In a ruling issued on December 11, 2024 (AgInt in AREsp 2549599/RJ), involving a renowned restaurant, the Third Panel of the Superior Court of Justice (STJ), under the rapporteurship of Justice Ricardo Villas Bôas Cueva, held that labor credits may be subject to a discount, provided payment is made within one year from the date of the judicial reorganization concession. However, if the Judicial Reorganization Plan (PRJ) proposes payment terms exceeding one year, the credit must be settled in full, without any reduction.

This interpretation finds further support in REsp 2.110.428/SP, decided on August 8, 2024, in a case involving yet another company from the food industry. The decision, again delivered by Minister Ricardo Villas Bôas Cueva, emphasized that the inclusion of paragraph 2 to Article 54 of Law 11.101/2005, introduced by Law No. 14.112/2020, stipulates that: “(...) the extension of the payment term, which is only permitted without discounts, reinforces the understanding that if payment is made within one (1) year, it may contain discounts.”

Of particular note is the issuance of Directive Order XIII by the Reserved Group for Business Law of the São Paulo Court of Appeals (TJSP), which establishes:

“Discounts in judicial reorganizations are permitted within the limits set by Article 83, I, of Law No. 11.101/2005, which restricts preferential treatment of labor credits (or equivalent), provided this is expressly stated in the judicial reorganization plan and approved by the relevant class, according to the quorum established by law.”

Nevertheless, in the judicial reorganization of the Virgolino de Oliveira Group, the TJSP, in alignment with the recent position adopted by the STJ, ruled that it is illegal to combine the 150 (one hundred and fifty) minimum wage cap for labor creditors with an extension of the payment term beyond one year (Interlocutory Appeal No. 2019757-43.2023.8.26.0000).

In the judicial reorganization proceedings of the Tiner Group, Novo Banco S.A. stood as the sole creditor with a real warranty (Class II). This creditor rejected the proposed judicial reorganization plan, which included a 90% discount on the value of its credit. Both the initial decision and the subsequent review by the São Paulo Court of Appeals (TJSP) deemed the vote abusive, thereby granting the judicial reorganization through the alternative cram-down mechanism.

On February 27, 2024, however, the Fourth Panel of the Superior Court of Justice (STJ), under the rapporteurship of Justice Antônio Carlos Ferreira, unanimously ruled that there was no abuse of rights in the rejection of a plan by a creditor holding approximately 95% of the total debt, particularly when the plan proposed a 90% discount on its credit (REsp 1880358/SP). The ruling emphasized:

“(...) this 90% discount is substantially greater than that applied to Classes III and IV, especially considering that the creditor’s claim amounts to €178,243,128.71 (one hundred and seventy-eight million, two hundred and forty-three thousand, one hundred and twenty-eight euros and seventy-one cents), while the total of other claims amounts to R$38,751,324.70 (thirty-eight million, seven hundred and fifty-one thousand, three hundred and twenty-four reais and seventy cents), or less than 5% of the creditor’s total claim.”

Justice Ferreira further commented that it would be unreasonable to expect the creditor to accept a 90% reduction in its credit, to the detriment of its interests and those of the other creditors.

Despite the STJ’s new understanding, it remains prudent to analyze each case on its own merits. This approach aligns with the perspective expressed by Justice Tito Campos de Paula of the Paraná State Court of Appeals in the judicial reorganization of Supermercados Tissi Ltda., where the issue of an allegedly abusive vote by financial institutions was raised. In the records of Interlocutory Appeal No. 0101193-37.2023.8.16.0000, Justice Campos de Paula observed:

“(...) the judge must approach the requirements of ‘cram-down’ with sensitivity, preferring an analysis grounded in the principle of business preservation, particularly when a small group of creditors exercises absolute control over deliberations, thus overriding what appears to be the collective interest of creditors, and manifestly abusing their voting power.”

Justice Campos de Paula’s opinion also noted that the creditor institutions not only rejected the proposed conditions but also refused to engage in negotiations and prevented the debtor from presenting an alternative proposal.

In the judicial reorganization proceedings of Grupo Farias, the Fourth Panel of the Superior Court of Justice (STJ), in a unanimous decision on March 12, 2024 (REsp 1955325/PE), ruled that proof of fiscal regularity is not a condition for the homologation of the Judicial Reorganization Plan (PRJ) in cases where the reorganization process was initiated before the enactment of Law No. 14.112/2020.

