Eleventh Circuit Rules on Havana Docks Case. Will it be the last time?

By John R. Byrne

A win for the cruise lines (at least for now) at the Eleventh Circuit in the Havana Docks case, a case that involves application of the Helms Burton Act. 

To set the stage, under the act, a US national who owns a claim to confiscated property has a private right of action against any person who traffics in that property. Havana Docks corporation brought a claim against various cruise lines, alleging that the Cuban government had confiscated property that it had the right to operate (e.g., docks and piers) and that the cruise lines "trafficked" in that property when using the docks and piers to bring tourists to Cuba between 2015 and 2019. 

We blogged many months ago about the win for Havana Docks at the district court level, which resulted in a $400m judgment against the cruise lines. But on appeal, two out of the three judges (Judges Pryor and Jordan) saw things differently.  The gist of their holding was that Havana Docks's right to operate the docks/piers (which flowed from a 99 year "concession" granted to it by the Cuban government) had expired in 2004, before the cruise lines' trafficking took place. 

But this case could be heading for en banc review. The majority conceded that the issue before them was "one of first impression" and "not easy." And Judge Brasher (who clerked for Judge Pryor, incidentally) dissented. Relying on the text on the statute, Judge Brasher reasoned (among other things) that the trafficking by the cruise lines didn't need to occur during the original concessionary period for Havana Docks to have a claim. 

If this goes en banc, it'll be hard to predict how this one will shake out...

Havana Docks 202310151 by John Byrne on Scribd

Fed PD moves to recuse Judge Cannon in Trump assassination case

 I've always respected and admired the Federal Public Defender's Office here in Miami.  Of course I'm biased because I'm an alum.  But alum or not, everyone must surely agree that they are courageous and fight.  Check out this motion to recuse Judge Cannon (file by AFPDs Kristy Militello and Renee Sihvola.  You may not agree with it, but it took chutzpah to file it.

It starts this way:

Mr. Routh stands accused of attempting to assassinate Donald J. Trump. He faces up to life in prison. This case has already attracted significant media attention. It will continue to do so, and this Court’s rulings are likely to face intense public scrutiny. This motion presumes that this Court would preside over this case impartially. However, given the heightened stakes and the public scrutiny, there should not be any doubts about even the appearance of impartiality of the presiding judge. 

Although Mr. Trump is the alleged victim here, he previously served as President of the United States. While in office, he nominated Your Honor to her current position as a U.S. District Judge on the Southern District of Florida. Your Honor thus owes her lifetime appointment to the alleged victim in this criminal case.

After Mr. Trump left office, he was charged in this District with 40 felony counts relating to his retention of classified documents. Your Honor recently presided over that criminal case, and ultimately dismissed the case against Mr. Trump. 

Mr. Trump is the current Republican candidate for President in next month’s election. On the campaign trail, he has repeatedly praised Your Honor for her rulings in his case. As the alleged victim here, he has a significant stake in the outcome of this case too. Were he to become President in the future, he would have authority to nominate Your Honor to a federal judgeship on a higher court were a vacancy to arise.

Taken together, these unprecedented facts and circumstances might create an appearance of partiality in the mind of the public. Accordingly, the Constitution and the federal recusal statute require Your Honor to recuse herself from this case.

Congratulations to Judge Damian!

 

The Funk Shop

 

Uncle Luke wins his federal case and gives a nice shout out to Judge Gayles, his lawyers, and the jury:

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A post shared by LUTHER CAMPBELL (@unclelukereal1)

Face Down

 There's a pretty incredible trial going on that isn't getting much press -- Two Live Crew is in court before Judge Gayles.  And Uncle Luke is on the stand.  From Law 360:

Rapper and producer Luther Campbell, also known as Uncle Luke, told jurors Monday that the checks they'd been shown for payments to members of hip-hop group 2 Live Crew were for per diem expenses, not paychecks, and insisted that the group members were not employees of his record label and can therefore claw back their rights to their old hit recordings.

Campbell, who owns record label Luke Records, said he and the other three members of 2 Live Crew were paid advances and received shares of the profits from the group's albums, their live performances and merchandise. None of Luke Records' employees received that kind of compensation, he said.

