Tag: International claims

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State Department Records Reveal Cuba Still Owes Billions to U.S. Taxpayers; Property Claims No Closer to Resolution

Washington, D.C. – The road to the historic re-establishment of diplomatic relations between the United States and Cuba on July 25, 2015, was supposed to usher in a new era of U.S.-Cuba relations. For the first time in close to a century, a sitting American president visited Cuba and so did many representatives from various American companies. Supporters of the new policy lauded the outreach as a new way forward. Opponents argued it was a mistake and the move to normalize relations without settling the claims was premature.

For American citizens holding thousands of certified claims against Cuba’s government for stolen properties confiscated after the 1959 Communist revolution, there was a hope that they would finally see justice and accountability. The claims were supposedly discussed between both countries for the first time in decades. Yet, as of this writing, American taxpayers owed more than $10,000,000,000 by Cuba have yet to be paid what they are owed under U.S. law and international claims law.

On October 10, 2018, Poblete Tamargo LLP (“PT Law”) filed a Freedom of Information Act (“FOIA”) lawsuit against the Department of State in U.S. District Court for the District of Columbia for records requested more than five years ago related to U.S.-Cuba property claims. The Complaint is embedded at the end of this post. The suit stems from two FOIA records requests for records, one filed in 2014, and the other in 2015, submitted to the Department of State before the U.S. and Cuba normalized diplomatic relations.

The firm was particularly interested in records on the enforcement, or lack thereof, of several provisions of the Cuban Liberty and Democratic Solidarity Act of 1996 (“the Helms-Burton”) and other laws related to the settlement of the outstanding American property claims pending against the government of Cuba. As of this writing, American taxpayers owed billions by Cuba no closer to settling the claims. The relationship with Cuba has also deteriorated for various reasons, especially over the attacks on U.S. diplomats that started in late 2016 and that have yet to be satisfactorily resolved, among other issues. At the end of this post is a copy of the complaint and a sampling of some of the documents released to date.

2019-12-10 18-cv-02335 December 2019 PT REDACTED

PT Law Attorneys and Public Policy professionals have worked on U.S.-Cuba policy for decades including during the drafting of the Helms-Burton law in Congress. The firm currently represents nearly two dozen families who hold certified claims against Cuba. In advocacy efforts during the past few years, the Firm has stressed the importance of resolving these claims correctly, consistent with the law.

The resolution of U.S.-Cuba property claims will set important precedents that will impact future property claims programs well beyond Cuba. During the past ten years, PT Law attorneys have testified before Congress, briefed policymakers in both political branches of government, foreign governments, businesses, and other interested parties on the importance of successfully resolving this long-standing dispute not only for our clients but to better inform the general public and fellow attorneys about these programs.

The records produced by the Department of State will not only help advance justice and accountability for American citizens wronged by Communist Cuba and those today who traffic in confiscated property, but it will also help U.S. taxpayers understand how this program has worked, or not worked, and how it can be improved so that future claims programs can be properly structured to advance U.S. national and taxpayer interests.

If you are a claims practitioner, we hope these records bring much-needed sunshine on the U.S.-Cuba claims program, an intersection of law and public policy that continues to unfold in courts of law and in the court of public opinion. You can search for records produced by the Department of State by following this link.

2018-10-10 PT v State Complaint FOIA

2018-10-10 PT v State Compl… by Jason I. Poblete on Scribd

** Note PobleteTamargo has redacted additional information from any posted productions to protect the email addresses and direct phone numbers of government officials.

PRODUCTION DATEDOWNLOAD LINK
June 2019DOWNLOAD
November 2019DOWNLOAD
December 2019DOWNLOAD
January 2020DOWNLOAD
February 2020DOWNLOAD
March 2020DOWNLOAD
Excerpts from Documents Produced by the State Department in 18-cv-02335

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Cuba Standard: As Title III Activation Looms, Lawyers Move Into Position

The following apeared in the April-May 2019 Edition of Cuba Standard Monthly (Vol. 27, No. 4-5). PobleteTamargo attorney Jason Poblete discusses Title III and the potential for lawsuits against those trafficking in stolen property.

“Any company engaging in transactions in Cuba, if the elements of the law are met, can be sued under Title III,” Poblete explains. 

He goes on to state, “In Cuba, the alleged trafficker has a choice to make: do business in Cuba or the United States — or find another way forward, such as pay the claim holder a ‘right to traffic’ fee.”

