On October 10, 2018, PobleteTamargo LLP (“PT Law”) filed a Freedom of Information Act (“FOIA”) lawsuit against the Department of State in U.S. District Court for the District of Columbia for records requested over five years ago related to U.S.-Cuba property claims. The Complaint, available here, stems from two FOIA records requests for documentation, one filed in 2014, and the other in 2015, that were submitted to the Department of State before the U.S. and Cuba normalized diplomatic relations. Prior release of records is available here.
Continue reading “State Department Records: Eight Days Before the End of the Administration, The Obama Administration Requested More Talks with Cuba About Property Claims”State Department Records Reveal Cuba Still Owes Billions to U.S. Taxpayers; Property Claims No Closer to Resolution
Washington, D.C. – The road to the historic re-establishment of diplomatic relations between the United States and Cuba on July 25, 2015, was supposed to usher in a new era of U.S.-Cuba relations. For the first time in close to a century, a sitting American president visited Cuba and so did many representatives from various American companies. Supporters of the new policy lauded the outreach as a new way forward. Opponents argued it was a mistake and the move to normalize relations without settling the claims was premature.
For American citizens holding thousands of certified claims against Cuba’s government for stolen properties confiscated after the 1959 Communist revolution, there was a hope that they would finally see justice and accountability. The claims were supposedly discussed between both countries for the first time in decades. Yet, as of this writing, American taxpayers owed more than $10,000,000,000 by Cuba have yet to be paid what they are owed under U.S. law and international claims law.
On October 10, 2018, Poblete Tamargo LLP (“PT Law”) filed a Freedom of Information Act (“FOIA”) lawsuit against the Department of State in U.S. District Court for the District of Columbia for records requested more than five years ago related to U.S.-Cuba property claims. The Complaint is embedded at the end of this post. The suit stems from two FOIA records requests for records, one filed in 2014, and the other in 2015, submitted to the Department of State before the U.S. and Cuba normalized diplomatic relations.
The firm was particularly interested in records on the enforcement, or lack thereof, of several provisions of the Cuban Liberty and Democratic Solidarity Act of 1996 (“the Helms-Burton”) and other laws related to the settlement of the outstanding American property claims pending against the government of Cuba. As of this writing, American taxpayers owed billions by Cuba no closer to settling the claims. The relationship with Cuba has also deteriorated for various reasons, especially over the attacks on U.S. diplomats that started in late 2016 and that have yet to be satisfactorily resolved, among other issues. At the end of this post is a copy of the complaint and a sampling of some of the documents released to date.
2019-12-10 18-cv-02335 December 2019 PT REDACTED
PT Law Attorneys and Public Policy professionals have worked on U.S.-Cuba policy for decades including during the drafting of the Helms-Burton law in Congress. The firm currently represents nearly two dozen families who hold certified claims against Cuba. In advocacy efforts during the past few years, the Firm has stressed the importance of resolving these claims correctly, consistent with the law.
The resolution of U.S.-Cuba property claims will set important precedents that will impact future property claims programs well beyond Cuba. During the past ten years, PT Law attorneys have testified before Congress, briefed policymakers in both political branches of government, foreign governments, businesses, and other interested parties on the importance of successfully resolving this long-standing dispute not only for our clients but to better inform the general public and fellow attorneys about these programs.
The records produced by the Department of State will not only help advance justice and accountability for American citizens wronged by Communist Cuba and those today who traffic in confiscated property, but it will also help U.S. taxpayers understand how this program has worked, or not worked, and how it can be improved so that future claims programs can be properly structured to advance U.S. national and taxpayer interests.
If you are a claims practitioner, we hope these records bring much-needed sunshine on the U.S.-Cuba claims program, an intersection of law and public policy that continues to unfold in courts of law and in the court of public opinion. You can search for records produced by the Department of State by following this link.
2018-10-10 PT v State Complaint FOIA
2018-10-10 PT v State Compl… by Jason I. Poblete on Scribd
** Note PobleteTamargo has redacted additional information from any posted productions to protect the email addresses and direct phone numbers of government officials.
GAO REPORT CALLS FOR A FEDERAL DATA PRIVACY LAW
The GAO report could be praised for three things. First, the GAO presents an excellent outline of the basics of data protection and the tension created between those seeking new and revolutionary innovation based on data collection, and those concerned for individual privacy. Secondly, the report notes the necessity for increased funding of the FTC so the agency can conduct more vigorous enforcement. Finally, the report concluded with the need for a federal data breach privacy law. Despite these good points, the GAO’s report falls short for two reasons.
The first reason is that the report does not address the issue of pre-emption. Black’s Law Dictionary[ii] defines pre-emption as, “Doctrine adopted by the U.S. Supreme Court holding that certain matters are of such a national, as opposed to local, character that federal laws…take precedence over state laws. As such a state may not pass legislation inconsistent with the federal laws.”
