By Vitor Antony Ferrari, Ivan Kubala and Nicoly Crepaldi Minchuerri*

As widely reported by both the specialized press and the mass media, Grupo Petrópolis, a beer group responsible for producing labels such as “Itaipava”, “Petra” and “Lokal”, filed for bankruptcy protection at the Business Court of the city of Rio de Janeiro at the end of March of this year. According to the applicant itself, the reason was a liquidity crisis due to the drastic decrease in sales of its products in the months preceding the request.

The request was quickly granted, so that from this decision, the actions against the group were suspended. Subsequently, dates were set for the General Meeting of Creditors, the purpose of which was to vote on the approval or rejection of the Judicial Recovery Plan presented by the Companies Under Reorganization. 

Installed only in the second Assembly, at the end of August this year, the creditors chose to suspend the vote so that the Companies Under Reorganization could amend the plan, whose approval took place a few days later, on September 11, during a new General Meeting of Creditors. 

However, despite the fact that the judicial recovery is developing according to the procedure provided for in the legislation, there is a very important fact that could hinder the course of the process: the incorporation of the company International Plastics Industria & Comercio Ltda (IPL) days before the request for judicial recovery. 

As already mentioned, Grupo Petrópolis is an economic group, that is, made up of several companies, among which is IPL. 

It turns out that weeks before the request for judicial recovery, the group opted to incorporate the company, so that its assets and liabilities would be included in the group's main company.

However, there was no express consent from IPL's creditors, who, after being informed of the incorporation, challenged the validity of the act in court, seeking its annulment. They claim that, in addition to not having been informed, they were harmed by the incorporation, as they ceased to be creditors of IPL and became creditors of the Petrópolis Group, which is over-indebted and undergoing judicial recovery, which prevents the collection of the amounts and subjects them to the guidelines of the approved plan. 

According to current legislation, the incorporation act may be annulled by the injured creditor, nullifying any and all effects arising from it. Therefore, IPL would not be included in the list of companies under reorganization, allowing its creditors to collect and execute credits through ordinary means, without the obligation to comply with the judicial reorganization procedure. 

The issue is currently under debate, with the real possibility that the incorporation act will be deemed null and void, which will be a serious problem for the judicial recovery process, as the plan that underpins it took into consideration the liabilities and assets of the incorporated company. 

This is a complex procedure, the judgment of which will be decisive both for the course of the judicial recovery of Grupo Petrópolis, which seeks to validate the act of incorporation; and for IPL's creditors, who, in addition to being harmed by the incorporation without prior notification, see the cancellation of the incorporation as a great chance to receive their credits.

(With the collaboration of Luís Felipe Meira M. Simão)