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JONES DAY TALKS  HelmsBurton Cases Move Throug

JONES DAY TALKS® - Helms-Burton Cases Move Through Courts, and the State of U.S./Cuba Relations

Jones Day partners Rick Puente and Chris Pace talk about what affected parties need to know about the Helms-Burton cases moving through U.S. district and appellate courts. They also comment on the current state of U.S./Cuba relations, and discuss how the Biden administration might approach dealings with the Caribbean nation.

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Dave Dalton:

About once a quarter, we update you on developments relating to Title III of the Helms-Burton Act. Passed in 1996, Title III allows US citizens to sue persons trafficking on property confiscated in Cuba by the Castro regime. However, Title III had never actually gone into effect until the Trump administration lifted the suspension on Title III in April 2019. Since then, numerous cases were filed, and we're here to talk about developments at the appellate and District Court levels. And did you know that, just prior to leaving office, President Trump returned Cuba to the list of State sponsors of terrorism and where's the Biden administration on all this? Jones Day, Rick Puente and Chris Pace are here with all this and more. I'm Dave Dalton, you're listening to Jones Day Talks.

Dave Dalton:

Jones Day partner, Rick Puente has more than 20 years of litigation and international arbitration experience. Rick has litigated and trailed complex commercial investment cases before courts and international arbitration tribunals involving issues of fraud, money laundering, financial products, shareholder disputes and treaty claims in the United States and abroad. And partner, Chris Pace represents clients in commercial disputes, trade secrets and unfair competition cases, money laundering, and other criminal investigations and prosecutions, and also federal antitrust and RICO actions. Prior to joining Jones Day, Chris served as an assistant United States attorney for the Southern district of Florida as a law clerk to Supreme Court Justice Anthony M. Kennedy. Both Rick and Chris are based in Jones Day's Miami office. Rick, Chris, thanks for being here today.

Chris Pace:

Great to be here.

Rick Puente:

Glad to be here, Dave.

Dave Dalton:

It has been a while since we talked last, I think it was October. And we do these updates three, four times a year, so we were due. And there's a lot to unpack here today. Here's what we're planning on covering. There was an action by the Trump administration just before the former president left office in January. Also, a number of new cases at both the appellate and district levels that we ought to run through. And finally, let's have a look at what the new administration might do in terms of policies towards Cuba, and Helms-Burton and that whole package. So, that's what we're going to cover, we've got Chris and Rick here to do it. Looking forward to it, it's always an informative program. So thanks again guys.

Dave Dalton:

Okay. Rick, let's start with you. Let's talk about what happened in January before President Trump left office. He returned Cuba to the list of State sponsors of terrorism before he left office? Tell me what that was all about and what has happened since.

Rick Puente:

Absolutely Dave. So, just to give the listeners a little content real quick, what we're talking about is obviously the Helms-Burton Act, which allows US nationals to sue in Federal Court parties that do business in confiscated property in Cuba. And, right before, Trump was the one who suspended the Title III provision that allowed these lawsuits to go forward as you recall in May of 2019. So right before he left office, he basically had a secretary of State, Pompeo, put Cuba back on the list of State sponsors of terrorism which President Obama had lifted in 2015. So that was an interesting step, and part of the Trump administration's position, even right before he left office, that we should be tackling Cuba and Venezuela. He always put them in the same bucket as with tough US policy stance because of their human rights violations, the expropriation of properties that were never compensated.

Dave Dalton:

Okay. So has the Biden administration taken any steps to remove Cuba from this list since taking office about five, six weeks ago?

Rick Puente:

So far they have not taken any steps, right? The expectation has always been that President Biden would go back to the Obama position with Cuba. And so, it wouldn't surprise me if they ease travel restrictions down the road, but they haven't taken any steps. And so far, they've been silent on Cuba.

Dave Dalton:

Okay. There is a bill working its way through the Senate. I believe Senators Wyden, Leahy, Durbin, Merkley, right? What attraction is that bill getting?

Rick Puente:

Well, that bill is interesting because what it seeks to do is basically remove the embargo that has been against Cuba going back to the 1960s. And what it does is it has several provisions, one of the provisions rescinds the Helms-Burton Act, the other rescinds even the International Claims Settlement Act. Now the International Claim Settlement Act, the Cuba provision basically allowed these US nationals to file claims before the Foreign Claim Service Commission and get certified claims, right. In the event there is a direct negotiation with Cuba, you'd have the owner and the value of those claims established. Well, this bill, one of the things it has is a rescission of that particular provision. It also has a rescission of our regulation of travel involving US citizens and residents involving Cuba and the United States. From speaking to our colleagues in Washington DC, it seems very draconian in its approach towards Cuba, and there would probably be Democrats that would be opposed to it in its current form. So it would probably be amended.

