Complexities of Bankruptcy Proceedings or Court-Supervised
Reoganization of Major Economic Groups under the Focus
of Substantive and Procedural Consolidation
by Alexandre
Nasser DE MELO, Suzana Valenza Manocchio PETRY, Ricardo ANDRAUS, Inor Silva DOS
SANTOS and Felipe PUSTILNICK,
Lawyers (Brazil)
The purpose of this article is to analyze the complexity of Bankruptcy or Court-Supervised Reorganization Proceedings of major economic groups, as well as their consequences before the Court, the Trustee, the Companies being reorganized, the creditors and the collectivity.
It is also the object of this study to demonstrate several procedural difficulties encountered during the course of these judicial processes, with special focus on Consolidation and Substantive in the course of the process.
For
a variety of reasons a company, or a group of companies, may experience the
economic-financial crisis: economic, financial or even economic-financial.
The
current bankruptcy and judicial recovery law uses the term “economic-financial”
assuming that the decline will be joint, but as Waldo Fazzio
JR emphasizes[1]: “The differences between economic
situation and financial situation are very fragile and of technical interest of
the company. Externally, both serve to justify the contest.”
According to Fábio de Ulhôa Coelho, there are
three types of economic and financial crisis relevant to the Court-Supervised Reorganization doctrine: (i) The economic crisis, when the sale of
products or services does not take place in sufficient quantity to maintain the
business activity working; (ii) the financial crisis, when
there is insufficient
cash flow, money or resources available to meet the
obligations and; (iii) the equity crisis, which occurs when assets are less
than liabilities, that is, the debts exceed the credits of the company or the
business group, causing illiquidity to settle future obligations[2].
Up
to 2005, the solution regime for economic-financial crisis of companies in
Brazil was regulated by Decree-Law No. 7.661/1945, which provided the Concordata (an
arrangement with creditors), preventive or suspensive, as a form of release of
debts for indebted companies, with fixed rules and minimum rates of payment
proposals established by law. According to José da Silva Pacheco, the
bankruptcy was preventive when required before the bankruptcy decree and
suspensive when required after the breach, as long as it followed some legal
conditions[3].
As
for bankruptcy, Decree-Law No. 7.661/1945 was essentially based on the idea of
removing the unsuccessful business owner and their administrator from the
market, collecting and liquidating his assets, with a view to paying as many
creditors as possible, with no concern, however, for the maintenance of the
business activity and the social benefits arising from it, such as the maintenance
of jobs, the generation of taxes and wealth.
Such
understanding was altered, in a true revolution of the Brazilian system of
reorganization and bankruptcy, when Decree-Law No. 7.661/1945 was repealed by
Law No. 11.101/2005, also known as the Bankruptcy and Company Reorganization
Act, or simply LRF, which privileges
the principle of company preservation, aiming to protect the wealth-producing
source, the jobs generated by entrepreneurial activity and the interest of the
creditors, as well as the collective interest, trough the collection of taxes.
Eronides Aparecido Rodrigues dos Santos[4] points out that the first
point to be observed in the new legislation is the valuation of the company,
giving it an important role in society and highlighting the need to be
preserved.
A double aspect was adopted
in this new system, aiming, at first, to recover the business activity or, if
not possible, to extinguish it through bankruptcy.
According
to Professor Manoel Justino, the judicial recovery is
intended for the companies with real capacity to get back in business. In the
cases where this do not apply there’s need to declare bankruptcy of the
companies that use this institute inappropriately[5].
The legal scholar, Rachel Sztajn, stated that the new law addressed the social demand
of preservation of the companies through the reorganization of the business
activity, denominating such reorganization as Court-Supervised Reorganization,
whose purpose is to recover, restore and reestablish
the business activity[6].
To create an alternative
that would make the continuity of companies going through an economic-financial
crisis possible, the Law No. 11.101/2005 established the Court-Supervised
regime in the Brazilian legal system, which was inspired by successful
experiences in other countries, such as the United States and France.
For Manoel
Justino Bezerra Filho the Company’s Court-Supervised
Reorganization is an attempt to: “solve the economic situation, preserving the
company as a living organism, which would preserve production, keep jobs and,
with the business turnover returning to normality, provide the payment of all
creditors.”[7],[8]
Fábio Ulhôa Coelho defines Court-Supervised
Reorganization simply as an attempt to avoid the company collapse and its
adjudication of bankruptcy[9].