Read the full article by Mr. Vito Echevarria published in Cuba Standard below.

 

CubaStandard Title III 2019 by pobletetamargo on Scribd

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THE ILS GAZETTE: New Phase in US-Cuba Relations Adds New Layers of Complexity for Foreign Companies Doing Business in Cuba

To read The ILS Gazette go here. 

 

New Phase in US-Cuba Relations Adds New Layers of Complexity for Foreign Companies Doing Business in Cuba

By Arthur M. Freyre*

President Trump’s decision to end the waiver of Helms-Burton’s[1] 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.

Uncertified claimants are persons whose families left Cuba after the 1959 communist takeover and whose property were also confiscated by the Cuban government. At the time of the taking, these property owners were not U.S. citizens, and were not eligible to present their matter before the U.S. Foreign Claims Settlement Commission when they arrived to the United States.  Subsequently, they or their sons or daughters became U.S. citizens.  Regarding this class of potential plaintiffs, Title III states that the federal courts may use the Commission as a special master to review the uncertified claim and make a finding on it’s validity and it’s value for the court to decide.

An additional question the courts may have to consider is the question of what is property? Pursuant to Title III, property is broadly defined to include intellectual property (i.e. trademarks, copyrights, patents, and so forth), real property (commercial and personal), and any item that may have a present, future, or contingent right, security, or other interest therein. 

The third and final question is what is defines as trafficking? Trafficking in a confiscated property involves a person who knowingly and intentionally, and without authorization of any U.S. national who holds a claim to the property, engages in or benefits from a wide range of transactions in Cuba that include or relate to a confiscated property. There are several exceptions to the trafficking definition. It is important to discuss this matter with counsel.

One final point regarding trafficking, 22 USC § 6082(b) states the required minimum threshold for damages in federal court is $50,000 value of the property at the time of the confiscation. This amount is exclusive of interest, costs, and attorney fees. 

Just because one believes that they might meet the minimal threshold of standing, there are other factors that one needs to consider. For instance, the Judicial Conference announced that there is an additional filing fee of $6,548.00 that one needs to pay the courts for the filing of a Title III action, Besides the filing fees, other costs may include service of process, and other fees and expenses we have not mentioned here regarding litigation.

In closing, companies doing business in Cuba should reassess their increased risk exposure during this time, as it may be significant. They need to make sure that they are not trafficking in stolen property. This was the case before May 2nd since there remains an economic embargo of Cuba. Counsel should read and understand Title III carefully and also review the economic sanctions regulations in conjunction with your Title III analysis. Failure to do this assessment may expose companies and individuals to potential lawsuits and liability. Reading and understanding Title III carefully is just as important for those who believe that they may have a Title III claim. Failure to comply with the notice provisions could lead to unnecessary expense and the dismissal of a Title III claim. 

*Arthur M. Freyre, Esq., is an attorney at the Law Offices of Poblete Tamargo LLP. His practice area includes federal regulatory law and public policy. Mr. Freyre would like to thank Mr. Mauricio Tamargo, Esq., former Chairman of the Foreign Claim Settlement Commission and Mr. Jason Poblete, Esq., an expert in U.S. economic sanctions and export control laws, for their assistance and input in this blog post.  

[1] The Cuban Liberty and Democratic Solidarity Act, 22 U.S.C. §§6021-6091.

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MIAMI HERALD: Foreign Investment in Cuba Might Be At Risk If US Allows Lawsuits Over Confiscated Property

Ever since the passage of The Helms-Burton Act in 1996, Title III of the provision has been suspended by every President, preventing lawsuits in U.S. courts against foreign companies conducting business on property in Cuba subject to a U.S. certified Claim. Last month, Secretary of State Mike Pompeo notified the Congress that instead of suspending Title III for 6 months, it would only be a 45-day suspension during which the Administration would conduct a careful review.

PobleteTamargo attorney Jason Poblete discussed the potential risks to foreign investors looking to enter the Cuban market in an article published in The Miami Herald.

Poblete explains that, “[T]his would be another layer of concern for potential foreign investors and could chill investment in Cuba considerably.” He goes on to add that, “It would not be easy to make a Title III claim. It requires time, money and emotional capital.”

 

The complete article in The Miami Herald written by Mimi Whitefield can be found here.

