|Transfer of control does not extinguish penalties|
The subject is the analysis of the letter of appeal against the decision of the Superintendence of Market and Brokers' Relations ("SMI") to absolve Intra S.A. Corretora de Câmbio e Valores (“Intra”) and penalize its director with a warning notice. Intra was accused of having several outstanding balances in current accounts of clients between 2006 and 2007, without having executed the respective financing contracts, representing violation of art. 1, header and sole paragraph, letter "a", and of art. 5, both of Instruction 051/86.
The broker stated that all acts based on the accusations took place before the acquisition of its controlling stake by Citigroup Global Markets Brasil CTVM S.A. ("Citigroup"). It also argued that the negative balances in some accounts were occasional and exceptional, and that it had enough coverage to prevent risk to other market participants. Intra also alleged that financing contracts could be entered into in such cases. One can only speak of executing contracts, it stated, when there is express manifestation by the parties to do so, which did not occur.
SMI found that the current controllers of Intra should not be blamed for any irregularities committed before the acquisition of control, but decided to penalize its director with a warning.
However, the rapporteur, Otavio Yazbek, amended the decision of the SMI, saying the transfer of control should not, under any circumstances, mean the extinction of punishment, since the new controller was aware that it was buying a brokerage firm with large operations in the market, it being its responsibility to protect itself from possible liabilities at the time of purchase.
He also noted that the defense’s argument that claims financing is only arguable in case of express manifestation of the parties to such, disregards the dynamics of the formation of credit relationships in market operations, a characteristic that is essential.
The collegiate decided to penalize both the director of Intra and the brokerage firm with a warning notice. (PAS RJ 2007/14708)