July 12, 2020

Visa challenges the constitutionality of the Libertad Act

On July 7, 2020, Visa Inc. filed a Notice of Constitutional Question requesting that US Attorney General William Barr weigh in on its constitutional challenges related to the Cuban Liberty and Democratic Solidarity (Libertad) Act, 22 U.S.C. § 602 et seq., also known as the Helms-Burton Act.  The notice was filed as part of Visa’s lawsuit with Cuban-American Robert Glen, who accused the company of trafficking his family’s confiscated property in violation of the Libertad Act.  The constitutional questions raised by Visa are, whether the definition of “traffic” in the Libertad Act is impermissibly vague, as applied to Visa and on its face, and whether the Libertad Act’s civil liability provision of treble damages is an impermissibly excessive, punitive and disproportionate remedy, in violation of Visa’s due process rights.

The case began in 2019, when Glen filed a claim in the US District Court for the District of Delaware, alleging that Visa and another financial services company, earned revenue for processing payment transactions, such as international transaction and services fees, for enabling customers to pay for hotel reservations at two beachfront resort hotels in Cuba, that he claimed were built on property that the Cuban government confiscated from his family in 1959.   According to the amended complaint filed in March 2020, Visa instructed vendors that its cards could no longer be used at the hotels in question, after receiving notice from Glen regarding the alleged violations.  However, in his complaint Glen maintains that Visa remains liable for trafficking the property prior to the policy change. 

Visa has filed motions to dismiss this case and challenge the constitutionality of the Libertad Act, in its Motion to Dismiss the Amended Complaint, and its Opening Brief in Support of Visa’s Motion to Dismiss the Amended Complaint, both filed in May of 2020.  The district court judge has not ruled on the motions to dismiss, and a trial date has not yet been set.

Visa’s Notice of Constitutional Question | Glen’s Amended Complaint