Immunity & Sanctions

Last verified on Sunday 24th May 2020

Immunity & Sanctions: Brazil

José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Lefosse Advogados

Immunity or a 100 per cent reduction in sanctions

1. What benefits are available to the first applicant to qualify?

Brazil

The first applicant to qualify for the Brazilian competition authority’s (CADE) leniency programme is eligible to full immunity from sanctions, or to a reduction of up to 66 per cent in the applicable fines.

The sanctions provided for under Law No. 12,529/2011 include:

  • for companies, fines of up to 20 per cent of the revenues (turnover), in the year before the investigation, in the sector of activity affected by the conduct, as well as fines for individuals and other types of legal entities (such as trade associations);
  • “name and shame” publications and listings; and
  • prohibition to contract with the government on federal, state and local levels (debarment).

Individuals can also be debarred from officer positions for up to five years, and CADE has powers to impose any additional obligations it believes are required to eliminate the anticompetitive effects of the infringement.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

2. Do the protections extend to current and former officers, directors and employees?

Brazil

Yes, as long as the individuals also cooperate with the investigation and sign the legally binding document (ie, the leniency agreement) that grants immunity to the company.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

3. Is immunity available after an investigation begins?

Brazil

Full immunity is only available if the authority does not have prior knowledge of the reported conduct. A fine reduction of up to 66 per cent may be available if the authority finds the collaboration to be valuable for an ongoing investigation.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

4. What are the eligibility requirements before an investigation begins?

Brazil

The list of requirements is relatively straightforward. An applicant must:

  • be the first to report the alleged conduct;
  • terminate its involvement in the conduct;
  • confess its participation in the infringement; and
  • cooperate fully with the investigation, through the identification of other participants involved in the alleged infringement, and the submission of information and documents that prove the alleged conduct.

The authority can only grant immunity or a fine reduction if it does not have, at the time of the application, sufficient evidence to secure a finding of liability against the applicant and other companies or individuals involved in the conduct.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

5. What are the eligibility requirements after an investigation begins?

Brazil

There is no difference in the eligibility requirements, but full immunity is only available if the authority does not have prior knowledge of the reported conduct.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

6. Will the applicant have to admit to a violation of law?

Brazil

Yes, confessing to participating in an infringement is an express statutory eligibility requirement.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

7. Is immunity available to an applicant that admits exchanging commercially sensitive information with a competitor but does not admit entering into an agreement to fix prices or allocate markets?

Brazil

Under Brazilian law, the authority can grant immunity to any type of competition infringement. As a matter of policy, however, CADE has historically awarded immunity only to “hardcore” cartels; only more recently CADE has granted immunity to applicants reporting alleged infringements involving only information exchange practices (see cases No. 08700.003451/2017-70 and No. 08700.000171/2019-71).

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

8. Is immunity available to an applicant that admits entering into a vertical price-fixing agreement if that agreement does not also include horizontal collusion?

Brazil

See response to question 7. In theory, immunity is available for those types of cases, but, so far, no publicly available investigation has started on the basis of immunity granted to an applicant reporting vertical conduct.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

9. Is immunity available to an applicant that admits entering into an agreement not to solicit or hire another company's employees ("no-poach" agreements)?

Brazil

See question 7. In theory, immunity is available for those types of cases. To date, however, CADE has never investigated cases relating to no-poach agreements.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

10. Are ringleaders or initiators of the conduct eligible?

Brazil

Yes, ringleaders or initiators are eligible for immunity; there are currently no restrictions whatsoever. Applicants must be aware, however, that the scrutiny over the contents of a full cooperation is likely to be increased in ringleaders’ applications.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

11. When must the applicant terminate its involvement in the conduct?

Brazil

The applicant must terminate its involvement in the conduct by the time of the application.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

12. What constitutes termination of the conduct?

Brazil

There are no statutory provisions neither guidance from CADE about the meaning of terminating involvement in the conduct, but it should be interpreted broadly. As a result, applicant should adopt all means necessary to stop from participating in any act that would contribute to the planning or execution of the reported conduct.

