The JBS meat-packing corruption scandal continues to resonate and, unfortunately, not for the better. In May, the company agreed to pay a $3.2 billion fine for its extensive history of bribing politicians in Brazil. The principals of the company who escaped prosecution through their cooperation with Brazilian authorities and received a leniency agreement in exchange for full disclosure of their crimes may not yet be out of hot water.
In Brazil, as is the case in the United States with the FCPA, if a defendant or non-charged party wants a chance at leniency, they must cooperate fully with the authorities, which includes providing all evidence of criminal conduct. This requirement is further enshrined in every settlement agreement with the U.S. government that specifically carves out crimes not disclosed or that may later come to light. In the United States, this is a feature of FCPA settlements with both the Justice Department and the Securities and Exchange Commission.
In the case of JBS, the leniency granted to them by Brazilian authorities may be partially revoked, following revelations that the company’s chairman, Joesley Batista, and a fellow state’s witness in the bribery case recorded a conversation that discussed crimes not covered in the plea bargain. This could result in the scuttling of the leniency deal and may add further testimony against those executives who so far have avoided prosecution.
While this recording—which was apparently submitted to prosecutors as an attachment to an unrelated matter–is not exactly recidivist behavior, if the details on the recording are proven true, they could end the JBS plea agreement and place Batista in particular in danger of going to jail. Already, Brazilian prosecutors have opened an investigation into partially or fully revoking Batista’s plea agreement. Whether Batists remains free or not, this case is a perfect example of how, if you are looking to gain leniency for your acts of bribery and corruption, and the prosecutors are inclined to give it to you, if you do not provide every single shred of evidence of criminal conduct, your plea agreement might not be worth much.