Villoldo et al v. Castro Ruz et al
Filing
100
District Judge Timothy S Hillman: MEMORANDUM AND ORDER entered denying 37 Motion to Compel and denying 49 Motion for Order. The Turnover Order (Docket No. 27) and the Order Directing Turnover of Book Shares and Cash Accounts (Docket No. 35) are vacated. Plaintiffs Motion to Compel Re-Issuance of Certificated Shares (Docket No. 37) and Motion for Order to Complete Turnover and Set Bond for Re-Issuance of Certificated Shares (Docket No. 49) are denied. This case is dismissed. (Castles, Martin)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
ALFREDO VILLOLDO, individually, and
)
GUSTAVO E. VILLOLDO, individually, and
)
as Administrator, Executor, and Personal
)
Representative of the ESTATE OF GUSTAVO )
VILLOLDO ARGILAGOS,
)
)
Plaintiffs,
)
)
v.
)
)
NO. 13-mc-94014-TSH
FIDEL CASTRO RUZ, as an individual, and as )
an official, employee, or agent of The Republic )
of Cuba, RAUL CASTRO RUZ, as an
)
individual, and as an official, employee, or
)
agent of The Republic of Cuba, THE
)
MINISTRY OF INTERIOR, an agency or
)
Instrumentality of The Republic of Cuba, THE )
ARMY OF THE REPUBLIC OF CUBA,
)
an agency or instrumentality of the Republic of )
Cuba, and THE REPUBLIC OF CUBA, a
)
foreign state,
)
)
Defendants.
)
___________________________
)
MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION TO COMPEL REISSUANCE OF CERTIFICATED SHARES (Docket No. 37), and MOTION FOR ORDER
TO COMPLETE TURNOVER AND SET BOND FOR RE-ISSUANCE OF
CERTIFICATED SHARES (Docket No. 49)
July 7, 2015
HILLMAN, D.J.
Introduction
Plaintiffs Alfredo Villoldo, Gustavo Villoldo, and the Estate of Gustavo Villoldo
Argilagos (“Plaintiffs”) seek the turnover of 383 securities accounts held by Trustee-Process
Defendant Computershare, Inc. (“Computershare”). The accounts (“Computershare accounts”)
1
were opened in the 1950s by seventy individuals with Cuban addresses. Computershare, located
in Canton, Massachusetts, is a transfer agent of U.S.-based securities issuers. Plaintiffs seek the
turnover of the Computershare accounts in execution of a default judgment obtained by Plaintiffs
in a Florida state court against Defendants Fidel Castro Ruz, Raul Castro Ruz, the Ministry of the
Interior, the Army of the Republic of Cuba, and the Republic of Cuba. The judgment was
awarded for the wrongful death and personal injuries of Gustavo Villoldo Argilagos, who was
abducted, imprisoned, and tortured by the Castro regime following the Cuban Revolution.
Plaintiffs are the sons and estate of Gustavo Villoldo Argilagos.
This Court granted Plaintiffs’ initial ex parte motion for turnover on December 11, 2013.
(Docket No. 27) (“Turnover Order”). The Court found that under Cuban Law Nos. 567 and 568,
the Computershare accounts are owned by the Republic of Cuba, and are therefore subject to
attachment and execution to satisfy Plaintiffs’ judgment under the Terrorism Risk Insurance Act
of 2002 and the Foreign Sovereign Immunities Act. The Court issued a trustee summons and
Computershare filed an answer on December 31, 2013, in which it indicated that it would not
oppose the turnover of the accounts within its possession. (Docket No. 30).
On April 2, 2014, however, Computershare had a change of heart and filed an emergency
motion for a continuance of the turnover process, citing “the myriad of regulatory, contractual,
and statutory securities issues” raised by the Turnover Order. (Docket No. 45). The Court
granted the continuance, prompting Plaintiffs to file a motion for an order directing
Computershare to complete the turnover process. (Docket No. 49). Subsequently, the United
States filed a statement of interest urging the Court rescind the Turnover Order. (Docket No. 69).
2
Specifically, the United States asked the Court to reconsider its conclusion that the accounts are
owned by Cuba.1
In an order dated January 8, 2015, this Court determined that it would reconsider the
Turnover Order and requested additional briefing from the parties on whether Cuban Law Nos.