However,
the Court-Supervised Reorganization proceedings does not stand as a universal
alternative, to be applied in all cases of economic-financial crisis, instead,
it must take place only in the cases where there is a possibility of
maintaining the business activity, its social purpose (generation of jobs,
production of goods and services, payment of creditors and collection of
taxes), with the effective overcoming of the economic and financial crisis.
A company’s bankruptcy can be
decreed in a variety of ways. However, no matter how it occurs, the bankruptcy
decreed implies in the withdrawal of the business owner, the bankrupt partner,
the company’s management team, and their replacement by a Trustee appointed by
the Court.
Bankruptcy proceedings, prima facie, aim at collecting the largest number of assets
possible in favor of the bankruptcy estate, in order to pay all the creditors
or, at least, pay off the largest amount of credits possible, according to the
order provided by Law.
According
to Marco Antonio de Oliveira[10]: in addition to withdrawing
from the market those companies that did not succeed, it open up the
possibility for those creditors who had frustrated their hope of receiving the
credit granted to the entrepreneur or the company society that had its
bankruptcy declared minimize this loss, with the gathering of assets of the
bankrupt debtor and their realization, observing the payments in the terms set
forth in the Law itself.
Fábio Ulhoa
Coelho[11] also adds that not all bankruptcy is harmful to the
society. As an example, he talks about companies that are “technologically
backward, undercapitalized” or even those with “poor administrative
organization” should be closed.
As stated by Faccio and
Ribeiro Neto:
“In
bankruptcy proceedings, the aim is to satisfy creditors, by means of asset
realization, which starts with the collection of the debtor’s properties by the
Trustee. Besides, the collection of properties (and of documents) is one of the
Trustee’s competencies in case of bankruptcy, as determined by Article No. 22,
Item III, Subitem “f”, of Law No. 11.101 of 2005. Although in theory debtors’
properties and documents are collected right after the appointment of the Trustee,
the collection can take place during all the course of the bankruptcy
proceedings, as soon as such properties and documents are located.”[12],[13]
We can denominate as a bankruptcy estate everything
that is collected during the bankruptcy proceeding and that can be credited to
the bankruptcy estate.
As soon as a commitment letter is signed, the
Trustee must provide the immediate collection of assets, according to Article
108 of Law No. 11.101/2005.
The collection as a first act is established in the
legal text with the aim to prevent the general partners of the bankrupt
business to misappropriate the assets, in detriment of the bankruptcy estate
and its creditors.
Therefore, it is essential to have a fine-tuning
between the Bankruptcy Judge and the Trustee, for once the bankruptcy is
decreed, the Trustee must have a team prepared to perform the immediate
collection of the properties, frequently at several registered offices and
states simultaneously, what implies logistical and organizational difficulties.
The
spirit of the bankruptcy process is to safeguard the credit of creditors by
collecting the largest amount of assets. According to Alfredo Luiz Kugelmas and Fabrício Godoy de
Souza, in the book; 10 years of the Law of Recovery and Bankruptcy (Law No. 11.101/2005)
[14], the judicial administrator
has the duty to represent the bankrupt estate, judicially or extrajudicially,
to represent the interest of all, assigning the credits authorized, disposing
of the asset and investigating the conduct of the bankrupt.
Luis Felipe Salomão also points out that art.
113 of Law 11.101/2005 allows even the early sale when the assets of the group
have the risk of perishing, all to maximize the collection[15].
The
legislator consecrated the rule that determines that the judicial administrator
must act in all lawsuits and demands involving the bankrupt estate, making him
a true Supervisor of the legality in favor of the creditors of the estate. It
should be noted that the judicial administrator must be summoned to answer all
the company’s demands under penalty of invalidating the process[16].
Besides court proceedings, which may cause to
generate assets for the bankruptcy estate, it is up to the Trustee the role of
analyzing and exercising bankruptcy estate rights, aiming at constituting the
highest amount of current or noncurrent receivables.
At this point, it is essential that the Trustee
have in his or her team qualified and committed professionals to analyze the
company as a whole and to check possible actions and procedures that can result
in assets for the bankruptcy estate. The Trustee and the team must also analyze
the liabilities, by checking if they are correct or if they can be an object of
reduction or extinction.
Due
to his responsibilities, it is important to emphasize the duty of the
administrator to account for his actions at the end of the process, or even
when he is replaced, dismissed or resigned[17].
