ROBERT M. GLEN v. TRIPADVISOR LLC, TRIPADVISOR, INC., ORBITZ, LLC, TRIP NETWORK, INC. D/B/A CHEAPTICKETS, KAYAK SOFTWARE CORPORATION, BOOKING HOLDINGS, INC., EXPEDIA, INC., EXPEDIA GROUP, INC., HOTEL.COM, L.P., HOTEL.COM, GP, LLC, AND TRAVELSCAPE LLC D/B/A TRAVELOCITY; ROBERT M. GLEN v. VISA INC., VISA U.S.A. INC., VISA INTERNATIONAL SERVICE ASSOCIATION, MASTERCARD INCORPORATED, AND MASTERCARD INTERNATIONAL INCORPORATED
C.A. No. 19-1809-LPS; C.A. No. 19-1870-LPS
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
March 30, 2021
STARK, U.S. District Judge
PageID #: 1129
Craig A. Boneau, Ryan M. Goldstein, and Scott Saldana, REID COLLINS & TSAI LLP, Austin, TX
Attorneys for Plaintiff
Jonathan A. Choa, POTTER ANDERSON & CORROON LLP, Wilmington, DE
Sean Haran, Jacob Gardener, and Derek Borchardt, WALDEN MACHT & HARAN LLP, New York, NY
Attorneys for Defendants Tripadvisor LLC and Tripadvisor, Inc.
John P. DiTomo, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE
Michael A. Duffy and Michael C. McCutcheon, BAKER MCKENZIE LLP, Chicago, IL
L. Andrew S. Riccio, BAKER MCKENZIE LLP, New York, NY
Attorneys for Defendants Kayak Software Corporation and Booking Holdings Inc.
Beth Moskow-Schnoll and Brittany M. Giusini, BALLARD SPAHR LLP, Wilmington, DE
David D. Shank, Cheryl Joseph, and Jane Webre, SCOTT DOUGLASS & MCCONNICO LLP, Austin, TX
Attorneys for Defendants Orbitz, LLC, Trip Network, Inc. d/b/a CheapTickets, Expedia, Inc., Expedia Group, Inc., Hotels.com, L.P., Hotels.com GP, LLC, and Travelscape LLC d/b/a Travelocity
Beth Moskow-Schnoll and Brittany M. Giusini, BALLARD SPAHR LLP, Wilmington, DE
Martin Domb, AKERMAN LLP, New York, NY
Augusto E. Maxwell, AKERMAN LLP, Miami, FL
Attorneys for Defendants Visa Inc., Visa U.S.A. Inc., and Visa International Service Association
Robert S. Brady, Kevin A. Guerke, and Michael S. Neiburg, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE
Nicholas P. Crowell, SIDLEY AUSTIN LLP, New York, NY
Kwaku A. Akowuah, David W. McAloon, and Emmanuel Hampton, SIDLEY AUSTIN LLP, Washington, DC
Attorneys for Defendants Mastercard Incorporated and Mastercard International Incorporated
Carmella P. Keener, COOCH AND TAYLOR, P.A., Wilmington, DE
Samuel J. Dubbin, DUBBIN & KRAVETZ, LLP, Coral Gables, FL
Attorneys for Amici Curiae Dan Burton and Robert Torricelli
March 30, 2021
Wilmington, Delaware
MEMORANDUM OPINION
STARK, U.S. District Judge:
Pending before the Court are Defendants Tripadvisor LLC and Tripadvisor, Inc. (collectively, “Tripadvisor“), Kayak Software Corporation and Booking Holdings Inc. (collectively, “Booking“), Orbitz, LLC, Trip Network, Inc. d/b/a CheapTickets, Expedia, Inc., Expedia Group, Inc., Hotels.com, L.P., Hotels.com GP, LLC, and Travelscape LLC d/b/a Travelocity (collectively, “Expedia“), Visa Inc., Visa U.S.A. Inc., and Visa International Service Association (collectively, “Visa“), and Mastercard Incorporated and Mastercard International Incorporated‘s (collectively, “Mastercard“) motions to dismiss, filed pursuant to
For the reasons stated below, the Court will grant Defendants’ motions to dismiss.
