Cuba’s open for some American business — so here come the lawyers

 

Mimi Whitefield, The Miami Herald

 

Peter Quinter was a U.S. Customs Service attorney in Miami in the early 1990s. His job: enforcing the embargo against Cuba, making sure people and products didn’t illegally make their way to the island.

 

Flash forward some two decades. Quinter, who left the government in 1994 and went into private practice, is leading a delegation of 37 lawyers on a trip to Cuba organized by the International Law Section of The Florida Bar. They’ll meet with Cuban lawyers and academics and learn about the island’s business and legal system. The group leaves Wednesday for the four-day trip.

 

Quinter, a shareholder at Gray Robinson and head of the International Law Section, and his fellow lawyers will be discussing the new rules of the game under the rapprochement between the United States and Cuba announced by President Barack Obama and Raúl Castro on Dec. 17.

 

“It is a flip for me,” said Quinter, who early in his career cracked down on Americans who tried to skirt the embargo by sending products to Mexico or Panama and then to Cuba, or who traveled to Cuba via other countries. “Now I’m going to Cuba for the first time, and I’m interested to see what it’s really like.”

 

Under the opening, not only can more Americans travel to the island than at any time since the embargo was phased in during the early 1960s but they are allowed to import some products and services from private Cuban entrepreneurs, participate in joint ventures to improve Cuba’s antiquated telecommunications system, and send exports to Cuba destined for the fledgling private sector.

 

So far, there have been a handful of announcements by U.S. companies of new Cuba-related ventures, but little concrete business has transpired. Still, there is one group that’s already cashing in: the lawyers.

 

From taking clients on scouting trips to Cuba and advising them on what they can and cannot do under the new rules to helping them submit applications for ferry service, registering trademarks, researching old claims and even working on the deal that brought Airbnb to Cuba, South Florida lawyers have been in the thick of the new Cuba business.

 

“Clients now have a change in perspective on Cuba,” said Pedro Freyre, chairman of the international practice group and a partner at Akerman. “Before, they worried about doing something that was not allowed. Now, they are worried about being left behind.”

 

Family ties to the island, Spanish-language fluency, proximity, and experience with Cuban affairs and international law have made the local legal community a natural place to turn to for advice on Cuba and U.S. laws related to it.

 

“Many practitioners are first- and second-generation Cuban Americans. I think the firms in Miami are the best positioned nationally to take advantage of what’s going on,” said Yosbel Ibarra, who came to the United States from Cuba as a 6-year-old in 1980 and is now co-chair of Greenberg Traurig’s Latin American and Iberian practice group.

 

It’s not the first time in the past few decades that local lawyers have trained their sights on Cuba. This is at least the fourth go-around, said Carl Fornaris, a Greenberg Traurig attorney who specializes in financial matters.

 

In the early 1990s, with the collapse of the Soviet Union and the end of Cuba’s economic lifeline, many analysts were betting the collapse of Cuba and the end of the embargo couldn’t be far behind. The business of getting ready to do business with Cuba became almost a cottage industry.

 

The getting-ready-for-Cuba era ended abruptly on Feb. 24, 1996, when Cuban MiGs shot two small Brothers to the Rescue planes out of the sky and an angry Congress and president approved the embargo-tightening Helms-Burton Act.

 

But a provision of Helms-Burton that allowed U.S. citizens to sue foreign investors trafficking in confiscated Cuban properties in federal court once again started to send clients — both potential plaintiffs and European and Canadian companies that were concerned they might be sued — through lawyers’ doors.

 

Some lawyers jokingly called Helms-Burton the “full employment for lawyers act.”

 

Local firms set up practices to help families recover assets, but since then, U.S. presidents have routinely invoked waivers, suspending enforcement of the lawsuit provision every six months.

 

In the meantime, that hasn’t stopped clients who claimed they suffered at Cuba’s hands from filing civil suits and piling up judgments worth billions of dollars after winning their cases by default because Cuba has chosen not to defend itself.

 

There was also an uptick in clients seeking legal advice in 2006 when Fidel Castro became ill and some expected his imminent death. “There wasn’t as much legal activity for this one,” Fornaris said.

 

Now, almost nine years later, Fidel Castro is still alive, and his brother Raúl is firmly at the helm of the Cuban government.

 

“Now we’re once again seeing the mobilization of the legal community akin to what we saw in the early 1990s,” Fornaris said.

 

Jim Whisenand is one lawyer who has stuck with Cuba business since the early 1990s. Whisenand, who did a lot of work during the transition in Eastern Europe, as well as on large privatizations in Poland, thought his expertise would transfer well to Cuba in 1991 as the economy soured and it appeared a government transition might be near at hand.

