How to Successfully Transfer Your Manufacturing Plant From Mexico to the United States
President Trump’s promise to impose a new 25% tariff on goods produced in Mexico has prompted many companies to consider alternatives to their current or planned operations in Mexico. The decades following the 1994 North American Free Trade Agreement (NAFTA) saw enormous industrial investment in Mexico, especially in northern cities like Monterrey, Tijuana, Chihuahua, and Baja California.1 The benefits of producing goods in Mexico were clear – low labor costs, modest transportation costs to the United States, and reduced tariffs under NAFTA. These benefits, however, could be eclipsed by a new 25% tariff on Mexican origin goods. Companies with industrial plants that have tight profit margins are in a precarious position, so it is not surprising that many are now “looking to shift operations to the US to avoid these additional costs and reroute cargo from Mexican ports to US ports.”2
The automotive sector is a prime example of an industry that will be significantly impacted by the proposed tariffs, if implemented. The United States imported more than US$86 billion worth of motor vehicles from Mexico and more than US$63 billion of auto parts from Mexico last year, according to US Department of Commerce data, excluding December.3 This reflects the major investments automotive manufacturers and their suppliers made in Mexico in the years since NAFTA. It also reflects the extent to which Production in Mexico and the US became highly integrated, with producers in both countries (and Canada) relying on a free flow of parts and finished goods across borders. New tariffs, therefore, pose a major challenge to the status quo.
The question of whether to shift operations from Mexico to the United States requires a careful cost-benefit analysis to determine if there is an opportunity to increase profits by relocating to the United States. But, once this analysis is complete, how does one evaluate the opportunity? Proactive planning is essential. For example, when evaluating potential moves, it is important to: (1) select an ideal site that meets the utility and labor needs of the plant; (2) negotiate and maximize economic incentives; (3) conduct real estate due diligence and analyze real estate documents for the facility and its operations; (4) review the tax and corporate considerations with respect to the transaction; and (5) analyze supply chains to ensure products produced or processed in the United States will meet US country of origin standards.
For companies facing these challenges, the firm can assist in finding a successful solution. The firm has an internationally recognized Global Location Strategies practice and an experienced Policy and Regulatory practice with special capabilities in international trade regulation. We have strong relationships with federal, state, and local economic development and government officials all over the United States. This enables our clients to gain government assistance with evaluating when and where to move their operations in the United States. The firm has obtained incentives up to a billion US dollars for our clients and has assisted with finding the perfect site for our clients through our strong relationships with federal, state, and local governments and agencies.
Now is the perfect time to explore relocating to the United States, as doing so will better position your company to navigate future disruptions and obtain the best incentives possible when making use of the firms’ years of experience and success in obtaining those incentives.
Footnotes
1 The Los Angeles Times, p. 6.
2 State of the American Supply Chain, Averitt p. 2 January 9, 2025.
3 WDSU, p. 3, January 21, 2025.
Nasdaq Diversity Rules Struck Down
On December 11, 2024, in a 9–8 decision, the US Court of Appeals for the Fifth Circuit struck down the Nasdaq Stock Market’s board diversity rules, holding that the Securities and Exchange Commission (SEC or Commission) exceeded its statutory authority when it approved them. As a result of the ruling, Nasdaq-listed companies no longer need to comply with Nasdaq’s board diversity requirements.
Adopted in 2022, the board diversity rules required Nasdaq-listed companies to disclose board diversity data in a standardized board diversity matrix. The rules required that Nasdaq-listed companies either (i) had to have at least one female director and at least one director who self-identified as an underrepresented minority or LGBTQ+, or (ii) had to explain why they did not have the requisite number of diverse directors on the board. The rules required companies to disclose director diversity information in the board diversity matrix annually in the company’s proxy statement or on the company’s website.
In its opinion, the court discussed the process by which self-regulatory organizations (SROs), like Nasdaq, may change their rules. Like all other SROs, Nasdaq must submit its proposed rule changes to the SEC for approval, and the SEC must approve a proposal only if it finds that the proposed rule is consistent with the requirements of the Securities Exchange Act of 1934. In order for the rule to be consistent with the requirements of the Exchange Act, it must be “related to the purposes of the Exchange Act.” The court stated that “Congress passed the original Exchange Act primarily to protect investors and the American economy from speculative, manipulative, and fraudulent practices.” While the court noted that “there are other, ancillary purposes” for the Exchange Act, “disclosure of any and all information about listed companies is not among them.” The court concluded that the SEC’s actions implicated the major questions doctrine and that, absent a clear congressional directive, the agency lacked the statutory authority to authorize the rule. The major questions doctrine is based “on the principle that administrative agencies have no independent constitutional provenance.” Rather, they “possess only the authority that Congress has provided.” The court noted that “disclosure is not an end in itself but rather serves other purposes.” Further, the court stated that a “disclosure rule is related to the purposes of the Exchange Act only if it is related to the elimination of fraud, speculation, or some other Exchange Act-related harm.” By vacating the rules, the court concluded that the Nasdaq diversity rules were not related to the purposes of the Exchange Act.
