The Trump administration said Monday it will allow unprecedented lawsuits in American courts against Cuban companies using property seized during the 1959 revolution, as it works to discourage more of the foreign investment in Cuba that provides the island's economy with a lifeline.These actions are made possible because of two significant changes. The first was the increasing utility of the Global Magnitsky Act that effectively permits a refined and targeted sanctions strategy akin to the possibilities of targeted killings made possible by refinements in drone and related technologies. Calls for greater use against Cuba intensified in the wake of the Cuban constitutional reform project that closed at the end of February (El senador Bob Menéndez pide sanciones para representantes del Gobierno de Cuba ("Bob Menéndez considera que ante todo esto Estados Unidos no puede quedarse de brazos cruzados. Por eso pide a la Administración Trump que vaya más allá de "discursos y tuits" y aplique sanciones contempladas en la Ley Global Magnitsky sobre Responsabilidad de Derechos Humanos")). The second was the vulnerability of the Cuban state at the beginning of its 2030 Economic Plan which relies on quite well managed foreign investment and a cautious effort to re-enter global financial and commercial markets. "After the Cuban economy grew by just over 1 percent in 2018, Cuban leader Miguel Díaz-Canel said that “Cuba’s fundamental battle” is economic and that one of Cuba’s urgent needs is attracting more foreign direct investment." (Foreign investment in Cuba might be at risk if U.S. allows lawsuits over confiscated property).
Secretary of State Mike Pompeo issued a 30-day "partial waiver" to a law known as the Libertad or Helms-Burton Act, allowing U.S. citizens to bring lawsuits in U.S. federal court against about 200 Cuban entities on a "restricted list" that have been subject to U.S. sanctions. The list includes entities under the control of Cuban military intelligence or security forces, but foreign companies invested in the island will be protected against such suits — at least for now. (Trump admin to let Americans sue some foreign firms doing business in Cuba).
For companies with investments in Cuba, the action poses risks with respect to property that may be subject to litigation. "Among the foreign companies heavily invested in Cuba are Canadian mining firm Canadian Sherritt International and Spain’s Melia Hotels. U.S. companies, including airlines and cruise companies, have forged business deals in Cuba since the easing of restrictions under Obama." (U.S. allows lawsuits against Cuban entities but shields foreign firms for now).
The text of the State Department Media Note, some additional reporting, and the Text of Title III of the LIBERTAD Act follows.
Office of the SpokespersonWashington, DC
March 4, 2019
Today, Secretary Pompeo reported to the appropriate Congressional committees his determination that an additional suspension for 30 days through April 17, 2019, of the right to bring an action under Title III of the 1996 Cuban Liberty and Democratic Solidarity (LIBERTAD) Act is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba, with the below exception. Beginning March 19, suspension shall not apply to:
We will continue to study the impact of this suspension on the human rights situation in Cuba. The Cuba Restricted List identifies entities and sub-entities under the control of Cuban military, intelligence, or security services. These security services are directly responsible for the repression of the Cuban people. We encourage any person doing business in Cuba to reconsider whether they are trafficking in confiscated property and abetting the Cuban dictatorship.
- 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), as may be updated from time to time.
U.S. allows lawsuits against Cuban entities but shields foreign firms for now
Lesley Wroughton, Patricia Zengerle, Matt Spetalnick
The Trump administration said on Monday it would allow lawsuits by U.S. citizens against dozens of Cuban companies and other entities on Washington’s blacklist but will maintain, for now, a ban against suing foreign firms doing business on the communist-ruled island.
The move marked an intensification of U.S. pressure on Cuba and also appeared aimed at punishing Havana over its support for Venezuela’s socialist president, Nicolas Maduro. But it stopped short of the more severe step of targeting foreign investments in Cuba - though it left the door open to doing so in the future.
Lawsuits in U.S. courts against Cuban enterprises, many linked to military and intelligence services, will be permitted beginning on March 19. But Washington will keep in place until at least April 17 a ban on legal action against foreign firms using property confiscated by the Cuban government since the 1959 revolution, the State Department said.
Every U.S. president has suspended on a rotating six-month basis a section of the 1996 Helms-Burton Act that would allow such lawsuits by Cuban-Americans and other U.S. citizens due to opposition from the international community and fears it could create chaos in the U.S. court system with a flood of legal claims.