567 and 568 vested ownership of the Computershare accounts in Cuba. (Docket No. 85). For the
following reasons, the Turnover Order (Docket No. 27) and the Order Directing Turnover of
Book Shares and Cash Accounts (Docket No. 35) are vacated. Plaintiffs’ Motion to Compel ReIssuance of Certificated Shares (Docket No. 37) and Motion for Order to Complete Turnover and
Set Bond for Re-Issuance of Certificated Shares (Docket No. 49) are denied.
Discussion
The Foreign Sovereign Immunities Act (FSIA) provides that “a foreign state will be
‘immune from the jurisdiction of the courts of the United States and of the States.’” Hausler v.
JP Morgan Chase Bank, N.A., 770 F.3d 207, 211 (2d Cir. 2014) (citing 28 U.S.C. § 1604
(1988)). However, Congress has created certain terrorism-related exceptions to the general
immunity that foreign sovereigns enjoy in federal and state courts. One of those exceptions is §
201 of the Terrorism Risk Insurance Act (TRIA), which makes liable terrorist states for
judgments obtained against them in U.S. courts. Section 201(a) provides:
Notwithstanding any other provision of law . . . , in every case in which a person has
obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or
for which a terrorist party is not immune under [28 U.S.C. § 1605A] . . . , the blocked
assets of that terrorist party (including the blocked assets of any agency or
1
The Computershare accounts consist of three classes of assets: book shares, cash accounts, and certificated shares.
In its trustee-process answer, Computershare indicated that it could not turn over the certificated shares because it
did not possess the physical stock certificates. (Docket No. 30). Consequently, the Court entered a second turnover
order directing Computershare to turn over the assets that it did possess—the book shares and cash accounts.
(Docket No. 35). With respect to the certificated shares, Plaintiffs moved for an order directing Computershare to
reissue the stock certificates. (Docket No. 37). The Court has not yet ruled on that motion. Thus, pending before this
Court are Plaintiffs’ motions for orders directing (1) completion of the turnover of the book shares and cash
accounts (Docket No. 49); and (2) the reissuance of certificated shares (Docket No. 37). Both of the requested orders
are contingent upon Plaintiffs’ assertion that the accounts are owned by the Republic of Cuba.
3
instrumentality of that terrorist party) shall be subject to execution or attachment in aid of
execution in order to satisfy such judgment to the extent of any compensatory damages
for which such terrorist party has been adjudged liable.
Terrorism Risk Insurance Act of 2002, § 201(a), Pub. L. No. 107-297, 116 Stat. 2322, (codified
at 28 U.S.C. § 1610 Note “Satisfaction of Judgments from Blocked Assets of Terrorists, Terrorist
Organizations, and State Sponsors of Terrorism”) (hereinafter “TRIA § 201(a)”) (emphasis
added).
The issue before this Court is whether the Computershare accounts are owned by the
Republic of Cuba. If so, TRIA § 201(a) allows Plaintiffs to attach the accounts in satisfaction of
their Florida state court judgment.2 Plaintiffs argue that the accounts, which are held in the names
of seventy account holders believed to be Cuban nationals, are the property of Cuba. According
to Plaintiffs, Cuban Law Nos. 567 and 568 made it illegal for Cuban nationals to hold
investments in foreign companies and any such assets were automatically nationalized pursuant
to those laws in the early to mid-1960s. Therefore, Plaintiffs claim that the Computershare
accounts are owned by Cuba. Computershare and the United States raise three impediments to
this theory of recovery. First, they argue that Cuban Law Nos. 567 and 568 cannot be given
extraterritorial effect by this Court. Second, they contend that the penal law rule precludes
application of the Cuban laws. Third, Computershare and the United States assert that, by their
plain language, the Cuban laws did not nationalize the Computershare accounts.
As explained in the Court’s order of January 8, 2015, the Computershare accounts are “blocked assets” and Cuba is
a “terrorist party” within the meaning of the statute, because the accounts have been frozen by the Department of
Treasury’s Office of Foreign Assets Control (OFAC), and Cuba has been designated as a state sponsor of terror
since 1982. The President’s announcement on April 14, 2015 that Cuba would be removed from the list of state
sponsors of terror has no effect on this proceeding because Cuba was designated as a state sponsor of terror at the
time the terrorist acts occurred. See Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 77-78 (D.D.C. 2006); see also
Florida State Court Final Judgment, Docket No. 9, Ex. A (describing acts of terror committed by Castro regime
against Plaintiffs).
2
4
The Act of State Doctrine and the Extraterritorial Effect Rule
Computershare and the United States first assert that the Cuban laws cannot be given
extraterritorial effect. Courts in the United States are precluded “from inquiring into the validity
of the public acts a recognized foreign sovereign power committed within its own territory.”
