Lost in Translation: Cease-and-Desist Agreements and Private Enforcement in Brazil

The private enforcement of competition law in Brazil is intriguing. While legislation has clearly provided for compensation for damages resulting from anticompetitive practices since the 1990s, basic concepts continue to be questioned and diverted by judicial interpretations even in 2026.

There is a case that even accompanies this time lapse, the case of the alleged cartel of orange juice.

Since 1999, a case of generation Z.

The investigation by CADE, the Brazilian competition authority, was motivated by a complaint by the Commission for the Protection of Consumers, Environment and Minorities of the Chamber of Deputies of Brazil, dated September 9, 1999, and involved one association, ten industries, in addition to twenty-two individuals.

There was allegedly a purchase cartel between orange juice processor industries, with price adjustment for the acquisition of oranges from producers, market division, and exchange of sensitive information. Such a cartel, with monopsony power, would prevent orange producers from being able to offer their products to the industry at fair market prices and conditions.

The investigation lasted more than nineteen years: the longest in the history of the Brazilian competition authority.

Only in 2018 was the case closed. The outcome was the recognition of compliance with cease-and-desist agreements, popularly referred to in Brazil as TCC, an acronym for Termo de Compromisso de Cessação de Conduta. In such agreements, the investigated parties paid an amount of 301 million BRL, about 60 million USD in current values.

Once the case was closed at CADE, another saga would begin: the search for compensation for the losses suffered by the orange producers.

New law, same obstacles.

The difficulties in private enforcement of judicial claims in Brazil are diverse. These difficulties mainly involve the risks arising from the filing, such as the attorney's fees for the prevailing party, and the proof of the damage suffered, which depends on economic calculations that are expensive for the injured parties and are often not a usual piece of proof for the judges. These difficulties were also combined with the issues of limitation periods and pass-on defense, dealt with by Law 14.470/22, which sought to be a legal framework for promoting reparatory claims.

However, what if the parties decide to enter into agreements with CADE, as in the case of the alleged cartel of orange juice? Are there differences in the pre-filing checklist for the claimants’ attorneys and additional barriers?

Despite the changes in Competition Law brought about by the new legislation (the above-mentioned Law 14.470/22), which intends to consolidate itself as a regulatory framework for the reparation of damages, there are still barriers to be overcome.

The main objective of the new legislation is to foster the reparation of damages while protecting the attractiveness of collaboration programs with CADE, as TCC and Leniency, addressing some safeguards to the investigated parties that decide to collaborate with the authority through the signing of an agreement. Among these safeguards, the removal of joint and several liability for damages caused by co-violators and the exclusion of the recent obligation to double indemnify stand out. However, issues that seemed resolved by Law 14,470/22 may remain open when analyzing judgments involving the alleged cartel of orange juice.

The understanding of the state court: ruling on the merits vs. ratifying an agreement

The São Paulo state court, when judging cases arising from the cement cartel, decided that the initial term of the statute of limitations (dies a quo) is counted from CADE's final decision1. So, the theory of subjective actio nata has been applied to the concrete cases, three years before such theory has been established by the new legislation.

However, when reviewing a case stemming from the alleged orange juice cartel, which was concluded via TCCs, the São Paulo court drew a sharp distinction. It differentiated between the cement cartel decision, which was a ruling on the merits (condemnatory), and the orange juice decision, which merely ratified an agreement (homologatory), since none of the parties were formally convicted.

Going deeper into this point, in the case of the cement cartel, the competition authority analyzed the facts, issued a decision on the merits, recognizing the practice of the conducts and convicting the investigated parties. In the case of the alleged cartel of orange juice, the competition authority would only have ratified the cease-and-desist agreements entered into, even with the payment of a penalty in cash and with the recognition of the practice of the conduct investigated in the content of the agreement, as is required by CADE’s bylaws.

Considering this distinction, the statute of limitations would not begin from CADE's decision, but from the moment the injured party became aware of the unlawful acts that caused the alleged damages. In addition, the applicable statute of limitations, before the new law, would be the period of three years, the general term of non-contractual civil liability (article 206, § 3, item V, of the Brazilian Civil Code).

