UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No.: 1:20-cv-23287-DPG 

LUIS MANUEL RODRIGUEZ, et al., 

 Plaintiffs, 

 v. 

IMPERIAL BRANDS PLC, et al., 

 Defendants. 

DEFENDANTS’ SUPPLEMENTAL BRIEFING IN FURTHER SUPPORT OF 

THEIR MOTION TO DISMISS THE AMENDED COMPLAINT 

Case 1:20-cv-23287-DPG Document 123 Entered on FLSD Docket 08/18/2021 Page 1 of 7
Defendants have shown that Plaintiffs lack standing to prosecute their statutory Title III 

claim. [DE 91 (“MTD”) at 7–11; DE 112 (“Reply”) at 2–7]. Plaintiffs suffered no concrete injury 

from Defendants’ alleged “trafficking” in real property that Plaintiffs concededly do not own. 

MTD at 8–10; Reply at 2–5. And Defendants did not cause the injury this lawsuit seeks to 

remedy—loss of the value of the RRHSC Property when the Cuban Government allegedly 

confiscated it decades before Defendants’ alleged trafficking began. MTD at 10–11; Reply at 5–

7. 

Plaintiffs are not assisted by the Fifth Circuit’s decision in Glen v. American Airlines, Inc., 

--- F.4th ----, 2021 WL 3285307 (5th Cir. Aug. 2, 2021) (“American Airlines”), which affirmed 

the dismissal of a Title III claim on the merits, id. at *4–5, but held that the complaint pleaded 

standing, id. at *2–4. American Airlines is the first appellate decision to consider Article III 

standing in the context of Title III. During the first week of October 2021 the Eleventh Circuit will 

hear argument in several Title III cases that present Article III standing issues.1

Under Controlling Supreme Court and Eleventh Circuit Law, Plaintiffs Were Not 

Concretely Injured by the Use of Real Property that They Concededly Do Not Own 

As Defendants have shown, Plaintiffs have no concrete injury because their statutory Title 

III claim—which is based on Defendants’ alleged use of real property in which Plaintiffs 

concededly have no ownership interest—has no “close historical or common-law analogue.”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021); see MTD at 8–9; Reply at 2–5. 

Plaintiffs are not helped by the Fifth Circuit’s view that Title III is analogous to a common 

law unjust enrichment claim. American Airlines, 2021 WL 3285307, at *2. The Eleventh Circuit 

has held that people whose real property was confiscated by the Cuban Government have no unjust 

1

 Garcia-Bengochea v. Royal Caribbean Cruises, Ltd., No. 20-14251 (11th Cir.); GarciaBengochea v. Carnival Corp., No. 20-12960 (11th Cir.); Del Valle v. Trivago GmbH, No. 20-

12407 (11th Cir.). 

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enrichment claim against those who later use the property because they cannot demonstrate the 

ownership interest required for such a claim. Glen v. Club Méditerranée, S.A., 450 F.3d 1251, 

1254–55 & n.1 (11th Cir. 2006) (“Club Med”); see MTD at 8–9 & n.5. When a statutory cause of 

action omits an element that is essential to liability at common law (here, ownership of the real 

property), there is no concrete injury, and therefore no standing. TransUnion LLC, 141 S. Ct. at 

2209. Tellingly, in light of Club Med, Plaintiffs did not contest Defendants’ showing that Title III 

is not analogous to an unjust enrichment claim, and thereby conceded the point. Instead, Plaintiffs 

argued only that common law conversion supplies the required analogy (which it does not). Reply 

at 3–4. Because Plaintiffs’ Title III claim has no “close historical or common-law analogue” under 

Eleventh Circuit law, history does not support finding a concrete injury in Plaintiffs’ allegations. 

See TransUnion LLC, 141 S. Ct. at 2204. 

Further, under Eleventh Circuit law, a statutory claim fails for lack of standing when—as 

here—the statute omits an ownership requirement that is an essential element of the purportedly 

analogous common law claim. In Salcedo v. Hanna, for example, the Eleventh Circuit held that 

the lack of an alleged property interest precluded the plaintiff from relying on the tort of trespass 

as an analogous common law claim for standing purposes. 936 F.3d 1162, 1171 (11th Cir. 2019). 

