This week, the capital markets regulator will meet with Tullet Prebon, from which the transaction originated, and the management company that made the transaction that yielded a R$ 18 million profit amid the announcement of a change in command of the state-owned company

The investigation around the suspected use of privileged information (insider trading, in financial market jargon) involving call and put option contracts of Petrobras shares should advance this early week, with a meeting between the Securities Commission (CVM), regulator of capital markets in Brazil, and the brokerage Tullet Prebon, where the atypical operation started. In addition to the brokerage house, the manager who made the transaction that earned him a profit of $ 18 million will also meet with the regulator, according to Estadao.

At this first stage of the investigation, explained a source, the focus is on identifying whether such a manager regularly trades on the stock exchange with options (a transaction different from the traditional purchase and sale of shares) and if it usually operates with Petrobras options. The focus now will be to trace whether the manager, who bought the stock on February 18, just before President Jair Bolsonaro said in his weekly live broadcast that something would happen at Petrobras, got rid of such a contract already on the next day, on Friday, February 19, or whether he took the contract to its maturity, which was on the following Monday, February 22.

This will be important because, by maintaining the contract until Monday, the fact may bring a signal that there was great confidence that some event would bring down the value of Petrobras stock until the expiration of the contract, which in fact occurred. On Friday the 19th, Bolsonaro announced the change of presidency of the state-owned company, leading the shares to plummet more than 20% in the following trading session. On the other hand, if the contract was closed on Friday, the manager may have an argument that he had no inside information that encouraged him to make the transaction, which is now under the scrutiny of the regulator.

The transaction may be classified as a secondary insider trading, which may make it more difficult to prove. The secondary insider is the one that occurs when the person who made the wrongful transaction received the confidential information indirectly.

"In secondary is more difficult to catch. It is necessary to look at and build up the set of relationships of these people and it is not always easy to prove this," says the lawyer and former director of the CVM Otávio Yazbek. According to him, in order to trace the network of relationships, it may be necessary to break banking secrecy - the lawyer reminds that CVM has an agreement with the Federal Police, which makes this measure possible. "This can be a way to build relationships," he says.

Unlike the primary insider, in which the transaction in the market is made, for example, by an employee of the listed company with direct access to the information, in the secondary insider there is no presumption that there was access to confidential information. The work of proof, therefore, becomes more arduous.

In order to open a sanctioning process against a secondary insider, the collection of evidence needs to be even more detailed. Identify, for example, the friendly relationship between the primary and secondary insider, email exchanges and trading history, so that a strong signal is established that there was access to inside information and that he used it to make a trade for profit. In theory, a secondary insider can occur when a person hears in an elevator or in a restaurant some confidential information and, knowing this, uses it to perform a transaction in the capital market.

"The big difference between primary insider cases, i.e. someone from inside the company, and secondary insiders is how access to inside information is proven. In cases of primary insiders, there is the understanding that access to privileged information is presumed, so that the accused would have to prove that, even if he is from the company, he didn't have access to the information", says Marcos Sader, partner at i2a Advogados.

In cases of secondary insiders, explains the lawyer, there is not a presumption of knowledge of the inside information. Therefore, it is the prosecution's job to demonstrate how the secondary insider obtained that insider information.

In Brazil, the criminalization of the secondary insider occurred only in 2017, through Law 13,706. Before that, only the primary insider was punished, who has access to relevant information directly from the source with a duty of secrecy, such as officers, directors, and controllers.

FGV professor, Director and coordinator of the Markets and Investments Study Center, Viviane Muller Prado, points out that the additional difficulty to prove the secondary insider is to make the connection of the arrival of the information to the investor who carried out the operation considered atypical. "The difficulty is to make the connection and understand the flow and how the information reached that person", she comments.

She stresses that another relevant point when investigating cases of alleged insider trading is to understand if there is any economic justification for the operation in question.

Although making these connections is not always easy, around here the CVM has in its history punishments to indirect insiders. One of the best known was the Globex case, then owner of Ponto Frio, which occurred in 2009. The operation considered atypical preceded a material fact disclosed by the company, in which it announced the merger with Casas Bahia.

The regulator was able to gather a series of indications, such as the fact that the brokerage account held by one of the defendants had been opened only two days before the operation took place. The investor's connection to the company was found and, apart from this, the financial volume of the operation was relevant, considering his declared assets.

Sought, the CVM said it does not comment on specific cases and that the operation cited is in progress through an administrative process. Tullet Prebon did not respond to the report's demand.