 

While Whisenand said he’s seen a lot more interest in Cuba by both U.S. and foreign companies since Obama began rolling out his new Cuba policy, he still likens the U.S-Cuba relationship to a giant funnel, with the U.S. representing the broadest part of the funnel and Cuba the end of a spigot “about the size of a pinhole.”

 

“They control the pinhole, and it moves very slow,” he said. “It takes a lot of patience to do things in Cuba.”

 

Pursuing opportunities in Cuba isn’t for everyone, he said. “If you want the same safeguards and regulations of investing in New York or Miami, then you should be investing in New York or Miami.”

 

Cuba, he said, is a “frontier market, and by definition, you’re on the frontier.”

 

Freyre and fellow Akerman lawyer Augusto Maxwell say their Cuba work falls into four categories: OFAC-licensed companies allowed to do business in Cuba under exceptions to the embargo; clients making professional research trips to Cuba; third-country clients who have operations in the United States and don’t want to trip over U.S. laws and regulations regarding Cuba; and companies that see potential in Cuba after the embargo is lifted and are taking this time to prepare.

 

The pair travels regularly to Cuba on behalf of clients and sometimes accompanies them on fact-finding missions. Under the new regulations, they no longer need to apply for licenses for such trips or abide by strict per-diem expenditure limits.

 

“The client interest has really taken us by surprise. Not a week goes by that we don’t have a new prospect or two, three, four, five prospects,” Freyre said. “It doesn’t let up, and now the inquiries are coming from significant players.”

 

Much of the interest is coming from the travel industry, Maxwell said. He represented San Francisco-based Airbnb in its recent launch in Cuba. It now has more than 2,000 listings of private Cuban residences that provide lodging.

 

Twenty years ago, Freyre said, it would have been very difficult for such a business opening toward Cuba to occur. “The debate about the opening goes on in Miami, but it has not been acrimonious or personal the way it was in the past. Some folks don’t like it, some don’t like it and live with it, and there are also those who like it.”

 

Meanwhile, he said, there’s an appetite for legal advice as people grapple with what it all means. “Folks are adjusting and trying to understand the new rules of engagement,” he said.

 

With Cuba expected to be removed from the list of State Sponsors of Terrorism in less than a week, Ibarra, of Greenberg Traurig’s Latin American and Iberian practice group, said he’s already seen more interest by Mexican, Spanish and Central American companies in doing business with Cuba. Because the United States saw Cuba “as a bad actor,” they didn’t want to run afoul of U.S. regulations or risk potential problems with financing, he said.

 

Removal from the list “takes the scarlet letter ‘A’ off of Cuba,” Ibarra said. “Mexican and Central American clients have said that now is the time to go and cut a deal in Cuba before the Americans can really come in.”

 

Ibarra said he sometimes has to rein in American clients’ enthusiasm for the possibilities in Cuba and “remind them that the embargo is still very much there” and that the “Cubans might not want to do business to the extent you want to do business.”

 

Even though the new policy allows U.S. banks to open correspondent accounts in Cuba and permits authorized Cuba travelers to use credit or debit cards issued by U.S. financial institutions, banks have been cautious.

 

“We’re not seeing banks hungry to set up deals or units dealing with Cuba,” said Fornaris. “Banks in Miami and generally don’t want to engage in transactions with Cuba when there are still gadzillions of regulatory hurdles to jump. So they are waiting until there is additional regulatory liberalization or a lifting of the embargo.”

 

Pompano Beach-based Stonegate Bank is an exception. It said last week that it would become the banker of the Cuban Interests Section in Washington and its employees. The Interests Section had been without a bank for more than a year.

 

Even though relations with Cuba were frosty for more than a half-century, many U.S. companies have kept their trademark registrations current in Cuba with an eye toward the day when they could once again do business with the island.

 

Jorge Espinosa, who has registered trademarks in Cuba for Citrix and Arm & Hammer, among others, said he’s received a lot of inquiries about trademark registrations since Dec. 17.

 

“There’s still a level of insecurity of where things are going in terms of trademarks,” he said. One of the problems is that companies in the United States defend their trademarks and brands by using them, and that hasn’t been possible in Cuba.

 

“Companies are still trying to get information and they’re a bit cautious about making big investments to get their brands registered at this point,” Espinosa said. When it comes to doing business in Cuba, he said, it’s important to remember that “everything hasn’t changed yet.”

 

 

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