Hogan Lovells

Washington DC

Our Washington, D.C. office is one of the city's largest and most established law practices, having grown from a single-lawyer enterprise founded in 1904 to an office of about 500 lawyers within a top-ten global firm of 2,500 lawyers.

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Updates

Banking

Supreme Court clarifies use of choice-of-jurisdiction clauses in adhesion contracts
Mexico | 17 May 2019

Under Mexican commercial regulations, contracting parties have traditionally been free to determine in their corresponding agreement the jurisdiction in which disputes must be resolved. However, a new binding precedent from the Supreme Court challenges this traditional approach with regard to banking adhesion contracts and is a good example of how Mexico is advancing its consumer protection regulations.

Fintech and innovation bring potential amendments to bank AML rules
Mexico | 08 March 2019

In March 2018 the Fintech Law, which aims to mitigate the risk of money laundering and terrorist financing, was published in the Federal Official Gazette. Subsequently, in January 2019 the National Commission for Regulatory Improvement published draft amendments to the anti-money laundering rules which apply to the traditional banking industry in order to incorporate the new concepts created by the Fintech Law.

New cybersecurity rules for banks
Mexico | 18 January 2019

The Ministry of Finance and Public Credit recently published a resolution in the Official Gazette modifying the general regulations that apply to banks. The resolution responds to the need to strengthen the regulatory framework applicable to banks, particularly with regard to cybersecurity and technological infrastructure. It also aims to guarantee the confidentiality, integrity and availability of customer information.

New judicial guidance reinforces traditional view on trusts
Mexico | 14 September 2018

Many loans involve the transfer of assets to a collateral or payment-source trust, especially (but not exclusively) when dealing with cash-generating assets, such as long-term contracts or receivables. A 2016 federal collegiate circuit court decision could jeopardise these structures in the context of insolvency proceedings. However, new judicial guidance was recently issued to reinforce traditional considerations regarding trusts.

What can banks expect from the new president?
Mexico | 20 July 2018

Andrés Manuel López Obrador was elected president on 1 July 2018 and will take office on 1 December 2018. Not only did López Obrador obtain more than 50% of the votes (approximately 30 million), his party and coalition also won an absolute majority in both the House of Representatives and the Senate. This is the first time in 20 years that a president will govern with this level of power. But what will this mean for the banking sector?

Numerous cyberattacks breach Banxico's Interbank Electronic Payments System
Mexico | 01 June 2018

The funds of some participants of the Interbank Electronic Payments System (SPEI) were recently affected by a series of unprecedented cyberattacks. The Mexican Central Bank revealed that approximately $15 million (Ps300 million) had been involved in diverse irregular transfers, subject to investigation. The cybercriminals had identified a flaw in the system that permitted receivers of SPEI transfers to withdraw cash almost immediately after receiving the transfer so that the money could not be traced.

Congress approves Financial Technology Institutions Law
Mexico | 06 April 2018

The president recently enacted the Financial Technology Institutions Law. The Senate had unanimously approved the bill on the law in December 2017 and sent it to Congress, which made no changes. The law seeks to build a regulatory framework that will encourage the development of innovative financial services, increase the level of competition and financial inclusion and place Mexico at the forefront of the industry.

Recent court precedents concerning financial transactions
Mexico | 02 February 2018

There were a number of court precedents in 2017 concerning financial transactions. For example, a recent non-binding collegiate court precedent broadened the scope and source of information that judges should use to analyse and determine the existence of usury, while another validated judges' authority to use the annual interest rate published by companies that engage in vehicle financing. Further, a binding Supreme Court precedent dealt with the maturity date of promissory notes.

SHCP releases first draft of Financial Technology Institutions Law
Mexico | 08 December 2017

The Ministry of Finance and Public Credit recently circulated a substantially amended draft of the Financial Technology Bill, which has been renamed the Financial Technology Institutions (FTIs) Law. The law aims to regulate the financial services provided by FTIs – including those which are bound to specific regulations and offered or rendered through innovative means – as well as the organisation of such institutions and their operations.

National Banking and Securities Commission amends general rules for credit institutions to curb identity theft
Mexico | 06 October 2017

In recent years, Mexico has been rated as having one of the highest rates of credit card fraud in the world. The National Banking and Securities Commission recently published the Resolutions that Modify the General Rules Applicable to Credit Institutions, which require credit institutions to verify information and documentation filed by users and customers with different government bodies in order to assure the identity of each prospective customer.

New fintech law: what you need to know
Mexico | 01 September 2017

The recently published draft Financial Technology Law will regulate the organisation, operation, function and authorisation of companies that offer alternative means of access to finance and investment, the issuance and management of electronic payment funds and the exchange of virtual assets or cryptocurrencies. Among other things, the initative aims to take advantage of the opportunity to expand the financial market to include segments not covered by traditional banking institutions.

Energy & Natural Resources

CRE loosens metering obligations for petroleum, petroleum product and petrochemical terminals
Mexico | 13 May 2019

The Energy Regulatory Commission (CRE) recently issued a resolution which has clarified the scope of the general administrative provisions on metering that apply to holders of permits to store petroleum, petroleum products and petrochemicals. In issuing the resolution, the CRE has further relieved applicable permit holders from their obligations to comply with specific requirements.

CFE separation rules relaxed
Mexico | 06 May 2019

The 2013 energy reform ordered the legal separation of the Federal Electricity Commission (CFE) in order to guarantee equal competition for all industry players. Accordingly, in 2016 the Ministry of Energy issued the CFE separation rules to foster open access, efficient operation and competition within the industry. As these rules resulted in several inefficiencies within CFE generation companies, the ministry recently relaxed them in order to maximise resources and reduce power prices for end users.

CRE endorses retailers' use of benefit and loyalty programmes
Mexico | 14 January 2019

The Energy Regulatory Commission recently confirmed that certain business models used by retailers of refined products (eg, diesel and gasoline) are valid and stimulate competition in the market to the benefit of customers. As such, retailers can develop loyalty programmes based on bonuses, credits, subscriptions, memberships or exclusive offers, among other things, to be offered by various petrol stations. However, these programmes must be made available to all customers and cannot be discriminatory.

New president bans fracking
Mexico | 24 December 2018

In his inaugural address, President Andrés Manuel López Obrador confirmed that fracking will be prohibited in Mexico. As Mexico is highly dependent on the natural gas potential of basins located in the northern part of the country, this prohibition will deny it access to resources which it needs to achieve energy sufficiency. Thus, both the executive and legislative branches should instead consider appropriate regulation (rather than a simple ban) that allows for the rational use of oil and gas resources.

New administration confirms suspension of bidding rounds
Mexico | 17 December 2018

President Andrés Manuel López Obrador recently confirmed that bidding rounds organised by the National Hydrocarbons Commission will be suspended for at least three years until the contracts awarded during the previous administration result in effective investment and, most importantly, new oil and gas production. The new president has further affirmed that production will be increased through additional investment in Pemex, which will ultimately result in the national oil company's rescue.

