TJSP rejects trade group of exporters’ claim seeking to hold 20 banks liable for R$20bn in losses by exporters
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The 11th Chamber of the São Paulo Court of Justice (TJSP) on Thursday rejected a request by the Brazilian Foreign Trade Association (AEB) to receive nearly R$20 billion in compensation from more than 20 banks accused of participating in an alleged international foreign-exchange cartel. The decision can be appealed. AEB represents major exporters in Brazil.
The so-called “FX cartel” was uncovered in 2015 and remains under investigation by Brazil’s Administrative Council for Economic Defense (Cade), where some of the accused parties have entered into agreements. The Cade is investigating alleged manipulation of exchange rates involving foreign currencies, specifically in the spot foreign-exchange market, through advance communication on digital platforms.
According to the investigations, the operations involved coordinating currency purchases and sales between January 2008 and December 2012. In 2015, traders’ chats came to light indicating coordinated efforts to influence foreign-exchange market benchmarks.
AEB subsequently sought R$19.15 billion in compensation. The amount is based on a study by researchers at the University of Campinas (Unicamp), who estimated an exchange rate and calculated how much exporters lost between January 2010 and December 2011, arriving at a total of R$107.4 billion.
According to the claim, manufacturing companies were the most affected, followed by the extractive and agricultural products sectors. Because AEB represents nearly 20% of Brazil’s exporters, that percentage was applied to the estimated total loss, considering the period between 2010 and 2011.
AEB argued in its claim that even foreign-exchange contracts entered into by its members with other banks—which are not defendants in the case—would have suffered damages because the alleged cartel affected the platform used by all of them.
The case reached the 11th Chamber of the TJSP after AEB appealed a lower-court decision that rejected its claim. In a decision dated February 22, 2022, Judge Luiz Gustavo Esteves found that the claim could not be brought as a class action. “The interest being protected is individualized and must be assessed according to the specific circumstances of each exporter, with the association seeking only collective protection for its members,” he said.
The judge dismissed the case without ruling on its merits, finding that it concerned the specific interests of certain exporting companies, which could not be pursued through a public civil action.
The ruling issued Thursday (13) by the 11th Chamber also found that a public civil action was not appropriate because there was no common origin for the alleged damages. According to the TJSP ruling, there was no common source of harm, and each company’s situation would have to be examined individually, including how it was allegedly affected by any exchange-rate coordination—something the banks also argue would not be possible.
According to Frederico Ferreira, a partner at Bermudes Advogados who represented one of the banks in the case, the Central Bank itself had already confirmed that there had been no conduct capable of altering exchange rates in a similar lawsuit brought by Petrobras. In light of this, the court concluded that the allegation of a cartel’s existence was insufficient to support a claim for compensation.
During the hearing, Ferreira argued that if the traders had the power to change exchange rates every hour of the day for so many years, they could have used that power to resolve currency crises. Attorneys Fernando Serec of TozziniFreire and Débora Fernandes of Machado Meyer also made oral arguments, in agreement with representatives of all the banks.
Contacted by Valor, the Brazilian Foreign Trade Association (AEB) declined to comment on the decision. Citibank, Bradesco (Kirton Bank) and UBS/Credit Suisse said they would not comment on the case. BTG Pactual, Itaú BBA, Santander Brasil, Bank of America, Banco Société Générale Brasil, Morgan Stanley, Standard Chartered, Banco Bocom Bbm, Standard Chartered Bank (Brasil), MUFG Bank Ltd. (formerly The Bank of Tokyo-Mitsubishi), HSBC Bank PLC, Banco BNP Paribas Brasil, and Deutsche Bank did not immediately respond to requests for comment.
No spokespeople could be reached for Inbursa, Tokyo Mitsubishi, J.P. Morgan Chase Bank, Banco Fibra, BNC Brazil Consultoria Empresarial, or Royal Bank of Canada.
On the administrative side, the Cade’s technical staff concluded in April an investigation into cartel formation in the offshore foreign-exchange market and recommended that six financial institutions and six individuals be found liable. The case will still be sent to the agency’s tribunal for a ruling, which may uphold or overturn the technical opinion. The investigation is separate from the inquiry into Brazil’s onshore foreign-exchange market, which remains under review by Cade’s technical staff.
If the Cade issues a finding of liability, the companies involved could face fines of up to 20% of their gross revenue. Individuals found responsible for the violation could face fines of up to 20% of the amount imposed on the company.
*By Beatriz Olivon — Brasília
Source: Valor International
https://valorinternational.globo.com/