Hilton v. Kerry, 754 F.3d 79, 85 n.4 (1st Cir. 2014) (quoting Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 401, 84 S.Ct. 923 (1964)). This general rule, known as the act of state
doctrine, arises from our government’s system of separation of powers and the recognition that
the executive branch bears primary responsibility for conducting foreign affairs. See Tchacosh
Co., Ltd. v. Tockwell Intern. Corp., 766 F.2d 1333, 1336 (9th Cir. 1985). Decrees by foreign
governments purporting to confiscate property are “the very archetype of an act of state.”
Republic of Iraq v. First Nat’l City Bank, 353 F.2d 47, 50 (2d Cir. 1965).
However, the act of state doctrine only forbids judicial examination of “taking[s] by a
foreign sovereign of property within its own territory,” and does not bar inquiry into the
expropriation of property located outside the foreign state.3 Id. at 51 (emphasis added); see also
Banco Nacional de Cuba v. Chemical Bank New York Trust Co., 658 F.2d 903, 908 (2d Cir.
1981). U.S. courts generally “will not give extra-territorial effect to a confiscatory decree of a
foreign state, even where directed against its own nationals.” Maltina Corp. v. Cawy Bottling
Co., 462 F.2d 1021, 1025 (5th Cir. 1972). This is true regardless of whether the foreign state
3
The Ninth Circuit has explained the basis for this exception to the act of state doctrine:
The rationale underlying the extraterritorial exception follows from the considerations which support the
act of state doctrine. The obvious inability of a foreign state to complete an expropriation of property
beyond its borders reduces the foreign state’s expectations of dominion over that property. Consequently,
the potential for offense to a foreign state is reduced, as well as the need for judicial deference to the other
branches of government. Also, judicial enforcement of judgments becomes possible when property is
located within United States territory.
Tchacosh, 766 F.2d at 1337 (internal quotations and citations omitted).
5
attempts to expropriate property of individuals or a domestic corporation. See Republic of Iraq,
353 F.2d at 51. The prevailing rule is that when property is located in the United States at the
time of the foreign state’s attempted confiscation, U.S. courts will recognize the foreign decree
only if it would be “consistent with the policy and law of the United States.” Id. (quoting
Restatement of Foreign Relations Law of the United States § 46); see also Chemical Bank, 658
F.2d at 908-09 (discussing United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758 (1937)).
Plaintiffs contend that the extraterritorial effect rule does not apply because Cuban Law
Nos. 567 and 568 caused assets of Cuban nationals to be “forfeited” to the Cuban government
rather than “confiscated” or “expropriated.” Plaintiffs cite no authority for this semantic
distinction and the Court rejects it.4 The interpretation of the Cuban laws advanced by Plaintiffs
would eliminate the rights of the Cuban nationals to the Computershare accounts and vest
ownership in the Republic of Cuba. See Decl. of Jorge Salazar-Carrillo, Docket No. 95, Ex. A-1;
Decl. of Jaime Suchlicki, Docket No. 95, Ex. B. Further, the parties do not dispute that the
accounts are located in Massachusetts. Thus, “it is appropriate to treat [the Cuban laws] as . . .
foreign decree[s] purporting to expropriate property located within the United States.” Maltina,
462 F.2d at 1027. The question for the Court, then, is whether it would be consistent with United
States policy and law to recognize the validity of Cuban Law Nos. 567 and 568. Clearly, it would
not.
4
The only cases relied on by Plaintiffs for this proposition deal with acts of the United States—not foreign states—
to compel or authorize the return of currency to its country of origin, and therefore do not implicate the foreign
affairs principles undergirding the act of state doctrine and the extraterritorial effect rule. See Ling Su Fan v. United
States, 218 U.S. 302 (1910) (examining Congressional delegation of authority to coin money to Phillipine
government while Phillipine Islands were under the control of United States); Nortz v. United States, 294 U.S. 317
(1935) (examining Congressional restrictions on ownership of gold); United States v. Bankers Trust Co., 294 U.S.
240 (1935) (same); Perry v. United States, 294 U.S. 330 (1935) (same); Langbord v. U.S. Dep. of the Treas., 888 F.
Supp. 2d 606 (E.D. Pa. 2012) (same). In any event, those cases do not draw a distinction between the terms
“forfeiture” and “confiscation” or “expropriation.” In fact, in one of the principal extraterritorial effect cases, the
Fifth Circuit used “forfeiture” to describe the transfer of property rights required by the foreign law in question. See
Maltina, 462 F.2d at 1027.