Chris Pace:

Not draconian in terms of Cuba, draconian in terms of what it does to our historic Cuban policy. And the answer is, it appears to be more of a shot across the bow, get some attention to the issue. In its current form, it's very unlikely to pass. And in fact, even a water down form is very unlikely to pass in all likelihood. There may be some legislative action this year or next year, but it is going to be a result of compromise. Because in order to get the votes to take action, you're going to need to take a more nuanced approach than what's in that bill that has come across. So again, it was designed to draw attention to the issue. It was designed to get some press coverage, it's not really designed to pass through Congress and be signed by the president because it's unlikely to occur.

Dave Dalton:

This might be a time just to give an overview of Cuba, US relations. I mean, certainly recently, but hearing Rick talk a minute ago, it has been 60 years. That was a Kennedy administration, right, when these sanctions and embargoes first came down, which probably, I don't know how old you guys are, probably a lot of our listeners weren't even born yet when this came down. So let's talk about that relationship a little bit without doing a semester long course. But go and give us some context in terms of recent events, or what do we need to know in terms of the dynamic in the relationship right now?

Rick Puente:

Sure Dave. So to understand the Helms-Burton Act, you really have to look at US, Cuba relations going back to 1959 and what happened there, right? So when Castro, Fidel Castro comes into power, there were lots of US investors that had their properties expropriated. In addition, there was nationalization of properties of Cuban citizens, right? Many of those Cuban citizens came to the United States, Cuba adopted a communist approach, right? And so, there was always tension during the cold war era between the United States and Cuba. So you go back from the 1960s to the early 1990s, there was this tension all along, but then you removed in the early 1990s the Soviet union, which had given Cuba $5 billion to $6 billion in subsidies every year. So Cuba, then basically says, "We're going to get money another way. We're going to amend our constitution which doesn't recognize private property, but we're going to allow foreign investors to invest."

Rick Puente:

So a lot of European, Latin American companies, Canadian companies invested in Cuba and some of those properties belong to US nationals before the Cuban revolution. And those US nationals never received compensation. So what happens? You had Senator Torricelli who passed the law in 1992 to disencourage these investments. And then you fast forward to 1996, when you had an incident in international waters, two US MIGS were flying over international waters and we're shut down, and then you had the Helms-Burton pass. And the Helms-Burton Act basically recodified that embargo with Cuba, it has four provisions, (1.) Recodify the embargo. The other, looking towards a transition of democracy towards Cuba and what role the United States would have. And then you had this Title III that allowed the lawsuits against foreign companies that were trafficking, or even US companies that may have been involved with business in Cuba involving confiscated property.

Rick Puente:

These laws were a product of the cold war, essentially, right? And now you still have a communist party in Cuba, and then there's been questions as to whether or not we should continue with these strong policies towards Cuba. The Trump administration obviously viewed that we should take a strong stance with Cuba, and that also had to do a lot with Venezuela, right, because Venezuela and Cuba have been known to work together. President Maduro in Venezuela also adopts the communist approach and there has been basically a foreign policy play between the United States, Venezuela and Cuba that, from the Trump's perspective, required the strengthening of sanctions. From President Biden, we don't know yet what's going to happen, right, and that's a mystery, but that is the general overview of what we have over the last 60 years.

Dave Dalton:

Sure, sure. And again, it has just been a constant since most of us on this call have been paying attention, and it'll be interesting to see. And we'll get back later into what the Biden administration may do or what your hunches might be there. Let's talk about some cases that have moved ahead a little bit since we last spoke late in the fall. I got one here, "Ruling from the 11th Circuit in appeal involving Amazon." Is that the Amazon we all know and love and you see those vans and trucks everywhere. They're ubiquitous, right? Is that that Amazon?

Chris Pace:

It is that Amazon, that's correct. Not the Amazon river, it's the actual Amazon.

Dave Dalton:

It had to be one or the other. I was rooting for the river, that would have been interesting. But Chris, go ahead, please.

