Almost two years after the announcement of the biggest accounting fraud in Brazilian history, the feeling of impunity seems to increase. Minority shareholders complain about the lack of transparency in the investigation process and the lack of effective measures to prevent such practices in the future and ensure that those responsible are truly punished.
Despite the suspension of Americanas from the Novo Mercado – a segment for the trading of shares of companies that voluntarily adopt additional corporate governance practices beyond the legislation – since November 2023, the sanction is provisional. The Company failed to comply with several requirements imposed by B3. The Brazilian stock exchange, in turn, did not set a date to correct the irregularities.
In September of this year, the Company requested permanent exclusion from the Company. The request is justified by the fact that the retailer did not meet some of B3’s requirements to ensure transparency in its management, necessary for its continued presence in the suspended segment.
“B3 did not set a deadline for Americanas to comply with the determinations. However, article 59 of the Regulation states that in case of non-compliance with regulatory obligations for a period longer than nine months, a compulsory exit sanction from Novo Mercado should be imposed, through the conduct of a public offering to acquire shares,” explains lawyer Luís Fernando Guerrero, from the Lobo de Rizzo Law Firm, representing the Institute.
The B3 also decided to hold various members of the Americanas Board accountable, including partners and family members of Group 3G. However, the final decisions, after appeal, have not yet been made public.
The Securities and Exchange Commission (CVM) has just announced the acquittal of the former president of Americanas, Sergio Rial, of charges related to the disclosure of information after the discovery of an accounting shortfall and has condemned João Guerra, who took over as interim CEO shortly after Rial’s resignation.
The agency also concluded Administrative Inquiry 19957.000946/2023-08, related to the use of privileged information in the trading of assets issued by directors and employees of Americanas before the disclosure of the ‘accounting inconsistencies’ through the Relevant Fact on 11/1/2023. The decision is important so that, subsequently, the Federal Public Ministry (MPF) can initiate criminal action for Insider Trading.
Another important event was the dilution of minority shareholders through the expansion of the share capital. With the adjustment that benefited only banks, there was even more concentration of decision-making power within the Company. ‘Americanas were already controlled by a small and well-known group of people who led its journey up to this point. Now, they are practically the absolute owners of the Company,’ says Eduardo Silva, President of the Company Institute, who defends the minority shareholders, referring to a capital concentration of around 50% of the voting capital.
With this amount of votes, it was easy to approve the prosecution of some former Directors, supposedly exempting the Company and its controllers, even though the fraud was systemic and developed over about a decade, not being noticed by Internal Control, Fiscal Council, Board of Directors, and External Auditors.
The vote of Americanas clashes with what B3 established about a year ago. Several Directors, Audit Committee Members, even controllers and their family members were personally held responsible for not exercising proper control and supervision over the Company. ‘The management of other people’s resources imposes fiduciary duties on controllers in relation to other shareholders who must safeguard these values, which did not happen in this case,’ says Silva.
The decisions of CVM, B3, the Federal Public Ministry, and even the Americanas Assembly to prosecute some of the Former Directors will not, however, affect the claims of minority shareholders. By virtue of a clause in the Bylaws, compensation can only be sought through arbitration.
The claim of minority shareholders does not refer to any rights that may be confused with Company losses or share devaluation. ‘In fact – explains Silva – investors wouldn’t have even acquired the papers had they known the true state of the Company. All information from the Company to the market was deeply manipulated and distorted, leading to biased purchasing decisions that need to have their nullity recognized.’
