Bradesco blocks assets from the fiscal council of Americanas – 03/06/2023 – Market

The 22nd Civil Court of the Court of Justice of the State of São Paulo (TJ-SP) granted Bradesco the blocking of the assets of Americanas’ fiscal councilors, as guarantee for the debt that the retailer has with the bank. As a result, Carlos Alberto de Souza, Pedro Carvalho de Mello, Peter Edward Cortes Marsden Wilson, Ricardo Scalzo and Vicente Antonio de Castro Ferreira, current fiscal advisors of Americanas, are prevented from moving their assets.

When contacted, Americanas declined to comment on the case.

In the last reference form sent by the company to the CVM (Securities and Exchange Commission), referring to the year 2022, the name of Peter Edward Cortes Marsden Wilson does not appear as a member of the fiscal council.

According to a company document, the supervisory board has, among other attributions, the role of “supervising, by any of its members, the acts of managers, and verifying compliance with their legal and statutory duties”, in addition to “reporting, for any of its members, the management bodies and, if these do not take the necessary steps to protect the Company’s interests, the General Meeting, the errors, fraud or crimes they discover, and suggest useful measures to the Company.”

The decision, signed by judge Mario Chiuvite Júnior, is yet another chapter in the arm wrestling of the country’s largest banks with the retailer, which entered into judicial recovery on January 19 with declared debts of R$ 43 billion.

Americanas’ biggest debt is in the hands of private banks (R$19.5 billion), with Bradesco the main creditor (R$5.1 billion). The list continues with Santander (R$ 3.6 billion), BTG (R$ 3.5 billion), Itaú Unibanco (R$ 2.7 billion) and Safra (R$ 2.5 billion). Public banks Banco do Brasil (R$ 1.6 billion) and Caixa (R$ 500 million) are also part of the list of creditors.

The objective of financial institutions is to reach the equity of Americanas’ main shareholders – the trio of billionaires Jorge Paulo Lemann, Marcel Telles and Carlos Alberto Sicupira, who, until the end of 2021, were the retailer’s controllers. The creditors defend the thesis of disregarding the legal entity, so that the administrators and the trio of billionaires are held responsible for the R$ 20 billion accounting deficit, accumulated over the last few years in the balance sheets of Americanas.

Bradesco is represented by Warde Advogados, while Americanas is represented by Basilio Advogados, Salomão Kaiuca Abrahão Raposo Cotta Advogados, Zanin Martins Advogados and Brito Chaves Advogados Associados.

‘Fame as a good payer’ with ‘excellent balance sheet’

In the sentence, the magistrate says that the bank granted loans without guarantees, relying on “Americanas’ reputation as a good payer” and on its “excellent balance sheet”.

“However, the plaintiff (…) explained that there are indications of fraud in the operation concerning the proposed judicial recovery of Lojas Americanas, which justifies, in his understanding, the personal responsibility of managers, inspectors, directors, controlling shareholders and auditors for debts of the Company, which entails the need to preserve and safeguard its rights, by protesting against the alienation of the defendants’ assets”, says the judgment.

The judge draws attention to article 300 of the Code of Civil Procedure, which states that “urgent relief will be granted when there are elements that show the likelihood of the right and the danger of damage or risk to the useful result of the process”. According to him, if the injunction was not granted, there would be ‘deleterious effects of the so-called “enemy-time”‘, since a significant amount –R$5.1 billion– ran the risk of not being paid.

“(…) Taking effect the intended protest against the disposal of assets of the defendants of this fact, in the sense that such defendants, therefore, do not dispose of their assets and/or practice any act of asset emptying and/or fraud that may frustrate the satisfaction of the alleged credit”, states the sentence.

Last week, Americanas filed a request for an injunction to be granted to the STJ (Superior Court of Justice) in an attempt to concentrate in the Justice of Rio all the processes that run against the company, mainly those that are in São Paulo.

The arena where the legal dispute between banks and Americanas unfolds is fundamental to the conclusion of the case: the retailer’s influence is in Rio, its headquarters, while that of financial institutions is in São Paulo.

Fernanda Brigatti, from São Paulo, collaborated