The SDE (Brazil's Secretariat of Economic Law) has just published the new regulation on the procedures before the agency, including the procedures for applying for leniency and executing leniency agreements, on which the Sections of Antitrust Law, International Law, and Criminal Justice submitted comments jointly.

The SDE has incorporated many of the Sections' suggestions including the following:

1. Language has been added to allow individuals to be admitted as parties of the leniency agreement after its initial execution by the corporate applicant and before the conclusion of the investigations.

2. The SDE has significantly limited the scope of conduct information to be included in the leniency agreement.

3. The SDE has added language to clarify that the leniency agreement must contain information on the conduct "with effects in Brazil."

4. The SDE has abolished the requirement that parties seeking a marker provide information about leniency applications in other jurisdictions.

5. With respect to oral applications, further language has been added to indicate that applicants shall inform the SDE about their leniency applications in other jurisdictions, "provided that applicants are not prohibited in such jurisdictions from disclosing information concerning the applications."

6. The SDE has revised the confidentiality and disclosure provisions to make clear that access to the leniency materials and documents will be granted only to defendants as required by due process and their right of defense.

7. A provision has been added forbidding the disclosure or sharing of leniency materials and documents with "entities from other jurisdictions" and third parties (although such provision may not be effective and enforceable or avoid that such materials become discoverable, pursuant to Brazilian laws).

Lanna Peixoto Advogados (LP) - Antitrust Practice Group

For further information, please contact Bruno Peixoto at bpeixoto@lpglobal.com.br or +55 11 5185-2848