January 11, 2025, marks the two-year anniversary of the announcement of the largest accounting fraud in Brazilian history, but so far, no action has been taken to punish those responsible, much less to reimburse minority shareholders. The victims complain about the lack of transparency in the investigation process and the absence of effective measures to prevent such practices in the future and ensure exemplary punishment for the guilty.
After the controlling shareholders adopted the strategy of diluting minority shareholders through an increase in share capital, the banks benefited, and there was an even greater concentration of decision-making power within the Company.
The vote at the last General Meeting, held at the end of last year, even occurred after this process of minority dilution. Eduardo Silva, President of the Instituto Empresa, an association that defends minority shareholders, warns that with this level of votes, it was easy to approve the process against some former directors, allegedly exempting the Company and its controlling shareholders, even though the fraud was systemic and developed over nearly a decade, unnoticed by Internal Control, the Fiscal Council, the Board of Directors, and external auditors.
It is noteworthy that the vote by Americanas contradicts what B3 established about a year ago. Several board members, members of the Audit Committee, and even controlling shareholders and their families were held personally liable for failing to exercise proper control and oversight over the Company. ‘The management of others’ resources imposes fiduciary duties on controlling shareholders toward other shareholders, who must safeguard these values, which did not happen in this case,’ says Silva.
However, the decisions by CVM, B3, the Federal Public Prosecutor’s Office, and even Americanas’ General Meeting to prosecute some former directors will not affect the claims of minority shareholders. Due to a clause in the company’s bylaws, compensation can only be sought through arbitration.
The minority shareholders’ claim does not refer to any rights that might be confused with the Company’s losses or the depreciation of shares. If that were the case, the company could argue that making a profit or incurring losses is part of the market, and investors are aware of the risks involved. ‘In reality, investors would not have even bought the shares if they had known the true state of the Company. All information provided to the market was deeply manipulated and distorted, leading to biased purchase decisions that must be declared null and void,’ explains Silva.
Despite Americanas’ suspension from the Novo Mercado—a segment for trading shares of companies that voluntarily adopt additional corporate governance practices beyond legal requirements—since November 2023, the sanction is temporary. The Company failed to meet several requirements imposed by B3. The Brazilian stock exchange, in turn, has not set a deadline for correcting the irregularities.
This has drawn significant attention, so much so that in September of this year, Instituto Empresa sent B3 a request for the Company’s definitive exclusion. The request is justified by the retailer’s failure to comply with some of B3’s own requirements to ensure management transparency, necessary for continuity in the segment where it is suspended.
‘B3 did not set a deadline for Americanas to comply with the determinations. However, Article 59 of the Regulation stipulates that in case of non-compliance with regulatory obligations for more than nine months, a compulsory exit sanction from Novo Mercado should be imposed, along with a public offer to acquire shares,’ explains lawyer Luís Fernando Guerrero of Lobo de Rizzo, representing the Institute.
B3 also decided to hold several members of Americanas’ Board accountable, including partners and family members of Group 3G. However, final decisions, after appeal, have not yet been made public.
Meanwhile, the CVM recently announced that it has cleared former Americanas president Sergio Rial of charges related to the disclosure of information after the discovery of accounting irregularities and has convicted João Guerra, who took over as interim CEO immediately after Rial’s resignation.
The regulatory authority also concluded Administrative Inquiry 19957.000946/2023-08, related to the use of insider information in the trading of assets issued by Americanas directors and employees before the disclosure of ‘accounting inconsistencies’ through the Material Fact on January 11, 2023. This decision is important for the Federal Public Prosecutor’s Office (MPF) to later initiate criminal proceedings for the crime of insider trading.