Pre-emption is a major obstacle that prevents the passage of a federal data breach law.[iii] Republican legislation on data breaches generally prefers pre-emption because a federal data breach law provides uniformity. Currently, state laws dealing with data privacy have different standards defining what is personal information, when to contact the appropriate authorities and so forth. What is problematic is that different state standards are in conflict with one other. A company such as Target would need to comply with 50 different standards, when there is a nationwide data breach on their systems.
Democratic legislation on data breaches typically does not want pre-emption; instead they would prefer to have both federal and state jurisdictions working together or concurrently because of consumer protection. The problem with this is that a federal statute does not address the problem when a company has to deal with a breach. Under the Democratic approach, a company would need to have one additional layer of regulations to deal with on top of another layer.
The GAO needs to address the issue of pre-emption. Addressing the issue of pre-emption would have provided Congress with an understanding of the costs that companies have to incur because they need to comply with a patchwork of different state laws versus a uniform federal law.
The second shortcoming in the GAO report is the failure to discuss the work done by Health & Human Services (HHS). HHS oversees the Health Information Portability And Accountability Act (HIPAA), the laws and regulations dealing with patients’ information. The Graham Leach Bliley Act, (GLBA), which covers banks and other financial institutions, is the other federal data privacy law that has a provision addressing data breaches. The FTC primarily oversees the enforcement of the GLBA.
The GAO’s assessment of HHS’ work on HIPPA enforcement would have provided the Congress a point of reference when reviewing and developing the FTC’s role in data breach enforcement. The GAO needed to compare how the HHS and the FTC handle data breach enforcement. This information would have given the Congress a better understanding of how a federal data breach law would be enforced. There is a consensus that the FTC needs to be primary agency that will enforce the federal data breach law. Reviewing the HHS’ experiences in enforcing data privacy under HIPPA will give Congress a better understanding in providing the necessary funding to equip the FTC when the federal data breach legislation is passed.
In closing, federal data privacy law is something that both consumers and businesses want and need. Recently, Intel issued its proposed version of a data breach law.[iv] Discussing pre-emption and providing a case study of the HHS’ handling of data breaches in the medical field could have made a good report a better one. Hopefully, the GAO will revisit this topic to address these two matters. If the GAO is able to do so, it may be able to provide clarity and break the logjam on the passage of much needed legislation.
[ii] Black’s Law Dictionary 1177 (6thed. 1990).
THE ILS GAZETTE: New Phase in US-Cuba Relations Adds New Layers of Complexity for Foreign Companies Doing Business in Cuba
To read The ILS Gazette go here.
New Phase in US-Cuba Relations Adds New Layers of Complexity for Foreign Companies Doing Business in Cuba
By Arthur M. Freyre*
President Trump’s decision to end the waiver of Helms-Burton’s[1] Title III lawsuits has dramatically changed how foreign companies do business in Cuba. Individuals who have a claim or may have a potential claim against the Cuban government for stolen property can now file suit against foreign companies who are trafficking or trespassing on property they used to own but confiscated by Cuba without compensation. The waiver that has been in the law since the signing of the bill in 1996, ended on May 2nd and Title III will finally be implemented. This post provides a general overview on the Title III lawsuit process. Let’s answer three basic questions: “Who are the plaintiffs?” “What is property?” and “What is the trafficking?”
Prior to discussing the three questions, counsels should note that pursuant to 22 U.S.C. §6082 (a)(8), the Attorney General was supposed to have prepared and published in the Federal Register a concise summary of the Act sixty days after the date of enactment. Now that the waiver has been lifted, we anticipate that the Attorney General will prepare and publish the Title III summary. Besides being familiar with the statute, attorneys filing or defending Title III lawsuits need to be aware of certain required actions (i.e. notice to parties and the wind down period) prior to the filing of the lawsuit.
The first question is “Who are the Plaintiffs?” Helms-Burton recognizes two groups of plaintiffs. The first group of plaintiffs is known as certified claimants. The second group of plaintiffs consists of individuals, or heirs of Cuban nationals, who are now U.S. citizens. These are known as uncertified claimants.
Certified claimants are individuals or corporations who were U.S. citizens when their property in Cuba was confiscated by the Castro revolution after 1959. These individuals provided evidence to the U.S. Foreign Claims Settlement Commission showing that the Cuban government confiscated their land without compensation. The Commission issued a certified claim to the claimant based on the property’s value. Prior to this implementation of Title III, certified claimants effectively had no access to federal court to file a lawsuit, except for a limited number of victims of terror with personal injury or wrongful death claims.