The STJ clarified that, under the provisions of Law No. 11.101/2005, the submission of negative tax certificates was generally required for the homologation of a PRJ. However, this requirement was not consistently enforced in practice, as it could, in certain instances, render the judicial reorganization process unfeasible.

With the advent of Law No. 14.112/2020, more flexible provisions for tax settlement were introduced, specifically tailored for companies undergoing judicial reorganization. Nevertheless, for cases that commenced prior to the law’s effective date, the principle tempus regit actum applies, meaning that legal actions are governed by the laws in force at the time they were undertaken.

In line with this interpretation, Justice Antônio Carlos Ferreira's opinion stated:

“(...) for procedures initiated before the enactment of Law No. 14.112/2020, the prior jurisprudential understanding shall continue to apply, affirming that proof of fiscal regularity is not required, in accordance with the principle tempus regit actum (Article 5, XXXVI, of the Federal Constitution and Article 6 of the Introductory Law to the Brazilian Legal System), so as not to hinder the execution of the plan.”

Consistent with the STJ's position, the São Paulo Court of Appeals (TJSP) also waived the fiscal regularity requirement in the judicial reorganization of Tersel Equipamentos Industriais Ltda., which had been granted before the enactment of Law No. 14.112/2020. However, said State Court ruled that fiscal regularization must be provided for any amendments to the PRJ made subsequent to the law’s effective date (Interlocutory Appeal No. 2151006-83.2024.8.26.0000).

In a unanimous decision rendered on April 2, 2024, the Third Panel of the Superior Court of Justice (STJ), under the rapporteurship of Justice Marco Aurélio Bellizze (REsp 1934930/SP), ruled that in cases of goods consignment, the consignor, upon delivering the goods, assumes the status of a creditor. Meanwhile, the consignee, as the debtor, is granted a period to either settle the agreed price or return the goods.

In this context, the STJ clarified that the credit is established at the moment the goods are delivered to the consignee, as demonstrated in the case involving Grupo Abril, which received various publications on consignment. The Court elaborated that:

“In essence, the legal relationship between the parties is formed when the consignors fulfill their obligation—specifically, by delivering the magazines on consignment—thereby assuming the status of creditors. The consignee/debtors were then provided a period within which to either make payment or return the consigned goods. Since the legal relationship between consignors (creditors) and consignees (debtors) predates the approval of the judicial reorganization plan, the credit is considered subject to the judicial reorganization and must therefore be incorporated into the respective reorganization plan.”

Thus, even if the publications were sold to third parties after the commencement of the judicial reorganization, the STJ held that the credit continues to be subject to the judicial reorganization proceedings.

In the judicial reorganization of Italspeed Automotive Ltda. and others, the Fourth Panel of the Superior Court of Justice (STJ), on April 23, 2024, rendered a unanimous decision under the rapporteurship of Minister Antonio Carlos Ferreira (REsp 1830550/SP), affirming the validity of a clause that permits the convening of a new General Creditors' Meeting (AGC) in the event of default in the Judicial Reorganization Plan (PRJ), instead of automatically converting the proceedings into bankruptcy, as stipulated under Law No. 11.101/2005.

The STJ's ruling emphasized that the provisions of the law should not be viewed as rigid mandates, but rather must be interpreted in alignment with the fundamental purposes of judicial reorganization, particularly those centered on overcoming financial crises and preserving the corporate entity:

“The courts of origin argued that the provision for a new Creditors' Meeting would infringe upon the stipulations of Articles 61, § 1, and 73, IV, of Law No. 11.101/2005, which prescribe automatic bankruptcy conversion in the event of non-compliance with any obligation under the Judicial Reorganization Plan. However, I believe that these provisions are not imperative and should be construed in light of the overarching objectives of the Judicial Reorganization Law, which primarily aims to resolve financial difficulties and ensure the preservation of the company, as outlined in Article 47.”

