A publicly traded Brazilian reinsurance company, IRB Brasil Resseguros SA, aka IRB Brasil RE (IRB), has entered into a non-prosecution agreement (NPA) with the Justice Department and agreed to pay $5 million in victim compensation to resolve the government’s investigation into a securities fraud scheme to fraudulently prop up IRB’s stock price by spreading false information that U.S. investment firm Berkshire Hathaway Inc. had invested in the company. IRB trades on Brazil’s B3 exchange and has shareholders around the world, including in the United States.
As it admitted in the NPA, IRB, through its former CFO, Fernando Passos, executed the fraud scheme beginning in February 2020 after an investment company published a report questioning the accuracy of IRB’s financial statements and announcing that the investment company had taken a short position against IRB’s stock. IRB’s stock price dropped in the wake of the report. In response, Passos developed and executed a scheme to mislead shareholders and the investing public by disseminating and causing to be disseminated materially false information that Berkshire Hathaway had invested in IRB, despite knowing that Berkshire Hathaway had not made any such investment. Passos circulated, and caused subordinate IRB investor relations employees to circulate, false materials to members of the press, analysts, and members of IRB’s board of directors to spread the false information regarding Berkshire Hathaway’s purported investment.
News outlets in both Brazil and the United States began incorrectly reporting that Berkshire Hathaway had invested in IRB. Following the news coverage, on the evening of March 3, 2020, Berkshire Hathaway issued a press release stating that it was not currently, had never been, and had no intention of becoming a shareholder in IRB. On March 4, 2020, after Berkshire Hathaway’s press release, IRB’s stock price dropped precipitously, causing significant shareholder losses.
As part of the NPA, IRB admitted that the facts described in the NPA constitute securities fraud. Under the terms of the NPA, IRB has agreed to continue cooperating with the Justice Department in other related investigations, to continue to implement a compliance and ethics program as set forth in the NPA, and to report to the department regarding the company’s remediation and implementation of the compliance measures as described in the NPA. Further, IRB has agreed to pay victim compensation of $5 million to shareholders who sold IRB stock on March 4, 2020.
The department reached this resolution with IRB based on a number of factors, including, among others, the nature and seriousness of the offense conduct involving IRB’s former CFO, as well IRB’s cooperation and implementation of remedial measures. In addition, IRB and the department agreed that the total amount of losses to all shareholders who sold IRB stock on March 4, 2020, was significantly more than $5 million. However, despite agreeing that a larger amount otherwise would be appropriate based on the law and the facts, IRB made representations to the department that the company had an inability to pay a criminal monetary penalty and to cover the full loss to shareholders. Based on those representations, the department, with the assistance of a forensic accounting expert, conducted an independent inability-to-pay analysis, which determined that the payment of more than $5 million was reasonably likely to threaten the continued viability of IRB, which in turn may expose the company’s shareholders to a further risk of loss.
Passos has been indicted and is presumed innocent until proven guilty beyond a reasonable doubt in a court of law.
Assistant Attorney General Kenneth A. Polite, Jr. of the Justice Department’s Criminal Division and Inspector in Charge Eric Shen of the U.S. Postal Inspection Service’s (USPIS) Criminal Investigations Group made the announcement.
The USPIS is investigating the case.