The Trustee, as soon as possible, must perform the
inventory of the bankruptcy estate, to move on to the next level, which is
liquidating the assets and paying off the liabilities, respecting, as much as
possible, the principle of business continuity.
In the Brazilian Legislation, the bad performance
of Legislative did not exempt itself from accurately resolving, issues related
to the formation, constitution, and implications of the existence of economic
groups among companies[18].
In fact, in Brazil, some major companies, generally
linked to a trade mark or an assumed commercial name,
are constituted by a group of companies merged in an informal way. Thus,
because of a legislative gap, the doctrine and the case law have established
relatively solid parameters to cover this issue.
The phenomenon of the formation of economic groups
arose right after the end of World War II, also being called as the third
industrial revolution[19],
and has been developing in a crucial fashion in recent decades, also because of
globalization.
In the words of Antunes, globalization enables:
“[…] internalization
and interdependency of national markets; universalization of the free market
model; the technology and communications revolution; an exponential increase in
barriers to the international trade.”[20]
Therefore, globalization has expanded the market
for Brazilian companies from regional to worldwide; on the other hand, it has
made possible for companies from all over the world to compete with Brazilian
businesses in their internal market.
In this way, competition grew in the same
proportion as the market of such companies, making an extremely specialized
operation necessary in their respective fields of activity, in some cases
resulting in the splitting of the main activity into several companies of
support activities.
Economic groups are responsible for forming affiliates,
aiming at creating better conditions to compete at the national and
international levels, in addition to the privileged business conditions
achieved through the grouping of companies.
Operations carried on by this type of group are
usually responsible for an expressive portion of the countries’ Gross Domestic
Product (GDP) – including in Brazil – besides being the providers of a huge
amount of jobs and, consequently, of beneficial impacts to society generated by
them.
Considering the wealth created by them, it is
important to analyze the impact of the existence of economic groups on the
Reorganization proceeding, being such aimed at the social interest,
consubstantiated in the business continuity and in a bankruptcy proceeding
focused on the prompt payment of creditors.
In its origins, the doctrine tended to the
classification of economic or company groups as “the concentration of
companies, in the form of integration (shareholding, resulting in the control
of one or some over the others), all of them being under a single economic
direction”[21].
As this understanding developed, doctrine and cause
law (precedents) now consider that there are diverse ways of consolidating
economic groups, what makes the existence of a formal affiliation (shareholding
agreement) among companies of the same group unnecessary[22], for the
economic groups of today are not subject to the classical business
concentration, defined as horizontal or vertical, aimed at a single main
business – but they can be formed by the diversification of products and
activities, and even of business purposes, by means of the figure of the
unitary control, carried out by a controlling entity[23].
Therefore, in subordination groups, it is not
always possible to presume the joining of activities of each of the group
companies aimed at a single main purpose. The group can then be formed with the
aim of business diversification and broadening of its portfolio of products and
services offered to the market.
In the Brazilian system, for instance, Law No.
6.046 of 1976, despite containing evident legislative gaps, rules two types of
groups, being one of them the group in law, when there is a formal
incorporation among partnerships, and the de
facto group, incorporated by affiliated, controlled and controlling
companies.
Such concepts are essential for the course of
Reorganization and, consequently, for bankruptcies, since the characterization
of the type of economic group constituted by the companies that filed for
Reorganization or that went bankrupt will determine which repercussions will
occur in the judicial world, related, mainly, to the collectivity of employees
and creditors of the companies in crisis.
The lesson of COMPARATO teaches that there is an
evident distinction between direction and control, for there are economic
groups formed by coordination, in which there is a unity of direction, as well
as – encompassed by a recent trend –, there are economic groups formed by
subordination, in which the unity of control occurs, despite a common direction[24].
As will be seen below, it is of great importance to
dwell on the doctrine of procedural consolidation and of substantive
consolidation, to determine the reach the grouping of companies has in the
judicial world.
Initially, it should be noted that the
law did not discipline the procedural and substantive consolidation. These,
however, have been applied in the proceedings due to the need in the conduct of
proceedings. That is because the law considered bankruptcy and judicial
recovery of only one company, but in the real world, several companies exercise
control over each other and are so intrinsically related that one cannot deal
with judicial recovery without affecting the other and the creditors with whom
they relate.
First, the process consolidation occurs
when several companies act together in the active pole of the demand, without
this implying a uniqueness of treatment. The second, which contains more
implications, is the substantive consolidation, in which several companies, by
some factors related ahead, start to develop only one plan and only one list of
creditors, being the credits and debits examined as if they were only one.
