Fight between Americanas and banks turns Rio-São Paulo dispute in court

Americanas sent this Monday (6th) to the Justice of Rio a petition in which it defends the comarca as the appropriate forum for the judgment of all actions arising from its request for judicial recovery, made on the last 19th, and also related to to the disclosure of “accounting inconsistencies” in the amount of R$ 20 billion, made on the last 11th.

The petition is a response to the motion for clarification filed by Banco Santander which, according to Americanas’ petition, maintained that the 4th Corporate Court of the Judicial District of the Capital of the State of Rio de Janeiro – the same one that responded to the request for judicial recovery of retailer – is not competent to proceed with the process, as the largest volume of business for Americanas is in São Paulo.

Americanas owes R$3.65 billion to Santander, as identified in the retailer’s list of creditors.

A Sheet found out that there is a dispute between the banks and Americanas regarding the forums that will judge actions related to judicial recovery, according to the respective centers of influence: the banks in the capital of São Paulo, and the retailer in the capital of Rio de Janeiro.

A lawyer draws attention to the speed with which Americanas obtained the approval of its request for judicial recovery – just over three hours, on the same afternoon of the 19th in which it presented the petition. In general, this response from Justice is given a few days later or, at most, the next day, he said.

“It should not be lost sight of the fact that the number of transactions carried out in São Paulo is justified by the activities of the creditor banks, which largely have their headquarters in São Paulo – and not by choice or interference by the Americanas Group”, informs the retailer in the petition, filed by Basilio Advogados and Salomão Kaiuca Abrahão Raposo Cotta.

Santander is served by the offices GTA – Gustavo Tepedino Advogados and Fux Advogados.

According to the retailer’s defense, “it is clear that the Americanas Group has had its headquarters in Rio de Janeiro since its origin, where it traditionally developed its activities and became recognized as a powerhouse in the retail market”, and that it is in the city of Rio that they are not only the group headquarters, but also the administrative, operational and financial centres.

“This assertion is easily corroborated by the fact that, in 2 (two) of the various actions for the early production of evidence filed (improperly) in São Paulo by financial institutions, rogatory letters were distributed in the Judicial District of the Capital of Rio de Janeiro to comply with the diligence to search for documents from the directors, board members and employees of the finance area”, informed the defense of Americanas.

The lawyers refer to actions for the early production of evidence made by Bradesco (to whom the retailer owes BRL 4.51 billion) and by Votorantim (cited in the list with debts of BRL 3.3 billion, the bank says that its exposure is much smaller, around BRL 206 million).

Bradesco is defended by Warde Advogados, while Votorantim is defended by GTA and Arruda Alvim & Thereza Alvim.

Americanas’ lawyers also complain that Santander requested the inclusion, in the process, of the list of employees and assets of the company’s administrators. The defense says that the secrecy request was based on “the constitutional rights to intimacy, privacy, confidentiality of data and information relating to the performance of professional activity.”

“The need for secrecy is reinforced when one verifies the repercussion of the present process in the media and the number of daily accesses to the process”, affirm the defenders of Americanas. “Each procedural progress of this judicial reorganization is constantly monitored by information vehicles, so that the data of administrators and employees would be quickly publicized, which would cause irreversible damage to their privacy and intimacy.”

BTG awaits STJ decision

Also in the dispute between Rio and São Paulo is BTG, in the tug of war involving the R$ 1.2 billion in the retailer’s bank account, which was blocked by the financial institution. Defending BTG are FCDG Advogados, Galdino & Coelho, Mudrovitsch Advogados and Asfor Rocha Advogados.

The bank questions the competence of the Justice of Rio de Janeiro to deal with the divergence between the parties. In a decision issued on the 25th, Minister Og Fernandes, acting president of the STJ (Superior Court of Justice), recalled the decision of the 1st Business and Arbitration Court of the Judicial District of São Paulo, favorable to BTG.

Thus, the judge maintained the blocking of the appeals, while the issue of competence to judge the issue will be analyzed by the rapporteur of the appeal, Minister Raul Araújo, of the Second Section.

According to the list of creditors, Americanas owes BRL 3.5 billion to BTG. The amount of R$ 1.2 billion is invested by Americanas in CDBs and Financial Bills of the bank, as described in the action filed at the STJ.

The legal battle between BTG and Americanas began on January 13, when the retailer obtained an injunction that prevented creditors from collecting debts for a period of 30 days. Soon after, the bank filed a request to block BRL 1.2 billion in deposits made by Americanas.

BTG obtained a writ of mandamus to block the resources on the 18th, which hastened Americanas’ request for judicial recovery, made on the 19th.

From the outset, the bank has questioned the competence of the 4th Business Court of Rio de Janeiro to conduct the process, and has tried to bring the entire legal discussion to São Paulo. The origin of this appeal in the STJ is the 1st instance of the Justice of São Paulo.

In addition to BTG, BV also went to the STJ to question the jurisdiction of the Rio court. Both had decisions favorable to the execution of their credits in the Justice of São Paulo, while the guardianship requested by Americanas to prevent the collections is running in the capital of Rio de Janeiro.

Justice Og Fernandes maintained the blocking of appeals in favor of BTG while the merits of the competence for judgment are not analyzed in the Second Section of the STJ. But the minister denied BV’s injunction because he considered that, in the case of BTG, the courts gave conflicting decisions, while for Votorantim both decisions denied the bank’s requests.

collaborated Renato Carvalhofrom Sao Paulo