Attorneys in South Florida expect to see a barrage of new litigation filed when the Trump administration allows Cuban-Americans to file lawsuits against companies that have used property that they claim belonged to them before it was confiscated following the Cuban revolution.
Title III of the Helms-Burton Act, signed by President Bill Clinton in 1996, allows Americans, including Cubans who have since become U.S. citizens, to bring lawsuits against individuals or companies that “traffic” in property confiscated by Cuba after the 1959 Cuban revolution.
Since the law’s enactment 23 years ago, every administration has suspended Title III. But the Trump administration has decided to allow it to take effect, at least in part, when the current suspension expires later this month.
U.S. Secretary of State Mike Pompeo announced on Monday that the administration would allow plaintiffs to bring suits against the 200 Cuban entities, which include hotels, beverage manufacturers and tourism agencies, blacklisted by the U.S. because they have ties to Cuba’s military and intelligence services. He also said it is considering expanding the list within 30 days—a move that would put companies not on the list, including European and other non-U.S. companies, at risk of litigation.
Spanish hotelier Melia, for example, has established hotels on property that according to the U.S. government was confiscated by Cuba. Tourist ventures such as Carnival Cruises, based in Doral, and airline companies, have also entered into joint ventures with the Cuban government in light of the Obama-era policies easing restrictions on investment.
While these companies are not on the initial list announced Monday, they could be targets if the full provisions of Title III go into effect. The exact number of suits that could be brought is unknown, although the U.S. Foreign Claims Settlement Commission has already certified 6,000 claims.
Nick Gutierrez, a former Florida attorney and a Cuban-American, has worked with hundreds of Cuban exile families since the bill’s passage, organizing legal documents proving ownership of confiscated land with the hope that one day a U.S. president would allow the Title III provision to be enacted. Gutierrez, who had his law license suspended by the Florida Bar in 2012 after he was found to have falsified and fabricated evidence in a civil case, worked with Helms-Burton co-sponsor Sen. Jesse Helms to create the bill.
“We’re trying to seek justice for all of these families that have had their property taken and could only sit by while foreign investors do business with companies who seized their property,” Gutierrez said.
Out of the hundreds of potential cases that Gutierrez has identified, only a few dozen will likely be brought against companies because potential plaintiffs face many restrictions, he said.
First of all, companies must have a U.S. presence so that plaintiffs may bring their case in U.S. court. In addition, the property must be actively in use for some sort of commercial activity. It also must be worth over $50,000. Plus, plaintiffs must pay a $6,700 filing fee — an obstacle written into the law to discourage frivolous litigation, Gutierrez said.
Carlos Concepcion, chair of the International Arbitration practice at Shook, Hardy & Bacon and a Cuban-American, said he has five companies lined up that would file lawsuits if the full provision goes into effect.
He said some companies may be unable to bring claims because of “blocking statutes” passed by several countries that currently do business in Cuba, including Canada, Mexico and Spain. Those countries passed blocking statutes in reaction to the Helms-Burton Act.
Whether those laws stand up in U.S. courts has yet to be determined. Concepcion said he is confident that claimants will be able to prevail in the end.
“I think it’s highly likely that this will happen, and it’s only a matter of time,” he said.
Akerman attorney Pedro Freyre, also a Cuban-American, is representing potential Title III defendants. But from his point of view, allowing Title III lawsuits to go forward is a mistake.
“There’s been good reason why every administration since 1996 has decided not to go through Title III claims. It creates a difficult barrier by opening up retaliatory action by third parties,” he said. “That’s why we have the Foreign Claims Settlement Commission, which is better equipped to provide a universal fix.”
The Cuban American Bar Association supports the Trump administration’s move to partially enact Title III of the Helms-Burton Act, both as a way to pressure Cuba and to punish the country for supporting Venezuela President Nicolás Maduro.
“[It] is a step in the right direction to continue to promote the advancement of democracy and truly free elections in Cuba, as well as hold the Cuban government accountable for its role in the current instability in Venezuela through their support of the Maduro regime,” the group said in a statement.
Florida Sen. Marco Rubio affirmed his support on Twitter, noting that the partial enactment of the provision was the “first in a serious of steps.”
“Today expect the United States to take the first in a series of steps to hold the regime in #Cuba accountable for its 60 years of crimes & illegality which includes its support for the murderous #MaduroCrimeFamily,” he tweeted.
The Ministry of Foreign Affairs of Cuba vehemently opposes the enactment of Title III, saying in a statement that “[t]he government of President Donald Trump threatens to take a new step that would dangerously reinforce the blockade against Cuba, flagrantly violate International Law, and directly attack the sovereignty and interests of third countries.”