Justice authorizes search and seizure of computers in Americanas to investigate fraud

The Justice of São Paulo accepted Bradesco’s request and authorized an expert examination at Americanas as a way of obtaining evidence for the bank to be able to certify whether there was fraud in the management of the retail giant, which entered into judicial recovery with a debt of R$ 43 billion . The decision can be appealed.

In the decision handed down this Thursday (26), judge Andréa Galhardo Palma, from the 2^The Business Court of the Court of Justice of São Paulo, appoints Ernest & Young to accompany the diligence. Lawyer Patrícia Punder will carry out the investigative expertise.

The team will be able to carry out a search and seizure on Americanas’ computers to obtain all the institutional email boxes of the directors, members of the Board of Directors and the Audit Committee, of the employees of the accounting and finance area —both current ones and those who held these positions for the last ten years.

Americanas plunged into a crisis after the disclosure of “accounting inconsistencies” of R$ 20 billion.

The banks suspect fraud and have started an offensive that targets the company’s reference shareholders – the trio of billionaires Jorge Paulo Lemann, Beto Sicupira and Marcel Telles. They recently stated that they were unaware of the accounting flaws and said they were victims, like other shareholders and creditors.

The onslaught led by Bradesco also has other evidence production actions filed by Safra and Santander. Both await decision.

With this, the banks want to certify that there was fraud in the management of the retail giant, which would pave the way for the collection of debts from the three billionaires, other shareholders and even administrators.

This judicial path is possible through the disregard of legal personality — an exceptional mechanism, provided for by law, which consists of ignoring the company’s patrimonial autonomy, in case of abusive or fraudulent conduct, so that its shareholders pay for damages with their own assets.

The offensive was defined by the banks in view of the company’s recent strategy of pointing out the alleged connivance of financial institutions with the case of the “accounting pedaling” that are at the root of the retailer’s crisis.

Trade union centrals and confederations also appealed to the courts. This Wednesday (25), they filed a public civil action requesting the blocking of BRL 1.53 billion from the personal account of Americanas’ reference shareholders as a way of guaranteeing that the ongoing labor actions against the retailer will be paid.

As the banks did this week, the request aims to disregard the legal personality of Americanas, directly blaming the trio for the accounting scandal.

By proposing to disregard the legal personality of Americanas, the civil action argues that the accounting scandal is a fraud that artificially inflated the company’s profit and the dividends distributed to shareholders, with the trio of billionaires being the main beneficiary.

“Thus, either by intent or, alternatively, by fault, they must be jointly and severally liable for labor damages arising from the accounting fraud narrated in this action”, says the document.

This Wednesday, Americanas delivered its list of creditors to the 4th Corporate Court of Rio de Janeiro, with debts worth R$ 41.2 billion, owed to 7,967 creditors.

Of the total, R$ 41 billion are owed to the unsecured class (unsecured credit), R$ 109.5 million to the micro and small companies class, and R$ 64.8 million refer to the working class. The company has named all of its creditors by name.

The biggest debts are with banks. At the top of the list is the German Deutsche Bank, worth US$ 1 billion (R$ 5.2 billion) – which surprised the market. In this case, the bank claims that it has no credit granted to Americanas. The value refers to securities issued by the retailer abroad, which are under the custody of the financial institution.

In the case of traditional credit operations, the largest debt is with Bradesco, in the amount of R$4.5 billion. Santander Brasil is a creditor of R$ 3.6 billion. Next come BTG Pactual, with R$3.5 billion, BV (Votorantim), with R$3.3 billion, Itaú Unibanco, with R$2.7 billion, Safra, with R$2.5 billion, and Banco from Brazil, with R$ 1.36 billion.

Other public banks are also on the list of Americanas’ creditors, with the largest debts held by Caixa Econômica Federal, with BRL 501.4 million, and BNDES (National Bank for Economic and Social Development), with BRL 276 million.

Understand: what banks stand for

In its announcement to the market, when the scandal came to light, Americanas reported “accounting inconsistencies” found in its balance sheets, referring to these risk-drawn operations, also called forfait.

The banks consider that the aforementioned “inconsistencies” were the result of accounting fraud. The assumption is supported by the information given by the company itself to the market that it only had R$ 5 billion in operations with suppliers.

The company also reported maintaining a “supplier reduction account”. In the assessment of the banks, this account may have been the trigger for the fraud.

For them, Americanas would have improperly taken advantage of the interest charged by the suppliers’ banks (in advance of payment) and later entered this interest in the “reducing account” as a discount granted by the supplier on the purchase price of the goods.

The R$10,000 difference in the purchase of pans, for example, could have been improperly incorporated into Americanas’ balance sheet as a discount given by the supplier to the goods –which would explain the appearance of R$20 billion in “accounting inconsistencies” over the course of almost a decade.

For the banks, the company kept R$ 20 billion in debt off the balance sheet, which has now been incorporated. If this suspicion is confirmed by expertise authorized by the Court, they may have evidence that there was fraud – which opens the way for them to ask for compensation directly from the trio of billionaire founders of the company, today reference shareholders, with a 31% stake.

Last Sunday (22), Lemann, Sicupira and Telles released a statement in which they claimed they were unaware of the accounting flaws. They said they were victims, like the other shareholders of the company, and committed themselves to Americanas’ recovery process.