In the immediate aftermath of the court’s decision, Nasdaq indicated that it did not intend to appeal the court’s decision, while the SEC said it was “reviewing the decision and will determine next steps as appropriate.” However, on January 16, 2025, Nasdaq filed a proposal with the SEC seeking to remove the board diversity provisions from the Nasdaq rules to reflect “a Federal court’s vacatur of the Commission’s order of August 6, 2021, approving rules related to Board diversity disclosures.” Nasdaq requested that the Commission waive the operative delay to allow the proposed rule change to become effective on February 4, 2025.” On January 24, 2025, the SEC declared the proposal to be immediately effective. These actions by Nasdaq and the SEC make it clear that diversity rules are no longer in effect. Therefore, companies are no longer required to comply with the rules and may choose to remove their Nasdaq-specific board diversity matrices from their websites and proxy statements.
While disclosure under Nasdaq’s diversity rules is no longer required, companies may still have compelling reasons for including board composition and diversity disclosure in their proxy statements in view of the policies of proxy advisory firms and institutional investors. Depending on a company’s investor base, these policies may be a reason, among others, for continuing to publicly disclose certain aspects of board diversity and seek diverse board members.
Insurance Coverage for Business Interruption Losses: What Retailers Need to Know
Recent business disruptions have highlighted the vulnerabilities retailers face when unexpected events force closures. Whether it’s a utility outage disrupting operations or a fire at a supplier’s facility or neighboring property cutting into sales, insurance may help cover business interruption losses.
Service Interruption Coverage
Retailers should review their property insurance policies, as they may cover losses or expenses stemming from utility outages. For example, some policies cover power or water outages that prevent normal operations or lead to a loss in sales.
Key factors to consider:
Physical Damage Requirements: Some policies require physical loss or damage at the retailer’s premises or the utility provider’s location, but not all policies include such a requirement. Indeed, coverage for losses may be available even if the retailer’s property does not suffer direct physical loss or damage.
Service Interruption Period: Policies often include specific time parameters for coverage, such as a waiting period (e.g., 24 hours) before coverage begins and an indemnity end point, usually when service is restored. However, retailers should also look for provisions allowing extended indemnity periods, which may provide additional coverage beyond the restoration of service. For instance, the time needed to ramp up operations to pre-loss levels may be covered.
Contingent Business Interruption Coverage
Contingent business interruption (CBI) insurance offers protection when a retailer experiences losses because of damage at a supplier’s facility or at an attraction property critical to driving foot traffic. These off-site locations are often referred to as “dependent properties,” and they may specifically be named in the policy, or coverage may include all such locations. This coverage is typically triggered by physical damage at the dependent property, even if the retailer’s own premises remain unharmed.
Examples include:
Supplier Disruption: A fire at a supplier’s facility that halts inventory shipments, preventing the retailer from meeting customer demand and resulting in lost sales.
Neighboring Business Impact: A neighboring business or attraction property affected by a fire, leading to decreased foot traffic and revenue for the retailer.
Key considerations for CBI coverage:
Time Deductibles: Most policies include a waiting period following the incident at the dependent property before coverage begins.
Period of Restoration: Coverage is generally limited to the time reasonably needed to restore operations at the dependent property. Importantly, this period is not cut short by the policy’s expiration.
Action Steps for Retailers
To protect their interests and maximize potential recovery, retailers should:
Analyze Policy Language: Every policy is different. A thorough review is essential to understand the specific scope of service interruption and CBI coverage.
Promptly Notify Insurers: Failure to provide timely notice can jeopardize coverage. Pay close attention to notice requirements, including deadlines and required documentation.
Document Losses: Meticulous record-keeping of sales, expenses, and other relevant financial data is critical to supporting claims.
Seek Expert Guidance: Engaging insurance coverage counsel early in the process can help avoid common pitfalls and strengthen claims.
Retailers operate in an unpredictable environment, but proactive measures and careful attention to policy details can mitigate the financial impact of business interruptions. With the right tools, retail companies can position themselves to effectively navigate these challenges.
FCPA Year in Review 2024
The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) obtained over $1.28 billion in total fines and penalties related to Foreign Corrupt Practices Act (FCPA) violations in 2024, making it one of the top 10 highest grossing years with regard to enforcement penalties in the FCPA’s nearly 50-year history. Foreign governments and other branches of the U.S. government recovered an additional $400 million in global settlement amounts related to those FCPA enforcement actions. The U.S. government also announced charges against 19 individuals for FCPA and FCPA-related conduct.
