Legal Business

Sponsored briefing: A guide to white-collar offences

Basham, Ringe y Correa on key white-collar and fraud offences in Mexican law

Basham, Ringe y Correa SC is a full-service law firm with a strong presence in Latin America and is the Lex Mundi representative for Mexico. The firm’s clients include prominent international corporations, many of them on the Fortune 500 List, medium-sized companies, financial institutions and individuals. Basham’s preventative and strategic consulting in all law practice areas allows the firm to offer its clients effective, complete and timely solutions to their concerns. The firm’s in-depth knowledge of the international as well as the domestic market gives it the solid base and perspective needed to offer fully integrated and tailored solutions to every client. The firm’s lawyers actively participate in worldwide associations, as well as in international transactions, something that has promoted the exchange of information and experience. Basham, Ringe y Correa is aware that each client requires objective counselling, experience and professionalism. The firm’s lawyers are well-known leaders in their respective fields of specialisation and are committed to providing legal services at the highest standards of quality.

White-collar offences

Corporate criminal liability

Mexican law establishes that legal entities may be held liable for the intentional or culpable crimes executed by their representatives, members or administrators on their behalf, for their benefit or using the means provided by such entities. According to the Mexico City Criminal Code, the offences executed by the staff under the command of the individuals above-mentioned may hold liable the legal entity if there was no due control on them and such offence was executed because of the entity’s corporate purposes. It is important to point out that such liability is autonomous in relation to the liability held by the individual who perpetrated the offence.

In case of mergers, conversions or spin-offs, the legal entity will still be held liable for the offence committed. In such context, the liability will be adjusted considering the agreement held by the legal entity found responsible for the offence. Furthermore, in the event of apparent dissolutions, criminal liability is not extinguished when the entity continues with its economic activity, while maintaining a substantial identity of its suppliers, clients or employees.

Legal entities found liable for a crime shall be sentenced to one or several of the following sanctions: fine; confiscation of the instruments, objects or the proceeds of the crime; publication of the sentence; and the dissolution of the entity. In order to impose the sanction to a legal entity, the judge must weigh, among others, the repercussion of the failure to implement the organisation’s control mechanisms, and/or the non-compliance of legal provisions and their enforceability to act in accordance with the law. However, it is an extenuating cause of criminal liability if the legal entity co-operates throughout the investigation by providing new and decisive evidence, or if such legal entity establishes, before the oral trial stage, effective measures for preventing or discovering offences which, in the future, could be executed inside of such legal entity.

Criminal company law and corporate fraud

In federal jurisdiction, legal entities could be held liable for certain crimes, which are provided in the Federal Criminal Code. Some of the offences for which legal entities can be held criminally liable, or also be victims, are:

Authors

Francisco Tiburcio has been a partner in the criminal law practice at Basham, Ringe y Correa since 2000. His main areas of specialisation are criminal law, trial practice and counselling on crime prevention. He has more than 32 years’ experience in criminal practice, mainly in white collar, intellectual property, tax, health and environmental law crimes, as well as areas related to mining and industrial security. He advises both domestic and foreign corporations, many of which are Fortune 500 companies. He has participated as speaker in numerous business forums and conferences on strategies and methods for crime prevention. He is an associate of Frauded and Lex Mundi and has published several books on Mexican criminal law as well as various articles in specialised journals. He has a PhD from Universidad Panamericana, Mexico City.

Alejandro Catalá has been a partner at Basham, Ringe y Correa since 2006 and is currently based in Mexico City. His most important practice areas are criminal prevention counselling and civil and criminal litigation. He is a member of the firm’s executive committee specialising in white-collar criminal law advice to leading global and Mexican corporations. He is a regular speaker on criminal law at various business forums and associations engaged in fighting criminal activity and vice-president of the intelligence and risk management commission of the International Chamber of Commerce.

Gilberto Valle is a partner in the Querétaro office of Basham, Ringe y Correa who specialises in criminal law and the corporate prevention of criminal conduct. He is a trial lawyer and consultant. He has particular experience in criminal law litigation, representation of victims and injured parties in criminal investigations and prosecutions (at both the local and federal level), corporate security and due diligence investigations associated with anti-corruption compliance, design and implementation of compliance policies including prevention of criminal conduct programmes and corporate exposure to criminal liability. He is a member of the US-Mexico Bar Association.

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