October 2022

_the october│2022 edition of our Newsletter has the following highlight:

– CVM publishes guidelines regarding crypto assets considered securities

– Research shows that values of settlement agreements closed with CVM have increased

– B3 launches tool to monitor illegal practices of employees or related people who have access to inside information


_CVM publishes guidelines regarding crypto assets considered securities


On October 11, 2022, the Brazilian Securities and Exchange Commission (“CVM“) published Guidance Opinion No. 40 (“Opinion 40“) consolidating its understandings on crypto assets classified as securities. Although technologies involved in crypto assets aren’t subject to CVM regulation and supervision, their issuance and trading as securities, including intermediation services, bookkeeping, custody, centralized deposit, registration, clearing and settlement of transactions, shall comply with its applicable rules.


The Opinion 40 defines crypto assets as digitally represented assets protected by cryptography, which are generally represented by intangible digital securities (tokens). A token will be classified as a security when:


  • it is a digital representation of any security provided for in items I to VIII of article No. 2 of Law No. 6.385/1976 (“Capital Markets Law“), or of a receivable certificate, according to Law No. 14.430/2022 (“Securitization Framework“); and/or
  • it is a security or collective investment agreement, with public offering, that generates participation, partnership, or remuneration rights, including those resulting from rendering services, whose income comes from efforts of entrepreneurs or third parties, as provided for in item IX of art. 2 of the Capital Markets Law.


To classify tokens and consequently reveal their legal status, CVM adopted a functional criteria, according to which there are three categories:


  • Cryptocurrency or Payment token: seeks to replicate functions of currency, notably as a unit of account, means of exchange and store of value;


  • Utility token: used to acquire or access certain products or services;


  • Asset-backed token: represents one or more assets, tangible or not.


Market players should carefully examine the classification of these types of assets, since the divisions are neither exclusive nor restraining, which means a crypto asset may simultaneously belong to more than one of these categories.


CVM points out that there is still no specific legislation in Brazil on this matter, and, for this reason, Opinion 40 criteria are subject to future amendments, such as those proposed by Bill No. 4.401/2021, whose content involves transactions regarding crypto assets and is currently being analyzed by Brazil’s House of Representatives (Câmara dos Deputados).


Opinion 40’s goal is to enhance transparency regarding crypto assets classified as securities and its disclosure regime. In addition, according to CVM’s president, João Pedro Nascimento, Opinion 40 is a recommendation and a guide to the market, whose aim is to ensure greater certainty and security for all, as well as to contribute towards protecting investors and savings of the general public, and to promote a favorable environment for developing crypto economy, with integrity and adherence to relevant constitutional and legal principles.


Opinion No. 40 can be accessed in Portuguese through the link bellow:




_Research shows that values of settlement agreements closed with CVM have increased


According to an article published by the Brazilian newspaper Valor Econômico on October 17, 2022, settlement agreements closed into in administrative sanctioning proceedings by CVM are more expensive since the edition of Law No. 13.506/2017, which provides for the administrative sanctioning proceedings (“PAS“) within the scope of CVM, and amended the Capital Markets Law and CVM Resolution No. 45, 2021 (“RCVM 45“).


The new legislation increased CVM’s economic punitive power, whose absolute maximum sum of fines grew from R$ 500 thousand to R$ 50 million. As an example of the new sums imposed by CVM, the newspaper points out settlement agreements originated from violations related to disclosure of information. Previously, these agreements costed proponents R$200 thousand; if adjusted by IPCA (consumer prices index), the sum would be around R$240 thousand. Currently, however, the cost has been, on average, R$350 thousand.


The article also found that the execution of terms of commitment is now also more frequent, a practice that is in line with CVM’s aim for RCVM 45, which encourages and privileges alternative instruments for resolving irregularities.


The article published by Valor Econômico can be accessed in Portuguese through the link below:





B3 has added to its services portfolio a tool that allows to investigate and monitor investments of employees and related people who have access to inside information, with is the purpose to help listed companies to restrain the practice of criminal use of nonpublic information in the financial market, such as front running and insider trading.


Called “Monitora PIP”, the software provides a broad view of the employee’s investments in B3’ environment, as it checks, on a daily basis, besides the initial and final position of listed company investors, data on day trades and operations with options and derivatives.


The tool is targeted to listed companies, as well as law firms, banks, and consulting firms.


To obtain these data, Monitora PIP uses the employee’s CPF (Brazilian Individual Taxpayer Identification Number), who should be advised on the company’s monitoring system. To avoid undue monitoring of individuals who are not on the list of employees or who are not related people, B3 clarifies that there are regular audits to curb the practice and that the software identifies when a CPF is monitored by more than one company at the same time.


October 2016


_CVM punishes former managers for insider trading

CVM recently decided on Administrative Proceeding No. RJ2014/3225, regarding the liability of former managers of a publicly-held company for the use of insider information for trading shares of the company prior to the disclosure of relevant facts related to the absence of oil and gas in an offshore well.