Chris Pace:

I believe last time we spoke, we had talked about the fact that there were some District Court cases going both directions. There were some good for defendants, some good for plaintiffs. Since then, the tide has moved a little bit more favorably for the defense side, one of which the most notable, which is an 11 Circuit opinion, affirming a dismissal of a case that came out of the Southern district of Florida. And on the issue that we're seeing in a lot of these cases, which is that the plaintiff is not a US national who owned property in 1960 or 1959 and the Castro regime took it from them, it's somebody down the line. It's somebody who got the claim as a gift. It's somebody who inherited it. It's something else down the road. And the 11th Circuit consistent with what the District Court did, said, "While you didn't own this claim in 1996, the statute requires that you lose."

Chris Pace:

We have seen that elsewhere. In fact, full disclosure, a case where Jones Day is representing the defendant, American Airlines, we prevailed and got a case dismissed in the Northern district of Texas on a couple of different grounds, but one of them was the same concept of, "This plaintiff didn't own this claim in 1996." So the way courts have generally been viewing Helms-Burton, because it is such a unique legislative scheme or maybe particularly because it's a unique legislative scheme, they've been taking it quite literally, they're not trying to find unusual exceptions or read it in unusual ways. So the statute says you had to have the owner's claim in 1996 and the plaintiffs were coming in and saying, "Well, but that's cause my mom, or my dad, or my uncle or somebody owned it, they've passed away, they gave it to me." At least thus far the courts have been saying, "Then you don't have a claim. The claim essentially died off or expired when that original owner passed away."

Dave Dalton:

Okay, where's Amazon come into this, Chris, unless I missed it, I apologize. I mean, I understand the principle here, but what's Amazon...

Chris Pace:

The case against Amazon was that they were selling on their website a product that a company was making in Cuba, and that that company was using land in Cuba that had been appropriated or expropriated, depending on how you view it by the Cuban government, right? So the individual was saying, "Hey, my relatives used to own that land that was then taken by the Cuban government and now it's being used to manufacture this product that is being sold on Amazon." And one argument Amazon made, they made a number of arguments, but one they made was, "It wasn't your land, it was the land of one of your relatives that got passed on to you. So you don't have any claim under Helms-Burton," and that's what the 11th Circuit agreed with.

Dave Dalton:

Gotcha. So the takeaway here then is if it wasn't yours by 1996, too bad, at least so far what we're seeing, correct?

Chris Pace:

Yes. There are a lot of different versions of these cases and there may be some where companies are able to get away with it. But one of the cases that has gotten the furthest along, it has gotten past the motion to dismiss, it has gotten into discovery and is progressing fairly rapidly is in fact, a case by a company that owned the dock, but owned the physical space back in 1959 and it's owning it continuously since. So that has been the one case that has been the strongest, most of these other cases where somebody else owned the property and it has been transferred a couple of times, those are the cases that thus far are being dismissed.

Dave Dalton:

Good enough. All right, let's stay with the 11th Circuit for a second. I've got a note here, Muransky v. Godiva, not necessarily Helms-Burton Act case, but make standing under article three more challenging for plaintiffs. I've got a note on this, that's about all I know. Rick, Chris, you want to fill us in?

Rick Puente:

Sure. Dave, so the Muransky opinion is really, it's not a Helms-Burton case like you stated and it involves the issue of article three standing. The American Airlines case that Chris referred to earlier is a case that we were successful on by arguing that there was no constitutional standing by the plaintiff because they had not suffered essentially an injury in fact. This Muransky opinion, although distinguishable, factually involves the same concept that you have to have a concrete injury to be able to sue to bring an action. And there, in the Muransky opinion, even there was a settlement in place, right, and it involved the violation of a statute. The 11th Circuit said, "Merely because Congress says that you don't follow this statute, that's not enough to create constitutional standing." And even though there was a settlement set up, they set it aside because there was no subject matter jurisdiction. So it's a case that could have some precedential effect, particularly in the 11th Circuit.

Rick Puente:

Because again, these plaintiffs, they have to show that they have suffered an injury in fact, and it's hard to do that if you don't have a property interest. And that segues a little bit to the point of you have two buckets of types of claims, you have those claims that are certified, that were issued by the Foreign Claims Service Commission that involve a taking from a US national who was an entity or a person that was a US national at the time versus those that are uncertified. Most of them were not US nationals, there were Cuban nationals who later became US nationals.

