Eleventh Circuit Applies Fuld in Helms-Burton Case

 

Image by ChatGPT

On July 23, 2026, in Rodriguez v. Imperial Brands, PLC, the U.S. Court of Appeals for the Eleventh Circuit upheld the dismissal for lack of personal jurisdiction of claims against two British corporations under the Helms-Burton Act for trafficking in property expropriated by Cuba. The opinion is one of the first by a circuit court to interpret and apply the Supreme Court’s decision in Fuld v. Palestine Liberation Organization (2025), holding that federal courts are not subject to the same due process limits for personal jurisdiction as state courts. Nevertheless, the Eleventh Circuit held that exercising personal jurisdiction over the foreign defendants in Rodriguez would be unreasonable.

Although I agree with the result in this case, the Eleventh Circuit’s reading of Fuld seems deeply problematic. By reading the Supreme Court’s decision to eliminate a minimum contacts requirement even when Congress has not specifically addressed personal jurisdiction, the Eleventh Circuit turns Federal Rule of Civil Procedure (FRCP) 4(k)(2) into a superhighway for federal statutory claims against foreign defendants. Reasonableness seems inadequate to police such claims, both because its application to federal courts after Fuld is uncertain and because it is manipulable and uncertain.

The Helms-Burton Act

Thirty years ago, Congress passed the Helms-Burton Act to strengthen sanctions against Cuba and to deter foreign companies from investing there. To discourage foreign investment, Title III created a civil remedy allowing U.S. nationals to sue any person who “traffics” in property confiscated by the Cuban government for damages in an amount three times the value of the property. To avoid conflict with other countries, every U.S. president had suspended Title III, until 2019, when President Trump lifted the suspension, allowing Helms-Burton claims to be filed for the first time. The Act raises a host of fascinating questions, two of which reached the Supreme Court this past Term.

Congress expected that Helms-Burton defendants would mostly be foreign companies, since the U.S. embargo on Cuba largely prohibited U.S. companies from doing business there. Congress’s findings noted that “[t]he 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” and that “[t]he United States Department of State has notified other governments that the transfer to third parties of properties confiscated by the Cuban Government ‘would complicate any attempt to return them to their original owners.’”

As it turned out, most of the defendants in Helms-Burton cases have been U.S. companies. This is largely because the Supreme Court in Daimler AG v. Bauman (2014) eliminated the principal basis for personal jurisdiction over foreign companies in such cases, holding that general jurisdiction under the Fourteenth Amendment is (almost always) limited to companies headquartered or incorporated in the United States.

Thus, it was unsurprising that the district court in Rodriguez dismissed Helms-Burton claims against two British defendants. The claims were brought by the owners of Ramón Rodriguez e Hijos Sociedad en Comandita (RRHSC), a Cuban tobacco company seized by the Castro regime in 1961. The plaintiffs sued: (1) Habanos, a Cuban corporation controlled by the Cuban government that uses RRHSC’s former factory to make cigars; (2) Imperial Brands, a U.K. corporation that from 2007 to 2020 owned a Spanish company that owned 50% of Habanos; (3) WPP, a British company incorporated in Jersey that Imperial hired to market Habanos cigars; and (4) two of WPP’s U.S. subsidiaries. Earlier in the proceedings, Habanos was dismissed for improper venue.

Before Fuld, the Eleventh Circuit had held that the Due Process Clause of the Fifth Amendment imposed the same limits on federal courts that the Due Process Clause of the Fourteenth Amendment imposed on state courts (save only that minimum contacts were evaluated with respect to the entire United States rather than a particular state). Affirming the dismissals in Rodriguez would have been easy under this precedent, because the claims did not arise in the United States (no specific jurisdiction) and the British defendants were not headquartered or incorporated in the United States (no general jurisdiction). But, as the Eleventh Circuit noted, Fuld created a “seismic shift.”

Applying Fuld

Writing for a unanimous panel, Judge Kevin Newsom began with an admirably clear summary of the requirements for personal jurisdiction in federal court. First, a federal statute or the FRCP must establish personal jurisdiction. Second, the exercise of jurisdiction must comport with due process.