6
Whether recognition of Cuban Law Nos. 567 & 568 is consistent with U.S. policy and law
Principles embodied in the Fifth Amendment to the U.S. Constitution prohibit the state
from depriving individuals of property without compensation. See Maltina, 462 F.2d at 1027.
This alone is grounds for the Court to find that Cuban Law Nos. 567 and 568 are incompatible
with the policy and law of the United States.5 See United Bank Ltd. v. Cosmic Int’l., Inc., 542
F.2d 868, 872-877 (2d Cir. 1976) (refusing to recognize Bangladesh law purporting to
expropriate payment due to successors of Pakistani corporations from American company);
Menendez v. Saks & Co., 485 F.2d 1355, 1364 (2d Cir. 1973) (refusing to recognize Cuban law
purporting to seize Cuban cigar companies’ accounts receivable located in United States);
Maltina, 462 F.2d at 1027 (refusing to recognize Cuban law purporting to expropriate Cuban
corporation’s trademark rights in United States); Republic of Iraq, 353 F.2d at 51-52 (refusing to
recognize Iraqi law purporting to confiscate former Iraqi king’s bank accounts located in New
York); cf. Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72, 75 (D.C.
Cir. 1988) (observing that “had Spain attempted to expropriate without compensation property . .
. within the United States at the time of expropriation, our courts would not assist Spain in
obtaining such property”).
Nonetheless, Plaintiffs assert that the Cuban laws should be enforced and urge the Court
to conclude that this case is controlled by Banco Nacional de Cuba v. Chemical Bank New York
Trust Co., in which the Second Circuit gave effect to a similar Cuban law. 658 F.2d 903, 909 (2d
Cir. 1981). In Chemical Bank, Banco Nacional sued as the successor-in-interest of private Cuban
banks to recover certain assets held in the United States. Id. at 905-6. The private banks, which
were incorporated and domiciled in Cuba, were nationalized in 1960 pursuant to Cuban Law No.
5
There is no indication, and Plaintiffs do not argue, that the original owners of the Computershare accounts were
compensated by the Cuban government.
7
891 and taken over by Banco Nacional, the country’s central bank. Id. Banco Nacional filed an
action in federal court the following year, seeking to recoup substantial deposits the private
Cuban banks had made with three American banks. Id. at 906. The district judge ruled that
Banco Nacional was unable to assert the claims as successor because the assets were located in
the United States and the foreign expropriation could not be given extraterritorial effect. Id. at
907.
The Second Circuit reversed. The court acknowledged that Cuban Law No. 891
expropriated property in the United States, but gave effect to the law anyway. Id. at 909.
Interpreting the Supreme Court’s decision in United States v. Belmont,6 301 U.S. 324, 57 S.Ct.
758 (1937), the court articulated a modified formulation of the extraterritorial effect rule, stating
that when “enforcement [of a foreign confiscatory law] has promised to further, rather than
violate, the policy aims of the United States,” courts may recognize foreign expropriations.
Chemical Bank, 658 F.2d at 908-09. The court concluded that enforcing the Cuban government’s
ownership of the assets would further American policy aims, because any assets awarded to
Banco Nacional would “be paid into a frozen account [to] be distributed by the United States
Foreign Claims Settlement Commission to American nationals [with] valid claims against
Cuba.” Id. at 909. Central to the result was the court’s supplemental conclusion that, given the
6
In Belmont, the Supreme Court gave effect to the Soviet expropriation of assets that a Russian corporation
deposited in a New York bank account. 301 U.S. 324, 57 S.Ct. 758 (1937). As a product of treaty negotiations
between the two nations, the Soviet government had assigned to the United States all claims that it had against
American nationals, including the claim to the assets in the New York bank account. Id. at 326-27. The United
States intended to collect the assets as part of its effort to create a fund from which American nationals with valid
claims against the Soviet government could be compensated. Id. The Court found that recognizing the expropriation
of the New York account would advance national policy objectives, because it would allow the United States to
amass the compensation fund contemplated in its treaty negotiations. Id. at 330-32. Given this overriding national
policy interest, the Court stated that the question of whether the Soviet expropriation was a taking without
compensation was “not a matter for judicial consideration here.” Id. at 332.
