Overview
First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement. In this update, we take a look at three developments in litigation involving the Helms-Burton Act. First, we review the Eleventh Circuit's decision in de Fernandez v. Seaboard Marine Limited. This decision provides one of the most expansive discussions of the Act's requirements, including a lengthy discussion of how "trafficking" under the statute can be established and why Helms-Burton claims cannot be inherited. Second, we examine the first-ever Helms-Burton jury verdict in Echevarria v. Expedia. The case provides valuable insight into how Helms-Burton cases will be tried and the legal challenges plaintiffs will face even after a verdict in their favor. Third, we return to the US Supreme Court to highlight an important development in Exxon Mobil Corporation v. Corporacion CIMEX, S.A. We are handling several Helms-Burton cases and would be happy to answer any questions.
I. Background on the Helms-Burton Act
As we have previously written, the Helms-Burton Act allows for the owners of claims to property confiscated by the Castro regime in 1960s Cuba to sue any entity or person who is "trafficking" in that confiscated property – with "trafficking" defined broadly to include essentially any commercial activity.
Congress passed the Act in 1996, but its private right of action did not take effect until 2019, when the first Trump administration allowed the private right of action to take effect. Before that, every presidential administration had utilized a provision in the statute that allowed the president to suspend the private right of action. Since the private right of action took effect, Steptoe’s International Disputes team has been at the forefront in both litigating Helms-Burton claims and advising clients concerning their exposure under the Act.
Because there have only been six years of active litigation, case law on the Helms-Burton Act is still developing, especially at the appellate court level. Our Steptoe team tracks these cases closely.
II. The Eleventh Circuit's Seaboard Decision
On April 14, the Eleventh Circuit provided what is arguably the most in-depth examination of a Helms-Burton Act claim issued by any appellate court thus far. In de Fernandez v. Seaboard Marine Limited, the court affirmed in part and reversed in part an order granting summary judgment in favor of the defendants by the Southern District of Florida. __ F.4th __, 2025 WL 1097174 (11th Cir. 2025).
The plaintiffs in this case sued Seaboard for trafficking in separate tracts of land near the Port of Mariel owned by two companies: Azucarera and Maritima. The named plaintiff, Odette Blanco de Fernandez, along with deceased members of her family, owned shares in both companies. The other plaintiffs are de Fernandez's siblings' heirs and estated. The defendant, Seaboard, is an international shipping company that ships frozen chicken and humanitarian/gift parcels to Cuba.
The court began its analysis by reiterating a previous holding that anyone who acquires a claim to property after 1996 cannot bring a Helms-Burton Act claim. The sibling plaintiffs in this case inherited their claims after 1996 and relied on Florida estate law to argue that their inheritances were vested before 1996. However, the court rejected these arguments – repeating the Eleventh Circuit's position that claims inherited after 1996 are not actionable under the Helms-Burton Act. This holding has served – and will likely continue to serve – to reduce substantially the number of claimants who will be able to proceed with cases.
Next, the court acknowledged that as a shareholder in Azucarera and Maritima, de Fernandez herself had standing to bring a claim, because the Act permits lawsuits by any person who "owns a claim" (as opposed to having owned the property itself). The court further found that testimony from the plaintiff concerning her recollection of owning shares (even without direct proof of ownership) was sufficient to withstand summary judgment – and that summary judgment should thus be reversed in part.
With respect to the trafficking allegations, the Eleventh Circuit split its analysis between the property owned by Maritima and Azucarera. Throughout its analysis, the court emphasized that the statute should be construed broadly to accomplish the deterrence effect Congresses intended the statute to have on those looking to do business that involves confiscated property. With respect to the Maritima land, the court agreed with the district court that the plaintiffs did not provide sufficient evidence that Seaboard had trafficked in the at-issue property. Key to this determination was the scope of de Fernandez's ownership of the Maritima land, which arose from a concession provided to Maritima by the Cuban government prior to the revolution. The court relied on the plain language of the concession to show that Maritima's concession (and de Fernandez's claim) did not extend to an area now containing docks and warehouses– and that the plaintiffs had not shown any evidence that Seaboard ever delivered to any dock that was built or operated by Maritima.
But, with respect to the Azucarera property, the court found that the plaintiff had offered sufficient evidence to establish trafficking. Importantly, the Eleventh Circuit concluded that, at least at the summary judgment stage, the plaintiff did not need to establish that she owned the specific area of the port used by Seaboard. Rather, a reasonable jury could find that "by using the terminal, Seaboard benefits from the confiscated property because the larger terminal's existence and operation is what allows Seaboard to continue its shipping activities." In so holding, the court construed several terms within the Act very broadly, acknowledging that the broad reading was required because of the statute's broad-based imposition of liability. The court also held that "trafficking" could arise from contracts between Seaboard and non-parties that operate at the port, so long as Seaboard plays some active role in directing or participating in these non-parties' activities – but that the record did not sufficiently support such a finding.
