Americanas and BTG bank are in an intense legal dispute in the Superior Court of Justice over what should be the appropriate forum for Americanas’ litigation with its creditors to occur.
In practice, the clash is over the definition of which court may interfere in the company’s assets, the method of payment of creditors and eventually discuss the responsibility of managers and shareholders.
In petitions formulated in recent days within a process that is being processed under secrecy in the court, Americanas defends that all questions involving the case be centralized in the Court of Judicial Reorganization in Rio de Janeiro, the 4th Corporate Court of Rio de Janeiro.
BTG argues that in the contracts with Americanas there were clauses that indicated the jurisdiction of São Paulo as competent to resolve any conflict. Its claims, such as a request for the production of evidence and the constriction of assets, have been presented mainly in the Justice of São Paulo: the 1st Business and Arbitration Court of the Central Civil Forum of São Paulo.
During the parliamentary recess, the minister on duty Og Fernandes gave a decision in the sense that the resources would be stopped until the reporting minister, Raul Araújo, officially took over the case, which occurred last week. He must decide on competence in the coming days.
In the last petition of the Americanas, presented this Monday, the company puts the case law of the STJ indicating that only the judicial recovery judge can make decisions about a company in this condition.
One of the decisions says that “The specialized court is competent to decide on the measures that may affect the assets or legal business of a company undergoing judicial recovery”. It was delivered by Minister Herman Benjamin in 2013.
In another decision, issued in 2015 by Minister Mauro Campbell, he said that “it is iterative within the scope of this Court of Justice that, in similar hypotheses, recognizes the competence of the Universal Court to judge the causes in which the interests and assets of the company are involved in reorganization, including those involving repossession, since the fate of the assets of the claimant – in the process of judicial reorganization – cannot be affected by decisions issued by a Court other than the one competent for the reorganization, under penalty of jeopardizing the company’s operation, making it unfeasible its restoration.
“In addition to the contractual provision, BTG alleges in the lawsuit that the case law does not apply to this case because the bank requested the return of part of the credits it had with the company before the judicial recovery of the Americanas.
The main similar case is that of Varig, when there were several judges making decisions and the superior courts ended up deciding that only the recovery court was competent.
By coincidence, the lawyer Cristiano Zanin, recently hired to act in the Americanas case, acted in the defense of Varig when it entered into judicial recovery. The other lawyer at Americanas, Ana Tereza Basílio, also acted in another court-supervised reorganization, that of Oi.
Zanin also acted in the defense of President Lula. For BTG, the defense in the STJ has been made by Cesar Asfor Rocha, who presided over the court and was one of its strongest leaders. He still retains influence at court.
Source: CNN Brasil
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