UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No. 20-cv-22471-DPG 

NORTH AMERICAN SUGAR INDUSTRIES INC., 

Plaintiff, 

v. 

XINJIANG GOLDWIND SCIENCE & TECHNOLOGY 

CO., LTD., GOLDWIND INTERNATIONAL 

HOLDINGS (HK) LTD., DSV AIR & SEA INC., 

BBC CHARTERING USA, LLC, and 

BBC CHARTERING SINGAPORE PTE LTD., 

Defendants. 

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO 

DEFENDANTS’ JOINT MOTION TO DISMISS THE COMPLAINT 

Andrea E. Neuman (pro hac vice) 

Rahim Moloo (pro hac vice) 

Casey Kyung-Se Lee (pro hac vice) 

GIBSON, DUNN & CRUTCHER LLP 

200 Park Avenue, 47th Floor 

New York, NY 10166-0193 

Telephone: (212) 351-3883 

Facsimile: (212) 351-5303 

aneuman@gibsondunn.com 

rmoloo@gibsondunn.com 

clee@gibsondunn.com 

David S. Mandel 

FBN 38040 

MANDEL & MANDEL LLP 

169 East Flagler Street, Suite 1224 

Miami, FL 33131 

Telephone: (305) 374-7771 

dsm@mandel.law 

Miguel A. Estrada (pro hac vice) 

Audi K. Syarief (pro hac vice) 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, NW 

Washington, DC 20036-5306 

Telephone: (202) 955-8257 

Facsimile: (202) 530-9616 

mestrada@gibsondunn.com 

asyarief@gibsondunn.com 

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TABLE OF CONTENTS 

Page 

PRELIMINARY STATEMENT .................................................................................................... 1 

BACKGROUND ............................................................................................................................ 4 

I. Statutory Background .............................................................................................................. 4 

A. The Cuba Claims Program .............................................................................................. 5 

B. The Helms-Burton Act .................................................................................................... 6 

II. Factual Background ................................................................................................................. 7 

A. Defendants’ Trafficking in American Sugar’s Confiscated Property ............................. 7 

B. Relevant Procedural History ........................................................................................... 9 

LEGAL STANDARDS ................................................................................................................ 10 

ARGUMENT ................................................................................................................................ 11 

I. American Sugar Has Article III Standing to Bring Its Claims Against Defendants ............. 11 

A. American Sugar Has Adequately Pleaded an Injury in Fact ......................................... 12 

1. American Sugar Has Pleaded a Concrete Injury ................................................... 13 

2. American Sugar Has Properly Pleaded the Other Elements of 

an Injury in Fact .................................................................................................... 18 

B. American Sugar’s Injury in Fact Is Fairly Traceable to Defendants’ 

Trafficking Activities .................................................................................................... 19 

C. A Decision in American Sugar’s Favor Will Likely Redress 

American Sugar’s Injuries ............................................................................................ 20 

II. American Sugar Has Stated a Trafficking Claim Under the Helms-Burton Act .................. 21 

III. The Helms-Burton Act Does Not Prohibit American Sugar’s 

Civil Conspiracy Claim ........................................................................................................ 25 

IV. Defendants’ Bankruptcy-Related Affirmative Defenses Are Procedurally Improper 

on a Motion to Dismiss and Meritless in Any Event ............................................................ 27 

A. Defendants’ Bankruptcy Standing Defense Is Meritless .............................................. 29 

B. Defendants’ Judicial Estoppel Defense Fails ................................................................ 33 

CONCLUSION ............................................................................................................................. 35 

 

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Allen v. Senior Home Care, Inc., 

2015 WL 1097408 (S.D. Fla. Mar. 11, 2015) ..........................................................................28 

Allston-Wilson v. Phila. Newspapers, Inc., 

2006 WL 1050281 (E.D. Pa. Apr. 20, 2006) ...........................................................................30 

In re Ampace Corp., 

279 B.R. 145 (Bankr. D. Del. 2002) ........................................................................................31 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .................................................................................................................11 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) .......................................................11 

Brown v. Brock, 

169 F. App’x 579 (11th Cir. 2006) ..........................................................................................28 

Church v. Accretive Health, Inc., 

654 F. App’x 990 (11th Cir. 2016) ..........................................................................................13 

CNR Healthcare Network, Inc. v. 86 Lefferts Corp., 

874 N.Y.S.2d 174 (2d Dep’t 2009) ..........................................................................................31 

Conn. Nat’l Bank v. Germain, 

503 U.S. 249, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992) .......................................................25 

Corbett v. Transp. Sec. Admin., 

930 F.3d 1225 (11th Cir. 2019) ...............................................................................................10 

Cueto Iglesias v. Pernod Ricard, 

No. 20-cv-20157 (S.D. Fla. Aug. 17, 2020), ECF No. 55 .................................................12, 24 

Div. 1181 Amalgamated Transit Union v. B&M Escorts, Inc., 

2018 WL 2417842 (E.D.N.Y. May 29, 2018) .........................................................................30 

Forsyth v. NHC Place/Anniston, LLC, Inc., 

No. 18-cv-00663, 2018 WL 4909953 (N.D. Ala. Oct. 10, 2018) ............................................26 

Garcia-Bengochea v. Carnival Corp., 

407 F. Supp. 3d 1281 (S.D. Fla. 2019) ....................................................................................27 

Glen v. Am. Airlines, 

No. 20-cv-482-A, 2020 WL 4464665 (N.D. Tex. Aug. 3, 2020) ......................................14, 15 

Case 1:20-cv-22471-DPG Document 67 Entered on FLSD Docket 10/16/2020 Page 3 of 44
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Glen v. Club Mediterranee, S.A., 

450 F.3d 1251 (11th Cir. 2006) ...............................................................................................16 

Gonzalez v. Amazon.com, Inc., 

No. 19-cv-23988, 2020 WL 1169125 (S.D. Fla. Mar. 11, 2020) ............................................24 

In re Goodman Bros. Steel Drum Co. Inc., 

247 B.R. 604 (Bankr. E.D.N.Y. 2000) .....................................................................................30 

Grede v. Bank of N.Y. Mellon, 

598 F.3d 899 (7th Cir. 2010) ...................................................................................................30 

Griffin v. Verizon Commc’ns Inc., 

746 F. App’x 873 (11th Cir. 2018) ..........................................................................................28 

Harris v. Orange S.A., 

636 F. App’x 476 (11th Cir. 2015) ..........................................................................................16 

In re Hart Oil & Gas, Inc., 

534 B.R. 35 (Bankr. D.N.M. 2015) .........................................................................................30 

Havana Docks Corp. v. Carnival Corp., 

No. 19-cv-21724, 2020 WL 5517590 (S.D. Fla. Sept. 14, 2020) .................................... passim 

Havana Docks Corp. v. MSC Cruises SA Co., 

No. 19-cv-23588, 2020 WL 5367318 (S.D. Fla. Sept. 8, 2020) ...................................... passim 

Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 

No. 19-cv-23591, 2020 WL 5217218 (S.D. Fla. Sept. 1, 2020) ...................................... passim 

Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., 

No. 19-cv-23590, 2020 WL 1905219 (S.D. Fla. Apr. 17, 2020) .............................................23 

Henderson v. Franklin, 

782 F. App’x 866 (11th Cir. 2019) ..........................................................................................33 

Imagine Commc’ns Corp. v. Villegas, 

2017 WL 2304013 (S.D. Fla. May 19, 2017) ..........................................................................11 

It’s a New 10, LLC v. Harris, 

2019 WL 451205 (S.D. Fla. Feb. 5, 2019) ..............................................................................11 

Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Emps., 

741 F.3d 686 (6th Cir. 2014) ...................................................................................................29 

King v. Nat’l Union Fire Ins. Co. of Pittsburg, 

2018 WL 8929811 (N.D. Ga. July 6, 2018).............................................................................28 

Case 1:20-cv-22471-DPG Document 67 Entered on FLSD Docket 10/16/2020 Page 4 of 44
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In re Kmart Corp., 

310 B.R. 107 (Bankr. N.D. Ill. 2004) ................................................................................31, 32 

Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 

337 F.3d 314 (3d Cir. 2003).....................................................................................................33 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) ...........................................................................................................10, 19 

Mahoney v. Bank of Am., N.A., 

No. 13-cv-2530, 2014 WL 2197068 (S.D. Cal. May 27, 2014) ..............................................32 

Moody v. Holman, 

887 F.3d 1281 (11th Cir. 2018) ...............................................................................................10 

Nunnelee v. United States, 

573 F. App’x 886 (11th Cir. 2014) ..........................................................................................16 

Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., 

781 F.3d 1245 (11th Cir. 2015) ...............................................................................................17 

Perry v. Cable News Network, Inc., 

854 F.3d 1336 (11th Cir. 2017) ...............................................................................................13 

Phx. Petroleum Co. v. United States, 

215 F.3d 1345, 1999 WL 521189 (Fed. Cir. 1999) .................................................................29 

Regions Bank v. The 62’ Ocean Sport Fish, Hull I.D. No. XY0011462J203, 

2014 WL 37748 (S.D. Fla. Jan. 6, 2014) .................................................................................29 

In re REPH Acquisition Co., 

134 B.R. 194 (Bankr. N.D. Tex. 1991) ....................................................................................30 

Riverside So. Planning Corp. v. CRP/Extell Riverside, L.P., 

869 N.Y.S.2d 511 (1st Dep’t 2008) .........................................................................................31 

Robinson v. Tyson Foods, Inc., 

595 F.3d 1269 (11th Cir. 2010) .........................................................................................33, 34 

Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 

81 F.3d 355 (3d Cir. 1996).......................................................................................................34 

Salcedo v. Hanna, 

936 F.3d 1162 (11th Cir. 2019) ...............................................................................................17 

S.K.Y. Mgmt. LLC v. Greenshoe, Ltd., 

No. 06-cv-21722, 2007 WL 9701121 (S.D. Fla. Mar. 11, 2007) ............................................22 

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Schreiber v. Ocwen Loan Servicing, LLC, 

No. 11-cv-211-32, 2011 WL 6055425 (M.D. Fla. Oct. 17, 2011) .....................................33, 34 

Siegmund v. Xuelian Bian, 

2018 WL 1611847 (S.D. Fla. Apr. 2, 2018) ......................................................................26, 27 

Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 

549 U.S. 422 (2007) .................................................................................................................10 

Skinner v. Switzer, 

562 U.S. 521 (2011) .................................................................................................................11 

Slater v. U.S. Steel Corp., 

871 F.3d 1174 (11th Cir. 2017) .........................................................................................33, 34 

Smith v. Werner Enters., Inc., 

65 F. Supp. 3d 1305 (S.D. Ala. 2014)......................................................................................28 