Notably, the Courts of
Brazil have been accepting the Reorganization formulated by joinder of
plaintiffs of several companies belonging to the same economic group, applying, in view of the lacuna existing in the 11.101/2005 law, subsidiarity
the Code of Civil Procedure, as authorized by art. 189 of LRF[25].
The formal consolidation
occurs through the Reorganization filing, together with companies of the same
group. However, in this case of formal consolidation, the existence of the
consolidation of the proceedings does not imply an immediate pooling of the
assets and liabilities of the group companies.
In this case, we verify the
fact that the reorganization filing is made before the same court, with the
same Trustee, which leads both to the economy and speed up of the proceedings,
and to the economy of the treasury itself, in addition to avoiding conflicting
decisions.
According to Paulo Penalva
Santos, “in the event that the debtors belong to the same economic group, the
processing of judicial recoveries in different courts could even prevent the
success of overcoming the economic-financial crises.”[26]
Cerezetti’s teaching is that the
consolidation of the proceedings requires:
“the
voting of the plan, even if scheduled to take place in meetings called on the
same date, is made separately with respect to the legal separation existing
between the companies of the group. The creditors of each debtor shall meet
and, in accordance with the classes and quorums provided for in the
Reorganization Act, shall resolve on the plan. The result of the conclave will
therefore be determined in relation to each debtor.”[27]
Initially, the formation of
the joinder of plaintiffs in the reorganization filing constitutes ab initio the procedural consolidation
of the economic group, which does not imply in the immediate pooling of its
assets and liabilities that can occur in diverse situations, through the
substantive consolidation doctrine.
With the emergence of the
financial crisis in Brazil in mid-2013, coupled with the fact that large
business groups are the object of criminal investigations in the framework of
the Lava Jato
Operation, with several reflections in the sphere of their assets, several
reorganization requests have been filed[28].
They did not intend to respect the economic separation of the companies of the
economic group, pooling assets and liabilities of all the companies involved in
a single monetary unit monte mor.
In general terms,
substantive consolidation is the legal phenomenon that occurs when there is a
pooling of assets and liabilities of several companies belonging to the same
economic group, within the scope of reorganization.
Although the legislator has
once again caused to frame a gap in Law, since this concept is not covered by
the Bankruptcy and Company Reorganization Act, neither in the North American
Bankruptcy Code, its occurrence has been accepted by case law and doctrine, (i)
the Code of Civil Procedure provides for the possibility of forming a joinder
of parties, that is, a union in one party, whether as plaintiffs or defendants;
(ii) the Civil Code provides the possibility of disregarding the legal
personality in several cases, as in cases where there is evident asset
commingling or misuse of purpose between companies of the same group.
In Brazil, the Courts have authorized
substantive consolidation[29]
when verified the direct interpellation between the companies of the same
group, with management of one over the others and provision of cross-guarantees[30].
Daniel Carnio
Costa, in an interview with Valor[31],
specified the requirements that he considers necessary for the configuration of
substantive consolidation, which are: a) interconnection of the companies of
the economic group; b) existence of cross-guarantees between the companies of
the economic group; c) confusion of patrimony and responsibility among the
companies of the economic group; d) joint action of the companies that make up
the economic group in the market; e) existence of coincidence of directors; f)
existence of coincidence of corporate composition; g) control relationship and
/ or dependency among the companies that are part of the economic group; h)
existence of diversion of assets through companies belonging to the economic
group.
In addition, as previously
pointed out, article 189 of the Reorganization Act determined the subsidiary
application of the Code of Civil Procedure to the procedures it regulates and
the comparative law demonstrates successful experiences to this end, which are
used as inspiration for the formulation of the system adopted in Brazil.
This phenomenon generates
innumerable reflexes to the creditors, because often the subjects are creditors
of only one of the group companies, that has little liabilities compared to its
assets and that, separately and apparently has liquidity of its obligations and
that is not going through economic crisis, but which, after the constitution of
the substantive consolidation, with the pooling of assets and liabilities of
the other companies in the group, does not have the same liquidity as the
original debtor.
It is important to highlight that the
Superior Court of Justice, in spite of not having appreciated the procedural
and substantive consolidation, decided in cases of bankruptcy of the extension
of the effects of the breach to companies of the same group that have their
activities “under equity, labor and
management unit” (STJ, ROMS 14.168/SP, Rapporteur of the Minister Nancy Andrighi)[32].