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The Trump Administration Considers Allowing American Citizens to Sue Companies Trafficking in Confiscated Properties in Cuba

By Arthur M. Freyre*

Secretary of State Mike Pompeo announced on January 16, 2019, that he is evaluating if Title III of the Helms-Burton Cuba sanctions law would be waived in 45 days or whether he would recommend to President Trump that Americans be allowed to defend property rights in U.S. federal court. Secretary Pompeo’s decision is expected to come by March 2nd. If Title III is not waived, American citizens and others may sue in U.S. federal court for trafficking in confiscated properties in Cuba. Foreign companies doing business in Cuba, or any person subject to U.S. law who may be considering Cuba-related transactions, should familiarize themselves with this matter.

Background

American taxpayers have been barred from bringing forth anti-trafficking property lawsuits because every president has waived Title III since the law was enacted in 1996. One of the main reasons Title III has been waived until now is the concern that a foreign company or country would prevail against the U.S. in the court of the World Trade Organization.

To understand the impact of Title III, some historical perspective will help highlight why it is such an important tool in defending American property rights. After the 1959 communist takeover of Cuba, the Cuban government targeted American citizens and others opposed to the socialist revolution. The Cuban government’s confiscation of property resulted in thousands of American citizens and countless Cuban nationals losing their residences, businesses, and other forms of personal and real property.

Internationally it is well recognized that all nations, including Cuba, may confiscate property for different reasons, but under international law, nations have an obligation to compensate foreign nationals for property confiscations or expropriations. Cuba’s confiscations were driven by both economic and ideological reasons in a process that violated both international property law and international human rights law.

The only remedy that an American citizen had at the time was to file their claims for certification by the Foreign Claims Settlement Commission. The International Claims Settlement Act of 1949 (22 U.S.C. 1643, et. seq.) governs the certified claims process. The Cuba Claims Program was completed and closed in 1972, when the Commission certified 5,911 claims. The program was briefly reopened in 2005, during which two additional claims were certified.

Updating U.S.-Cuba Policy & Laws in Response to New Circumstances

In the early 1990s, for the first time since the Cold War, the U.S. Congress looked closely at how best to protect U.S. national interests, including property rights of American nationals. In 1996, the Congress passed the Cuban Liberty and Democratic Solidarity Act or “Helms-Burton”. This law was also enacted, in part, as a response to the murder of three citizens and one U.S. national whose civilian airplanes were shot down by the Cuban Air Force over international waters.

The new law created an updated legal and policy framework for U.S.-Cuba relations that included tougher sanctions, but also a mechanism to defend U.S. property rights such as Title III that would authorize lawsuits against foreign companies and others doing business in Cuba on property that is the subject of a certified claim or otherwise confiscated property. Every president since Clinton has waived this section for national security reasons, barring all lawsuits. However, the Trump Administration is taking a second look at this option to help claim holders defend their property rights.

While the ultimate goal of Title III is settling the claims, not litigation, such lawsuits may afford claimants the right to sue for trafficking in properties that are the subject of a certified claim or otherwise confiscated. According to the law, certain lawsuits may not be allowed such as those pertaining to transactions on confiscated properties used today for lawful travel and telecommunications as defined in the statute and the Cuban Assets Control Regulations. This restriction on Title III, and other legal questions, will undoubtedly receive a great deal of scrutiny by administration officials and those considering filing a lawsuit.

Take Steps to Ensure Lawful Transactions in Cuba Do Not Include Confiscated Properties

U.S. and foreign companies doing business in Cuba may need to reassess their risk exposure if the Trump Administration implements Title III. Companies doing business in Cuba should always screen potential transactions for confiscated property scenarios. Foreign companies with an office in the United States should have an additional layer of vigilance for two reasons. First, foreign companies with U.S. offices are subject to embargo regulations, even if the U.S. subsidiary has no contact with Cuba. There are also extra-territorial legal considerations.

The second reason is that executives of foreign companies that do business in Cuba could lose their U.S. visa for engaging in trafficking in property subject to a certified claim or other claims. There are other potential penalties including the loss of U.S. visas for company officials whose businesses engage in unlawful trafficking under U.S. law, reputational risk, among others. Several Members of Congress are also considering anti-trafficking legislation to bolster and update existing laws and regulations.

In closing, companies doing business in Cuba should reassess their risk exposure, regardless of whether Title III will be implemented or waived.

*Arthur M. Freyre of PobleteTamargo LLP advises clients on public policy and legal matters having many years of experience as both a consultant and expert in public policy matters . Mr. Freyre is a regular contributor to online publications focused on foreign policy and technology, including DC Dispatches and the International Law Quarterly.