Energy regulatory bodies to lose independence under new government
Mexico | 12 November 2018

A member of the House of Representatives recently introduced a legislative proposal that seeks to amend the Organic Law of the Federal Public Administration. The proposed reform aims to grant the central government significantly more control over the public administration, including with regard to the energy sector. Essentially, the National Hydrocarbons Commission and the Energy Regulatory Commission will no longer be independent from a technical and operational standpoint.

Will Mexico suspend bidding rounds and farm-outs?
Mexico | 15 October 2018

The 2013 energy reform significantly opened up the energy sector to private participation, thus ending the state's decades-long monopoly. However, the newly elected administration has pledged to revisit the reform and grant the state greater control of the sector. Although there have been mixed messages in this regard, the new administration has confirmed that the third bidding round for granting exploration and production licences and share production agreements will be suspended indefinitely.

New president will shift course of energy reform
Mexico | 01 October 2018

Throughout his campaign, and now as president elect, Andrés Manuel López Obrador has sent mixed messages with respect to various core reforms implemented by the outgoing administration, including the energy reform adopted in late 2013. Although the incoming administration has publicly stated that it will reverse the reform where possible, it is likely to adopt a more central position once it takes office and faces the actual challenges that must be overcome.

Environment & Climate Change

Environmental liability for damage caused by pipelines and storage terminal operations
Mexico | 11 March 2019

In view of recent policy changes relating to hydrocarbons and gasoline distribution via pipelines, liability for the remediation of soil and water contamination derived from hydrocarbon spills and leaks at storage terminals and pipelines has become a hot topic. These policy changes have largely been aimed at tackling criminal activities that have contributed to soil and water contamination, such as fuel and hydrocarbon theft.

President elect publishes new environmental agenda
Mexico | 29 October 2018

President Elect Andrés Manuel López Obrador has already published his environmental agenda, which sets out the objectives to be met and the strategies to be implemented during his six-year term. Under the agenda, a number of regulatory changes regarding air emissions, environmental impact assessments and coastal and marine zones will be introduced. In addition, Mexico will keep working towards its goals under the Paris Agreement and its administrative offices will undergo significant changes.

New forest regulation aims to improve resource management
Mexico | 20 August 2018

In recent years, Mexico has seen the significant deterioration of its forest resources, making it one of the 10 worst countries in terms of deforestation. To combat this issue, the New General Law for Sustainable Forest Development was recently published in the Federal Official Gazette. The law is an attempt to focus Mexico's forestry regulation on better management of resources, while also safeguarding human rights and social involvement.

New guidelines concerning recovery of expired water concessions for exploitation of national waters
Mexico | 30 April 2018

The Ministry of Environment and Natural Resources recently published a decree granting administrative benefits for the issuance of new concession titles for exploiting national waters to persons that hold a title which expired after January 1 2004. Notably, the decree allows for the issuance of new concession titles even if the zone or specific aquifer from which the original concession title was authorised to extract water is now considered a restricted or banned zone or aquifer.

Draft amendments to official standard apply to wastewater discharges into national waters
Mexico | 05 March 2018

The National Waters Commission recently submitted to the Federal Regulatory Betterment Commission its draft revision of the Mexican official standard which establishes the maximum permissible levels of pollutants in wastewaters discharged into national waters or properties. The draft aims to modernise the standard by including additional terms and definitions, pollutants and parameters regarding wastewater discharges into federal waters, as well as new sampling and reporting frequency obligations.

Waste management rules for hydrocarbons sector to be enacted
Mexico | 13 November 2017

The National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently filed a draft emergency Mexican official standard before the Federal Regulatory Betterment Commission. The draft establishes the criteria for classifying types of special and hazardous waste derived from the hydrocarbons sector, determines which types of waste are subject to a waste management plan and details the procedures for formulating such a plan.

ASEA issues draft water protection guidelines applicable to shale oil projects
Mexico | 26 June 2017

Following the expansion of shale oil extraction projects and the discovery of unconventional hydrocarbon deposits, the National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently commenced a public consultation process to enact applicable water protection guidelines. The draft guidelines provide a glimpse of the authorities' preliminary approach to shale oil projects with regard to water resources and environmental protection.

ASEA issues environmental and safety guidelines for ground transportation of oil and petrochemicals through pipelines
Mexico | 29 May 2017

As part of its expansion of operational safety and environmental protection guidelines and administrative provisions, the National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector turned its attention to oil, gas and petrochemical pipeline transportation activities. Recently issued guidelines complement the environmental legal framework so that both environmental and personal safety are guaranteed during the lifetime of a pipeline project.

ASEA issues guidelines to identify root cause of environmental and safety incidents in hydrocarbons sector
Mexico | 20 February 2017

In light of its concerns regarding environmental and operational accidents arising from hydrocarbons projects, the National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently published the Guidelines to Carry Out the Root Cause Investigation for Incidents and Accidents. The guidelines aim to identify the root cause of an incident and determine the maintenance and preventive mechanisms that must be implemented in order to prevent such events in future.

Environmental incidents in the hydrocarbons sector: new reporting obligations introduced
Mexico | 28 November 2016

Two important instruments were recently published which have generated a number of new environmental reporting obligations for companies involved in the hydrocarbons sector. In addition to these obligations, parties that cause an incident or spill during the execution of a project must undertake all applicable measures and actions to contain, mitigate and repair the environmental damage and contamination caused.

Environmental liability in the hydrocarbons sector
Mexico | 12 September 2016

The Mexican hydrocarbons industry is undergoing several regulatory changes, including the introduction of new guidelines which establish insurance requirements to ensure environmental accountability. The guidelines provide specific coverage requirements depending on the type of activity conducted, which should be a step forward in effectively controlling and responding to environmental damage resulting from natural and anthropogenic causes.

New guidelines minimise risk hydrocarbons industry poses to environment
Mexico | 11 July 2016

In May 2016 new guidelines were published to address the significant environmental risks posed by the hydrocarbons industry and provide corresponding mitigation measures. It is hoped that the guidelines – which are binding on participants in the hydrocarbons sector – will encourage more environmentally accountable mechanisms and mitigate the types of environmental harm that the hydrocarbons industry has already caused.

Mexico's climate change regulatory framework and obligations
Mexico | 25 January 2016

Over the past few years significant progress has been made in the establishment of a national climate change framework. Most recently, the government has promoted a series of instruments and measures to meet the goals set out in the General Law for Climate Change and the commitments made at the United Nations Climate Change Conference in Paris.

Supreme Court issues judicial precedents on environmental responsibility law
Mexico | 22 June 2015

Three judicial precedents were recently published concerning the interpretation and application of the Federal Law for Environmental Responsibility. These precedents address issues relating to the statute of limitations for filing suit for environmental responsibility, the right of civil associations to file such suits and the ability of the legislature to modify the fundamental right of access to justice under the law.

New hydrocarbons sector environmental and safety regulator starts operations
Mexico | 20 April 2015

Mexico's recent structural energy reform has resulted in the creation of the Agency for Safety, Energy and Environment (ASEA), a specialised, decentralised administrative body of the Secretariat of Environmental and Natural Resources, dedicated to the environmental requirements of the hydrocarbons sector. The ASEA internal regulations recently came into effect, marking the formal start of ASEA's activities.

