Discovery/Enforcement

• Pages: 78-80

78 Volume 21, July–September 2015 international law update

© 2015 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

DISCOVERY/

ENFORCEMENT

Second Circuit considers whether

Spanish Bank must respond to

information subpoena to support

enforcement of damages awarded under

FSIA terrorism exception against Cuba

Aldo Vera, Sr. was a Police Chief in Havana,

Cuba. Disillusioned with the Communist regime,

he ed Cuba and lived in Florida and Puerto Rico,

where he participated in counter-revolutionary

activities. In 1976, he was shot dead in San Juan,

Puerto Rico, allegedly by Cuban agents.

Acting as representative of his father’s estate,

Aldo Vera, Jr. in 2001, sued the Republic of

Cuba in Florida state court for money damages

resulting from his father’s murder. Vera, Jr. based

his complaint on the terrorism-exception provision

of the Foreign Sovereign Immunities Act (“FSIA”).

Cuba failed to appear in the Florida action. After

a bench trial in 2008, the state court entered a

default judgment in Vera, Jr.’s favor. In 2012, Vera,

Jr. led suit against the Republic of Cuba in the

Southern District of New York seeking entry of the

Florida Judgment under the Full Faith and Credit

Act, 28 U.S.C. § 1738. As Cuba again failed to

appear, the district court, by default, entered the

Florida judgment on August 20, 2012. On October

11, 2012, the district court authorized Vera, Jr., to

pursue attachment and execution on the judgment.

Vera, Jr., issued subpoenas to the New York

branches of various banks, including Banco Bilbao

Vizcaya Argentaria’s (“BBVA”) New York branch,

seeking to discover assets that Cuba held at those

banks worldwide. BBVA responded by identifying

Cuba’s sovereign assets at its New York branch, but

did not provide information about Cuba’s assets

that the bank may hold abroad. On November

13, 2013, Vera, Jr., moved to compel BBVA’s full

compliance with the subpoena. BBVA then cross-

moved to quash the subpoena.

Vera, Jr., also led motions in the district court

for orders directing various banks to turn over

identied Cuban sovereign assets held at the banks’

New York branches. As a number of banks objected,

the district court orally directed Vera, Jr., to le and

serve a formal pleading for turnover naming the banks

as defendants. As per the court, this action ensured

its jurisdiction to order the banks to turn over Cuba’s

assets and allowed the banks to interplead other

potential claimants to the assets at issue. Accordingly,

Vera, Jr., led with the court, and thereafter served

on BBVA and other banks, an omnibus petition for

the turnover of Cuban sovereign assets in New York

against which writs of execution had been levied

under the Southern-District-recognized Florida

judgment. While this turnover petition was pending,

the district court rejected BBVA’s challenges to

jurisdiction and ordered BBVA to provide full and

complete answers in respect to Cuba’s assets located

in BBVA’s branches in and outside of United States.

In its appeal BBVA argued that according to the

court’s intervening decision in Gucci America, Inc. v.

Weixing Li, 768 F.3d 122 (2d Cir. 2014), BBVA was

not subject to general personal jurisdiction in New

York, and moved for reconsideration. e district

court both denied reconsideration of tis enforcement

order and granted the omnibus turnover petition as

to Cuba’s sovereign assets held at BBVA’s New York

branch. BBVA appealed both orders.

BBVA moved for a stay of the district court’s

enforcement orders pending resolution of its

appeals, arguing that the district court lacked

jurisdiction to order worldwide discovery. Vera, Jr.,

opposed a stay, arguing, that the court is without

jurisdiction because the appealed decisions are not

nal orders under 28 U.S.C. § 1291.

e United States District Court of Appeals

for the Second Circuit dismisses BBVA’s appeals for

lack of jurisdiction and denies the stay motion as

moot. e key issue here is whether the appealed

orders enforcing the subpoena and denying

reconsideration are “nal decisions” within the

meaning of § 1291.

e Court concluded that the orders here at

issued do not qualify as nial decisions in either of

the following respects:

“A nal decision is one that ‘ends the litigation

on the merits and leaves nothing for the court to

do but execute the judgment.’ Coopers & Lybrand