In a judgment on a Special Appeal[1] by a company undergoing judicial reorganization, the 3rd Panel of the Superior Court of Justice (STJ) ruled that the general meeting of creditors is free to establish a criterion for updating claims other than that provided for in article 9, II, of Law 11.101/2005, provided that it does so expressly.
In this case, the court of first instance recognized the existence of a claim arising from a labor claim with an updated value up to the date of distribution of the request for reorganization, in accordance with the legal provision.
The creditor appealed to the São Paulo Court of Justice, claiming that a clause in the judicial reorganization plan defined that the payment of labor claims would follow the amount established in the Labor Court decision, with monthly adjustment by the General Market Price Index (IGP-M).
The TJSP, taking the view that the company under reorganization could not disregard the rule that it had freely stipulated in the reorganization plan, upheld the creditor’s appeal to determine that the credit should be adjusted in accordance with the labor judgment.
Although the 3rd Panel of the STJ considered that the clause in the plan questioned by the creditor did not expressly disregard the legal parameter set out in art. 9, II, of Law 11.101/2005, the rapporteur, Justice Marco Aurélio Bellizze, recognized the possibility of the plan establishing, in relation to the updating of credits, a rule other than that provided for by law, “above all due to the contractual nature of judicial reorganization, so much so that the respective plan implies novation of the debt, with the debtor and the creditor being able to renegotiate the credit freely, subject to the legal limits”.
Finally, it is important to note that, if the judicial reorganization plan is silent on a different rule, the rule of article 9, item II, of Law 11.101/2005 will apply, which establishes the date of the decree of bankruptcy or request for judicial reorganization as the minimum parameter for updating the credits that will be qualified.
[1] REsp 1.936.385/SP