8
circumstances of the case, it was inconsequential that the private bankers had not been
compensated:
While United States law of course does not approve the taking of private property
without compensation, the former owners of the Private Banks have lodged no protest,
either by bringing suit to recover their United States property, or by seeking to intervene
in Banco Nacional’s suits. In the twenty years during which these suits have been
pending, the former owners have not asserted any conflicting claim. Thus we cannot say
that the effect in this case of recognizing the Cuban nationalization of the Private Banks
would violate United States policy.
Id. at 909. Thus, in determining whether to give extraterritorial effect to Cuban Law No.
891, the Second Circuit weighed the promotion of an affirmative American policy goal—making
available assets for individuals with valid claims against the Cuban government—against the
Fifth Amendment policy proscribing takings without compensation. Finding the Fifth
Amendment concerns to be significantly diminished because the original owners had never
asserted their rights to the assets, the Court concluded that by recognizing the expropriation,
“United States policy will be furthered rather than violated.” Id.
Plaintiffs assert that the same result should follow here. They argue that enforcement of
Cuban Law Nos. 567 and 568 will further the national policy aims embodied in TRIA, and that
this interest outweighs any Fifth Amendment concerns because the Cuban nationals have not
asserted ownership of the Computershare accounts. The Court disagrees.
First, enforcement of the Cuban laws will not further the policy aims of TRIA. One of the
principal goals of TRIA § 201(a) is to compensate victims of state-sponsored terrorism. See
Heiser v. Islamic Republic of Iran, 735 F.3d 934, 938-39 (D.C. Cir. 2013) (discussing legislative
history of TRIA § 201). To be sure, ordering the turnover of the Computershare accounts would
compensate the Villoldo family and provide some measure of restitution for the terrorist acts
committed against them by the Castro regime. That is not the end of the story, though, because
9
TRIA is also intended to punish and deter terrorist states by making them liable for judgments
obtained against them in our courts. Id. at 939-40; see also 148 Cong. Rec. 23,121 (Statement of
Sen. Harkin) (noting that TRIA § 201 would “punish and impose a heavy cost” on state sponsors
of terror and “deter future acts of terrorism”). The statute achieves this goal by ensuring that
victims can only collect frozen assets that belong to state sponsors of terror.7 See TRIA § 201(a)
(making attachable the “blocked assets of that terrorist party”) (emphasis added); see also Heiser,
735 F.3d at 939-40 (observing that Congress did not intend victims to be paid with assets not
owned by a terrorist state).
Therefore, for the Court to give effect to Cuban Law Nos. 567 and 568, enforcement of
the expropriation must further the policy of compensating victims with assets owned by Cuba.
But the Computershare accounts are only owned by Cuba if the Court gives effect to Cuban Law
Nos. 567 and 568. The Court refuses to adopt such a circular justification, because it would
allow Cuba to escape TRIA’s sanctions at the expense of the Cuban nationals who originally
owned the accounts. This is precisely the concern that the D.C. Circuit found compelling in
Heiser v. Islamic Republic of Iran, where the court determined that certain blocked assets with
ties to Iran were not attachable under TRIA § 201(a).8 735 F.3d 934 (D.C. Cir. 2013). In
reaching that conclusion, the court discussed the “acute” need to preserve the punitive effect of
the law by ensuring that attachable assets are actually owned by the terrorist state. Id. at 939-40.
The court emphasized that the policy goals of TRIA § 201 are not served where potentially
7
Courts have differed in their interpretations of what property interest is sufficient for assets to be attachable under
TRIA as the blocked assets “of” the terrorist party. See Calderon-Cardona v. Bank of New York Mellon, 770 F.3d
993, 1001 n.2 (2d Cir. 2014); Rubin v. Islamic Republic of Iran, 709 F.3d 49, 54 (1st Cir. 2013). The precise answer
to that question is immaterial here, however, because Plaintiffs argue that Cuban Law Nos. 567 and 568 vest full
ownership of the assets in the Republic of Cuba.
8
The frozen assets at issue in Heiser were electronic funds transfers blocked by OFAC because the beneficiaries of
the transfers used Iranian banks. 735 F.3d at 935-36. Thus, Iranian entities did not own the assets, but had a
contingent future possessory interest in them. Id. at 936-37.
10
innocent individuals pay the plaintiff’s judgment, because it would allow the terrorist state to
reduce its liability to victims and force innocent parties to unjustly bear the costs of the terrorist
state’s wrongdoing. Id. “Congress could not have intended such a result.” Id. at 940.