But President Donald Trump’s administration first announced in January a 45-day review of the matter and has now added another 30 days for further study while allowing the act’s controversial Title III on private legal actions to be partially activated for the first time.
Cuban Foreign Minister Bruno Rodriguez said he “strongly rejected” the U.S. action against Cuban companies “arbitrarily sanctioned” by the Trump administration. The 30-day waiver for other cases, he said in a message on Twitter, amounted to an “unacceptable threat against the world.”
A complete lifting of the ban could let potentially billions of dollars in legal claims move forward in U.S. courts and likely antagonize Canada and U.S. European partners, whose companies have significant business holdings in Cuba.
It could also affect some U.S. companies that have begun investing in the island since former President Barack Obama’s opening to the old Cold War foe.
Allowing the provision to go into effect even on a limited basis could undermine efforts by Cuban President Miguel Diaz-Canel to foster foreign investment and promote tourism to bolster the Caribbean island’s fragile economy.
CONSULTATIONS WITH CANADA, EUROPEANS
A senior State Department official said the Trump administration had consulted with Canada and European partners in deliberations on how to proceed.
Under Monday’s announcement, lawsuits will not be authorized against foreign partners in joint ventures with the Cuban government, the official told reporters.
The administration had initially prepared to open the door wider to litigation, exempting only U.S. companies and those from allied countries, but it decided in the end on a more limited approach for now, a person familiar with the discussions said.
Among the foreign companies heavily invested in Cuba are Canadian mining firm Canadian Sherritt International and Spain’s Melia Hotels. U.S. companies, including airlines and cruise companies, have forged business deals in Cuba since the easing of restrictions under Obama.
U.S.-Cuban relations have nosedived since Trump became president, partially rolling back the detente initiated by Obama and reverting to Cold War-style rhetoric. A six-decade-old U.S. economic embargo on Cuba has also remained officially intact.
With Monday’s announcement, the administration made clear that it was not only acting because of what the State Department official called “the Cuban state’s repression of its own people” but also to send a message about Havana’s role in Venezuela.
“Cuba continues to maintain close relations to Russia and China and has destabilized Venezuela, leading to mass flows of refugees and of course public health threats,” the official said.
Trump aides have regularly denounced Cuba for what they say is political and security assistance helping Maduro to keep his grip on power since opposition leader Juan Guaido invoked the Venezuelan constitution in January and swore himself in as interim president.
Washington and dozens of other countries have recognized Guaido, but Maduro, who says he is being targeted by a U.S.-directed coup attempt, is backed by Cuba as well as Russia and China and retains control of state institutions, including the military.
Trump’s toughened stance on Cuba as well as Venezuela has gone down well in the large Cuban-American community in south Florida, an important voting bloc in a key political swing state as he looks toward his re-election campaign in 2020.
John Bolton, who became Trump’s national security adviser last April, called Cuba and its top allies Venezuela and Nicaragua a “troika of tyranny” in Miami speech in November.
SEC. 301. FINDINGS.
The Congress makes the following findings:
(1) Individuals enjoy a fundamental right to own and enjoy property which is enshrined in the United States Constitution.
(2) The wrongful confiscation or taking of property belonging to United States nationals by the Cuban Government, and the subsequent exploitation of this property at the expense of the rightful owner, undermines the comity of nations, the free flow of commerce, and economic development.
(3) Since Fidel Castro seized power in Cuba in 1959--
(A) he has trampled on the fundamental rights of the Cuban people; and
(B) through his personal despotism, he has confiscated the property of--
(i) millions of his own citizens;
(ii) thousands of United States nationals; and
(iii) thousands more Cubans who claimed asylum in the United States as refugees because of persecution and later became naturalized citizens of the United States.
(4) It is in the interest of the Cuban people that the Cuban Government respect equally the property rights of Cuban nationals and nationals of other countries.
(5) The Cuban Government is offering foreign investors the opportunity to purchase an equity interest in, manage, or enter into joint ventures using property and assets some of which were confiscated from United States nationals.
(6) This "trafficking" in confiscated property provides badly needed financial benefit, including hard currency, oil, and productive investment and expertise, to the current Cuban Government and thus undermines the foreign policy of the United States--
(A) to bring democratic institutions to Cuba through the pressure of a general economic embargo at a time when the Castro regime has proven to be vulnerable to international economic pressure; and
(8) The international judicial system, as currently structured, lacks fully effective remedies for the wrongful confiscation of property and for unjust enrichment from the use of wrongfully confiscated property by governments and private entities at the expense of the rightful owners of the property.
