SEC v. Petrobras Fair Fund

Welcome to the Petrobras Fair Fund Website.

UPDATE: On September 29, 2023 awards were sent to eligible claimants in the Petrobras Fair Fund.

If you purchased or acquired Petrobras common American Depository Shares (ADS) and/or preferred ADS (“Eligible Securities”) during the period from March 1, 2010 through April 22, 2015, inclusive (“Relevant Period”), you may be entitled to a recovery from the Fair Fund (as defined below).

The Commission’s Order¹ arose out of substantially similar facts and occurred during substantially the same time period as the violations alleged in the related class action (“Class Action”). The Fair Fund is separate and independent from the settlement funds previously established in the Class Actions entitled In re Petrobras Securities Litigation, No. 14‑cv‑9662 (S.D.N.Y. Dec. 8, 2014). However, the Fair Fund relates to allegations similar to those asserted in the Class Actions during the Relevant Period, which is subsumed in the Class Action period.

The Order found that, from at least 2003 to April 2012, Petrobras engaged in a large‑scale expansion of its infrastructure for producing oil and gas, a matter of significant interest to investors. During the same period, certain former senior Petrobras executives (the “Corrupt Executives”) worked with Petrobras’s largest contractors and suppliers to inflate the cost of Petrobras’s infrastructure projects by billions of dollars. In return, the companies executing those projects paid billions of dollars in kickbacks that typically amounted to 1% to 3% of the contract cost. The kickbacks were paid to the Corrupt Executives and conspiring politicians and political parties, including the Brazilian politicians to whom the Corrupt Executives owed their jobs at Petrobras. These same executives submitted misleading documents as part of Petrobras’ internal process of preparing its filings with the Commission.

The overcharges caused by the kickbacks resulted in an inflation of property, plant and equipment (“PP&E”) in Petrobras’s financial statements, including its fiscal year 2009 financial statements that were included in its Form 20‑F. The same executives also engaged in other bribery schemes with companies that sought to win contracts with Petrobras or to obtain better terms for those contracts. This scheme generated millions of dollars in bribes that the Corrupt Executives used for their own benefit and for the benefit of their political patrons. Petrobras failed to detect and disclose these corruption schemes. As a result of the Corrupt Executives’ failure to implement Petrobras’s internal controls, their exploitation of deficiencies in those controls, and their submission of false certifications in connection with Petrobras’s internal process for preparing its Commission filings, Petrobras made material misstatements and omissions in filings made with the Commission and in documents relating to a $69.9 billion global public offering of equity securities in 2010. The offering was intended to raise funds for Petrobras’s ongoing expansion of its business, and included approximately $10 billion in American Depositary Shares (“ADSs”) in the United States.

The Commission ordered Petrobras to pay disgorgement of $711,000,000 plus prejudgment interest of $222,473,797, for a total payment of $933,473,797. This amount was subject to reduction by any payment by Petrobras to the Class Action, up to and including the entire amount of the obligation. The Commission further ordered Petrobras to pay a civil money penalty of $853,200,000, subject to reductions of up to $682,560,000 and $85,320,000 for monies paid to the Brazilian authorities and the United States Department of Justice respectively, resulting in a post‑reduction minimum penalty of $85,320,000 to be paid within one year. Pursuant to Section 308(a) of the Sarbanes‑Oxley Act of 2002, the Commission established the Fair Fund, so that the civil penalties could be distributed to harmed investors. The Fair Fund includes the $85,320,000 paid by the Respondent. The Commission ordered Petrobras to pay all reasonable administrative costs and expenses of the distribution, including payments of taxes and the premium fee for the administrator bond. On March 25, 2019, Petrobras paid $85,320,000, satisfying the reduced penalty in full, into the Fair Fund, pursuant to the Order. The Commission appointed Miller Kaplan Arase LLC, as the tax administrator (“Tax Administrator”) of the Fair Fund on November 20, 2020. The Commission issued an order appointing Epiq Systems, Inc. (“Epiq”) as the fund plan administrator (“Fund Administrator”) of the Fair Fund on January 6, 2020.

Eligibility

If you previously submitted a Claim in connection with the Class Action and such Claim was approved (a “Class Action Authorized Claimant”), you are automatically deemed a Claimant, but only with respect to the transactions that were approved in the Class Action (the “Approved Transactions”). You do not need to submit another Proof of Claim to participate in the Fair Fund, unless you wish to amend your claim to include additional transactions or to provide new information or documents to cure any deficiencies determined in the Class Action that were not cured.

If you submitted a Claim in connection with the Class Action and such claim was determined to be deficient and you failed to cure such deficiencies (a “Class Action Deficient Claimant”), under the terms of the Distribution Plan for the Petrobras Fair Fund (the “Plan”), you are deemed a Class Action Deficient Claimant only with respect to the transactions that were deficient in the Class Actions (the “Deficient Transactions”). You do not need to submit another Proof of Claim Form to participate in the Fair Fund as to your Deficient Transactions, unless you wish to amend your claim. You must, however, provide the required information and/or documentation to cure the deficiencies identified in connection with your Class Action claim in order to be eligible to receive a distribution from the Fair Fund for those Deficient Transactions.

If you did not previously file a Claim in connection with the Class Action and wish to participate in the Fair Fund, under the terms of the Plan you must have submitted a Proof of Claim Form by February 28, 2022.