The effects of the decision recognizing the existence of an economic group and ordering the reverse piercing of the corporate veil last until the termination of the enforcement proceeding, also applying within the scope of the objections (embargos) filed against that enforcement.
In this way, the company affected by the reverse piercing of the corporate veil may be held liable for the loss-of-suit attorney’s fees owed by its former shareholder even after the corporate relationship between them has been severed.
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The conclusion is from the Third Panel of the Superior Court of Justice (STJ) in analyzing an appeal by Gafisa against a decision that kept it liable for the payment of loss-of-suit attorney’s fees owed by a former minority shareholder, Cimob Companhia Imobiliária.
In the special appeal, Gafisa argued that it could not be held liable for the payment of the fees owed by Cimob, especially because the objections to the enforcement from which the obligation arises were filed only by the latter, after the corporate relationship between the two had already been severed. For Gafisa, the event giving rise to the debt arose after the end of the corporate relationship.
A single debtor
According to the rapporteur of the special appeal, Justice Nancy Andrighi, the change in the corporate situation in the case analyzed is not sufficient to exclude Gafisa’s liability for the former shareholder’s debt.
“Once the economic unity between the interested party and the appellant was established, capable of including the latter on the passive pole of the enforcement brought against the former, both come to be treated as a single legal-entity debtor, until the delivery to the creditor of the performance embodied in the title under enforcement”, stated the magistrate.
The rapporteur explained that the fact that Gafisa did not formally participate in the objections to the enforcement filed by Cimob does not exclude its patrimonial liability, as a member of the same economic group.
Related proceedings
Nancy Andrighi emphasized that the conclusion regarding the reverse piercing of the corporate veil arose from the analysis of evidence on the operational and patrimonial emptying of Cimob, making it unfeasible to review this point within the scope of the special appeal.
The Justice stated that objections to enforcement are classified in legal doctrine as an incidental cognition action, which gives rise to an autonomous proceeding, although related to the enforcement proceeding.
“Thus, although these are autonomous actions – the enforcement of an extrajudicial title and the objections to enforcement –, they are not absolutely independent”, explained the rapporteur, emphasizing that the demands intertwine because the objections, despite taking the form of a cognition action, defend the debtor against the creditor, and, after being adjudicated, “the enforcement proceeds within the exact limits of what was decided therein”.
Reverse piercing of the corporate veil
According to the rapporteur, it is possible to conclude that the effects of the decision recognizing the economic group and ordering the reverse piercing of the corporate veil last until the termination of the enforcement proceeding – which has not yet occurred in the case analyzed, justifying keeping Gafisa in the demand.
The appeal was partially granted only to determine that default interest applies from the summons for payment in the judgment-enforcement phase, and that this interest be calculated based on the Selic rate. Previously, the accrual of interest had been determined from the res judicata of the judgment.
Source: STJ
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