By: Néstor Cruz

In 1996, the U.S. Congress passed the Helms-Burton Act. Title III of the Act allows U.S. citizens whose property was confiscated by the Cuban government after 1958 to sue European and Canadian companies profiting from their property. By its own terms, Title III did not go into effect immediately. Rather, Congress left the discretion to activate Title III to the President.  

    In May 2019, the President activated Title III for the first time since the Act’s enactment, and several lawsuits were filed against companies trafficking in confiscated property. In September 2020, a group of U.S. citizens filed suit against LafargeHolcim, Ltd., a Swiss cement company, in the U.S. District Court for the Southern District of Florida.

    Plaintiffs’ claim arose from a confiscation in 1960. Five U.S. citizens owned Compañía Azucarera Soledad S.A., a closely-held company in Cienfuegos, Cuba. The company operated sugar, dairy farming, and cattle businesses. After the confiscation, the plaintiffs filed a claim with the U.S. Foreign Claims Settlement Commission, which valued the claim at $11 million in 1969. In the Helms-Burton lawsuit, the plaintiffs claim damages of $810 million. This includes the value of the property plus interest, treble damages, and attorney fees.

    After the property was confiscated, it was converted into a cement plant. In 2000, LafargeHolcim entered into a joint venture to operate the cement plant in partnership with the Cuban government, and since then, LafargeHolcim has profited from the venture.

    In late May 2021, lawyers for the plaintiffs and for LafargeHolcim stated they had reached an agreement in principle to settle the lawsuit. Lawyers for the parties are working on a definitive settlement with a mediator.

    The plaintiffs, in this case, have three advantages. First, LafargeHolcim has extensive operations in the U.S. If plaintiffs had prevailed, they could have satisfied their judgment with defendant’s U.S. property. Second, the European Union (EU) blocking statute against Helms-Burton is not applicable to Switzerland because Switzerland is not a member of the EU.

    Third, although defendants could have used Swiss law protecting Swiss sovereignty, availing themselves of such laws would have been useless. Plaintiffs probably do not have property in Switzerland or anywhere else in Europe. Thus, for defendants, the only sensible thing was to realize they would have lost the lawsuit and to settle for a fraction of the potential verdict.

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    Tom Dunlap is a partner at Dunlap Bennett & Ludwig. Tom’s practice focuses on patent, trademark, trade secret, commercial, entertainment law, business, government contracts disputes, litigation, and transactions. Tom has authored numerous books and appeared on national television and radio, including Fox, Sundance T.V., and NPR, speaking on various subjects in his fields of practice. In addition to the state and federal courts of D.C., VA, and M.D., he is a member of the Federal Courts in Puerto Rico, Colorado, and Texas, as well as the Court of Federal Claims, the Federal Circuit, where he has recently argued and won three appellate matters, the Veteran’s Court of Appeals, and the United States Supreme Court, where he was lead counsel on a False Claims Act case (See United States ex rel. Carter v. Halliburton Co.) and in the T.C. Heartland LLC v. Kraft Foods Group Brands LLC (U.S. May 22, 2017) (No. 16-341) case involving jurisdiction in patent infringement cases. Other recent litigation victories where Tom served as lead trial counsel include a $12,317,500 verdict in Zuru v Telebrands et al. (EDTX 2017) (patent infringement) and a $2,600,000 verdict in DPX Gear v Prince et al. (Loudoun Circuit Court 2017) (breach of contract & fraud).

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