Moreover, as articulated by Minister Antonio Carlos Ferreira, the inclusion of the clause allowing the convening of a new AGC falls squarely within the scope of creditors’ freedom to negotiate, and, as such, is deemed valid:

“Indeed, the provision allowing for the convening of a new General Assembly to avert the immediate conversion to bankruptcy is a manifestation of the creditors’ negotiation autonomy. This resolution is of significant benefit to the company’s continuity and, by extension, to society, as it enables the preservation of jobs, the continued circulation of wealth, goods, services, and tax revenue.”

In contrast to the STJ’s position, the Mato Grosso Court of Appeals (TJMT), in its ruling on Interlocutory Appeal No. 1024211-66.2024.8.11.0000, concerning the Algodoeira Vale do Tartaruga Group, under the rapporteurship of Judge Serly Marcondes Alves, reaffirmed the interpretation that Articles 61 and 73 of Law No. 11.101/2005 establish an automatic conversion to bankruptcy in the event of non-compliance with any obligation under the Judicial Reorganization Plan.

In a landmark ruling delivered on August 13, 2024 (EREsp 2123959/GO), Minister Ricardo Villas Bôas Cueva of the Superior Court of Justice (STJ) ruled that credits arising from guarantees provided by guarantors who settle the debts of co-obligors after the judicial reorganization request are subject to the judicial reorganization process.

This decision, issued in the judicial reorganization case of the Stemac Group, signals a potential shift in the STJ's previous caselaw on the matter. In a prior ruling concerning the OAS Group's judicial reorganization, the Third Panel had determined that guarantees provided after the reorganization request were not subject to the judicial reorganization process, reasoning that the triggering event for such guarantees was the payment of the debt.

Under the new interpretation, however, the pivotal event is the enforcement of the guarantee agreement, which dictates whether the credit falls within the scope of the judicial reorganization. As emphasized in Justice Villas Bôas Cueva's opinion:

“(...) the payment made by the guarantor and the subsequent claim for the amount paid are tied to the performance of the guarantee contract, rather than to its mere existence.”

Accordingly, the STJ's revised position clarifies that the critical factor is not the timing of the payment, but rather the establishment of the contractual relationship, which will determine whether the credit is to be included in the judicial reorganization process or not.

On August 27, 2024, the Third Panel of the Superior Court of Justice (STJ) rendered a ruling (EREsp 2001535/SP) affirming that it is permissible to include a company from the same economic group in an ongoing judicial reorganization process.

In Justice Nancy Andrighi’s opinion, in cases involving substantial consolidation—such as the Dolly Group—it is impermissible for a business group to selectively determine which assets and liabilities of its subsidiaries will be incorporated into the reorganization proceedings. As the Justice articulated:

“(...) A business group should not be allowed to arbitrarily choose, according to its own interests, which assets and liabilities will be included in the reorganization process. Such an approach would amount to a clear manipulation of the principles and provisions outlined in Law No. 11.101/05.”

This reasoning had been consistently applied in prior cases, including the judicial reorganization of Frigorífico Vale do Sapucaí Ltda., where the court recognized the existence of an economic group and mandated the inclusion of two affiliated companies in the reorganization process. This decision was subsequently upheld by the Minas Gerais Court of Appeals (Interlocutory Appeal No. 2631253-51.2021.8.13.0000).

In a unanimous ruling issued on September 11, 2024 (CC 199496/CE), the Second Section of the Superior Court of Justice (STJ) addressed the judicial reorganization proceedings of the Nortex Group. The Court determined that, once the stay period established under § 4 of Article 6 of Law No. 11.101/2005 expires—during which enforcement actions are suspended following the initiation of judicial reorganization—and the Judicial Reorganization Plan (PRJ) has not been approved by the creditors' assembly, enforcement proceedings concerning credits subject to the judicial reorganization may be reinstated.

This decision was grounded in the principle that the suspension of enforcement actions for credits under the judicial reorganization remains in effect only until the PRJ is approved by the creditors. In the absence of approval, and if the debtor fails to meet the obligations outlined in the proposed reorganization plan, creditors are entitled to resume their enforcement actions, as emphasized in the opinion of Justice Paulo de Tarso Sanseverino:

“(...) if the plan is not approved and the debtor fails to fulfil the obligations stipulated in the proposed reorganization, the suspension of actions should be lifted, thus enabling creditors to proceed with the enforcement of their credits.”