In addition, immunity is conditioned upon the signing of a legally binding document between the applicant and CADE (the Leniency Agreement); this document necessarily contains a representation from the applicant assuring it terminated its involvement in the conduct.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

13. Will the applicant be required to make restitution to victims?

Brazil

Restitution to victims is not a requirement for immunity or reduction of fines in Brazil, but considering the applicant has to admit to a violation of law to be eligible for immunity, damage claims are likely a potential side effect of immunity application. There is currently a bill in the Brazilian Congress that seeks to mitigate the exposure of immunity applicants or beneficiaries from potential follow-on damage claims (see Bill no. 11,275/2018).

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

14. Can more than one applicant qualify for immunity?

Brazil

No. See answers regarding employees, directors and officers under question 2, and “second-in” fine reductions under questions 49 and 52.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

15. Can an applicant qualify if one of its employees reports the conduct to the authority first?

Brazil

No, a company cannot qualify for immunity if an employee, director or officer blows the whistle first (article 197, §3 of CADE’s Internal Regulations). Immunity is only available to first comers, regardless if individuals or legal entities.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

16. Does the afforded protection extend to any non-antitrust infringements?

Brazil

Yes, in the case of individuals: by statute, individuals cannot be prosecuted for cartel crimes (bid rigging included) and other accessory offences.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Immunity application and marker process

17. What confidentiality assurances are given to the first applicant to report?

Brazil

CADE’s internal regulations set forth strict rules regarding confidentiality of the proposal, including a firewall – both physical regarding documents and in terms of personnel function – within the authority (excluding the investigations personnel from accessing leniency or immunity applications).

In addition, the law provides that a rejected application cannot be used in any case or interpreted negatively against the applicant.

See question 31 for information about access to documents from third-parties (eg, damage plaintiffs).

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

18. Does the authority publish guidance regarding the application of the programme?

Brazil

Yes, CADE publishes and updates a very thorough and detailed document (available at www.cade.gov.br/acesso-a-informacao/publicacoes-institucionais/guias_do_Cade/GuidelinesCADEsAntitrustLeniencyProgram.pdf).

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

19. Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

Brazil

CADE’s rules regarding the leniency programme are usually seen as in line with most jurisdictions.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

20. What is the initial process for making an application?

Brazil

The applicant must contact CADE’s General Superintendency Chief of Staff to obtain a marker. The marker assures the applicant is the first in and is a candidate for immunity. If the marker is available, the Chief of Staff will issue a confirmation letter, and the applicant will be able to start the “proffer” phase of the application.

Once a marker is granted, the authority will set a deadline for the proffer phase and the leniency agreement proposal (generally 30 to 45 days), which can be extended on a case-by-case basis.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

21. What information is required to secure a marker?

Brazil

The contents may vary on a case by case basis, but the minimum requirements for a marker involve:

  • identification of the applicant, and a minimum identification of other infringers known at time of the proposal;
  • the products and geographic areas involved in the alleged conduct; and
  • a brief description of the alleged conduct.

Anonymous markers (ie, without the identification of the applicant) are usually not accepted.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

22. How much time will an applicant have to perfect its marker?

Brazil

Without the bare minimum required information, the authority is not capable of confirming eligibility of the applicant or practice and, thus, no marker will be issued.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

23. Can the deadline for perfecting the marker be extended?

Brazil

See answer to question 22.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

24. What is required to perfect the marker?

Brazil

See answer to question 21.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

25. Can the scope of the marker be expanded if additional information is discovered by the applicant?

Brazil

Yes, the scope of the marker can be expanded as long as the eligibility requirements for immunity are met, and the applicant is acting in good-faith. If the new/additional information provided by the applicant indicates a different conduct, discussions on the availability of a new marker should start.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Immunity cooperation obligations

26. Can an applicant lose its marker if a second applicant comes forward with better information?

Brazil

No. The authority will only start discussions (the "proffer phase) with the second comer in case the applicant loses the marker, either by withdrawing or by not being able to meet the cooperation requirements (the identification of other participants, and the offer of information and documents that prove the alleged conduct).

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

27. What if the applicant’s investigation reveals that no violation exists?

Brazil

The applicant can withdraw the marker and any documents submitted to the authority. The law provides that a rejected application cannot be used in any case nor interpreted negatively against the applicant.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

28. What if the authority decides not to investigate?

Brazil

There is debate as to the extension of prosecutorial discretion and enforcement priorities under Brazilian law, so it is extremely rare for the authority to simply decline to investigate a conduct once the evidence is properly presented by the applicant. If, however, the authority is not convinced about the quality of the evidence produced by the applicant, it should reject the application, on the grounds that the applicant failed to meet the cooperation requirement (the identification of other participants, and the offer of information and documents that prove the alleged conduct).