In these cases, there is a
real need of joinder of the parties, considering the confusion among the legal
personalities of the members, making the reorganization of one to depend on the
others, given the commingling of assets among the group companies.
In the book Judicial Recovery, Extrajudicial
and Bankruptcy - Theory and Practice[33], the authors uses as
reference UNICITRAL, which, based on international experience, is used as
requirements of substantive consolidation: the existence of consolidated
financial statements of the company, the affinity of interests and / or
ownership between the group companies, the difficulty of separating the assets
and liabilities of each; the sharing of expenses and management, the existence
of loan intra-groups and cross-guaranteed loans, the confusion of assets and
business, the appointment of directors or management positions in common, the
existence of common place, and “it is considered if substantive consolidation
will be the only means of effective recovery of the group, taking into account,
at the same time, the risks arising from the segregated treatment of companies
in insolvency proceedings”. Therefore, in these situations, a unitary plan
should be presented, with equal treatment dispensed among the creditors part of
each class, despite of which of the group companies is its debtor, while the
reorganization plan voting is carried out in a single conclave of creditors.
It is clear that the pooling
of assets and liabilities of the group companies, as well as of their creditors
in a single General Meeting of Creditors, also implies a change in the weight
of the creditors in the formation of the voting quorum. The creditors of one of
the companies will be subject to the regulation of all liabilities and assets.
Some authors, such as Fábio Konder Comparato,
argue that there is solidarity between companies in the group[34]
and others, such as Jorge Lobo[35],
argue that there is subsidiarity between them.
Both, the doctrine and the case law
agree that the application of the substantive consolidation is an exceptional
measure.
For Cerezetti,
such doctrine can only be applied by reason of the Judge’s decision, when it is
called mandatory substantive consolidation, or at the option of the creditors,
when it is called voluntary consolidation, but cannot take place by mere
request of the companies being reorganized[36].
Substantive consolidation has been widely
applied in the Brazilian Courts[37], through the analysis of each
specific case[38].
Minister Rapporteur Marco Buzzi,
in the judgment of Internal Interlocutory Appeal (called agravo de instrumento in Brazil) in Provisional
Measure No. 20.733, voted that it is not correct to require a creditor to be
subject to the payment terms proposed by a company with which he has never
established any legal business, and that the application of the doctrine should
be subject to cases in which there is a complete demonstration of abuse of the
legal personality and the commingling of assets.
In this sense, it is not
reasonable to grant the creditor who has assumed the risk inherent in
conducting business with a company in bankruptcy situation, the benefit of
receiving his credit with the assets or financial condition of another company
with which he has never established any business relationship.
However, concessa venia, it seems to us that in the real
economy some creditors analyze not only one company, but the group as a whole,
this being the market practice, especially in the financial segment, which has
the information and qualified technicians for such analyzes, often requiring
guarantees and endorsements between companies of the same group.
To Fábio Ulhoa Coelho, the
consolidation of the general framework of creditors and the consolidation of
the plans are separate institutes. The consolidation of the plans should take
place if it is useful to overcome the crisis and the consolidate of the
creditors take place when there is a confounding of assets and the requirements
of disregard are present of legal personality[39].
There
is also the Substantive Voluntary Consolidation doctrine. It occurs when the
abuse of the legal personality of the companies belonging to the economic group
is not determined. A good example of such doctrine is the Reorganization of the
OSX Group, which the Court of Justice of Rio de Janeiro decided that the
resolution on substantive consolidation would be made by the creditors, in the
category of substantive voluntary consolidation[40].
Substantive consolidation,
therefore, should be analyzed in each case, and applied when there is evidence
that the relationship between companies goes beyond limits and the
individuality of the group.
In the event of a
court-supervised reorganization in which there is a procedural consolidation, that
is, in the union of the reorganization of some companies, as long as their
autonomy is kept, upon the presentation of distinct court-supervised
reorganization plans, and without debt pooling, the eventual conversion to
bankruptcy of one of the companies will not automatically lead to the
bankruptcy of the other companies. In some cases, the failure of one of the
companies in one economic group may indirectly affect the other and also lead
to bankruptcy. There is no adjudication, however, of bankruptcy as a whole.
In the event the procedural
consolidation is substantive, the grouping of companies, plans and analysis of
the conditions of the reorganization are all done together. In this case, the
eventual adjudication of bankruptcy will be extended to all the companies that
compose the plaintiffs.