Indeed, the United States has itself filed a statement of interest in this case, asserting that
enforcement of the Cuban laws would be inconsistent with national policy interests. See
Statement of Interest of the United States, Docket No. 69; Second Supp. Statement of Interest of
the United States, Docket No. 93. The government states that recognition of Cuba’s attempt to
confiscate the assets of its citizens would undermine the punitive effect of TRIA and weaken the
leverage of blocked assets as a tool of foreign policy. See Second Supp. Statement of Interest of
the United States at 11-12. These concerns are heightened where, as here, one set of the Castro
regime’s victims would bear the cost of the regime’s terrorist acts by paying Cuba’s debt to other
victims. Id. The Court gives significant weight to the government’s representations of its own
policy interests—especially in the context of foreign affairs.9 Accordingly, the Court finds that
the policy aims of TRIA will not be furthered by enforcement of the Cuban laws.
Second, substantial Fifth Amendment concerns are present in this case. In Chemical
Bank, the Second Circuit was not concerned with the property rights of the original bank owners
because in the twenty years in which the litigation had been pending, none had asserted a
conflicting claim. 658 F.2d at 909. The potential claims of the Cuban nationals cannot be
similarly dismissed. This litigation has only been pending for two years. The notice protocol
ordered by the Court was not completed until December 2013, and the whereabouts of almost all
9
In neither Chemical Bank nor Belmont did the United States government assert, as it does here, that the foreign
expropriation would conflict with national policy. See Chemical Bank, 658 F.2d 903; Belmont, 301 U.S. 324. In fact,
in Belmont, the United States was the party seeking the enforcement of the foreign expropriation, because it would
advance the policy goal of creating a fund from which American nationals with valid claims against the Soviet
government could be compensated. 301 U.S. at 326-27.
11
the account holders or their successors are still unknown.10 Yet one woman has formally
objected to the turnover of her relative’s account, see Letters from Maria Ana Abarrio Sainz,
Docket Nos. 32 & 63, and Computershare has identified two other objectors who did not receive
notice of this proceeding. See Trustee-Process Def.’s Resp. to Pl.’s Mot. to Complete Turnover,
Docket No. 59, Ex. 4 & 5. One of the individuals identified by Computershare has now filed an
affidavit asserting that she is the rightful owner of $38,000 worth of shares and dividends that
Plaintiffs seek to attach. See Decl. of Katia Ochoa, Docket No. 94, Ex. 1.
These competing claims suggest that other potential objectors may not have received
notice of this litigation, and raise significant questions about the propriety of enforcing Cuban
laws that expropriate privately owned securities located in the United States. The Fifth
Amendment concerns are particularly troublesome in this case because the Computershare
accounts are in the names of individuals—not domestic corporate entities that were dissolved or
nationalized by the Cuban government. Consequently, the Court concludes that significant Fifth
Amendment interests remain implicated, and recognition of Cuban Law Nos. 567 and 568 would
violate United States policy against takings without compensation.
Because enforcement of the Cuban laws would not further the policy of TRIA and would
violate the Fifth Amendment policy against takings without compensation, the expropriation of
the Computershare accounts is not consistent with United States policy and law. Therefore, the
Court will not give extraterritorial effect to Cuban Law Nos. 567 and 568 as they pertain to the
Computershare accounts. The accounts are not the property of the Republic of Cuba and are not
The Court’s Turnover Order adopted the Plaintiffs’ proposed notice protocol, requiring Plaintiffs to send notice of
the turnover proceeding, in English and Spanish, to the last known Cuban addresses of the seventy account holders.
See Turnover Order, Docket No. 27. The addresses used were those provided by each Cuban national when the
accounts were opened in the 1950s. Plaintiffs were also required to publish notice of the proceeding in the
International Herald Tribune. Id. Plaintiffs certified their compliance with the notice requirements by January 16,
2014. See Pls.’ Notice of Filing, Docket No. 29; Pls.’ Notice of Filing Proof of Publication, Docket No. 31.
10
12
subject to attachment and execution. As this finding is dispositive, the Court does not reach the
remaining issues raised by the parties.
Conclusion
For the foregoing reasons, the Turnover Order (Docket No. 27) and the Order Directing
Turnover of Book Shares and Cash Accounts (Docket No. 35) are vacated. Plaintiffs’ Motion to
Compel Re-Issuance of Certificated Shares (Docket No. 37) and Motion for Order to Complete
Turnover and Set Bond for Re-Issuance of Certificated Shares (Docket No. 49) are denied. This
case is dismissed.
SO ORDERED.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE
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