In re Smith, 

522 F. App’x 760 (11th Cir. 2013) ..........................................................................................14 

Snowden v. Fred’s Stores of Tenn., Inc., 

419 F. Supp. 2d 1367 (M.D. Ala. 2006) ..................................................................................34 

In re Se. Banking Corp. Sec. and Loan Loss Reserves Litig., 

147 F. Supp. 2d 1348 (S.D. Fla. 2001) ....................................................................................29 

Spokeo, Inc. v. Robins, 

136 S. Ct. 1540 (2016) ...........................................................................................12, 13, 18, 20 

Stallings v. Hussmann Corp., 

447 F.3d 1041 (8th Cir. 2006) .................................................................................................29 

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998) ...................................................................................................................10 

In re Think3, Inc., 

529 B.R. 147 (Bankr. W.D. Tex. 2015) ...................................................................................32 

Thole v. U.S. Bank N.A., 

140 S. Ct. 1615 (2020) .............................................................................................................17 

In re Transit Grp., Inc., 

332 B.R. 45 (Bankr. M.D. Fla. 2005) ......................................................................................29 

Trichell v. Midland Credit Mgmt., 

964 F.3d 990 (11th Cir. 2020) .................................................................................................13 

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United States v. Amodeo, 

916 F.3d 967 (11th Cir. 2019) .................................................................................................15 

United States v. Henry, 

621 F. App’x 968 (11th Cir. 2015) ..........................................................................................14 

In re USN Commc’ns, Inc., 

280 B.R. 573 (Bankr. D. Del. 2002) ........................................................................................30 

Ventrassist Pty Ltd. v. Heartware, Inc., 

377 F. Supp. 2d 1278 (S.D. Fla. 2005) ....................................................................................27 

VP Props. & Devs., LLLP v. Seneca Specialty Ins. Co., 

645 F. App’x 912 (11th Cir. 2016) ..........................................................................................27 

Wallace v. Jim Walter Homes, Inc., 

68 F. Supp. 2d 1303 (M.D. Ala. 1999) ....................................................................................26 

Warth v. Seldin, 

422 U.S. 490 (1975) .................................................................................................................17 

Washington v. Shanahan, 

No. 17-cv-00528, 2019 WL 320582 (S.D. Ala. Jan. 24, 2019) .........................................28, 33 

Wilchombe v. TeeVee Toons, Inc., 

555 F.3d 949 (11th Cir. 2009) .................................................................................................11 

Wilding v. DNC Servs. Corp., 

941 F.3d 1116 (11th Cir. 2019) ...............................................................................................19 

In re Wilton Armetale, Inc., 

968 F.3d 273 (3d Cir. 2020).....................................................................................................30 

Statutes 

11 U.S.C. § 350 ..............................................................................................................................34 

11 U.S.C. § 1141 ............................................................................................................................31 

22 U.S.C. § 1643 ..............................................................................................................................4 

22 U.S.C. § 1643b ............................................................................................................................5 

22 U.S.C. § 1643f ............................................................................................................................5 

22 U.S.C. § 6021 ..............................................................................................................................5 

22 U.S.C. § 6023 .................................................................................................................... passim 

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22 U.S.C. § 6081 ............................................................................................................................17 

22 U.S.C. § 6082 .................................................................................................................... passim 

22 U.S.C. § 6085 ..............................................................................................................................7 

Ala. Code § 25-1-29 .......................................................................................................................26 

Pub. L. 88-666, 78 Stat. 1110 (1964) ...............................................................................................4 

Other Authorities 

141 Cong. Rec. S15081-02 (Oct. 12, 1995) ...................................................................................31 

Black’s Law Dictionary (9th ed. 2009) ....................................................................................25, 26 

H.R. Rep. No. 104-468 (1996) .......................................................................................................25 

Rules 

Fed. R. Civ. P. 8 .......................................................................................................................25, 26 

Fed. R. Civ. P. 12 .....................................................................................................................10, 11 

Regulations 

31 C.F.R. § 515.533 .........................................................................................................................9 

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Plaintiff North American Sugar Industries Inc. (“American Sugar”) respectfully submits 

this memorandum of law in opposition to the motion to dismiss the Complaint pursuant to 

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) filed by Defendants Goldwind 

International Holdings (HK) Ltd. (“Goldwind International”); DSV Air & Sea Inc. (“DSV”); 

BBC Chartering USA, LLC (“BBC USA”); and BBC Chartering Singapore Pte Ltd. (“BBC 

Singapore”) (together, “Defendants”), ECF No. 54 (“Mot.”).1 For the following reasons, 

Defendants’ motion should be denied. 

PRELIMINARY STATEMENT 

American Sugar’s well-pleaded Complaint alleges facts establishing Defendants violated 

the Helms-Burton Act by trafficking in American Sugar’s expropriated property. The Complaint 

details Defendants’ respective involvement in two shipments of wind farm equipment delivered 

to American Sugar’s confiscated port in Cuba as part of an extensive wind farm development 

project, and Defendants’ knowledge of their use of (or benefits from) American Sugar’s 

confiscated property. To avoid their statutorily prescribed liability, Defendants seek dismissal 

based on a hodgepodge of consistently rejected Helms-Burton Act arguments as well as 

defective assertions of affirmative defenses that have no place in a motion to dismiss. 

Defendants’ arguments are baseless, and their motion to dismiss should be denied. 

First, as this District’s courts have repeatedly and unanimously held, plaintiffs such as 

American Sugar who hold a certified claim to confiscated property have Article III standing to 

pursue a cause of action under the Helms-Burton Act against defendants who traffic in that 

property. Compare Mot. 10–16 with note 3 infra. In establishing a private right of action under 

 

1

 For purposes of this motion, “Defendants” does not include Xinjiang Goldwind Science & 

Technology Co., Ltd. (“Goldwind Science”), which has not yet appeared in this action. 

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the Helms-Burton Act, Congress recognized that victims of expropriation hold a continuing 

property interest in their confiscated property and suffer continuing injury. Foreign investors’ 

use of expropriated property injures Helms-Burton plaintiffs because it contributes to the 

commercial success of their misappropriated assets in the hands of the Cuban government while 

depriving the rightful owners of the benefits of or compensation for the use of their property. 

Indeed, every court within this Circuit to consider the issue has concluded that conduct such as 

Defendants’, including specifically the use of a port expropriated by the Cuban government, 

qualifies as an injury in fact sufficient to support Article III standing. See note 3 infra. Because 

American Sugar has suffered concrete injury at the hands of Defendants, it has Article III 

standing to seek redress. 

Second, Defendants make a meritless attempt to front a scope-of-damages argument at 

the motion to dismiss stage, arguing that American Sugar failed to allege facts establishing that 

Defendants trafficked in every bit of property listed in its certified claim. Mot. 29–32. But the 

Helms-Burton Act contains no such requirement, which would of course be absurd. Nothing in 

the Helms-Burton Act conditions American Sugar’s recovery of the full amount of its certified 

claim on allegations that Defendants trafficked not just in the confiscated port but also, for 

example, the confiscated warehouses and sugarcane fields—or on allegations that Defendants 

milked every cow or rode every horse that once formed part of the assets stolen by the Cuban 

government. To the contrary, the Act expressly provides that any trafficking in confiscated 

property identified in the certified claim is prohibited, and that the minimum amount of damages 

for which Defendants are liable should they choose to traffic in a plaintiff’s confiscated property 

is the total valuation of the expropriated property as contemporaneously determined and certified 

by the United States Foreign Claims Settlement Commission and set forth in the final certified 

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claim. Further, given the certified claim process, the Act mandates a presumption that 

Defendants’ liability is triple the certified claim amount, and places the burden on Defendants to 

prove by “clear and convincing evidence” that another damages calculation specified in the Act 

is appropriate. 22 U.S.C. § 6082(a)(2). Defendants’ contrary argument is not only made up out 

of whole cloth, it would render these statutory provisions a nullity. It should be rejected. 

Third, contrary to Defendants’ reading, the Helms-Burton Act preserves judicial 

resources and avoids duplicative lawsuits by prohibiting the bringing of multiple separate 

actions; it does not prohibit a multi-count complaint. See Mot. 32–34. And Defendants’ 

objection that American Sugar’s civil conspiracy claim overlaps with its Helms-Burton Act 

claims disregards (i) the fact that under Florida law, civil conspiracy is a derivative claim that 

requires an independent wrong—here, the Helms-Burton Act violations; and (ii) American 

Sugar’s allegations, separate and apart from Defendants’ alleged trafficking, that meet the 

elements of a civil conspiracy claim. 

Finally, Defendants’ bankruptcy-related affirmative defenses are both procedurally 

improper and substantively meritless. The factual issues raised by Defendants’ asserted 

affirmative defenses vastly exceed the scope of the Complaint and cannot be resolved on a 

motion to dismiss. And even if the Court took judicial notice of Defendants’ exhibits 

themselves, totaling over 1,800 pages of extrinsic evidence—it should not—there is no basis for 

this Court to take judicial notice of Defendants’ cherry picking and incorrect interpretations of 

segments of those documents on a motion to dismiss or otherwise. These two premature 

affirmative defenses, not properly raised now, are also meritless. To be clear, “bankruptcy 

standing” is an affirmative defense and does not implicate this Court’s subject matter 

jurisdiction. And Defendants, none of whom are American Sugar’s creditors, nevertheless 

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dubiously claim that American Sugar did not sufficiently reserve its rights under Section 

1123(b)(3) of the Bankruptcy Code to pursue any potential Helms-Burton Act claims. But 

Defendants disregard the fact that American Sugar’s creditors negotiated and agreed to what 

Defendants acknowledge is a “pre-packaged” Chapter 11 plan providing that American Sugar 

has the exclusive right to pursue any causes of action after the bankruptcy, including any right it 

had to “tort” claims such as the Helms-Burton Act claims at issue here. Further, the Chapter 11 

plan prohibits those creditors from challenging American Sugar’s pursuit of any cause of action, 

including any estoppel-based defenses. Defendants have no basis for seeking a windfall by 

asserting objections that those creditors voluntarily relinquished. 

Nor are Defendants entitled to judicial estoppel because they fail to correctly state, let 

alone satisfy, their heavy burden of establishing that American Sugar acted with a culpable 

mental state in a prior bankruptcy proceeding by supposedly failing to detail Helms-Burton Act 

claims—and if Defendants elect to plead such a defense in their answer, they will not sustain 

their burden of proof as to that essential element. At the current stage of these proceedings, it 

should suffice that the Eleventh Circuit has expressly rejected a bare reliance on cold bankruptcy 

court filings to make this kind of state-of-mind showing, which Defendants improperly ignore in 

favor of contradictory, out-of-Circuit case law. 

