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Date: January 29, 2020
Posted by: CPDMA Team

Stay period can be extended to preserve recovery plan

The suspension of actions against the company undergoing judicial reorganization (stay period) may exceed the period of 180 days if the judge considers that this extension is necessary in order not to frustrate the reorganization plan.

The understanding was applied by the president of the Superior Court of Justice, Minister João Otávio de Noronha, when suspending an order from the São Paulo Court of Justice for a medical laboratory to pay, in 30 days, labor claims of more than R$ 5 million.

Noronha pointed out that the 2nd Section of the STJ recognized, in the judgment of CC 159,480, that it is possible to extend the period of suspension of the stay period in cases where the extension is necessary so as not to frustrate the company's recovery plan.

"In addition, the requirement of periculum in mora is fulfilled, embodied in the proximity of the end of the 30-day period established by the Court of origin for full payment of labor claims, under penalty of conversion of the judicial recovery into bankruptcy", said the minister.

Thus, by attributing suspensive effect to the appeal, the president of the STJ suspended the payment order of labor claims — reinstating, on this specific point, the lower court decision that approved the judicial reorganization plan. The action will continue in the STJ, under the rapporteurship of Minister Paulo de Tarso Sanseverino. 

The case deals with the recovery of Biofast Medicine and Health. The TJ-SP payment order was given when judging an appeal against the decision that approved Biofast's judicial recovery plan. As it considered that there had been a violation of rules protecting workers' rights, the court annulled the clause that disciplined the payment to labor creditors within 360 days from the judicial approval of the plan.

According to the TJ-SP, the initial one-year mark for payment of labor creditors provided for in article 54 of the Judicial Reorganization Law is not counted from the approval of the plan, but from the end of the 180-day period of suspension of claims against the debtor (article 6, paragraph 4, of the LRF).

Thus, after partially annulling the reorganization plan, the TJ-SP determined the full settlement of the labor values within 30 days, under penalty of conversion of the judicial reorganization into bankruptcy.

In the request for provisional relief, Biofast sought to grant suspensive effect to the special appeal submitted to the STJ, on the grounds that the 30-day payment period set by the São Paulo court was short and illegal. In addition, according to the company, any payment of labor claims at this time of recovery would bring a serious and irreversible risk of bankruptcy for the company.

To preserve the recovery plan and prevent bankruptcy, Minister João Otávio de Noronha suspended the order of the TJ-SP.

Source: Conjur.

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