In the procedural
consolidation, it is necessary that the lists of creditors be made, prepared
and related separately, which will also imply in the separate analysis of the
assets and the creditors affected in the event of an eventual adjudication of
the company bankruptcy.
There is still another
question to be considered. Frequently, companies that make up the same economic
group file a court-supervised reorganization separately aiming to keep some of
the companies in the group unharmed. If this company were to have its
bankruptcy decreed, the other companies in the group would not be affected by
such measure.
According to Fábio
Ulhoa Coelho[41] the disregard of legal
personality does not infringe the institute itself, but, on the contrary, seeks
to its preservation, since it restrains the companies that fraudulently misuse
the legal entity.
Minister Nancy Andrighi,
the rapporteur, for a case judged by the Superior Court of Justice in her vote,
explains that:
“It
is possible for the court to anticipate the decision to extend the effects of a
bankrupt company to affiliated companies in the event of a clear conspiracy to
prejudice creditors, there is transfer of assets for asset diversion. There is
no nullity in the deferred exercise of the right of defense in such cases.”[42]
In practice, however, it
turns out that some entrepreneurs seek to safeguard their healthy assets in
affiliates that would not be affected by the measure. Should this interference
of joint ventures be detected or if the attempted asset misappropriation is
proven, the Bankruptcy Court may extend the effect of the bankruptcy to other
companies in the group, whether due to the commingling of assets or through
disregard of the legal personality, which will also jeopardize the assets of
the bankrupt partners.
Others sentences by the Superior Court of Justice[43] has also widened the
convolation on Bankrupt, in the cases of abuse of legal personality.
The same will occur when a
company has bankruptcy decreed directly, without having undergone a
court-supervised reorganization proceeding. The Trustee and creditors should
analyze the other companies of the economic group and verify the existence or
not of commingling of assets among the legal
personalities, as well as the occurrence of asset misappropriation, protection
attempt or fraud. In such cases, they should request the extension of the
effects of bankruptcy to the other companies in the group and the disregard of
their legal personality. Marcelo Barbosa Sacramone[44] in commenting on the
disregard of legal personality adds that the jurisprudence of Brazil has
applied the theory of disregard of legal personality to extend bankruptcy to
third parties.
There are also cases in
which the bankruptcy of one company causes the bankruptcy of the others due to
the existence of an economic relationship of financial interdependence. These
cases are not about the extent of the bankruptcy, but about a new bankruptcy generated
by the collapse of another company.
It is worth noting that in
the event of a company group being decreed bankrupt, it is necessary that the
collection of property be carried out concomitantly in the various companies,
in order to avoid asset dissipation.
In any case, when large
corporations or economic groups are bankrupt, procedural speed is still
required in the progress of the procedure, to liquidate assets and pay off
creditors as soon as possible, to mitigate the negative effects of the depreciation
of assets, avoiding greater losses to creditors and to society.
By the end of the present study, we reached the conclusion that reorganizations and bankruptcies of major economic groups create a number of procedural and social difficulties not provided for in the legislation on the subject, delegating to law professionals the creation and application of mechanisms to mitigate the difficulties arisen when this kind of proceeding is conducted.
We have also concluded that
the Trustee shall maintain a close relationship with the Judges, the Companies
being reorganized and their creditors, with a view to settle the greatest
possible amount of disputes amicably, thus avoiding unnecessary and sometimes
harmful procedural turmoil. In addition, the Trustee shall serve as mediator to
reduce the litigious character of the case.
We, therefore, conclude that
Court-Supervised Reorganizations or Bankruptcies of major economic groups must
take place in a synergy among the Court, the Trustee, the Companies being
reorganized or bankrupt and creditors, with an aim at reducing the social
depreciation caused by the economic hardship of the company and of the business
group involved.
[1] http://fazziojuridico.com.br/
crisis-economic-financial/.
[2] F. Coelho, Curso de direito comercial: direito de empresa (Commercial Law Course: Entrepreneurial
Law), 8. Ed. São Paulo: Saraiva, 2008, v. 3. pp. 132-232.
[3] J. Da Silva Pacheco, Processo de Falência e
Concordata, RJ, 2001, 12ª edição, p. 584.
