This is another case involving the LIBERTAD Act—aka Helms Burton Act—that creates a private right of action for property confiscated by the Cuban government (see also this case). The wrinkle in this case is that the companies trafficking in the confiscated property themselves constitute part of the Cuban government. As an “agency and instrumentality” of the government, they would generally be shielded from suits by the Foreign Sovereign Immunities Act (FSIA). Does the LIBERTAD Act create an exception to the FSIA?
The District Court held that the LIBERTAD Act does not create such an exception, and Exxon would need to find an exception within FSIA itself. The DC Circuit agreed (with a dissent), and Exxon appealed to the Supreme Court. The resolution of this case centers on how explicit Congress must be to create any exception to the general FSIA shield in a subsequent act. One interesting aspect of this and the other LIBERTAD case is that the justices seem to be talking quite a bit about congressional purpose and intent—would Congress have created the LIBERTAD Act if they thought X percent of the potential claims would be blocked by FSIA? That of course is an entirely reasonable way to approach the substance of the problem, remarkable only for the fact that the Court has for so long avoided this style of reasoning in favor of strained text-parsing.
The model predicts that the Court will affirm the DC Circuit, siding with the Cuban companies (roughly 3/5 odds). There is no auto-dissent in this case, but Justice Gorsuch may be the most likely to dissent.
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