The Court should therefore deny Defendants’ motion and permit this action to proceed. 

BACKGROUND 

I. Statutory Background 

American Sugar’s claims in this case arise from the interplay of two federal statutes 

addressing the Cuban government’s expropriation of property in Cuba owned by U.S. nationals: 

Title V of the International Claims Settlement Act of 1949, Pub. L. 88-666, 78 Stat. 1110 (1964) 

(codified at 22 U.S.C. §§ 1643–1643k (1964)) (“ICSA”), and the Cuban Liberty and Democratic 

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Solidarity Act of 1996, 22 U.S.C. § 6021, et seq. (1996) (the “Helms-Burton Act”). Those laws 

are described further below. 

A. The Cuba Claims Program 

In response to (among other things) Cuba’s Communist Revolution and the Castro 

regime’s confiscation of private property belonging to U.S. nationals, Congress in 1964 enacted 

the ICSA. That statute established the Cuba Claims Program, which was administered by the 

United States Foreign Claims Settlement Commission (“FCSC”) until the program’s closure in 

1972. Compl. ¶¶ 26–27. Under the program, the FCSC “receive[d] and determine[d] . . . the 

amount and validity of claims by nationals of the United States against the Government of 

Cuba . . . for losses resulting from the nationalization, expropriation, intervention, or other taking 

of . . . property including any rights and interests therein owned wholly or partially, directly or 

indirectly at the time by” U.S. nationals. 22 U.S.C. § 1643b(a). In doing so, the FCSC was 

required to “take into account the basis of valuation most appropriate to the property and 

equitable to the claimant.” Id. Upon completing its analysis of a claim filed under the Cuban 

Claims Program, the FCSC made value determinations and issued a certified claim specifying 

“the amount determined by the [FCSC] to be the loss or damage suffered by the claimant,” as 

well as “the basic information underlying that amount” and “a statement of the evidence relied 

upon and the reasoning employed in reaching its decision.” Id. § 1643f(a). 

Importantly, an FCSC-certified claim did not itself entitle the claimant to any relief; the 

ICSA “does not provide for the payment of claims against the Government of Cuba,” and 

“specifically preclude[d] any authorization for appropriations for payment of [such] claims.” 

Compl., Exh. 1 (“Certified Claim”) at 21 (emphasis in original). Rather, the ICSA contemplated 

that the Secretary of State would rely on FCSC-certified claims to negotiate and enter into a 

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potential monetary settlement with the Cuban government. Compl. ¶ 34. That changed several 

decades later with the enactment of the Helms-Burton Act.

B. The Helms-Burton Act 

The Cuban government has long permitted for-profit businesses to use and benefit from 

property it expropriated from United States nationals, including American Sugar. Compl. ¶¶ 71–

74. To redress this problem and advance the United States’ opposition to lawless use of Cubaexpropriated property for which plaintiffs like American Sugar have received no compensation, 

Congress passed the Helms-Burton Act in 1996. Relevant here, Title III of the Helms-Burton 

Act provides a private right of action against any person who “traffics” in property that the 

Cuban government confiscated from a U.S. national on or after January 1, 1959. 22 U.S.C. 

§ 6082. The statute defines “traffics” broadly to include (among other conduct) a person who 

“knowingly”—that is, “with knowledge or having reason to know,” 22 U.S.C. § 6023(9)—and 

“intentionally” “engages in a commercial activity using or otherwise benefiting from confiscated 

property,” or who “causes, directs, participates in, or profits from” such commercial activity by 

another person. 22 U.S.C. § 6023(13). Congress was acting well within its legislative authority 

to fashion a remedy for parties’ voluntary participation in these ongoing wrongs. 

Contrary to Defendants’ assertion that American Sugar seeks “extraordinary” damages, 

Mot. 1, American Sugar’s requested relief is statutorily prescribed. A person who “traffics” is 

liable to a plaintiff under Title III of the Helms-Burton Act for treble damages, 22 U.S.C. 

§ 6082(a)(3)(C), interest accruing from “the date of the confiscation of the property involved to 

the date on which the action is brought,” id. § 6082(a)(1)(B), and court costs and reasonable 

attorneys’ fees, id. § 6082(a)(1)(A)(ii). Further, the Helms-Burton Act applies a presumption—

rebuttable only by “clear and convincing evidence”—that damages (before trebling) equal the 

amount specified in an FCSC-certified claim. Id. § 6082(a)(2). 

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Title III’s private right of action only recently became available to plaintiffs such as 

American Sugar. Title III includes a provision authorizing the President to suspend the private 

right of action. 22 U.S.C. § 6085(c). As Defendants themselves recognize, see Mot. 1, since the 

Helms-Burton Act’s enactment, until now every President has continuously suspended the 

private right of action. Compl. ¶¶ 42, 45. On May 2, 2019, the Trump Administration fully 

lifted this suspension for the first time ever. Id. ¶ 46. 

II. Factual Background 

A. Defendants’ Trafficking in American Sugar’s Confiscated Property 

Before Fidel Castro’s rise to power, American Sugar owned and operated a lucrative 

business in Cuba producing, refining, and transporting raw sugar. Compl. ¶ 2. American Sugar 

owned and maintained a wide array of assets used in its business operations, including land and 

crops, farm buildings, power-generation systems, a railroad, and large commercial shipping 

ports, such as Puerto Carupano (the “Confiscated Port”). Id. ¶¶ 2, 63–67. In 1959 and 1960, the 

regime formed in the aftermath of the Cuban Communist Revolution seized American Sugar’s 

property in Cuba without compensation, effectively terminating American Sugar’s business 

operations in Cuba. Id. ¶¶ 3–4, 68–70. In 1969, American Sugar submitted a claim to the FCSC, 

which “certifie[d] that [American Sugar] suffered a loss, as a result of actions of the Government 

of Cuba,” in the amount of $97,373,414.72, plus 6% annual interest on nearly all of that amount 

from July 20, 1960 “to the date of settlement.” Id. ¶¶ 76–79 & Certified Claim at 21. American 

Sugar’s Certified Claim is publicly accessible and has been widely reported in news reports as 

recently as 2015. Compl. ¶ 76 & nn.6–7. 

Defendants, which are engaged in the wind power equipment and shipping industries, 

illegally trafficked in American Sugar’s confiscated property by engaging in various commercial 

activities in support of the Herradura Wind Farm Project (the “Project”)—a state-sponsored, 

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multi-hundred-million-dollar wind power project in Cuba—including their participation in two 

deliveries of wind farm equipment to the Confiscated Port for use in the Project. Id. ¶¶ 85, 134–

139, 169–174. Goldwind International, a foreign wind farm equipment manufacturer, entered 

into a comprehensive commercial agreement with a state-owned Cuban entity, Empresa 

Importadora-Exportadora de Objetivos Electro-Energéticos (“Energoimport”), to provide wind 

farm equipment, as well as designs, technical support, and long-term operations and maintenance 

services, for the Project, which Goldwind International identified as having “great significance in 

Cuba’s new energy strategy.” Id. ¶ 88 & n.11. It also caused its parent company, Goldwind 

Science, to ship wind farm equipment from China to Energoimport. Id. ¶¶ 88–89, 106, 149, 

201–202. 

Through a series of mutually beneficial commercial arrangements among Defendants, the 

equipment was loaded onto and shipped on two vessels, the BBC Moonstone and the BBC Jade, 

both of which belong to the “Briese Group,” a network of companies that includes BBC USA 

and BBC Singapore. Id. ¶¶ 23, 104, 111, 154. Both shipments were destined for and unloaded 

at the Confiscated Port. Id. ¶¶ 92–93, 104–115, 133–143, 154, 168–177. 

As of part of their plans for successfully completing the delivery of windfarm equipment 

on the two ships, and as an integral component of complying with other relevant U.S. laws, 

Defendants arranged for the BBC Moonstone and the BBC Jade to each stop in Florida before 

arriving at the Confiscated Port. Id. ¶¶ 134–135, 137, 169–170, 172. DSV, BBC USA, and BBC 

Singapore provided transportation and/or logistical services supporting the shipments, the two 

vessels, and their stops in Florida and Cuba. Id. ¶¶ 108–115, 156–160. Importantly, the stops in 

Florida were not only to refuel and resupply, id., but (as Defendant BBC Singapore is at pains to 

point out) also to comply with U.S. laws other than the Helms-Burton Act. Dkt. No. 48 at 5–6, 

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15. BBC Singapore now admits that the equipment onboard the BBC Moonstone and BBC Jade 

was “deemed to be an export of U.S. manufactured goods, which required an export license and 

clearance by U.S. customs officials in the U.S.,” see Dkt. No. 50-1 ¶ 15, and that both ships 

stopped in Miami for the express purpose of obtaining necessary clearance from U.S. Customs to 

complete the shipments to the Confiscated Port, Dkt. Nos. 50-5, 50-6. Indeed, before the 

equipment could be delivered to Cuba, both ships had to stop in Miami to obtain authorization 

under U.S. laws governing sanctions on Cuba, which provide for certain licenses to export 

“items from the United States . . . [to] Cuba.” 31 C.F.R. § 515.533. By contrast, had the two 

vessels traveled from China to Cuba without a stopover in Florida, the shipments would have 

been ineligible for such authorization, since they would have lacked the requisite shipment 

designation “from the United States,” and subjected Defendants to potential U.S. sanctions 

violations. 

In addition, after delivering equipment to the Confiscated Port, the BBC Moonstone 

proceeded to deliver cargo to BBC USA in Port Arthur, Texas. Id. ¶ 140. Further, Goldwind 

Science and/or Goldwind International were involved in additional shipments of wind farm 

equipment to the Confiscated Port on unidentified vessels. Id. ¶¶ 184–188. These mutually 

beneficial commercial arrangements and activities by and among the Defendants clearly 

establish their commercial activities “using or otherwise benefitting from” American Sugar’s 

Confiscated Property, as well as their causing, participating in, or benefitting from the trafficking 

activities of each other. 

B. Relevant Procedural History 

American Sugar filed the Complaint on June 15, 2020. Dkt. No. 1. On August 31, 2020, 

Defendants jointly filed the instant motion to dismiss, along with an attorney declaration 

attaching over 1,800 pages of filings in a prior Chapter 11 bankruptcy case, commenced in the 

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U.S. Bankruptcy Court for the District of Delaware on behalf of American Sugar, its parent 

companies, and 13 of its affiliates. Dkt. Nos. 54, 54-1.2

 Separately, Defendants filed three 

motions to dismiss for lack of personal jurisdiction (the “Rule 12(b)(2) Motions”), Dkt. Nos. 48, 

52–53, which are currently the subject of American Sugar’s pending motion for leave to conduct 

jurisdictional discovery, see Dkt. No. 59. On October 14, 2020, the Court partially granted 

American Sugar’s motion for a stay of the briefing schedule for the Rule 12(b)(2) Motions, see 

Dkt. Nos. 60, 66. 