[4] A. Andrighi, F. Beneti, S. Agostinho, Coordinators of the 10 years’ work
of validity of the Law of Recovery and Bankruptcy (Lei nº 11.101/05) - Retrospectiva geral (Locais do Kindle 10408). Saraiva. Edição
do Kindle.
[5] M. Bezerra Filho, Business Recovery and Bankruptcy Law: Lei 11.101/05: comentada artigo por artigo. 7 ed., São Paulo. Revista dos Tribunais, 2011.
[6] R. Sztajn, Court-Supervised Reorganization, in F. Souza Junior, A.
Pitombo,
(ed.). Comentários à lei de recuperação
de empresas e falência:
Lei n. 11.101/2005 (Comments on the
Bankruptcy and Company Reorganization Act: Law No. 11.101/2005), São Paulo:
Revista dos Tribunais (Magazine of the Courts), 2005. p. 220.
[7] Free translation.
[8] F. Bezerra,
RT 2017, 12ª ed p. 65. Lei de Recuperações Judiciais de empresas e Falências
(Court-Supervised Reorganization and Bankruptcy Act).
[9] F. Coelho, Curso de direito comercial: direito de empresa (Commercial Law Course: Entrepreneurial
Law), v. 3. p. 381.
[10] D. Carnio Costa, Complete
Remarks to the Law of Judicial Recovery and Bankruptcy, Vol III, Curitiba, Juruá Editora, 2015, p. 48, by M.
De Oliveira.
[11] F. Coelho, “Comments on Bankruptcy and Business Recovery Law”, Rev. dos Tribunais, 2015, p. 165.
[12] Free translation.
[13] V. Ribeiro,
J. Nazareno,
Realização do ativo – venda ordinária
e extraordinária – leilões (“Assetrealization
– ordinary and extraordinary sale – auctions – modalities”), in D. Costa, (ed.). Comentários completos à lei de Recuperação de Empresas
e Falências (“Full comments to the Bankruptcy and
Company Reorganization Act”), Vol. 3. Curitiba: Juruá,
2015. p. 141.
[14] C. Abrao, F. Andrighi, S. Beneti
(eds), 10 anos de vigência da Lei de
Recuperação e Falência (Lei nº 11.101/05) - Retrospectiva geral (Locais do
Kindle 4281). Saraiva. Edição do Kindle.
[15] L.-F. Salomão, Recuperação Judicial, Extrajudicial e Falência - Teoria e Prática,
p. 33. Forense. Edição do Kindle.
[16] Brasil,
Tribunal Regional do Trabalho 4 RO: 11107620115040304 RS
0001110-76.2011.5.04.0304, Relator: A. Rosi,
A. Chapper, Data de Julgamento: 21
August 2012, 4ª Vara do Trabalho de Novo Hamburgo.
[17] Brasil,
TJDF, AGI: 20150020243682, Relator: L. Arlanch,
Data de Julgamento: 27 January 2016, 2ª Turma Cível, Data de Publicação:
Publicado no DJE: 12 February 2016, p. 160.
[18] V. de Mello Franco, “Particularidades da affectio societatis no
grupo econômico (The Particulars of affectio societatis in economic groups’”,
Revista de Direito Mercantil
(Magazine of Mercantile Law), No. 89, p. 47.
[19] M. Cordeiro de Lima, M. Miranda,
Revista Virtual Direito Brasil
(Brazil Law Virtual Magazine), vol. 3, No. 1, 2009.
[20] J. Antunes, Estrutura e Responsabilidade da Empresa (Structure and
Responsibility of a Company), p. 35.
[21] W. Bulgarelli, Manual das sociedades anônimas
(Hand book of Corporations), 13 ed. São Paulo: Atlas, 2001, p. 299.
[22] F. Comparato, C. Filho, O poder de
controle na sociedade anônima (Controlling power in corporations), Rio de
Janeiro: Forense, 2008, p. 45.
[23] W. Bulgarelli, Manual das sociedades anônimas
(Hand book of Corporations), 13 ed. São Paulo: Atlas, 2001, p. 299.
[24] F. Comparato, C.. Filho, O poder de
controle na sociedade anônima (Controlling power in corporations), Rio de
Janeiro: Forense, 2008, p. 43.
[25] Brazil,
TJ-PE - AI: 3184481 PE, Relator: Cândido José da Fonte Saraiva de Moraes, Date
of Judgment:: 18 December 2013, 2ª Câmara Cível, Date of Publication: 6 January
2014.
