The 3^rd Panel of the Superior Court of Justice (Special Appeal No. 1.829.790/RS, judged on November 19^th, 2019) has ruled that the submission of claims secured by the personal guarantee of aval to judicial reorganization procedures depend on the analysis of the characteristic of the guarantee: if granted by gratuitous title, it’s possible to apply the article 5^th, I, of Federal Law No. 11,101/2005 (Insolvency Statute) to exclude the claim from the judicial reorganization; if granted by onerous title, the credit is subject to the procedure, pursuant to article 49 of the statute.

The reporting Justice in the Superior Court of Justice, Nancy Andrighi, pointed out that, according to article 49 of Federal Law No. 11.101/2005, all existing claims at the date of the petition to initiate a judicial reorganization case are subject to the procedure’s effects, taking into account, however, there are statutory exceptions to said rule, which do not expressly contemplate the personal guarantee of aval. As Justice Andrighi noted, however, article 5^th, I, of the statute excludes gratuitous obligations from reorganization cases.

In view of the absence of analysis by the lower instances’ judges, in this particular case, of the gratuity or not of the provided guarantee, as well as the application of the Superior Court of Justice’s Precedent No. 7, which prevents the reexamination of facts and proofs in that instance, Justice Andrighi determined the return of the case records to the first instance, demanding judgment on the specific matter of whether the guarantee in question was constituted as a gratuitous act. Based on that understanding, a posterior analysis on the submission or not of the claim to the judicial reorganization should follow.

The First Chamber of the Regional Labor Court of the 12^th Region (TRT-12) dismissed the appeal of one of the equity holders of a transport company (Appeal No. 0000634-94.2014.5.12.0050, judged on December 4^th, 2019) based on the understanding that a corporation undergoing a judicial reorganization procedure does not stop the execution of labor debt against the equity holders.

The granting of the judicial reorganization’s processing suspends all the enforcement proceedings (among which the labor ones) against the debtor for 180 days – the stay period – and attracts the bankruptcy court’s jurisdiction to decide on matters affecting the assets of the debtor. Nonetheless, when the company does not have enough assets to pay its labor debt, the law enables the disregard of the legal entity so that the executions are redirected towards the equity holders’ personal assets.

By examining the appeal in which the permission to proceed with the R$ 40.000,00 (forty thousand reais) labor debt enforcement was required, the reporting judge, Wanderley Godoy Júnior, adopted a standing that the two doctrines are compatible. The judge pointed that the equity holders’ assets and the assets of the debtor under judicial reorganization or of the bankrupt estate do not commingle, so that the judicial reorganization’s benefits apply exclusively to the company and not to its equity holders, a standing backed by precedents of the Superior Labor Court.

The São Paulo Appeals Court’s Private Law Section proclaimed, on January 15^th, 2020, two new precedents on Business Law, one of which is related to Bankruptcy Law.

The Precedent XI, approved unanimously by the Section, provides that “[the] Tax Authorities’s option for presenting a proof of tax claim in a bankruptcy proceeding does not demand the dismissal of the tax execution suit, provided that the suspension of the suit against the estate is suspended”.

The precedent tends to make the Court’s Business Law Chambers’ judgments uniform, since two opposite schools of thought used to be present: one which proclaimed the obligation of the withdrawal of the tax execution suit in order to allow for the Tax Authorities to present proofs of claim in bankruptcy proceedings and another which defended that the suspension and shelving of the tax execution suit was enough to enable the proof of tax claim in bankruptcy cases.

The  Rio Grande do Sul Court of Appeals’ 22^nd  Civil Law Chamber (Interlocutory Appeal No. 70082332552, judged in October 31^st, 2019) upheld a judgement that denied a pre-execution motion against the enforcement of a deal made by the Prosecution Office and the majority equity holder of an industry – owner of 99% of the equity interest.

The court of first instance stated the applicability of the full risk theory to the case – a doctrine that prevents any exclusion of liability by the pollutant party and does not require the demonstration of fault or willful misconduct (strict liability). Likewise, it also pointed the members’ joint and several liability, arising from the interpretation of legal statutes (articles 3^rd, IV, and 14^th, § 1^st, of Federal Law No. 9.638/81), thus deyning the objection.

After filing of an appeal by the majority equity holder, the Rio Grande do Sul Court of Appeals concluded that the company’s bankruptcy does not stop its equity holders’ several and joint liability for the damages caused to the environment and for the non-compliance of the obligations agreed upon at the time of the signing of the Consent Decree (Termo de Ajustamento de Conduta) with the Prosecution Office.

Based on the disregard of the legal entity doctrine in its more permissive form, in which there is no need to prove the misuse of the corporation as an entity or the co-mingling of assets, the Appeals Court’s judges ascertained the constitution of a legal entity does not immunize those who caused damages to the environment under its guise from liability, considering the legal provision that the legal entities’ responsibility does not exclude the liability of the individuals who served as authors, co-authors or accomplices of the environmental damage. In this sense, the disregard of the legal entity is allowed whenever the entity theory sets up an obstacle to the reparation of environmental damage.

The São Paulo Court of Appeals’ 14^th Private Law Chamber (Interlocutory Appeal No. 2240421-53.2019.8.26.0000) upheld a judgment that rejected the continuation of an enforcement suit against the co-debtors not contemplated by the granting of the judicial reorganization of the rural producers.

In the concrete case, a bank pursues the execution of bank credit notes against the wives of rural producers who also signed the Rural Product Notes as issuers.

The reporting judge, denying the appeal, highlighted the analysis of the validity of the rural producers’ wives inclusion as issuers is still pending, in view of the pleading that they are not rural producers, which would violate article 2^nd of Federal Law No. 8.929/94, the statute that legitimates the rural producers and their associations to issue Rural Product Credit Notes (Cédula de Produto Rural).

Furthermore, based on precedents from TJSP and the Superior Court of Justice, the judgment ascertained the bankruptcy court’s jurisdiction to decide about any constriction over the rural producers’ assets during the reorganization plan’s performance.

The Fourth Panel of the Superior Court of Justice, in the judgement of the Special Appeal No. 1.800.032/MT, dated November 5^th, 2019, defined that debt incurred by a rural producer before his/her registration in the Commerce Registry can be included in judicial reorganization procedures.

The Civil Code defines that the registration of rural producers with the Commerce Registry is optional. Based on that provision, the prevailing opinion stated that the rural producer is always in a regular situation, even before being registered with the Commerce Registry. In this sense, after the registration before the Registry of Commerce, as long as there is proof of compliance with the legal requirement of regular exercise of activities for more than two years for the concession of the reorganization, there is no distinction by law of the legal rules to be applied to the obligations prior and subsequent to the registration –  the obligations and debt incurred before and after the registration may be adjusted by judicial reorganization procedures.