Monique Vieira Lessa
Lawyer at Marcos Martins Advogados
The 2nd Section of the Superior Court of Justice unanimously held that the court responsible for processing a company’s judicial reorganization has jurisdiction to enforce the net credits established in other courts, as well as to decide the fate of appeal deposits made in Labor Claims. It thus settled a conflict of jurisdiction involving a labor court in Salvador and a judicial reorganization court in São Paulo.
The conflict of jurisdiction was motivated by the decision of the Salvador labor court that authorized the withdrawal of the appeal deposit by the Claimant, after the suspension of all executions being carried out against the company under reorganization, on the grounds that this amount would not be part of the company’s assets, since the deposit was made before the reorganization was granted.
The rapporteur of the Conflict of Jurisdiction explained in her vote that, with the labor reform (Law 13.467/2017), the appeal deposit is no longer made in an account linked to the FGTS in the name of the employee, but in an account linked to the court, and can be released immediately by order, in favor of the winning party, shortly after the final and unappealable decision.
However, the judge herself pointed out that “in cases where judicial reorganization is granted to the defendant company during the course of the lawsuit, there is a novation of credits prior to the petition, binding the debtor and all creditors subject to it, by express provision of article 59 of Law 11.101/2005”.
The rapporteur also added to her reasoning that article 49 of the same law provides for all claims existing on the date of the petition to be subject to judicial reorganization, even if they have not fallen due, emphasizing that “The claim sought in the labor lawsuit in progress on the date of the petition is therefore subject to the effects of the reorganization, and must be paid under the terms of the approved plan, on equal terms with the other creditors in the same class”.
Finally, he closed his vote by stating his understanding that the labor appeal deposit is a guarantee, not an advance payment, which prevents the Labor Court from authorizing the withdrawal of the amounts deposited by a company under judicial reorganization, since the Labor Court’s jurisdiction is limited to determining the claim due in the lawsuit, for subsequent qualification in the general list of creditors.
