Recent Developments in Helms-Burton Litigation

It is a busy time in the Helms-Burton world.  With a $29.8 million jury award in Florida, major developments in the law of personal jurisdiction, several notable court of appeals decisions, and two recent CVSGs, there is a lot going on. That stands to reason. It was 2019 when the first Trump administration lifted the suspension of private claims. We are now six years on, which seems like about the amount of time it takes for important questions of statutory interpretation to work their way through courts and for jury verdicts to come down in major cases. All in all, although it is difficult to win these cases, things are looking up for plaintiffs.

The Helms-Burton Act

Fidel Castro seized control of the Cuban government in 1959 and subsequently confiscated property of Cubans who fled to the United States, other Cuban citizens, and U.S. nationals. In 1996, Congress enacted the Helms-Burton Act to provide compensation for some of these losses.  The Act imposes liability on those who “traffics” in property confiscated by the Cuban government after 1959 and provides a cause of action for U.S. nationals who own claims to such property. The Act defines “traffics” very broadly to include the knowing or intentional sale or use the property, the commercial use of or profiting from such property, and profiting from another person’s use of the confiscated property. The Act’s private cause of action was suspended for 23 years until President Trump permitted private cases to go forward starting in May of 2019.

Personal Jurisdiction

Despite the statute’s broad language, cases have often failed at the starting gate for lack of personal jurisdiction. Many potential defendants – for example those around the world who might profit from property expropriated by Cuba in the 1960s – lack the connections to the United States necessary for personal jurisdiction. But the Supreme Court’s decision this summer in Fuld v. PLO (2025) means at a minimum that Congress could amend Helms-Burton to expand personal jurisdiction of the federal courts well-beyond the current limitations, which are usually imposed by the Florida long arm statute and the Fourteenth Amendment, pursuant to FRCP 4(k)(1)(A). And for cases to which FRCP 4(k)(2) currently applies, meaning case brought under a federal statute and for which there would not be personal jurisdiction in any state court, it is possible that Fuld will be interpreted as expanding the jurisdiction of the federal courts beyond those imposed under current case law. In Herederos de Roberto Gomez Cabrera, LLC v. Teck Resources Ltd., for example, the Eleventh Circuit held that the Fifth Amendment Due Process Clause prevented the exercise of jurisdiction over a defendant who lacked “minimum contacts” with the United States as whole. After Fuld, the Eleventh Circuit’s reasoning in that case – namely, that the Fifth and the Fourteenth Amendments apply the same basic personal jurisdiction limitations — would be jettisoned at a minimum. Whether the case would come out differently is another matter, but the door is open.

Plaintiffs are also apparently finding more success under the Florida long arm statute and the Fourteenth Amendment than they once did. Earlier this year, in North American Sugar Industries v Xinjian Goldwind Science & Technology Co. (NASI), the Eleventh Circuit reversed a district court decision that had dismissed a Helms Burton case against Chinese, Singaporean, and other defendants for lack of personal jurisdiction. Although the defendants had done precious little in Miami, they had allegedly arranged (or played some role in arranging) to have their wind-turbines shipped to Cuba with a stopover in Miami, for reasons related to export-control licensing. The Eleventh Circuit reasoned that such an arrangement meant that the defendants violated the Act in Florida by engaging in trafficking in Miami, therefore satisfying the tortious act prong of the state long-arm statute.

Immunity (CVSG I)

The Supreme Court has asked for the views of the Solicitor General in Exxon Mobile v. Cimex, a case involving the interaction between the Foreign Sovereign Immunities Act (FSIA) and the Helms-Burton Act. The question is whether an agency or instrumentality of a foreign state that would be entitled to immunity under the FSIA can nonetheless be sued under the Helms-Burton Act. Plaintiffs argue that the creation of a private cause of action under CLDS lifts any immunity to which the defendants might be entitled, while the defendants argue that they are immune from suit – Helms Burton notwithstanding – unless an FSIA exception to immunity applies. For lots of readers, the answer seems obvious (as it did to me): the FSIA “provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country,” meaning that the Helms-Burton cause of action does not abrogate immunity. For reasons detailed here, I actually found the issue to be more difficult after reading the text of the Helms-Burton statute more closely. Here, too, the CVSG is potentially good news for plaintiffs, because the Eleventh Circuit had ordered the case dismissed because the defendants were immune from suit under the FSIA. Perhaps the Solicitor General—and ultimately the Supreme Court—will disagree.

Definition of Trafficking (CVSG II)

The Eleventh Circuit also overturned judgments of more than $100 million each against four cruise lines based in the United States. The plaintiffs petitioned for cert and the question presented is:

whether a plaintiff must prove that the defendant trafficked in property confiscated by the Cuban government as to which the plaintiff owns a claim (as the statute requires), or instead that the defendant trafficked in property that the plaintiff would have continued to own at the time of trafficking in a counterfactual world “as if there had been no expropriation” (as the divided Eleventh Circuit panel held below).

The statute provides for liability if the defendant “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959.” In this case, the panel reasoned that the defendant cruise lines did not “traffic” in property through their use of a port facility between 2016 and 2019 because any right the plaintiff had to use the port facility ended in 2004. The property that was conceded included an agreement that gave the plaintiffs, beginning in 1905, the right to use the port for 99 years. Judge Adalberto Jordan and Judge William Pryor Jr. thus found that, despite the Cuban government’s decades-long confiscation of the port facility, the plaintiffs’ usage rights expired in 2004. Judge Andrew Brasher dissented, arguing that the statute was satisfied because property (the concessions) “was confiscated” and the plaintiff “owns the claim to such property.” As Bill Dodge points out “this reading ignores the present-tense word ‘traffics.’” He notes that the plaintiffs “right to use the facilities until 2004 was unquestionably confiscated” and the plaintiffs own a claim to that “time-limited, property right.” The cruise lines’ use of the port facilities after 2004 nevertheless does not constitute trafficking because the plaintiffs had no rights to the facilities after that date. Again, the Solicitor General and/or the Supreme Court may disagree and adopt an even more expansive (and plaintiff-friendly) definition of “trafficking.”

Things Are Looking up for H-B Plaintiffs

It is hard to say how these developments will ultimately cash out. Personal jurisdiction limitations might roar back, and cert petitions are usually denied, after all. For the moment, however, plaintiffs have a bit of wind at their backs.