CUBA Trends and Developments Contributed by: Martin Domb, Pedro A. Freyre, Augusto E. Maxwell, Christopher Carver and Lorayne Perez, Akerman LLP
Update on Helms-Burton Act Cuba “Trafficking” Cases Note: Akerman LLP currently represents several cli- ents in the defence of claims resulting from the lifting of the suspension of Title III of the Helms-Burton Act in 2019. This article should not be considered a reflection of the firm’s position in those cases. This last year has seen considerable development of Helms-Burton Act case law, as a number of appel- late decisions on issues of first impression have come down. Last time our firm provided an update, the Eleventh Circuit’s decision was awaited in the Havana Docks cases, which were on appeal following the trial court’s entry of judgments of about USD110 million against each of four cruise lines – about USD440 million in total – on claims the cruise lines’ use of the Port of Havana, although duly licensed by the US govern- ment, constituted “trafficking” under the Helms-Burton Act. The Eleventh Circuit decided those consolidated appeals this past year, holding that the cruise lines could not have trafficked in the plaintiff’s time-limited and expired property interest, as detailed below. That was followed by the US Supreme Court granting the plaintiff’s petition for writ of certiorari, which means it will decide the case by the end of the current term (approximately July 2026). The Eleventh Circuit also issued its ruling in North American Sugar Industries, Inc. v Xianjiang Gold- wind Science & Technology Co., et al. The appeals court vacated the trial court’s dismissal of the action on personal jurisdiction grounds and remanded to the trial court for an evidentiary hearing on personal jurisdiction. The case is brought against three sets of defendants, each of which had a role in the shipment of wind turbine blades from China to a Cuban port in which the plaintiff, a former sugar company, claims an interest. In Exxon Mobil Corp. v Corporación CIMEX, S.A. , fol - lowing the split decision by a three-judge panel of the Court of Appeals for the District of Columbia, which ruled that the Foreign Sovereign Immunities Act (FSIA) is the only basis for a court to exercise jurisdiction over a foreign state, and that the Helms-Burton Act
does not independently grant such jurisdiction, the US Supreme Court also just granted certiorari, and will decide the case by the end of the current term. These cases are summarised below, in addition to the following significant case developments: • In Fernandez v Seaboard Marine Ltd. , the Elev- enth Circuit affirmed in part and reversed in part a summary final judgment in favour of the defendant. The Court held that shareholders of corporations whose assets had been expropriated by the Cuban government are proper Helms-Burton Act plaintiffs. It also analysed whether the plaintiffs’ evidence was sufficient to create a jury issue on defend- ant’s alleged trafficking in the specific properties at issue, holding in part that it did, and, in so holding it, expounded upon the breadth of the Act’s defini- tion of trafficking. • In Regueiro v American Airlines, Inc. , the Eleventh Circuit held that a Helms-Burton Act claim is valid even though the confiscated property did not belong to a US national at the time of confiscation and the plaintiff became a US national after acquir- ing his interest in the property. • In the consolidated Echevarria v Expedia Group, Inc . cases, after a two-week trial, a Miami-Dade County jury returned a verdict in favour of Echevar- ria and against each of the four Expedia defend- ants in the amount of USD29.8 million, inclusive of treble damages. However, the trial court set aside the verdicts and entered judgment as a matter of law in favour of all four defendants, as further explained below. As a brief reminder, the Act’s civil liability provisions grant a US national the right, subject to various limi- tations and conditions, to sue and collect substantial money damages from persons that have knowingly and intentionally trafficked in – that is, used or derived economic benefit from – property that the Cuban gov- ernment expropriated in or after 1959 and in which the US national claims an interest. Havana Docks The plaintiff, Havana Docks Corporation, held a 99-year usufructuary concession (essentially a tempo- rally limited, non-exclusive right to use property owned
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