THE THE SHAREHOLDER-CREDITOR’S VOTE ON THE ALTERNATIVE PLAN: AN EMPIRICAL APPROACH

Abstract

This paper aims at analyzing the possibility of the shareholder/partner who is also a creditor of a company undergoing judicial recovery to exercise their voting rights. The analysis is made considering the changes promoted by Law 14,112/2020 to Law 11,101/2005 (“Brazilian Bankruptcy Law” or “LRF”), presuming the residual legitimacy of creditors to present an alternative restructuring proposal. Its general lines are examined to understand the shareholder's interest in the company's recovery process. This study analyzes the legal norms (or lack of norms) for the processing of the alternative judicial reorganization plan presented by creditors and introduces the debates surrounding the exercise of the shareholder/ creditor partner’s right to vote in the creditor's alternative plan held within the scope of the judicial recovery of Samarco Mineração S.A., the first case in which alternative plans were presented after the changes in LRF. Throughout the work, an empirical approach is proposed to understand the relevance of the shareholder vote on the alternative plan considering (i) the analysis of the representativeness of cases in which the presentation of the alternative plan could avoid the bankruptcy of the debtor company and (ii) the criteria held by the jurisprudence of the São Paulo Court of Justice (TJSP) for preventing shareholders from voting, as interpreted in article 43 of the LRF.