Law on Spills in Maritime Zones to come into force in July
Mexico | 07 July 2014

The Maritime Spills Law seeks to control and prevent the pollution or alteration of the sea caused by spillages deposited in Mexican maritime zones and outlines the events that will be considered 'spills or dumping'. These events will either be authorised or penalised under the law. The law will come into force on July 16 2014.

Environmental liability law enters into force
Mexico | 24 February 2014

The Federal Environmental Liability Law has entered into force. The law is based on constitutional amendments which expressly establish direct responsibility for parties that cause damage and degradation to the environment and natural resources of Mexico. Environmental liability is a new concept under the Mexican legal system, and is separate from civil, administrative and criminal liability.

National Climate Change Strategy unveiled
Mexico | 01 July 2013

The National Climate Change Strategy was recently published in the Federal Official Gazette. Providing guidelines and policies to address the effects of climate change in Mexico, it also seeks to promote an inclusive long-term environmental policy focused on green growth by aligning goals, institutions, programmes and resources for such purposes for the next 40 years.

Federal Act for Environmental Responsibility: an initial approach
Mexico | 03 December 2012

The draft bill for the Federal Act for Environmental Responsibility, currently under consideration by the House of Representatives, seeks to regulate liability for harm to the environment and mandate restoration and compensation for such harm. The draft act also includes alternative dispute settlement options and sets forth the general rules and requirements to file civil actions.

Mexican Stock Exchange unveils sustainability index
Mexico | 23 July 2012

The Mexican Stock Exchange Market has launched a sustainability index. The index allows investors to identify companies in terms of their commitment to sustainable causes and compliance with environmental laws. It also provides an incentive for companies to engage in sustainable practices or else risk losing value and investment capital.

New provisions for integral waste-handling operations
Mexico | 23 April 2012

Two draft official standards - on waste for special treatment and hazardous waste - are expected to be approved in the coming months and will create new obligations in respect of waste management programmes. Generators of waste and other parties involved in waste handling would be well advised to start work on their management programmes.

Climate change bill heads for Chamber of Representatives
Mexico | 12 March 2012

Mexico is moving forward on climate change. The Senate has debated and approved the General Climate Change Bill which would create - among other things - a national climate change policy and an independent climate change authority. It sets out significant provisions on adaptation and mitigation, and on accessing federal and international funds for carbon capture and greenhouse gas reduction.

Amendments extend general standing to challenge authorised projects
Mexico | 25 July 2011

A constitutional amendment allowing class or representative actions on environmental matters represents a big step forward for Mexico's environmental law. The change will inevitably lead to increased exposure for individuals and entities in performing activities and securing approvals under federal environmental legislation.

Healthcare & Life Sciences

Health risks arising from mobile phone misuse: government ordered to launch information campaign
Italy | 01 May 2019

The Lazio Regional Administrative Court recently ordered a number of ministries, including the Ministry of Health, to launch an information campaign to advise the public about the potential risks arising from the misuse of mobile and cordless phones. The decision received considerable media coverage and will most likely renew the debate about electromagnetic pollution and mobile phones.

Towards the adoption of national templates for CTAs
Italy | 10 April 2019

The Italian Medicines Agency recently opened a public consultation on national templates for medicinal products and medical devices to be used in clinical trials carried out in Italy. The public consultation will hopefully help to clarify whether such templates should be considered mandatory and to what extent they may be replaced by sponsors' templates or be subject to negotiation and amendments.

New medical device regulations: what liability do notified bodies face?
Italy | 13 February 2019

Under the EU Medical Device Regulation and the EU In Vitro Diagnostic Medical Device Regulation, organisations that want be recognised as notified bodies must obtain a new designation. According to Assobiomedica (the association of medical device suppliers), the number of notified bodies in Italy that have applied for said designation is low. This has led to questions around what will happen if notified bodies fail to obtain the new designation and what liability they will face regarding manufacturers and patients?

Parallel import of medicinal products – when a name change is a game changer
Italy | 10 October 2018

The Lazio Administrative Court recently decided that, as a rule, parallel importers of medicinal products have no right to change the trademark affixed to products in their country of origin unless this change is strictly necessary due to safety grounds or national regulatory restrictions. The court found that the right to undertake the parallel import of medicinal products should not unduly take advantage of the national reputation and trust built by the marketing authorisation holder in the products' state of origin.

AGCM takes action against online sellers of dietary supplements
Italy | 25 July 2018

The Italian Competition Authority (AGCM) recently launched an investigation into the online sale of dietary supplements in Italy based on claims of non-compliance with the relevant regulatory provisions, resulting in misleading actions. The AGCM's role in this context is to ensure that consumers obtain accurate information concerning dietary supplements so that they can make informed decisions concerning these products.

Supreme Court upholds first class action relating to medical devices
Italy | 16 May 2018

After seven years, the Supreme Court finally ended the first product-related class action promoted in Italy relating to a medical device. The decision is noteworthy, despite the small sum awarded, because very few class actions have been declared admissible to date and even fewer cases have been upheld on the merits due to strict admissibility requirements.

Insurance

Civil liability insurance made mandatory for all motor vehicles
Mexico | 22 January 2019

In 2014 the federal government announced that civil liability insurance would be required for motor vehicle owners who travel on federal roads, avenues and bridges in order to guarantee third parties relief for any damages caused to themselves and their property. This measure was gradually rolled out under the Law of Federal Roads, Bridges and Transportation and, as of 1 January 2019, now applies to all motor vehicles.

Insurers' and bonding companies' obligations regarding sensitive user information amended
Mexico | 02 October 2018

The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds, removing the obligation for insurers and bonding companies to inform the commission when their users' sensitive information is altered, extracted, lost, deleted or suspected of having been accessed without authorisation or compromised. Now, insurers and bonding companies must immediately conduct an investigation and notify affected users of a data breach within three working days.

New government to eliminate private medical insurance for public officials
Mexico | 18 September 2018

The recently elected government administration has publicly announced that it intends to eliminate the private medical insurance currently granted to public officials as part of their benefits. This measure aims to encourage public officials to use state medical services and reduce government expenditure. If the cancellation of this benefit is confirmed, a significant number of officials are likely to seek major medical expenses insurance, which will present an opportunity for various companies in the sector.

Amendment to Insurance Law mandates insurers to offer products for disabilities
Mexico | 14 August 2018

A recent amendment to the Insurance Law has mandated medical expenses insurers to offer insurance products that cover risks which can cause disabilities in individuals. The amendment decree also revised the General Law for the Inclusion of Disabled Individuals, which prohibits any type of discrimination against individuals with any type of disability.

CONDUSEF amends general rules for registry of insurance adhesion contracts
Mexico | 31 July 2018

The National Commission for the Protection and Defence of Users of Financial Services (CONDUSEF) recently amended the General Provisions for the Registry of Insurance Adhesion Contracts in order to specify which additional documents must be included in the contractual documentation of such contracts and registered before the National Insurance and Bonds Commission and CONDUSEF.

