The LIBERTAD Act

The LIBERTAD Act provides rights to individuals and businesses whose assets have been confiscated by the communist regime in Cuba. Although the Act was passed decades ago, its implementation has been continuously suspended by successive administrations until now.  Just this month, the Trump Administration unleashed the LIBERTAD act in retaliation for Cuba’s support of the Maduro regime in Venezuela.

Pursuant to the Act, owners of confiscated property in Cuba can seek recovery from multinational corporations doing business in Cuba using that property. Examples include companies operating mines, hotels, farms and ports.  The Act provides that claims filed when the statute is active are not subject to later abatement in the event that relations improve. This recent action by the Trump Administration therefore provides what is literally a once-in-a-lifetime opportunity for dispossessed owners of property in Cuba.

The statute targets any person or company who “traffics” in “property which was confiscated by the Cuban government on or after January 1, 1959.” Although this language applies to the Cuban government itself, such claims could be difficult to enforce due to the fact that Cuba’s limited assets in the United States are largely protected from seizure to satisfy legal claims. However, because the statute broadly defines “traffics,” any person or businesses that owns, controls, possesses, or uses confiscated assets—such as land, infrastructure, property, or the like—is subject to liability.

The Foreign Claims Settlement Commission previously considered claims arising from, among other things, nationalization by the Cuban government.  Under the first Cuban Claims Program, which concluded many decades ago, the Commission certified thousands of claims with a total principal value of over $1.8 billion.  With statutory interest, these claims are now worth nearly $10 billion.

Although certified claims enjoy certain procedural advantages, any claimant may pursue any claim within two years of the subject property being “trafficked” in the expansive sense described above. Any property that is currently being used is still being “trafficked.” An owner of Cuban assets who was dispossessed decades ago may therefore pursue a LIBERTAD claim against the current owner or user of that property. The claim remains viable even if the property has been conveyed and reconveyed since the original confiscation.

Although the initial filing fee for LIBERTAD Claims is high, attorney fees and costs can be recovered in litigation. Businesses and persons holding claims for confiscation of assets are advised to file their claims promptly during this limited opportunity. Clients are advised to contact an attorney experienced in government affairs and statutory litigation to determine if they have a viable LIBERTAD claim.

Michael P. Beltran is Counsel in our Florida office.