The understanding of the superior court: a claim that arises from an agreement is stand-alone.

The distinction between CADE’s decisions outlined by the São Paulo court is not statutorily prescribed; it is strictly interpretative.

Beyond concluding cases that could potentially lead to the imposition of substantial condemnatory fines by the competition authority, a settlement agreement may ultimately serve as a significant tool to shield an antitrust offender from being held liable for damages incurred by those harmed by the conduct.

One of the cases examined by the São Paulo state court was subsequently appealed to the Superior Court of Justice (STJ), the Brazilian tribunal responsible for rendering final interpretations of federal law (including Competition Law) and harmonizing jurisprudence. In Special Appeal (Recurso Especial) 1.971.316/SP, reported by Justice Luís Felipe Salomão, the STJ upheld the differentiation between a decision on the merits ("condemnatory") and a decision ratifying a TCC ("homologatory").

Consequently, the court established that the commencement of the statute of limitations from the date of the competition authority's decision applies exclusively to condemnatory decisions.

Further reviews were brought before the same superior court, and this understanding has been maintained. CADE also went to court, asking for an amicus curiae position in two cases, trying to guarantee the interpretation of competition law2.

This also includes the interpretation that, in a case concluded through settlements with the competition authority, even with a formal decision by said authority, the subsequent damages claim is characterized as a "stand-alone" rather than a "follow-on" claim. In this context, it is noteworthy to mention the vote of Justice Ricardo Cueva, a former CADE commissioner, who asserted that the action in question is indeed a follow-on claim3.

Recently, on May 19, one of the cases was taken to the Supremo Tribunal Federal, the Brazilian constitutional court, but the case was not admitted4.

It is difficult to comprehend how a case investigated by the competition authority for nearly two decades, and culminating in agreements executed with that very authority, can have its resultant private enforcement lawsuits classified merely as stand-alone. By all indications, Brazilian courts seem to have become lost in translation regarding this legal concept.

Collective claim: a glimmer of hope

In March 2023, the Federal Public Prosecutor's Office filed a collective claim (ação civil pública)5 against those investigated for cartel practice. Supported by expert reports, the lawsuit asserts civil liability and seeks billions in joint compensation.

The lawsuit demands the condemnation of the companies to pay a minimum amount of more than 8 billion BRL as reparation for the economic and financial damages (material damages) imposed on producers. In addition, the payment of more than 4 billion BRL as collective moral damages is demanded, an amount stipulated based on the theory of deterrence (punitive damages) to curb the recidivism of the defendants.

The total value of the case amounts to more than 13 billion BRL (approximately 2.6 billion USD), also encompassing requests for ancillary sanctions, such as the prohibition of procurement with public bodies, the official publication of the conviction, and the compulsory implementation of compliance programs. The lawsuit is still pending in the federal court of São Paulo.

Conclusion

The alleged cartel of orange juice litigation illustrates the continuing uncertainty surrounding private antitrust enforcement in Brazil. Although Law 14.470/2022 was designed to encourage damages claims while preserving incentives for cooperation with CADE, judicial interpretation may still determine whether injured parties can effectively obtain compensation. Unless courts adopt a clearer and more coherent understanding of follow-on claims arising from CADE settlements, private enforcement in Brazil may remain, in practical terms, lost in translation.

• 1This is what is verified, for example, in the following judgments: Agravo de Instrumento 2086289-72.2018.8.26.0000; judged on October 11, 2018; Agravo de Instrumento 2103903-90.2018.8.26.0000; judged on February 18, 2019.
• 2As CADE’s amicus curiae requirement on Recurso Especial n. 2.166.984/ SP and Recurso Especial n. 2.133.992/SP, filed on January 31, 2025.
• 3Recurso Especial n. 2.166.984/ SP and Recurso Especial n. 2.133.992/SP, both judged on March 18, 2025.
• 4Recurso Extraordinário com Agravo n. 1.597.265/SP, judged on May 19, 2026.
• 5Ação Civil Pública n. 5005173-25.2023.4.03.6100.