LEGAL STANDARDS 

Defendants challenge American Sugar’s standing to bring this action under Article III of 

the United States Constitution based on their claim that American Sugar has not pleaded an 

injury in fact, and thereby the Court’s subject matter jurisdiction pursuant to Federal Rule of 

Civil Procedure 12(b)(1). Article III “standing is a threshold jurisdictional question which must 

be addressed prior to and independent of the merits of a party’s claims.” Corbett v. Transp. Sec. 

Admin., 930 F.3d 1225, 1232 (11th Cir. 2019); see also Sinochem Int’l Co. Ltd. v. Malaysia Int’l 

Shipping Corp., 549 U.S. 422, 431 (2007); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 

94 (1998). But “[a]t the pleading stage, general factual allegations of injury resulting from the 

defendant’s conduct may suffice” because, on a motion to dismiss, a court “‘presum[es] that 

general allegations embrace those specific facts that are necessary to support the claim.’” Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citation omitted); see also Moody v. Holman, 887 

F.3d 1281, 1286 (11th Cir. 2018) (on a motion to dismiss, “general factual allegations of injury 

resulting from the defendant’s conduct may be sufficient to show standing”). 

 

2

 For the reasons stated below, the Court should not take judicial notice of these records. See 

infra Section IV & note 7. 

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The balance of Defendants’ motion, including their purported bankruptcy “standing” 

argument, is subject to Federal Rule of Civil Procedure 12(b)(6). A court’s review on a Rule 

12(b)(6) motion to dismiss is “‘limited to the four corners of the complaint.’” Wilchombe v. 

TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (citation omitted). “A court may 

consider only the complaint itself and any documents referred to in the complaint which are 

central to the claims.” Id. A complaint “must contain sufficient factual matter, accepted as true, 

to ‘state a claim to relief that is plausible on its face,’” meaning that it must contain “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) (citation omitted). The 

question is “‘not whether [the claimant] will ultimately prevail . . . but whether his complaint [is] 

sufficient to cross the federal court’s threshold.’” Skinner v. Switzer, 562 U.S. 521, 529–30 

(2011) (citation omitted). “When reviewing a motion to dismiss, a court must construe the 

complaint in the light most favorable to the plaintiff and take the factual allegations therein as 

true.” It’s a New 10, LLC v. Harris, No. 18-cv-62741, 2019 WL 451205, at *1 (S.D. Fla. Feb. 5, 

2019). The complaint need not plead “detailed factual allegations,” but must demonstrate “more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will 

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “‘The [c]ourt does not view 

each fact in isolation . . . but considers the complaint in its entirety.’” Imagine Commc’ns Corp. 

v. Villegas, No. 17-cv-20401, 2017 WL 2304013, at *2 (S.D. Fla. May 19, 2017) (citation 

omitted). 

ARGUMENT 

I. American Sugar Has Article III Standing to Bring Its Claims Against Defendants 

Contrary to Defendants’ assertions, American Sugar has established Article III standing 

to pursue its claims. Every court within the Eleventh Circuit to consider the issue—including in 

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three cases involving the use of a port confiscated by the Cuban government—has rejected 

Defendants’ Article III standing arguments.3

 Those courts have found that a plaintiff holding an 

FCSC-certified claim to confiscated property has standing to pursue a cause of action under the 

Helms-Burton Act against defendants who traffic in that property. See note 3 supra. These wellreasoned decisions are equally applicable to this case. 

The “irreducible constitutional minimum” of standing has three elements: “[t]he 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). Here, American Sugar has alleged in its wellpleaded complaint that the Cuban government expropriated the Confiscated Property, see Compl. 

¶¶ 63–75, that American Sugar holds an FCSC-certified claim for the Confiscated Property, see 

id. ¶¶ 76–81 & Certified Claim, and that Defendants used and/or benefitted from the use of the 

Confiscated Property without providing any compensation to American Sugar, see, e.g., Compl. 

¶¶ 1, 11, 82–188. As explained below, case law from this Circuit establishes without exception 

that these allegations fulfill Article III standing requirements. 

A. American Sugar Has Adequately Pleaded an Injury in Fact 

To establish an injury in fact, a plaintiff must show that it suffered “an invasion of a 

legally protected interest” that is “concrete and particularized” and “actual or imminent, not 

 

3

 See Havana Docks Corp. v. Carnival Corp., 2020 WL 5517590, No. 19-cv-21724, at *11 (S.D. 

Fla. Sept. 14, 2020); Havana Docks Corp. v. MSC Cruises SA Co., No. 19-cv-23588, 2020 WL 

5367318, at *3 (S.D. Fla. Sept. 8, 2020); Havana Docks Corp. v. Norwegian Cruise Line 

Holdings, Ltd., No. 19-cv-23591, 2020 WL 5217218, at *3 (S.D. Fla. Sept. 1, 2020); Order on 

Mot. to Dismiss, Cueto Iglesias v. Pernod Ricard, No. 20-cv-20157 (S.D. Fla. Aug. 17, 2020), 

ECF No. 55.

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conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548 (citation omitted). Each of these 

elements is met here. 

1. American Sugar Has Pleaded a Concrete Injury 

Defendants’ primary contention is that American Sugar has not pleaded a “concrete” 

injury sufficient to find standing. Mot. 10–16. That is incorrect. A “concrete” injury “must 

actually exist” but need not be “tangible,” as “intangible injuries can nevertheless be concrete.” 

Spokeo, 136 S. Ct. at 1548–49. “[A] statutorily-constructed right . . . is sufficient where the right 

is constructed to address a concrete harm.” Carnival Corp., 2020 WL 5517590, at *7 (citing 

Spokeo, 136 S. Ct. at 1549); accord Church v. Accretive Health, Inc., 654 F. App’x 990, 995 

(11th Cir. 2016); Perry v. Cable News Network, Inc., 854 F.3d 1336, 1340 (11th Cir. 2017). 

“Congress is ‘well positioned’ to make its own judgment about which harms are sufficiently 

concrete, particularized, and imminent to constitute injuries in fact.” Trichell v. Midland Credit 

Mgmt., 964 F.3d 990, 998 (11th Cir. 2020) (quoting Spokeo, 136 S. Ct. at 1549). 

Applying these principles, American Sugar has sufficiently alleged a concrete harm. 

Courts have recognized that Congress enacted the private right of action under the Helms-Burton 

Act “because the remedies for (1) the wrongful confiscation of property by foreign governments; 

and (2) the subsequent unjust enrichment and economic exploitation of that property by foreign 

investors at the expense of the rightful owners, were ineffective.” Carnival Corp., 2020 WL 

5517590, at *7 (citing 22 U.S.C. § 6081(10)). “Quite simply, the right identified by Congress 

was a property interest,” and a Helms-Burton Act plaintiff such as American Sugar suffers a 

“real” injury “because it is not receiving the benefit of its interest in” its confiscated property, 

“and Defendant[s’] subsequent trafficking in the confiscated property . . . undermine[s] 

[p]laintiff’s right to compensation for that expropriation.” Id.; accord MSC Cruises SA Co., 

2020 WL 5367318, at *6; Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at *6; 

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Order on Mot. to Dismiss at 16, Cueto Iglesias, No. 20-cv-20157 (finding that plaintiff suffered 

the injury of being deprived of “the proceeds obtained by a third party . . . who allegedly 

intentionally and knowingly trafficked in that confiscated property”). 

Defendants nevertheless marshal a host of reasons why American Sugar supposedly lacks 

standing to pursue its claims in this case. None has merit. First, Defendants’ argument that 

American Sugar did not suffer any injury in fact because it has not owned the Confiscated Port 

since 1960, Mot. 13, has already been considered—and rejected—by courts in this Circuit. See 

Carnival Corp., 2020 WL 5517590, at *7; MSC Cruises SA Co., 2020 WL 5367318, at *6; 

Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at *6. As explained above, the 

concrete injury American Sugar suffered is a harm to its “property interest” recognized by 

Congress to redress concrete injuries, see Carnival Corp., 2020 WL 5517590, at *7; those courts 

have correctly reasoned that “[w]hile the injury may have its origin in the confiscation” by the 

Cuban government, the “continued use” of the confiscated property by Defendants does not 

“make[] Plaintiff’s harm less tangible today.” Id. Defendants’ assertion that ownership of 

property is needed for standing to claim misuse of that property is also wrong on the law. “At its 

core, Article III standing requires the existence of injury, not ownership.” United States v. 

Henry, 621 F. App’x 968, 972 (11th Cir. 2015). A plaintiff may have standing as long as it 

possesses an interest that suffices under the law, and there are numerous instances in which 

property interests short of ownership suffice to confer standing for a claim related to that 

property. See id.; In re Smith, 522 F. App’x 760, 765 (11th Cir. 2013). 

Defendants’ cited cases do not support a different result. Courts in this Circuit have 

uniformly declined to follow Glen v. American Airlines, No. 20-cv-482-A, 2020 WL 4464665 

(N.D. Tex. Aug. 3, 2020), which Defendants invoke to argue that trafficking cannot injure 

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former owners of expropriated property (Mot. 15–16). See Norwegian Cruise Line Holdings, 

Ltd., 2020 WL 5217218, at *7; Carnival Corp., 2020 WL 5517590, at *8; MSC Cruises SA Co., 

2020 WL 5367318, at *7. Those courts have correctly observed that the facts in Glen are 

entirely distinguishable from cases such as this one, since in Glen, “the plaintiff admitted that 

neither the Cuban government’s confiscation of the properties nor the hotels’ operations 

constituted injuries in fact.” Carnival Corp., 2020 WL 5517590, at *8 (emphasis added); see 

also Glen, 2020 WL 4464665, at *2. Thus, “[c]ontrary to the conclusion in Glen . . . that the 

plaintiff had no standing because there was no allegation of concrete harm,” courts in this Circuit 

have found “that the allegations of profiting from the use of property that was expropriated 

without obtaining consent or paying adequate compensation to the original owner is sufficient 

concrete harm for standing purposes.” Carnival Corp., 2020 WL 5517590, at *8; accord 

Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at *7; MSC Cruises SA Co., 2020 

WL 5367318, at *7. 

