Almost two years after the announcement of the biggest accounting fraud in Brazilian history, the feeling of impunity seems to be growing. Minority shareholders complain about the lack of transparency in the investigation process and effective measures to prevent such practices in the future and ensure that those responsible are truly punished.
Despite the suspension of Americanas, since November 2023, from the Novo Mercado – a segment dedicated to the trading of shares of companies that voluntarily adopt additional corporate governance practices beyond the legislation – the sanction is provisional. The Company failed to comply with several of the 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 Empresa Institute submitted a request to B3 for the definitive exclusion of the Company. The request is justified by the fact that the retailer has not fulfilled some of B3's own requirements to ensure transparency in its management, which are necessary for the continuation 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 provides that, in the event of non-compliance with regulatory obligations for a period exceeding nine months, a sanction of compulsory exit from the Novo Mercado must be imposed, through a public offering for the acquisition of shares”, explains lawyer Luís Fernando Guerrero, from the Lobo de Rizzo Office, which represents the Institute.
B3 also decided to hold several members of the Board of Americanas accountable, including partners and family members of Grupo 3G. However, the final decisions, after 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 autonomous agency also concluded Administrative Inquiry 19957.000946/2023-08, related to the use of insider information in the trading of issuance assets by directors and employees of Americanas before the disclosure of the "accounting inconsistencies" through the Material Fact on 01/11/2023. The decision is important so that, subsequently, the Federal Public Prosecutor's Office (MPF) initiates criminal proceedings for the crime of Insider trading.
Another important event was the dilution of minority shareholders through the company's own capital increase. With the adjustment that benefited only the banks, there was an even greater concentration of decision-making power within the Company. "The Americanas were already controlled by a small and well-known group of people who guided their journey up to here. Now, they are practically the absolute owners of the Company," says Eduardo Silva, President of the Institute of Business, who defends 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 of the former Directors, supposedly exonerating the Company and its controllers, even though the fraud was systemic and developed over about a decade, going unnoticed by Internal Control, the Fiscal Council, the Board of Directors, and External Auditors.
The Americanas vote clashes with what B3 established about a year ago. Several Board Members, Audit Committee Members, and even controllers and their family members were personally held responsible for not exercising proper control and supervision over the Company. "The management of third-party resources imposes fiduciary duties on controllers regarding other shareholders who must safeguard these values, which did not happen in this case," says Silva.
The decisions of the CVM, B3, the Federal Public Ministry, and even the Americanas Assembly to prosecute some of the former directors will not, however, affect the minority shareholders' plea. By clause of the Statute, compensation can only be claimed through arbitration.
The minority shareholders' request does not refer to any rights that could be confused with damages to the Company or with the devaluation of the shares. "In reality – explains Silva – investors would not have even purchased the securities if they had known the true state of the Company. All the Company's information to the market was deeply manipulated and distorted, leading to biased purchase decisions that need to be declared null and void."