CVM verified that the former managers sold a significant number of shares before the disclosure of the aforementioned relevant facts. The accused had been managers of the company at the same time and were colleagues of other managers who were still working at the company, which could have eased their access to insider information. Due to the coincidence in the time of the sale and the transcription of conversations between some of the accused and operators of brokerage firms, CVM technical area understood the trading of shares was held with the use of insider information, which is prohibited by Article 155, §4th of Law 6.404/76, combined with Article 13, §1st of CVM Instruction 358.

For the Reporting Director, Roberto Tadeu, only the certainty of the results with the exploration of the wells, as well as its effects in the share price in the market, could have motivated the accused to sell a relevant number of shares on the eve of the disclosure of the relevant fact and, at the same time, express in advance, to the operator of the brokerage firm, his intention to buy the shares in the following week.


The main proof of the practice of insider trading in this case was the transcription of phone conversations between the accused and the operator of the brokerage firm, who intermediated the sale of shares.

In this context, CVM applied the following penalties: (i) to the former manager who traded shares twice with the use of insider information, fine in the amount of R$456,560.00; and (ii) to the former manager who traded shares once with the use of insider information, fine in the amount of R$338,500.00. The amount of the fines corresponds to twice the amount of the avoided loss.

_BM&FBovespa discloses the comments received to the proposed changes in the special trading segments of Nível 2 and Novo Mercado

BM&FBovespa Stock Exchange disclosed the comments received in the public hearing regarding its proposal to amend the rules applicable to New Market (Novo Mercado) and Level 2 (Nível 2) special trading segments. 39 comments were received containing suggestions, criticism and compliments to the proposed changes, which will be used for the final proposal in the closed hearing (i.e. hearing limited to the companies listed in the New Market and Level 2 special trading segments), starting in November, 2016.

Among the recurrent comments, we highlight the following:

advisory committees of the board of directors: there was a lot of discussion regarding the cost of this requirement for the companies. The suggestion is to make the proposed structures flexible, allowing the companies to include the committees proposed assignments in their own structure.

adoption of internal policies: a recurrent concern regarding this matter was that the internal policies shall comply with the Brazilian Code of Corporate Governance (Código Brasileiro de Governança Corporativa), which is still under discussion, in order to unify the rules.

disclosure of management body compensation: the disclosure of the maximum, average and minimum compensation of each management body and of the audit board (Conselho Fiscal) was a controversial topic in the comments. While some entities were in favor, suggesting a gradual implementation, others suggested its removal or a different approach in the disclosure of this information (for example, the disclosure of the average compensation, median and standard deviation, in order to attend the market’s concern regarding abuse and distortions in the compensation of the management, but without exposing directly the highest compensation).

transfer of control – premium fee: most of the comments were against the buyer’s obligation to provide the minority shareholders of the company with the option to remain as shareholders of the company with the payment of a premium fee, arguing that there is no relevant reason to include this rule. One of the few entities in favor of this rule was the Instituto Brasileiro de Governança Corporativa (IBGC), which understood this is an additional mechanism to tag along, allowing shareholders to choose between leaving or remaining in the company receiving a premium fee either way.

tender offer due to acquisition of relevant corporate interest: there were lots of comments regarding the obligation to launch a tender offer in case of voluntary acquisition of corporate interest higher than 30% of the share capital. Some comments suggested the removal of the rule, others understood the 30% percentage may not be appropriate to all companies (for companies with wide shareholder dispersion the percentage would be high and for companies with limited shareholder dispersion, low), suggesting turning it flexible.

The comments are available in Portuguese at:


_Supreme Court decision affects the purchase of rural property in São Paulo by Brazilian companies with foreign control

Brazilian Law 5.709/71 limits the purchase of rural property by foreign companies and by Brazilian companies with foreign control, without distinguishing them.


On December 11, 2012, the Magistrate’s Office of the State of São Paulo (Corregedoria Geral da Justiça do Estado de São Paulo) issued a legal opinion contrary to the AGU Legal Opinion, enabling the purchase of rural property in the State of São Paulo by Brazilian legal entities with foreign corporate interest, without applying the aforementioned restrictions.

In 2014 the National Institute of Colonization and Agricultural Reform (INCRA) and the Federal Government filed a claim before the Brazilian Supreme Court (Supremo Tribunal Federal – STF) with the purposes of having the aforementioned legal opinion by the Magistrate’s Office of the State of São Paulo declared void.

On September 01, 2016, STF granted an injunction to suspend the effects of the Magistrate’s Office of the State of São Paulo legal opinion until the final decision on this matter is granted by the court. Therefore, since the granting of this injunction, the Real Property Registries and the Notary Offices of the State of São Paulo shall comply with the AGU Legal Opinion. Until this moment, the Supreme Court has not yet granted a final decision on this matter.

The injunction decision is available in Portuguese at: http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp?numero=2463&classe=ACO&origem=AP&recurso=0&tipoJulgamento=M