A specialist in corporate integrity, anti-corruption compliance and corporate governance, Renato conducts internal investigations, represents our clients in administrative inquiries and disciplinary procedures, and assists with negotiating leniency agreements.
Renato develops compliance and training programs, conducts anti-corruption due diligence procedures and advises on contractual obligations, corporate governance, and information disclosure to capital markets stemming from internal and government investigations or other related government requirements.
Bachelor of Laws – Universidade de São Paulo (USP)
Postgraduate Degree in Economic Law, Fundação Getulio Vargas (FGV)
Análise Advocacia 500 – Compliance (2018-2021), Pharmaceutical Sector (2019, 2021), Insurance (2021) and São Paulo (2020-2021)
Chambers Global – Compliance (2018-2022)
Chambers Brazil (formerly Chambers Latin America) – Compliance (2019-2022)
IFLR 1000 – Financial and Corporate – M&A (2016)
Latin Lawyer 250 – Anti-Corruption Investigations and Compliance (2020-2021)
The Legal 500 – Corporate/M&A (2013-2016) and Compliance (2019)
Who’s Who Legal Global – Investigations (2019-2022)
Who’s Who Legal Brazil – Business Crime Defense & Investigations (2017-2021)
Who’s Who Legal Thought Leaders – Brazil – Business Crime Defense & Investigations (2021)
Único. The Mattos Filho news portal
Mattos Filho in the media
The 5th Chamber for Coordination and Review of the Brazilian Federal Prosecution Office (5th CCR) has issued a technical note in defense of the adhesion of individuals to leniency agreements entered by companies. Although not binding, the document seeks to guide the work of federal prosecutors and provide greater legal certainty to individuals.
According to the technical note, the need to establish guidelines on the subject stems from limitations imposed by the Brazilian Anti-Corruption Law (Law No. 12,846/2013), which made leniency agreements available only to companies, except in case of corporate veil lifting (article 14). The 5th CCR states that allowing individuals to adhere to these agreements helps to standardize the civil and criminal activities of the Brazilian Federal Prosecution Office (MPF) in combating corruption.
Another measure defended by the 5th CCR to standardize leniency agreements concerns the concentration of investigations in a single prosecutor, even if the relevant facts occurred in different locations. The 5th CCR argues that, with respect to the constitutional principle of unity of the MPF, an agreement that was executed and approved must be observed by the other members of the institution, who should not challenge its validity and effectiveness.
The document highlights that illegal acts covered by leniency agreements entered with companies are necessarily committed by individuals (such as shareholders, executives, employees, representatives or contractors), and allowing them to participate in the negotiation process may significantly increase the understanding of the facts and leverage investigative activities.
Regarding the legal possibility of extending agreements to individuals, the 5th CCR explains that, although there is no express legal provision, it meets the legal objectives set out in the Brazilian Anti-Corruption Law, which is corroborated by the amendments introduced by the Anti-Crime Package (Law No. 13,964/2019) that created the Civil Non-Persecution Agreement and amended the Administrative Improbity Law (Law No. 8,429/1992). The 5th CCR also points out that the topic has already been the subject of the MPF’s Guidelines No. 7/2017 and No. 01/2018, the latter published jointly with the 2nd Chamber for Coordination and Review, as well as presents information on agreements already approved by the 5th CCR that provided for the adhesion of individuals.
Finally, the 5th CCR emphasized that the non-extension of the leniency agreement to individuals represents an obstacle to the efficiency and development of investigations. On the other hand, among the risks involved, the 5th CCR highlights the potential conflict of interest between legal entities and individuals who have committed the illegal acts, by not finding express provision of law to integrate the same process of negotiation and collaboration with the authorities.
The full technical note is available on the MPF’s website.
Areas of expertise
Despite having taken steps to fight corruption in recent years, according to widely used corruption metrics, it remains one of Brazil’s main challenges. Brazil ranked 105 out of 180 countries assessed in Transparency International’s 2018 Corruption Perceptions Index, with a score of 35 out of 100 on a zero (highly corrupt) to 100 (largely law abiding) scale. Brazil has fallen five points since 2016, when it scored 40 points, reaching its lowest mark since 2012. The World Bank’s Worldwide Governance Indicator for the control of corruption has also shown a decline in the past few years. This metric ranges from zero (lowest control over corruption) to 100 (highest control over corruption). Brazil scored 36.06% in 2017, its lowest score since 1996 (when the assessment was first conducted). Findings from the 2017 Global Corruption Barometer are no different:
78% of respondents believed that the level of corruption in the country had increased;
56% considered it to be a serious problem; and
47% felt that the government was “doing badly” in its fight against corruption.
Areas of expertise
On December 26, 2018, the Office of the Federal Comptroller General (“CGU“) released a Practical Guide of Calculation of Fines, establishing guidance to Commissions responsible for Administrative Enforcement Proceedings (in Portuguese, Comissões de Processo Administrativo de Responsabilização or CPAR) within the Federal Executive Branch to calculate the fine contemplated by Law No. 12,846/2013 (the Anticorruption Law).
The Practical Guide contains several recommendations. In particular, it contemplates levels for the revenue percentages indicated in Articles 17 and 18 of Decree No. 8,420/2015 (the Anticorruption Decree), which regulates the Anticorruption Law, as summarized below.
In addition to the percentage levels, the CGU expressed an important view regarding the 1% reduction of the fine in case a violation is not consummated, as provided in item I of Article 18 of the Anticorruption Decree.
According to the Practical Guide, non-consummation would not be a mitigating factor, but an exemption of liability. The Practical Guide concludes that, “As it seems, the legislator intended to provide a mitigating factor in case the legal entity does not achieve the expected result by means of the harmful act”. However, because the wording of the law states “no consummation of a violation”, the fine will be applied irrespective of whether or not the legal entity has achieved the desired result. In this regard, the mere offer of undue advantage amounts in and of itself to a violation.
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