The requirement for legislative authorization to join a creditors' society, in itself, does not prejudice a mixed-economy company in a recovery plan.

In the formation of a creditors' association – as provided for in item X of article 50 of the Bankruptcy and Judicial Reorganization Law – the fact that the membership of a mixed-economy company requires legislative authorization does not characterize differentiated treatment among the creditors of the company undergoing reorganization, unless the mixed-economy company cannot satisfy its credit in any other way. This is the understanding of the Third Panel of the Superior Court of Justice (STJ).

By denying an appeal from Banco do Brasil, the panel upheld a decision by the Court of Justice of Goiás (TJGO) that deemed valid the judicial reorganization plan of Grão Dourado Indústria e Comércio, approved by the majority of creditors – which resulted in a 60% discount on the value of the financial institution's credits.

Initially, the bank claimed the invalidity of the clause in the recovery plan that provided for the creation of the creditors' company X-Agro do Brasil, intended to satisfy the creditors' claims through the subscription of shares in this new company.

Constitutional requirement

For the bank, joining this new company was unfeasible, since item XX of article 37 of the Federal Constitution stipulates that mixed-economy companies need legislative authorization to join such companies.

According to the appellant, due to this constitutional requirement, the clause ended up giving preferential treatment to creditors and, therefore, would be invalid. Without joining the company, the bank began to receive payments in cash, with a 60% discount on the value of the credits.

According to the rapporteur of the special appeal, Minister Paulo de Tarso Sanseverino, the mere existence of a constitutional norm requiring legislative authorization for the bank's adherence to the creditors' society does not, in itself, constitute differentiated treatment among creditors, as the TJGO (Court of Justice of Goiás) correctly understood.

"The loss would only become actual if the option left to the bank was not capable of satisfying its credit, which is not the case here, since the bank's credit has been regularly paid, as foreseen in the plan," explained Sanseverino.

The rapporteur emphasized that the recovery plan was effectively implemented, and the bank was not harmed.

Sovereign deliberation

Another point raised by the bank in support of the appeal is that it suffered a loss consisting of a 60% discount on its credit, despite the faithful compliance with the recovery plan by the company undergoing reorganization.

The understanding of the Third Panel is that the approval of the plan in 2013 was the result of a sovereign decision by the general meeting of creditors, in a vote in which the bank was defeated.

Sanseverino said that although the plan was approved in 2013, the bank failed to take urgent measures on this point so that the proposal could be analyzed before the creation of X-Agro.

According to the minister, any annulment of the recovery plan would be inappropriate, as it would imply undoing actions already taken more than five years ago, including the formation of the creditors' committee, affecting the interests of the company's other creditors.

In a vote supported by the other justices of the panel, Sanseverino applied the theory of the accomplished fact in order to preserve the progress of a recovery plan that had proven successful.

Source: STJ

This news item refers to the following case(s): REsp 1537213