The law provides that a rejected application cannot be used in any case nor interpreted negatively against the applicant.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

29. What is the applicant required to produce?

Brazil

The applicant should provide the identification of other participants, details on the reported violation (purpose, duration, products or services involved, etc) and the offer of information and documents that prove the alleged conduct.

The documents usually accepted by the General Superintendency are:

  • emails or other written communications (for instance, in a cartel infringement, CADE accepts either emails exchanged between competitors or between individuals of the same company, describing the illegal arrangements);
  • exchange of electronic messages by text and/or voice (SMS, WhatsApp, Skype, etc);
  • handwritten notes;
  • recordings;
  • spreadsheets;
  • proof of meetings (minutes, Outlook appointments, reservation of meeting rooms, hotel reservations, credit card bills, travel expenses statements, itinerary electronic record, etc); and
  • telephone bills, among others.

The authority may also request interviews with officers and employees of the applicant to obtain additional information and details concerning the reported infringement and documents submitted to CADE.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

30. Will the applicant be required to make a written confession?

Brazil

Yes, it is a statutory requirement that the applicant “confesses its participation in the reported unlawful conduct”.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

31. Can third parties obtain access to the materials provided by the applicant?

Brazil

Yes, but under very limited circumstances. These include: (i) a judicial decision; (ii) an authorisation granted by the applicant and by CADE, if access is proven not to jeopardise the investigation; and (iii) a statutory requirement. As a rule, a complete version of the applicant’s report on the anticompetitive conduct and most evidence will be kept confidential to preserve and encourage future whistle-blowers.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Granting immunity

32. Will the applicant lose its protection if one or more of its employees refuses to cooperate?

Brazil

No. As long as the applicant is acting in good faith and it is able to provide cooperation that allows for the identification of other infringers and the submission of documents and information capable of proving the alleged conduct took place, collaboration – or refusal to collaborate – from one or more of its employees is not relevant for protection.

The individuals, however, might lose the protection offered against fines and criminal sanctions.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

33. Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

Brazil

Not necessarily, but this is a very likely scenario in case the employee engages in obstructive conduct after the application is made and without a timely response by the applicant. If the employee acts obstructively before the application, the applicant could dismiss this employee and apply for the leniency agreement as long as it still meets the requirements provided in question 4.   

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

34. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Brazil

The applicant is required to offer any documents and information that may be used to prove the reported conduct. If the applicant has only classified documents, it may waive the privilege and submit them to CADE.  

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Individual immunity or leniency

35. Does the existence of an effective compliance programme affect whether an applicant meets the eligibility requirements?

Brazil

No. However, the existence of an effective compliance programme increases the chances of a timely identification and remediation of infringements (including the application for immunity).

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

36. Does the authority consider the existence of an effective compliance programme at the time it becomes aware of an infringement when determining the leniency benefits granted?

Brazil

No, there is no such provision on the law or CADE’s regulations. See question 52.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

37. Will the applicant be required to implement or enhance a compliance programme to obtain leniency benefits?

Brazil

This is not a statutory requirement nor a practice from CADE. However, considering that the applicant must cease the infringement to apply for the leniency agreement (and it may lose its benefits if the infringement continues), the implementation or enhancement of the compliance programme is a common outcome of an immunity application.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

38. How does the authority announce its promise not to charge or sanction?

Brazil

The applicant and the CADE – through its General Superintendency enter into a legally binding agreement (the Leniency Agreement), which formalises the decision to grant immunity or fine reduction. At the end of the investigation, the Board (Tribunal) of CADE must confirm the full performance of this agreement. A model leniency agreement in English is available at http://www.cade.gov.br/assuntos/programa-de-leniencia/modelo_acordo-de-leniencia_bilingue.pdf.

Usually, the authority does not publicly disclose the signing of the leniency agreement or the name of the applicant.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

39. Does the authority put its commitment in writing?

Brazil

Yes. As mentioned in question 38, leniency agreement executed by and between the authority and the applicants (corporation and individuals) just before the investigation is initiated.  