Rule 4(k) sets out three basic possibilities. First, Rule 4(k)(1)(A) allows a federal court to exercise personal jurisdiction if a state court in the same state could do so. This rule incorporates by reference the due process limits of the Fourteenth Amendment, since those limits apply to state courts. Second, Rule 4(k)(1)(C) allows a federal court to exercise personal jurisdiction “when authorized by federal statute,” subject to the limits of the Fifth Amendment. Third, Rule 4(k)(2) allows a federal court to exercise personal jurisdiction if the claim arises under federal law, the defendant is not subject to the jurisdiction of any state, and “exercising jurisdiction is consistent with the United States Constitution and laws,” which again means the limits of the Fifth Amendment.

Fuld held “that the Fifth Amendment does not impose the same jurisdictional limitations as the Fourteenth.” Without attempting to mark the “outer bounds” of the Fifth Amendment, the Supreme Court upheld that constitutionality of the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), a statute providing that the Palestinian Authority (PA) and Palestine Liberation Organization (PLO) are subject to personal jurisdiction in cases under the Anti-Terrorism Act if they make certain payments to terrorists or their families or if they engage in certain activities in the United States. The Court emphasized that “Congress and the President made a considered judgment” on “matters of foreign affairs” and that the PSJVTA was “suitably limited” to accomplish Congress’s foreign policy ends, applying to a narrow category of claims under specific circumstances. The Court found it unnecessary to decide whether the Fifth Amendment has a reasonableness requirement similar to the Fourteenth Amendment’s because, even if it did, the PSJVTA would satisfy such a requirement.

The Rodriguez plaintiffs argued that the district court could exercise jurisdiction under either Rule 4(k)(1)(C) or Rule 4(k)(2), both of which are limited only by the Fifth Amendment. Judge Newsom rejected both possibilities.

Rule 4(k)(1)(C)

Rule 4(k)(1)(C) says that service of process establishes personal jurisdiction over a defendant “when authorized by a federal statute.” That was certainly true of the PSJVTA, which directly addresses personal jurisdiction. One might argue that it is also true of other federal statutes authorizing nationwide service of process, such federal antitrust laws, federal securities laws, and RICO, though I have cautioned against reading these statutes so broadly. None of them directly addresses personal jurisdiction and so none reflects the kind of “considered judgment” by Congress and the President to which the Supreme Court deferred in Fuld. It is also important to recall, as Maggie Gardner has noted, that “Congress wrote most of its statutes with the expectation that they would not be applied beyond the limits of the Fourteenth Amendment.”

In any event, Helms-Burton presents an easy case under Rule 4(k)(1)(C). As Judge Newsom noted, there is no provision “in the Helms-Burton Act that expressly authorizes personal jurisdiction over foreign defendants.” There is a provision addressing service of process, but it applies only to agencies or instrumentalities of foreign states or individuals acting under color of law, which does not include the British defendants in this case. And, when it applies, Helms-Burton’s service provision directs service in accordance with the service provisions of the Foreign Sovereign Immunities Act(FSIA), which (unlike the federal statutes mentioned above) do not authorize nationwide service of process. The Eleventh Circuit was right that Rule 4(k)(1)(C) doesn’t apply here.

Rule 4(k)(2)

Rule 4(k)(2) allows a federal court to exercise personal jurisdiction if the claim arises under federal law, the defendant is not subject to the jurisdiction of any state, and “exercising jurisdiction is consistent with the United States Constitution and laws.” Claims under the Helms-Burton Act clearly arise under federal law, and the British defendants were not subject to the jurisdiction of any state, given the limits imposed by the Fourteenth Amendment. With respect to the last requirement, “the relevant constitutional provision” is the Fifth Amendment rather than the Fourteenth.

The defendants argued that a minimum-contacts requirement should be read into Rule 4(k)(2) based on the Advisory Committee’s notes, but Judge Newsom found this unconvincing. “Whatever one might try to read into the committee notes’ use of the word ‘contacts,’” he wrote, “the simple fact is that the Rule’s text permits personal jurisdiction provided that ‘exercising jurisdiction is consistent with the United States Constitution and laws’” (quoting FRCP 4(k)(2)). This is true, but it misses the point.