I. BACKGROUND
Glen is a naturalized citizen of the United States. (D.I. 33 ¶ 11) In the late 1950s, Glen‘s mother and aunt owned two contiguous plots of beachfront land (“the Subject Properties“)
located in Varadero, Cuba. (Id. ¶¶ 37-48) In connection with the Cuban revolution, the communist Cuban government confiscated the Subject Properties. (Id. ¶ 49) When Glen‘s aunt and mother died in 1999 and 2011, respectively, their claims to the Subject Properties passed solely to Glen by inheritance. (Id. ¶ 51) The Subject Properties have been used for beachfront hotels (“the Subject Hotels“) since at least 1996. (Id. ¶ 53) The Cuban government maintains possession of the Subject Properties, and worked with hotel chains to build, develop, and operate the Subject Hotels on the Subject Properties, without paying any compensation to Glen or his family. (Id. ¶¶ 54, 55)
Defendants Tripadvisor, Booking, and Expedia operate travel booking websites; they profit when website users book guestrooms at the hotels listed on these Defendants’ websites. (Id. ¶¶ 66, 80, 114, 115, 121, 122, 124) Within the two years prior to the filing of this action, these Defendants provided online booking services for the Subject Hotels in Cuba. Travelers could book guestrooms at the Subject Hotels via these Defendants’ websites. (Id. ¶¶ 101-110, 119, 120, 130-32)
Defendants Visa and Mastercard operate cross-border payment networks and earn a fee when merchants utilize their network services to complete business transactions. (C.A. No. 19-1870 D.I. 24 ¶¶ 58-65) These Defendants offered network services to merchants in Cuba, including the Subject Hotels. (Id. ¶¶ 66-67) The guests of the Subject Hotels were able to pay for stays using credit cards branded by these Defendants. (Id. ¶¶ 68-70) These Defendants collected fees derived from these uses of credit cards. (Id.)
Glen initiated the two instant civil actions on September 26 and October 4, 2019, respectively. He filed the operative complaints on March 16, 2020. In those complaints, Glen asserts a single cause of action against Defendants under the Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1996 (“Helms-Burton Act“),
Defendants filed the pending motions to dismiss on May 11, 2020. After briefing was completed, on August 3, 2020 the United States District Court for the Northern District of Texas issued a decision in Glen v. Am. Airlines, Inc., No. 4:20-cv-482-A D.I. 93 (“Glen I“), dismissing
II. LEGAL STANDARDS
A. Issue Preclusion (Also Known As “Collateral Estoppel“)
“[W]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 148 (2015) (internal citation omitted).
Under Third Circuit law, issue preclusion applies when “(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action.” Jean Alexander Cosmetics, Inc. v. L‘Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006) (internal citation omitted). The party asserting issue preclusion bears the burden of proving its applicability to the case at hand. See Greenway Ctr., Inc. v. Essex Ins. Co., 475 F.3d 139, 147 (3d Cir. 2007).
Under the doctrine of non-mutual issue preclusion, a litigant “may [] be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary.” Peloro v. United States, 488 F.3d 163, 175 (3d Cir. 2007). “For defensive collateral estoppel - a form of non-mutual issue preclusion - to apply, the party to be precluded must have had a ‘full and fair’ opportunity to litigate the issue in the first action.” Id. (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 328 (1979)).
B. Article III Standing
The “irreducible constitutional minimum” of standing consists of three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The “[f]irst and foremost” of standing‘s three elements is “injury in fact.” Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 103 (1998). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560).
C.
D. Motion To Dismiss Under Federal Rule Of Civil Procedure 12(b)(6)
Evaluating a motion to dismiss under
However, “[t]o survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).‘” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At bottom, “[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element” of a plaintiff‘s claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).
The Court is not obligated to accept as true “bald assertions,” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), “unsupported conclusions and unwarranted inferences,” Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are “self-evidently false,” Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).