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

40. Who is given access to the document?

Brazil

The applicant and the authority, initially. If formal charges are brought against third parties on the basis of the collaboration obtained through the leniency programme, then the defendants have access to that document.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

41. Does the authority publish a model letter for conferring immunity?

Brazil

Yes, a model letter is publicly available on the authority’s website.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

42. Is there an individual immunity programme?

Brazil

Yes, it works under the same rules, albeit an individual application does not extend the immunity protection to the legal entity.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

43. What is the process for applying?

Brazil

It works under the same rules as the general immunity programme.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

44. What are the criteria for qualifying?

Brazil

They are the same as the rules for the general immunity programme.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Revocation of immunity

45. On what basis can corporate immunity be revoked?

Brazil

Once the application is accepted through the execution of the leniency agreement, immunity can only be revoked in case the applicant fails to comply with its cooperation obligations. 

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

46. When can it be revoked?

Brazil

CADE can revoke the immunity benefits at any time prior to the end of the investigation (see question 38), if the Board (Tribunal) of CADE confirms failure of the applicant or beneficiary to cooperate with the investigation. So far, however, there have been no known cases of revoked immunity benefits.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

47. What notice is required to revoke?

Brazil

During the investigation, the authority must inform the applicant or beneficiary of the potential default and require specific performance; if the applicant fails to perform or to justify its position, then the authority is able to revoke the benefits. After the conclusion of the investigation, the authority could revoke the benefits by challenging the applicant in a Federal Court in case it identifies fraud or bad-faith behaviour.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

48. Can the applicant file a judicial challenge to a decision to revoke?

Brazil

Any decision issued by CADE can be challenged before the Federal Courts. In this case, the Federal Courts should review if the applicant complied with its obligations to cooperate with the investigation and to provide necessary information and evidence. However, there is debate as to the limits of the legal intervention by the courts on administrative decisions. In theory, the courts should intervene only in cases where the authority exceeds the limits of its discretion.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Reduction in sanctions

49. Does the leniency programme allow for reductions in sanctions?

Brazil

Yes, see questions 1 and 3. The antitrust leniency program sets forth full immunity for the applicant for cases where the authority had no knowledge of the anticompetitive practice. For those where the authority had previous knowledge, but not detailed information or evidence, the applicant can be granted a reduction of one to two thirds in applicable sanctions.

CADE’s regulations provide also for direct settlement (named as Cease and Desist Agreements, or TCC in its Portuguese acronym) if the applicant is not the first to report the alleged conduct, but meets the other eligibility requirements, which are:

  • to terminate its involvement in the conduct; 
  • to confess its participation in the infringement; 
  • to cooperate fully with the investigation, through (i) the identification of other participants involved in the alleged infringement, and (ii) the submission of information and documents that prove the alleged conduct; and
  • to pay a pecuniary contribution that cannot be lower than the minimum applicable fine.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

50. What is the process for seeking a reduction in sanctions?

Brazil

The applicant must contact CADE’s General Superintendency with a request for a settlement and open the proffer and negotiation stage.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

51. Is there a marker process similar to immunity applications?

Brazil

The process for obtaining a marker either for a reduction in sanctions is largely the same (see questions 20 and 21); in cases of direct settlements (TCC), however, contact is usually made with the officials leading the investigation directly.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

52. Are the reductions in sanctions fixed or discretionary?

Brazil

Reductions in sanctions are calculated based on a two-step approach, the first being the calculation of the expected fine (in the absence of a negotiated settlement); and the second being the application of fixed standards provided by CADE’s regulations and guidelines as to potential reductions.

First, the criteria for calculating the fine are provided by Law and consider (i) the seriousness of the infringement; (ii) the good faith of the offender; (iii) the advantage intended or obtained by the offender; (iv) the consummation of the infringement; (v) the degree of injury to free competition, the national economy, consumers or third parties; (vi) the effects to the market; (vii) the economic situation of the offender; and (viii) recidivism.

Based on these criteria, CADE may discretionarily increase or reduce the amount of the fine within the minimum and maximum limits 0.1 and 20 per cent, respectively, of the revenue (turnover) in the year before the investigation, in the sector of activity affected by the conduct. There is debate as to the possibility of fines exceeding the 20 per cent limit if the benefit arising out of the infringement surpasses this amount; hardcore cartel cases have been historically fined at the top end of this range (1–20 per cent).

