Wednesday, December 13, 2017
Politics

Some call for the end of a litigation ban concerning Cuba and seized assets

TAMPA — In 1960, Antonio Azorín's family's sewer pipe plant and brickmaking factory in Cuba were nationalized in the name of Fidel Castro's revolution. The family received no compensation.

"They took it," said Azorín, 61, who now lives in Tampa. "If there was a way to litigate, I would."

There is a way, but the U.S. government won't allow it.

Title III, a clause in the legislation that governs the decades-old embargo against Cuba, allows Americans to sue those profiting from property taken from them by the Cuban government. The civil litigation, filed in U.S. courts, can be against a private company or the Cuban government.

But the U.S. government continuously suspends Title III for successive six-month periods. State Department officials recently announced the government would do so again when the current suspension ends July 31.

Some are calling for a lifting of the litigation ban, at least against U.S. companies, now that Americans are once again investing in Cuba as relations between the two countries normalize.

"The unintended consequences of this opening in Cuba are far-reaching," said Javier Garcia-Bengochea, a Jacksonville neurosurgeon who has testified to Congress that Title III lawsuits involving U.S. corporations should be allowed.

His family owned 18 acres of warehouses, three docks and a rail station that he estimates would be worth nearly $180 million today.

It was all nationalized with no compensation and is now part of the Port of Santiago.

"We cannot ignore the fact that U.S. companies could end up trafficking in property that belongs to American citizens,'' he said. "That would be wrong."

The U.S. and Cuban governments are negotiating a settlement for 5,913 certified American claims against Cuba totaling $1.9 billion plus interest.

To have a loss certified, a claimant must have been a U.S. citizen at the time of nationalization.

Azorín — then 5 — and his parents were Cuban citizens so they did not qualify.

But to file a Title III lawsuit against companies profiting from nationalized land or businesses, the plaintiff need only be a U.S. citizen now.

For Azorín — currently the second-generation president of Florida Brick & Clay Co. in Plant City — and many Cuban Americans, Title III could be the only way they can ever be reimbursed.

According to the Helms Burton Act that codified the Cuban Embargo and was signed into law in 1996 by President Bill Clinton, Title III can be suspended for successive half-year periods if doing so is necessary for the national interest of the United States or will expedite the transition to democracy in Cuba.

Every administration since then has done so but none has explained how this helps the United States or brings more freedom to Cuba.

The assumption has been that it's suspended to prevent litigation from being filed against companies based out of nations that are U.S. allies or to prevent a legal logjam.

"It could become a judicial nightmare," said Antonio Martinez II, a New York attorney specializing in matters pertaining to Cuba. "U.S. civil courts would be flooded with cases."

But why not allow suits against American companies only, asks Jason Poblete, a Virginia-based attorney specializing in U.S.-Cuba policy who has been pressing the State Department to do so.

Such cases would be few and would force U.S. entrepreneurs to diligently research the history of a Cuban property or business before investing.

"Title III wasn't a throwaway. It was put in there for a reason," Poblete said. "Let these people have their day in court."

Mauricio Claver-Carone, director of the U.S.-Cuba Democracy PAC, said that Title III is a more important tool now than ever.

"No one had ever contemplated that a U.S. president would allow the rights of one group of Americans — the victims of Castro's confiscations — to be trampled over in order to promote the business interests of another group of Americans. In so doing, he's denying the victims any due process."

Azorín has been told that his family's company name — Union Alfarera Azorín de Camaguey — still adorns the brick factory in Cuba, which operates as a state-run facility.

Foreign governments are protected against lawsuits by sovereign immunity. It would be up to the court to decide if sovereign immunity is waived because the Cuban government makes money via a state-run business in the same manner as a private company.

It angers Azorín that the Cuban government has profited off his family's company, but he has learned to cope.

If he learned an American company invested in it, though, he admits his anger may boil over.

It's speculated that many Title III cases could be dismissed because the properties were taken after families moved from Cuba rather than living under communism.

What else was the government to do with what was left behind?

That is not the case for Azorín, whose family was still in Cuba when the business was taken.

"There was nothing voluntary," Azorín said.

Shortly after, his family moved to Tampa, never presuming they would be reimbursed for the loss in Cuba.

"If I expect nothing, when I get nothing, I won't be hurt," Azorín said.

Still, he added, "Why have a law that is not enforced? It just doesn't make sense."

Contact Paul Guzzo at [email protected] or (813) 226-3394. Follow @PGuzzoTimes.

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