CONDUSEF amends rules on good practices, transparency and advertising for insurers
Mexico | 17 July 2018

The National Commission for the Protection and Defence of Users of Financial Services (CONDUSEF) recently amended the General Rules on Good Practices, Transparency and Advertising applicable to Insurance Companies. The amendments have added additional documents to the contractual documentation required for insurance adhesion contracts and provided the form on which insurers must include the registry numbers granted by the National Insurance and Bonds Commission and CONDUSEF.

New minimum capital requirements for insurers in 2018
Mexico | 03 July 2018

The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds in accordance with its annual obligation to inform insurance and bonds companies of the value of the investment unit that they must consider in calculating their required minimum paid-in capital. Insurance and bonding companies must comply with the required minimum paid-in capital every year.

Will Brexit and possible NAFTA termination affect Mexican insurers?
Mexico | 05 June 2018

There has been much speculation around the implications of Brexit and the possible termination of the North American Free Trade Agreement (NAFTA). One of the clear benefits of both NAFTA and the free trade agreement entered into between Mexico and the European Union was the exemption of NAFTA and EU insurers from the foreign investment restriction. However, as this restriction was eliminated in 2014, affiliates of insurers located in NAFTA and EU member states will not be substantially affected.

Insurance regulator updates rules for surety insurance contracts
Mexico | 06 March 2018

The National Insurance and Bonds Commission recently added two new articles to the Insurance and Bonding Sole Provisions which set out new surety insurance contract requirements. Contracts must now include, among other things, confirmation that the insurer is authorised to pay the indemnity for damages without prior notice or consent of the policyholder and that the indemnity may be paid as compensation or as a penalty for the damages suffered.

National Insurance and Bonds Commission modifies regulatory framework for electronic contracting
Mexico | 02 January 2018

In order to prevent the misuse of customer information, the National Insurance and Bonds Commission recently amended the Insurance and Bonding Sole Provisions with regard to information gathered electronically. Among other things, the amendments require insurers to implement security measures and mechanisms for the transfer, storage and processing of information generated electronically when contracting insurance and bonds and rendering other services to customers.

Insurance regulator issues temporary measure for insurers following recent earthquakes
Mexico | 24 October 2017

The National Insurance and Bonds Commission has issued a temporary measure to enable insureds and their beneficiaries to be immediately compensated for damages suffered as a consequence of the recent earthquakes that affected several areas of Mexico. The temporary measure applies to Mexican insurers that have ceded risks to reinsurers and allows them to use funds to meet assumed risks and recover compensation from reinsurers at a later date.

Insurance regulator broadens regulatory framework on reporting standards
Mexico | 19 September 2017

The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds in order to increase legal certainty with regard to the regulatory framework that applies to actuarial, financial and investment functions. These amendments aim to ensure that the commission has the information required to take necessary regulatory action in the event that irregularities are detected and prompt intervention is needed.

Insurance regulator provides 2017 required minimum paid-in capital for insurers and bonding companies
Mexico | 20 June 2017

The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds to provide the value of the investment unit that insurers and bonding companies must consider when calculating their required minimum paid-in capital. Insurers and bonding companies must comply with the required minimum paid-in capital each year to ensure that they can meet their financial obligations and responsibilities in the exercise of their activities.

Surety insurers prepare to commence operations
Mexico | 23 May 2017

Two years after the Insurance and Bonding Companies Law was enacted, surety insurance is finally starting to take effect in Mexico. In essence, surety insurance is easier to collect and enforce than traditional bonds. The federal government is expected to start requesting surety insurance from its contractors, rather than traditional bonds. This shift in policy will encourage development in the surety insurance market.

CONDUSEF issues rules for registration of adhesion contracts
Mexico | 14 March 2017

The National Commission for the Protection and Defence of Users of Financial Services recently issued the General Provisions for the Registration of Insurance Adhesion Contracts, which regulate the organisation and operation of the Registry of Adhesion Insurance Contracts. Insurers can now comply with their obligation to register the non-negotiable contracts that they offer; failure to do so may result in a fine ranging from $758.31 to $3,791.56.

Special fund requirements clarified
Mexico | 13 December 2016

The Ministry of Finance and Public Credit recently issued a ruling interpreting the requirement to establish special funds under the Insurance and Bonding Companies Law. The ministry has clarified that special funds should be established to support compliance with obligations that stem only from insurance (and not reinsurance) contracts. This will ease some of the sector's concerns, as reinsurance-based contributions would have required insureds to contribute twice as much to the special funds.

Insurance regulator modifies accounting reporting standards for 2016
Mexico | 22 November 2016

The new Solvency II accounting and reporting standards deviate dramatically from the prior reporting standards, which makes it difficult for insurers to issue financial statements that can be appropriately compared with similar statements for 2015. In light of this, the National Insurance and Bonding Commission recently issued an amendment to the Sole Regulations on Insurance and Bonding, acknowledging that it is impractical for regulated entities to issue comparative financial statements during 2016.

New minimum insurance requirements for companies engaging in upstream activities
Mexico | 09 August 2016

The Ministry of Environment and Natural Resources recently issued guidelines setting out the minimum insurance requirements for companies undertaking oil and natural gas exploration and production, processing and refining. All regulated entities engaged in such activities must secure civil liability, environmental damage and – if applicable – well control insurance. The insured amounts vary depending on the activities to be undertaken, but are substantive.

Latin-American company authorised to issue credit ratings to foreign reinsurers
Mexico | 31 May 2016

In April 2016 the National Insurance and Bonds Commission amended the Sole Provisions on Insurance and Bonds to include HR Ratings de México, SA de CV as an entity authorised to issue credit ratings to foreign reinsurers. HR Ratings is the first Latin-American rating company authorised to issue such credit ratings, which are necessary for foreign reinsurers working with Mexican insurance and bonding companies.

Regulator determines types of loan that insurance and surety companies may issue
Mexico | 29 March 2016

The Ministry of Finance and Public Credit recently issued general provisions which specify the types of loan that insurance and surety companies may issue to third parties. In doing so, the ministry aims to democratise access to finance, avoid imbalances, promote national economic growth and create another option for debtors to secure credit at competitive rates.

CONDUSEF issues rules on transparency, publicity and sale of insurance products
Mexico | 09 February 2016

The National Commission for the Protection and Defence of Users of Financial Services (CONDUSEF) has issued general provisions to define certain activities that deviate from good practices with respect to the offer and sale of services that insurance entities provide. CONDUSEF's intention is to strengthen the protection of general public interest.

Streamlined mechanisms for insurance regularisation plans and auto-correct programmes
Mexico | 26 January 2016

Given the entry into force of Solvency II requirements in Mexico, the National Insurance and Bonds Commission continues its efforts to streamline internal and external control compliance mechanisms to which insurers are subject. The relevant provisions have been modified to allow regularisation plans and auto-correct programmes to be submitted to the regulator through its website, with the aim of facilitating easier and swifter compliance.

