If Americanas chooses to carry out layoffs as of this Friday (20), the amount due to the cut employees will not be able to enter the judicial recovery process, and must be paid normally by the company. That’s what expert lawyers say.
Judicial recovery allows the company to remain for a period without paying its debts, which undergo renegotiation of conditions and terms. When the company makes dismissals before the judicial reorganization, the charges due to those dismissed are part of the process, and their payments may also be renegotiated.
According to experts, the actions of creditor banks, especially BTG Pactual, prevented Americanas from having time to better structure its request for judicial recovery, made in a hurry after the bank obtained a writ of mandamus to block funds deposited by the retailer.
Contacted for comment on the matter, BTG Pactual and Americanas did not respond until the publication of this text.
“Usually, companies make layoffs before filing the recovery request, precisely to allow the severance pay that should be paid to enter the process”, explains André Moraes, founding partner of Moraes & Savaget Advogados.
The law allows, for example, a company undergoing judicial recovery to postpone the payment of the 13th salary of its employees for one year. But with the request made in January, this benefit will not make sense for Americanas, since the 13th due date is for 2023. “The amount is very small”, explains Moraes, given that what will be included in the recovery will only be proportional to the month of January.
He believes that the request for injunctive relief, obtained by Americanas in court last week, was intended, in addition to protecting cash, to allow time for the company to carry out a restructuring.
“The problem is that BTG’s aggressive posture meant that Americanas had to hasten the request for judicial recovery. And there is nothing worse for a company than a hasty judicial recovery”, says Moraes.
Lawyer Maria Fabiana Dominguez Santana, a partner at PGLaw, says that the crisis at Americanas is “a difficult soap opera to follow”, due to the speed with which everything has happened.
She believes that, even if they do not enter into judicial recovery, the retailer will make layoffs during the process. “Usually it’s part of the process to do extensive restructuring, and that should happen in this case.”
The law concerning judicial reorganizations makes it clear that only debts acquired before the filing date are included in the process. However, Moraes believes that Americanas will try some alternative measure. “We can expect bold theses from the lawyers in this regard.”
The power of the biggest creditors
The rush in filing for judicial recovery can also have an impact on negotiations with creditors, especially with banks.
For Moraes, it is the banks that will decide how the process will unfold, including taking the lead in the conversation with the reference shareholders, who own almost a third of the capital of Americanas.
For Santana, the negotiation will be quite difficult. “I believe it will be a more combative judicial recovery than the one faced by Oi, for example.”
She recalls that in contracts with creditors, it is not just the level of indebtedness of a company that can generate a request for advance settlement of debts. “It is usually possible to ask for this anticipation if there are signs of insolvency. I believe that was what motivated BTG and other banks to ask for the blocking of resources”, says the expert.
But Santana says there are some points that may favor Americanas in the process. “Justice tends to be somewhat complacent with companies undergoing judicial recovery, especially of this size, due to the social impact.”
She also points out the proximity of Americanas lawyers with the judges in Rio de Janeiro, and even at the STJ (Superior Court of Justice). “They did everything with even the long term in mind,” she explains.
In the view of a head of analysis at a major brokerage firm, the best solution would be to sell Americanas. But the buyer would have to have resources to inject into the company, and willingness to reverse the great image damage that will remain after the crisis.
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