The Superior Court of Justice (STJ) has begun ruling on a crucial issue for business law and judicial reorganization in Brazil: the possibility of applying a discount on labor claims and the creation of subclasses within this category. The case under analysis involves the judicial recovery of the company Concreserv, which established a 90% discount on amounts exceeding 25 minimum wages (R$38,000). This criterion was approved by the General Meeting of Creditors (AGC), but later annulled by the São Paulo Court of Justice (TJSP), on the grounds that it violated the principle of equality.
Divergence in the STJ and Impacts on Jurisprudence
So far, there is disagreement among the STJ justices about the validity of this type of discount. The rapporteur of the case, Justice Antonio Carlos Ferreira, voted to uphold the decision of the TJSP, arguing that all labor creditors have claims of the same nature and, therefore, there would be no justification for different treatment.
On the other hand, Justice João Otávio de Noronha differed, arguing that the creation of subclasses can be legitimate when an objective criterion is adopted, as was the case with the 25 minimum wages. For him, the AGC’s decision must be respected and it is not up to the Judiciary to interfere in the economic content of the recovery plan. The judgment was suspended following a request for a review by Justice Raul Araújo.
Precedents and Trends in Case Law
The 3rd Panel of the STJ has already analyzed a similar case and allowed a discount to be applied to labor claims, as long as the payment was made within one year. If the deadline was extended to three years, payment would have to be made in full. However, the 4th Panel, which is judging the Concreserv case, may consolidate an understanding that will serve as a basis for future decisions on the subject.
In state courts, the creation of subclasses is more common in class III (unsecured), but some judicial recoveries have been applying differentiated treatment in the labor class for claims above 150 minimum wages (R$ 227,000). This practice has been questioned, especially when it involves attorney’s fees and executive salaries, since, after this amount, the claims are considered unsecured.
CPDMA’s Role in the Case
Our law firm, Cesar Peres Dulac Müller Advogados, is representing Concreserv in this trial and defends the validity of creating subclasses, as long as the criteria are objective. According to Cesar Augusto da Silva Peres, a partner at the firm, the prevailing case law already recognizes this possibility:
“We’re looking to the STJ to recognize the prevailing case law that it’s possible to create a subclass as long as the criteria adopted are objective. The objectivity lies in the fact that all workers receive up to 25 minimum wages.”
He points out that if the STJ upholds the TJSP’s decision, Concreserv’s recovery plan may need to be revised, which would impact the company’s continuity and negotiations with creditors:
“The company won’t be able to pay, because the court decision interfered with the plan as a whole. So we may have to call a new meeting to renegotiate.”
The outcome of this judgment will be decisive for the legal certainty of judicial reorganization processes in Brazil, especially in the balance between creditors’ rights and the viability of restructuring companies in financial difficulties.
To read the full article published by Valor Econômico, click here.