He pushed back against the assertion by plaintiff Lil' Joe Records — which says it bought the rights to the songs in 1996 through a bankruptcy of Luke Records' assets — that the recordings were works for hire made while under employment by Luke Records.

"This wasn't work for hire," he said. "If someone comes in and plays guitar, that's work for hire. Or someone plays piano on a song, that's work for hire."

Lil' Joe Records, which is owned by former Luke Records general counsel and chief financial officer Joseph Weinberger, is suing Campbell and late 2 Live Crew members Christopher Wong Won and Mark Ross, whose heirs are defending their interests. The music label is trying to stop them from terminating the label's exclusive licenses of their material under Section 203 of the Copyright Act, which allows copyright owners to terminate licenses during a five-year window beginning 35 years after the publication of a work.

Jurors have been tasked with determining whether the 2 Live Crew members were employees of Luke Records when the songs in the five albums at issue in the suit were created. They also will have to find which of three operative agreements — one oral agreement and two written agreements in 1990 and 1991 — granted the transfer of ownership of the subject copyrights.

"Prosecutors erode our rights with show-and-tell indictments like Eric Adams’s"

That's the title of this op-ed in the Washington Post by Abbe Lowell.

Amen!

Here's the introduction:

Recently we witnessed what has become a familiar scene, so familiar that no one apparently stopped to consider how wrong it was: U.S. Attorney Damian Williams standing at a lectern, holding a news conference to announce the indictment of New York Mayor Eric Adams on charges of bribery and campaign finance offenses.

In a 20-minute publicity event, framed on one side by the agents who worked the case and on the other by a color photo of the Turkish consulate building the mayor is alleged to have helped get approved, Williams detailed the charges using phrases such as “luxury travel,” “foreign influence,” “corrupt relationships” and “grave breach of public trust.” He made sure to describe every dollar exchanged as charged in the indictment. Then he invited an FBI supervisor and a New York City commissioner to jump in and add their claims of Adams’s “perver[sion] of greed, and dishonesty” and breach of “integrity, transparency and dedication.”

All this occurred on the day the charges were unsealed, not the day a guilty verdict was issued. You might be forgiven for being confused.

This sort of trial by lectern or show-and-tell indictment is a lamentable phenomenon that needs to be eliminated — now. It erodes the presumption of innocence and subverts the requirement for a fair trial. By the time a trial starts, would-be jurors have been tainted by hearing the worst allegations against a defendant with no rebuttal, and judges can easily form initial opinions that could carry over to their rulings.

 

Judge Darrin Gayles celebrates 10 years on the federal bench (and 20 as a judge)

20 years as a judge, wow.

Seems like yesterday we were brand new lawyers appearing before Judge Graham not knowing what we were doing.

Here's a cool picture of Judge Gayles with some of his law clerks and staff.

Congrats Judge Gayles.

School Board Gets a Lesson on Free Speech from the Eleventh

By John R. Byrne

Who knew school board meetings could get this intense? The Eleventh Circuit just issued an opinion holding that the Brevard County School Board's policies governing speech at school board meetings violated the First Amendment. The board had policies prohibiting "abusive," "personally directed," and "obsence" speech. The court said that while "abusive" and "obscene" speech could be restricted in principle, the school board had offered fuzzy definitions of the terms that would reach protected speech. According to the Court, "giving offense is a viewpoint" and "a restriction barring that viewpoint effectively requires 'happy talk,' permitting a speaker to give positive or benign comments, but not negative or even challenging one."

Judge Wilson dissented, in part. For much of his dissent, he offered examples of speech that the board actually allowed, his point being that it's not as though the board was out to muzzle any particular agenda. He also disagreed with the majority's ruling striking down the ban on "personally directed" speech. His point seems well taken here. It appears that the majority was overreading that restriction (Wilson pointed out that it only required a speaker to address their comments to specific board members/the board as a whole/the presiding officer, not that it banned a speaker from naming names). 

Anyway, on the off chance that you're speaking before the Brevard School Board anytime soon (or crafting speech policies for a limited public forum), a must read....

Happy Friday.

Moms for Liberty by John Byrne on Scribd