Estudo de caso sobre o incidente de desconsideração da personalidade jurídica na recuperação judicial da MMX Sudeste Mineração S/A

Resumo

While “piercing the corporate veil” or “piercing” is a common and well-accepted remedy in liquidation proceedings, it remains rare and controversial in the context of judicial recovery. The lack of regulation and the probable incompatibility between the two legal frameworks result in the proposal of liquidation conversion as a solution to tackle fraud within the reorganization process. The insolvency of the Eike Baptista-owned MMX Sudeste Mineração S.A. was a rare instance where piercing was used in connection with business reorganization. Lessons can be learned from this groundbreaking case. With that in mind, the primary objectives of this case study are: (i) to conduct a critical analysis of the application of piercing in the MMX judicial recovery; (ii) to address the possibility of applying piercing in judicial recovery and how the two regimes can be viewed as compatible; and (iii) to guide judges, lawyers, bankruptcy and case trustees on how to deal with fraud in the judicial recovery process. Initially, the research demonstrates that Eike Baptista's personality exhibits the characteristics of a fraudulent profile, as evidenced by the businessman’s conduct in specific situations, his correlations with the motivators, and the classification of corporate fraud. The fraud he committed in relation to MMX was manifested by the way he fleeced the company’s creditors - for his own personal benefit and to the detriment of others - through the misuse of business reorganization and “pump and dump” practices. The ex parte with a “deferred right to be heard” order for a confidential investigation into Baptista’s conduct, as requested by the bankruptcy trustee, was the best feature of the use of piercing in the MMX case. However, the effectiveness of piercing in the MMX case was undermined by the failure to remove Baptista and MMX’s other directors from the management of the company. It is precisely the removal of the equity holder and its appointed executives, as provided for in Article 64 of the Brazilian Bankruptcy Law, that can make piercing successful in the judicial recovery process and promote compatibility between the two. As a contribution, this research provides an analysis of measures alternative to piercing and discusses asset tracing, a relevant topic in cases of fraud involving asset diversion and concealment.

Ficha do documento

Tipo

Dissertação

Ano

2023

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/34624

Palavras-chave

Recuperação judicialFalênciaIncidente de desconsideração da personalidade jurídicaMMXEike BaptistaIncidente de investigaçãoSigilo ex parteContraditório diferidoFraudeRastreamento de ativosAdministrador judicialGestor judicialJudicial recoveryBusiness reorganizationLiquidationBankruptcyPiercing the corporate veilInvestigation incidentEx parte secrecyDeferred right to be heardFraudAsset tracingBankruptcy trusteeBankruptcy case trusteeDireitoSociedades comerciais - RecuperaçãoDesconsideração da personalidade jurídicaBrasil. [Lei de falências (2005)]