Castro victims' families have new strategy targeting phone companies (More of the war on Cuba)

[Mika]

Castro victims' families have new strategy targeting phone companies
http://www.miamiherald.com/news/miami-dade/v-fullstory/story/1157928.html

A legal war is shaping up in Miami over a family's bid to garnish hundreds of millions paid by U.S.-licensed phone companies to the Cuban government, to satisfy a wrongful-death judgment.

A half-century after Bobby Fuller was executed by a Castro firing squad, his aging siblings are ratcheting up their quest to make Cuba pay for their enduring loss.

And they have come up with a new legal strategy for doing so: Make U.S. phone companies cough up the money.

Specifically, they want to attach the hundreds of millions in revenue that phone carriers like AT&T and Sprint share with the Cuban phone monopoly. The money is generated by calls between the island and the United States, an enterprise exempted from the U.S. trade embargo against Cuba.

If successful, the relatives of Fuller and four other Miami-Dade families with more than $1 billion in outstanding ``wrongful death'' judgments against Cuba would have a potential new source from which to collect their claims.

``The stakes are huge,'' said Miami attorney Andrew Hall, who recently collected a $13 million judgment against Sudan for families of 17 U.S. sailors killed in the terrorist attack on the USS Cole. Hall is not involved in the Fullers' case.

The Fuller family's legal action also could expose closely held details of how the U.S.-licensed phone companies go through third parties to pay the Castro government -- secrets they don't want to disclose.

The phone companies have launched a defense, saying their payments cannot be seized to satisfy the judgments because the money cannot be directly linked to the Cuban government.

In the first six months of 2008, the latest figures available, eight major phone companies, including AT&T, Sprint and Verizon, paid about $122.5 million to Cuba or other carriers that provide long-distance service to the island, according to the U.S. Treasury Department.

The Fuller family's legal strategy is born of necessity because Cuban assets frozen in U.S. banks since 1963 have been mostly tapped out to pay for past wrongful-death judgments against the Castro government.

A half-dozen families -- including relatives of three Brothers to the Rescue pilots killed by the Cuban Air Force in 1996 -- have depleted the Cuban accounts at JP Morgan Chase in New York that once totaled about $170 million.

Coral Gables attorney Roberto Martinez, who led the successful legal team in the Brothers to the Rescue case, now represents the Fuller family in trying to open a new pipeline into Cuban assets held in the United States.

Martinez has already gotten AT&T to pay $1 million to the four living siblings of Fuller and his late daughter's family -- money AT&T owed for years to Cuba's original phone company, EMTELCUBA, now defunct. That payout represented a fraction of the Fullers' $100 million judgment against Cuba, awarded in December 2006.

Martinez also has persuaded a federal judge to order nine telephone companies with U.S. licenses -- including AT&T, Verizon and Sprint -- to explain how they pay long-distance revenue to the Cuban government.

The companies hold licenses from the Treasury Department to provide the phone service between the island nation and the United States.

Earlier this month, U.S. District Judge Adalberto Jordan ordered the phone companies to submit affidavits disclosing their payments to third-party carriers and to Cuba's national phone company, Empresa Nacional de Telecomunicaciones de Cuba S.A. Known as ETECSA, it succeeded EMTELCUBA in 1994 and operates about 650,000 fixed-line phones.

Legally, the companies' payments to Cuba could be attached only if transferred to an ``agency or instrumentality'' of the Cuban government. Martinez asserts ETECSA fits that definition, calling it ``Havana's state-run telecommunications monopoly'' in a court filing.

ETECSA is mostly owned by companies controlled by the Cuban government, but foreign companies also hold minority interests. In an appeal of the Brothers to the Rescue case a decade ago, a federal appellate court found that because of the foreign stakes, ETECSA is not an ``alter ego'' of the Cuban government, though the company represented itself as an ``instrumentality'' during the case.

Members of the Fuller family said a thorough examination of the phone companies' payments to ETECSA is only fair. Bobby Fuller was executed after a military tribunal sentenced him to death for his role in a botched invasion in 1960.

``I think the only way the court can find out how much profit the American companies are making and how much profit the Cuban government is making is by opening the books of the companies,'' said Frederick Fuller, 70, a retired BellSouth digital technician and younger brother of Bobby Fuller.

Another Dade family that recently won a $786 million wrongful-death judgment against the Cuban government says it supports any effort to bring some comfort to victims of Castro's terrorism.

``The only way I can express my feelings is that we have experienced 50 years of suffering,'' said Gustavo Villoldo, 73, whose father, also named Gustavo, was driven to suicide after the Castro regime confiscated his General Motors dealership in the aftermath of the 1959 Cuban Revolution. ``The money is important, but I think the fact that I won means a lot to me and my family.''

In 1996, the Anti-Terrorism and Effective Death Penalty Act cleared the way for private citizens to sue foreign governments for terrorist acts and triggered a flurry of lawsuits -- and judgments -- against Cuba in Miami-Dade County.

The Cuban government has never defended itself in the wrongful-death suits, but has insisted it was the rightful owner of money frozen in U.S. bank accounts that were depleted to satisfy some of the judgments.

In 2002, Congress adopted another law, the Terrorism Risk Insurance Act, which has helped victims collect judgments against terrorist-designated states such as Cuba, Iran and North Korea. The law allows them to pursue assets of those countries in the United States.

The Fuller relatives, along with four other Miami-Dade families, are relying on that law.

The U.S.-licensed phone companies, however, strongly opposed turning over their financial records.

In court filings, their lawyers argued that the payments are not subject to seizure because the carriers have Treasury Department licenses, and they do not pay money ``directly'' to the Cuban government or others named in the Fullers' claim, including the Castro brothers.

They also contend that ETECSA is a separate entity from the Cuban government.

Hall, the lawyer who recently collected the $13 million judgment from U.S.-held Sudanese assets using the same law as the Fullers, said the family's lawsuit is on ``solid legal ground.'' Their lawyers must prove the U.S.-licensed phone companies' payments are going to a Cuban government entity.

Miami attorney Joseph DeMaria, who has helped two local families with judgments against Cuba obtain more than $47 million from frozen Cuban assets in New York banks, said gaining access to the money is never easy.

No one -- from Cuba to the phone companies to the banks -- wants to give it up.

But DeMaria said Martinez has defied the odds in the past.

``Bob Martinez has been been very creative and very effective in persuading these big American companies to pay money to the victims of Cuban terrorism,'' DeMaria said. ``If anybody knows how to pull this off, it's him.''