Beyond the enforcement cases, the DOJ issued both new guidance and updates to existing guidance regarding its approach to corporate crime and its expectations surrounding corporate compliance efforts. The DOJ’s recent updates to its Evaluation of Corporate Compliance Program guidance focuses on (1) the risks associated with emerging technology, such as AI; (2) the resource allocation and amount of access to data by the company’s compliance functions; (3) incentivizing whistleblowers; (4) the importance of post-acquisition compliance integration; and (5) ensuring companies incorporate lessons learned from misconduct. Furthermore, the DOJ launched a new pilot program for whistleblowers to report corporate misconduct and announced incentives for individuals who voluntarily self-disclose criminal conduct.
The following is a snapshot of 2024 FCPA enforcement:
Massachusetts Enhances Regulatory Oversight of Health Care Transactions on For-Profit and Private Equity Investments
Massachusetts has expanded regulatory oversight of health care transactions by imposing False Claims Act liability on health care owners and investors for changes including failure to disclose violations. On January 8, 2025, Governor Maura Healey signed into law H.5159, An Act enhancing the market review process (the Act). Among other matters, the Act aims to strengthen oversight of private equity investors and related entities in the health care industry, including the expansion of the investigatory and enforcement powers of the Massachusetts Attorney General as they relate to health care activities. The Act also intends to fill perceived gaps in regulatory oversight, that many view as contributors to the Steward Health Care bankruptcy and related hospital closures across Massachusetts, by directly addressing regulation of for-profit health care entities and private equity ownership.
The following Act provisions expand the authority of the Massachusetts Health Policy Commission (HPC), Center for Health Information and Analysis (CHIA), and Attorney General’s Office (AGO) to oversee private equity investors and related entities, including through expansions of HPC’s existing oversight authority and extension of the Commonwealth’s state False Claims Statute (MA FCA) to owners and investors of violators. The Act also contains myriad changes impacting the health care industry. It strengthens regulatory oversight over private equity, pharmacy benefit managers, real estate investment trusts (REITs), management service organizations (MSOs), and other industry participants.
Expansions of HPC and AGO authority under the Act:
Establish new definitions for entities involved in, or related to, private equity operations [1]:
“Health care real estate investment trust,” a real estate investment trust, as defined by 26 U.S.C § 856, whose assets consist of real property held in connection with the use or operations of a provider or provider organization.
“Private equity company,” any company that collects capital investments from individuals or entities and purchases, as a parent company or through another entity that the company completely or partially owns or controls, a direct or indirect ownership share of a provider, provider organization or management services organization; provided, however, that “private equity company” shall not include venture capital firms exclusively funding startups or other early-stage businesses.“Significant equity investor,” (i) any private equity company with a financial interest in a provider, provider organization, or management services organization; or (ii) an investor, group of investors, or other entity with a direct or indirect possession of equity in the capital, stock, or profits totaling more than ten percent of a provider, provider organization, or management services organization; provided, however, that “significant equity investor” shall not include venture capital firms exclusively funding startups or other early-stage businesses.“Management services organization,” a corporation that provides management or administrative services to a provider or provider organization for compensation.
Revise the composition, necessary expertise, and responsibility for appointments to the HPC Board [2]. While the Board will continue to consist of 11 members, the Commissioner of Insurance is now a required member, as are appointed individuals with expertise in representing hospitals and hospital systems and in health care innovation, including pharmaceuticals, biotechnology, or medical devices. However, the HPC will no longer require membership of the Secretary for Administration and Finance, a Primary Care Physician, and an individual with expertise as a health insurance purchaser representing management. Finally, the auditor is no longer responsible for appointments to the HPC Board; all members, other than the Secretary of Health and Human Services and Commissioner of Insurance, will now be appointed solely by the Governor or Attorney General. These changes may reflect a shift in priorities for regulatory oversight of hospital administration, health care innovation, and health care insurance.
Expand the HPC Notice of Material Change process [3]. As previously required, every provider or provider organization must provide notice of a “material change” not less than 60 days before the date of the proposed change.
The previous statutory Notice of Material Change reporting requirements only covered:
mergers or acquisitions of hospitals or hospital systems;
a corporate merger, acquisition or affiliation of a provider or provider organization and a carrier;
an acquisition of insolvent provider organizations; and
mergers or acquisitions of provider organizations which will result in a provider organization having a near-majority of market share in a given service or region [4].
