Closed-door vote at Brazil regulator sparks scrutiny in Ambipar case

In recent weeks, Valor spoke with several CVM officials who participated in or had knowledge of details from the session, held just days before Christmas. The minutes of the meeting have yet to be published—another peculiarity in the case. Typically, the agency releases minutes roughly 30 days after its meetings.

In addition to confirming on the merits the decision to waive Ambipar’s obligation to conduct a takeover bid, the board unanimously upheld the casting vote of then-interim chairman Otto Lobo, which is now under scrutiny by the TCU, as previously reported by Valor. Lobo has been nominated by President Lula to chair the CVM and is awaiting Senate confirmation.

Contacted by Valor, Lobo confirmed details of the meeting but said the deliberations followed standard institutional procedures applied in similar cases.

The Ambipar matter was the final item on an agenda that included five other proceedings, in a meeting that began at 10 a.m. on December 23, a Tuesday. The board was set to analyze appeals involving a pharmaceutical company, irregularities in the capital markets, and administrative matters under the CVM’s authority.

When Lobo called for a vote on the Ambipar appeal, participants were surprised by an unusual request: he asked all staff members not directly linked to the case to leave the room.

Although the CVM’s Tuesday morning board deliberations are not open to the public, it is uncommon to ask agency staff to exit, as attendance by employees not directly involved in a specific case is generally permitted. Exceptions typically apply only when a matter is classified as confidential, which was not the case for the Ambipar discussion. After asking staff to leave, Lobo informed those present that he had called in an external participant.

The individual was federal prosecutor Ilene Patrícia de Noronha Najjarian, who has worked at the CVM for many years and currently serves as a sitting member of the National Financial System Appeals Council (CRSFN), which reviews sanctions imposed by the CVM, the Central Bank, and the Financial Activities Control Council (COAF). She is in her second term representing the CVM at the appeals body.

According to accounts from those present, Najjarian’s participation caused discomfort. The CVM’s Specialized Federal Attorney’s Office (PFE) had previously taken an institutional position against Lobo’s interpretation, arguing that he should not have exercised the casting vote that exempted Ambipar from the tender offer requirement. In the PFE’s view, Lobo could not break the tie because when the case first came before the board, he was not the CVM’s chairman. At the time, João Pedro Nascimento chaired the agency and had voted in favor of requiring the takeover bid.

When the case returned to the agenda after Lobo requested additional review, the vote was tied two-to-two. Director Marina Copola sided with Nascimento in favor of the tender offer, while Director João Accioly voted with Lobo. Lobo then cast the tie-breaking vote in favor of Ambipar and its shareholders, including Banco Master, Nelson Tanure, and controlling shareholder Tércio Borlenghi Junior.

During the December meeting, the PFE reiterated its position, this time through acting chief federal prosecutor Marcelo Mello Alves Pereira, who had taken over from Luciana Alves. She had stepped down from the role in September, months after formally opposing Lobo’s interpretation.

According to people familiar with the matter, Alves had already indicated she intended to head the CVM’s attorney’s office for only two years. She had been in charge of the Specialized Federal Attorney’s Office (PFE) since 2023. However, Valor has learned that Lobo’s appointment as interim chairman of the CVM also weighed on her decision, given that the PFE provides direct legal counsel to the chairman, who is responsible for appointing the head of the office.

In this context, Marcelo Mello Alves Pereira was serving as head of the CVM’s legal department. Although he maintained the PFE’s formal position against Lobo’s procedural interpretation, the interim chairman gave the floor to Najjarian, who spoke in support of Lobo’s view and against the stance of the PFE itself.

Participants described the moment as awkward, noting that Najjarian’s remarks contradicted the position of her direct superior. Among federal prosecutors, the episode was viewed as a form of insubordination. Sources also noted that in recent years, there have been no reports of Najjarian participating in board-level decision meetings, as she does not hold a leadership role within the PFE.

“If everyone not linked to the case had to leave the room, why was a prosecutor who did not head the legal department allowed in to contradict her superiors?” a CVM source told Valor.

During Lobo’s interim leadership, sources said Najjarian had been consulted on other occasions regarding legal doubts in certain decisions. Should the Senate confirm Lobo as chairman, she is considered the leading candidate to head the PFE-CVM.

Another element that drew attention during the December judgment was the stance of CVM Superintendent-General Alexandre Pinheiro, who heads the agency’s technical staff. Although the technical department had challenged Lobo’s interpretation, exempting Ambipar from the tender offer, Pinheiro submitted a written statement supporting Lobo’s view, which was read during the meeting. He was not present at the session.

Pinheiro’s position was poorly received by other superintendents, who felt unsupported in a high-profile and controversial case. In the initial vote, when Lobo cast the deciding vote, Pinheiro had not made any statement, despite being present at that session.

At the conclusion of the December meeting, the board unanimously rejected the appeal filed by the technical staff. While Copola maintained that the tender offer was required, she supported Lobo’s interpretation regarding the casting vote.

The connection between Banco Master and Ambipar emerged after the capital markets regulator investigated an alleged coordinated operation involving the bank and businessmen Nelson Tanure and Tércio Borlenghi Jr., Ambipar’s main shareholder, to boost the company’s share price by roughly 800% between June and August 2024. Had Ambipar been required to conduct a tender offer, those shareholders would have faced multi-billion-real payments.

The TCU’s technical staff identified “indications of wrongdoing” in Lobo’s casting vote. In a formal opinion, they concluded that because the original judgment began under João Pedro Nascimento’s presidency, the tie-breaking vote should have been attributed to him, even though he was not present at the December session.

Lobo was nominated to chair the CVM by President Lula in January, in a move that reportedly went against the preference of the Finance Ministry, to which the CVM is linked. His nomination has been attributed to members of the judiciary, business figures close to Lula, and leaders from the Centrão, a cluster of center-to-right parties in Congress.

In a statement to Valor, Lobo said the “conduct of the proceedings observed the applicable institutional procedures.” The removal of individuals from the room, he said, aimed to “minimize the risk of information leakage before official publication.”

Regarding Najjarian’s participation, Lobo said she “had a formal understanding of the case, as did the superintendent-general.” He described the move as consistent with session dynamics “whenever legal advisory support or the hearing of professionals with broad technical insight is deemed appropriate.”

Former PFE chief Luciana Alves said, through the Federal Attorney General’s Office (AGU), that her departure was for personal reasons unrelated to the Ambipar case.

Najjarian said inquiries should be directed to the CVM and the AGU. Both institutions were contacted.

In a statement, the CVM said the minutes had not yet been published “due to workflow” and would be made available “in due course.” Regarding Najjarian’s presence, the regulator did not provide a copy of her statement or explain the reason for her participation, saying the relevant institutional information would be reflected in the minutes.

On the superintendent-general’s absence, the CVM said he was “on recess” and represented by his deputy, Maria Lúcia Macieira de Mello. The agency did not provide the written statement read during the session and recommended “consultation of the meeting minutes at the appropriate time.”

Valor also asked how many board meetings Najjarian attended over the past five years, but received no response. The CVM likewise did not answer whether she would declare herself recused from judging Ambipar-related cases at the CRSFN should appeals arise in the future.