Similarly, at least one court in this Circuit has already rejected any “misplaced” reliance 

on United States v. Amodeo, 916 F.3d 967 (11th Cir. 2019), to contest standing under the HelmsBurton Act. Carnival Corp., 2020 WL 5517590, at *7 n.5. And for good reason: Amodeo

merely held that a criminal defendant who voluntarily forfeited his assets lacked standing to 

participate in the forfeiture process after the “forfeiture order extinguished all of [his] interest” in 

the property at issue. 916 F.3d at 972 (emphasis added). “This case, by contrast, is a civil 

matter,” American Sugar’s “property was not voluntarily forfeited but rather unlawfully 

confiscated,” American Sugar’s “instant claims are moored in a statutory cause of action,” and 

American Sugar “alleges that Defendant[s] knowingly and intentionally participated in and 

profited from the unauthorized use of the [Confiscated] Property.” Carnival Corp., 2020 WL 

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5517590, at *7 n.5. As an unwilling victim of confiscation, American Sugar is entitled to assert 

its property interests in the amount certified by the FCSC, and to demand compensation not only 

from the Cuban government, but also those that Congress has made liable as accessories for 

participating with that government in the exploitation of the Confiscated Property. 

Defendants’ reliance on Glen v. Club Mediterranee, S.A., 450 F.3d 1251 (11th Cir. 2006) 

(“Club Med”) is also misplaced. Mot. 13. Club Med stands for the proposition that a plaintiff 

whose property was confiscated no longer has the “ownership” interest necessary to make out a 

trespass claim; it does not refute that other property interests can be sufficient for Article III 

standing under a different law such as the federal law at issue here. 450 F.3d at 1255. In fact, 

the Club Med court noted that once the suspension on private actions under the Helms-Burton 

Act was lifted, actions would be properly “brought ‘on a claim to the confiscated property’ 

against traffickers in the property.” Id. (citation omitted).4

 Defendants’ reliance on a case that 

expressly distinguishes between its ruling on a trespass claim and a potential Helms-Burton 

claim is little short of inexplicable. 

Second, Defendants’ argument that American Sugar lacks standing because Defendants’ 

trafficking did not “change . . . [P]laintiff’s position,” Mot. 13–15, is equally flawed. As 

discussed in detail above, a Helms-Burton Act plaintiff suffers a separate, concrete injury from a 

defendant’s continued wrongful use of property previously expropriated by the Cuban 

government, including the loss of compensation for use of such property; courts have recognized 

that such a concrete injury is no “less tangible today.” Carnival Corp., 2020 WL 5517590, at *7. 

 

4

 Similarly, Defendants cite irrelevant cases addressing whether state laws require property 

ownership as an element. See Nunnelee v. United States, 573 F. App’x 886, 887 (11th Cir. 2014) 

(“Under Alabama law, there can be no action based on trespass absent a right of possession.”); 

Harris v. Orange S.A., 636 F. App’x 476, 483–84 (11th Cir. 2015) (considering whether 

“ownership is a necessary element for standing to bring a [Georgia Trade Secrets Act] claim”). 

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Further, it has long been established that Congress can define new legal rights that confer legal 

standing to vindicate a pre-existing injury. See, e.g., Warth v. Seldin, 422 U.S. 490, 500 (1975); 

Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., 781 F.3d 1245, 1251 (11th Cir. 

2015). Here, it was well within Congress’s powers to decide that those who use stolen property 

in concert with the thief are just as liable to the victim as the thief. And in enacting the HelmsBurton Act, Congress expressly sought to remedy not just the expropriation of property, but also 

“the subsequent exploitation of this property at the expense of the rightful owner,” and the lack 

of “fully effective remedies for . . . unjust enrichment from the use of wrongfully confiscated 

property by . . . private entities” such as Defendants. 22 U.S.C. § 6081(2), (8); see also Salcedo 

v. Hanna, 936 F.3d 1162, 1170 (11th Cir. 2019) (“We consider the judgment of Congress when 

assessing standing because Congress is well positioned to identify intangible harms that meet 

minimum Article III requirements.”) (quotation marks omitted). 

Indeed, Defendants’ reliance on the Supreme Court’s recent decision in Thole v. U.S. 

Bank N.A., 140 S. Ct. 1615 (2020), only underscores the difference between American Sugar and 

a plaintiff whose position truly did not change. Unlike the plaintiffs in Thole, who were fixed 

benefit plan participants that would continue to receive the same fixed benefits regardless of 

whether they won or lost their lawsuit, id. at 1619–20, American Sugar suffered a concrete injury 

(and thus experienced a change in “position”) when Defendants used its Confiscated Property 

without permission or compensation; Congress reasonably determined that those who use 

confiscated property in concert with the Cuban government must respond for their conduct in 

treble damages. Nothing about that judgment remotely implicates Article III. 

Third, Defendants’ insistence that merely “alleg[ing] the elements of a cause of action 

created by Congress” cannot itself confer standing, Mot. 11, is simply beside the point. As 

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explained above, American Sugar has not alleged “a bare procedural violation, divorced from 

any concrete harm.” Spokeo, 136 S. Ct. at 1549. Far from it: Title III of the Helms-Burton Act 

confers rights that were “constructed to address a concrete harm,” Carnival Corp., 2020 WL 

5517590, at *7, and thus is a proper basis for the requisite injury in fact. Defendants’ standing 

argument therefore fails. 

2. American Sugar Has Properly Pleaded the Other Elements of an 

Injury in Fact 

Defendants do not seriously dispute that American Sugar has adequately pleaded the 

remaining elements of an injury in fact: 

Legally Protected Interest. To be sure, “[n]o legally cognizable injury arises unless an 

interest is protected by statute or otherwise,” and “[t]hat interest must consist of obtaining 

compensation for . . . the violation of a legally protected right.” Carnival Corp., 2020 WL 

5517590, at *7 (citations omitted). But as courts have recognized, the Helms-Burton Act cause 

of action meets this prong, since “trafficking in confiscated property is an invasion of a legally 

protected interest” in confiscated property under the Act, “which conveys a right to prevent 

third-party use of the same.” Id. (first emphasis added). Further, “[t]he remedy for the violation 

of that right is compensation from third parties for trafficking in” a plaintiff’s confiscated 

property. Id.; accord MSC Cruises SA Co., 2020 WL 5367318, at *6; Norwegian Cruise Line 

Holdings, Ltd., 2020 WL 5217218, at *6. 

Particularity. For an injury to be “particularized,” it “must affect the plaintiff in a 

personal and individual way.” Spokeo, 136 S. Ct. at 1548 (citation omitted). This requirement is 

amply met where, as here, a plaintiff’s “injury is entirely personalized to its interest in its 

Certified Claim to the [Confiscated] Property,” and a plaintiff “seeks only to vindicate its own 

property rights in this action.” Carnival Corp., 2020 WL 5517590, at *8; accord MSC Cruises 

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SA Co., 2020 WL 5367318, at *7; Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at 

*7. 

Imminence. This requirement is met where “both the challenged conduct and the 

attendant injury have already occurred.” Carnival Corp., 2020 WL 5517590, at *8 (citation 

omitted); accord MSC Cruises SA Co., 2020 WL 5367318, at *7; Norwegian Cruise Line 

Holdings, Ltd., 2020 WL 5217218, at *7. Here, American Sugar has alleged that Defendants’ 

trafficking activities and their injuries have already happened. See Compl. ¶¶ 133–141, 168–

175, 184–245. Thus, consistent with all four cases in this District that have considered this 

question and rejected Defendants’ standing argument, see note 3 supra, American Sugar has 

adequately pleaded an injury in fact. 

B. American Sugar’s Injury in Fact Is Fairly Traceable to Defendants’ 

Trafficking Activities 

American Sugar’s alleged injuries are fairly traceable to Defendants’ trafficking in the 

Confiscated Property. Although the traceability element requires “a causal connection between 

the injury and the conduct complained of,” Lujan, 504 U.S. at 560, “[p]roximate causation is not 

a requirement,” Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1125 (11th Cir. 2019) (citation 

omitted). Rather, “even harms that flow indirectly from the action in question can be said to be 

‘fairly traceable’ to that action for standing purposes.” Id. (citation omitted). That threshold is 

readily met here. Courts in this Circuit have recognized that a defendant’s “conduct of using and 

profiting from the [Confiscated] Property is fairly traceable to” a plaintiff’s claimed injuries 

under the Helms-Burton Act, since indirect harms from such conduct are still “fairly traceable” 

to that conduct. Carnival Corp., 2020 WL 5517590, at *10; accord MSC Cruises SA Co., 2020 

WL 5367318, at *8; Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at *8. 

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Defendants nevertheless argue that American Sugar’s injuries are attributable to the 

Cuban government’s expropriation of the Confiscated Property, and not to Defendants’ actions. 

Mot. 12. But that argument has also been rejected by every court in this Circuit that has 

considered it. Carnival Corp., 2020 WL 5517590, at *10; accord MSC Cruises SA Co., 2020 

WL 5367318, at *8; Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at *8. That is 

because “Congress has the power to . . . articulate chains of causation that will give rise to a case 

or controversy where none existed before.” Spokeo, 136 S. Ct. at 1549 (citation omitted). 

Accordingly, “[i]n enacting Title III [of the Helms Burton Act], Congress recognized that there 

exists a causal link between a claimant’s injury from the Cuban Government’s expropriation of 

their property and a subsequent trafficker’s unjust enrichment from its use of that confiscated 

property.” Carnival Corp., 2020 WL 5517590, at *9; accord MSC Cruises SA Co., 2020 WL 

5367318, at *8; Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at *8. Thus, 

Defendants’ “argument that the causal chain ceases with the Cuban Government falls short.” 

Carnival Corp., 2020 WL 5517590, at *10. 

C. A Decision in American Sugar’s Favor Will Likely Redress American 

Sugar’s Injuries 

Defendants do not dispute that American Sugar’s injuries from Defendants’ trafficking 

activities are “likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 

1547. “The Court of Appeals for the Eleventh Circuit has explained that, where the injury 

alleged is a monetary injury, such an injury can be redressed by an award of compensatory 

damages.” Carnival Corp., 2020 WL 5517590, at *10. Consistent with this principle, courts 

have recognized that monetary damages awarded under Title III “would sufficiently redress the 

harm” a “[p]laintiff allegedly suffered from the Cuban Government’s confiscation of the 

[Confiscated] Property and [a] [d]efendant’s subsequent unjust enrichment from the use of the 

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confiscated property at [a] [p]laintiff’s expense.” Id.; accord MSC Cruises SA Co., 2020 WL 

5367318, at *9; Norwegian Cruise Line Holdings, Ltd., 2020 WL 5217218, at *9. 

II. American Sugar Has Stated a Trafficking Claim under the Helms-Burton Act 

Despite conceding that the Complaint “alleges facts that the Defendants trafficked in the 

Confiscated Port,” and that the Port is part of the Confiscated Property for which American 

Sugar holds a Certified Claim, Defendants nevertheless seek dismissal on the ground that 

American Sugar has not alleged trafficking by Defendants in all of the Confiscated Property. 

