Republic of Ecuador v. Dassum
255 So. 3d 390
| Fla. Dist. Ct. App. | 2017Background
- Filanbanco (Ecuadorian bank) went into restructuring on December 2, 1998; Deloitte reported $661.5 million losses as of that date.
- Ecuador enacted Article 29 (2002) making administrators who falsified technical equity personally liable for deposits; Ecuadorian agencies (JB-1084, SBS-185) approved the Deloitte Report.
- On July 8, 2008, Ecuador’s Deposit Guarantee Agency (AGD) issued AGD-12, naming Roberto and William Isaias as liable administrators and ordering seizure of their assets — an act of state establishing liability.
- AGD (later substituted by the Republic of Ecuador) sued the Isaiases in Miami-Dade County on April 29, 2009, seeking monetary recovery for Filanbanco’s losses; the Isaiases raised multiple defenses and counterclaims.
- The trial court entered judgment for the Isaiases, finding lack of standing and that the suit was time-barred; the Third District reversed, holding standing was waived, the act of state establishes liability as of July 8, 2008, and remanding solely for a trial on damages.
Issues
| Issue | Plaintiff's Argument (Republic) | Defendant's Argument (Isaiases) | Held |
|---|---|---|---|
| Standing to sue (substitution of Republic for AGD) | Republic had authority as successor and was properly substituted; standing existed. | Republic lacked standing because it did not prove assumption of AGD’s rights. | Waiver: Isaiases failed to plead lack of standing; trial court erred to dismiss on that ground. |
| Statute of limitations accrual date | Liability accrued on July 8, 2008 (AGD-12); suit filed April 29, 2009, within limitations. | Liability accrued by Dec. 2, 1998; claim was time-barred. | Accrual is July 8, 2008 because AGD-12 (act of state) fixed liability; trial court erred in using 1998 date. |
| Application of act of state doctrine / extraterritorial exception | AGD-12 is an act of state; U.S. courts must respect it; thus cannot re‑litigate liability. | Claimed extraterritoriality/confiscation exception might allow U.S. court to review validity. | Act of state doctrine applies; court may not invalidate AGD-12; extraterritorial exception does not defeat AGD-12 here. |
| Scope of remand / required proof at trial | Only damages (amount owed) remain to be proven in U.S. court; liability already established by AGD-12. | Argued Isaias I required proving liability and damages on remand. | Remand limited to damages only; Isaias I’s reference to “validity” concerned amounts remaining, not underlying liability. |
Key Cases Cited
- Republic of Ecuador v. Isaias Dassum, 146 So. 3d 58 (Fla. 3d DCA 2015) (prior appellate decision reversing summary judgment and addressing extraterritoriality issue)
- W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l., 493 U.S. 400 (1990) (act of state doctrine bars U.S. courts from questioning official acts of foreign sovereign within its territory)
- Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (seminal exposition of act of state doctrine)
- Ricaud v. American Metal Co., 246 U.S. 304 (1918) (statement on foreign sovereign acts as rules of decision)
- Republic of Austria v. Altmann, 541 U.S. 677 (2004) (discussion of act of state and presumption of validity for foreign official acts)
- FOGADE v. ENB Revocable Tr., 263 F.3d 1274 (11th Cir. 2001) (applying act of state to bar challenges to foreign agency intervention)
- Tchacosh Co. v. Rockwell Int’l Corp., 766 F.2d 1333 (9th Cir. 1985) (describing extraterritorial exception to act of state doctrine)