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

Some call for the end of a litigation ban concerning Cuba and seized assets
Paul Guzzo, Times Staff Writer
Saturday, July 30, 2016 9:40pm

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 pguzzo@tampabay.com or (813) 226-3394. Follow
@PGuzzoTimes.

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