USA – FLORIDA Trends and Developments Contributed by: Wifredo A. Ferrer, Barbara A. Martinez, Marcelo J. Ovejero and Oscar Alejandro Quiroz-Chávez, Holland & Knight LLP
A robust internal investigation protocol is therefore essential for demonstrating good faith compliance efforts and potentially mitigating penalties for any violations that may have occurred. Upon discovery of credible allegations or red flags suggesting cartel involvement, companies must act immediately to prevent the issue from escalating and preserve evidence. This includes suspending any potentially problematic transactions, securing relevant documents and electronic data, and implementing liti - gation holds to prevent destruction of evidence. Investigation planning requires careful consideration of scope, resources, and potential outcomes. Com - panies must determine whether to conduct investiga - tions under attorney-client privilege, recognising that doing so may limit their ability to share results with regulators but provides protection for sensitive find - ings. The investigation plan should identify key wit - nesses, relevant documents and data sources, and timelines for completion. For investigations involv - ing potential cartel connections, companies should strongly consider engaging external counsel with expertise in anti-terrorism laws and regional knowl - edge of cartel operations. The conduct of investigations in potential cartel- related matters presents unique challenges. Witness interviews must be handled sensitively, recognising that employees may fear retaliation from cartels if they provide information. Companies should estab - lish secure channels for employees to report concerns and consider offering protection for employees who self-report violations. Document review should focus not only on direct evidence of cartel connections but also on patterns of behaviour that might indicate con - structive knowledge of such connections. Remediation efforts following investigations must be swift and comprehensive. Where violations are identi - fied, companies should identify root causes of viola - tions and take immediate steps to terminate prob - lematic relationships, enhance controls to prevent recurrence, and discipline employees who violated company policies. The remediation process should be thoroughly documented to demonstrate the com - pany’s commitment to compliance. This documenta -
tion becomes particularly important if the company decides to make voluntary disclosures to government authorities. Deciding whether to self-disclose potential violations to government authorities represents one of the most critical judgement calls in the investigation process. Voluntary disclosure may lead to significant mitigation of penalties and may be the difference between civil and criminal charges. Factors favouring disclosure include clear evidence of violations, systemic control failures suggesting ongoing risk, and situations where disclosure by other parties seems likely. Conclusion The designation of cartels as terrorist organisations represents a defining moment for white-collar enforce - ment and corporate compliance. The convergence of anti-terrorism laws, OFAC sanctions, and expanded enforcement efforts creates an environment neces - sitating that attorneys be well-versed in relevant spe - cialised areas and companies be exceptionally vigilant about their business relationships and transactions. Success in this new landscape requires more than mere technical compliance. Companies must invest in robust compliance programmes that combine com - prehensive risk assessments, effective due diligence procedures, ongoing monitoring, strong cultural foun - dations, and outside counsel to advise as needed. While the challenges are significant, companies that approach compliance proactively will be more likely to avoid severe penalties and also contribute to broader efforts to combat cartel activities. By implementing the practical guidance outlined in this article, organi - sations can begin to navigate this difficult new envi - ronment while maintaining their business operations and protecting their stakeholders. Importantly, minimising liability through compliance is not a static exercise but an ongoing process that must evolve with changing risks and enforcement priorities. Companies that build adaptive, comprehensive com - pliance programmes will be best positioned to thrive in the challenging operating environment of Mexico and Latin America.
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