CUBA Trends and Developments Contributed by: Martin Domb, Pedro A Freyre, Augusto E Maxwell and Christopher Carver, Akerman LLP
The first element was concededly present; the parties disputed the second and third elements. The court held the second element was met because Exxon showed that CIMEX’s alleged activities – processing money remittances and operating service stations that sell gasoline and food items – are not uniquely sovereign actions, but rather are the kinds of activities typical of pri- vate entities. This element is met even if an act of expropriation preceded and therefore gave rise to the later commercial activity on which the claim is based. The court had doubts, however, as to whether the third element – that the commercial acts caused a direct effect in the USA – was satis- fied. Exxon argued that CIMEX’s handling of money transfers from US residents into Cuba and its sale at service stations of foods it pro- cured in the US satisfied the “direct effect” in the USA requirement. While agreeing that such acts “can” satisfy that requirement in some cases, the appeals court remanded the question to the trial court to determine, on additional facts, whether CIMEX causes such effects in the USA, and if so, whether the effects are sufficiently “direct” to meet the third element of the commercial activity exception. The court noted that only between four and ten of the more than 500 service stations operated by CIMEX are on property expropriated from Exxon, and making remittances available at those few stations may not have an effect on the USA if, for example, recipients could get their remittances at nearby stations on non-expropriated property. As for the food purchases, the record showed that CIMEX does not itself make decisions about where to buy the foods; that is done by a differ- ent Cuban agency (Alimport) that exercises its own judgment as to where to source the foods.
On remand, therefore, the trial court must con- duct further fact-finding to resolve two ques- tions: (i) does the operation of four to ten ser- vice stations at which remittances are processed cause a direct effect in the USA, and (ii) does CIMEX have enough knowledge of or influence on Alimport’s sourcing of food products in the USA to support a finding that, by acquiring foods through Alimport, CIMEX itself causes a direct effect in the USA? Parreno v Airbnb – novel issues In an August 2024 decision, the federal court in Jacksonville, Florida stayed discovery pending resolution of Airbnb’s motion to dismiss. Two of the grounds for dismissal appear to be novel to Helms-Burton cases. The case was commenced in March 2024 by Javier Garcia-Bengochea, as administrator and on behalf of the estate of Parreno, who died in 1972 owning a claim in the confiscated Port of Santiago, Cuba. Garcia-Bengochea had filed four previous actions, including three against cruise lines, alleging that he – as an heir, and not the estate – owned the claims. All his prior actions were dismissed on the ground that he inherited the claims after the Act’s 12 March 1996 deadline. In this case, however, Garcia- Bengochea argues, contrary to his assertions in his prior lawsuits (and echoing the plaintiff’s unsuccessful argument in Escalon, discussed above), that the claim never left Parreno’s estate and, as Parreno owned the claim long before March 1996, it is not time-barred. Airbnb’s motion raised several familiar grounds for dismissal attacking Garcia-Bengochea’s turnabout position, including that it was barred by the decisions in the prior cases and by judicial estoppel, and that the complaint does not suffi-
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