President Trump Ramps Up Cuba Sanctions Changes — Allows Litigation Against Non-U.S. Companies Conducting Business In Cuba

Frustrated by Cuba's continued support of the Maduro regime in Venezuela, the Trump administration announced on April 17, 2019 that it will permit U.S. individuals and companies to initiate litigation against foreign individuals and companies that have past or present business in Cuba involving property that the Cuban government confiscated in 1959. The administration made its announcement in a speech delivered by the president's national security advisor John R. Bolton, who framed the administration's decision in characteristically colorful rhetoric: "The 'troika of tyranny'—Cuba, Venezuela, and Nicaragua —is beginning to crumble...The United States looks forward to watching each corner of this sordid triangle of terror fall."1 The same day, the Trump administration also announced several other significant changes to U.S. policy toward Cuba, including blocking "U-turn" financial transactions to cut off Cuba's access to dollar-denominated transactions, limiting nonfamily travel to the island, imposing caps on the value of personal remittances, and enforcing visa restrictions regarding alien traffickers of property confiscated by Cuba.

  1. Title III of LIBERTAD to Become Effective on May 2, 2019

    On April 17, 2019, President Trump lifted long-standing limitations on American citizens seeking to sue over property confiscated by the Cuban regime after the revolution led by Fidel Castro six decades ago.

    Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996,2 commonly known as the Helms-Burton Act, authorizes current U.S. citizens and companies whose property was confiscated by the Cuban government on or after January 1, 1959 to bring suit for monetary damages against individuals or entities that "traffic" in that property. The policy rationale for this private right of action was to provide recourse for individuals whose property was seized by the Castro regime. As part of the statutory scheme, Congress provided that the President may suspend this private right of action for up to six months at a time, renewable indefinitely. In the past, Presidents of both parties have consistently suspended that statutory provision in full every six months. That will change tomorrow, May 2, 2019, when the suspension will be effectively lifted.

    1. Background

      The Trump administration has been moving towards this development for some time. In November 2018, Bolton stated that the suspension of Title III's private cause of action would be given a "very serious review." The administration's subsequent renewals of the suspension were increasingly limited in scope and duration. When the suspension expired in early January 2019, it was renewed for 45 days (far short of the usual six months).3 In March 2019, the U.S. State Department announced that it intended to allow U.S. citizens and companies to bring suit in U.S. federal court against entities and sub-entities on the Cuba Restricted List,4 a U.S. State Department compilation of Cuban entities that the U.S. Government considers to be "under the control of, or act for or on behalf of, the Cuban military, intelligence, or security services personnel." The remainder of the suspension was extended another 30 days on March 4, 2019, and then another two weeks on April 3, 2019.5 Finally, on April 17, 2019, Secretary of State Michael Pompeo announced that the Title III suspension would not extend past today's expiration date.6

    2. Analysis

      What the suspension of Title III means in practice depends upon the interpretation of a number of key terms. The term "property" under LIBERTAD is all-encompassing: it applies to any present, future, or contingent interest in real, personal, or mixed property. Any "person" that "traffics" in such property is liable to the U.S. citizen whose property was confiscated.

      LIBERTAD defines "person" as a natural person or entity, including an agency or instrumentality of a...

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