The point is not that one should read Rule 4(k)(2) to conform to the drafters’ expectations, but rather that one should read the relationship between Rule 4(k)(2) and federal statutes to conform to Congress’s expectations. As noted above, Congress wrote its pre-Fuld statutes with the expectation that Fourteenth Amendment limits on personal jurisdiction would apply. Fuld makes clear that Congress and the President may, within limits not yet defined, exercise their “considered judgment” to depart from that baseline. But as Judge Newsom correctly observed when discussing Rule 4(k)(C), nothing in Helms-Burton addresses personal jurisdiction.

Rule 4(k)(2) certainly does not reflect the “considered judgment” of Congress and the President to depart from a minimum-contacts requirement. Notwithstanding the Rules Enabling Act, the FRCP can hardly be said to reflect any judgment of the political branches. Indeed, Rule 4(k)(2) cannot be said to reflect anyone’s judgment to depart from a minimum-contacts requirement, since the Advisory Committee notes show that the drafters did not think they were doing any such thing.

The implications of the Eleventh Circuit’s reasoning here are sweeping. It would seem to convert Rule 4(k)(2), which was meant to fill a small gap in the FRCP, into a major thoroughfare for federal claims against foreign defendants, with reasonableness as the only constraint. Take antitrust law. Rule 4(k)(2) would establish personal jurisdiction over foreign defendants for violating the Sherman Act without any showing of contacts with the United States because (1) the claims arise under federal law, (2) no state court would have jurisdiction (thanks to the more stringent Fourteenth Amendment), and (3) exercising jurisdiction is consistent with the Fifth Amendment so long as it is reasonable. Under the Eleventh Circuit’s reading of Fuld, it does not matter whether a federal statute directly addresses personal jurisdiction, or even whether it authorizes nationwide service of process.

I would read Fuld differently. In my view Fuld opens the door to legislative control of personal jurisdiction in federal court. But it is up to Congress to walk through that door by specifically addressing personal jurisdiction in federal statutes, as it did in the PSJVTA.

Reasonableness

Fortunately for the defendants, Judge Newsom made up for his permissive reading of Rule 4(k)(2) with an aggressive reasonableness analysis. Although the plaintiffs have a strong interest in obtaining relief, he reasoned, the United States has less of an interest in hearing the claims than in Fuld and the burdens on the defendants of litigating in the United States would be “severe.” There are several problems with this analysis.

• First, it is not clear from Fuld that the Fifth Amendment requires reasonableness or, if it does, that its reasonableness requirement is the same as the Fourteenth’s. Judge Newsom read Fuld as “strongly suggest[ing] that the Fifth Amendment imposes a ‘reasonableness’ limitation on a federal court’s exercise of personal jurisdiction over foreign defendants.” (Apparently the plaintiffs also conceded that it does.) But here is what the Supreme Court actually said:

We need not determine whether such analysis is constitutionally required because, even if it were, the PSVJTA easily comports with the factors we have previously applied to determine ‘the reasonableness of the exercise of jurisdiction’ even under the Fourteenth Amendment.

That is not suggesting anything—it is reserving the question.

• Second, the reasonableness test applied in Fuld is arguably weaker than the one applied in Asahi. Fuld discusses only three factors—“the burden on the defendant, the interests of the forum State, and the plaintiff s interest in obtaining relief.” It omits two others identified in Asahi: (1) “the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the [U.S.] court”; and (2) the joint interests of all states in “the efficient judicial resolution of the dispute.” The first will generally favor dismissal, while the second could cut either way.

• Third, the Eleventh Circuit’s analysis of Fuld’s three factors seems strained at several points. To begin, Judge Newsom acknowledged that “the plaintiffs have a strong interest in vindicating their rights under the Helms-Burton Act” and “this country’s courts are the only tribunals in which they can do so.” But he thought that the “interest of the forum state”—the United States—was “more attenuated” in this case than in Fuld.

His reasoning boils down to two points: (1) that Helms-Burton reaches a broader set of defendants (all companies that traffic in expropriated property, not just the PLO and the PA); and (2) that those defendants’ “activity does not necessarily have a close connection to this country.” The first point is true enough, though I don’t see how it makes the U.S. interest more attenuated. The second is puzzling. The PSJVTA specifies certain connections to the United States as jurisdictional predicates because it specifically addresses personal jurisdiction, which Helms-Burton does not do. But the in both cases, the underlying claims have essentially the same connection to the United States: Fuld involved claims by U.S. nationals for terrorism abroad, whereas Rodriguez involved claims by U.S. nationals for trafficking in expropriated property abroad. Why is the U.S. interest in the first greater than the U.S. interest in the second?