Mexico expands efforts on mandatory car insurance
Mexico | 10 November 2015

Since 2014, vehicle owners travelling on federal roads have been obliged to obtain liability insurance to cover damage caused to third parties or their property. However, insurers report that car liability insurance has not increased as expected. States are now looking into requiring liability insurance for all cars on the roads in their cities. Mexico City is the first to do so.

Insurers face new compliance issues under new law
Mexico | 14 July 2015

The new Insurance and Bonding Law, which implements the Solvency II requirements in Mexico, recently came into effect alongside the new Sole Regulation on Insurance and Bonding. Among other things, insurers must now file periodic regulatory reports using certain forms and templates, which consolidate information that was previously submitted to the regulator through individual reports.

New rules on abusive clauses in insurance contracts
Mexico | 24 February 2015

The National Commission for the Defence of the Rights of Financial Services Users has issued rules regarding abusive clauses contained in non-negotiable contracts used by financial institutions, including insurers. The regulator is now empowered to inspect all insurance products and – where it deems necessary – order the use of a product containing an abusive clause to be suspended.

Coverholders face new registration requirements
Mexico | 11 November 2014

The National Insurance and Bonding Commission has disclosed draft sole rules for comment. One of the changes concerns coverholders appointed by registered foreign reinsurance companies. Under the proposed sole rules, Mexican underwriters will no longer agree to do business with coverholders unless there is evidence that they have been properly registered.

Mexico eliminates restrictions on foreign investment in insurance companies
Mexico | 12 August 2014

Foreign investment in Mexican insurance companies has traditionally been restricted to 49% of capital stock, with certain exceptions. However, the Foreign Investment Law was recently amended to eliminate the restrictions on participation in insurance and surety companies. Foreign investors can now invest up to 100% in such companies, regardless of the investment's country of origin.

Insurers face new challenges as tax reform limits deductions for premiums
Mexico | 01 April 2014

Mexico's recent tax reform may have a substantial impact on insurers, as it limits the deductibility of individuals' insurance premiums. The immediate effect will be numerous cancellations of medical insurance policies and retirement plans, which had previously incentivised long-term savings. Corporations will also face limits on the deductibility of insurance premium payments made as part of employee compensation.

Financial reform protects insureds in insurance claims
Mexico | 17 December 2013

Congress recently passed a financial reform package that substantially affects the sector. Among the changes, insureds will be able to access summary or executory trials for disputes regarding insurance coverage, provided that they first secure approval from the National Commission for the Protection and Defence of the Users of Financial Services.

Compulsory car insurance for federal highways and roads
Mexico | 17 September 2013

The Federal Bridges and Highways Law was recently amended to require automobiles that use federal highways to be insured with coverage for any liability for damages and injuries caused to third parties by the motor vehicle. The amended law is expected to expand automobile insurance coverage across the nation, as only a few states in Mexico have compulsory car insurance policies in their local laws.

Foreign reinsurers face stricter registration criteria
Mexico | 04 June 2013

New internal criteria imposed by the Ministry of Finance and Public Credit are delaying various foreign reinsurers in securing registration or renewal with the Registry of Foreign Reinsurance Companies. While the new criteria are welcome, as they aim to ensure the strength and solvency of the reinsurance market in Mexico, they have nonetheless posed serious problems to many reinsurers.

Insurance sector faces new insurance and bonding law
Mexico | 12 March 2013

Congress has passed a new insurance and bonding law. The new law is intended to strengthen the insurance and bonding system according to international best standards and practices, with special regard for corporate control and governance, capitalisation rules, reserve investment and risk management policies, among other things.

Insurers face new anti-money laundering rules
Mexico | 06 November 2012

As a consequence of new regulatory guidelines, Mexican insurers will face tougher new requirements to assist in anti-money laundering activities. Insurers will need to update their internal 'know your client' policies and systems to ensure that they comply with the new requirements.

Regulator increases requirements for third-party insurance sales
Mexico | 04 September 2012

The National Insurance and Bonding Commission has issued an amendment to the Uniform Insurance Ruling that will require insurers to ensure that service providers hired to sell insurance products comply with the law. Insurers are now required to request evidence from third-party vendors that they have provided proper training for their employees, and that such employees have received certification from the commission.

Legal certainty for medical expense insurance
Mexico | 31 July 2012

The National Insurance and Bonding Commission has amended Section 5.1.24 of the Unified Insurance Ruling related to medical expense insurance. The amendment provides clearer guidelines for insurance companies to follow in regard to their medical expense insurance products. It expressly requires insurance companies to draft policies with clarity and legal certainty for the insured.

Insurers weigh impact of class action legislation
Mexico | 29 May 2012

A package of amendment to various federal laws has given rise to the possibility of filing class actions against insurance companies. These amendments will have a material impact on the conduct of insurance companies in relation to their clients, not only in their promotion, sale and adjustment of insurance, but also in the assessment of coverage policies, as exposure will be increased significantly.

Electronic filing simplifies compliance for insurers
Mexico | 14 February 2012

The Unified Insurance Circular has been amended to require insurance companies to submit statistical information about their activities electronically. The aim of the change is to facilitate delivery and improve the Insurance Commission's access to the information submitted by insurance companies for compliance and surveillance purposes.

Foreign reinsurers face new tax domicile requirement
Mexico | 16 August 2011

In order to undertake reinsurance and rebonding activities in Mexico, foreign reinsurers must demonstrate a satisfactory credit rating and agree to be bound by Mexican law in respect of transactions that are entered into in Mexico or have effects there. However, if the reinsurer is resident in a jurisdiction with which Mexico has a double tax treaty, it must also provide evidence of tax domicile.

Beware restrictions on commission payments
Mexico | 24 May 2011

It is often said that an insurer's most important 'clients' are not its insureds, but insurance agents - an insurer may offer the best product, but it will not be sold unless the agents like it. Commission is paid in various ways, with some insurers being willing to pay commission in advance. However, Mexican law prevents insurers from paying agents for the sale of products before they are sold and paid for.

Non-admitted underwriting issues for foreign insurance companies
Mexico | 15 February 2011

The Mexican insurance market is increasingly attractive to underwriters because of its potential for growth. Many non-admitted insurers offer a wide range of products in Mexico through licensed and non-licensed agents, but although the potential revenues are certainly sweet, the consequences may prove sour.

Unified legal framework facilitates compliance for insurers
Mexico | 08 February 2011

The Circular on Unified Insurance is now in effect. It consolidates the commission's previously issued rules and guidelines on insurance matters, integrating and standardising the relevant terminology, which should make it easier for insurance companies to comply with their obligations. However, various insurance-related decrees are not incorporated into the circular and remain in effect.

Data protection rules for insurers and agents
Mexico | 23 November 2010

The recently enacted Federal Law on Personal Data Protection has prompted many companies to reassess their database management and data-processing activities. However, insurance companies and agents are already subject to sector-specific regulations on the use of information.

Insurers' joint liability for medical malpractice
Mexico | 14 September 2010

A recent Collegiate Federal Court resolution states that where an insurance company requires insureds to obtain medical care from its chosen physicians in a medical assistance network, the insurer can be held jointly liable with the medical professionals. Effective monitoring should be used to ensure that insureds receive a high-quality service. Moreover, indemnity clauses should be included in agreements with physicians.

