Creditors in a bankruptcy proceeding can be divided into subclasses based on objective criteria.

The creation of subclasses among the creditors of a company undergoing judicial reorganization is possible as long as an objective criterion is established, justified in the reorganization plan, encompassing homogeneous interests, and the stipulation of discounts that nullify the rights of any isolated or minority creditors is prohibited.

With this understanding, the Third Panel of the Superior Court of Justice (STJ) denied an appeal by Banco Paulista, an unsecured creditor of a company undergoing judicial reorganization, and upheld the creation of creditor subclasses approved by the general assembly. In the special appeal, the bank requested the annulment of the judicial reorganization plan.

According to Minister Villas Bôas Cueva, rapporteur of the appeal, in the case analyzed a distinction was established between unsecured creditors, recognizing benefits to suppliers of inputs essential to the company's operation, a prerogative based on objective criteria and justified in the plan approved by the creditors' meeting.

The minister noted that there is no express prohibition in the law against granting differentiated treatment among creditors of the same class in judicial reorganization.

"The division into subclasses must be based on the establishment of an objective criterion, encompassing creditors with homogeneous interests, with a clear justification for its adoption in the recovery plan," the rapporteur highlighted.

Heterogeneous interests

The distinction arises, as the minister explained, from the fact that the class of unsecured creditors encompasses quite heterogeneous interests: financial creditors; suppliers in general; suppliers on whom the continuity of economic activity depends; contingent creditors; and others.

"Thus, once a criterion is chosen, all creditors with homogeneous interests will be grouped under that subclass, and the reason why the differentiated treatment of this group is justified and favors judicial reorganization must be expressly stated, allowing for control over the legality of the established parameter," said the rapporteur.

According to Villas Bôas Cueva, the measure seeks to guarantee the fairness of the plan's voting process, preventing the possibility of the company undergoing reorganization influencing the vote by granting privileges to creditors sufficient to secure the plan's approval, without considering the purpose of the reorganization.

In this case, the company undergoing restructuring – a distributor of petroleum solvents – created a subcategory for essential suppliers, which represented approximately 90% of total input purchases, thus enabling the continuity of its activities.

04/04/2019

Author:

Essay

Source:

STJ News