Mot. 30. As with several of Defendants’ other arguments, this gambit has already been 

considered—and rejected—in an analogous Helms-Burton Act case in this District involving 

trafficking in an expropriated port. See MSC Cruises SA Co., 2020 WL 5367318, at *17. 

Further, it is a poorly conceived and premature effort to limit damages on the basis of a meritless 

argument, which is not an appropriate basis for a motion to dismiss in any event. 

Defendants’ attempt to superimpose an additional pleading requirement fails because it 

“ignores the explicit language of” Title III of the Helms-Burton Act, which imposes liability for 

“trafficking in confiscated property, not in specific property interests.” Id. (citing 22 U.S.C. 

§ 6023(13)(A)). That same express language provides that the minimum amount of damages for 

which a defendant is liable is “the amount . . . certified to the claimant by the” FCSC in a 

certified claim, 22 U.S.C. § 6082(a)(1)(A)(i) (emphasis added)—not (as Defendants insist) a 

portion of that amount attributable to a specific property interest. In fact, a damages calculation 

based on “the value of th[e] property” is only relevant to the extent that it “is . . . greater” than 

the amount set forth in a FCSC-certified claim. Id. (emphasis added). Put differently, nothing in 

the Helms-Burton Act places the burden on American Sugar to plead (let alone prove) that 

Defendants trafficked in every individual piece of property listed in the Certified Claim. 

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Quite the opposite: the Act adopts a “presumption that the amount for which [Defendants 

are] liable . . . is the amount that is certified” in American Sugar’s Certified Claim, without 

reference to any specific pieces of expropriated property. 22 U.S.C. § 6082(a)(2). And 

Defendants bear the burden of rebutting this presumption with “clear and convincing evidence” 

proving that another measure of damages defined in the Act “is the appropriate amount of 

liability.” Id. Defendants ask the Court to nullify this statutory presumption—and their 

evidentiary burden to rebut it—by subjecting American Sugar to a pleading burden completely 

absent from the Act. The Court should decline to do so. 

In reality, Defendants’ argument is a “highly premature” attempt to limit damages at the 

motion to dismiss stage, which courts reject. See S.K.Y. Mgmt. LLC v. Greenshoe, Ltd., No. 06-

cv-21722, 2007 WL 9701121, at *7 (S.D. Fla. Mar. 11, 2007) (finding that “fact issues [ ] must 

be resolved” before determining whether a certain category of damages is warranted). Even if 

Defendants can muster any legal basis for narrowing potential damages—and they have not 

offered any—this is “a task better left for later proceedings,” id.—particularly where, as here, the 

statute places the onus on Defendants to present “clear and convincing” evidence that American 

Sugar is not entitled to the amount listed in its Certified Claim. 

 Next, Defendants contest the sufficiency of American Sugar’s allegations regarding 

whether Defendants knowingly used (or benefitted from) all of the Confiscated Property. See 

Mot. 31. For the reasons just explained, this “all or nothing” argument is a non-starter under the 

plain terms of the Helms-Burton Act, and its persuasiveness does not improve by trying to 

shoehorn it into the Act’s “knowledge” requirement. Title III of the Helms-Burton Act requires 

a defendant to act “knowingly,” defined as “with knowledge or having reason to know.” 22 

U.S.C. § 6023(9) (emphasis added). Consistent with this definition, Defendants had at least 

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“constructive knowledge of Plaintiff’s publicly available Certified Claim to the Subject Property 

since the FCSC completed the Cuban Claims Program.” MSC Cruises SA Co., 2020 WL 

5367318, at *3. Possession of a Certified Claim “memorialize[s] the value of the property 

interest lost and . . . put[s] other actors on notice of the victim’s outstanding right to 

compensation based on the now-extinguished property interest taken.” Havana Docks Corp. v.

Royal Caribbean Cruises, Ltd., No. 19-cv-23590, 2020 WL 1905219, at *7 (S.D. Fla. Apr. 17, 

2020) (second emphasis added). Such notice suffices to meet the knowledge requirement under 

the Act. 

In addition to the notice provided by the Certified Claim itself, the Complaint sufficiently 

pleads that Defendants knew or had reason to know that they were “using or otherwise 

benefitting from confiscated property[.]” 22 U.S.C. § 6023(13)(A)(ii). The Complaint alleges 

the Cuban government’s open and notorious use of American Sugar’s expropriated property to 

this day, including the Cuban government’s touting the Confiscated Port as one of Cuba’s 

principal shipping ports. Compl. ¶¶ 71–74. It also alleges that American Sugar’s Certified 

Claim was the subject of news reports a few years prior to the at-issue voyages of the BBC Jade 

and BBC Moonstone. Id. ¶ 76 & n.7. Further, the Complaint alleges that Defendants not only 

arranged and/or were involved in the at-issue shipments of windfarm equipment to Cuba, but 

also made efforts to conceal the true destination of that equipment by falsely representing in 

legal documents that the equipment’s final destination was not Cuba, but Miami. Id. ¶¶ 6, 116–

132, 144–153, 161–167, 178–183. And as BBC Singapore has now conceded, see Dkt. No. 50-1 

¶ 15, Defendants knew enough about U.S. laws governing deliveries to Cuba to understand that 

they had to obtain the requisite license, and arrange for the two shipments to stop in Miami 

beforehand, to avoid violating U.S. sanctions; in light of Defendants’ professed familiarity with 

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such laws, any assertion that Defendants were nevertheless unaware that the Helms-Burton Act 

applied to their shipments rings hollow. Courts within this District have recognized that 

pleading facts indicating that a defendant had reason to know that it was using or benefitting 

from confiscated property, such as news reports or other sources of information, sufficiently 

pleads the requisite knowledge element of a Helms-Burton Act claim, even in the absence of the 

certified claim present here. See, e.g., Order on Mot. to Dismiss at 19–20, Cueto Iglesias, No. 

20-cv-20157. 

Defendants’ reliance on Gonzalez v. Amazon.com, Inc., No. 19-cv-23988, 2020 WL 

1169125, at *2 (S.D. Fla. Mar. 11, 2020), is misplaced. See Mot. 31–32. In Gonzalez, the 

plaintiff was not in possession of a certified claim such that the defendants were on notice of the 

claim, and the only allegations as to defendants’ knowledge were unspecified and “conclusory.” 

2020 WL 1169125, at *2. Here, by contrast, on top of the Certified Claim, American Sugar has 

specifically alleged that Defendants were on notice that they were trafficking in the Confiscated 

Property because: (i) the Cuban government has repeatedly publicized its taking and holding of 

American Sugar’s valuable property (see Compl. ¶¶ 72–74); (ii) American Sugar’s claim to the 

property has been the subject of recent news reports (id. ¶ 76); and (iii) Defendants falsified 

documentation in an effort to conceal their scheme and avoid liability (id. ¶¶ 145, 153, 179). 

And, as noted above, Defendants admit to knowing enough about U.S. laws governing deliveries 

to Cuba to understand that they had to obtain the requisite license, and arrange for the two 

shipments to stop in Miami beforehand, to avoid violating U.S. sanctions. In sum, American 

Sugar has properly alleged the knowledge requirement in its claims against Defendants for 

violations of the Helms-Burton Act. 

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III. The Helms-Burton Act Does Not Prohibit American Sugar’s Civil 

Conspiracy Claim 

Defendants’ contention that American Sugar’s civil conspiracy claim must be dismissed 

finds no basis in the statute. The plain language of the Helms-Burton Act prohibits duplicative 

lawsuits, and not, as Defendants misread it (Mot. 32–33), a single lawsuit with multiple claims. 

It provides: 

any United States national that brings an action under this section may not bring 

any other civil action or proceeding under the common law, Federal law, or the 

law of any of the several States, the District of Columbia, or any commonwealth, 

territory, or possession of the United States, that seeks monetary or nonmonetary 

compensation by reason of the same subject matter . . . . 

22 U.S.C. § 6082(f)(1)(A) (emphasis added). The statute’s plain text prohibits the bringing of a 

separate “civil action or proceeding”—that is, “[t]he regular and orderly progression of a [civil] 

lawsuit, including all acts and events between the time of commencement and the entry of 

judgment.” Black’s Law Dictionary 1324 (9th ed. 2009) (defining “proceeding”); see also id. at 

32 (defining “action” as “[a] civil . . . judicial proceeding”); id. at 34 (defining “civil action” as 

an “action brought to enforce, redress, or protect a private or civil right”). In other words, a 

plaintiff cannot bring a separate lawsuit. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254, 

112 S. Ct. 1146, 1149 (1992) (“When the words of a statute are unambiguous, then, this first 

canon is also the last: ‘judicial inquiry is complete.’” (citation omitted)). That interpretation 

accords with the legislative history, which notes that this provision “is intended to prevent 

persons from bringing separate actions for trafficking against the same defendant or defendants 

under both [the Helms-Burton Act] and under a common law tort theory.” H.R. Rep. No. 104-

468, at 61–62 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 558, 576–77 (emphasis 

added). This election of remedies provision preserves judicial economy by forcing a prospective 

Helms-Burton Act plaintiff to bring all related claims in a single action before one court. 

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Defendants incorrectly read the term “civil action or proceeding” to mean “claim” or 

“cause of action.” But those terms have meanings that differ from the language actually used in 

the statute. See Black’s Law Dictionary 261 (defining “claim” as “[t]he aggregate of operative 

facts giving rise to a right enforceable by a court” or “[t]he assertion of an existing right”); id. at 

251 (defining “cause of action” as “[a] group of operative facts giving rise to one or more bases 

for suing; a factual situation that entitles one person to obtain a remedy in court from another 

person”). Had Congress intended to prohibit other “claims” or “causes of action” arising from 

“the same subject matter,” it could have done so, but tellingly did not.5 

Defendants’ remarkable criticism of American Sugar’s civil conspiracy claim as “doublepleading” or “inherently dependent” on the Helms-Burton Act claims, Mot. 34, is in fact an apt 

description of civil conspiracy claims. Contrary to Defendants’ assertion that it is an 

“independent common-law claim,” id. at 3, “Florida does not recognize an independent cause of 

action for civil conspiracy.” Siegmund v. Xuelian Bian, No. 16-cv-62503, 2018 WL 1611847, at 

*7 (S.D. Fla. Apr. 2, 2018) (emphasis added). “Rather, civil conspiracy is a derivative action 

that arises out of an independent actionable claim,” id., which is why it should come as no 

 

5

 Defendants’ analogy to the Alabama Age Discrimination in Employment Act (“AADEA”), 

Mot. 33, is inapposite. Whatever the Alabama legislature believed, the AADEA contains an 

entirely different election of remedies provision, and neither this language nor the practices of a 

different legislative body can cloud what Congress actually said in the Helms-Burton Act. 

