rather shares of a corporation that owned the airport. Consistent with its Seaboard Marine decision, the Court held that the Helms-Burton Act protects those who had an interest in confiscated This last year saw the first jury trial on a Helms-Burton Act claim in the consolidated Echevarria v Expedia Group, Inc. cases. In those cases, the plaintiff assert- ed that he owned a claim to the island of Cayo Coco, Cuba, which was confiscated by the Cuban govern- ment in 1960 from the plaintiff’s ancestors. The plain- tiff alleged that the Expedia defendants had trafficked in that stolen land by facilitating bookings for rooms at three hotels later built on the land. property, including shareholders. Echevarria v Expedia Group, Inc. The case involved numerous complex issues of first impression. For example, the court had to determine, assisted by competing Cuban law experts, how to instruct the jury on Cuban law governing the ques- tion of whether the plaintiff’s ancestors ever owned Cayo Coco, beginning with the property’s alleged ini- tial transfer from the Spanish Crown to the plaintiff’s ancestor through various additional alleged transfers by succession up to the time of the Cuban revolu- tion and beyond. The Court also wrestled with the proper methodology under the Act for assessing the current fair market value of property existing in the closed economy of communist Cuba, and whether that value should be limited to the unimproved land as it existed at the time of confiscation or included the improvements made thereafter and the business value of the hotels. The Court also contended with eviden-
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