Helms-Burton’s Statute of Repose
February 13, 2025
Helms-Burton plaintiffs just can’t seem to catch a break. They have struggled to establish personal jurisdiction over foreign defendants, run into issues of foreign sovereign immunity, and found that their property rights have expired. Now, the Second Circuit has held that the Helms-Burton Act’s statute of repose blocks claims more than two years old.
Congress passed the Helms-Burton Act in 1996 to strengthen sanctions against Cuba and discourage foreign investment there. Title III of the act 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. But a provision of the act allows the President to suspend Title III for six-month periods, which every President did until President Donald Trump declined to do so in May 2019.
Title III also contains a statute of repose providing that “[a]n action … may not be brought more than 2 years after the trafficking giving rise to the action has ceased to occur.” On January 7, 2025, in Moreira v. Societe Generale, the Second Circuit held that this provision is indeed a statute of repose—rather than a statute of limitations that might be equitably tolled—and that presidential suspensions between 1996 and 2019 did not extend the deadline for filing suit. The upshot is that plaintiffs may not bring claims based on trafficking in confiscated property that ended before May 2017.
Allegations Against Foreign Banks
In 1960, Cuba expropriated the assets of Banco Nuñez and Banco Pujol, two private banks, and consolidated them with the state-owned bank Banco Nacional de Cuba (BNC). In 2019 and 2020, successors-in-interest to the two banks brought separate actions against Société Générale and BNP Paribas for trafficking in confiscated property. Plaintiffs alleged that the French banks provided BNC with U.S. dollar financing and credit, deliveries of parcels of U.S. currency, and non-U.S. dollar financing.
The banks had admitted to conduct that arguably constituted trafficking between 2000 and 2010 in plea agreements with the Department of Justice for violating U.S. sanctions against Cuba. Plaintiffs based their claims on this conduct and also alleged that support for BNC continued through at least 2018.
Although claims against other foreign defendants have been dismissed for lack of personal jurisdiction—a result of the Supreme Court’s tightening the rules for general jurisdiction in Daimler AG v. Bauman (2014)—the district judges in these two cases dismissed the claims based largely on Helms-Burton’s provision requiring actions to be brought within two years.
A Statute of Repose
The principal question on appeal was whether Section 6084 is a statute of limitations, which may be subject to equitable tolling, or a statute of repose, which may be tolled only under exceptions created in the act. Section 6084 provides: “An action … may not be brought more than 2 years after the trafficking giving rise to the action has ceased to occur.”
Relying on the Supreme Court’s decision in California Public Employees’ Retirement System v. ANZ Securities, Inc. (2017), the Second Circuit held that Section 6084 is a statute of repose. Writing for the panel, Judge Robert Sack noted that “[t]he statutory phrase ‘has ceased to occur’ plainly cuts off liability two years after the defendant’s last culpable act—not when a claim accrues or has been discovered,” which is a clear indication of a statute of repose. Judge Sack further reasoned that the phrase “[a]n action … may not be brought” admits of no exceptions, another factor that the Supreme Court found indicative of a statute of repose in ANZ Securities.
Legislative Suspension
The Second Circuit also rejected plaintiffs’ argument that presidential suspensions between 1996 and 2019 had legislatively tolled Helms-Burton’s statute of repose. Plaintiffs argued the power to “suspend” a cause of action was not the power to “rescind” a cause of action. But the court was unconvinced. Judge Sack reasoned that the provision on suspension and the statute of repose were separate and that the first did not affect the second. “Where the applicable time bar is a statute of repose,” he reasoned, “statutorily suspending a plaintiff’s right to bring an action for a period of time does not, without more, extend the plaintiff’s deadline by which to bring suit.”
“We understand that this interpretation cuts off the plaintiffs’ right to bring a Helms-Burton action before they ever had the ability to do so” Judge Sack continued. “But this result is entirely consistent with how statutes of repose are, at least in most situations, supposed to operate. Statutes of repose usually run without tolling even in cases of extraordinary circumstances beyond a plaintiff’s control” (quotation marks omitted).
The court’s holding is arguably inconsistent with what President Bill Clinton said when he first suspended Title III claims in 1996. By allowing Title III to go into effect but suspending claims, Clinton stated, “liability will be established irreversibly during the suspension period and suits could be brought immediately when the suspension is lifted.” But the court simply noted in response that “commentary from the executive branch—after the enactment of the Act in March 1996—cannot alter the plain meaning of the statute.”
The court also saw its reading as consistent with the purpose of the act, which was to serve as a deterrent to trafficking in confiscated property. Quoting one of the decisions below, the Second Circuit reasoned that:
“traffickers would have little incentive to cease trafficking any time during a suspension” if they were to “continue to face liability for an additional two years after a suspension [is] lifted, without regard for when they ceased trafficking.” Far from being encouraged to stop, traffickers “would be incentivized to continue trafficking until the day the suspension was lifted” to maximize profits in the face of near-certain liability.
Because Section 6084 is a statute of repose and was not tolled by the presidential suspensions, plaintiffs’ claims based on the banks’ conduct between 2000 and 2010 were time-barred. The court went on to hold that plaintiffs’ allegations of more recent trafficking conduct were conclusory and failed to state a claim on which relief could be granted.
Conclusion
The Second Circuit’s decision in Moreira seems right as a legal matter, but it strikes a devasting blow to claims under Helms-Burton. It means that no claims under the act can be brought based on conduct before May 2017 and that the clock may have run out on other claims that were not filed promptly after President Trump lifted the suspension in May 2019.
The decision is also contrary to what President Clinton said he was doing in 1996 when he first suspended claims under Helms-Burton and perhaps contrary to what other Presidents thought they were doing when they continued the suspension. When Congress passed Helms-Burton, it thought it was deploying a powerful new tool to discourage foreign investment in Cuba. But significant obstacles such as lack of personal jurisdiction (imposed by the Supreme Court) and the statute of repose (contained in the act itself) are rendering that tool impotent.