Alec Schultz of Leon Cosgrove in Coral Gables.

The Trump administration is moving toward allowing Americans to seek compensation for property they say the Cuban government expropriated as far back as the late 1950s, when Fidel Castro came to power. Should this come to fruition, it is likely to generate a flood of new lawsuits in the United States, based upon a federal statute for which there is currently no established precedent.

The enabling mechanism for these lawsuits is the 1996 Helms-Burton Act, also called the Cuban Liberty and Democratic Solidarity (Libertad) Act. Specifically, Title III of the act creates a private cause of action and allows U.S. nationals to sue in U.S. courts those persons and entities that may be holding, buying, selling or otherwise profiting from the property that claimants believe was seized.

Such litigation could potentially encompass thousands of lawsuits against countless U.S. and foreign companies and individuals who are vulnerable to accusations of violating the Cuban trade embargo by “trafficking” in seized property. The statute's definition of “trafficking” is extremely broad, potentially encompassing financial transactions which, on their face, have only an indirect relationship to seized Cuban property. For example, as written the statute could result in liability for a financial institution that indirectly finances a transaction involving Cuban property subject to a seizure claim.

Indeed, U.S. and international financial institutions will likely be prime targets for claims under the act, as foreign investment and development deals in Cuba reached $3.5 billion over the last two years. With the country seeking foreign investment to bolster the tourism sector of its economy, for example, a financial institution making a loan to refurbish a hotel on allegedly seized property could be itself subject to a claim under the act.

The act grants the president the authority to suspend Title III's lawsuit provision for up to six months at a time if doing so would protect U.S. interests and facilitate a transition to democracy in Cuba. Three administrations before the current one have refrained from reactivating the lawsuit provision, and the most recent extension is scheduled to expire on May 1.

The prospect that another extension may not materialize raises the possibility that U.S. federal courts soon will be faced with an influx of new cases, all arriving without the benefit of existing precedent to guide the development of this new body of law. Inconsistent interpretations of the provisions of the act among the federal district courts are a near certainty, and it will likely take years for the federal appellate courts to weigh in on the many issues that will inevitably arise.

In terms of the impending arrival of new federal cases, the courts will have to assess a host of jurisdictional questions, and it is likely that claims under the act will create new law in the class action context. Title III of Helms-Burton sets $50,000 as the minimum amount in controversy, so claimants with less at issue may seek to file putative class actions. There is no express statement that the legislators who enacted Helms-Burton contemplated or would have authorized class actions to meet the amount in controversy, meaning that federal courts would have to decide this question. Companies, both foreign and U.S.-based, will have to bolster their internal compliance programs and engage in new corporate due diligence for any potential transaction that could implicate, even remotely, seized Cuban property. Finally, litigation against foreign companies will undoubtedly lead to the question of whether, in the event a claimant obtains a judgment under the act from a U.S. court, the defendant has assets on which to collect in the United States. This will in turn implicate the Uniform Foreign Judgments Recognition Act, as claimants may find themselves having to litigate outside the United States in order to attempt to collect on their judgments.

While there are unquestionably many facets of this new litigation that courts will have to explore, the most critical is likely to be whether federal courts will allow U.S. nationals to sue a foreign corporation in the United States for conduct that occurred solely in Cuba. In the wake of Daimler AG v. Bauman, 571 U.S. 117 (2014), U.S. nationals could find themselves unable to establish personal jurisdiction over a foreign corporation they accuse of violating the act.

Daimler involved, among other claims, a cause of action pursuant to the Alien Tort Statute, 28 U.S.C. Section 1350. There are analogies between that statute and the Helms Burton Act, as both provide a private right of action in U.S. courts for acts committed outside of the United States. Despite this private right of action, however, the U.S. Supreme Court in Daimler held that a U.S. plaintiff could not establish general personal jurisdiction over a foreign corporation under the Alien Tort Statute. Rather, the only avenue was specific personal jurisdiction, which would have required showing some form of misconduct occurred in or was directed to the forum state.

The Supreme Court went so far as to expressly note that “international comity” played a role in its decision not to subject foreign corporations to general personal jurisdiction. “The solicitor general informs us, in this regard, that “foreign governments' objections to some domestic courts' expansive views of general jurisdiction have in the past impeded negotiations of international agreements on the reciprocal recognition and enforcement of judgments.”

The court then noted “considerations of international rapport thus reinforce our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the fair play and substantial justice due process demands.”

This opinion is particularly intriguing as it relates to potential Helms-Burton Act cases because many other Western nations strenuously urged the Trump administration not to eliminate the existing suspension on civil cases on the very “international rapport” grounds the court identified. Corporations in other countries, particularly Europe, Russia and China, have been much more willing to engage in commerce with Cuba, as they are not subject to the U.S. trade embargo. With their corporations as prime targets of potential claims under the act, they would likely immediately assert a personal jurisdiction defense under Daimler should they face litigation in the United States. Given the similarities between the act and the Alien Tort Statute addressed in Daimler, federal district courts will be hard pressed to deviate from that opinion and allow suits to proceed under the act against wholly foreign corporations.

Therefore, while the purpose of the Helms-Burton Act may well have been to deter foreign corporations from investing in Cuba to bolster the U.S. trade embargo, recent Supreme Court precedent could well result in an ultimate outcome where the brunt of this policy change—and the influx of lawsuits—is borne by U.S. businesses.

Alec Schultz is a partner at León Cosgrove specializing in commercial litigation.