The Helms-Burton Act Backfires: Surprising Litigation Trends Following Title III’s Long-Feared Activation

Abstract

On May 2, 2019, the Trump Administration made the historic decision to lift the suspension of Title III of the Helms-Burton Act for the first time since its enactment in 1996. Title III allows US nationals whose property was confiscated by the Cuban government to sue entities and individuals who now “traffic” in that property. Legal scholars believed this activation would trigger an avalanche of lawsuits; however, after two years of the law’s operation, only forty-some suits were filed, many by the same plaintiffs. Even more surprising is that instead of exposing foreign corporations that derive substantial benefits from the expropriated properties to liability, Title III is largely being used to target American businesses that have attenuated connections to the properties, at best. This Article explores the surprising trends born from the parties’ filings and the opinions issued by federal courts in leading Title III cases, and argues that the statute’s violation of international legal norms, failure to secure compensation for US claimants, and unforeseen targeting of domestic companies is ample rationale for the newly elected Biden Administration to urge Congress to repeal the Helms-Burton Act, which has gained the reputation of being one of the most ill-advised foreign policies of the US for a quarter century.