III. DISCUSSION
A. Issue Preclusion
In Glen I, the United States District Court for the Northern District of Texas granted American Airlines’ motion to dismiss because (i) Glen did not have Article III standing to sue; (ii) Glen failed to allege acquisition of his claim before the statutory bar date of
In their supplemental briefs, Defendants contend that Glen is “precluded from relitigating the same Helms-Burton Act issues that were previously decided against him.” (D.I. 62 at 1) In response, Glen asserts several bases on which issue preclusion should not apply, including (i) issue preclusion should not apply to non-jurisdictional issues in this case; (ii) the issues in this case are different from those in Glen I; and (iii) Glen I was wrongly decided and is now on appeal. (See D.I. 63, 64)
The Court agrees with Glen that he is not precluded here from relitigating the issues decided in Glen I.
1. Applicability of issue preclusion to non-jurisdictional issues
Under Third Circuit law, when litigants raise multiple issues that are potentially dispositive of a case, a court‘s independently sufficient alternative findings may be given preclusive effect, even though each of the alternative findings is technically not “essential” to the final judgment. See Jean Alexander, 458 F.3d at 254-55. However, when a court determines that it lacks jurisdiction to hear the plaintiff‘s claims, “any findings made with respect to the merit of those claims are not essential to the judgment and cannot support the application of collateral estoppel.” Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 126 F.3d 461, 475 (3d Cir. 1997). The Jean Alexander decision did not displace the holdings of Hawksbill Sea Turtle because the Jean Alexander Court explicitly recognized that it was not considering a case involving jurisdictional issues. See Jean Alexander, 458 F.3d at 253 (“Here, both of the TTAB‘s alternative holdings related to the merits of the cancellation action, and there was no doubt as to the Board‘s power to rule on both. Consequently, Hawksbill Sea Turtle does not control.“).
Hence, since the Glen I Court determined that it lacked subject matter jurisdiction, see 2020 WL 4464665, at *3, its findings with respect to the non-jurisdictional issues - including
Glen‘s failure to acquire his claim before the statutory bar date and his failure to allege scienter – do not preclude Glen from relitigating these issues in this case.
2. Applicability of issue preclusion to Article III standing
Neither Hawksbill Sea Turtle nor Jean Alexander prevent the Court from giving preclusive effect to the standing issue decided in Glen I.4 Glen does not dispute that the standing issue was actually litigated, and that he was fully represented in Glen I.5 However, Glen contends that this Court should perform an independent analysis rather than applying issue preclusion because (i) the alleged injury in this case is not identical to that litigated in Glen I6 (see D.I. 64 at 2), and (ii) the
With respect to the identicality of injury in fact, the Court is not persuaded that the injury alleged in this case is materially different from that alleged in Glen I. Glen concedes that the injury he allegedly suffers here due to the actions of Tripadvisor, Booking, and Expedia is the same injury he alleged in Glen I, but he contends the injury is different as to Mastercard and Visa, as his claim against them “isn‘t about booking.” (Tr. at 35) However, in both Glen I and this action, Glen has alleged the same injury, namely, that without his authorization or providing
compensation to him, Defendants - including Mastercard and Visa - “have knowingly trafficked in the Glen Properties by engaging in commercial activity using or otherwise benefiting from the confiscated property.” (C.A. No. 19-1870 D.I. 24 at ¶¶ 77-83; see also Glen I D.I. 47 at ¶¶ 164-70) Glen has not alleged any distinct injury inflicted by the credit card company defendants that is not also allegedly inflicted by the booking agency defendants.7
Turning to the finality issue, there is “no bright-line rule” under Third Circuit law regarding what constitutes a “final judgment” for issue preclusion. Free Speech Coalition, Inc. v. Att‘y Gen. of the United States, 677 F.3d 519, 541 (3d Cir. 2012). Instead, the law requires that a prior adjudication of an issue in another action must be “sufficiently firm” to be accorded preclusive effect. Id. Factors that courts consider when determining whether the prior determination was “sufficiently firm” include: “whether the parties were fully heard, whether a reasoned opinion was filed, and whether that decision could have been, or actually was, appealed.” Id. (quoting In re Brown, 951 F.2d 564, 569 (3d Cir. 1991)). Essentially, finality “may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.” Dyndul v. Dyndul, 620 F.2d 409, 412 n.8 (3d Cir. 1980) (quoting Lummus Co. v. Commonwealth Oil Ref. Co., 297 F.2d 80, 89 (2d Cir. 1961)).
