Sucesores de Don Carlos Nunez y Dona Pura Galvez v. Generale

Background

The case concerned the Helms-Burton Act, which creates a private claim for certain United States nationals who claim interests in property confiscated by the Cuban government. The plaintiffs alleged that Banco Nuñez was confiscated in 1960 and absorbed into Banco Nacional de Cuba. They claimed that Société Générale, S.A. and BNP Paribas, S.A. trafficked in the confiscated property by conducting business with Banco Nacional de Cuba and other Cuban banks.

An earlier opinion dismissed the plaintiffs’ prior complaint because it did not plausibly allege that either bank knew, or had reason to know, when doing business with Banco Nacional de Cuba that the bank held confiscated property. The plaintiffs then filed a Third Amended Complaint. The defendants moved to dismiss under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim, and Rule 12(b)(2), which concerns personal jurisdiction—the court’s authority over a defendant.

Scienter allegations

The court first considered whether the amended allegations plausibly showed the required knowledge and intent. As to Société Générale, the plaintiffs alleged that the bank continued providing foreign currency to Cuban entities through at least August 2019 and, based on information and belief, that the currency flowed through Banco Nacional de Cuba. The court held that this was conclusory and speculative. The plaintiffs did not provide facts showing that the money actually flowed through Banco Nacional de Cuba, and the bank’s alleged market position did not make that inference plausible.

As to BNP Paribas, the plaintiffs alleged that it had dealings with European entities that did business in Cuba and that it routinely provided United States currency to Banco Nacional de Cuba in Switzerland. The court held that the allegations about other European entities were too vague and placed BNP Paribas too many steps away from the confiscated property. The allegation about providing cash directly to Banco Nacional de Cuba was a closer question, but the court did not decide whether that conduct qualified as trafficking because it resolved the claim on personal-jurisdiction grounds.

Timeliness

The Helms-Burton Act provides that a trafficking action may not be brought more than two years after the trafficking giving rise to the action has stopped. The court characterized this provision as a statute of repose, meaning a fixed deadline generally measured from the defendant’s last allegedly wrongful act rather than from when the claim arose. The court rejected the plaintiffs’ argument for equitable tolling and their argument that older conduct could be combined with later conduct into one continuing violation.

The court dismissed as untimely claims based on conduct before July 2017 for Société Générale and before September 2018 for BNP Paribas. It explained that the plaintiffs had not plausibly connected the alleged pre-2010 conduct to the alleged BNP Paribas cash deliveries in 2020. The court therefore concluded that the amended complaint, at most, alleged a new violation beginning in 2020 rather than one continuous violation extending from the earlier conduct.

Personal jurisdiction

The remaining allegation against BNP Paribas concerned cash allegedly provided to Banco Nacional de Cuba in Switzerland after the demand letter. The plaintiffs relied on New York’s law allowing jurisdiction over a defendant that transacts business in New York when the claim arises from that business.

The plaintiffs did not dispute that their post-2010 allegations concerned conduct abroad or that time-barred conduct could not support personal jurisdiction. Because the New York conduct occurred before the applicable repose period, the court found no timely connection between BNP Paribas and New York. It dismissed the final allegation against BNP Paribas for lack of personal jurisdiction.

Disposition

The court granted the defendants’ motion to dismiss. The opinion’s scienter analysis rejected the amended pleading as to Société Générale and most allegations against BNP Paribas; its timeliness ruling dismissed claims based on older conduct; and its personal-jurisdiction ruling disposed of the remaining BNP Paribas allegation. The court did not reach the defendants’ separate arguments about whether the alleged conduct met the Act’s definition of trafficking or whether particular plaintiffs were eligible to sue. The court also denied the plaintiffs’ request for oral argument.