Aline Cavalcante de Souza Sanches
Lawyer at Marcos Martins Advogados
In a recent ruling on Special Appeal No. 1689187 / RJ (2016/0052018-9), the Superior Court of Justice authorized the direct sale of an isolated production unit (UPI) of a company undergoing Judicial Recovery, dispensing with the legal formalities.
This is because one of the ways provided for by law to enable the restructuring of business activity consists of the sale of IPUs, which can be conceptualized as the sale of the debtor’s own commercial or industrial establishment.
As a rule, the sale of isolated production units, as long as duly provided for in the approved Judicial Reorganization Plan, must be carried out via a public auction appointed by the judge, as required by articles 60 and 142 of Law 11.101/2005 (LRF).
The Rapporteur of the appeal, Justice Villas Bôas Cueva, stated that
the objective of the rule was to reach the largest possible number of interested parties (publicity) and, therefore, the best price (competition), in addition to surrounding the sale with guarantees, given the benefit granted to the bidder of “non-succession”, avoiding fraud and collusion.
However, the Supreme Court has recognized that, exceptionally, as long as the reasons justifying the waiver of the public auction are clearly explained, it is possible to adopt other methods of sale, in an extensive interpretation of article 145 of Law 11.101/2005, in order to make the sale feasible.
It is therefore essential that the detailed conditions of the deal (value, term, destination of the price, etc.) set out in the Reorganization Plan approved at a General Meeting by a substantial majority of creditors (art. 46 of the LRF) and subsequently approved by the court, be strictly observed in order to carry out the direct sale of IPUs, with the requirement of a public auction being waived.
In conclusion, we find that the sale of isolated production units in the reorganization process must, as a rule, follow the provisions of articles 60 and 142 of Law 11.101/2005, and be carried out by public auction, however, the Superior Court of Justice recognizes that this rule, through an extensive interpretation of article 145 of the LRF, can be relaxed.
of the LRF, can be relaxed in exceptional situations, which must be thoroughly justified in the proposal submitted, and in many cases it is the only way to make the sale of the asset viable.
Marcos Martins Advogados is aware of this issue and is ready to help you develop your company’s restructuring plan, applying the most up-to-date case law.
