Lawyer Nicolas Gutierrez takes on property "traffickers".
Gutierrez, 43, was born in Costa Rica to Cuban exile parents. He graduated from the University of Miami in 1985 and from Wash-ington's Georgetown Univer-sity Law Center in 1988.
The lawyer currently represents around 350 clients who have filed claims under Title III of the 1996 Helms-Burton Act, which bars foreign investors from dealing in land confiscated by the Cuban government after 1959.
That may seem like a large number, but it really isn't when considering the fact that some 9,000 U.S. corporations and individuals have filed claims against the Castro government. Of that total, 5,911 have been certified by the U.S. Claims Settlement Commission, an agency of the Department of Justice.
Those individual claimants include people who were Cuban nationals at the time of the confiscation of their properties.
"Court lawsuits can now only be brought based upon common-law principles, which is difficult and subject to many legal hurdles, since Title III lawsuits under Helms-Burton are currently suspended," says Gutierrez.
"So far, default judgments have only been obtained against the Cuban government [not private foreign traffickers], in cases involving death, torture, rape, etc., not for property confiscation," Gutierrez recently told CubaNews.
"Thus, the somewhat more viable route [although still difficult, due to minimal State Department enforcement] is using Title IV to pressure out-of-court settlements with the traffickers, despite the fact that the relatively low compensation offers often are unattractive to potentially large claimant families."
IF TITLE III DOESN'T WORK, TRY TITLE IV
Indeed, pressure from the European Union has compelled both the Clinton and Bush administrations from fully enforcing Title III of Helms-Burton, due to heavy European investment in the Cuban economy.
Nevertheless, there's another provision of Helms-Burton--Title IV--that prevents top officials of foreign entities that "traffic" in confiscated Cuban properties subject to U.S. claims from entering the United States.
"This non-suspendable [but not fully enforced] exclusion of foreign trafficker officials and their family members is precisely to pressure foreign companies with substantial U.S. business ties to either withdraw from their confiscated property investments in Cuba, compensate the legitimate owners or lose their U.S. visas," says Gutierrez.
"Sherritt International [a Canadian conglomerate with substantial nickel mining, power generation and tourism operations in Cuba] chose the latter option, as did Grupo BM [an Israeli-controlled entity that built Havana's Miramar Trade Center and has invested heavily in citrus exports in Matan-zas province]," said Gutierrez.
PUNISHING SPAIN'S MELIA
Because the State Department is responsible for enforcing Title IV, political considerations--such as the level of relations between the United States and the target country--may take precedent over the claimant's legal rights.
This happened with the Sanchez family's legal claim against Spanish hotel conglomerate Sol Melia, though it was not nearly as successful as some had predicted it would be.
"Sol Melia was forced to negotiate with us for a settlement in the millions of dollars [mediated by the State Department], but in the end backed out, since the State Department was still unwilling to vigorously enforce this provision," says Gutierrez.
Madrid has traditionally enjoyed good relations with Washington, particularly after the 9/11 terrorist attacks, which brought Bush and former Spanish Prime Minister Jose Maria Aznar together in the much-publicized war against terrorism.
'RELENTLESS AND SUSTAINED PRESSURE'
Because of that, the Bush administration is reluctant to strain relations needlessly by fully enforcing Helms-Burton against Spanish hotel companies like Sol Melia.
"Under EU pressure, Bush has suspended Title III every six months," laments Gutierrez. "Title IV, while not likewise suspendable, has only been minimally enforced, due to this same pressure.
"Among the few Bush actions under Title IV, Superclubs--a Jamaican hotel chain--was forced to withdraw from its joint venture with the Cuban government on the Sanchez family's beachfront property in Holguin province in May 2004, due to my efforts."
Gutierrez noted an interesting point about the Sanchez family's lawsuit: the fact that it was actually against multiple defendants, because the long-confiscated pristine beachfront property has been used by various foreign hotel chains, a scenario seen at various all-inclusive resort sites, such as Playa Dorada and Punta Cana in the nearby Dominican Republic, as well as similar sites in Mexico, Jamaica and the Bahamas.
Regarding the former Sanchez property, Gutierrez sued all the resort chains that were on the 75-km stretch of coastline.
"Besides Sol Melia and Superclubs, other foreign hoteliers that have built or operated hotels on that same beach include LTI and Maritim (Germany); Delta and Air Transat (Canada); Accord, Club Med and Bouygues (France), and Blau and Grubarges (Spain).
"We have proceeded against each of these traffickers via the same administrative Title IV proceedings with the State Department, but State did not pursue the others very vigorously as of yet. However, the Germans and the Canadians have withdrawn their investments over the past few years under our relentless and sustained pressure."
LAWYER FIGHTS INVESTMENT IN SUGAR
Gutierrez is a board member of both the South Florida Water Management District and the National Association of Sugar Mill Owners of Cuba, which represents the former owners of 161 mills nationalized by Castro.
Even though there is no known foreign investment in Cuba's sugar sector, Gutierrez has also taken legal action on behalf of former sugar-mill owners to prevent the possibility of joint ventures in that sector.
"While there have not yet been any suits, we were able to successfully pressure a European/ Middle Eastern banking consortium to withdraw from lending the Cuban Sugar Ministry about $350 million a decade ago to increase production, which would have been collateralized with liens on specific sugar-producing properties--all confiscated from members of our association," he said.
GUTIERREZ: DO YOUR HOMEWORK FIRST
It's perhaps no surprise that Gutierrez himself has good reason to represent the former sugar-mill owners. Before Castro's rise to power, his family owned 100,000 acres of sugar plantations throughout Cuba.
These legal actions highlight the risks that some foreign companies might assume when they invest in Cuba.
If there's significant change in Cuba's political system in the near future, more pre-Castro property owners and their estates will likely want to contact the Foreign Claims Settlement Commission to certify whatever claims they have against the Cuban government.
But before doing that, suggests Gutierrez, "claimants should have various kinds of ownership documents, including actual deeds, both U.S. and Cuban tax records, affidavits, wills and references in historical/trade publications."
Details: Nicolas J. Gutierrez Jr, Borgognoni & Gutierrez, 2665 South Bayshore Drive, Suite #701, Miami, FL 33133. Tel: (305) 860-2060. Fax: (305) 860-2068. E-mail: email@example.com.
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|Date:||May 1, 2007|
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