Billionaire fraud by the National Bank: STJ judges appeal – 03/19/2023 – Frederico Vasconcelos

The Superior Court of Justice will judge on Thursday (23) an appeal by former administrators of Banco Nacional, from the Magalhães Pinto family, in a civil action on suspicion of fraudulent practices.

The appeal was filed by Ana Lucia Catão de Magalhães Pinto and 26 other appellants. The rapporteur is Minister Marco Buzzi, from the 4th Panel.

Here is the summary of the STJ agenda:

Former administrators of the defunct Banco Nacional appeal against the decision of the TJ-RJ that annulled the 1st degree sentence, which had recognized the ineptitude of the initial one and dismissed the process, in addition to not having applied the understanding that the nature of the sentence is subjective. civil liability of financial institution managers under extrajudicial liquidation regime.

They allege that the MP-RJ filed a civil liability suit in an indistinct manner and without individualizing the conduct, attributing the fraudulent practice to the defendants, which generated a billionaire deficit (R$ 7.5 billion) in accounting, culminating in the liquidation of the banking institution.

They point out that the acts performed by each of the former administrators are not described; point out that there are no creditors harmed after the liquidation of the bank, whose liquidated assets were sufficient to pay all its liabilities.

In 1986, the bank showed a deficit corresponding to US$ 600 million covered by 652 fictitious accounts. The facts were reported in my book “Anatomy of Reporting“(Publish Sheet/2008). The blog published an episode indicating that the failure was facilitated by the omission of the auditors:

There is a relevant chapter, in 1998, when, thanks to a judicial authorization, the Sheet confirmed the collusion between directors of the Magalhães Pinto family bank, KPMG auditorsthe firm responsible for the external audit, and former KPMG employees hired by the bank.

This reporter had received a full copy of the accounting expertise carried out by the Criminalistics Service of the Federal Police. The piece pointed out the agencies where fictitious accounts were kept. According to the complaint by the Federal Public Prosecutor’s Office, those phantom accounts “were always accessible to the auditor”.

Once these facts were published, a lawyer from the office of the firm Pinheiro Neto, which represented KPMG, sent a letter to the newspaper, alleging that there had been “recklessness” and “bad faith” by this reporter.

Federal judge Abel Gomes, then at the 4th Federal Court, in Rio de Janeiro, allowed the journalist to examine the records, with the exception of confidential documents.

The following day, a new report revealed:

“Documents attached as evidence in the Banco Nacional process confirm the involvement of former KPMG employees in the fraud and reinforce the suspicion of collusion by the bank’s external audit. One of these documents is an accounting form, handwritten in pencil, with calculations of dividends (benefits distributed to shareholders) on the bank’s fictitious profits in the second half of 1990. The form bears the KPMG letterhead. of the National Bank”.

KPMG’s lawyers refuted the auditors’ idea of ​​connivance and promiscuity.

A graph technical expertise confirmed that the calculations and signature “were produced by the hand” of a former KPMG employee hired by the bank to occupy one of the boards. He also used KPMG stamped paper to alter account records, artificially inflating the bank’s equity. With the help of another former KPMG employee, he used audit firm letterheads to draft forged balance sheets.

The bank’s auditor was denounced in criminal proceedings on charges of criminal omission for allegedly failing, “in a conscious and voluntary manner, to fulfill the legal duty to point out the fraud”.

Bank administrators were preventively arrested, accused of fraudulent management and currency evasion. Eleven of the twelve indicted were sentenced to sentences of up to 28 years in prison, punishment converted into community service.

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