CVM criticizes survey naming it as the regulating agency most often challenged in court
In a study conducted by the Universidade de São Paulo (USP) at the request of the Brazilian National Council for Justice (CNJ) and released in April, the Brazilian securities and exchange commission (CVM) was identified as the regulating organization whose administrative decisions originate the highest number of lawsuits. At first sight, someone might imagine that the CVM is the most frequently challenged in court among Brazil's 13 regulating agencies. But the impression soon falls apart when some additional aspects are taken into account. The first is the CVM's longevity, having been created in 1978 whereas most of the entities included in the survey (including Anatel and Aneel) were only established in the 1990s.
The analysis identified 83 thousand ongoing or completed lawsuits wherein one of the parties was a regulator; the CVM accounts for 16,986 of that total. The problem is that the number encompasses all lawsuits regardless of whether the regulator is named as plaintiff or defendant. "No distinction was made in the survey. All of the cases involve administrative decisions that were not complied with and ended up in court", explains Paulo Furquim de Azevedo, a professor at the Fundação Getulio Vargas (FGV) and head of the economic area of the USP survey.
The oversight fee, charged to all entities participating in the Brazilian securities distribution system, accounted for about 60% of a sample of 177 lawsuits recorded between 1994 and 2009, according to Azevedo. The remainder basically pertained to fines. Established by Law 7,940 of 1989, the fee generated a large number of disputes during its initial years — "like any tax", states Paulo Salles de Toledo, a jurist and USP professor — which helped to inflate the numbers.
The survey did not take into account the ongoing proceedings filed with the judiciary section in Rio de Janeiro, where the CVM has its main office and most of the legal disputes related to the regulator's main activities have been filed. For these reasons, the CVM issued a press release stating that the study failed to portray the "actual scenario". According to the capital market regulator, a survey of the Rio de Janeiro section would show that among the injunctions issued between 2005 and 2010, the CVM obtained unfavorable decisions in only 14.3% of cases.