On June 18, the Brazil-US 40 and Under White Collar Lawyers Initiative promoted its third session of discussions. Due to the Covid19, the session that is usually held part live and part remotely, varying the live session between the two countries, was held completely online for the first time.
The panelists were Patrick Stokes, white collar partner at Gibson Dunn and formerly part of DoJ, in the FCPA Unit and as Co-Chief of Securities and Financial Fraud Unit; Michael Diamant, also a white collar partner at Gibson Dunn, who has extensive experience representing Brazilian companies under investigation by DOJ and SEC, including Petrobras; Eugênio Ricas, attaché of the Brazilian Federal Police to the US and former director of the Brazilian Federal Police’s Organized Crime unit; and Lucinda Low, partner at Steptoe and leader of the firm’s Brazil-specific initiative incorporating a focus on FCPA/anti-corruption compliance and enforcement work; supported by the moderation of Jason H. Smith, senior associate at Gibson Dunn who has conducted numerous investigations and compliance reviews in Brazil, including Lava Jato.
The below is a brief report of the session’s highlights, prepared by the representatives of the host firms and Initiative members, and not a verbatim transcript.
Comments about Authority Collaboration between Brazil and the United States of America
The main focus of the session was authority collaboration between the Brazil and US. As shared by the panelists, both countries currently hold one of the strongest partnerships in investigative and prosecution works, which usually starts with sharing intelligence and strategic plans, contributing to a more effective investigation that can lead to prosecution and dispute resolution.
The great cooperation between Brazilian and American enforcers was pointed out as a highlight, facilitating lengthy discussions that are usually part of transnational efforts. Through international initiatives, such as the OECD working group, and specially after the Lava Jato Operation, both countries were able to develop a trustworthy relationship that has been very fruitful.
The cooperative posture of both countries is especially important in the context of Brazil-US corruption cases, considering the multiple agencies involved in cases of this sort. In US, usually DoJ and SEC are involved, but from the Brazilian end, this is even more complex because of the less centralized scenario. Upon one wrongdoing in Brazil, there is a variety of federal authorities that could be involved (such as Public Prosecutors Office, Comptroller-General’s Office, Attorney-General’s Office or even tax authorities), and state authorities could also be engaged. All of these enforcers have multiple taskforces, with different priorities, targets and investigative methodologies, and handling this situation could be very challenging.
As panelists highlighted, this complex environment requires proper counseling, to better asses, in cases of dispute resolution, which authorities to involve. Enforcers of Brazil and US are sharing information, so this should always be considered when handling cases with impacts on both jurisdictions. In this sense, solving an issue in the US in an isolated manner could raise liability in Brazil and vice versa. Other matters should be taken into consideration as well, such as assessing which enforcers are interested or involved, cross credit of settled amounts, structure of resolution and the conditions included therein. A relevant ally in this process, for standardization purposes, could be the US Sentencing Guidelines.
Finally, considering the pandemic, the panelists’ general impression was that Covid19 did not slow down ongoing cases, however it is unclear how cases in early stages were able to develop during this time, considering the restrictions impacting in-person meetings (interviews of witnesses, for instance) and the gathering of physical documents.
As expected, the high level of each panelist, their very relevant inputs and a very interesting subject of debate, had as an outcome a session with excellent quality and productive discussions