Minister Dias Toffoli, of the STF, left the deadline open for J&F and Novonor, formerly Odebrecht, to evaluate the evidence against Lava Jato and present a new proposal for payment of fines in leniency agreements signed with the approval of the Judiciary.
The judge of the Federal Supreme Court accepted the companies’ request to have access to the messages exchanged between members of the operation that were leaked within the scope of Vaza Jato and determined that, during this period, the fines will be suspended.
However, Toffoli did not establish a deadline for the companies to analyze the attorneys’ dialogues with each other and with the then judge Sergio Moro, which, according to him, raise “reasonable doubts about the requirement of voluntariness” in negotiating the agreement.
At the end of December, the minister suspended J&F’s R$10.3 billion fine and, at the beginning of this month, took a similar decision in relation to Novonor – the company says that the outstanding obligation is R$3.8 billion.
Toffoli’s wife, Roberta Rangel, is a lawyer for the group of brothers Joesley and Wesley Batista and is responsible for the litigation between the company and Paper Excellence over control of Eldorado Celulose.
The member of the Supreme Court granted “the suspension of all pecuniary obligations arising from the leniency agreement entered into between J&F and the Federal Public Ministry until the applicant can analyze the documents mentioned in the previous request and promote their review, renegotiation or revalidation in the appropriate instances”.
In both decisions, the minister states that the “information obtained so far in the Spoofing operation”, which includes hacked conversations between members of Lava Jato, “in the sense that there would have been collusion between the prosecuting judge and the prosecuting body”, justify the stoppage of payments.
Toffoli also authorizes companies to meet with the CGU (Comptroller General of the Union), the AGU (Attorney General of the Union) and the MPF to re-discuss values. In this way, the Executive must have a leading role in the negotiations, since the first two bodies are linked to the Lula (PT) government.
However, the AGU, led by minister Jorge Messias, states in an opinion that Toffolli’s decision does not apply to agreements concluded between the company Odebrecht, the AGU itself and the CGU. In the same vein, minister Vinícius de Carvalho, who heads the controllership, had also declared that “there is no decision on review or annulment, anything of that kind, or suspension of payments for agreements concluded with the CGU”.
The Attorney General of the Republic, Paulo Gonet, however, appealed the decision regarding J&F in an attempt to overturn the suspension of the fine.
The head of the MPF defends that the process be redistributed by the magistrate to a colleague or, if he does not understand, that he review his position. If the decision is maintained, submit the dispute to the court’s plenary, made up of 11 members.
Gonet seeks the full vote as an alternative to the Second Panel, a panel made up of ministers critical of Lava Jato. To this end, he argues that J & F’s claim must be processed together with an action that discusses in plenary the parameters adopted in the leniency agreements signed within the scope of the operation.
The leniency agreement was signed in 2017 between the company and the Federal District Attorney’s Office. The agreement was approved by the 10th Federal Criminal Court of the Federal District.
The head of the Prosecutor’s Office said in his statement that the agreement is the result of Operation Greenfield, originating from an investigation into breaches in the country’s largest pension funds.
“After all, here, the public agents referred to [da Operação Lava Jato] are different from those who entered into the leniency agreement [da Operação Greenfield]”, stated Gonet.
He also stated that reversing Toffoli’s decision will prevent “serious risk to the Brazilian supplementary pension system, with huge losses specifically to Funcef and Petros”, in reference to the two funds targeted by irregularities investigated by the Greenfield task force.
Toffoli, in turn, stated in the decision that the suspension needed to be granted to provide conditions for assessing, in view of the elements of Operation Spoofing, whether there was illegality in the actions of prosecutors and whether there were conflicts of interest in determining the sale of assets and company companies, in addition to the amount of the fine.
The mention of conflict of interest occurs because the holding company questions the participation of the entity Transparency International in the “design and structuring of the governance system for the disbursement of resources dedicated to social projects, which are part of the fine imposed on J&F”.