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1.
Relevant legislation
What is the relevant legislation?To read more
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2.
Relevant institutions
Which authority investigates cartel matters? Is there a separate prosecution authority? Are cartel matters adjudicated or determined by the enforcement agency, a separate tribunal or the courts?To read more
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3.
Changes
Have there been any recent changes, or proposals for change, to the regime?To read more
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4.
Substantive law
What is the substantive law on cartels in the jurisdiction?To read more
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5.
Industry-specific provisions
Are there any industry-specific infringements? Are there any industry-specific defences or antitrust exemptions? Is there a defence or exemption for government-sanctioned activity or regulated conduct?To read more
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6.
Application of the law
Does the law apply to individuals or corporations or both?To read more
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7.
Extraterritoriality
Does the regime extend to conduct that takes place outside the jurisdiction? If so, on what jurisdictional basis?To read more
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8.
Export cartels
Is there an exemption or defence for conduct that only affects customers or other parties outside the jurisdiction?To read more
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9.
Steps in an investigation
What are the typical steps in an investigation?To read more
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10.
Investigative powers of the authorities
What investigative powers do the authorities have? Is court approval required to invoke these powers?To read more
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11.
Inter-agency cooperation
Is there cooperation with authorities in other jurisdictions? If so, what is the legal basis for, and extent of, cooperation?To read more
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12.
Interplay between jurisdictions
Which jurisdictions have significant interplay with your jurisdiction in cross-border cases? If so, how does this affect the investigation, prosecution and penalising of cartel activity in cross-border cases in your jurisdiction?To read more
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13.
Decisions
How is a cartel proceeding adjudicated or determined?To read more
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14.
Burden of proof
Which party has the burden of proof? What is the level of proof required?To read more
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15.
Circumstantial evidence
Can an infringement be established by using circumstantial evidence without direct evidence of the actual agreement?To read more
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16.
Appeal process
What is the appeal process?To read more
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17.
Criminal sanctions
What, if any, criminal sanctions are there for cartel activity?To read more
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18.
Civil and administrative sanctions
What civil or administrative sanctions are there for cartel activity?To read more
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19.
Guidelines for sanction levels
Do fining or sentencing principles or guidelines exist? If yes, are they binding on the adjudicator? If no, how are penalty levels normally established? What are the main aggravating and mitigating factors that are considered?To read more
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20.
Debarment
Is debarment from government procurement procedures automatic, available as a discretionary sanction, or not available in response to cartel infringements? If so, who is the decision-making authority and what is the usual time period?To read more
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21.
Parallel proceedings
Where possible sanctions for cartel activity include criminal and civil or administrative sanctions, can they be pursued in respect of the same conduct? If not, how is the choice of which sanction to pursue made?To read more
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22.
Private damage claims
Are private damage claims available for direct and indirect purchasers? What level of damages and cost awards can be recovered?To read more
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23.
Class actions
Are class actions possible? If yes, what is the process for such cases? If not, what is the scope for representative or group actions and what is the process for such cases?To read more
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24.
Immunity
Is there an immunity programme? If yes, what are the basic elements of the programme? What is the importance of being ‘first in’ to cooperate?To read more
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25.
Subsequent cooperating parties
Is there a formal partial leniency programme for parties that cooperate after an immunity application has been made? If yes, what are the basic elements of the programme? If not, to what extent can subsequent cooperating parties expect to receive favourable treatment?To read more
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26.
Going in second
What is the significance of being the second cooperating party? Is there an ‘immunity plus’ or ‘amnesty plus’ option?To read more
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27.
Approaching the authorities
Are there deadlines for initiating or completing an application for immunity or partial leniency? Are markers available and what are the time limits and conditions applicable to them?To read more
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28.
Cooperation
What is the nature, level and timing of cooperation that is required or expected from an immunity applicant? Is there any difference in the requirements or expectations for subsequent cooperating parties?To read more
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29.
Confidentiality
What confidentiality protection is afforded to the immunity applicant? Is the same level of confidentiality protection applicable to subsequent cooperating parties? What information will become public during the proceedings and when?To read more
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30.
Settlements
Does the investigating or prosecuting authority have the ability to enter into a plea bargain, settlement or other binding resolution with a party to resolve liability and penalty for alleged cartel activity? What, if any, judicial or other oversight applies to such settlements?To read more
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31.
Corporate defendant and employees
When immunity or partial leniency is granted to a corporate defendant, how will its current and former employees be treated?To read more
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32.
Dealing with the enforcement agency
What are the practical steps for an immunity applicant or subsequent cooperating party in dealing with the enforcement agency?To read more
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33.
Policy assessments and reviews
Are there any ongoing or anticipated assessments or reviews of the immunity/leniency regime?To read more
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34.
Disclosure
What information or evidence is disclosed to a defendant by the enforcement authorities?To read more
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35.
Representing employees
May counsel represent employees under investigation in addition to the corporation that employs them? When should a present or past employee be advised to obtain independent legal advice?To read more
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36.
Multiple corporate defendants
May counsel represent multiple corporate defendants? Does it depend on whether they are affiliated?To read more
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37.
Payment of penalties and legal costs
May a corporation pay the legal penalties imposed on its employees and their legal costs?To read more
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38.
Taxes
Are fines or other penalties tax-deductible? Are private damages awards tax-deductible?To read more
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39.
International double jeopardy
Do the sanctions imposed on corporations or individuals take into account any penalties imposed in other jurisdictions? In private damage claims, is overlapping liability for damages in other jurisdictions taken into account?To read more
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40.
Getting the fine down
What is the optimal way in which to get the fine down? Does a pre-existing compliance programme, or compliance initiatives undertaken after the investigation has commenced, affect the level of the fine?To read more
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Updates and trends
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O.C. Arruda Sampaio is a boutique law firm specialised in antitrust law as well as litigation related to the above referred areas, with a long list of services rendered to Brazilian and foreign clients since its creation, in 1993.
View more information about O C Arruda Sampaio
São Paulo
Alameda Ministro Rocha Azevedo, 882, 8th floor01410-002
São Paulo
Brazil T: +55 11 3060 4300
F: +55 11 3082 2272
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