The Act expands the above-referenced statute mandating the reporting of “material change” requiring notice to the applicable government agencies to also include the following as examples:
significant expansions in a provider or provider organization’s capacity;
transactions involving a significant equity investor which result in a change of ownership or control of a provider or provider organization;
significant acquisitions, sales, or transfers of assets including, but not limited to, real estate sale lease-back arrangements; and
conversion of a provider or provider organization from a non-profit entity to a for-profit entity.
The Act also changes the current material change reporting threshold for mergers or acquisitions of a provider organization, which will result in a provider organization having a near-majority market share in a given service or region to provide that the standard is whether the provider organization will have a “dominant market share in a given service or region” (and not a “near-majority”).
Adoption of implementing regulations. While the Act does not include financial thresholds for reporting, the Act does direct the HPC to adopt regulations for administering the section, conduct cost and market impact reviews, and allow filing thresholds to be adopted in the regulations, subject to annual adjustments based on inflation [5].
Expands the HPC Cost and Market Impact Review process as follows:
HPC may now require significant equity investors, as well as other parties involved, in a given transaction to submit documents and information in connection with a Notice of Material Change or Cost and Market Impact Review [6].
HPC may require submitting certain information regarding the significant equity investor’s capital structure, general financial condition, ownership and management structure, and audited financial statements.
HPC may require submitting certain post-transaction data and information for up to five years following the material change date. Such data collection significantly expands the power and task, including the ability to assess post-transaction impacts.
Expands the factors HPC may consider as part of the Cost and Market Impact Review by also reviewing [7]:
the size and market share of any corporate affiliates or significant equity investors of the provider or provider organization;
the inventory of health care resources maintained by the DPH; and
any related data or reports from the Office of Health Resource Planning.
Expands the scope of the HPC’s examination of costs, prices, and cost trends, as follows [8]:
The HPC cost trends hearings will include an examination of any relevant impacts of significant equity investors, health care REITs, and MSOs on costs, prices, and cost trends. Stakeholders from these organizations associated with a provider organization will now be required to testify at the HPC’s annual cost trends hearing concerning: “health outcomes, prices charged to insurers and patients, staffing levels, clinical workflow, financial stability and ownership structure of an associated provider or provider organization, dividends paid out to investors, compensation including, but not limited to, base salaries, incentives, bonuses, stock options, deferred compensations, benefits and contingent payments to officers, managers and directors of provider organizations in the commonwealth acquired, owned or managed, in whole or in part, by said significant equity investors, health care real estate investment trusts or management services organizations.”
The HPC will utilize new data collected as part of the Registered Provider Organization process. The Act revised this process to require submissions from significant equity investors, health care real estate investment trusts, and management services organizations regarding ownership, governance, and organizational information.
Given the broad, sweeping nature of the changes, additional regulations and guidance should be expected.
[1] To be codified at MGL 6D, s. 1.
[2] To be codified at MGL 6D, s. 2.
[3] To be codified at MGL 6D, § 13.
[4] CITE TO EXISTING NMC FORM
[5] To be codified at MGL 6D, s. 13.
[6] To be codified at MGL 6D, s. 13.
[7] To be codified at MGL 6D, s. 13.
[8] To be codified at MGL 6D, ss. 8 and11.
5 Key Takeaways | SI’s Downtown ‘Cats Discuss Artificial Intelligence (AI)
Recently, we brought together over 100 alumni and parents of the St. Ignatius College Preparatory community, aka the Downtown (Wild)Cats, to discuss the impact of Artificial Intelligence (AI) on the Bay Area business community.
On a blustery evening in San Francisco, I was joined on a panel by fellow SI alumni Eurie Kim of Forerunner Ventures and Eric Valle of Foundry1 and by my Mintz colleague Terri Shieh-Newton. Thank you to my firm Mintz for hosting us.
There are a few great takeaways from the event:
What makes a company an “AI Company”?
The panel confirmed that you cannot just put “.ai” at the end of your web domain to be considered an AI company.
Eurie Kim shared that there are two buckets of AI companies (i) AI-boosted and (ii) AI-enabled.
Most tech companies in the Bay Area are AI-boosted in some way – it has become table stakes, like a website 25 years ago. The AI-enabled companies are doing things you could not do before, from AI personal assistants (Duckbill) to autonomous driving (Waymo).
What is the value of AI to our businesses?
In the future, companies will be infinitely more interesting using AI to accelerate growth and reduce costs.
Forerunner, who has successfully invested in direct-to-consumer darlings like Bonobos, Warby Parker, Oura, Away and Chime, is investing in companies using AI to win on quality.
Eurie explained that we do not need more information from companies on the internet, we need the answer. Eurie believes that AI can deliver on the era of personalization in consumer purchasing that we have been talking about for the last decade.
What are the limitations of AI?
