Key takeaways

• On March 18, 2015, Brazil’s President, Dilma Rousseff, signed Decree No. 8,420 (the “Decree”) further implementing Law No. 12,846, the so-called Clean Company Act (the “Act”), Brazil’s major new anti-corruption statute, which came into force on January 29, 2014. The Decree took effect upon its publication on March 19, 2015.
• The Decree regulates the process for imposing administrative liability on legal entities for acts of bribery or corruption under the Act, both within and outside Brazil. It also sets forth guidelines for calculating fines and establishes rules that will govern leniency agreements and the criteria Brazilian regulators use to assess anti-corruption compliance programs.
• The Decree establishes an administrative liability process (“Processo Administrativo de Responsabilização” or “PAR”) for assessing the administrative liability of legal entities under the Act, and provides that the Comptroller-General of the Union (“CGU”) shall have jurisdiction over enforcement involving alleged bribery of foreign (i.e., non-Brazilian) public officials and, along with other federal governmental entities, concurrent jurisdiction over corruption cases involving Brazilian federal officials.
• While the criteria for compliance programs largely parallel guidance previously provided by other regulators, such as the U.S. Department of Justice and the U.S. Securities and Exchange Commission in their November 2012 guidance under the FCPA, all of the provisions of the Decree must be seen through the lens of Brazil’s unique enforcement environment. Among other features, the Decree’s requirements for leniency agreements warrant careful review by in-house counsel and compliance professionals.