Overview
On Tuesday, January 14, 2025, with six days remaining in his term, President Joe Biden reinstated a statutory suspension of new lawsuits filed under Title III of the Helms-Burton Act. The reinstatement halts the filing of new lawsuits under Title III but does not affect pending suits. President Biden's suspension of Title III suits can—and likely will—be discontinued by the incoming Trump administration, which had lifted a prior suspension of Title III in 2019. Below, we provide a first look at the impacts of this policy change.
Biden Suspends New Lawsuits Under the Helms-Burton Act
The Helms-Burton Act, as we have written previously, provides the owners of claims to property confiscated by the Cuban government with a private right of action against any entity "trafficking" in that confiscated property. The Act also contains a suspension provision that allows the president to suspend the Act's private right of action where he/she finds suspension "is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba." 22 U.S.C. § 6085(c)(1)(B). From the Act’s passage in 1996 until 2019, every president utilized the suspension provision, thereby delaying the private right of action from taking effect.
However, in 2019, President Donald Trump allowed the private right of action to proceed for the first time as part of broader efforts to sanction the Cuban regime. Since then, many lawsuits have proceeded under the Helms-Burton Act, where rightful owners of expropriated property have sought damages from international businesses and sovereign entities using or otherwise profiting from the expropriated property (i.e., "trafficking").
Since taking office in 2021, President Biden has chosen not to reinstate the suspension utilized by every president before Trump – until now. By invoking his suspension authority under section 306 of the Act, President Biden has suspended "the right to bring an action under" Title III "for a period of not more than 6 months[.]" 22 U.S.C. § 6085(c)(1)(B). Accordingly, no new Helms-Burton Act lawsuits can be filed while the suspension remains in effect.
But importantly, the suspension does not affect currently pending Helms-Burton lawsuits in any way. The Act provides that "the suspensions of actions . . . shall not affect suits commenced before the date of such suspension, and in all such suits, proceedings shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if the suspension had not occurred." 22 U.S.C. § 6085(c)(3). Thus, any pending Title III lawsuits or appeals will proceed as if the suspension had never been entered, and the rights of current Helms-Burton plaintiffs are not affected.
Alongside reinstating the suspension of new Helms-Burton Act lawsuits, the Biden administration announced other reversals of Trump-era policies on Cuba, including removing Cuba from the list of state sponsors of terrorism and eliminating the "restricted list" of certain entities in Cuba that are subject to additional sanctions beyond the general trade embargo. These Biden initiatives were coordinated with additional efforts by the Catholic Church to advocate for the release of political prisoners in Cuba. While unclear, it seems that the easing of Cuba sanctions – including the suspension of new Helms-Burton Act lawsuits – was used by the Biden administration and the Catholic Church to bargain for the release of those political prisoners.
The Suspension is Unlikely to Remain in the Trump Administration
Nonetheless, President Biden's suspension of new Helms-Burton Act lawsuits, alongside other actions to soften sanctions on Cuba, seems unlikely to remain in the Trump administration, which will begin on Monday, January 20.
The Helms-Burton Act provides that just as a president may suspend the private right of action, a president may also rescind any suspension thereof just as easily. 22 U.S.C. § 6085(d). President Trump could thus rescind the Biden suspension and reinstate the private right of action by letter to Congress, in theory, within minutes of his inauguration. President Trump would need only to find that doing so would "expedite a transition to democracy in Cuba." Id. Otherwise, the Biden suspension expires after six months, on June 14, 2025, so even if President Trump does not rescind the suspension, it seems unlikely to be extended after the initial expiration date on June 14.
While President Trump has not yet commented on President Biden's Cuba policy changes, he and members of the incoming administration have recently been outspoken about their strong positions in favor of sanctions against Cuba.
Congressman Mike Waltz, who has been appointed National Security Adviser to incoming President Trump, told Fox News in an interview, "Anything that they’re doing right now we can do back, and no one should be under any illusion in terms of a change in Cuba policy." With specific respect to the suspension of new lawsuits under the Helms-Burton Act, Waltz said, "We don’t like it, but again, you know, people are going free."
Otherwise, Senator Marco Rubio, who has been nominated to serve as Secretary of State in the Trump administration, has long been a proponent of sanctions against Cuba and assisted Trump in crafting the 2017 policy package that reversed the Obama-era loosening of Cuba sanctions. When President Trump lifted the suspension of new Helms-Burton Act lawsuits in 2019, Senator Rubio issued a statement commending the Trump administration, writing that "The United States is opening the door to justice and enabling victims of the Cuban dictatorship to rightfully sue their perpetrators."
If Rubio is confirmed as Secretary of State, which seems likely given the bipartisan support for his nomination, he will almost certainly further a hard-lined approach to Cuba policy. That approach will likely include a reinstatement of the Helms-Burton private right of action. Rubio was not questioned about Cuba during his confirmation hearing on January 15.
For these reasons, it seems likely that President Trump will reverse the Biden suspension of new Helms-Burton Act lawsuits either soon after the inauguration or upon the suspension’s expiration in June.
The potential for a quick "thaw" in US-Cuban relations creates an interesting situation for both prospective Helms-Burton litigants and those seeking to do business in Cuba. On the one hand, easing these restrictions opens Cuba to foreign commerce and investment in new ways—even if only for a moment in time. However, these new opportunities will come with substantial risks for those doing business in Cuba because activities that occur while Title III is suspended can still form the basis for liability under Title III if the private right of action is reinstated. Several major cruise lines learned this the hard way in 2019. Following President Obama’s efforts to open up Cuba to trade in 2014, the cruise lines began adding the port of Havana as a port of call. That conduct became the subject of several Helms-Burton lawsuits brought by the "rightful" owners of land in the Port of Havana that had been expropriated back in the 1960s. The lawsuits yielded a historic verdict against the cruise lines, which has since been reversed on appeal. See Havana Docks Corporation v. Royal Caribbean Cruises Ltd., No. 23-10151 (11th Cir. Oct. 22, 2024).
Steptoe Remains at the Forefront of Helms-Burton Litigation
Since 2019, Steptoe has been at the forefront of Helms-Burton Act litigation, having represented several leading plaintiffs in the first Title III suits filed in federal courts.
We are closely tracking developments on the Helms-Burton Act in light of the changing presidential administrations alongside our Government Affairs and Public Policy group. We will provide further updates as soon as they become available – including in our First Tuesday Update to be published in the first week of February.
In the meantime, we are available to answer any questions about the Helms-Burton Act. Please do not hesitate to get in touch with us.
