Ed. Note-it is always gratifying and a little flattering when someone else uses your mantra. So when today’s Guest Post author sent me a blog with ‘Document Document Document’ in the title, I was sold. Today Raphael Gomes, from the law firm of Chediak Advogados, discusses the need for documentation under the Brazilian Clean Company Act.
It was only 14 months after Law No. 12.846/2013, Act, entered into force that Brazil finally issued regulations regarding its corporate anti-bribery statute, the so-called Clean Company Act. President Dilma Rousseff issued Decree No. 8.420/2015 on March 18th, which provides for further regulations around the Clean Company Act, with focus on 5 areas: (i) procedural rules for the administrative enforcement of the Act against organizations; (ii) calculation of the penalties; (iii) leniency agreements; (iv) integrity (compliance) programs; and (v) sanctioned, banned, or restricted companies lists (CEIS and CNEP).
As to anti-bribery compliance programs, referred to as integrity programs under the Clean Company Act, the Decree defines the 16 elements of a complete program that will be taken into account in its evaluation by the enforcement authorities, which we have outlined in our post “Compliance Programs under the Brazilian Clean Company Act”.
About a month after the Decree was issued, the Federal Comptroller’s Office (Controladoria-Geral da União – CGU), the administrative body responsible for enforcing the Clean Company Act at the federal administration level, issued additional regulations regarding (i) the process for evaluation of the investigated company’s compliance program (Reg. 909 – Portaria CGU nº 909); (ii) procedural rules for the administrative enforcement proceeding or “PAR” (Reg. 910 – Portaria CGU nº 910); the rules for determining the company’s annual gross revenues for calculation of the monetary fines (CGU IN 01/2015); and (iv) the rules around the government’s restricted parties lists CEIS and CNEP (CGU IN 01/2015).
Pursuant to Article 18 of Decree 8420, a company that demonstrates to have a robust, effective compliance program in place shall receive a reduction in the monetary fines of up to 4% of the company’s gross annual revenues for the year preceding the opening of the PAR. This is the major mitigation factor under the Brazilian anti-bribery statute, twice as valuable as voluntary disclosure, and potentially three times as valuable as cooperation. In practice, in some cases the credit for a company’s compliance program may represent a discount of more than 99% of the monetary fine, lowering it to 0.1% of the gross annual revenues, the minimum fine allowed under the Clean Company Act.
DOCUMENT, DOCUMENT, AND DOCUMENT
Reg. 909 is of particular interest to the Compliance professional, for it provides guidance as to how the investigated company’s compliance program is to be evaluated by the Brazilian Federal authorities, for determining the percentage of credit the company is entitled to. It is a real eye-opener and makes us realize how global compliance and anti-bribery laws and best practices are becoming more and more aligned. Tom Fox constantly reminds us of his mantra: Document, document and document. Well, it looks as though Brazilian enforcers, particularly the CGU, have been reading Tom’s blog and have taken this mantra of his to heart.
In Reg. 909 the CGU sets forth that programs will be evaluated having two basic documents prepared by the company (the Profile Report and the Program Conformity Report) as the basis and starting point for their review. It further provides for that the company shall produce evidence that the program works and is a part of the company’s routine, and demonstrate how the program has worked to help the company prevent, detect, and remediate the very misconduct that is the object of the enforcement action.
The Profile Report should describe:
- the industry sectors and geographies in which the company operates;
- organizational structure, including internal hierarchy, decision-making process, boards, departments, and divisions;
- the number of direct and indirect employees;
- touch points with the government (national or foreign), highlighting:
- the importance of licenses, permits, or authorizations to its activities,
- the quantity and value of contracts with the government, and
- the frequency and relevance of the use of third party intermediaries in its interactions with the government;
- equity interests relating to subsidiaries, controlled, parent, and affiliated companies, as well as to JVs or consortia.
Regarding the Conformity Report, Article 4 of Reg. 909 provides for that the legal entity shall provide information on the structure of the program, describing what elements of the program (listed on Article 42 of Decree 8420) where implemented, how they were implemented, and explaining the importance of the implementation of each element vis-à-vis the company’s peculiarities, as per the Profile Report .
The effectiveness of the company’s program may be evidenced by means of official documents, e-mails, written correspondence, statements, internal memos, minutes of meetings, reports, manuals, computer screen shots, video and audio recordings, photographs, purchase orders, invoices, accounting records, or any other documents, preferably in digital format.
Apparently, the Brazilian enforcers expect the companies to heavily invest in documenting all they can about their compliance programs, and intend to rely on document review for most of the process of evaluation of a company’s program. Not only does Reg. 909 require for the two reports mentioned above to be submitted along with the company’s administrative defense, but it also makes it crystal clear that being able to provide complete, clear, and organized documentation to demonstrate the effectiveness of the program will be key for companies to secure credits that may add up to four percent of a company’s annual revenues.
In paragraph 2 of article 4 of Reg. 909, the CGU expressly lists documents that should be created, copied, archived, retrieved, and submitted to the authorities in an organized fashion, in digital format, in case of an investigation.
The Brazilian Clean Company Act lists many conducts that are regarded as harmful to the public administration, which conducts include, inter alia, fraud and related misconduct involving government procurement, obstruction of government inspections or investigations, and, of course, bribery. The Act provides for strict liability for companies that benefit from violations, which renders it more likely than it was before the law passed for any company to be faced with investigations of potential violations, be it for conduct of its own employees or that of its third party intermediaries.
In such an environment, it is natural for companies not only be willing to put a robust compliance program in place, to prevent, detect, deter, and remediate instances of wrongdoing, but also to wish to secure the maximum credit of 4% when facing an enforcement action, in case all else fails.
Upon being notified by the enforcement authorities of the investigation, with the opening of the PAR, the company shall have a window of 30 days to submit the defense (article 16 of Reg. 910), including the defense arguments and evidence relating to the concrete facts and merits of the case. The defense shall also include the Profile Report, the Program Conformity Report and all the supporting documentation.
What one should look to avoid is that, in the middle of a perfect storm, in which the company’s compliance and legal professionals will have to deal with managing the crisis, interacting with the company’s PR and Investor Relations teams, informing all stakeholders, on a daily or weekly basis, of the issues at hand, the defense strategy, action plan and progress, with a very limited window of time to gather all information they can about the specifics of the case and prepare a defense, is to have to dedicate time, resources, and efforts to tasks that could have been dealt with in advance, under no time pressure.
We would therefore deem it advisable for companies operating in Brazil to prepare and have in their files, ready for submission at any time, both the Profile Report and the Program Conformity Report, along with all the evidence they can gather in advance, in an organized manner and in digital format, evidencing the effectiveness of its program. It is the Compliance Officer’s responsibility to work with the IT department to ensure that the company has a document archive and retrieval process in place to guarantee that documentation pertaining to the compliance program is safely stored in one centralized repository.
Your compliance program, documented and presented in a complete, clear, and organized manner, along with evidence of its effectiveness, may be worth up to 4% of your company’s annual revenues. Make sure you are ready to earn it.
What does Thomas Fox say? Document, Document, and Document.
Rafael Mendes Gomes is the partner in charge of compliance and anti-bribery at Chediak Advogados, with offices in São Paulo and Rio de Janeiro, Brazil. The firm offers legal assistance to both Brazilian and international clients across different industries and business sectors.
Artigo publicado no FCPA Compliance and Ethics Blog, em 26/06/15.