[26] L.-F. Salomão, e P. Penalva Santos, Judicial
Recovery, Extrajudicial and Bankruptcy - Theory and Practice, 3ª ed., Rio
de janeiro, Editora Forense, 2017, Kindle.
[27] S.-C. Neder Cerezetti,
“Grupos de sociedades e recuperação judicial: o indispensável encontro entre
Direitos Societário, Processual e Concursal” Groups of companies and court-supervisedre organization: the
indispensable encounter among Corporte, Procedural and Bankruptcy and
Reorganziation Law), in F.
Yarshell e G. Pereira (ed.), Processo
Societário II, Quartier latin, São Paulo, 2015, p. 763.
[28] https://www.jota.info/justica/lava-jato-causa-efeito-domino-em-recuperacao-judicial-03112016.
[29] Brasil,
Tribunal de Justiça de São Paulo, Agravo de Instrumento
2009147-60.2016.8.26.0000; Relator (a): Caio. Marcelo. Mendes. de Oliveira; Órgão Julgador: 2ª Câmara
Reservada de Direito Empresarial; Foro Central Cível - 2ª Vara de Falências e
Recuperações Judiciais; Date of Judgment: 27 March 2017.
[30] Brasil,
Tribunal de Justiça de São Paulo, Agravo de Instrumento
2247163-02.2016.8.26.0000; Relator (a): Francisco Loureiro; Órgão Julgador: 1ª
Câmara Reservada de Direito Empresarial; Foro Central Cível - 1ª Vara de
Falências e Recuperações Judiciais; Date of Judgment 31 July 2017).
[31]
http://www.valor.com.br/legislacao/4901160/recuperacao-de-grupos-de-empresas
[32] Brazil, Superior
Court of Justice, RMS 14.168 / SP, Rel. Minister Andrighi
Nancy, 3rd Court,
judged on 30 April 2002, DJ 8 May 2002, p. 323.
[33] L. Salomão, e P. Penalva Santo, Recovery,
Extrajudicial and Bankruptcy – Theory and Practice, 3rd ed, Rio
de janeiro, Editora Forense, 2017.
[34] F. Comparato, “Os
grupos societários na nova lei de sociedade por ações” (“company
groups in the new law of corporations”), Revista de Direito Mercantil,
No. 23, 1976, pp. 105-106; F. Comparato,
C. Filho, O poder de controle
na sociedade anônima (The controlling power in corporations). 6ª ed.
Rio de Janeiro: Forense, 2014, p. 432.
[35] J. Lobo, “Direito dos grupos de sociedades”
(“The law of company groups”), Revista de
Direito Mercantil, No. 107, 1997, p. 174.
[36] S. Cerezetti, Grupos de sociedades e recuperação judicial: o indispensável encontro
entre Direitos Societário, Processual e Concursal (Groups of companies and court-supervised reorganization: the
indispensable encounter among Corporte, Procedural and Bankruptcy and
Reorganziation Law), op. cit., pp.
772-781.
[37] Brasil,
TJ/MS, AI 14084250022.015.8.12.0000, Relator P. de
Oliveira, j. 21 June 2016.
[38] (TJSP;
Agravo de Instrumento 2247163-02.2016.8.26.0000; Relator (a): F. Loureiro; Ó. Julgador: 1ª Câmara Reservada de Direito Empresarial; Foro
Central Cível - 1ª Vara de Falências e Recuperações Judiciais; Data do
Julgamento: 31 July 2017; Data de Registro: 31 July 2017).
[39] F.-U. Coelho, Comments on the Bankruptcy and Company Recovery Law, Editora Revista dos Tribunais, 2015, p. 179.
[40] Brazil, Court of Justice of Rio de Janeiro, Agravo No. 0043183-31.2014.8.19.0000, 14th Civil Chamber. Rel. Gilberto. Guairino, j. 8 August 2014.
[41] F. Coelho, Commercial Law
Course – Company Law, 19ª ed., 2015, SP, p. 61.
[42] Brazil, Superior
Court of Justice, Resp 1125767 / SP, Rel. Minister N. Andrighi, 3rd Court,
judged on 8 September 2011, DJe 25 August 2011).
[43]
Brazil, Superior Court of Justice, AgRg, No. Resp 1.229.579-MG, Rel. Min.
Raul Araújo, judged on 18 December 2012.
[44] D. Costa, Full comments on the Corporate Recovery and Bankruptcy Act, Volume III, Curitiba: Jurua, 2015, p. 197.