The owner of Itapemirim has a trail of legal disputes and accusations

Businessman Sidnei Piva, at the head of the Itapemirim group —which controls ITA, the airline whose operation was suspended on Friday (17)—, has a trajectory marked by accusations of broken contracts and lawsuits.

The relationship itself with the former controllers of Itapemirim, a company known for its road transport and which ventured into aviation in June this year, is tumultuous and has not yet been settled in court.

Sought by the report, Itapemirim did not respond to requests, made since the afternoon of Wednesday (22).

The beginning of the relationship between Sidnei Piva and the companies of the Itapemirim group dates back to mid-2016, a few months after the presentation of the judicial reorganization plan by the then controllers of the Cola family, in March of that year.

Claiming to have tax credits receivable in the order of R$ 5 billion at the time, which could only be used through the purchase of a company with billion dollar debts on its balance sheet, Piva arranged the transfer of the group’s companies, subject to certain contractual clauses.

These clauses were never fulfilled, says Olavo Chinaglia, from Chinaglia Oliveira Advogados, who represents the Cola family in the judicial recovery process.

“The Cola family informs that it was the victim of the businessman Sidnei Piva, who breached contractual clauses at the time of the sale of the companies, and that it has been alerting the Judiciary in its instances, Anac [Agência Nacional de Aviação Civil] and other public entities on the economic and operational unfeasibility of the group’s airline subsidiary, as well as the diversion of funds to pay creditors that led to the creation of the said company, which unfortunately was not given due attention and, consequently, left thousands of unassisted travelers”, says a note signed by Camilo Cola Filho and Andrea Cola, heirs of the company’s founder, Camilo Cola, who died in May this year.

According to Chinaglia, according to what was agreed upon at the time of the purchase and sale agreement, some of the family’s real estate assets would be excluded from the transfer agreement, as well as certain group companies – in the case of Viação Caiçara, which was still profitable even when the court-supervised reorganization was proposed.

In mid-2017, however, Piva would have been able to transfer all of the conglomerate’s assets, without complying with the previously established conditions. The lawyer points out suspicions raised at the time regarding the bribe paid by Piva to the then judge in charge of the case at the 13th Corporate Civil Court for Judicial Recovery and Bankruptcy in Vitória (ES), Paulino José Lourenço.

Chinaglia says the Cola family is no longer seeking to regain control of the business for fear that Piva has squandered the assets of the group’s companies and diverted resources owed to creditors to invest in the ITA. At this point, he believes he is in an even more delicate situation than when the court-supervised reorganization was filed.

In a note released on Wednesday (22), after accusations by creditors, the Itapemirim Group stated that the judicial reorganization, which only covers the road modal, is up to date and includes more than 3,000 creditors.

“The Itapemirim Group repudiates any type of allegation of withdrawal or diversion of amounts from the judicial reorganization”, he stated.

What the Colas want is compensation for the alleged non-compliance with the agreements made by the businessman so far, in an amount yet to be defined in the arbitration process, as well as any removal of liability that may try to be bound in relation to the acts taken by Piva ahead from the company.

Target for complaint with the CNJ (National Council of Justice), at the end of 2017, Lourenço declared himself a suspect and asked to remove the case. Afterwards, a few weeks later Piva and her partner in control of the group, Camila de Souza Valdivia, were even removed.

In July 2018, however, after the case was transferred to the 1st Bankruptcy and Judicial Reorganization Court of São Paulo, an injunction contested by the Cola family’s defense returned the pair to the company’s management.

“Justice has been silent over these years, and has allowed Sydney to embezzle money from the group’s companies in any way,” Chinaglia says.

As for Judge Lourenço, from Vitória, the accusations with the CNJ resulted in the highest penalty provided for by the magistracy, which is compulsory retirement.

The judge’s defense alleges that the sentence was based on presumptions, without presentation of evidence, and that the accusations began after Lourenço ordered the inclusion of Viação Caiçara in the group of companies to be transferred to the control of Piva, which would have displeased the former -controllers.

In addition to the imbroglio in the case of the Cola family, Piva is also the target of charges by a group of creditors, with whom Viação Itapemirim has an outstanding debt of R$90 million.

In a note in which it responded to the questioning about the debt with creditors on Saturday, (18) the Itapemirim group stated that it is negotiating an agreement with creditors and that it is awaiting a decision by the Court on the amount, since the debt is in foreign currency.

Before the latest events, Itapemirim or other Piva companies were defendants in lawsuits. In 2015, the businessman and partner Camila Valdivia signed a contract, through the company Gitan Incorporações, to take over the Fábrica Grampos Aço, in Guarulhos.

They pledged to pay labor and tax liabilities. In exchange, the former owners would transfer 100% of the shares to Gitan. The agreement was not fulfilled and the former owners accumulated labor debts resulting from layoffs. They got the repossession in court last year.

In another case, which has yet to be sentenced, Piva and Valdivia signed a transfer of social quotas of R$ 13 million in Matrizaria e Estamparia Morillo, a family business in Guarulhos. The counterpart was that the withdrawing partners would not be affected by the company’s debts.

The pact would also not have been fulfilled and the former partners filed for court.

In a compilation of over 60 pages, prepared by ex-employees of the Itapemirim Group, who are now part of an association of creditors with more than 200 ex-employees of the company, there are a series of similar cases.

The association’s dossier cites the case of different CPFs, in which Sydney’s mother appears with three different names and different birth dates in each of the entrepreneur’s inscriptions.

“Today, nothing scares me anymore. What scared me the most was that he opened a company with the CPF of a rural worker in Acre. I understood that we were dealing with a person with a great capacity to deceive others”, says Paulo Marcos Adame, president of association of creditors.

“His modus operandi is to mess up the law and spend a lot of money on lawyers to stall cases.”

The group launched an operation in the air sector in the midst of the pandemic, when trips were suspended and some companies in the sector succumbed. Anac authorized the grant in May 2020, in an extraordinary online meeting for the case.

ITA started flying in June of this year. In light of the judicial reorganization scenario, the Itapemirim group claimed that the air arm had funds of US$ 500 million (R$ 2.8 billion) that would transfer the amount as the goals were met. Piva never revealed what the funds would be.

The company had the operation temporarily suspended about a week ago. It intends to resume operations in February, but has not yet given details on how the operation would be.

The Ministry of Justice, through Senacon (National Department of Consumer Defense) analyzes the case and can open an administrative proceeding. São Paulo’s Procon may fine the company R$11 million.

ITA informed in response to Procon-SP that the suspension affected over 133,000 passengers considering round-trip travel in the period from December 17th to February 17th and that it plans to resume operations on this date.