Almost two years after the announcement of the largest accounting fraud in Brazilian history, the feeling of impunity seems to increase. The minorities complain about the lack of transparency in the investigation process and effective measures to prevent such practices in the future and that those responsible are truly punished
Despite the suspension of Americanas, since November 2023, of the New Market – segment intended for the trading of shares of companies that adopt, voluntarily, additional corporate governance practices beyond those required by legislation –the sanction is provisional. The company failed to comply with several of the requirements imposed by B3. The Brazilian stock market, in turn, did not set a date to correct the irregularities
In September of this year, the Instituto Empresa sent to B3 the request for the definitive exclusion of the Company. The request is justified by the fact that the retailer has not met some of the requirements set by B3 to ensure the transparency of its management, necessary for the continuity 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 states that, in case of non-compliance with regulatory obligations for a period exceeding nine months, a compulsory exit sanction from the New Market should be imposed, through the execution of a public offer for the acquisition of shares, explains the lawyer Luís Fernando Guerrero, of Lobo de Rizzo Office, what the Institute represents
B3 also decided to hold several members of the Americanas Board accountable, including partners and family members of Group 3 G. But the final decisions, after appeal, have not yet been made public
The CVM has just announced that it acquitted the former president of Americanas, Sergio Rial, the accusations related to the disclosure of information after the discovery of an accounting shortfall that convicted João Guerra, who took over as interim CEO shortly after Rial's resignation
The autarchy also concluded Administrative Inquiry 19957.000946/2023-08, relacionado ao uso de informação privilegiada na negociação de ativos de emissão por diretores e funcionários da Americanas antes da divulgação das “inconsistências contábeis” por meio do Fato Relevante em 11/1/2023. The decision is important for 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 due to the very increase in share capital. With the adjustment that only benefited the banks, there was an even greater concentration of decision-making power within the Company. "Americanas were already controlled by a small and well-known group of people who led their journey to this point". Now, they are practically absolute owners of the Company, affirms Eduardo Silva, President of the Business Institute, that defends minorities, referring to a concentration of capital of around 50% of the voting capital
With this amount of votes, it was easy to approve that some of the former Directors be prosecuted, supposedly exempting the Company and its controllers,even though the fraud was systemic and developed over about a decade, not having been noticed by Internal Control, Fiscal Council, Board of Directors and External Auditors.
The voting of Americanas clashes with what B3 established about a year ago. Several Counselors, Members of the Audit Committee and even controllers and their relatives were held personally accountable for failing to exercise proper control and supervision over the Company. "The management of other people's resources imposes fiduciary duties on the controllers in relation to the other shareholders who must safeguard these values", what did not happen in the case, affirms Silva
The decisions of the CVM, from B3,of the Federal Public Ministry and even of the Assembly of Americanas to prosecute some of the former Directors, will not affect, however,the minority shareholders' claim. By virtue of a clause in the Statute, only through arbitration can one seek compensation
The request from the minority shareholders does not refer to any rights that may be confused with the Company's losses or with the devaluation of the shares. "In reality" – explain Silva – investors would not have even acquired the shares if they had known the true state of the Company. All the information from the Company to the market was deeply manipulated and distorted, generating biased purchasing decisions that need to have their nullity recognized.”