In light of Salcedo and other Supreme Court and Eleventh Circuit cases that have denied standing 

to plaintiffs who cannot allege an interest in the property at issue,2 Plaintiffs are not assisted by the 

Fifth Circuit’s view that a Title III plaintiff’s inability to plead ownership of the confiscated 

2

 See, e.g., Thole v. U.S. Bank N.A, 140 S. Ct. 1615, 1619 (2020) (plaintiffs with no property 

interest in ERISA plan lacked Article III standing to bring a plan-mismanagement claim); Klayman 

v. Clinton, 668 F. App’x 351, 352 (11th Cir. 2016) (FOIA requester with no property interest in 

government records lacked Article III standing to bring claims arising from denial of request); 

United States v. Cooper, 485 F. App’x 411, 414 (11th Cir. 2012) (plaintiff with no property interest 

in forfeited vehicles lacked standing to sue for their return). 

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property “goes to the merits” and therefore does not support dismissal on standing grounds, 

American Airlines, 2021 WL 3285307, at *3. 

Moreover, the Fifth Circuit is incorrect that ownership of the confiscated property “goes to 

the merits” of a Title III claim. Id. Ownership of the confiscated property is not an element of a 

Title III claim. Nor could it be. The Eleventh Circuit has explained that Title III does not render 

the Cuban Government’s confiscations “ineffective.” Club Med, 450 F.3d at 1255. Thus, Title III 

plaintiffs “may own a claim for compensation under U.S. law, but they do not own the expropriated 

land itself.” Glen v. Club Méditerranée, S.A., 365 F. Supp. 2d 1263, 1270 (S.D. Fla. 2005) 

(emphases in original), aff’d, 450 F.3d 1251. Therefore, the Amended Complaint correctly does 

not allege that Plaintiffs own the RRHSC Property. To the contrary, Plaintiffs acknowledge that 

the Cuban Government deprived them of “possession and title” decades before Defendants’ 

alleged trafficking began. [DE 99 (“Opp.”) at 9]. Because ownership of the confiscated property 

is not an element of a Title III claim, the Fifth Circuit misplaced its reliance on cases that declined 

dismissal for lack of standing based on disputed questions of ownership that also went to the merits 

of the claim. See American Airlines, 2021 WL 3285307, at *3 (citing Protect Our Parks, Inc. v. 

Chicago Park District, 971 F.3d 722, 736 (7th Cir. 2020); Webb v. City of Dallas, 314 F.3d 787, 

791 (5th Cir. 2002)).

Finally, the Congressional direction to disapply the act of state doctrine in Title III cases, 

see 22 U.S.C. § 6082(a)(6), does not “bolster[]” the case for standing, as the Fifth Circuit believed. 

American Airlines, 2021 WL 3285307, at *3. To the contrary, as the act of state doctrine precludes 

common law claims arising from the use of property confiscated by the Cuban Government, Club 

Med, 450 F.3d at 1256–57, the Congressional direction to disapply it in Title III cases reemphasizes 

that Congress has created a cause of action with no “close historical or common-law analogue.” 

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TransUnion LLC, 141 S. Ct. at 2204. In any event, the Fifth Circuit failed to address that no 

provision of Title III abrogated the separate domestic takings rule, which has long barred claims 

arising from a foreign government’s taking of the property of its own nationals. Fed. Republic of 

Germany v. Philipp, 141 S. Ct. 703, 710–11 (2021); see Reply at 4.3 For this reason, too, a Title 

III claim has no historical common law analogue when—as here—it is brought in respect of 

property that the Cuban Government allegedly confiscated from Cuban nationals. Reply at 4. 

Under Controlling Supreme Court and Eleventh Circuit Law, Plaintiffs Lack Article 

III Standing Because This Lawsuit Seeks to Remedy an Injury that the Cuban 

Government Caused Decades Before Defendants’ Alleged Trafficking Began 

As Defendants have shown, Plaintiffs also lack Article III standing because there is and 

could be no allegation that Defendants caused the injury this lawsuit seeks to remedy—loss of the 

value of the RRHSC Property when the Cuban Government allegedly confiscated it decades before 

Defendants’ alleged trafficking began, plus compound interest running from the date of 

confiscation. MTD at 10–11; Reply at 5–7. Far from disputing Defendants’ showing, Plaintiffs 

candidly concede that Title III seeks to “compensate victims of the Cuban government’s

uncompensated confiscation of property.” [DE 100 at 2 (emphasis added)]. 

