CUBA Trends and Developments Contributed by: Martin Domb, Pedro A Freyre, Augusto E Maxwell and Christopher Carver, Akerman LLP
ciently allege that Airbnb acted with the requisite “knowledge and intent”. In addition, Airbnb made two novel arguments: (i) as a provider of “an interactive computer ser- vice”, Airbnb is immune from suit – under the Communications Decency Act, 47 U.S.C. Sec- tion 230 (a federal statute that can protect com- panies such as Facebook from liability for post- ings by others) – for postings by property owners on the Airbnb website; and (ii) Helms-Burton is unconstitutional because its provision allowing the President to suspend the right to bring a pri- vate action for six-month periods – which Presi- dent Clinton invoked immediately upon passage of the Act in 1996 and all Presidents continued until President Trump lifted the suspension in 2019 – was an improper delegation of Congres- sional power to the President. As is its right when a federal constitutional chal- lenge to any statute is raised, the US govern- ment filed a “statement of interest” in which it asked the court “to decide Airbnb’s many non- constitutional bases for dismissal before reach- ing the constitutional question and, only if the Court finds it necessary to reach the constitu- tional question, to provide the Government an opportunity to participate at that stage”. Given the strength of Airbnb’s other grounds for dis- missal, the court may not reach the constitu- tional issue. Echevarria v Expedia – issues narrowed for trial The Echevarria plaintiffs commenced two actions on the same day in 2019 in Miami fed- eral court against two hotel booking companies and their affiliates, Expedia and Booking.com, alleging that the companies trafficked on land in Cayo Coco Island, Cuba, which Cuba confis- cated in 1960 and as to which plaintiffs hold a
claim, by booking rooms at hotels later built on that land. The first case alleges claims on behalf of three family members and involves bookings at a single hotel, the Pullman Cayo Coco Hotel, operated by Accor. The second case, against Expedia and its affiliates, was a proposed class action on behalf of other persons similarly situ- ated and involves bookings at 20 hotels oper- ated by Iberostar, in Cayo Coco or elsewhere in Cuba. Judge Federico Moreno, who was assigned to both cases, consolidated them in May 2024; they are scheduled for trial beginning on 27 January 2025. Judge Moreno issued two noteworthy decisions in these cases. In the first, issued in September 2023, he grant- ed in one respect and otherwise denied the booking companies’ motion to dismiss. The first issue was whether plaintiffs acquired their claims before the Helms-Burton cutoff date of 12 March 1996. After summarising the long line of succession of the property’s ownership from the 19th century through each plaintiff, the court ruled that only Echevarria, and not the other two plaintiffs, plausibly alleged that he acquired the claim in a timely manner. The decision also addressed whether the remain- ing plaintiff adequately pled that the booking companies’ alleged trafficking was knowing and intentional. Although the judge agreed that most of the allegations of scienter were conclusory and therefore insufficient, he denied dismissal on this ground because the plaintiffs alleged they sent the defendants a pre-suit notice of their alleged trafficking, and that the defendants continued to book rooms at the hotel in question after the defendants received the notice.
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