Uncertified claimants are persons whose families left Cuba after the 1959 communist takeover and whose property were also confiscated by the Cuban government. At the time of the taking, these property owners were not U.S. citizens, and were not eligible to present their matter before the U.S. Foreign Claims Settlement Commission when they arrived to the United States. Subsequently, they or their sons or daughters became U.S. citizens. Regarding this class of potential plaintiffs, Title III states that the federal courts may use the Commission as a special master to review the uncertified claim and make a finding on it’s validity and it’s value for the court to decide.
An additional question the courts may have to consider is the question of what is property? Pursuant to Title III, property is broadly defined to include intellectual property (i.e. trademarks, copyrights, patents, and so forth), real property (commercial and personal), and any item that may have a present, future, or contingent right, security, or other interest therein.
The third and final question is what is defines as trafficking? Trafficking in a confiscated property involves a person who knowingly and intentionally, and without authorization of any U.S. national who holds a claim to the property, engages in or benefits from a wide range of transactions in Cuba that include or relate to a confiscated property. There are several exceptions to the trafficking definition. It is important to discuss this matter with counsel.
One final point regarding trafficking, 22 USC § 6082(b) states the required minimum threshold for damages in federal court is $50,000 value of the property at the time of the confiscation. This amount is exclusive of interest, costs, and attorney fees.
Just because one believes that they might meet the minimal threshold of standing, there are other factors that one needs to consider. For instance, the Judicial Conference announced that there is an additional filing fee of $6,548.00 that one needs to pay the courts for the filing of a Title III action, Besides the filing fees, other costs may include service of process, and other fees and expenses we have not mentioned here regarding litigation.
In closing, companies doing business in Cuba should reassess their increased risk exposure during this time, as it may be significant. They need to make sure that they are not trafficking in stolen property. This was the case before May 2nd since there remains an economic embargo of Cuba. Counsel should read and understand Title III carefully and also review the economic sanctions regulations in conjunction with your Title III analysis. Failure to do this assessment may expose companies and individuals to potential lawsuits and liability. Reading and understanding Title III carefully is just as important for those who believe that they may have a Title III claim. Failure to comply with the notice provisions could lead to unnecessary expense and the dismissal of a Title III claim.
*Arthur M. Freyre, Esq., is an attorney at the Law Offices of Poblete Tamargo LLP. His practice area includes federal regulatory law and public policy. Mr. Freyre would like to thank Mr. Mauricio Tamargo, Esq., former Chairman of the Foreign Claim Settlement Commission and Mr. Jason Poblete, Esq., an expert in U.S. economic sanctions and export control laws, for their assistance and input in this blog post.
[1] The Cuban Liberty and Democratic Solidarity Act, 22 U.S.C. §§6021-6091.
New Year, New House
The Brookings Institute published a report looking at other characteristics in December 2018, and noted the following similarities among the incoming Congressmen:
- They are highly educated;
- Least politically experienced; and
- The overall loss of institutional memory.
The second characteristic regarding political experience is one that stands out. The incoming freshmen class’ lack of political experience coupled with the Senate’s familiarity and pragmatism on the other side gives us an indication of what we can expect from Congress this year; legislative gridlock.
Brookings defined political experience by whether or not the incoming freshmen served in local government, such as a mayor or city councilman, or in the state legislature, as a state representative or state senator. The report showed that only 41% had political experience, with 32% having served as a state elected official, and 15% serving on the local level (i.e. city or county). Contrast this with the fact that many new Senate freshmen members served in state wide positions such as governor or state attorney general.
To provide some comparison, consider the 104th Congress and the 112th Congress. For historical perspective, the 104th Congress was when the GOP gained majorities in the House and the Senate in the 1994 election. This was significant because the GOP had been the majority party in the House since 1954, and the Senate since 1980. The 112th Congress is unique because then speaker Nancy Pelosi and the Democrats lost their majority after the passage of the Affordable Care Act in 2010. In both cases, the incoming freshmen class had over 50% with previous political experience.
This lack of local and/or state political experience from the House side may be problematic. Under this new Congress, we may see more ideological legislation to come out of the House. When the Senate passes its version of the legislation, there may be problems due to the difference in perspective between the two legislative bodies, resulting in anticipated gridlock.
Any legislation that falls under gridlock may get resolved in 2021 at the earliest, when there is either a new Administration that is inaugurated and/or new leadership in the Congress that would change the party in control over the House or Senate. However, there are some issues that currently seem to have bipartisan support such as those in the technology sector, which may see more movement this session. Tech issues like data privacy have a greater chance of passage partly because technology issues impacts our lives on both a personal and commercial level, which garners support from across both sides of the aisle.
Despite the expectation of gridlock, that does not mean that your issue has to fall under this result. By utilizing a firm that understands the political climate and can advise you as your issue is navigated through the legislative process you can keep your issue from becoming stagnant. To learn more please visit these links on our website and do not hesitate to contact us.