Rick Puente:

And we can go really deep into that, to the whole concept of international law and how international law does apply when it's a foreign national's property that was confiscated, but not when it involves a domestic taking, and we'll get into that a little further down. But the point I think to keep in mind is that you have to satisfy that constitutional standing and you have to that article three standing in order to move forward with these Helms-Burton Act cases. And courts are distinguishing between certified claims and uncertified claims when making that analysis.

Dave Dalton:

So things are starting to come a little more clear since the first couple of times we talked that's for sure, that's a nice segue. In these previous conversations, we talked about online booking companies. I got a note here, it says, "A Helms-Burton Act case involving an online booking company has been fully briefed." In case someone doesn't know, what does that mean and what's moving forward with that case?

Rick Puente:

Sure. There was a case here in the Southern district against these online reservation companies that was dismissed for lack of personal jurisdiction. In order to move forward with a case, you need standing, but you also need personal jurisdiction, right, over the entity and they're the company you can reserve online through an online platform that they had. The District Court found that that was not enough, you didn't even have to get to the Helms-Burton questions. That was not enough and they dismissed the case.

Rick Puente:

So that went to appeal in the 11th Circuit, by fully briefed, I mean that the parties have fully filed their written positions on the case before the 11th Circuit and then the 11th Circuit is going to make a decision. They may have oral arguments on these issues. They may also decide to address that concept that I mentioned earlier of subject matter jurisdiction. Even though that wasn't at all an issue in the court's decision on lack of personal jurisdiction. They may make a ruling on subject matter jurisdiction on the whole article three standing issue. That case does not involve a certified claim, it's an uncertified claim, so it's something also to pay attention to.

Dave Dalton:

All right, good enough. Another matter or another subject area, let's call it, we've talked about since these conversations started about a year and a half ago, cruise lines. San Diego docks v. Carnival. What has happened there? What's the update?

Rick Puente:

Basically, that one was interesting because it involved both a certified and uncertified claim that was dismissed because of the issue that Chris referred to earlier involving, you have to have owned the claim before the enactment of the Helms-Burton Act and it was dismissed on those grounds. And now on appeal, what's interesting is that the plaintiff who inherited, after March 12th 1996 has dropped the uncertified portion of the claim, which he had inherited from a cousin, but is trying to move forward with a certified portion of the claim which he had inherited from his uncle through that same cousin. And what's interesting there is that they're taking the position, they're being creative in saying that the Cuba Claim Settlement Act applies and he is standing in the shoes of the uncle essentially as a legal representative, and that allows him to move forward with the case. Especially against the cruise lines, they haven't responded yet but they'll have their brief probably filed in the next month or so.

Dave Dalton:

Okay. Because that's been forward. Just Rick, is the uncle deceased in this case?

Rick Puente:

Yes. Yes. He died in the early 1970s. He died in New York. He was apparently a tax lawyer from what I know and was published, and he had this certified claim involving the docks in Santiago that it was inherited by the cousin of the current plaintiff. And that cousin never became a US national, he died in Costa Rica. And then when he died, he had a non-certified claim and a certified claim which the plaintiff inherited. Allegedly... And that as well in the Costa Rican law. But in any event, now you have this plaintiff saying, "All right, I recognize the uncertified claim was problematic because that cousin of mine never became a US national and I inherited after March 12th, 1996, so I'm dropping that one. But now I'm going to move with a certified claim because my uncle was a US national and I stand in his shoes as a legal representative." We'll see what happens with that case.

Dave Dalton:

Yeah. Interesting. That's for certain. That's a twist. That's for sure, that's for sure. One more appeal case to talk about before we move on to District Court cases. 5th Circuit, I believe this is American Airlines again who we've talked about. A case pending, which involves a constitutional standing and statutory construction on timing of claim. This sounds familiar.

Chris Pace:

It should sound familiar, it's a case in which Jones Day is representing American Airlines. And I think the overall message here is, we have our first court of appeals ruling which is the Amazon case we've talked about. Now, there are several cases out there that are in the court of appeals that are making their way through the process. My guess is, by the time of our next podcast, we'll be here saying we've got several court of appeals rulings.

