US to allow lawsuits against trafficking in Cuban-confiscated property

The US State Department has announced a limited exception to the suspension of Title III of the Cuban Liberty and Democratic Solidarity Act, also known as the Libertad Act or Helms-Burton Act, and which allows US nationals to bring a lawsuit in federal court against any person who knowingly traffics in property confiscated by the Cuban government.

This power had been suspended by every presidential administration since the act was enacted in 1996, and was recently again suspended by the Trump administration. 

The State Department’s announcement provides a limited exception to the suspension, according to law firm Winston & Strawn.

Beginning March 19, the suspension shall not apply to the right to bring an action against a Cuban entity or sub-entity identified by name on the State Department’s list of restricted entities and sub-entities associated with Cuba, known as the Cuba Restricted List. 

This exception means that Cuban entities or sub-entities on the Cuba Restricted List that traffic in confiscated property can be sued by US nationals who own the claim to the property. 

Trafficking is defined in the Libertad Act and includes transferring, purchasing, improving, investing in, and benefiting from confiscated property. Because this definition is so broad, companies that profit from the use of confiscated property may be liable, even if they do not own the property themselves. 

According to the State Department, the Trump administration is open to removing the suspension altogether, and the current suspension will expire on April 17, 2019. If this suspension is not extended again by April 17, individuals and entities across a wide range of sectors could face civil liability under this Act, according to the law firm. 

Title III liability is not statutorily limited to Cuban entities but extends to others who traffic in confiscated property.

The State Department recommends any person doing business in Cuba to reconsider whether they are trafficking in confiscated property.