The panel discussed that there is a difference between how AI can handle complex human problems and simple human problems. Right now, AI can replace humans for simple problems, like gathering all of the data you need to make a decision. But, AI has struggled to solve for the more complex human problems, like driving an 18-wheeler from New York to California.
This means that, we will need humans using AI to effectively solve complex human problems. Or, as NVIDIA CEO Jensen Huang says, “AI won’t take your job, it’s somebody using AI that will take your job.”
What is one of the most unique uses of AI today?
Terri Shieh-Newton shared a fascinating use of AI in life sciences called “Digital Twinning”. This is the use of a digital twin for the placebo group in a clinical trial. Terri explained that we would be able to see the effect of a drug being tested without testing it on humans. This reduces the cost and the number of people required to enroll in a clinical trial. It would also have a profound human effects because patients would not be disappointed at the end of the trial to learn that they were taking the placebo and not receiving the treatment.
Why is so much money being invested in AI companies?
Despite the still nascent AI market, a lot of investors are pouring money into building large language models (LLMs) and investing in AI startups.
Eric Valle noted that early in his career the tech market generally delivered outsized returns to investors, but the maturing market and competition among investors has moderated those returns. AI could be the kind of investment that could generate those returns 20x+ returns.
Eric also talked about the rise of venture studios like his Foundry1 in AI. Venture studios are a combination of accelerator, incubator and traditional funds, where the fund partners play a direct role in formulating the idea and navigating the fragile early stages. This venture studio model is great for AI because the studio can take small ideas and expand them exponentially – and then raise the substantial amount of money it takes to operationalize an AI company.
Retailers: Questions About 2024’s AI-Assisted Invention Guidance? The USPTO May Have Answers
In February 2024, we posted about the USPTO’s Inventorship Guidance for AI-assisted Inventions and how that guidance might affect a retailer in New USPTO AI-Assisted Invention Guidance Will Affect Retailers and Consumer Goods Companies. With a year now having passed, it is likely you have questions about the guidance.
In mid-January 2025, the USPTO released a series of FAQs relating to this guidance that may answer certain questions. Specifically, there are three questions and responses in the FAQs. The USPTO characterized these FAQs as being issued to “provide additional information for stakeholders and examiners on how inventorship is analyzed, including for artificial intelligence (AI)-assisted inventions.” The USPTO further stated that “[w]e issued the FAQs in response to feedback from stakeholders. The FAQs explain that the guidance does not create a heightened standard for inventorship when technologies like AI are used in the creation of an invention, and the inventorship analysis should focus on the human contribution to the conception of the invention.” The FAQs appear to stem, at least in part, from written comments the USPTO received from the public on the guidance.
The FAQs serve to clarify key issues, including that:
1) there is no heightened standard for inventorship of AI-assisted inventions;
2) examiners do not typically make inquiries into inventorship during patent examination and the guidance does not create any new standards or responsibilities on examiners in this regard; and
3) there is no additional duty to disclose information, beyond what is already mandated by existing rules and policies.
A key statement by the USPTO in the FAQ responses is: “The USPTO will continue to presume that the named inventor(s) in a patent application or patent are the actual inventor(s).”
Regardless of whether the USPTO will (most likely) not make an inventorship inquiry during patent examination, IP counsel should still ensure that appropriate inventorship inquiries are made during the patent application drafting process. A best practice is to maintain all applicable records after drafting to support an inventorship inquiry, which may not come until after a patent issues, such as during litigation.
While the FAQs may not address all questions about the AI inventorship guidance, they are a step towards demonstrating how the USPTO will handle AI related patent issues moving forward.
Pricing Considerations in the Aftermath of the California Wildfires
The devastating January 2025 wildfires in southern California prompted Governor Newsom to declare a state of emergency on January 7, 2025 for Los Angeles and Ventura counties. This triggered California laws around price gouging and pricing restrictions in the wake of the emergency. While other, overlapping states of emergency will impact how price restrictions are ultimately calculated and considered – including local emergencies, and a statewide emergency relating to the ongoing bird flu outbreak – that the unprecedented scale of the wildfires will undoubtedly lead to increased scrutiny of pricing practices during the immediate aftermath, recovery and rebuilding.
The California Penal Code prohibits selling, or offering for sale, covered products at a price more than 10% greater than the price offered for that good in the 30 days prior to the declaration of an emergency. While application and enforcement of the pricing restrictions can be complex, the key considerations to keep in mind are these.
When did price restrictions go into effect? January 7, 2025. The price restrictions immediately go into effect when the President of the United States, the Governor of California, or a city/county executive officer declare a state of emergency.