In the Court‘s view, the determination of the standing issue in Glen I falls short of being “sufficiently firm” for the purpose of issue preclusion. After Glen I was decided, the issue of
standing in actions brought under the Helms-Burton Act was considered in multiple other cases, and the courts addressing the issue uniformly reached the opposite conclusion, finding that the plaintiffs in the subsequent cases had Article III standing. See, e.g., Havana Docks Corp. v. Carnival Corp., 2020 WL 5517590, at *8 (S.D. Fla. Sept. 14, 2020); Havana Docks Corp. v. MSC Cruises SA Co., 484 F. Supp. 3d 1177, 1190-95 (S.D. Fla. 2020); Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 484 F. Supp. 3d 1212, 1226-31 (S.D. Fla. 2020); Iglesias v. Ricard, 2020 U.S. Dist. LEXIS 164117, at *25-29 (S.D. Fla. Aug. 17, 2020). Although Glen I and the subsequent cases bear some factual distinctions, the inconsistent rulings suggest, at the least, that the issue of whether the plaintiff has Article
That Glen has appealed the Glen I decision, although not dispositive on the question of finality, further weighs against the application of issue preclusion. See Sound View Innovations, LLC v. Walmart Inc., 2019 WL 7067056, at *4 (D. Del. Dec. 23, 2019), report and recommendation adopted, 2020 WL 136864 (D. Del. Jan. 13, 2020) (finding that possible appellate reversal, combined with unsettled state of law, weighs against application of issue preclusion). While a prior decision may be treated as issue preclusive even when it is on appeal, doing so could “create later problems if a first judgment, relied on in a second proceeding, is reversed on appeal.” United States v. 5 Unlabeled Boxes, 572 F.3d 169, 175 (3d Cir. 2009); see also Luben Indus., Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir. 1983) (finding that
interlocutory order did not give rise to collateral estoppel on tax code interpretation when government had not been given opportunity to appeal).
In sum, the standing issue here is not one that the Court “sees no really good reason for permitting it to be litigated again.” Dyndul, 620 F.2d at 412 n.8. Hence, Glen is not precluded from relitigating the standing in this action.
3. Article III standing
Defendants contend that Glen does not have Article III standing because he has failed to allege any concrete injury that is fairly traceable to Defendants’ conduct. (See, e.g., D.I. 37 at 5-8) According to Defendants, the only injury Glen could have asserted is the confiscation of the Subject Properties, which is traceable to the Cuban government, not Defendants. (See id.) Defendants also argue that since Glen did not have an ownership interest in the Subject Properties, he cannot claim that he was harmed by the alleged commercial exploitation (or “trafficking“) of the Subject Properties by Defendants. (See D.I. 41 at 7)9
Glen does not dispute that he did not suffer a tangible injury.10 However, Glen contends that the intangible injury he has alleged in the operative complaints - Defendants’ trafficking in the Subject Properties without his authorization and without making any payment of
compensation to him - satisfies the requirements for Article III standing. (See D.I. 43 at 13) The Court agrees with Glen.
An injury does not have to be “tangible” in order to be “concrete.” Horizon, 846 F.3d at 637. There are two tests for whether an intangible injury is “concrete.” The first asks whether “‘an alleged
In enacting the Helms-Burton Act, Congress has expressed an intent to make Glen‘s alleged injury redressable. Congress explicitly recognized that the legal system “lacks fully effective remedies for... unjust enrichment from the use of wrongfully confiscated property by governments and private entities at the expense of the rightful owners of the property.”
contrary to Defendants’ contention (see D.I. 41 at 7), although Glen was not the legal owner of the Subject Properties, the legally cognizable right provided by the Helms-Burton Act to the “rightful owners” of properties like the Subject Properties allows Glen to assert a concrete injury based on Defendants’ alleged “trafficking” in the Subject Properties. Moreover, his alleged injury satisfies the particularity requirement because it is entirely personal to Glen‘s interest in his claim to the Subject Properties. The alleged injury also satisfies the actuality requirement because “both the challenged conduct and the attendant injury have already occurred.” Robins v. Spokeo, Inc., 867 F.3d 1108, 1118 (9th Cir. 2017).