Compare Ala. Code § 25-1-29 (a plaintiff “may elect to pursue their remedies” under relevant 

federal law “or in the alternative bring a civil action” in state court), with 22 U.S.C. § 6082(f) (a 

plaintiff “that brings an action under this section may not bring any other civil action or 

proceeding”). Defendants also misstate the law regarding the AADEA. Several Alabama 

federal courts have held that “‘the statute expresses an intent to avoid redundant adjudications of 

the same dispute in two separate fora . . . to conserve the judicial resources of Alabama state 

courts, not to make claims unavailable for simultaneous pursuit in a single forum.’” Forsyth v. 

NHC Place/Anniston, LLC, Inc., No. 18-cv-00663, 2018 WL 4909953, at *2 (N.D. Ala. Oct. 10, 

2018) (emphasis added) (quoting Wallace v. Jim Walter Homes, Inc., 68 F. Supp. 2d 1303, 1304 

(M.D. Ala. 1999) and citing cases reaching same conclusion). 

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surprise to Defendants that American Sugar relies in part on its allegations supporting its HelmsBurton Act claims. But American Sugar did not (as Defendants assert) stop there: it has 

separately pleaded facts that Defendants agreed to traffic in the Confiscated Property through 

numerous steps separate and apart from the trafficking itself. For example, the Complaint 

alleges that Defendants schemed to use the port of Miami to refuel and resupply before 

proceeding to the Confiscated Port and created and signed false documents representing that the 

equipment would be unloaded in Miami, in order to fraudulently conceal their scheme. See

Compl. ¶¶ 116–132, 144–153, 161–167, 178–183, 241, 243; see also Siegmund, 2018 WL 

1611847, at *7 (stating elements of civil conspiracy claim). Defendants’ attempt to dismiss the 

conspiracy claim is therefore meritless. 

IV. Defendants’ Bankruptcy-Related Affirmative Defenses Are Procedurally Improper 

on a Motion to Dismiss and Meritless in Any Event 

“[A]n affirmative defense is one that admits to the complaint, but avoids liability, wholly 

or partly, by new allegations of excuse, justification, or other negating matters.” VP Props. & 

Devs., LLLP v. Seneca Specialty Ins. Co., 645 F. App’x 912, 916 (11th Cir. 2016). Defendants 

bear the burden of proof on such defenses, and it is “well settled that ‘plaintiffs are not required 

to negate an affirmative defense in their complaints,’” which is precisely why “courts have 

repeatedly held that ‘the existence of an affirmative defense generally will not support a rule 

12(b)(6) motion to dismiss for failure to state a claim.’” Ventrassist Pty Ltd. v. Heartware, Inc., 

377 F. Supp. 2d 1278, 1286 (S.D. Fla. 2005) (citations and brackets omitted). Only a defense 

that “clearly appears on the face of the complaint” may be the basis for dismissing that 

complaint. Garcia-Bengochea v. Carnival Corp., 407 F. Supp. 3d 1281, 1287 (S.D. Fla. 2019). 

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Despite this, Defendants attempt to present affirmative defenses of “bankruptcy standing” 

and judicial estoppel6

 based on their misinterpretation of nearly 2,000 pages of material from 

American Sugar’s prior bankruptcy proceedings—none of which is referenced in the complaint. 

Mot. 16–29; see Holbert Decl. Exs. BA-1–BA-17. Their attempt to limit their extensive offering 

of extrinsic materials to pleadings from another judicial proceeding does not excuse this gambit, 

as “courts may not take judicial notice of documents in separate judicial proceedings,” including, 

specifically, bankruptcy petitions used to bolster affirmative defenses such as judicial estoppel. 

Brown v. Brock, 169 F. App’x 579, 582 (11th Cir. 2006) (vacating judgment of judicial estoppel 

because district court wrongly took judicial notice of bankruptcy petition).7 Moreover, 

Defendants go far beyond asking the Court to adopt judicially noticeable facts—asking instead 

that the Court adopt their own (incorrect) interpretations of the portions of the documents to 

which they direct the Court’s attention. As the myriad of factual issues that they raise more than 

confirms, Defendants’ affirmative defenses “should be raised in an answer pursuant to Fed. R. 

Civ. P. 8(c), not in a motion to dismiss.” Washington v. Shanahan, No. 17-cv-00528, 2019 WL 

320582, at *6 (S.D. Ala. Jan. 24, 2019); see Allen v. Senior Home Care, Inc., No. 14-cv-81408, 

2015 WL 1097408, at *2 (S.D. Fla. Mar. 11, 2015) (rejecting judicial estoppel argument because 

 

6

 See Fed. R. Civ. P. 8(c)(1) (listing “estoppel” as an “affirmative defense”); Smith v. Werner 

Enterprises, Inc., 65 F. Supp. 3d 1305, 1308 n.1 (S.D. Ala. 2014) (“Judicial estoppel is an 

affirmative defense.”). 

7

 See also King v. Nat’l Union Fire Ins. Co. of Pittsburg, No. 17-cv-4485, 2018 WL 8929811, at 

*3 (N.D. Ga. July 6, 2018) (declining to take judicial notice of documents attached to the motion 

to dismiss, including bankruptcy petition, whose “only purpose is to bolster [defendant’s] 

affirmative defense”); Allen v. Senior Home Care, Inc., No. 14-cv-81408, 2015 WL 1097408, at 

*2 & n.1 (S.D. Fla. Mar. 11, 2015) (declining to take judicial notice of bankruptcy records 

proffered by defendants at the motion to dismiss stage). Defendants’ reliance on Griffin v. 

Verizon Communications Inc., 746 F. App’x 873, 876 (11th Cir. 2018), for the opposite 

proposition, Mot. 7 n.7, is misplaced. In Griffin, the court took judicial notice of materials that 

the plaintiff referenced the first instance, where the plaintiff’s claims were based on defendants’ 

conduct in the prior actions. 

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“[s]imply put, the Court cannot make these findings or consider such evidence at the motion to 

dismiss stage”). That way, if Defendants elect to do so, and if the Court were to determine that 

some provision of law required specific disclosures of the as-then suspended Helms-Burton Act 

claims in the American Sugar bankruptcy (despite the creditors’ express agreement in the 

bankruptcy plan to preclude precisely the argument that Defendants now make), American Sugar 

would then be permitted to assert its own fact-based defenses to explain the absence of such 

specific language. See, e.g., Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. 

or LBA Emps., 741 F.3d 686, 698 (6th Cir. 2014) (“Failure to disclose a claim in a bankruptcy 

proceeding . . . may be excused where the debtor lacks a motive to conceal the claim, or where 

the debtor does not act in bad faith.”) (citations omitted); Stallings v. Hussmann Corp., 447 F.3d 

1041, 1049 (8th Cir. 2006) (judicial estoppel does not apply to good-faith mistakes or “[c]areless 

or inadvertent disclosure[s]”). Due to their inherent factual nature, courts consistently reject 

judicial estoppel and bankruptcy standing defenses at the motion to dismiss stage.8

 This Court 

should do the same here. 

But even if the procedural posture of this proceeding did not defeat Defendants’ asserted 

affirmative defenses—which it does—both defenses fail. 

A. Defendants’ Bankruptcy Standing Defense Is Meritless 

“The purpose of Section 1123 [of the Bankruptcy Code] is not . . . to protect defendants 

from unexpected lawsuits.” In re Transit Grp., Inc., 332 B.R. 45, 57 (Bankr. M.D. Fla. 2005). 

That is because “[d]enying [bankruptcy] standing to the debtor to pursue such a claim . . . results 

 

8

 See, e.g., Regions Bank v. The 62’ Ocean Sport Fish, Hull I.D. No. XY0011462J203, No. 13-

cv-20966, 2014 WL 37748, at *2 (S.D. Fla. Jan. 6, 2014) (denying motion to dismiss based on 

equitable estoppel); In re Se. Banking Corp. Secs. & Loan Loss Reserves Litig., 147 F. Supp. 2d 

1348, 1353 (S.D. Fla. 2001) (declining to rule on judicial estoppel at motion to dismiss stage). 

Case 1:20-cv-22471-DPG Document 67 Entered on FLSD Docket 10/16/2020 Page 37 of 44
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in a windfall to the claim defendant, who escapes liability for want of a plaintiff.” Phx. 

Petroleum Co. v. United States, 215 F.3d 1345, 1999 WL 521189, at *4 (Fed. Cir. July 23, 1999) 

(unpublished). But Defendants, none of whom are American Sugar’s creditors, and who played 

no role in its Chapter 11 bankruptcy, nevertheless attempt to rely on Section 1123 to argue that 

American Sugar lacks “bankruptcy standing”—that is, it did not “retain the right . . . to pursue” 

its Helms-Burton Act claims “subsequent to the confirmation of [its bankruptcy] Plan,” In re 

Goodman Bros. Steel Drum Co. Inc., 247 B.R. 604, 607 (Bankr. E.D.N.Y. 2000). This is an illconceived ploy to escape liability by raising objections that American Sugar’s own creditors 

agreed to waive as part of what Defendants admit (Mot. 2) was a “pre-packaged” Chapter 11 

plan—i.e., a plan that was already negotiated and agreed to by American Sugar’s creditors prior 

to its Chapter 11 filing. In re REPH Acquisition Co., 134 B.R. 194, 196 n.1 (Bankr. N.D. Tex. 

1991). Defendants have no basis to raise objections that American Sugar’s own creditors 

voluntarily relinquished. 

As a preliminary matter, contrary to Defendants’ assertions, see Mot. 3, 25, bankruptcy 

standing does not implicate this Court’s subject matter jurisdiction, see In re Wilton Armetale, 

Inc., 968 F.3d 273, 280–81 (3d Cir. 2020); Grede v. Bank of N.Y. Mellon, 598 F.3d 899, 900 (7th 

Cir. 2010). Rather, it is a type of “statutory” standing, In re Wilton Armetale, Inc., 968 F.3d at 

280–81, which is an affirmative defense, see Div. 1181 Amalgamated Transit Union v. B&M 

Escorts, Inc., 2018 WL 2417842, at *8 (E.D.N.Y. May 29, 2018). Moreover, as reflected in their 

own cited cases, absent a plaintiff admission that it lacks standing, any ruling on Defendants’ 

“bankruptcy standing” objection should only be made with the benefit of a fully developed 

factual record. See, e.g., In re USN Commc’ns, Inc., 280 B.R. 573, 592–93 (Bankr. D. Del. 