When do they expire? This will be a moving target in some places. The price limitations typically stay in effect for 30 days after the emergency declaration date, subject to extensions. For repair or reconstruction services or any services used in emergency cleanup, these typically stay in effect for an initial period of 180 days. Specifically for Los Angeles County, Governor Newson has already extended certain categories of pricing restrictions by executive order to remain in effect until January 7, 2026.
What is the price increase ceiling? 10% more than the price offered in the 30 days prior to the emergency declaration.
What if a seller starts selling a covered item only after a state of emergency is declared? That seller is prohibited from marking up the price of that item more than 50% of its costs.
Does this only apply to California-based businesses? No. The statute applies to all sellers, including manufacturers, wholesalers, individuals, distributors, and retailers, and to all kinds of sales.
What goods are covered? The statute covers a wide range of products such as: rental housing, building materials, gasoline, goods or services used for emergency cleanup, consumer food items, and medical supplies.
What are the potential consequences? Violations are criminally punishable by up to one year in jail and a fine up to $10,000 or civil penalties up to $2,500 per violation, injunctive relief, or mandatory restitution.
Where do they apply? Even when trigged by an emergency that is specifical to a particular geographic area, California Department of Justice interprets the statute to provide that the pricing restrictions are not restricted to the city or county where the emergency is declared, and that the statute is intended to prevent price gouging elsewhere in the state where this is increased consumer demand as a result of the emergency.
While the horizon for enforcement is long – the California statute provides a 4-year statute of limitations for bringing price gouging complaints – we have already seen the state eyeing enforcement opportunities. On January 22, 2025, the California Department of Justice (CDOJ) filed charges against a real estate agent. A couple who had lost their home in the wildfires applied to rent a property and were allegedly told the price would be raised 38% more than the prior advertised rate. The CDOJ has also announced that it has sent upwards of five hundred “warning letters” to hotels and landlords.
Considering the scope of pricing restrictions in place, and expected enforcement, businesses may want to consider additional diligence and documentation supporting compliance with pricing restrictions triggered by the California wildfires.
California Air Resources Board Solicits Input On California Greenhouse Gas Emissions Disclosure Laws
I recently published a post questioning the legality of the California Air Resources Board’s Enforcement Notice. The California legislature charged CARB with the responsibility of implementing SB 253 (Wiener) and SB 261 (Stern), both as amended by SB 219 (Wiener, Statutes of 2024). These bills, both enacted in 2023, require business entities formed under the laws of California, the laws of any other state of the United States or the District of Columbia, or under an act of the Congress of the United States to report specified greenhouse gas (GHG) emissions and climate related financial risks. Although these bills require disclosures by businesses meeting specified annual gross revenue thresholds, they will impose significant financial burdens on smaller businesses.
Last month, the CARB issued a notice soliciting public input concerning these bills. This is a prelude to formal rulemaking by the CARB. The deadline for comments is February 14, 2025. It remains to be seen, however, whether either of these bills will survive constitutional challenge. See As Foretold, California’s New Forced Speech Laws Are Being Challenged.
Michigan Flow-Through Entity Tax Election Deadline Extended
For tax years beginning on or after January 1, 2024, eligible Michigan taxpayers who wish to make the flow-through entity (FTE) tax election now have until the last day of the ninth month after the end of their tax year. For example, for a calendar year, FTE must file the election with the department on or before September 30, 2025, for the 2024 tax year. Before the amendment in House Bill 5022, the same entity would have had to file its FTE tax election by March 15, 2024.
Taxpayers who make or have made the FTE tax election, and reasonably expect to owe tax for the year, are required to file quarterly estimated returns and make payments. House Bill 5022 includes the following situations in which elective taxpayers will not be subject to penalties and interests:
Penalties and interest will not be assessed for tax years beginning on or after January 1, 2024, as long as the taxpayer submits four equal payments that total:
90% of the taxpayer’s current-year liability, or
100% of the taxpayer’s previous year’s liability.
Penalties and interest will not be assessed for tax years 2022 and 2023 as long as:
The preceding year’s tax liability was $20,000 or less, and
The taxpayer submitted four equal payments totaling the immediately preceding tax year’s tax liability.
Penalties and interest will not be assessed for any quarterly estimated payment due before the taxpayer makes the FTE tax election for that tax year.
A member may claim credits on their personal or corporate tax returns for FTE payments. Under House Bill 5022, for tax years beginning after January 1, 2024, the member’s share of FTE tax is creditable if the payment was made before the filing date of the annual return. This is an extension from the previous cutoff of the 15th day of the third month after the close of the FTE’s tax year.
CTA Update: Enforcement Remains Suspended Despite U.S. Supreme Court Granting Stay of Preliminary Injunction
Go-To Guide:
On Jan. 23, 2025, the U.S. Supreme Court granted the U.S. government’s request for a stay of the nationwide preliminary injunction of the CTA issued in Texas Top Cop Shop, Inc. v. McHenry.
