By Arthur M. Freyre*
President Trump’s decision to end the waiver of Helms-Burton’s Title III lawsuits has dramatically changed how foreign companies do business in Cuba. Individuals who have a claim or may have a potential claim against the Cuban government for stolen property can now file suit against foreign companies who are trafficking or trespassing on property they used to own but confiscated by Cuba without compensation. The waiver that has been in the law since the signing of the bill in 1996, ended on May 2nd and Title III will finally be implemented. This post provides a general overview on the Title III lawsuit process. Let’s answer three basic questions: “Who are the plaintiffs?” “What is property?” and “What is the trafficking?”
Prior to discussing the three questions, counsels should note that pursuant to 22 U.S.C. §6082 (a)(8), the Attorney General was supposed to have prepared and published in the Federal Register a concise summary of the Act sixty days after the date of enactment. Now that the waiver has been lifted, we anticipate that the Attorney General will prepare and publish the Title III summary. Besides being familiar with the statute, attorneys filing or defending Title III lawsuits need to be aware of certain required actions (i.e. notice to parties and the wind down period) prior to the filing of the lawsuit.
The first question is “Who are the Plaintiffs?” Helms-Burton recognizes two groups of plaintiffs. The first group of plaintiffs is known as certified claimants. The second group of plaintiffs consists of individuals, or heirs of Cuban nationals, who are now U.S. citizens. These are known as uncertified claimants.
Certified claimants are individuals or corporations who were U.S. citizens when their property in Cuba was confiscated by the Castro revolution after 1959. These individuals provided evidence to the U.S. Foreign Claims Settlement Commission showing that the Cuban government confiscated their land without compensation. The Commission issued a certified claim to the claimant based on the property’s value. Prior to this implementation of Title III, certified claimants effectively had no access to federal court to file a lawsuit, except for a limited number of victims of terror with personal injury or wrongful death claims.