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Petrobras seeks damages from alleged forex cartel

Por: Global Competition ReviewImprimirVisualizar em PDF

According to Brazilian media reports, Petrobras filed the claim on 2 May in a Rio de Janeiro court, asking to stop the statute of limitations clock on the claim, and grant it permission to sue the banks. A 14 May article in Exame says the defendant banks in the Petrobras claim are BBM, BNP Paribas Brasil, BTG Pactual, Bradesco, Itaú BBA, Santander, Fibra and Banco Société Générale Brasil.

Petrobras actively participates in the currency exchange market in Brazil as both a buyer and seller of foreign currency. The company did not respond to a request for comment.

In 2016, CADE opened a probe into Brazil's onshore currency market – the market for currency exchanges conducted in Brazil involving reais – based on indications of anticompetitive practices of pricing and trading conditions between financial institutions. The agency said 10 banks, as well as 19 employees and former employees, attempted to manipulate foreign exchange rates and other financial exchanges.

BTG Pactual, Citibank, HSBC, BBM, BNP Paribas and Múltiplo, are "strongly" implicated in the agency's investigation, CADE said, and there is evidence of misconduct, but to a lesser extent, against Itaú, Santander, ABN AMRO Real, Fibra and Societé Générale.

Third parties can file private damages lawsuits regardless of an ongoing investigation, a CADE spokesperson confirmed today.

The enforcer also has probed offshore foreign exchange markets, in which conduct occurs outside Brazil but affects the country. CADE reached settlement agreements worth 183.5 million reais (€50.7 million) in 2016 with Barclays, Citigroup, Deutsche Bank, HSBC and JP Morgan. But the case is ongoing against Bank of Tokyo-Mitsubishi UFJ, Credit Suisse, Merrill Lynch, Morgan Stanley, Nomura, Royal Bank of Canada, Royal Bank of Scotland and Standard Chartered, as well as 30 individuals.

Machado Meyer Advogados partner Maria Eugênia Novis in São Paulo said a lawsuit such as the one Petrobras has filed aims at "interrupting" the effects of the statute of limitations, to allow a damages claim arising from the alleged forex manipulation.

"We are aware of many cases, in which companies that frequently engage in foreign exchange deals, filed court injunctions to secure the possibility of validly filing indemnification claims against the investigated banks," she said.

Daniel Oliveira Andreoli at AndreoliLaw in São Paulo said CADE has been "trying for some time" to stimulate the use of private damages actions to reinforce cartel deterrence. As this is a "new world" for Brazilian courts, a learning period is expected to determine the necessary levels of proof and how to calculate the amount of damages, Andreoli said.

Licks Attorneys partner Luciana Martorano in São Paulo said the measures taken by Petrobras is a strong indicator that the private antitrust litigation is a "trend" in Brazil, while Pinheiro Neto Advogados partner Leonardo Rocha e Silva said it shows that companies doing business in Brazil should be "even more concerned" about the risks of private competition litigation.

Itaú Unibanco said it has not been notified of the lawsuit, and "reiterates strongly" that it has not participated in any illicit activity. "For this reason, [Itaú Unibanco] has not caused harm of any nature to Petrobrás."

BTG Pactual and BBM declined to comment on the investigation. The other banks implicated in the Petrobras lawsuit did not respond to requests for comment.

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