There are several surveys to determine the billionaire gap in Americans. The company filed for bankruptcy with a debt of BRL 43 billion, after admitting BRL 20 billion in “accounting mismatches”. Creditors have sued the courts to try to hold the company’s billionaire shareholders accountable. Understand who can be punished.
What investigations are underway?
The Securities and Exchange Commission has created a task force on the Americanas case, with eight cases pending. The investigations are carried out in cooperation with the federal police and the federal prosecutor. Council maintains a channel for receiving complaints on its website.
The processes investigate, among other points:
- any irregularities in the accounting information;
- possible irregularities in the dissemination of news, material facts and corporate press releases;
- if there has been a crime insiders business, that is, when the company’s shares are traded by someone with inside information.
THE MPF-SP it also verifies whether privileged information has been used. The company’s directors sold more than R$210 million in retailer shares in the second half of 2022, after the company announced the change of its chairman.
Minorities and creditors
- The bodies representing the minority shareholders have asked the Justice and B3 (Bolsa) to seek compensation from the company and the reference shareholders, the billionaires Jorge Paulo Lemann, Carlos Alberto Sicupira and Marcellus Telles, owners of operator 3G Capital.
- The big banks want to force the trio of shareholders to repay them with their personal assets. For this, they look for means to prove that there has been a fraud in the retailer.
- Bradesco went to court to ask for the filing of e-mail of directors, members of the board of directors and employees of the accounting department of the company. The court granted the request.
- The Americans created an internal committee to investigate the gap in their budgets. The composition of the committee has come under criticism from creditors, who claim that the committee members have a close connection to the company.
- The company says the committee intends to investigate the case “with absolute autonomy and impartiality”, and that the allegations against its members “are frivolous and unfounded”.
Was there fraud? Who can be punished?
The investigation is still ongoing and there is much to discover. One of the main points to clarify is whether the leak was caused by deliberate fraud or an error.
If it was fraud, you need to know who knew about it. Understand who can be held accountable:
- In the event of ascertainment of illicit behavior or non-compliance with the rules, the company may be required to pay compensation to the shareholders. It can also be punished by CVM with fines and penalties.
- Wanted, the company did not comment. Earlier, the Americans said they had created an independent committee “to investigate the circumstances that led to the inconsistencies in the accounting records.”
- Over the past five years, Americanas’ financial information has been audited by PwC (2019 to 2021) and KPMG (2017 to 2019), two of the most respected audits in the world.
- Retailer scandal could have ramifications for audits, experts say. PwC and KPMG said they were not commenting on the audited financial statements, due to contractual issues.
Audit is there to catch this sort of thing, and for some reason it didn’t.
Renata Oliveira, lawyer at Rayes & Fagundes
If fraud is proven, people who have worked at the company, especially those who handled the retailer’s finances, can be held liable.
This can occur at an administrative level, with impediment to working in other listed companies; in civil matters, with the payment of an indemnity; and also in the penal sphere, with imprisonment.
In this case, among the crimes that may be considered are:
- Insider trading: buying and selling shares using inside information. The penalty is imprisonment from one to eight years and a fine.
- White-collar workers: A set of crimes involving “the misleading or detention of a shareholder, investor or public body in relation to the functioning or financial situation of the company”. The penalty is imprisonment from two to six years and a fine.
The possibility of a person being arrested is considered remote by analysts.
Who ran the company?
In recent years, the retailer has been under the command of four executives. Chief among them is Miguel Gutierrez. He worked at Americanas for 30 years, 20 of which as CEO.
He left office at the end of 2022 to make way for Sergio Rial, who remained in office for less than ten days and brought the billionaire gap to light. The other three top executives remain with the company.
In recent years, a number of executives have headed the financial management of the company:
- Carlos Eduardo Rosalba Padilha – He worked in the company from 2006 to 2021 and is now a partner in a consulting firm. Wanted, the executive refused to speak.
- Timotheo Barros – He started in the company in 1996. Today he is the vice president in charge of physical stores, logistics and technology. Wanted, he did not comment on the case.
- André Covre – He joined the company at the beginning of 2023, together with Sergio Rial, and remained in office for less than ten days. He was replaced by Camille Loyo Faria, former chief financial officer of TIM.
The company’s major billionaire shareholders have been heavily criticized by creditors, who seek to hold them accountable for the breach. Big banks like Santander and Bradesco want to force the trio to repay them with their personal assets.
However, this is not a simple task. It will be necessary to demonstrate that the shareholders were aware of what was happening in the company’s financial statements.
By law, the liability of a company’s shareholders is limited to the value of their shares, which protects their personal assets.
The shareholder responds with his capital. If the stock goes to zero, it loses money, but that’s about it. Company law protects the shareholder.
Douglas Duek, CEO of Quist Investimentos, a company specializing in judicial recovery
What role do billionaire shareholders play in the company?
The three have owned Americanas for 40 years. They relinquished control of the company in a corporate reorganization last year, but continued as majority shareholders, i.e. with power to influence the management of the company.
Carlos Alberto Sicupira is a member of the board of directors and has been chairman of the board for years. Also on the board is Paulo Alberto Lemann, son of Jorge Paulo Lemann. The ongoing investigation will also examine the responsibilities of the board of directors in the case.
Note that the three shareholders they say they are unaware of any accounting maneuvers in the company.
We have never been aware of and would never admit accounting maneuvers or cover-ups in the company. Our performance has always been guided, over the decades, by ethical and legal rigour.
We had one of the largest and most respected independent audit firms in the world, PwC. She, in turn, made regular use of circulars, used to confirm Americanas’ accounting information with outside sources, including the banks that did business with the company. Neither these financial institutions nor PwC have ever reported any wrongdoing.
Jorge Paulo Lemann, Marcel Telles and Carlos Alberto Sicupira, in a note
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