A Cuban government building beside Revolution Square in Havana (Photo: Shutterstock)

For Javier Lopez, a partner at Coral Gables firm Kozyak Tropin & Throckmorton, more than money is at stake in the $792 million lawsuit he filed in July on behalf of a family whose bank was expropriated by Fidel Castro’s government.

His uncle was a political prisoner in Cuba for 30 years, and his hotelier family fled in the revolution. For years, he watched in frustration as subsequent U.S. presidential administrations suspended Title III, a provision within the 1996 Helms-Burton Act that allows Cuban Americans to sue companies who are profiting from land confiscated by the Castro regime in 1959.

“I heard the stories about how they were thrown out of their home, out of their businesses at gunpoint,” said Lopez, who is suing French investment bank Societe Generale S.A on behalf of plaintiff Carlos and Pura Nunez. “They came to this country to rebuild but always carried this pain. [Helms-Burton] is an opportunity to get justice.”

Then, on the 58th anniversary of the Bay of Pigs invasion in April, National Security Adviser John Bolton announced to a group of veterans of the invasion that the Trump administration would allow Title III lawsuits to go forward for the first time since the bill’s passage decades ago. The law, he said, also served as a foreign policy tool to punish Cuba for its human rights record and support of Venezuelan President Nicolás Maduro.

The litigation trickled in slowly, with only handful of suits filed initially. But the past month has seen new urgency as existing cases make their way through the courts, even as some Cuban American lawyers and others questions Helms-Burton’s influence on the United States’ evolving relationship with Cuba.

On July 31, Senior U.S. Judge James Lawrence King issued a tentative ruling on one of several key issues in a case brought by lawyers at Miami-based Colson Hicks Eidson against Carnival Cruises.

The plaintiff, Miami surgeon Javier Garcia-Bengochea, claims his family owned commercial property on the Port of Santiago that was confiscated by the Castro government. He alleges that because Carnival uses the dock to drop off cruise passengers, the company is trafficking in his stolen property.

Many attorneys who have yet to file their own Helms-Burton cases are watching the Carnival suit closely, with more than one referring to the case as the “canary in the coal mine.”

King concluded that, if the facts are accurate, Garcia-Bengochea made sufficient allegations to pursue his claim to two docks in the port in a July hearing on a motion to dismiss filed by Carnival’s attorneys, led by Boies Schiller Flexner partner Stuart Singer and Jones Walker partner George Fowler III.

“The complaint does, in fact, taken in the light that it is true, and so on, under the cases cited, I believe, does make a proper claim … that meets the requirements of Helms-Burton,” King said.

King has yet to signal his ruling on other assertions in the motion to dismiss, including the argument that because cruise companies have legal waivers by the U.S. and Cuba, cruises are considered “lawful travel,” which makes them exempt from Helms-Burton. A decision is expected to come down in a few weeks.

U.S. District Judge Beth Bloom on Aug. 14 denied a motion to stay discovery filed by Carnival, who wanted to halt discovery pending the resolution of their motion to dismiss.

Neither Garcia-Bengochea’s or Carnival’s attorneys would comment on the lawsuit.

As the case progresses, it’s not only individual plaintiffs seeking redress under Helms-Burton. Earlier this month, Cuban oil companies CIMEX and CUPET hired attorneys Michael Krinsky and Lindsey Frank from the New York firm Rabinowitz, Boudin, Standard, Krinsky & Lieberman to represent them in a lawsuit filed by Exxon Mobil in New York. Exxon alleges the government confiscated refineries held by its predecessor, Standard Oil.

Meanwhile, the demands of bringing an action under Helms-Burton—including a $6,500 filing fee and challenges in collecting a judgment—may be one reason the trickle of suits has not become a flood.

Consider Lopez’s experience putting together his multimillion dollar suit against Societe Generale. He said he met with over 80 families considering Helms-Burton litigation. The nascent case has already required close to more than 200 billable hours and Lopez hired an associate solely dedicated to the lawsuit.

And in the end, there’s no guarantees that the time will pay off.

“These cases are very risky because you don’t know what the precedent is,” Lopez said.

But he and several Miami attorneys, including Jorge Mestre of Miami-based firm Rivero Mestre, have indicated that they have several more lawsuits in the wings. A report from the Latin Lawyer found that over a dozen companies will soon face Helms-Burton lawsuits as “several U.S. firms are poised to file complaints.”

Litigation is only one part of Helms-Burton. The Trump administration and U.S. politicians such as Republican Sen. Marco Rubio tout the legislation as a tool to chill foreign investment into Cuba and punish the island for its support of Maduro.

The logic is that companies that may have been inclined to take part in public-private partnerships with the Cuba will fear exposing themselves to Helms-Burton litigation.

Lopez gave anecdotal evidence of a stakeholder who immediately tried to sell off a stake in a business that Lopez served with a 30-day notice of intent to file. But no conclusive data has come out supporting the chilling effect argument.

As far as its value as a foreign policy tool, the Cuban American legal community is split, while U.S. allies including France, Canada and Mexico have forcefully batted away Helms-Burton suits from being brought into their respective countries through blocking statutes passed shortly after Helms-Burton.

The Cuban American Bar Association has taken no official stance on the law, although it held its first-ever webinar looking into Helms-Burton. Sixty attorneys participated in the program, making it the highest-attended CLE of the year, said Maria Garcia, president of CABA.

For many Cuban Americans, like Lopez, Helms-Burton is vindication for Cuban refugees and a strong signal to the Cuban government that its support of regimes in Nicaragua and Venezuela is unacceptable.

But for other Cuban Americans—including some prominent Miami lawyers—the litigation is counterproductive to pulling Cuba into the international fold and opening it up to democracy.

Among the skeptics, count Akerman partner Pedro Freyre, who is representing Carnival in another Helms-Burton case and who calls Title III actions ”a flawed tool for recovery” that can invite retaliatory measures.

Another is Carlos Concepcion, Miami-based chair of the global arbitration group at Shook, Hardy & Bacon, who worries that the law is holding back potential progress for Cuban foreign relations.

“I think that eventually the Cuban government will open up itself and integrate into the international community,” Concepcion said. “I see Helms-Burton as a pause toward that goal.”

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