Chris Pace:

Given the novelty of Helms-Burton, having those court of appeals rulings is going to be very influential on the course of this litigation as it progresses, because when these cases were first filed, courts were looking at this statute for the very first time, some courts have been struggling with it, but now it looks like we've got one favorable for defense ruling from the 11th Circuit and several others that are in the works from dismissals that may turn out favorable. We certainly are hopeful in the case of the Glenn appeal in the 5th Circuit. That's the only appeal that's outside of the 5th Circuit. So there's several pending in the 11th Circuit, one outside and the 5th Circuit.

Dave Dalton:

Okay. Some traction and some momentum, hopefully. Right? So, okay. District Court cases, let's talk about those. Havana Docs, the cruise lines, Carnival and Norwegian MSC and Royal Caribbean certified claims activity, right? Who wants to take this one? Is this Rick or Chris?

Rick Puente:

Those cases, it goes back to the issue of standing. The District Court judge found that there was standing and distinguished the Glenn vs American Airlines case that we were successful on because it involves a certified claim from a company that has owned those docks since 1917, continuously owned those docks. It's a US company, it's a Delaware corporation, that's always been an existence. And those cases have been moving forward, they're engaged in discovery, production of documents, depositions that truly looking at the entire history of this company and the decision of the cruise lines to travel to Cuba and use these docks.

Rick Puente:

So there's some interesting discovery issues that have propped up in those cases, some of them going back to when the Helms-Burton Act was initially enacted and when that certified claim was obtained by this Delaware corporation back in the late 1960s, they got the certified claim establishing that they were the owners of the docks. So we're closely monitoring those cases, the discovery rulings are something we pay attention to. And then maybe there'll be a summary judgment motion filed once the discovery is completed, bringing forth the legal arguments after the close of discovery.

Dave Dalton:

When might that happen if it happens? Is this something could look forward to the next quarter or six months? A lot of history there it sounds like. When could that be resolved one way or the other?

Rick Puente:

That'll be some time, Dave, because you still have discovery going forward. The trial schedules have been postponed and moved towards the end of the year. And in the summary judgment world, you established questions of fact that would not be grounds to grant the summary judgment, sometimes judges hold on summary judgment until right before trial. So it'll be some time.

Dave Dalton:

Okay, good enough. Now this one caught my eye. You were kind enough to send these notes over to get us prepared this program. This is from the District Court of Columbia, ExxonMobil, the Cuban State owned entities. What's that all about?

Chris Pace:

Most of the Helms-Burton cases that have been filed have been filed against private companies such as an Amazon, such as an American Airlines, such as the online booking companies. Exxon took a different approach and Exxon sued directly some Cuban entity, some Cuban government owned entities. So, whereas in a lot of these other cases, you've got plaintiff suing American company, here you have American company suing the Cuban government, and the challenges that they're facing really are the Cuban government entities claiming that they've got immunity from suit or that they're not subject to jurisdiction in the district of DC. They have been fighting this case actually for a while.

Chris Pace:

When Helms-Burton cases first started being filing, Exxon was one of the first ones to file a Helms-Burton Act case. The expectation was, there might be other companies coming along the same lines. Exxon has one of the larger certified claims against the Cuban government, but there's several other companies that have comparable, including at least one company that has a larger claim than Exxon. So the thought was, maybe we'd see all those companies pile on and start suing the Cuban government. It hasn't happened, it turns out that it's only been Exxon thus far and the court in the district of Columbia has been trying to tackle this threshold issue of whether the court can even go forward with the litigation because of Foreign Sovereign Immunity Act issues and personal jurisdiction issues.

Dave Dalton:

Interesting too. And in fact, if I can go back to Rick for a second. Rick, we were talking earlier getting ready for this program. You mentioned something about a case involving a German company relevant to the issue of international law and domestic takings. This ties to the Exxon case, right? There's a relationship there and there's some parallel we ought to talk about, right?

Rick Puente:

Well, I raised it because, what's interesting there is that the defendant State owned entities, the Cuban State owned companies raised this recent Supreme Court case called Phillips versus Republic of Germany, which involved the stolen artwork during the Nazi era. But the artwork was expropriated from citizens, domestic citizens, not foreign companies or foreigners. And in this case, they went all the way to the US Supreme Court on whether Germany was liable under that Foreign Sovereign Immunities Act where there's an exception for expropriations.

