Americanas: Deltan impeachment thesis can be used – 07/10/2023 – Market

Justice can, in theory, annul transfers of assets made by former directors of Americanas in the midst of the company’s billionaire scandal. And one of the ways to do this is similar to the removal of the mandate of Deltan Dallagnol (Podemos-PR).

The discussion arises because, in the case of Americanas, the Sheet revealed that the former director Anna Christina Ramos Saicali transferred to her son the shares of a company with equity of BRL 13 million a few days before the announcement, made by the retailer, that there were accounting inconsistencies of around BRL 20 billion in the balance sheet .

The former president of Americanas, Miguel Gutierrez, did something similar. According to piauí magazine, he transferred three properties to companies owned by his relatives and himself, for a total amount of R$ 2.1 million, during the process of changing command of the retailer.

Both deny the illegality of these initiatives.

According to lawyer Fernando Neisser, if it is proven that these movements, even if legal, have been given with the objective of shielding the assets against possible financial punishments, it is possible that the Justice will annul the transfers.

“It could constitute a fraud of the law”, says the lawyer from the Neisser & Bernardelli Advocacia office.

Fraud of the law is a legal figure characterized by the practice of a conduct authorized by the legislation, but taken with the aim of circumventing some other norm; put another way, it is a way of transgressing a law by respecting another.

“Fraud of the law is consolidated in civil law, mainly in the property issue, and it was taken to electoral law a long time ago”, says the lawyer.

This was the argument that the Superior Electoral Court (TSE) used in Deltan’s trial. For most ministers, by resigning five months earlier than necessary –which is allowed—, the former head of Lava Jato in Curitiba had the purpose of circumventing the restrictions of the Clean Record Law.

The Clean Sheet prevents the candidacy of members of the Public Prosecutor’s Office who have requested resignation or voluntary retirement pending administrative disciplinary proceedings (PAD).

Deltan did not have any PAD filed against him, but there were 15 procedures that, in the following months, could become PADs. And if that happened, he would be ineligible. Hence why the TSE saw fraud to the law in early dismissal.

“What the court did was apply the effects of the law that it wanted to circumvent. In this case, the Clean Record Law”, says Neisser, president of the Public and Electoral Law Commission of the Institute of Lawyers of São Paulo.

According to him, it would be possible to make a theoretical parallel between this situation and that of Americanas, as long as there is evidence that former directors of the retailer were involved in the fraud and knew the equity risk.

In the report of Sheet Regarding the transfer of assets, Saicali’s defense denied that it had the purpose of protecting the assets from any measures resulting from investigations, such as the attachment of assets, and stated that the transfer “was due to succession planning motivated by health issues”.

Miguel Gutierrez’s advisory stated that the executive “vehemently denies the accusation of participation in fraud or any measure to hide assets”.

Even if this is the case, there is another way for possible Americanas creditors to try to annul the transfer – if it proves that members of the company’s former top management are responsible for the scandal.

“I haven’t examined the case of Americanas, but, in theory, anyone who gives away their assets free of charge without leaving anything to pay their debts is committing fraud against creditors”, says Ricardo Zamariola, from the LUC Advogados law firm.

Fraud against creditors is another figure of the Civil Code. According to Zamariola, it fits even if the person has not passed on all of their assets. “It is enough that, after the transfer, the liabilities are greater than the assets, that is, that the debts exceed the remaining assets”, he says.

Lawyer Nathalia Ribeiro, from the Amaral Lewandowski office, also considers that, in theory, the figure applicable to situations like this would be fraud against creditors. “But it is not automatic, it depends on the verification of some requirements”, she says.

For Ribeiro, in addition to having debt and less equity, it would be necessary to prove collusion to thwart any receipt of credits in the future.

And, at the current stage of the investigations, it is not even known whether the former leadership of Americanas has any debt to settle, be it the return of money obtained by fraudulent means, be it the compensation of minority shareholders, be it the payment of fines.