Negotiating in the middle of a crisis is never neutral. When a company faces a serious investigation in Brazilian Criminal Law, leniency, collaboration and other settlements under Brazilian Anti-Corruption Law and criminal procedure in Brazil quickly appear as a “solution” to end the problem and protect reputation. The real risk is different: without a method, these instruments turn defense into confession, dissolve strategy across multiple fronts and unnecessarily expose executives and the company itself. The purpose of this article is the opposite: to show how to synchronize fronts, preserve strategy and negotiate without self-incrimination.
Why leniency, collaboration and settlements reached the top of the board agenda
Over the last decade, the business environment in Brazil has become more regulated, more closely monitored and far more sensitive to integrity issues. Companies that interact with the public sector, operate in regulated industries or compete in concentrated markets deal every day with a constellation of authorities: internal-control bodies, courts of accounts, Public Prosecutors’ Offices, regulatory agencies, CADE, the securities regulator and other public entities.
In this setting, leniency, collaboration and settlements have stopped being exotic tools and have become part of the routine vocabulary of boards, executive committees and audit or risk committees. Senior management is pressed by investors, lenders and regulators to “give a quick answer”. It is understandable that the first instinct is “broad and immediate cooperation”. The problem is that, in this field, speed usually carries a high price: poorly structured negotiations crystallize narratives, close off alternatives and open room for criminal charges that could have been avoided.
When poorly managed cooperation becomes a confession
In practice, things start to go wrong very early. “Exploratory” meetings are scheduled in a hurry, without a solid factual timeline, without a matrix of individual risks and with no clarity about who each authority is and what role they play. Well-intentioned executives reveal details of contracts, payment flows, e-mails and informal conversations, often without any formal safeguard regarding the nature of the meeting or the future use of that information.
At the same time, documents and data sets are delivered with no clear scope, no reliable chain of custody and no coordination with a proper internal investigation. Very quickly, the company realizes that it has already handed over a large part of the evidence that could support its own defense, but still does not have a minimally safe blueprint for leniency, collaboration and settlements on each front. Instead of building a negotiation space, it has produced an evidentiary file against itself.
That is the point: the issue is not whether to cooperate. The issue is cooperating without method, without governance and without an integrated view of the board.
Synchronizing fronts before negotiating: criminal, regulatory, antitrust and corporate
No company negotiates on a single table. A serious corporate crisis in Brazil typically opens at least four simultaneous fronts: criminal (investigations and agreements with prosecutors), administrative and regulatory (CGU and other control bodies), antitrust (CADE and competition authorities) and corporate / capital markets (CVM, disclosure duties and directors’ fiduciary duties).
If each front moves on its own, the strategy implodes: what is admitted in an antitrust settlement may be incompatible with the criminal-defense theory; what is acknowledged in an administrative leniency agreement may generate unexpected corporate or labour exposure. This is why, before any substantive conversation with an authority, the company needs a proper crisis committee or “war room”, with specialist counsel, compliance, audit and, when necessary, communications and investor-relations support.
That core team is responsible for unifying timelines, mapping risks by individual and by topic, defining disclosure boundaries and aligning which messages can – and which must never – be delivered in each environment.
Leniency, collaboration and settlements: what each instrument really delivers – and at what cost
Although they are often mentioned in the same breath, leniency, collaboration and settlements are different instruments, with distinct target audiences, benefits and costs.
A leniency agreement usually focuses on the legal entity and is designed to rebuild the company’s relationship with the State: cease misconduct, remediate damage and cooperate with the investigation. In return, the company seeks a reduction in administrative sanctions, some relief from commercial restrictions and greater predictability for its ongoing operations. The price is high: a detailed description of facts, production of documents and, in many cases, the identification of individuals involved – very much in line with what has been reported in recent overviews of leniency agreements in Brazil.
Cooperation agreements with individuals under Brazilian Criminal Law (“colaboração premiada”) follow another logic. The individual offers relevant, contextualised and verifiable information in exchange for criminal benefits proportionate to the usefulness of the evidence. Here, the risk for the company is obvious: an uncoordinated cooperation agreement may drag the legal entity into a storyline over which it had no narrative control.
The non-prosecution agreement (ANPP) is yet another tool under criminal procedure in Brazil. It may be a rational solution for certain executives, provided it fits the institutional strategy and the other fronts in progress. Antitrust settlements, commitment terms and solutions negotiated with regulators complete the picture and connect directly with the idea of how a company can terminate a criminal case through a settlement, without losing sight of cross-effects between criminal, regulatory and reputational dimensions.
In all cases, senior management must ask a simple but hard question: what does this instrument actually deliver for the company and for the individuals involved – and what is the evidentiary, narrative and reputational cost of each clause?
How not to turn defense into confession: negotiating without self-incrimination and preserving strategy
Negotiating without self-incrimination is not a rhetorical trick; it is a discipline that starts well before any meeting with an authority. It begins with a serious internal investigation under Brazilian standards of chain of custody and privilege, with a factual timeline, structured interviews, document review and proper preservation of evidence.
With that map in hand, the company defines who can speak, to what extent, in which forum and under which safeguards. Sensitive facts – that is, facts that may be read as an admission of criminal conduct – should only reach the table when (i) there is clarity about the instrument being negotiated; (ii) the structure of benefits and counter-performance is reasonably mature; and (iii) there is an accurate record of the context, scope and permitted use of the information.
Language matters as well. Explaining a business model, an approval flow or a control failure is very different from attributing to oneself intent, knowledge or participation in conduct that the law qualifies as a crime. Pace also protects: suspending meetings, taking complex issues back to the crisis committee, and answering in writing when appropriate – all of this helps preserve strategy and avoid the kind of improvisation that turns doubt into an admission.
A case where strategy kept cooperation from becoming confession
Consider a Brazilian infrastructure company under competition, regulatory and criminal scrutiny for alleged collusive practices in public tenders. Part of the management team, under pressure from banks and investors, argues that the company should “sign whatever is necessary” to turn the page. Instead, the company sets up a crisis committee, conducts a robust internal investigation, identifies control weaknesses but also strong points in its position, and grades risks by individual.
Based on this work, the strategy is calibrated: first, a coordinated negotiation with the competition authority; then, with the administrative-control body; and only afterwards with the Public Prosecutor’s Office, exploring alternatives that range from criminal settlements to scenarios in which the available evidence is better tested at trial. At each table, the company avoids unnecessary admissions, controls the flow of documents and only signs commitments after testing their compatibility with the other fronts.
In the end, sanctions are significant – as one would expect in any serious case – but there is no evidentiary collapse produced by the company itself. Cooperation is there, and it is recognised, but it is not confused with an uncontrolled confession.
What really matters: cooperating with method is a duty of senior management
For companies exposed to the State, to regulators or to the media, leniency, collaboration and settlements are not shortcuts to “get rid of the headache”. They are structural decisions in Brazilian Corporate Criminal Law and governance. Senior management has the duty to ensure that cooperation is methodical: synchronized fronts, preserved strategy, protected individuals and controlled self-incrimination risk.
When the crisis erupts, the temptation to “solve everything in the first meeting” is strong. Precisely for that reason, the decisive moment comes earlier: preparing the house, organising evidence, mapping the board and clearly defining the room for cooperation. That is when a company decides whether negotiation will be a defense tool – or the opening chapter of a confession.