Intellectual Property

Company fails to prove bad-faith registration of domain name identical to its trademark
International | 25 September 2017

In a recent decision before the World Intellectual Property Organisation, a panel denied the transfer of a three-letter domain name, even though it identically reproduced a complainant's trademark, because the domain name had been registered years before the complainant acquired trademark rights and the complainant failed to demonstrate that the respondent was aware of those rights.

Success for Saone-et-Loire
France | 26 June 2017

The Versailles Court of Appeal recently affirmed the Nanterre Court of First Instance's decision in relation to the transfer of three domain names infringing the trademark of a collectivité territoriale (the catch-all term for French communes, departments and regions). The court of appeal reviewed three decisions delivered under SYRELI, an alternative dispute resolution procedure, to resolve domain name disputes under the '.fr' country code extension for France.

OnDemand: The challenges of patent applications for international collaborations
France | 01 December 2014

Factors to be considered in deciding where first to obtain patent protection when an inventor team comprises members located in one or more jurisdictions other than your own include whether there are first-filing requirements in those countries. If so, it is important to understand whether they apply only to inventions made by national entities or individuals, or more broadly to inventions made in the national territory.

Securitisation & Structured Finance

Federal court upholds clawback of assets transferred to trust
Mexico | 15 August 2017

Trusts are the most commonly used special purpose vehicle (SPV) in Mexico. Most securitisations involve the use of a trust as the SPV. Trusts are also used for secured loans, and collateral or payment source trusts are often used in Mexican financings to segregate collateral from the debtor. In addition, almost all project finance involves transferring assets to a trust in order for such trust to be the payment vehicle of the transaction. However, a recent court decision may have put these structures at risk.

EU Benchmark Regulation: requirements and impact for securitisation and structured finance transactions
European Union | 23 May 2017

The new EU Benchmark Regulation will take effect from January 1 2018 and will be directly applicable to EU firms that are benchmark users, administrators or contributors, without the need for national implementing legislation. As the scope of the regulation is much broader than any existing EU framework, securitisation and structured finance market participants should start to consider the increased controls that this will introduce.

Tech, Data, Telecoms & Media

One IoTa of consensus: bipartisan legislation to improve cybersecurity for internet-connected devices
USA | 17 May 2019

Congress recently introduced a bipartisan proposal to enhance cybersecurity for the network of internet-connected devices, commonly known as the Internet of Things (IoT). The IoT Cybersecurity Improvement Act 2019 aims to establish baseline cybersecurity standards for IoT devices. It would also impose limits on the types of IoT device that the US government can purchase.

FTC seeks comment on proposed changes to GLBA implementing rules
USA | 10 May 2019

The Federal Trade Commission recently issued notices seeking public comment on proposed amendments to the regulations implementing the Gramm-Leach-Bliley Act, commonly known as the Safeguards Rule and the Privacy Rule. The proposed changes to the Safeguards Rule add a number of more detailed security requirements, whereas the proposed changes to the Privacy Rule focus on technical changes to align the rule with changes in law over the past decade.

FTC obtains civil penalty under Children's Online Privacy Protection Act
USA | 03 May 2019

The Federal Trade Commission (FTC) recently announced that it had settled with the operators of a video social networking app for a record civil penalty of $5.7 million under the Children's Online Privacy Protection Act. This action was notable not just for the penalty's size, but also because of the joint statement by two democratic commissioners that future FTC enforcement should seek to hold corporate officers and directors accountable for violations of consumer protection law.

Excessive fines deemed unconstitutional in landmark Supreme Court of Justice declaration
Mexico | 22 March 2019

The Supreme Court of Justice recently declared that an article of the Federal Telecommunications and Broadcasting Law – which provided that the minimum fine for any violation of the law not otherwise expressly penalised in another law was 1% of the offender's annual income – to be unconstitutional. This declaration may signal that the court intends to participate more regularly in shaping Mexico's legal framework in order to rectify deficiencies created by Congress.

IFT files constitutional challenge against budget cuts
Mexico | 01 February 2019

One of the first actions that the new federal government administration undertook after taking office in December 2018 was to prepare the expenses budget in accordance with the new president's austerity principles. After heated discussions, the budget was finally approved on 24 December 2018. Shortly after, the Federal Telecommunications Institute filed a constitutional challenge in which it claimed that the budget will affect its ability to perform its constitutional regulatory functions.

IFT fully liberates 600MHz band
Mexico | 21 December 2018

Mexico recently became the first country to liberate the 600MHz band after the Federal Telecommunications Institute approved the relocation of the last two channels that transmitted therein in order to free it up for 5G broadband services. This transition will enable Mexico to make the band available to the market through a bidding process and exploit international mobile telecoms applications for 5G mobile broadband services.

Federal Telecommunications Institute publishes new guidelines regarding accessibility of broadcast TV services
Mexico | 31 October 2018

In 2017 the Federal Telecommunications Institute published the General Guidelines for the Accessibility of Broadcast Television Services, which will take effect in December 2018. The guidelines establish requirements regarding the inclusion of Mexican sign language or hidden subtitles in certain programmes, which apply to concessionaires that use a signal to commercially transmit broadcast TV to more than 50% of the Mexican territory and federal public entities that are concessionaires of public broadcast TV.

New rating guidelines, same rules
Mexico | 26 September 2018

The Ministry of the Interior recently issued the Guidelines for the Audiovisual Content Classification of Broadcasting Transmissions and Pay Television and Audio Services. The 2015 guidelines dramatically increased the hours during which a programme or ad can be broadcast depending on its rating, leading to legal disputes to protect child audiences. While the 2018 guidelines maintain the same broadcast times as the 2015 guidelines, they have increased the duration of the parental warning.

TELECOMM invites applicants to bid for National Backbone Network
Mexico | 01 August 2018

Telecomunicaciones de México recently issued a call inviting applicants to compete in the bidding for the Red Troncal project (ie, the National Backbone Network), which has been in the works since the 2013 constitutional telecoms reform. The winning party will enter into a public-private partnership for the design, financing, installation, deployment, operation, strengthening, maintenance and development of the network and the provision of wholesale telecoms services.

Red Compartida: president launches major telecoms project
Mexico | 18 July 2018

The president recently launched the Red Compartida (or Shared Network), which is one of the most important projects being undertaken in the Mexican telecoms sector. The project involves a new mobile broadband network in the 700 MHz band, which will provide wholesale services under a public-private partnership structure between Altán Redes and the government. The project aims to provide mobile broadband coverage to 92.2% of the Mexican population by 2024.

Functional separation of Telmex leaves some sceptical
Mexico | 25 April 2018

The Federal Institute of Telecommunications recently approved the final programme for the functional separation of Mexico's fixed incumbent companies as a consequence of the asymmetric regulation imposed on the América Movil Group (AMX). However, AMX has informed the Mexican Stock Exchange that it will challenge the approval of the programme and there has been some scepticism as to the results and practical consequences of the separation.