Glen‘s alleged injury is fairly traceable to Defendants’ conduct. Since Glen alleges he was harmed by Defendants’ trafficking in the Subject Properties without his authorization or paying compensation to him, it follows that he would not have been harmed if Defendants had not trafficked in the Subject Properties. The chain of causation is also supported by the legislative findings in the Helms-Burton Act. See Spokeo, 136 S. Ct. at 1549 (“Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.“) (internal citation omitted). In enacting Title III of the Helms-Burton Act, Congress did not intend for the causal link to stop at the Cuban government‘s confiscation. Instead, it observed that the rightful owners’ injury stemmed from both the
Also, Glen‘s alleged injury can be redressed by a favorable judgment. A favorable judgment would entitle Glen to money damages as specified in the Helms-Burton Act (see
In sum, at this stage, Glen has met his burden of establishing injury in fact, causation, and redressability, as required for Article III standing. Hence, the Court will not dismiss the action for lack of subject matter jurisdiction under
B. Failure To State A Claim
Defendants contend that the Court should dismiss this case for failure to state a claim because, inter alia, Glen has failed to plausibly allege that (i) he acquired the claim to the Subject Properties before March 12, 1996, as required by
1. Acquisition of Subject Properties before March 12, 1996
Defendants argue that the Court should dismiss this case because Glen did not acquire his claim to the Subject Properties before March 12, 1996. (See, e.g., id. at 8) The relevant provision of the Helms-Burton Act provides:
In the case of property confiscated before March 12, 1996, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before March 12, 1996.
inheritance. (See D.I. 43 at 19; see also D.I. 33 at ¶ 51) The Court agrees with Defendants that Glen‘s action is barred and he has, therefore, failed to state a claim on which relief may be granted.
Glen‘s contention that acquiring a claim by inheritance is an exception to the statute‘s requirement that actionable claims must be acquired before March 12, 1996 is inconsistent with the unambiguous language of the statute. On its face, the statute is clear that no United States national may bring an action unless he acquired ownership of the claim before March 12, 1996. The statute makes no distinctions with respect to the method of acquiring the claim. The statue is also clear that the United States national who acquired the ownership of the claim must be the same United States national who brings the action, not the predecessor of the United States national who brings the action.
Glen urges the Court to read the word “acquire” as meaning “to get by one‘s own efforts,” which would result in the statutory term “acquire” not including “passively inherit[ing] the claim.” (D.I. 43 at 20-21) Even assuming there were ambiguity in the word “acquire” (and the Court does not believe there is), the Court would not adopt Glen‘s proposed interpretation because it is inconsistent with the interpretation given to the statute by the United States Department of Justice, to which the Court would defer. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.“).
In the published notice summarizing the provisions of Title III of the Helms-Burton Act, the Department of Justice stated that “[u]nder section 302(a)(4) [codified as
Glen and amici also contend that interpreting the statute in a way that bars Glen‘s action would lead to an “absurd result” that “contravenes the [Helms-Burton] Act‘s language, context, and legislative intent.” (D.I. 43 at 19-25) In the context of statutory construction, an absurd interpretation is one that defies rationality or renders the statute nonsensical and superfluous. See Riccio v. Sentry Credit, Inc., 954 F.3d 582, 588 (3d Cir. 2020); see also United States v. Beskrone, 620 B.R. 73, 84-85 (D. Del. 2020) (“The application of the statutory language does not result [] in an outcome that can truly be characterized as absurd, i.e., that is so gross as to shock the general moral or common sense.“) (internal quotation marks and citation omitted); Hutchins v. Bayer Corp., 2009 WL 192468, at *6 (D. Del. Jan. 23, 2009) (“[E]ven an unreasonable result may not ‘sink to the level’ of ‘absurd’ or ‘bizarre.‘“). The Court‘s plain language interpretation does not sink to such levels. According to Glen and amici, the Helms-Burton Act was drafted with the intention “to eliminate any incentive that might otherwise exist to transfer claims to confiscated property to U.S. nationals in order to take advantage of the remedy created by this section.” (D.I. 43 at 22-23) Amici further assert that “[a] claim inherited
from a family member was never at issue.” (D.I. 44-1 at 7) However, the surrounding statutory language suggests that “[eliminating the] marketplace for the buying and selling of Title III claims” may not be the only reason why the statute was so drafted. (See id.) If Congress had solely intended to eliminate the incentive for claim transactions, it could have drafted
Therefore, although the interpretation based on the plain language of the statute would, to some extent, “curtail [Congress‘] own stated desire for claimants to seek redress in U.S. courts and hold traffickers accountable for their unlawful conduct” (D.I. 43 at 22), the Court does not
find that to be an absurd result. It may not be what Congress intended or desired and it may be difficult to understand. Still, “[a]s long as Congress could have any conceivable justification for a result – even if the result carries negative consequences – that result cannot be absurd.” Riccio, 954 F.3d at 588.
