MPF asks for the release of R$54 billion from Lojas Americanas shareholders

Sicupira is one of the three main shareholders of Americanas, while Saggioro is president of the board of directors and Paulo Lemann is a former advisor and son of Jorge Paulo Lemann, another main partner.

The statement was filed on the 20th as "counter-reasons to the appeal" and refutes the decision of the 10th Federal Criminal Court of Rio de Janeiro, which authorized search and seizure warrants in the second phase of Operation Disclosure.

Prosecutors claim that judge Giovana Teixeira Brantes Calmon's decision lacks just cause and legal support. She defends the thesis that shareholders "were fully aware" of the fraud committed at the retailer.

The MPF petition identifies three indirect criteria used by the judge to justify the blockade: the position of businesspeople as historical controllers; the "feeling of ownership", whereby frauds of this scale would not pass without the approval of the controllers; and the maxim of "life as it is", according to which it would be implausible for a billionaire to escape them.

The prosecutors maintain that these criteria are equivalent, in practice, to objective criminal liability, that is, the idea of punishing someone for the position they occupy in the company or in society, without pointing out proven conduct.

"It is imperative to highlight that, when structuring such grounds, the appealed decision itself expressly recognized the lack of direct, indirect or documentary evidence that demonstrated the effective participation or direct causal link of the applicants with the specific fraudulent acts carried out by the executive board", they state.

Since last year, when the MPF filed a complaint against 13 former directors of the retailer, prosecutors have maintained that the frauds were "executed and masked" by the company's management, which presented disguised reports to the directors.

According to prosecutors, none of the statements or evidence obtained in the more than three years of investigations indicated that the shareholders had ordered or been aware of the commission of fraud. The evidence, according to them, indicates that the illicit acts were concentrated on the former CEO Miguel Gutierrez, a person trusted by the reference shareholders.

In his defense, Gutierrez has stated in court that the evidence produced in the case stems from statements by "executives paid by Americanas to tell the story that interested him". He denies the accusations.

In the statement sent to the TRF-2 (Federal Regional Court of the 2nd Region), where the case is being processed, the Public Ministry defends that the shareholders' appeal be accepted and speaks of "strict legal convergence" with the requests presented by the defense of Sicupira, Saggioro and Lemann.

According to prosecutors, the maintenance of the precautionary measure "lacks support in the criminal procedural system".

They state that it is impossible to presume intent, collusion or guilt in complex accounting frauds "based on maxims of experience devoid of concrete factual support in the records." In this sense, stating that shareholders "should have known" does not replace the obligation to point out evidence that they actually knew.

"The court decision, in turn, understood that pragmatism and the analysis of business reality ("life as it is") allow us to conclude that the controllers' ignorance in the face of a liability hidden for years is unlikely", they say.

The document was signed by prosecutors Orlando da Cunha, José Maria de Castro Panoeiro, Stanley Valeriano da Silva and Luana Vargas Macedo, members of Gaeco (Special Action Group to Combat Organized Crime) in Rio de Janeiro.

Before authorizing the search and seizure warrants, the MPF warned the judge about the "inconvenience" of authorizing a blockade of assets worth around R$54 billion without the State having minimum, concrete and individualized elements to justify the measure.

For them, the more than R$12 billion contributed to the company by the reference shareholders would have already absorbed and equalized the gross losses resulting from the fraud. In addition to Beto Sicupira, the company's trio of billionaires include businessmen Marcel Telles and Jorge Paulo Lemann, who are not defendants in the case. When consulted, the defense of Sicupira, Saggioro and Lemann declined to comment.

Americanas says arbitration dismissed proceedings against the company for withdrawal

Americanas reported that an arbitration opened against the company in 2023 was closed after the applicants withdrew. The case was never judged, and the authors will have to reimburse the costs of the procedure