Litigation Continues to Progress as Title III of the Helms-Burton Act Stumbles Into Its Third Operative Year

Congress passed Title III of the Helms-Burton Act in 1996 to scare investors away from Cuba by allowing US nationals to sue any persons or entities that “traffic” in property confiscated by the Castro regime. Title III defines “traffics” expansively, to include not only engaging “in a commercial activity using or otherwise benefiting from confiscated property,” but also profiting from or even benefitting from any trafficking done by anyone else. Title III also provides for treble damages under certain circumstances, making it a potentially formidable litigation weapon.

Presidents Clinton, Bush, and Obama all suspended Title III’s operation from 1996 to 2017.  At first, President Trump did the same.  On May 2, 2019, however, the Trump Administration deviated from the precedent established by its predecessors and permitted Title III to go into effect for the first time ever.

Two years on, plaintiffs have filed roughly 40 Title III suits.  A little under half of them have already been dismissed in whole.  Fewer than 10 cases total have entered the discovery phase of litigation, suggesting that plaintiffs are finding it tough to get past even the motion to dismiss stage.  And there may not be many more cases that end up getting filed: Although the Biden Administration has not re-suspended Title III’s operation, it is likely reviewing its Cuba policy and could theoretically decide to re-suspend the statute at any time.

To learn more about these cases and what to expect going forward, read our Advisory here.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.