The Supreme Court was not asked to address an injunction issued by another federal judge, which ordered preliminary relief to prevent CTA enforcement on Jan. 7, 2025 (Smith v. U.S. Department of the Treasury).
FinCEN confirmed that reporting companies under the CTA rulemaking are not currently required to file BOI reports and are not subject to liability if they fail to do so while the Smith order remains in force.
Given the rapidly changing landscape, reporting companies under the CTA rulemaking should continue to monitor CTA developments so they can be prepared to file Beneficial Ownership Information (BOI) reports if the injunction is once again stayed, lifted, or otherwise made ineffective (e.g., via FinCEN reversing its position).
On Jan. 23, 2025, the U.S. Supreme Court granted the U.S. government’s request for a stay (SCOTUS Order) of the nationwide preliminary injunction of the Corporate Transparency Act (CTA) issued by the U.S. District Court for the Eastern District of Texas in Texas Top Cop Shop, Inc. v. McHenry.1 According to the brief order, the stay remains in effect pending disposition of the appeal before the Fifth Circuit and subsequent disposition of a petition for a writ of certiorari, if any.
Oral arguments for the expedited Fifth Circuit appeal are scheduled for March 25, 2025.
Background
The status of the CTA has shifted multiple times since Dec. 3, 2024, when a Texas district court in Texas Top Cop Shop, Inc. v. McHenry (formerly Texas Top Cop Shop, Inc. v. Garland), preliminarily enjoined the CTA and its BOI reporting rule (Reporting Rule) on a nationwide basis, approximately four weeks ahead of a key Jan. 1, 2025, deadline. As we previously reported, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) appealed that ruling, and on Dec. 23, 2024, a motions panel of the U.S. Court of Appeal for the Fifth Circuit stayed the injunction, allowing the CTA to go back into effect. Three days following the stay, on Dec. 26, 2024, a different Fifth Circuit panel issued an order to vacate the motion panel’s stay, effectively reinstating the nationwide preliminary injunction against the CTA and the Reporting Rule. On Dec. 31, 2024, the U.S. government filed an emergency application with the Supreme Court to stay the preliminary injunction once again.
On Jan. 7, 2025, another federal judge of the U.S. District Court for the Eastern District of Texas ordered preliminary relief barring CTA enforcement in Smith v. U.S. Department of the Treasury.2 To date, the government has not appealed the ruling in Smith.
The SCOTUS Order
In response to the SCOTUS Order, FinCEN updated its website on Jan. 24, 2024, noting:
As a separate nationwide order issued by a different federal judge in Texas (Smith v. U.S. Department of the Treasury) still remains in place, reporting companies are not currently required to file beneficial ownership information with FinCEN despite the Supreme Court’s action in Texas Top Cop Shop [emphasis added]. Reporting companies also are not subject to liability if they fail to file this information while the Smith order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports.
Takeaways
No filings under the CTA are currently required by law, including the initial BOI reports that reporting companies formed or registered prior to 2024 would otherwise have been required to file by Jan. 13, 2025, pursuant to an extension that FinCEN granted on Dec. 27, 2024.
While enforcement of the CTA remains suspended, reporting companies and affected individuals should continue to monitor CTA developments and consider what steps they may need to take to be prepared to file their BOI reports in short order if the injunction is once again stayed, lifted, or otherwise made ineffective.
1 McHenry v. Texas Top Cop Shop, Inc., No. 24A653, 2025 WL 272062 (U.S. Jan. 23, 2025).
2 See Smith v. United States Dep’t of the Treasury, No. 6:24-CV-336-JDK, 2025 WL 41924 (E.D. Tex. Jan. 7, 2025)
New President Offers Opportunities for Local and Foreign Investors
On January 13th, 2025, President Sheinbaum presented the Mexico Plan (MP), which details tax incentives, provides for greater efficiency in administrative processes, and outlines investment goals for infrastructure related to energy, urban mobility, and housing, among others.
Nearshoring
Under the MP, the Mexican government intends to incentivize new investments that promote organizational training as well as innovation by encouraging relocation of companies and restructuring of supply chains related to manufacturing.
The MP enables accelerated depreciation of new investments in fixed assets (41% – 91%) as well as additional deductibility of expenses related to training and innovation (25% of the increase in expenses over the average of the last three fiscal years).
These new tax incentives will be subject to assessment by an Evaluation Committee that will certify compliance of investment milestones. The referred Committee will annually set the cap of incentives that compliant taxpayers may benefit from. The referred benefits will be available beginning January 22, 2025, and will apply to fixed assets acquired up to September 30, 2030, and to training and innovation expenses incurred up to and including tax year 2030.
