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The suspicion of the use of privileged information in operations with Petrobras papers (PETR3; PETR4), in the midst of the crisis between President Jair Bolsonaro (without a party) and the state company, places one of the most serious crimes in the capital. market in the spotlight. Verifying cases is complex, especially when those who benefit from the leaked information are not directly linked to the company.
From 2008 to 2018, the Securities and Exchange Commission (CVM) opened 54 disciplinary proceedings against 158 accused of “insider trading” (a term used in the insider trading market), resulting in 66 administrative convictions, according to a survey made by FGV Direito-SP. In the criminal sphere, there was only one final sentence in the country.
Penalized in 2001, the conduct provides for a prison sentence of 1 to 5 years and a fine of up to three times the amount of the advantage obtained with the crime. Twenty years later, Brazil had only one final sentence, in the case of Sadia’s offer for Perdigão, and no arrests.
In 2019, Eike Batista was sentenced to 8 years and 7 months in prison, and to the payment of a fine of R $ 82.8 million, for an insider with OSX papers (OSXB3), but in the first instance. In 2017, the brothers Joesley and Wesley Batista came to have the preventive custody decreed for the crime.
In the administrative sphere, the record fine imposed by the CVM in an insider trading case was R $ 536.5 million, imposed on Eike Batista for trading OGX shares based on inside information. The figure corresponds to two and a half times the amount of losses avoided by the employer with the operation. The second largest was the fine of R $ 26.4 million to the Swiss bank Credit Suisse in 2010.
In the recent Petrobras crisis, everything indicates that the CVM investigation will have as its main objective an atypical operation with options to sell shares of the state company on the afternoon of Thursday, February 18, shortly after the meeting between Bolsonaro and a team of six ministers in the Planalto Palace to deal with fuel prices and before the direct in which the president said that “something” would happen in the oil company in the coming days.
That day, two buy orders were placed: one with 2.6 million options, at 5:35 p.m., and the other at 5:44 p.m., with 1.4 million shares, both at R $ 0.04 . The movement revealed by the newspaper O Globo and confirmed by the Stadium / Broadcast Based on data from B3, the São Paulo Stock Exchange, it indicates that an investor could have obtained R $ 18 million of the options, traded in a volume that would only make sense if he really believed that the shares would fall at least 8%. floor.
The most likely hypothesis, if the infringement is proven, is that the information has been leaked to a market agent. The situation is constituted by the so-called secondary insider, practiced by someone with no direct connection to the company and, therefore, more difficult to prove. Law 13706/2017 penalized this indirect insider, who may involve family members of executives, investors, funds and former managers of the company. Previously, the courts could only convict primary “insiders”, who have access to relevant information at the source and have a duty of secrecy, as directors, advisers and controllers.
Tracks
Since it is virtually impossible to obtain direct evidence of “insider trading”, it can be proven based on evidence, as long as it is strong, consistent and convergent. As a parameter, the atypicality of the operations, their timing (in relation to the disclosure of relevant information) and the links of the person who carried out the negotiation with people who have proven or allegedly had relevant information not yet disclosed is used as a parameter. ”Says lawyer Carlos Martins Neto, partner of Moreira Menezes, Martins Advogados.
Former CVM director Otavio Yazbek says the possibility that the options trading was a regular hedging operation cannot be ruled out, but says there is a strong indication that the bought lot was too large. “When taking risks, the logic is not to bet all your chips,” he says.
To monitor insider trading cases, CVM relies on BSM, the supervisory arm of B3 that monitors and collects information on suspicious transactions. Together, they follow the flow of information in the market and the operations carried out. Specialized computer programs are also used to identify unusual transactions in the market.
CVM jurisprudence says that it is not necessary to demonstrate the means of access to information by the secondary insider or the chain of connections through which the investor obtained the privileged information, also using evidentiary evidence. Although this identification of the source of the information is not mandatory, experts agree that the ideal would be to have this proof.
The lawyer and former director of the CVM Luciana Dias says that the criminalization of the secondary insider opens space, ultimately, for the use of mechanisms such as requests for breach of telephone and data confidentiality, in addition to the possibility of joint action. with the Public Ministry and the Federal Police. In the specific case of Petrobras, the best way to verify the information path would be to meet the participants in the ministerial meeting.
A survey on the punishment of these cases by Professor SP Viviane Muller Prado of the FGV shows that, in most cases, the sanctions imposed by the CVM and the Judiciary have been fined two to three times the profit obtained by the defendants. “Only part of these operations falls through the (regulator’s) screen, so when the CVM catches an ‘insider’, it has to strictly punish,” says Luciana Dias.
The same parameter is used in most of the agreements signed by the municipality to resolve cases without trial, a method that for Viviane is mainly valid for procedural economy, although with less symbolic effect. From 2008 to 2018, the CVM accepted 50 proposals for the term of commitment in cases of “insider”, in which the defendant does not assume the fault. In the same period, 62 proposals were rejected.
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