More fundamentally, it seems inappropriate for federal courts to evaluate the strength of U.S. interests behind various U.S. statutes—and to do so as a matter of constitutional law, which Congress cannot override. As noted above, Helms-Burton’s findings show that Congress specifically wanted to target foreign companies that traffic in expropriated property. That should be enough to demonstrate a strong U.S. interest.

The final reasonableness factor (“the burden on the defendants”) was “severe,” the Eleventh Circuit concluded. Obviously, it is a burden for foreign companies to defend themselves in the United States—Asahi said as much—but this is true of all foreign defendants. As part of his burden analysis, Judge Newsom also mentioned U.K. blocking legislation that prohibits compliance with Helms-Burton. The doctrine of foreign state compulsion will sometimes excuse compliance with U.S. law when such compliance would result in severe sanctions under foreign law. But it typically requires a showing that the party in question attempted to avoid the conflict in good faith, for example by seeking relief from the foreign law. I see no indication in the opinion that the Rodriguez defendants made such an attempt.

• Fourth, the Eleventh Circuit never weighs these three factors against each other. In Fuld, the Supreme Court concluded that all three of the factors it discussed weighed against dismissal, so the Court had no occasion to balance them. But Asahi counsels that “[w]hen minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant.” In Rodriguez, the interests of the plaintiffs clearly weigh in favor of exercising jurisdiction, and I would say that the interests of the forum do too. Thus, whatever one thinks of the burdens on the defendants, exercising personal jurisdiction seems reasonable.

To be sure, Asahi prefaced this statement with the qualification that “minimum contacts have been established.” But that is because the Fourteenth Amendment—applicable in Asahi—requires such contacts. If the Fifth Amendment never does, which is how Rodriguez reads Fuld, then this qualification falls away.

In sum, the Eleventh Circuit’s reasonableness analysis suffers from several flaws. First, it is not clear that the Fifth Amendment requires such an analysis, the Supreme Court having reserved that question in Fuld. Second, the reasonableness test applied in Fuld seems weaker than the test applied in Asahi. Third, there are problems with Judge Newsom’s evaluation of some of the reasonableness factors, particularly the interests of the United States. And fourth, the Eleventh Circuit fails to heed Asahi’s counsel that the interests of the plaintiffs and the forum will often outweigh even a severe burden on foreign defendants.

Conclusion

To be clear, I agree with the ultimate disposition in Rodriguez—the British defendants in this case should have been dismissed for lack of personal jurisdiction. I also have some sympathy for Judge Newsom and the other members of the appellate panel to whom Fuld gave very little guidance about how to proceed.

Still, I think the Eleventh Circuit’s reasoning in this case is deeply problematic. The panel read Fuld to eliminate any requirement of minimum contacts with the United States, even when Congress has not addressed personal jurisdiction by statute, allowing Rule 4(k)(2) to establish personal jurisdiction over foreign defendants for a wide range of federal statutory claims.

To prevent jurisdictional overreach, the panel fell back on reasonableness. But this requirement’s status under the Fifth Amendment after Fuld remains uncertain, and its application in specific cases doubly so. As Judge Newsom noted at the end of his opinion, “[a]ny reasonableness assessment necessarily entails consideration of several factors, is context-dependent, and operates on a case-by-case basis.”

The better approach, I think, is to presume that the Fifth Amendment requires minimum contacts with the United States (and reasonableness) unless and until Congress has specifically addressed personal jurisdiction, as it did in Fuld. Then, the statutory test for personal jurisdiction should replace the constitutional one.

Such an approach allows Congress to legislate personal jurisdiction for federal statutory claims. But it also limits Fuld’s “seismic shift” to instances where Congress has specifically addressed personal jurisdiction, currently just the PSJVTA and the FSIA. At least until the Supreme Court takes another case to clarify the Fifth Amendment’s limits—perhaps even this one—this would be a more modest path for lower courts to take.