Rick Puente:

And expropriations, Dave, goes back to what I mentioned earlier in international law concepts, the issue of taking a confiscation from a foreigner that's in your jurisdiction, right? So if the German governments had taken from US companies, that would trigger international law, and if they take from actual German citizens, it doesn't trigger international law. So that exception to the Foreign Sovereign Immunity Act would not apply. The US Supreme Court said there that a human rights violation or genocide is not what you look at to determine whether the expropriation exception would apply. You look at the law of property and whether that property was taken from a foreign or domestic person.

Rick Puente:

So the defendant, Cuban State owned entities filed that case in the Exxon case as authority saying, "Hey, actually Exxon, what got taken from them was only through the subsidiaries that were Cuban entities." And Exxon is saying, "No, no, that's nonsense." They turned around and used that case actually saying that it helps them because they were the main shareholders of those entities. One of was a Panamanian entity, but it was owned by Exxon, at the time it was called Standard Oil before it became Exxon. Right? And so, they're taking the position that, that Phillips versus Republic of Germany is actually helpful because it recognizes the distinction. If it's a foreign company that had the property taken, international law does apply. There is a violation of international law and the expropriation exception of the Foreign Sovereign Immunities Act gives jurisdiction to Exxon.

Rick Puente:

So it depends on how you view it. Are these Cuban companies that were owned by the predecessor of Chevron foreigners, right? Because they're the main shareholders, are they foreigners or not? And under international law, you typically see this in the international arbitration cases, you'll have a domestic company that's owned by a foreign company and that's enough to kick in the treaty because that's considered essentially a foreign shareholder. So it's really pretty simple if you boil it down, but it can get a little complicated depending on how you present it and the facts surrounding the confiscation.

Dave Dalton:

Sure. All right. Two more cases to talk about before we do a little crystal ball gazing in regard to what the Biden administration might do. I've got a note here, North American Sugar versus various shipping companies, and this involves a wind farm. See, there's always an environmental tie in somewhere around here, but a wind farm in Cuba. What's the background on this case and where might it be going?

Chris Pace:

Well, the background on the case is that there are in Cuba right now, some windmills for generating electricity. There is no place in Cuba where you can manufacture those wind turbines, right, they have to buy them internationally. And so, these were wind turbines that were... I'm going to call them mills, that's probably not the right word, but the wind mills. They were purchased internationally that were then shipped into Cuba. The lawsuit is over that they came through a certain port that somebody claims they had ownership interest and that they're being operated in a certain land that somebody claimed they used to have an ownership interest in. The interesting little twist in this one was, these are all non-US companies that were being sued with one exception, mostly non-US companies. And the only connection of anything here to the US is that the wind turbines, on their way from Europe to Cuba, stopped very briefly in a Miami port and they're saying that's enough to have jurisdiction in the US courts.

Chris Pace:

So right now, they have been fighting over jurisdictional issues in the Southern district of Florida. The plaintiff actually filed additional lawsuits, the same underlying lawsuit, but they filed backup lawsuits in the Southern district of Texas and in the district of New Jersey. They're trying to find which court is going to accept personal jurisdiction over some of these parties. They have Chinese owned entities, they have European owned entities and they've got only one US owned entity. And so, that's all being fought out and the fact that they're conducting a jurisdictional related discovery right now. So that could be another one of the cases where it's resolved on a procedural basis as opposed to ever really having to get to the merits of the Helms-Burton Act claim.

Dave Dalton:

All right, let's wrap up with this. There have been a couple cases filed since president Biden took office late in January, too notably, Rick. What can you tell us about what has been filed in the last six weeks?

Rick Puente:

Yes. So we had one filed in Eastern district of Louisiana, New Orleans, involving the Port of Mariel. And it's an uncertified claim and it's against a shipping company, AP Maersk, European shipping company, that they're trying to tie in that European company by saying that they do a lot of business in the United States, but those are the preliminary allegations. As you know, Dave, there's also a blocking statute, so that could have some implications, so we're monitoring that one as well. And then there's another one that was filed in again, under the 5th Circuit, in the other district of Texas involving a zinc and lead mining operation called the Minas de Matatambre, which was a very large operation in Cuba that was confiscated. Apparently these are heirs, it's not a certified claim. It was apparently fully owned by Cuban companies and Cuban shareholders, and these are the heirs to those shareholders.