Investment Zones
The MP promotes 12 new geographical investment areas (Tamaulipas, Puebla, AIFA-Tula, Bajío, Piedras Negras, Nuevo Laredo, Hermosillo, Puerto Lázaro Cárdenas, among others), in addition to those implemented by former President Lopez Obrador, by providing tax incentives to investors operating in Strategic Sectors (semiconductors, electronics, energy, logistics, tourism, agroindustry, infrastructure, IT, electromobility and automotive, medical devices, and pharmaceuticals), who relocate or open operations in these areas. Tax incentives available to qualifying companies include:
100% tax credit on income tax generated during the first three years.
A tax credit of 50% to 90% of the income tax generated during the following three fiscal years, which will be granted if the employment levels, to be determined in accordance with guidelines to be issued by the Ministry of Finance, are met.
Immediate 100% deduction of investments made during the first six years in new fixed assets used for production, excluding furniture, office equipment, automobiles, armored vehicles, and unidentifiable fixed assets.
100% tax credit of the VAT resulting from the sale of assets, rendering of services, or lease of assets between companies located within the investment areas.
These tax incentives are not applicable to taxpayers under the maquila regime; the optional regime for controlled groups; Real Estate Investment Trusts; or companies participating in cinematographic or theater production or distribution, music, dance, visual arts, or research and development of technology related to high performance sports.
Government Banks
To further incentivize companies operating in the outlined Strategic Sectors, the MP provides for Government banks to provide: (A) preferential loans (with competitive interest rates) to companies within the Strategic Sectors. The specific fund for these loans will be announced on February 7, 2025; (B) preferential long-term loan rates for small- and medium-sized companies to increase their working capital, technology, and exportation capabilities, enabling reverse factoring (supply chain finance) at an annual rate of 3.5%; (C) dedicated loans to incentivize acquisition of new technologies and machinery; (D) subsidies and loans to include Mexican incorporated companies (no limit on whether they are foreign owned) into international supply chains (e.g., automobile, aerospace, and electronics); and (E) preferential loan rates for long-term infrastructure projects (e.g., highways, airports, and telecommunications networks) in underserved areas.
IMMEX 4.0
The MP provides for the implementation of the IMMEX 4.0 Program to consolidate, within the Ministry of Economy, application processes to obtain authorization to operate under an IMMEX program (deferral of import duties on temporary imports) and VAT Certificate (100% credit of VAT on temporary imports). The referred consolidation is intended to significantly reduce application times (currently fluctuating for up to two years) and ease compliance with requirements.
Public Investment
Additionally, the MP creates a public investment project that prioritizes five specific sectors: Energy, PEMEX (State-Owned Petroleum Company), Water, Transportation and Mobility, and Public Housing.
Energy: US$23.4 billion will be allocated for electricity generation, transmission, and distribution; US$12.3 billion for new power plants; US$7.5 billion to strengthen the transmission network; and US$3.6 billion for the distribution network.
PEMEX:MX$2.07 trillion with an annual average of MX$345.5 billion will be allocated to strengthen exploration, production, and oil & gas.
Water: MX$20 billion will be invested in water projects in 2025, which will focus on cleaning up key rivers and modernizing irrigation systems covering 200,000 hectares of land. The primary watershed area includes the Lerma-Santiago, Atoyac, and Tula rivers. This section also includes the implementation of 16 infrastructure projects under the Mexican National Agreement for the Human Right to Water and Sustainability (as published on December 12th, 2024) that will include more than MX$16.4 billion of private investment.
Transportation and Mobility: To improve urban mobility and infrastructure, an investment in more than 3,000 km of railroads for passenger and cargo transportation is planned.
Public Housing: The plan contemplates the construction of one million homes (CONAVI and INFONAVIT) for which MX$513 billion will be allocated.
Additionally, the development of a National Technical Certification Program for 150,000 professionals and technicians per year is also being proposed as part of public investment in strategic sectors.
This entire investment plan, along with the adjustments in government budgets, represents a unique opportunity for foreign suppliers that engage in these strategic areas, to be considered by the Mexican Government for public procurement. Therefore, in addition to the benefits that this investment model offers suppliers eligible for public/state-banking funding and other incentives, this investment scheme results into an attractive option for both parties.
Digitalization and Efficiency in Administrative Processes
The MP proposes a complete digitalization and on-line channel for administrative applications to promote efficiency in obtaining authorizations for participation in commercial programs and investment projects. A launch date for this has not been announced yet. Our Firm has the team and capabilities to assist our clients in the design and implementation of strategies that allow them to benefit from the development of the proposed measures under the Mexico Plan.