Under controlling law, this does not plead the essential causation element of Article III 

standing. The causation requirement is not satisfied when—as here—the injury sought to be 

remedied was caused by a third party—the Cuban Government. Cordoba v. DIRECTV, LLC, 942 

F.3d 1259, 1271 (11th Cir. 2019) (citing Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 26, 41–

42 (1976)). And the causation requirement assuredly is not satisfied when—as here—the injury 

3 The act of state doctrine “prevents United States courts from determining the validity of 

the public acts of a foreign sovereign.” Philipp, 141 S. Ct. at 711 (citations omitted). Congressional 

abrogation of the act of state doctrine does not abrogate the separate domestic takings rule. See id. 

(although the Second Hickenlooper Amendment abrogated the act of state doctrine in part, 

“nothing in the Amendment purported to alter any rule of international law, including the domestic 

takings rule”).

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preceded the defendants’ alleged conduct. Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1126 

(11th Cir. 2019), cert. denied, 140 S. Ct. 2828 (2020). 

The Fifth Circuit disregarded these foundational principles when it held—without citation 

to any controlling authority—that a Title III plaintiff had standing to sue to recover triple the value 

of the confiscated property at the time the Cuban Government allegedly confiscated it in the 1960s 

from a defendant that derived barely $500 from use of the property decades later. American 

Airlines, 2021 WL 3285307, at *3–4. 

Article III confers no “freewheeling power to hold defendants accountable for legal 

infractions,” but only “the power to redress harms that defendants cause plaintiffs.” TransUnion 

LLC, 141 S. Ct. at 2205 (emphases added). Accordingly, Plaintiffs lack standing, and this lawsuit 

should be dismissed. 

* * * 

For the foregoing reasons, as well as those set forth in Defendants’ prior submissions, the 

Amended Complaint should be dismissed. 

Case 1:20-cv-23287-DPG Document 123 Entered on FLSD Docket 08/18/2021 Page 6 of 7
Dated: August 18, 2021 

 Miami, Florida 

/s/ Mark F. Raymond 

NELSON MULLINS BROAD AND CASSEL 

Mark F. Raymond 

mark.raymond@nelsonmullins.com 

Jonathan Etra 

jonathan.etra@nelsonmullins.com 

2 South Biscayne Blvd. 21st Floor 

Miami, FL 33131 

Telephone: 305-373-9400 

ALLEN & OVERY LLP 

Andrew Rhys Davies (admitted pro hac vice) 

andrewrhys.davies@allenovery.com 

Justin L. Ormand (admitted pro hac vice) 

justin.ormand@allenovery.com 

1221 Avenue of the Americas 

New York, NY 10020 

Telephone: 212-610-6300 

Attorneys for Defendant Imperial Brands plc 

/s/ Charles Murray Harris, Jr. 

TRENAM KEMKER SCHARF BARKIN 

FRYE O’NEILL & MULLIS 

Charles Murray Harris, Jr. 

charris@trenam.com 

Stephanie Crane Lieb 

slieb@trenam.com 

101 E Kennedy Boulevard 

Tampa, FL 33601-1102 

Telephone: (727) 820-3950 

RABINOWITZ, BOUDIN, STANDARD, 

KRINSKY & LIEBERMAN, P.C. 

Michael R. Krinsky (admitted pro hac vice) 

mkrinsky@rbskl.com 

Lindsey Frank (admitted pro hac vice) 

lfrank@rbskl.com 

14 Wall Street, Suite 3002 

New York, NY 10005 

Telephone: (212) 254-1111 

Attorneys for Defendant Corporación Habanos, 

S.A.

/s/ Naim S. Surgeon 

AKERMAN LLP 

Naim S. Surgeon (Florida Bar No. 101682) 

naim.surgeon@akerman.com 

Pedro Freyre (Florida Bar No. 192140) 

pedro.freyre@akerman.com 

3 Brickell City Centre 

98 Southeast 7th St., Suite 1100 

Miami, Florida 33131 

Telephone: 305-982-5507 

WILMER CUTLER PICKERING HALE AND 

DORR LLP 

Christopher Davies (admitted pro hac vice) 

christopher.davies@wilmerhale.com 

Jessica Lutkenhaus (admitted pro hac vice) 

jessica.lutkenhaus@wilmerhale.com 

Ashley McLaughlin Leen (admitted pro hac vice) 

ashley.leen@wilmerhale.com 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Attorneys for Defendants WPP PLC, Young & 

Rubicam LLC, and BCW LLC, a/k/a Burson Cohn 

& Wolfe LLC

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