2002) (ruling following trial); In re Hart Oil & Gas, Inc., 534 B.R. 35, 52 (Bankr. D.N.M. 2015) 

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(ruling on Bankruptcy Court’s extensive record); Allston-Wilson v. Phila. Newspapers, Inc., 

2006 WL 1050281, at *1 (E.D. Pa. Apr. 20, 2006) (plaintiff admitted that she lacked standing). 

No such record has been developed here. 

In any event, it is Defendants that have no basis to raise objections based on American 

Sugar’s alleged failure to sufficiently retain causes of action pursuant to Section 1123(b)(3). 

American Sugar’s confirmed Chapter 11 plan “acts as a binding contract on all the parties 

thereto,” In re Ampace Corp. 279 B.R. at 160 (citing 11 U.S.C. § 1141(a)). That plan, which 

must be read as a whole and according to its plain meaning,9 memorializes the agreement and 

understanding of both American Sugar and its creditors from the get-go that, with certain 

exceptions not relevant here, American Sugar reserved the exclusive right to pursue any and all 

causes of action—including any rights it had to claims “in . . . tort” such as Helms-Burton Act 

claims—post-bankruptcy. See Holbert Decl. Ex. BA-14 at 5, 39; see also 141 Cong. Rec. 

S15081-02 at S15083 (Oct. 12, 1995) (Helms-Burton “right of action is against the ‘tort’ of 

unauthorized, unlawful ‘conversion’ of property”) (emphasis added). 

Moreover, the plan strictly prohibits any person from asserting that American Sugar has 

not reserved any rights it had to litigate any “Causes of Action” (except where the plan expressly 

provides otherwise), including the estoppel-based defenses that Defendants raise here. Holbert 

Decl. Ex. BA-14 at 39. Specifically, it states that “[n]o Entity may rely on the absence of a 

specific reference . . . to any specific Cause of Action” in the plan or American Sugar’s other 

 

9

 A confirmed Chapter 11 plan is to be interpreted to “principles of contract construction and 

interpretation,” In re Kmart Corp., 310 B.R. 107, 125 (Bankr. N.D. Ill. 2004); under governing 

New York law, see Holbert Decl. Ex. BA-14 at 64, the plan should be read as a whole, see CNR 

Healthcare Network, Inc. v. 86 Lefferts Corp., 874 N.Y.S.2d 174, 176–77 (2d Dep’t 2009), and 

“according to [its] plain meaning,” Riverside So. Planning Corp. v. CRP/Extell Riverside, L.P., 

869 N.Y.S.2d 511, 516 (1st Dep’t 2008). 

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bankruptcy filings “as any indication that the Debtors or Reorganized Debtors will not 

pursue any and all available Causes of Action.” Id. (emphasis in original). “[T]herefore, no 

preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, 

claim preclusion, estoppel (judicial, equitable or otherwise) or laches shall apply to any Cause of 

Action upon, after, or as a consequence of the Confirmation or the occurrence of the Effective 

Date.” Id. Further, the Plan makes clear that none of the parties in interest contemplated that 

any claims would remain with the bankruptcy estate to be administered for the benefit of 

creditors, as it does not distribute any causes of action to creditors, either directly or derivatively, 

on account of their claims. See generally id. Such a plan suffices to preserve any rights to 

claims post-bankruptcy. In re Kmart Corp., 310 B.R. 107, 123–24 (Bankr. N.D. Ill. 2004) 

(reservation of claims “without limitation” and “of any kind whatsoever not otherwise released 

pursuant to the terms of the Plan” sufficiently “clear in what it purported to reserve”); In re 

Think3, Inc., 529 B.R. 147, 202–03 (Bankr. W.D. Tex. 2015) (reservation of claims “in contract 

or in tort” sufficient to preserve at-issue contract claim). 

In short, American Sugar’s creditors unambiguously agreed to relinquish challenges to 

American Sugar’s pursuit of any rights it had to litigate claims. Defendants’ misguided attempt 

to stand in the shoes of those creditors, who themselves waived the very arguments that 

Defendants now attempt to put forward, fails based on the face of the very documents they 

purport to rely on.10 The Court should therefore reject Defendants’ bankruptcy standing 

arguments. 

 

10 In addition, because American Sugar’s trafficking allegations extend as far as July 2019, see

Compl. ¶¶ 187–188, which post-dates the confirmation of American Sugar’s bankruptcy plan in 

June 2019, American Sugar indisputably has “bankruptcy standing” to claim that Defendants 

trafficked in its expropriated property following its reorganization. See Mahoney v. Bank of Am., 

N.A., No. 13-cv-2530, 2014 WL 2197068, at *7 (S.D. Cal. May 27, 2014). 

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B. Defendants’ Judicial Estoppel Defense Fails 

Likewise, even if the Court were to reach the merits of Defendants’ judicial estoppel 

defense at this procedural juncture, it would find it to be based at best on misinterpretations and 

speculation. Courts apply a two-prong test to determine whether judicial estoppel precludes a 

plaintiff’s claim based on alleged nondisclosure in a prior bankruptcy: (1) whether the debtorplaintiff took “inconsistent positions under oath” in the two proceedings; and (2) “whether those 

inconsistent positions were ‘calculated to make a mockery of the judicial system.’” Henderson 

v. Franklin, 782 F. App’x 866, 871 (11th Cir. 2019) (citation omitted). 

Defendants fail to meet their burden of proof on the first prong because American Sugar 

did not take any “inconsistent positions under oath.” Defendants merely attempt to interpret 

portions of American Sugar’s bankruptcy filings to argue there might be such an inconsistency 

when in fact there was none. Moving to the second prong, which requires proof of the debtorplaintiff’s “culpable mental state,” Slater v. U.S. Steel Corp., 871 F.3d 1174, 1185–86 (11th Cir. 

2017) (en banc), a court may not infer “that a plaintiff intended to make a mockery of the judicial 

system simply because he failed to disclose a civil claim,” id. at 1185. In so holding, the Slater 

court expressly disapproved the rationale of out-of-Circuit cases on which Defendants rely, such 

as Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 322 (3d 

Cir. 2003). See Mot. 17–18, 22–23, 25. Instead, “to determine whether a plaintiff’s inconsistent 

statements were calculated to make a mockery of the judicial system, a court should look” 

“beyond a plaintiff’s omission” “to all the facts and circumstances of the particular case.” 

Slater, 871 F.3d at 1186 (emphasis added). That is why this type of factual finding is wholly 

inappropriate on a motion to dismiss. See Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1275 

(11th Cir. 2010) (a party’s intent to take inconsistent positions with respect to judicial estoppel is 

a “factual finding by the court”); Washington, 2019 WL 320582, at *5 (“The Court may not infer 

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intent to abuse the judicial system based merely on whether the plaintiff knew of her civil claim 

when completing her disclosure forms.”); Schreiber v. Ocwen Loan Servicing, LLC, No. 11-cv211-32, 2011 WL 6055425, at *2 (M.D. Fla. Oct. 17, 2011) (declining to make factual findings 

regarding plaintiffs’ intent on a motion to dismiss). 

Separate from their inability to meet the requirements for judicial estoppel, Defendants 

have not demonstrated any harm or injustice compelling the application of that doctrine in this 

case. “[J]udicial estoppel is an ‘extraordinary remed[y] to be invoked when a party’s 

inconsistent behavior will otherwise result in a miscarriage of justice.’” Ryan Operations G.P. v. 

Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) (citation omitted). It “exists to 

protect the integrity of courts, not the parties’ interests, and it is certainly not intended as an 

offensive weapon available to defeat plaintiffs’ claims.” Snowden v. Fred’s Stores of Tenn., Inc., 

419 F. Supp. 2d 1367, 1374–75 (M.D. Ala. 2006). Defendants, however, offer no rationale for 

applying judicial estoppel in this instance, other than “to [improperly] derail potentially 

meritorious claims,” Ryan Operations G.P., 81 F.3d at 365, and “receive an unjustified 

windfall,” Slater, 871 F.3d at 1187. 

Nor can Defendants identify any prejudice, harm, or injustice warranting judicial 

estoppel. Defendants’ professed concern for the Bankruptcy Court, see Mot. 24–25, is a red 

herring since “the bankruptcy court retains broad discretion to reopen a closed case on a motion 

of the debtor or another party in interest ‘to administer’ an asset that had not previously been 

scheduled.” Slater, 871 F.3d at 1186–87 (quoting 11 U.S.C. § 350(b)). In addition, Defendants 

are not (and do not suggest they are) creditors of American Sugar. Although Defendants halfheartedly appeal to creditors’ interests, see Mot. 24–25, Defendants disregard the fact that all 

parties in interest to American Sugar’s Chapter 11 proceedings agreed not only that American 

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 35 

Sugar reserved any rights it had to any tort causes of action, but also that the creditors would 

waive judicial estoppel and other defenses. Defendants’ judicial estoppel arguments must 

therefore be rejected. 

CONCLUSION 

For the foregoing reasons, Defendants’ motion to dismiss should be denied.

Dated: October 16, 2020 Respectfully submitted, 

Miguel A. Estrada (pro hac vice) 

Audi K. Syarief (pro hac vice) 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Ave., NW 

Washington, DC 20036-5306 

Telephone: (202) 955-8257 

Facsimile: (202) 530-9616 

mestrada@gibsondunn.com 

asyarief@gibsondunn.com 

Andrea E. Neuman (pro hac vice) 

Rahim Moloo (pro hac vice) 

Casey Kyung-Se Lee (pro hac vice) 

GIBSON, DUNN & CRUTCHER LLP 

200 Park Avenue, 47th Floor 

New York, NY 10166-0193 

Telephone: (212) 351-3883 

Facsimile: (212) 351-5303 

aneuman@gibsondunn.com 

rmoloo@gibsondunn.com 

clee@gibsondunn.com 

David S. Mandel 

David S. Mandel 

FBN 38040 

MANDEL & MANDEL LLP 

169 East Flagler Street, Suite 1224 

Miami, FL 33131 

Telephone: (305) 374-7771 

dsm@mandel.law 

Counsel for Plaintiff North American Sugar 

Industries Inc.

 

Case 1:20-cv-22471-DPG Document 67 Entered on FLSD Docket 10/16/2020 Page 43 of 44
 36 

CERTIFICATE OF SERVICE 

I hereby certify that, on October 16, 2020, I electronically filed the foregoing document 

with the Clerk of Court using the CM/ECF system, which will send notification of such filing to 

counsel or parties of record. 

David S. Mandel 

 

Case 1:20-cv-22471-DPG Document 67 Entered on FLSD Docket 10/16/2020 Page 44 of 44