(9) International law recognizes that a nation has the ability to provide for rules of law with respect to conduct outside its territory that has or is intended to have substantial effect within its territory.
(10) The United States Government has an obligation to its citizens to provide protection against wrongful confiscations by foreign nations and their citizens, including the provision of private remedies.
(11) To deter trafficking in wrongfully confiscated property, United States nationals who were the victims of these confiscations should be endowed with a judicial remedy in the courts of the United States that would deny traffickers any profits from economically exploiting Castro's wrongful seizures.
SEC. 302. LIABILITY FOR TRAFFICKING IN CONFISCATED PROPERTY CLAIMED BY UNITED STATES NATIONALS.
(a) Civil Remedy.--
(1) Liability for trafficking.--(A) Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of--
(i) the amount which is the greater of--
(I) the amount, if any, certified to the claimant by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949, plus interest;
(II) the amount determined under section 303(a)(2), plus interest; or
(III) the fair market value of that property, calculated as being either the current value of the property, or the value of the property when confiscated plus interest, whichever is greater; and
(ii) court costs and reasonable attorneys' fees.
(B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, United States Code, computed by the court from the date of confiscation of the property involved
(3) Increased liability.--(A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949, be liable for damages computed in accordance with subparagraph (C).
(B) If the claimant in an action under this subsection (other than a United States national to whom subparagraph (A) applies) provides, after the end of the 3-month period described in paragraph (1) notice to--
(i) a person against whom the action is to be initiated, or
(ii) a person who is to be joined as a defendant in the action,
at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30- day period beginning on the date the notice is provided, traffics in the confiscated property that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with subparagraph (C).
(C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of--
(i) the amount determined under paragraph (1)(A)(ii), and
(ii) 3 times the amount determined applicable under paragraph (1)(A)(i).
(D) Notice to a person under subparagraph (B)--
(i) shall be in writing;
(ii) shall be posted by certified mail or personally delivered to the person; and
(iii) shall contain--
(I) a statement of intention to commence the action under this section or to join the person as a defendant (as the case may be), together with the reasons therefor;
(II) a demand that the unlawful trafficking in the claimant's property cease immediately; and (III) a copy of the summary statement published under paragraph (8).
(B) In the case of property confiscated before the date of the enactment of this Act, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before such date of enactment.
(C) In the case of property confiscated on or after the date of the enactment of this Act, a United States national who, after the property is confiscated, acquires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section.
(5) Treatment of certain actions.--(A) In the case of a United States national who was eligible to file a claim with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but did not so file the claim, that United States national may not bring an action on that claim under this section.
(B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section.
(C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on the date of the enactment of this Act.
(D) An interest in property for which a United States national has a claim certified under title V of the International Claims Settlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified.
(6) Inapplicability of act of state doctrine.--No court of the United States shall decline, based upon the act of state doctrine, to make a determination on the merits in an action brought under paragraph (1) .
(7) Licenses not required.--(A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, without obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the execution of a judgment against, or the settlement of actions involving, property blocked under the authorities of section 5(b) of the Trading with the Enemy Act that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on the date of the enactment of this Act.
(B) Notwithstanding any other provision of law, and for purposes of this title only, any claim against the Cuban Government shall not be deemed to be an interest in property the transfer of
(8) Publication by attorney general.--Not later than 60 days after the date of the enactment of this Act, the Attorney General shall prepare and publish in the Federal Register a concise summary of the provisions of this title, including a statement of the liability under this title of a person trafficking in confiscated property, and the remedies available to United States nationals under this title.
(b) Amount in Controversy.--An action may be brought under this section by a United States national only where the amount in controversy exceeds the sum or value of $50,000, exclusive of interest, costs, and attorneys' fees. In calculating $50,000 for purposes of the preceding sentence, the applicable amount under subclause (I), (II), or (III) of subsection (a)(1)(A)(i) may not be tripled as provided in subsection (a)(3).
(c) Procedural Requirements.--
(1) In general.--Except as provided in this title, the provisions of title 28, United States Code, and the rules of the courts of the United States apply to actions under this section to the same extent as such provisions and rules apply to any other action brought under section 1331 of title 28, United States Code.
