Compliance and Investigations Newsletter no 9 – September 2022

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Gol agreed to pay USD 41.5 million to the CGU, AGU, DOJ and SEC to settle corruption charges

Gol Linhas Aéreas Inteligentes S.A. (“Gol”) signed an agreement with the Brazilian Office of the Comptroller General (“CGU”), Brazilian Office of the General Counsel (“AGU”), Department of Justice (“DOJ”) and Securities and Exchange Commission (“SEC”), which provides for the payment of the total amount of USD 41.5 million (about BRL 220 million). Out of such total amount, USD 24.5 million will be paid to SEC, USD 17 million will be paid to DOJ and USD 3.4 million will be paid to CGU/AGU (about BRL 14.3 million). Out of the amount earmarked to the Brazilian authorities, BRL 8.6 million concerns the reimbursement of the improper payments and BRL 5.7 million concerns the fine set forth by the Brazilian Administrative Improbity Law.

In regard to the Brazilian authorities, Gol signed a leniency agreement due to violations to the Law No 12,846/13 (the Brazilian “Clean Company Act”) and the Administrative Improbity Law. In the United States, according to the DOJ, Gol have violated the anti-bribery and books and records provisions of the Foreign Corrupt Practices Act (FCPA).

The information made available on Gol’s Deferred Prosecution Agreement (DPA) indicated the payments of about USD 3.8 million worth of improper payments to Brazilian public officials, between 2012 and 2013, to secure the approval of bills that would have resulted in tax reliefs to Gol.

The agreements executed with the Brazilian and American authorities also laid down obligations for the enhancement of Gol’s compliance program.

For more information, access the press releases by CGU, DOJ and SEC.[/vc_column_text][vc_empty_space height=”50px”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

DOJ announces changes on the methods of corporate crime investigation and enforcement

On September 15, 2022, Deputy Attorney General Lisa Monaco (“Ms. Monaco”) announced changes on the methods of investigation and enforcement of corporate crimes adopted by the Department of Justice (“DOJ”).

According to Ms. Monaco, the corporate criminal enforcement will have an increased focus on individual accountability, specially concerning the speed of investigations and evidence gathering. In addition, Ms. Monaco stated that companies cooperating with the DOJ will have to promptly disclose hot documents or evidences to investigations, particularly those that show individual culpability. Ms. Monaco added that any undue or intentional delay in producing such information/documents will result in the reduction or denial of cooperation credit.

The announced changes also include the encouragement of companies to self-disclose, fully cooperate, and timely and appropriately remediate misconducts aiming to prevent guilty pleas.

Concerning independent monitorships, Ms. Monaco said that the DOJ would release a new guide to prosecutors on such matter, which, according to her, will ensure that the scope of the monitorship will be tailored to the specific misconduct and the identified compliance deficiencies. In addition, Mr. Monaco argued that the prosecutors must certify that the monitors stay on task and on budget, in her words: “where we impose a monitor, we recognize our obligations to stay involved and monitor the monitor.”

Lastly, within the scope of compliance programs, Ms. Monaco emphasized the importance of corporate culture, encouraging the adoption of compliance-driven compensation systems to encourage and dissuade certain conducts.

For more information, access the full statement of Ms. Monaco here. [/vc_column_text][vc_empty_space height=”50px”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

State Court of São Paulo ruled as constitutional the municipal law that obliges compliance program from big suppliers

The Special Body of the State Court of São Paulo (“TJSP”) ruled as constitutional the law enacted by the municipality of São José do Rio Preto that obliges supplier companies of large-scale constructions and services (with an estimated amount of over BRL 200 million), of the municipality to establish a compliance program.

Federal Law No 14,133 (New Public Procurement Law) established the obligation to implement a compliance program by companies that intend to take part in public bidding proceedings for large-scale constructions. Nevertheless, the TJSP held that the municipal law did not make use of excessive federal jurisdiction, but only supplemented the federal law to specify it to the local circumstances.

The ruling occurred within the context of direct action for declaration of unconstitutionality brought by the mayor of São José do Rio Preto against the city council, the entity that proposed the legislation.

For more information, access the full TJSP ruling here.[/vc_column_text][vc_empty_space height=”50px”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

New law creates rules to prevent and fight sexual harassment and other forms of violence on the workplace

On September 02, 2022, Law No 14,457/22 was sanctioned, which creates the Program Employ + Women (“Program”). Among several other initiatives, the Program stimulates the implementation of measures to prevent and fight sexual harassment and other types of violence on the workplace.

For that reason, the word Harassment was included in the name of the Internal Commission of Accidents and Harassment Prevention (“CIPA”).

Among the measures to prevent and fight sexual harassment are the following:

• establishment of procedures for receiving, investigating and sanctioning harassment reports;
• creation and disclosure of conduct rules concerning the subject;
• inclusion of discussions on prevention and fight of sexual harassment on CIPA’s activities; and
• carrying out of trainings, at least every 12 months, regarding violence, harassment, equality and diversity in the workplace.

For more information, access Law No 14,457/22 here.[/vc_column_text][vc_empty_space height=”50px”][/vc_column][/vc_row]