Lawyers still pursuing Cuban property cases
It's not as extensive as in years past, but several South Florida firms
continue to pursue Cuba-related legal work, hoping the investment one
day will pay off.
Posted on Sun, Feb. 24, 2008
BY NIALA BOODHOO
George Harper remembers sponsoring the first Post-Castro Cuba conference
for the Florida Bar Association in 1992. Like many, he expected
democracy would come quickly to Cuba after the fall of the Soviet Union.
''I still have the brochure,'' he said, laughing, last week.
Nearly sixteen years later and with the U.S. trade embargo against Cuba
still in place, local lawyers like Harper still maintain a steady flow
of clients whom they advise on issues related to doing business in Cuba.
Some offer consulting on the 1996 Helms-Burton legislation, especially
to European and Latin American companies.
Helms-Burton not only establishes strict conditions that must be met
before the embargo can be lifted but also has a provision that allows
U.S. citizens and companies to sue foreigners ''trafficking'' in
confiscated Cuban properties for damages in U.S. federal courts.
That means some foreign companies are particularly wary of which Cuban
properties they should view as investment targets and often want legal
Most in South Florida's legal community described Fidel Castro's
announcement last week that he would not seek reelection as president of
the Council of State as just another moment in series of moments for
those who have waited so long for the country to fully open to American
But even without that opening, there is business for law firms.
Each new development always generates interest, and more inquiries for
law firms such as the Miami office of Akerman Senterfitt, said lawyer
''Every time there's a headline, there are calls to try to get an
understanding of what the embargo is about, how it might change and what
we think about it,'' he said.
Still, the legal business regarding Cuba has waned from a decade ago,
said John Kavulich, a senior policy advisor to the U.S.-Cuba Trade and
Economic Council in New York.
''There were firms in the mid- and late '90s that did have Cuba practice
groups, but as Cuba reversed course on many of its commercial and
economic changes, the ability of lawyers to make a living based upon
preparing companies, and doing legal work'' dried up, he said.
The most lucrative legal work these days seems to be in filing paperwork
to register U.S. trademarks in Cuba, which firms all across the country
do, Kavulich said. Other lawyers work with the U.S. food and
agricultural companies on the limited business that is allowed by U.S. law.
''It's not a growth industry as it was from 1995 to maybe 2002,'' he said.
Nevertheless, there are Miami lawyers who have managed to keep their
Cuba practices growing.
Nicolás Gutiérrez, for example, says he has hundreds of clients who are
ready — but waiting for the day when they can begin the legal process
of reclaiming their commercial property or businesses lost after the
During the 1960s, the Foreign Claims Settlement Commission certified the
claims of nearly 6,000 American citizens and companies that lost
property in Cuba after the revolution. But Cuban-Americans aren't
covered under that process and will need to press their claims with a
future Cuban government.
At Akerman Senterfitt in Miami, lawyers such as Maxwell and his
colleague Pedro Freyre say they have a ''significant number'' of clients
they assist by providing information on embargo regulations. That
includes European companies that don't want to run afoul of Helms-Burton.
The lawyers also work on matters related to exceptions to the embargo
such as U.S. exports of food, agricultural products and pharmaceuticals
to the island for humanitarian reasons. Spending in Cuba by certain
groups, including academics, clerics, journalists, some on cultural
exchanges and Cuban-Americans visiting relatives, also is permitted as
an embargo exemption.
The U.S. Treasury's Office of Foreign Assets Control, commonly called
OFAC, enforces more than 20 economic and trade sanction programs for
countries around the world but its main focus has been Cuba.
''I would say the bulk [of the firm's Cuba work] is OFAC-related,''
Maxwell said. “What we're beginning to grow now is two things: American
businesses who are interested in understanding what the law is, and
exile Cubans who are interested in understanding what rights they might
have for properties in Cuba.''
Antonio Zamora, who is of counsel at the Miami office of Squires Sanders
& Dempsey, said most people who called last week wanted to speculate
about what shifting the Cuban presidency would mean.
In the last couple of years, said Harper, companies have become
accustomed to the ''false starts'' in an opening toward Cuba. He pointed
to what he called the calm and blasé reaction to last week's news as
proof that many recognize it is still business as usual in Cuba.
Harper, managing partner at Harper Meyer, focuses mostly on
inter-American law. He estimates about a third of his client load now is
directly related to Cuban work.
But, ''when you talk about all different clients we have, everything
from fast-food operations to transportation [companies], they're all
going to be interested in Cuba,'' he said.
One day, added Gutiérrez of the Miami firm Borgoynoni & Gutiérrez, the
embargo will be lifted, and the Cuban-related work — now just a
sub-speciality in his corporate and government practice — will explode.
EXILES PASS ON
In recent times he has watched a generation of exiles, including his
father, pass away. Many of his clients are now coming in to sign
affidavits, legal descriptions of property they say they owned in Cuba
with instructions who they would like to leave it to when they die — in
case they do not survive until the embargo is lifted.
And Gutiérrez, like many other South Florida lawyers, continues to wait
for the day when he will be able to represent clients in Cuban courts.
''Somewhere between when my two young kids are in high school or I
retire, it has to happen,'' he said.
Mimi Whitefield, a Miami Herald business editor, contributed to this story.