IFT announces 2.5 GHz auction
Mexico | 04 April 2018

The Federal Institute of Telecommunications recently announced the auction of the 2.5 GHz band. The auction's purpose is to assign the commercial use and exploitation of 120 MHz of the 2,500 to 2,690 MHz band for the provision of wireless services. Four companies and one consortium are interested in formally participating in the auction process, which is expected to be completed by November 2018.

Sony cyber-attacks: prepare for worst to reduce both vulnerability and liability
USA | 20 January 2015

The fallout from the recent cyber-attack against Sony Picture Entertainment has reinvigorated a debate about whether and when the US government should take responsibility for protecting private companies from cyber-attacks. It remains unclear whether the United States will use its prosecutorial powers to combat these types of cyber-attack or whether its responses will be robust enough to deter future cyber-attackers.

White Collar Crime

Updated DOJ guidance underscores importance of implementing truly effective corporate compliance programmes
USA | 13 May 2019

The Department of Justice (DOJ) recently confirmed the importance of implementing a robust compliance programme that is not only well designed, but also adaptable and able to function effectively. The DOJ's latest guidance makes clear that companies have a strong incentive to maintain an effective compliance programme. Most importantly, these programmes must be fully implemented, account for the structure and scope of a company's business and actually operate effectively.

Justice Manual and FCPA enforcement
USA | 18 March 2019

Throughout 2018 the Department of Justice (DOJ) continued to ring the clarion call for cooperation and sought to provide some certainty, consistency and coordination regarding the incentives offered to companies that provide voluntary disclosures. In particular, the DOJ centralised its guidance memoranda into what is now known as the Justice Manual. The DOJ's goals were to identify redundancies, clarify ambiguities, eliminate surplus language and update the manual to reflect current law and practice.

DOJ aims for good, not perfect: review of updated corporate cooperation policy
USA | 24 December 2018

Government attorneys now have additional discretion in False Claims Act civil cases to award cooperation credit to a corporation that meaningfully assists the investigation without necessarily identifying every individual person outside of senior management involved in the alleged misconduct. The new policy reflects the reality of modern corporate investigations and encourages realistic cooperation efforts without compromising the Department of Justice's policy of holding individuals accountable.

Is President Trump changing how US foreign bribery law is enforced?
USA | 12 November 2018

After the election of President Donald Trump, many observers wondered whether the US Department of Justice (DOJ) would change the way in which it enforces the Foreign Corrupt Practices Act. As the halfway point of Trump's first term in office approaches, it seems that the DOJ has not made any dramatic changes to the enforcement philosophy followed during prior administrations.

Artificial intelligence and data analytics in fraud and corruption investigations
USA | 16 July 2018

When a legal team needs to find the facts behind fraud and corruption allegations in a government investigation, technology can drive substantial new efficiencies. By filtering and evaluating vast amounts of information, artificial intelligence can effectively sort text messages, audio files, emails and other unstructured data into manageable groups; identify potential relationships between parties accused of fraud or corruption; and recognise patterns of frequency or timing, which may support a client's defence.

Compliance and privilege – an overview
USA | 28 May 2018

Compliance officers often report to the legal department or are staffed with qualified lawyers, making it difficult to distinguish when the compliance officer is serving in a legal capacity, rather than a compliance one. However, drawing a clear distinction between these functions, conducting internal investigations under the direction of counsel and making the legal purpose of communications or documents clear will make the best possible record to show that documents should be protected by privilege.

New administration, same policy? Only time will tell
USA | 19 March 2018

With few Foreign Corrupt Practices Act (FCPA) corruption investigations resolved under the Trump administration's watch, it is too early to weigh up how the administration will affect enforcement or settlements in the long term. On its face, the new FCPA Corporate Enforcement Policy signals a more business-friendly approach by removing the spectre of a monitor in many situations and by committing to a presumption of a declination in certain circumstances.

Seven reasons to pay attention to new Foreign Corrupt Practices Act Corporate Enforcement Policy
USA | 29 January 2018

Companies now have even greater incentives to have strong, meaningful Foreign Corrupt Practices Act compliance programmes. When the deputy attorney general recently announced the new enforcement policy that will guide the US Department of Justice, he made it clear that the government wants to create incentives for companies to police themselves when it comes to bribery and corruption.

DOJ announces one of largest False Claims Act recoveries concerning government small-business programmes
USA | 02 October 2017

Two recent cases before the Department of Justice (DOJ) have sent a signal that the DOJ may become more proactive in combating small-business contracting fraud. These cases underscore the importance of ensuring that small-business eligibility representations are accurate, as the penalties for misrepresentation can be severe.

Application of Foreign Corrupt Practices Act for energy and natural resources companies
USA | 17 July 2017

For energy, mining and resources companies, the cost of corruption – and getting caught – is real. Energy and mining companies, along with other resources companies, remain a major focus of bribery and corruption investigations worldwide. The government wields a potent weapon against bribery and corruption in the form of the Foreign Corrupt Practices Act.

Why healthcare and life sciences companies need to step up compliance efforts
USA | 19 June 2017

In the past, compliance and remediation in the context of healthcare investigations were typically seen as afterthoughts. However, compliance efforts are now being more closely scrutinised by prosecutors. The Department of Justice recently issued an 11-part series of questions styled as guidance on corporate compliance programmes. Interestingly, it is a series of questions, not a series of answers. Companies are going to have to work the answers out themselves with their compliance departments and counsel.

Bribery and corruption developments for aerospace, defence and government services companies
USA | 01 May 2017

In recent years, US and Western European military spending has decreased as military spending in other parts of the world has risen. As a result, aerospace, defence and government services companies increasingly rely on sales to foreign governments to grow business revenue and are thus at a more significant risk of investigation for violations of the Foreign Corrupt Practices Act.

US bribery and corruption outlook
USA | 20 February 2017

To undergo a Foreign Corrupt Practices Act investigation entails significant risk. Since 2008 at least 10 corporations have agreed to pay more than $300 million in penalties to resolve such investigations. Defence costs associated with a global bribery or corruption investigation can also run into the millions before any penalties are assessed. A number of developments that emerged during 2016 will have broad implications for the coming year.

Enforcing white collar criminal law during the Trump administration
USA | 23 January 2017

As the Senate prepares to confirm Senator Jeff Sessions as the new attorney general and to consider nominations for other high-level positions in the Justice Department, there are many questions – and few answers – about how the new leadership in the Justice Department will approach the prosecution of white collar crime during the Trump administration.

Och-Ziff settlement shows DOJ intends to enforce Foreign Corrupt Practices Act strictly
USA | 31 October 2016

The Department of Justice (DOJ) recently announced a landmark resolution concerning violations of the Foreign Corrupt Practices Act. The DOJ and the Securities and Exchange Commission entered into a $413 million settlement with one of the world's largest hedge funds. This settlement indicates that the DOJ intends to enforce the act strictly with little regard for the industry involved or the financial consequences.

Setting a rogue to catch a rogue: the changing face of Lincoln's Law
USA | 22 August 2016

Since January 2009, the government has recovered more than $30 billion through False Claims Act cases, more than half of which was recovered from cases involving alleged fraud against federal healthcare programmes. False Claims Act cases are now more complex, lucrative and healthcare focused than ever – a far cry from the act's humble beginnings as a solution to the problem of fraudulent sales to the military during the American Civil War.