Rick Puente:

In its very preliminary stage, it's also against some companies. One of them I believe is in Singapore and some US related subsidiaries were brought into the case, so we're monitoring that one as well. One little thing that I do want to mention on the blocking statute, because there has been one development there that I think is worth noting. The blocking statute, as you'll recall, it's legislation passed by the European union that penalizes compliance with the Helms-Burton Act. So if you get sued, to defend the case and you're a European company, you have to go to the EU and seek guidance and permission to defend the case. And that's for instance, what a hotel company has done called The Barrel Stars that was sued in one of the cases here. And that case, the European Union has been reporting on a monthly basis. The European Union has not taken any action saying that there's COVID and that they're monitoring the situation, but they're getting more information. They've been very slow.

Rick Puente:

Interestingly, another one involving a British company, Imperial Brands, a cigar brand based in the UK. UK left the European Union through Brexit, but they initially filed their requests for guidance and to permit them to defend the lawsuit with the European Union. But now, they also filed it following Brexit with the UK, with a special branch that the UK has. And just recently, the UK entered an order, allowing them to defend the lawsuit, to file the motion to dismiss. It's limited just to the motion to dismiss at this stage. So they have filed a motion to dismiss and we'll see, that's another one to monitor as well.

Dave Dalton:

No doubt. I'm glad we do these at least quarterly and there's so much activity that may not be enough, but I know you also do Jones Day publications and so forth. There's just so much to track and stay current with. I don't know how you guys do it but I'm glad you do, and the information here is always good. Let's wrap up with this, new administration, we're about six weeks in and no one knows for sure, but you've got to have some hunches, or suspicions or inclinations. What can you expect from the Joe Biden administration?

Chris Pace:

The first thing we're anticipating, we very referenced some of this is that the Cuba being designated as a State sponsor of terrorism is probably not likely to endure. It happened at the very end of the Trump administration, so it didn't even exist for most of the Trump administration, probably not going to continue. There is a good chance that something will be done on the Helms-Burton Act, now it could be as simple as the president re-suspending bringing lawsuits. In fact, one of the reasons a few lawsuits have been filed recently is we believe private parties are concerned and that's exactly what President Biden will do. Under the statute, the president can suspend people bringing new claims, it doesn't affect the claims already filed. So, some people are trying to rush the court before President Biden does anything. There may be some legislative action, but I think with this Congress, it's really hard to predict.

Chris Pace:

When it comes to Cuba, there are certain, obviously a political issue and people who have to worry about carrying the day in Florida. Florida still plays a big role in presidential elections and it plays a big role in national elections. Some people want to be careful about how they deal with Cuba issues as a result. So things don't move too fast, at least not in the direction of opening up economic relations with Cuba. And then the last issue is, as Rick already mentioned, Cuba and Venezuela right now are a little bit tied together. There's a connection there, particularly with Cuban assistance on police matters in Venezuela. So, as long as Venezuela is in the situation it's in, which is a tenuous one, Cuba is going to be in a tenuous relationship as well.

Chris Pace:

So the president has got some real complicated issues to deal with. It's unlikely he's going to deal with Cuba as harshly or aggressively as President Trump and it's more likely that he will be aligned closer with his former colleague, President Obama, but it's also unlikely he's going to go all the way back to where we were in 2015 with President Obama trying to really open up Cuban policy. We're likely going to be stuck in the middle somewhere for the foreseeable future.

Dave Dalton:

Well said. Rick, I'll give you the last word. Anything you want to add to what Chris brought us?

Rick Puente:

Chris summarized it very nicely. I think we may see some executive order, easing travel restrictions and maybe remittances to Cuba that will probably be followed by an amendment of the Cuban Asset Control Regulations by OFAC. But that's where I see it and we may see some more lawsuits being filed.

Dave Dalton:

Terrific. Rick, Chris, we'll leave it right there. Great job. Thank you so much for being here. We will talk to you for sure, next quarter and do another roundup and update. But of course, if anything breaks or moves more quickly, we'll get together again and do another program before then. So, thanks so much for being here today.

Chris Pace:

Fantastic. Thanks Dave.

Rick Puente:

Thank you, Dave.

Dave Dalton:

See y'all. Take care.

Dave Dalton:

To find complete biographies and contact information for Rick and Chris, please visit jonesday.com. And as always, while you're there, check out our insights page where you'll find more podcasts, videos, newsletters, white papers, blogs and other valuable information. Subscribe to Jones Day Talks at Apple podcasts and wherever else podcasts we're found. As always, we thank you for listening. I'm Dave Dalton, we'll talk to you next time.

Narrator:

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