Lastly, the court also rejected Seaboard's argument that its shipments were licensed by the United States, and therefore subject to the Helms-Burton Act's lawful travel exception. Focusing on the term "travel" in the statute, the court concluded that people travel and not goods/objects. Therefore, commercial shipping, at least in this context, likely does not fall within this exception.
III. Jury Verdict in the Southern District of Florida
On April 18, 2025, a Miami federal jury rendered the first-ever jury verdict under Title III of the Helms-Burton Act, awarding nearly $30 million in damages against Expedia, the online travel booking company, in Echevarria v. Expedia Group, Inc., No. 1:19-cv-22620-FAM (S.D. Fl.). But after the verdict was announced, the court declined to enter judgment. Instead, the court ordered extensive briefing on several questions about the sufficiency of the evidence – which seems to indicate uncertainty about whether the historic verdict will stay intact.
When the trial began on April 8, the plaintiff Mario Echevarria told the jury that his great-grandfather purchased Cayo Coco, an island off the coast of Cuba, from Spain at a public auction in 1878, but that the Castro regime confiscated the island when it came to power in the mid-20th century. The land passed to Echevarria in 1993, prior to the Act’s 1996 cut-off for when claims can be acquired. Today, Cayo Coco is a popular tourist destination, as it is home to a number of luxury resorts.
Shortly after Title III's private right of action took effect in 2019, Echevarria filed suit against a number of online travel websites, including Booking.com and Expedia Group, Inc., and its well-known subsidiaries Hotels.com and Orbitz, alleging that the companies had sold bookings to three Cayo Coco resorts on their websites – and in turn, had "trafficked" in his family’s stolen property under Title III's broad definition of trafficking. The case has proceeded since 2019. The Booking.com defendants settled the claims against them in 2023 after losing on dispositive motion practice. The Expedia defendants went to trial.
During the trial, evidence was presented on ownership and trafficking. Echevarria's attorneys presented tax records, mortgage documents, and records that, he argued, proved Echevarria's family ownership of the island. Expedia's attorneys argued that there was not sufficient proof that Echevarria owned any viable claim to the island’s value, because the island had always been owned by the Cuban state. The jury sided with Echevarria, deciding that he owned an inherited 12.5% stake in the island prior to the 1996 statutory cut-off.
On the question of whether Expedia was "knowingly and intentionally" trafficking, Expedia attempted to convey a rigorous compliance regime, in which the company tried its best to comply with frequently changing rules and regulations on Cuba. Company executives testified that Expedia began offering bookings on Cayo Coco during the "Cuban thaw" of the Obama presidency, and believed the bookings were compliant with rules that allowed for family travel to Cuba. Echevarria’s attorneys argued that Expedia was motivated by profits alone, with no regard for who rightfully owns (or owned) Cayo Coco. The jury sided with Echevarria, deciding that Expedia had unlawfully trafficked in Cayo Coco.
The parties also presented evidence about whether Expedia failed to cease its trafficking after being notified of Echevarria’s claim against it – which, if true, would entitle Echevarria to treble damages. The jury sided with Echevarria and trebled its award of damages. In the end, the jury awarded $9.95 million in damages against the defendants – representing the fair market value of the three resorts in which Expedia trafficked – totaling $29.85 million after trebling.
However, the case is far from over. After the jury announced its verdict, the court declined to enter a judgment, instead directing an extensive briefing schedule on a motion for judgment as a matter of law filed by Expedia after Echevarria rested his case at the trial. On April 21, the court entered an order directing the parties to file briefs addressing several points that could indicate concerns by the court about the sufficiency of the evidence, including: how the jury's "quadrupled" verdict is supported, what evidence supports the verdict against each defendant, and whether treble damages were supported, among other issues. This type of order is out of the ordinary after a jury trial but is not entirely unexpected given the novelty of some of the issues presented under the Act. Briefing on these issues is scheduled to be completed in August, with an oral argument to be held on August 25, 2025.
IV. The Solicitor General is asked to weigh in on Helms-Burton in Exxon.
Finally, on May 5, the US Supreme Court invited the Solicitor General to submit its views in connection with Exxon’s recently filed cert petition in Exxon v. Corporación CIMEX , et al., No. 24-6685. The petition concerns whether the Helms-Burton Act itself abrogates sovereign immunity such that sovereign defendants can be subject to Helms-Burton claims without the need to establish a waiver to sovereign immunity under the Foreign Sovereign Immunities Act (and thus avoiding the inevitably extended litigation on this issue). Below, over a vigorous dissent from Senior Judge Randolph, the DC Circuit agreed with the defendants—three companies owned by the Cuban state—that Exxon needed to demonstrate the defendants were not immune from suit under the FSIA. If the court opts to take the case, it will set the table for a likely consequential decision on both the scope of the Helms-Burton Act and the applicability of foreign sovereign immunity. Steptoe has had the distinction of representing Exxon in this case.
