CUBA Trends and Developments Contributed by: Martin Domb, Pedro A Freyre, Augusto E Maxwell and Christopher Carver, Akerman LLP
The judge also rejected the argument that the hotel-booking activities were protected by the Act’s “lawful travel” exception, which exempts from liability uses of property that are “inci- dent to lawful travel to Cuba” to the extent that such use is “necessary to the conduct of such travel”. He agreed with courts in other cases, which have uniformly held that the lawful travel exception is an affirmative defence as to which a defendant bears the burden of proof at trial, and, therefore, is not a proper basis for dismissal on the pleadings. The defendants failed to win dismissal based on another exception in the Act – that the prop- erty at the time of expropriation was used as a residence. The judge relied on allegations in the complaint that Cayo Coco had been “uninhab- ited” and the family had used it “as a recreational area and for limited commercial purposes”, such as producing charcoal and salt, and raising live- stock. The defendants also failed in their argument that the plaintiffs have no claim because they were not US nationals at the time the property was expropriated in 1960. Judge Moreno interpreted the Act’s relevant text to require that a plaintiff be a US national on 12 March 1996 (when Helms- Burton was enacted), not when the property was expropriated. In Judge Moreno’s second decision, issued in July 2024, he denied a motion to certify a class consisting of all persons claiming an inter- est in properties anywhere in Cuba on which 20 Iberostar-operated hotels are located. The plaintiff sought certification concerning several core common issues, including whether Expe- dia trafficked, whether it did so knowingly and intentionally, and whether it benefited from the trafficking. The plaintiff proposed that issues
individual to each class member, including own- ership and damages, be adjudicated in later, individual actions by each owner. Although the court rule concerning class actions (Federal Rule of Civil Procedure 23) gives a court discretion to certify a class “with respect to par- ticular issues”, Judge Moreno denied certifica- tion. He concluded that the proposed class did not meet most of the requirements for class certi- fication, including that common issues must “predominate” and plaintiff’s claims be “typical” of members such that class treatment would be “superior” to individual actions. Judge Moreno noted, for example, (i) Expedia’s showing that it did not offer rooms at all of the 20 hotels; and (ii) that Echevarria seeks over USD10 million, based on a 12.5% interest in the Cayo Coco property, which suggests that other class mem- bers would also have an interest in pursuing their own claims, as at least one other claimant has done. Following these two decisions (and because the claims against Booking.com have been settled), what remains to be tried are the claims of a sin- gle plaintiff, Echevarria, against Expedia con- cerning bookings at hotels only on Cayo Coco, in which Echevarria claims an interest. Trinidad v Expedia – summary judgment dismissing the case In a 31 October 2024 decision, Judge Moreno – who also presided over the Echevarria cases discussed above – granted summary judgment dismissing this case. Trinidad claimed that Expe- dia trafficked in a property in Varadero Beach that had been owned by his parents, and in which he inherited an interest, by booking rooms at two hotels later built on that property. The evidence
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