Here, conceivable justifications for the date-of-acquisition requirement exist. For example, judicial economy. By barring post-enactment transfers of existing claims for properties confiscated before the enactment date, Congress limited the extent to which federal courts will need to delve into intricacies of state inheritance laws and complexities of foreign law that could be implicated by the need to determine whether plaintiffs truly “own the claim” to a property at issue. (See D.I. 48 at 5; see also Tr. at 73-75) Congress minimized the chances that federal courts will have to confront competing claims and difficult to obtain (if even existing) records. (See Tr. at 82) Also, Congress may have wanted to cap the number of claims that could possibly be brought, or may have felt that generations removed from the direct confiscation were not sufficiently harmed by trafficking in a way that should be remediated through a private cause of action for damages. Of course, the time bar of the statute also helps prevent a market arising for the claims - a debatable but not absurd policy goal.
“[L]egislative history can never defeat unambiguous statutory text.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1750 (2020). Where, as here, Congress adopted statutory language with “plain and settled meanings,” “a court‘s job is at an end,” because “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.” Id. at 1743, 1749.
Hence, consistent with every other court that has considered the issue, this Court will dismiss Glen‘s actions because the statute requires that he acquire the ownership of the claim to
the Subject Properties before March 12, 1996, something he has failed to plausibly allege. See, e.g., Gonzalez v. Amazon.com, Inc., 835 F. App‘x 1011, 1011-12 (11th Cir. 2021); Garcia-Bengochea v. Royal Caribbean Cruises, Ltd., 2020 WL 6081658, at *3 (S.D. Fla. Oct. 15, 2020); Glen I, 2020 WL 4464665, at *4; Garcia-Bengochea v. Carnival Corp., 2020 WL 4590825, at *4 (S.D. Fla. July 9, 2020); Gonzalez v. Amazon.com, Inc., 2020 WL 2323032, at *2 (S.D. Fla. May 11, 2020); Del Valle v. Trivago GmbH, 2020 WL 2733729, at *5 n.2 (S.D. Fla. May 26, 2020) (holding that amended complaint would be futile because plaintiff inherited claim after March 12, 1996); Iglesias, 2020 U.S. Dist. LEXIS 164117, at *35 n.11 (requiring plaintiff to prove in amended complaint that interest was transferred or vested prior to March 12, 1996).
Given the Court‘s conclusions, amendment of the complaints would be futile. There is no dispute that the Subject Properties were confiscated before March 12, 1996, and that Glen acquired ownership of his claim to the Subject Properties after March 12, 1996 (D.I. 33 at ¶¶ 49, 51). He cannot plausibly allege otherwise. Therefore, the Court‘s dismissal will be with prejudice.
