Before Justice, Thursday (19), request judicial recovery of Americana’s debt of over R$40 billion. Experts point out what is happening now and indicate the penalties that corporate leaders may face if the crime is proven.
A lawyer specializing in business law, with a focus on judicial recovery and bankruptcy, Philip Vinamore, explains that judicial recovery is appropriate for companies that have debts with workers, suppliers and financial institutions that meet certain specific requirements, for example, have more than two years of registration and have not received a recovery jurisdiction over the past five years.
Prior to seeking judicial recovery, Americana filed a request for urgent relief, where it received an expectation stay periodwhich consists in suspending the individual execution of the obligations contracted by the debtor company, notes the specialist.
He notes that “in the case of Americana, it became known that such protection was necessary to prevent clauses in contracts with financial institutions from allowing early offsetting of credits with investments held in the same creditor institutions.”
With regard to the characteristics of Americanas’ judicial reorganization, based on what is known to the public, Finamore points out that the crisis leading to the submission of the application triggered a material fact that was communicated to the market, and an awareness of accounting discrepancies, in practice. It appears to have led to a doubling of short, medium and long-term liabilities.
“There is no way to know the details of the judicial recovery of Lojas Americanas precisely, because it is information shrouded in secrecy. But according to what was revealed in the market, the company had contracts that were linked to a certain and specific liquidity ratio of the company. With the disclosure of accounting inconsistencies, he points out , a change occurred in this level of liquidity.
With regard to the companies that make up the Lojas Americanas group, for example, it is possible that the sale of these isolated units could be one option to generate cash to pay creditors, but this will only be verified when the recovery plan is effectively presented to the court, which will not happen until after 60 days from the approval of the refund processing by the competent court.
How does the payment plan work?
According to the specialist, Americana will need to provide a series of documents proving the general regularity of the company. “Once the documents are submitted, the judge will determine the procedures for judicial recovery, when the debtor has 60 days to file a judicial recovery plan, in which he will present the method by which he will pay his creditors.”
In this payment plan, Finamore indicates that the company may propose to its creditors a longer period of payment of liabilities, a discount on the amount of debts (updated according to the contract to the date of application, and then corrected in the form proposal in the plan), donation of payment of goods, sale sold For units of production or goods to pay creditors and even break up the company.
“There are multiple possibilities that require a concrete analysis of the profile of the company and its creditors, in order to determine the best payment strategy,” adds the lawyer.
Once a payment plan is submitted, creditors will be notified, by public notice, when they have a 30-day period to comment on the plan. If there is no objection, the plan will be considered approved and a refund will be granted.
If there is an objection, a meeting will be held, where the creditors will deliberate on the plan and may suggest changes to the plan and even an alternative plan. If the plan is approved, the judicial reorganization will be granted. Once rejected, the company will be declared bankrupt.
Felipe Finamore confirms that, specifically with respect to Lojas Americanas, based on the information that has been published, there is no breach of the company’s obligations to suppliers or customers.
“Not that it is not relevant, but quite the contrary, there is a much greater crisis in terms of investors (open market shareholders) than in terms of creditors. Even in terms of financial institutions, there has never been a lack of resources to pay Liabilities (short, medium and long term).
According to Finamore, it can be seen that the entire procedure was introduced because the wrong classification of operations resulted in an uncovered liability that would allow early accrual of liabilities, the payments of which would, in practice, lengthen over time.
Think about it: It is one thing to know that you have up to a certain year to settle an obligation. It would be quite another to ask for the same obligation immediately. The whole issue of the crisis made in Lojas Americanas has to do with the expectation of receipts by financial institutions, the most well-known case of which related to BTG Bank, which has already been announced.”
Mass layoffs and store closures?
The expert points out that refund requests do not necessarily mean the dismissal of employees. “Because the idea of the law is specifically to preserve jobs.”
However, he points out that there are cases where the company suffers a sudden drop in revenue, which requires dismissal. “This is the case of a contractor who loses a contract, for example. Messi’s case of employees would be unemployed. In the case of a chain of stores, if there is a need to close units, layoffs can happen as well.”
Penalties
The criminal specializing in economic and commercial crimes, Rodrigo Horta, pointed out that if the manipulation of the accounting balance sheet is confirmed, the company’s executives may be punished with administrative penalties by the Securities and Exchange Commission (CVM).
The Federal Public Ministry of São Paulo (MPF-SP) has also opened a procedure to investigate the possible practice of insider trading by company executives. “Trading based on inside information is a financial crime stipulated in Article 27-D of Law No. 6,385/76, which consists of using privileged information, not yet disclosed to the market, to obtain advantages by trading assets in the capital market.” , highlights a specialist.
Therefore, the crime of insider trading is to anticipate market movements through the use of information that is not known to the public. “Privileged information may characterize companies’ operating results, closing contracts or new franchises, mergers and acquisitions, among other things that affect companies’ market value. If the crime is proven, the expected penalties are from one to five years in prison and a fine,” explains Horta.
The crime of market manipulation, stipulated in Article 27-C of Law No. 6385/76, consists of carrying out simulated operations or fraudulent maneuvers to change a security, to obtain an undue advantage or profit.
In this way, the information available to investors is wrong, which leads to manipulation by those who trade in securities, who are misled. And if the crime is proven, the expected sentences range from one to eight years.”
Both financial crimes aim to protect the reliability of data or information traded in the market, and to ensure that any losses incurred by investors fall within market risks and are not the result of actions by third parties, Horta notes.