The complexity of the interests involved among creditors and the profusion of processes that must be moved around the crisis in Americans (AMER3) should lengthen the path of those who have to receive from the collapsed retailer.
For specialists in litigation, although the amounts involved in the fourth largest judicial recovery in the country, of 43 billion reais, are lower than those of Samarco, Hey and Odebrechtparticular characteristics of the case concur to drag it along for many years.
Oi’s judicial recovery, for example, was requested in 2016, went through numerous objections from creditors and was only concluded last year, six years later.
The pulverized base of creditors – the company’s bankruptcy filing cites 16,300 – with a high level of distrust among them, makes it difficult to reach an agreement at a general meeting to discuss a recovery plan, which Americanas must present until March.
“A plan could be approved in six months, but I don’t think that will happen,” said Fernando Brandariz, president of the Business Law Commission at OAB Pinheiros and partner at Mingrone e Brandariz, which has no clients in the process. “I see the potential for creditors to make many requests to challenge an Americanas bankruptcy plan.”
In theory, banks with unsecured debt, owners of debentures and suppliers would be in the single block, called third-class creditors.
However, the circumstances of the case are leading large financial institutions to seek a different qualification from the others, eventually understanding that they were victims of fraud, therefore more harmed, but also because they want to prevent Americanas from using lines of credit that had not yet been taken out. .
With the granting of the judicial reorganization process by the Justice, the banks have to release the value. As the dialogue between the banks and Americanas’ main shareholders – Jorge Paulo Lemann, Marcel Telles and Beto Sicupira – has rapidly deteriorated, the banks have been looking for alternative paths, but not in an exactly coordinated manner.
According to two sources familiar with major banks, Santander Brazil and Safra have already asked for a challenge to the judicial reorganization. A third source stated that the Bradesco would do the same this Tuesday, but gave up for now and that it can try a lawsuit against the company abroad.
“Since there is a perception that the reference shareholders are able to clean up the company, no bank is willing to anticipate and accept a cut in the amount receivable”, said a source familiar with a large bank.
In any case, the thesis that the banks were more harmed than the other creditors will face opposition from debenture holders, for example, who understand that partner banks in “drawn risk” operations – the epicenter of the crisis that engulfed Americanas – profited along with the retailer in these operations for many years, lawyers said.
The case can get worse if the Justice comply with demands from other interested parties, such as minority shareholders, who are moving to collect compensation from former Americanas executives, auditing firms and reference shareholders.
“As in a judicial recovery, minority shareholders are at the end of the queue, the solution is to try another path”, said Daniel Gerber, partner of Daniel Gerber Advogados Associados, who represents dozens of Americanas’ small shareholders and who will join the criminal investigation opened by the Ministry Public against the company last week.
On another front, a group of shareholders is working together to claim compensation at the B3 Arbitration Chamber, said Marcello Vieira de Mello, founding partner of GVM Advogados.
Being listed on the Novo Mercado, Americanas submits itself to the Chamber for the resolution of corporate disputes and the hope in this case is that this instance will offer a faster response than the Justice will have for the creditors.
“It will be a case of many years in court”, said Mello.
It is a similar strategy that should lead interested parties to file “class actions”, collective actions by investors through specialized offices in the United States, which usually result in agreements.
Outside the judicial spheres, Americanas is the target of at least eight lawsuits filed by the Securities and Exchange Commission (CVM)targeting current and former directors of the company, its reference shareholders and independent auditors.
Source: Moneytimes
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