Americanas votes that neither it nor its controllers are responsible for the frauds

Nearly two years after the largest accounting fraud in Brazilian history was announced, the sense of impunity seems to be growing. 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 Americanas' suspension from the Novo Mercado (New Market)—a segment designated for trading shares of companies that voluntarily adopt corporate governance practices beyond those required by law—since November 2023, the sanction is provisional. The company failed to comply with several of the requirements imposed by B3. The Brazilian stock exchange, in turn, has not set a date to correct the irregularities.

In September of this year, the Instituto Empresa sent a request to B3 for the Company's permanent delisting. The request is justified by the fact that the retailer has not met some of B3's own requirements to ensure the transparency of its management, which are necessary for its continued existence in the segment in which it is suspended.  

"B3 did not set a deadline for Americanas to comply with the determinations. However, Article 59 of the Regulation provides that, in the event of non-compliance with regulatory obligations for a period exceeding nine months, a penalty of compulsory delisting from the Novo Mercado must be imposed, through a public offering for the acquisition of shares," explains attorney Luís Fernando Guerrero, from the Lobo de Rizzo Law Firm, who represents the Institute.

B3 also decided to hold several members of the Americanas Board of Directors accountable, including partners and family members of Grupo 3G. However, the final decisions, after an appeal, have not yet been made public.

The CVM has just announced that it has acquitted the former president of Americanas, Sergio Rial, of charges related to the disclosure of information after the discovery of an accounting breach and that it has convicted 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 issued assets by directors and employees of Americanas before the disclosure of the “accounting inconsistencies” through the Material Fact on January 11, 2023. The decision is important so that, subsequently, the Federal Public Ministry (MPF) can initiate criminal proceedings for the crime of Insider trading.

Another important event was the dilution of minority shareholders due to the capital increase itself. With the adjustment, which benefited only the banks, there was an even greater concentration of decision-making power within the company. "Americanas was already controlled by a small, well-known group of individuals who guided its path to this point. Now, they practically own the company outright," says Eduardo Silva, President of Instituto Empresa, which advocates for minority shareholders, referring to a capital concentration of approximately 50% of the voting capital.

With this number of votes, it was easy to approve the prosecution of some of the former directors, supposedly exempting the Company and its controllers, even though the fraud was systemic and had been ongoing for about a decade, and had not been noticed by Internal Control, the Fiscal Council, the Board of Directors and External Auditors. 

Americanas' vote clashes with what B3 established about a year ago. Several board members, audit committee members, and even controlling shareholders and their families were held personally liable for failing to exercise adequate control and oversight over the company. "Managing third-party assets imposes fiduciary duties on controlling shareholders toward the other shareholders, who must safeguard these assets, which did not happen in this case," states Silva.

The decisions of the CVM, B3, the Federal Public Prosecutor's Office, and even the Americanas Assembly to prosecute some of the former directors will not, however, affect the minority shareholders' claims. Under a clause in the Bylaws, compensation can only be sought through arbitration.

The minority shareholders' request does not refer to any rights that could be confused with the Company's losses or the devaluation of the shares. "In reality," Silva explains, "the investors would not even have purchased the shares if they had known the Company's true state. All of the Company's information to the market was deeply manipulated and distorted, generating flawed purchasing decisions that must be declared null and void."