(2) Service of process.--In an action under this section, service of process on an agency or instrumentality of a foreign state in the conduct of a commercial activity, or against individuals acting under color of law, shall be made in accordance with section 1608 of title 28, United States Code.
(d) Enforceability of Judgments Against Cuban Government.--In an action brought under this section, any judgment against an agency or instrumentality of the Cuban Government shall not be enforceable against an agency or instrumentality of either a transition government in Cuba or a democratically elected government in Cuba.
(e) Certain Property Immune From Execution.--Section 1611 of title 28, United States Code, is amended by adding at the end the following new subsection:
"(c) Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment and from execution in an action brought under section 302 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 to the extent that the property is a facility or installation used by an accredited diplomatic mission for official purposes.".
(f) Election of Remedies.--
(1) Election.--Subject to paragraph (2)--
(A) any United States national that brings an action under this section may not bring any other civil action or proceeding under the common law, Federal law, or the law of any of the several States, the District of Columbia, or any commonwealth, territory, or possession of the United States, that seeks monetary or nonmonetary compensation by reason of the same subject matter;
(2) Treatment of certified claimants.--(A) In the case of any United States national that brings an action under this section based on a claim certified under title V of the International Claims Settlement Act of 1949--
(i) if the recovery in the action is equal to or greater than the amount of the certified claim, the United States national may not receive payment on the claim under any agreement entered into between the United States and Cuba settling claims covered by such title, and such national shall be deemed to have discharged the United States from any further responsibility to represent the United States national with respect to that claim;
(ii) if the recovery in the action is less than the amount of the certified claim, the United States national may receive payment under a claims agreement described in clause (i) but only to the extent of the difference between the amount of the recovery and the amount of the certified claim; and
(iii) if there is no recovery in the action, the United States national may receive payment on the certified claim under a claims agreement described in clause (i) to the same extent as any certified claimant who does not bring an action under this section.
(B) In the event some or all actions brought under this section are consolidated by judicial or other action in such manner as to create a pool of assets available to satisfy the claims in such actions, including a pool of assets in a proceeding in bankruptcy, every claimant whose claim in an action so consolidated was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 shall be entitled to payment in full of its claim from the assets in such pool before any payment is made from the assets in such pool with respect to any claim not so certified.
(g) Deposit of Excess Payments by Cuba Under Claims Agreement.--Any amounts paid by Cuba under any agreement entered into between the United States and Cuba settling certified claims under title V of the International Claims Settlement Act of 1949 that are in excess of the payments made on such certified claims after the application of subsection (f) shall be deposited into the United States Treasury.
(h) Termination of Rights.--
(1) In general.--All rights created under this section to bring an action for money damages with respect to property confiscated by the Cuban Government--
(A) may be suspended under section 204(a); and
(B) shall cease upon transmittal to the Congress of a determination of the President under section 203(c)(3) that a democratically elected government in Cuba is in power.
(i) Imposition of Filing Fees.--The Judicial Conference of the United States shall establish a uniform fee that shall be imposed upon the plaintiff or plaintiffs in each action brought under this section. The fee should be established at a level sufficient to recover the costs to the courts of actions brought under this section. The fee under this subsection is in addition to any other fees imposed under title 28, United States Code.
SEC. 303. PROOF OF OWNERSHIP OF CLAIMS TO CONFISCATED PROPERTY.
(a) Evidence of Ownership.--
(1) Conclusiveness of certified claims.--In any action brought under this title, the court shall accept as conclusive proof of ownership of an interest in property a certification of a claim to ownership of that interest that has been made by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 (22 U.S.C. 1643 and following).
(2) Claims not certified.--If in an action under this title a claim has not been so certified by the Foreign Claims Settlement Commission, the court may appoint a special master, including the Foreign Claims Settlement Commission, to make determinations regarding the amount and ownership of the claim. Such determinations are only for evidentiary purposes in civil actions brought under this title and do not constitute certifications under title V of the International Claims Settlement Act of 1949.
(3) Effect of determinations of foreign or international entities.-- In determining the amount or ownership of a claim in an action under this title, the court shall not accept as conclusive evidence any findings, orders, judgments, or decrees from administrative agencies or courts of foreign countries or international organizations that declare the value of or invalidate the claim, unless the declaration of value or invalidation was found pursuant to binding international arbitration to which the United States or the claimant submitted the claim.