2. Scienter
Defendants contend that Glen has also failed to allege facts that could give rise to a reasonable inference that Defendants knowingly and intentionally engaged in one of the three types of activities described in subsection (A) of the Helms-Burton Act‘s definition of “traffics.”15 (See, e.g., D.I. 37 at 12; see also
to Defendants, the operative complaints do not contain allegations that Defendants knew that the Subject Hotels sit on “confiscated” properties. (See D.I. 37 at 13; see also D.I. 33 at ¶ 137)
In response, Glen first argues that the definition of the term “traffics” only requires that Defendants knowingly and intentionally engage in commercial activities, and does not also require that Defendants know that the Subject Hotels sit on confiscated properties. (See D.I. 43 at 26-27) The Court disagrees with Glen. Instead, the Court finds persuasive the analyses of numerous other courts that have interpreted statutes having specific knowledge requirements as requiring knowledge of all the elements listed in the statute.16 Also persuasive are the recent
(i) sells, transfers, distributes, dispenses, brokers, manages, or otherwise disposes of confiscated property, or purchases, leases, receives, possesses, obtains control of, manages, uses, or otherwise acquires or holds an interest in confiscated property,
(ii) engages in a commercial activity using or otherwise benefiting from confiscated property, or
(iii) causes, directs, participates in, or profits from, trafficking (as described in clause (i) or (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii)) through another person, without the authorization of any United States national
who holds a claim to the property.
Glen argues that finding a requirement for specific knowledge of confiscation is untenable as subpart (iii) does not even mention “confiscated property.” (D.I. 43 at 28 n.20) But Glen neglects that the interpretation of subpart (iii) necessarily involves subparts (i) and (ii), as subpart (iii) refers back to subparts (i) and (ii) for the definition of “trafficking.”
decisions of other courts concerning the scienter requirement of the Helms-Burton Act in particular, which have reached the same conclusion as this Court now does. See, e.g., Glen I, 2020 WL 4464665, at *6 (rejecting Glen‘s interpretation because it would “render the ‘knowingly and intentionally’ language superfluous“); Gonzalez v. Amazon.com, Inc., 2020 WL 1169125, at *2 (S.D. Fla. Mar. 11, 2020) (finding complaint failed to allege knowledge because it did not “demonstrate that the Defendants knew the property was confiscated by the Cuban government nor that it was owned by a United States citizen“), aff‘d, 835 F. App‘x 1011 (11th Cir. 2021); but see Garcia-Bengochea v. Norwegian Cruise Line Holdings Ltd., 2020 WL 5028209, at *2 (S.D. Fla. Aug. 25, 2020) (“Plaintiff need not allege specific facts showing [Defendant‘s] state of mind when it allegedly ‘trafficked’ in the confiscated property.“).
Glen next contends that Defendants “have reason to know” that the Subject Hotels are operating on confiscated properties because the fact “[t]hat the Castro regime expropriated property from Cuban and U.S. nationals following the revolution is no mystery.” (D.I. 43 at 28; see also
Finally, Glen argues that he provided Defendants with notice of his claims at least 30 days before filing his actions, and that after the end of the 30-day period, all Defendants - except for Visa - continued to traffic in the Subject Properties. (See D.I. 33 at ¶ 148; C.A. No. 19-1870 ¶¶ 72, 73, 88, 89) Here, Glen is on more solid ground. Accepting these facts as true, and drawing all reasonable inferences in Glen‘s favor, the Court finds that Glen has plausibly alleged scienter against all Defendants other than Visa, at least for the post-notice period. See United States v. Caverly, 408 F.2d 1313, 1320 n.5 (3d Cir. 1969) (finding that element of scienter may be shown either by specific knowledge or by facts putting reasonable person on notice).
With respect to Visa, however - which, according to Glen‘s operative complaint, after receiving the notice “instructed its licensees that all Visa-branded cards cannot be used at the [Subject Hotels] henceforth” (C.A. No. 19-1870 D.I. 24 at
3. Defendants’ other grounds for dismissal
Defendants also raise other grounds on which they contend Glen‘s action should be dismissed, including: (i) Defendants’ trafficking was incident and necessary to lawful travel to
Cuba (see
IV. CONCLUSION
For the foregoing reasons, the Court will grant amici‘s motions for leave to file an amicus brief (C.A. No. 19-1809 D.I. 44; C.A. No. 19-1870 D.I. 34), and will grant Defendants’ motions to dismiss (C.A. No. 19-1809 D.I. 36, 38, 40; C.A. No. 19-1870 D.I. 27, 29). An appropriate order follows.
STARK
U.S. DISTRICT JUDGE
Notes
(13) Traffics
(A) As used in subchapter III, and except as provided in subparagraph (B), a person “traffics” in confiscated property if that person knowingly and intentionally -