Once the amount of the expected fine is established, CADE applies the standards provided in its regulations and leniency guidelines. The reduction of fine will depend on the scope and level of cooperation of the applicant (considering a very strict level of discounts and considering how valuable is the information provided as collaboration), but most importantly at the timing of the settlement application.

If the settlement (TCC) application is filed after the start of the administrative proceeding, but before the case records are forwarded to CADE’s Board (Tribunal), the reduction of sanctions will be calculated based on the following criteria:

  • a reduction of 30 to 50 per cent for the first in;
  • a reduction of 25 to 40 per cent for the second in; and
  • a reduction of up to 25 per cent for the remaining proponents of a TCC.

After the case is sent to Cade’s Tribunal, the applicant may be subject to a reduction of up to 15 per cent (these parameters may be changed if Leniency Plus has also been granted; see question 57).

The authority has the discretion to consider an effective compliance programme as an additional reduction factor in certain cases, but so far no proper guidance or regulations have been issued in connection to this point.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

53. How are the reductions in sanctions calculated?

Brazil

Please refer to question 52.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

54. Are there sentencing guidelines?

Brazil

Yes. Please refer to question 52.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

Cooperation obligations for sentencing reductions

55. If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

Brazil

If the scope of the violation is expanded in a manner that discloses a completely new violation previously unknown to the authority, the applicant may file for leniency plus (please refer to question 57. However, in case the new self-incriminating information relates somehow to the ongoing negotiation, it will be factored into the applicable fine calculation.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

56. Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

Brazil

Please refer to question 52.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

57. Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

Brazil

Yes, the settlement (TCC) applicants are exempted from the application of other sanctions provided by the law, such as “name and shame” publications and listings, debarment etc.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

58. Does the competition authority publish guidance regarding sentencing reductions?

Brazil

Yes, please refer to question 52.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

59. Does the authority provide for "Leniency Plus" benefits?

Brazil

Yes, it does: reduction of one to two-thirds of the applicable fines for a company and/or individual that does not qualify for a leniency agreement in connection with an infringement in which it has participated but provides information on a second violation of which the authority had no prior knowledge.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

60. How is the Leniency Plus discount calculated?

Brazil

The discount consists of one to two-thirds of the applicable fines.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

61. Are the cooperation obligations similar to those for immunity applicants?

Brazil

Yes, the company and/or individual must fully and permanently cooperate with the investigation and the administrative proceeding, and attend, at their own expenses, whenever requested, at all investigation acts, until a final decision is rendered by the authority on the reported violation. Furthermore, the cooperation must result in the identification of the others involved in the violation and the collection of evidence of the offense reported or under investigation.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

62. Will the applicant be required to make a written confession?

Brazil

Yes, it is a statutory requirement that the applicant “confesses its participation in the reported unlawful conduct”. CADE will never offer the second comer a better deal than the immunity applicant (first comers will always have the better “deals”).

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

63. Can third parties obtain access to the materials provided by the applicant?

Brazil

As a rule, a complete version of the applicant’s report on the anticompetitive conduct and evidence will be kept confidential to the authority, the applicant and others involved in the violation. However, a redacted version of the applicant’s report (ie, without sensitive information) must be made available to the general public.

Third parties could have access to the confidential version of the materials only in the case of: (i) a judicial decision; (ii) an authorisation granted by the applicant and by CADE, if it does not jeopardise the investigation; and (iii) a legal ordinance.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

64. Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

Brazil

Yes, as long as the applicant is able to meet the cooperation obligations described in question 61.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

65. Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

Brazil

Not necessarily, but this is a very likely scenario in case the employee engages in obstructive conduct after the application. If the employee acts obstructively before the application, the applicant could dismiss this employee and apply for the leniency agreement as long as it still meets the eligibility requirements.   

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

66. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Brazil

The applicant is required to share any documents and information that demonstrate the reported violation. If the applicant has only classified documents as evidence, it may waive the privilege and submit them to CADE.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

67. Can an applicant challenge the amount of the reduction of sanctions?

Brazil

The applicable fines are set out at the authority’s discretion pursuant to the criteria foreseen in the Brazilian law and guidelines. However, all decisions issued by the authority may be challenged before the Brazilian courts, which may interfere if the authority exceeds the limits of its discretion.

Answer contributed by José Carlos da Matta Berardo, Juliana Maia Daniel Pinheiro and Marcela Pirola

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