The problems that the Justice Department pilot programme is trying to solve
USA | 18 July 2016

To understand how the government will regulate companies in the future, it is important to understand the problems it is currently trying to solve. In its efforts to enforce the Foreign Corrupt Practices Act, the US Justice Department faces a particularly difficult problem: how to incentivise companies to volunteer information about their own illegal conduct while retaining its ability to punish those companies for breaking the law.

Impact of Yates Memorandum on document production in corporate investigations
USA | 25 April 2016

With the publication of the Yates Memorandum, the Department of Justice has reinforced its focus on seeking accountability from individuals. Employees may thus be at greater risk from corporate investigations, particularly with respect to their work emails and other documents, and company counsel may receive more requests from individual counsel regarding the production of employees' documents.

Companies may feel pressure to disclose privileged materials under new DOJ policy
USA | 29 February 2016

The Yates Memorandum announced a new US Department of Justice (DOJ) policy that focuses DOJ attorneys on pursuing the individuals responsible for corporate wrongdoing. In considering the practical effects of the new policy, a question arises about the potential for it to increase the pressure on companies to provide legally privileged information to the DOJ in hopes of receiving cooperation credit.

Unintended consequences of the Yates Memorandum
USA | 07 December 2015

The Department of Justice's (DOJ) Yates Memorandum aims to hold individuals, not just corporations, accountable for corporate misconduct, in response to criticism that it fails to punish executives who precipitate wrongdoing. However, it remains to be seen whether the policy will advance the DOJ's law enforcement interests or hinder them, as there may be unintended consequences for companies, employees and the DOJ itself.

DOJ calls for pursuit of executives in corporate investigations
USA | 19 October 2015

The US Department of Justice recently announced a formal policy that provides for the vigorous prosecution of culpable individuals who are responsible for corporate wrongdoing, which is consistent with shifting trends in prosecution. An increased effort to prosecute high-ranking executives would result in significant changes to how investigations affect companies and how companies respond to investigations.

Implications of Supreme Court decision on False Claims Act
USA | 28 September 2015

The recent Supreme Court decision in Kellogg Brown clarifies that the Wartime Suspension of Limitations Act will not toll the statute of limitations for civil claims during times of war or the authorisation of military force. This reverses the trend that had permitted the use of the act in civil False Claims Act matters and protects defendants from indefinite tolling in civil matters.

How law-abiding citizens can be ensnared in federal criminal investigations
USA | 20 July 2015

There are many subtle ways in which a law-abiding citizen can commit a federal felony under US law in a matter of minutes. The pressures of life can put people in situations where they take morally questionable actions that are prohibited by federal criminal law leading to criminal penalties. The average citizen should thus realise how broad US criminal law can be and how it can be applied to him or her.

Foreign Corrupt Practices Act: 2014 in review
USA | 05 May 2015

Although the government has added new players to its line-up, the game seems to be the same in the world of Foreign Corruption Practices Act enforcement, as the Department of Justice (DOJ) and the Securities and Exchange Commission continued to push for strong enforcement in 2014. As in 2013, the DOJ continued to emphasise the importance of corporate compliance and cooperation with investigators.

When do white collar criminal statutes apply to extraterritorial conduct?
USA | 07 April 2015

The Supreme Court has steadily restricted the recovery available to civil litigants for conduct that occurred outside the United States and prosecutors have continued to push for the broad application of criminal laws to extraterritorial conduct, particularly in white collar criminal cases. Courts have only just begun to grapple with how to analyse whether a criminal statute applies extraterritorially.

'Fugitive disentitlement' doctrine warrants Supreme Court review
USA | 10 November 2014

The application of the fugitive disentitlement doctrine is an important issue that warrants Supreme Court review. It is an issue of fundamental fairness for both non-US citizens and the US Department of Justice. Both sides have reasonable and forceful arguments to make, and the future of the doctrine will have very real consequences for the US government and private citizens around the world.

Delaware Supreme Court adopts fiduciary exception to attorney-client privilege
USA | 15 September 2014

The Delaware Supreme Court has issued a decision that may affect how US corporations conduct investigations and communicate with their attorneys. The decision adopted the fiduciary exception to attorney-client privilege, which allows shareholders access to a company's privileged communications when there is "good cause" to believe that management may have breached a fiduciary duty to the shareholders.

Impact of In Re Kellogg Brown & Root, Inc on privilege concerns in internal investigation
USA | 28 July 2014

While companies can breathe a sigh of relief following the District of Columbia Circuit Court's recent unanimous ruling in In Re Kellogg Brown & Root, Inc, overturning the district court's decision in US, ex rel Barko v Halliburton Co, companies should take some precautions to reduce the risk of disclosure of privileged materials generated during internal investigations.

Does attorney-client privilege survive in corporate compliance investigation?
USA | 09 June 2014

The US District Court for the District of Columbia recently issued an opinion that has the potential to disrupt the manner in which companies conduct compliance investigations, particularly in regulated sectors such as the defence industry. Although there are certain flaws in the court's reasoning, this decision – if widely adopted – could cause significant disruption in existing corporate compliance and investigation programmes.

Indefinite tolling: impact of Wartime Suspension of Limitations Act
USA | 06 May 2014

An archaic World War II statute designed to give the federal government extra time to prosecute crimes during times of war has recently reared its head in the context of False Claims Act qui tam actions for the first time in over 50 years. The dramatic and far-reaching consequences of such a tolling of the limitations period for False Claims Act lawsuits have brought renewed attention to this peculiar statute.

Foreign Corrupt Practices Act: 2013 in review
USA | 24 March 2014

The Foreign Corrupt Practices Act remained a key issue in 2013. The number of cases commenced under the act by the Department of Justice and the Securities and Exchange Commission was slightly above pace from the previous year, providing evidence of the agencies' continued commitment to aggressive pursuit of Foreign Corrupt Practices Act cases.

Second Circuit takes Grimm view of continuing conspiracy theory
USA | 10 March 2014

In December 2013 the Second Circuit issued a key decision that restricts the prosecution of cases where the US government aims to use routine payments within the limitations period to indict offences that should be time barred. In United States v Grimm the government charged three individuals with antitrust conspiracies more than five years after contracts were awarded.

Transparency problems appear in SEC whistleblower programme
USA | 10 February 2014

It has been over two years since the US Securities and Exchange Commission (SEC) began operating its whistleblower programme, but substantial questions linger over its effectiveness and transparency. Only four whistleblower awards have been made in the programme's history and the SEC has not disclosed many details about those awards to the public. So has the programme been worth it?

Courts and jury endorse Department of Justice cases against New York banks
USA | 06 January 2014

Two New York judges and now a federal jury are making the Financial Institutions Reform Enforcement and Recovery Act required re-reading for banking attorneys. In recent opinions, the judges endorsed the claims filed under the act – a 1989 reform law now being applied by the Department of Justice to the aftermath of the late 2007 and 2008 meltdown in the housing and secondary mortgage market and other financial markets.