Mendonça opens the way for leniency to go to the STF plenary – 03/04/2024 – Power

André Mendonça’s decision, which established a deadline for the renegotiation of leniency agreements, helped to alleviate the uncomfortable climate in the STF (Supreme Federal Court) that began following the determinations of Minister Dias Toffoli that benefited J&F and Novonor (formerly Odebrecht) .

Mendonça created, on the 26th, a conciliation table between public bodies and companies that signed these agreements within the scope of Operation Lava Jato and its consequences.

With this, he regained control of discussions on the validity of leniencies and paved the way for eventual judgments on the subject to take place in the Supreme Court’s plenary, made up of the court’s 11 ministers.

Since March last year, Mendonça has been the rapporteur of an ADPF (argument of non-compliance with a fundamental precept) that questions the legality of the agreements.

The presentation of this type of action is restricted to some authorities, entities and political parties. In this case, it was proposed by PSOL, PC do B and Solidariedade, which were represented by members of Walfrido Warde’s law firm, known for its critical stances on the operation’s methods.

The action is broad and says that the leniencies were signed before the technical cooperation agreement that systematized the rules for the procedure and, therefore, would be illicit.

At the end of December, however, Toffoli decided in another action to suspend payment of the leniency agreement between J&F, brothers Wesley and Joesley Batista. The total value of this fine is R$10.3 billion.

The process is related to the hacked conversations of Lava Jato members, obtained by the Federal Police in Operation Spoofing.

In his decision, Toffoli pointed out suspicions, based on the material obtained by Spoofing, that “there would have been collusion between the prosecuting court and the prosecuting body to develop a legal-procedural-investigative scenario that would lead those under investigation to adopt measures that would better suited to such bodies, and not to the defense itself”.

At the end of January, under the same argument, Toffoli extended his decision and also suspended the fine from the leniency agreement of the former Odebrecht.

The minister had been working to ensure that any appeals were taken only to the Second Panel of the Supreme Court, made up of five ministers and traditionally with a majority opposed to Lava Jato.

Toffoli’s decisions upset a wing of the Supreme Court, which, with reservations, expressed dissatisfaction with the negative repercussion and with the arguments he gave to suspend the fines — that the leniency agreements were signed in environments of coercion.

But Mendonça’s determination, which on the 26th set a deadline of 60 days for there to be a consensus between public bodies and companies, put an end to this friction.

He established that during this period any fines due to possible non-compliance by companies with agreed financial obligations are suspended.

Mendonça stated that the objective is to ensure that companies negotiate with public entities based on the principles of good faith, mutual collaboration, confidentiality, reasonableness and proportionality.

The Attorney General of the Republic, Paulo Gonet, said that he agrees with the opening of dialogue, as does the president of the TCU (Federal Audit Court), Bruno Dantas.

Conciliation puts the Federal Public Ministry face to face with bodies such as the AGU (Attorney General of the Union) and CGU (Comptroller General of the Union) and companies such as Novonor itself and J&F, but also Metha (formerly OAS), Camargo Corrêa, Engevix, Braskem, Samsung Heavy Industries and other companies that acknowledged having committed illegal acts.

Leniency agreement is a type of plea bargain for companies. They recognize deviations in contracts with the public sector and undertake to compensate for the loss in exchange for continuing with public contracts.

When announcing the opening of the negotiation table, Mendonça defended leniency agreements as an instrument to combat corruption and stated that conciliation will not be used to carry out “historical revisionism”.

For the Supreme Court, Mendonça’s decision allows companies to negotiate an extension in the deadline for paying the fine or even discounts, but prevents the agreements from being annulled.

The minister’s decision was opposed by anti-corruption entities. They fear that, contrary to what Mendonça said, the conciliation will serve as a revisionism of Lava Jato, and that the victims of corrupt corporate practices will be harmed.

Some members of the Supreme Court have already signaled that, when the issue of leniency comes to the plenary, there should be strong discussions.

Last Tuesday (27), the dean of the court, Gilmar Mendes, made a long statement critical of Lava Jato in the session of the Second Panel and said that the matter has a “scheduled meeting” with the plenary.

According to him, the renegotiations will bring to light “haunting revelations” about how the agreements were concluded.

Lava Jato’s rapporteur at the Supreme Court, Edson Fachin, stated that before any agreement was reached, the companies were questioned about their voluntariness and that, “in all acts, the employees were duly accompanied and guided by their respective lawyers”.