Brazilian lawyer Caio Farah Rodriguez, a partner at the law firm Escritório Barros Pimentel Advogados, who recently participated in the negotiation of Odebrecht`s global leniency agreement, opened his conversation with a controversial statement. “Speaking clearly in Portuguese, the main problems regarding leniency agreements in Brazil are false problems, it`s more a question of power,” he said. As an example, he cited the largest leniency deal ever reached in Brazil with the Odebrecht Group, which provides for fines of R$7 billion. “However, the TCU expects losses of more than R$20 billion in public coffers. So there is a significant deficit. On the other hand, would it be possible to repair all the damage? We will soon have to set up a readmission system for leniency treaties,” he joked. Dantas suggested that full reimbursement, sometimes unrealistic, should be replaced by sanctions such as the mandatory transfer of control of the company. “In the United States, those responsible for fraud are forced to give up control of the company,” he said. The investigation, which is conducted by specially hired lawyers who have no prior relationship with the company, can take months or years. During the process, the company delivers documents (e.B emails), submits interim reports and, at the end, a final report.

“When the investigation is complete, lawyers and federal agents negotiate an agreement. The most important point is to understand the main motivation of the agents: they might be interested in obtaining information about other people involved, imposing a heavy fine or ensuring favorable media coverage. As a lawyer in the United States, it is important to have a good understanding of what the state really wants in each case and to propose the most appropriate solution for their client based on that understanding. You can even be creative,” Burck joked. This was the main conclusion of the seminar, during which the first panel was composed of various Brazilian state agencies and the second was composed of two American lawyers and a Brazilian lawyer. “In December 2017, here at the Fundação FHC, we organized a seminar on acordos de colaboração premiada, `Plea Bargaining`, which was also based on a comparative perspective between Brazil and the United States. Today we will investigate leniency agreements that are important not only for criminal lawyers, but also involve a number of other professionals. What lessons can be drawn from the North American experience and what directions have we taken in this area? ” asked Flávio Yarshell, a lawyer who works in the fields of consulting and litigation (justice and arbitration) and who is the mediator of the event. Bruno Dantas Nascimento (TCU) stressed that the diversity of authorities empowered to fight corruption was enshrined in the 1988 Constitution, which commemorates its 30th anniversary.

“In the Brazilian institutional architecture, three of the four institutions that are crucial in the fight against corruption – MP (Attorney General`s Office), TCU (General Office of Accounting) and AGU (Solicitor General) – have different constitutional tasks that cannot be changed by general law. While the Anti-Corruption Act appointed the Comptroller General to negotiate and conclude leniency agreements. Does this mean that MP, TCU and AGU will be automatically removed from the process? No, because an ordinary law must not interfere with constitutional jurisdiction,” the judge said. 2. Clearer parameters for the negotiation and approval of agreements: “With this in mind, the Federal Prosecutor has published Guideline No. 07, which aims to organize the always complex negotiations on leniency agreements.” In the second panel, North American attorney William “Bill” Burck, managing partner of the law firm Quinn Emanuel Urquhart & Sullivan, LLP in Washington D.C., gave a concise explanation of how leniency agreements work in his country. “There is a high degree of flexibility, there are not too many legal requirements that limit what can and cannot be done,” he said. 5. Definition of hypotheses for the cancellation of agreements already approved. According to the lawyer, the leniency agreements negotiated during the car wash had “the merit of imposing a change of capitalism on the capitalists”.

After denouncing the antitrust practices of some of the country`s largest construction companies in consultation with politicians from all sides, “some of these companies have entered into leniency agreements under conditions that put them in an unfavorable position in their market,” he said. “In the United States, more than 90% of the Securities and Exchange Commission`s (SEC) enforcement cases are resolved by agreements between the parties.