(b) Amendment of the International Claims Settlement Act of 1949.--Title V of the International Claims Settlement Act of 1949 (22 U.S.C. 1643 and following) is amended by adding at the end the following new section:
"DETERMINATION OF OWNERSHIP OF CLAIMS REFERRED BY DISTRICT COURTS OF THE UNITED STATES
"Sec. 514. Notwithstanding any other provision of this Act and only for purposes of section 302 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, a United State district court, for fact-finding purposes, may refer to the Commission, and the Commission may determine, questions of the amount and ownership of a claim by a United States national (as defined in section 4 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996), resulting from the confiscation of property by the Government of Cuba described in section 503(a), whether or not the United States national qualified as a national of the United States (as
(1) to require or otherwise authorize the claims of Cuban nationals who became United States citizens after their property was confiscated to be included in the claims certified to the Secretary of State by the Foreign Claims Settlement Commission for purposes of future negotiation and espousal of claims with a friendly government in Cuba when diplomatic relations are restored; or
(2) as superseding, amending, or otherwise altering certifications that have been made under title V of the International Claims Settlement Act of 1949 before the date of the enactment of this Act.
SEC. 304. EXCLUSIVITY OF FOREIGN CLAIMS SETTLEMENT COMMISSION CERTIFICATION PROCEDURE.
Title V of the International Claims Settlement Act of 1949 (22 U.S.C. 1643 and following), as amended by section 303, is further amended by adding at the end the following new section:
"EXCLUSIVITY OF FOREIGN CLAIMS SETTLEMENT COMMISSION CERTIFICATION PROCEDURE
"Sec. 515. (a) Subject to subsection (b), neither any national of the United States who was eligible to file a claim under section 503 but did not timely file such claim under that section, nor any person who was ineligible to file a claim under section 503, nor any national of Cuba, including any agency, instrumentality, subdivision, or enterprise of the Government of Cuba or any local government of Cuba, nor any successor thereto, whether or not recognized by the United States, shall have a claim to, participate in, or otherwise have an interest in, the compensation proceeds or nonmonetary compensation paid or allocated to a national of the United States by virtue of a claim certified by the Commission under section 507, nor shall any district court of the United States have jurisdiction to adjudicate any such claim.
"(b) Nothing in subsection (a) shall be construed to detract from or otherwise affect any rights in the shares of capital stock of nationals of the United States owning claims certified by the Commission under section 507.".
SEC. 305. LIMITATION OF ACTIONS.
An action under section 302 may not be brought more than 2 years after the trafficking giving rise to the action has ceased to occur.
SEC. 306. EFFECTIVE DATE.
(a) In General.--Subject to subsections (b) and (c), this title and the amendments made by this title shall take effect on August 1, 1996.
(b) Suspension Authority.--
(1) Suspension authority.--The President may suspend the effective date under subsection (a) for
(2) Additional suspensions.--The President may suspend the effective date under subsection (a) for additional periods of not more than 6 months each, each of which shall begin on the day after the last day of the period during which a suspension is in effect under this subsection, if the President determines and reports in writing to the appropriate congressional committees at least 15 days before the date on which the additional suspension is to begin that the suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.
(c) Other Authorities.--
(1) Suspension.--After this title and the amendments of this title have taken effect--
(A) no person shall acquire a property interest in any potential or pending action under this title; and
(B) the President may suspend the right to bring an action under this title with respect to confiscated property for a period of not more than 6 months if the President determines and reports in writing to the appropriate congressional committees at least 15 days before the suspension takes effect that such suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.
(2) Additional suspensions.--The President may suspend the right to bring an action under this title for additional periods of not more than 6 months each, each of which shall begin on the day after the last day of the period during which a suspension is in effect under this subsection, if the President determines and reports in writing to the appropriate congressional committees at least 15 days before the date on which the additional suspension is to begin that the suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.
(3) Pending suits.--The suspensions of actions under paragraph (1) shall not affect suits commenced before the date of such suspension, and in all such suits, proceedings shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if the suspension had not occurred.
(d) Rescission of Suspension.--The President may rescind any suspension made under subsection (b) or (c) upon reporting to the appropriate congressional committees that doing so will expedite a transition to democracy in Cuba.