Amendment to the Brazilian Constitution No. 125/2022 – “PEC da Relevância”
On July 15th, 2022, the Constitutional Amendment No. 125/2022 came into force and included a new requirement for a special appeal to be heard by the Superior Court of Justice. From now on the appellant party must also demonstrate the relevance of the federal law issues discussed in the case for the special appeal to be heard. On the other hand, a federal law issue can only be deemed as irrelevant by the Superior Court of Justice by vote of 2/3 of the responsible panel for the analysis of the special appeal.
However, this Constitutional Amendment pointed out that a special appeal that discusses the following matters will always be deemed as relevant (i) criminal claims; (ii) administrative improbity claims; (iii) disputes that surpasses the amount of 500 Brazilian minimum wages; (iv) claims that may lead to electoral ineligibility; and (v) when the appealed decision contradicts the Superior Court of Justice prevailing jurisprudence.
The Superior Court of Justice rules on the legitimacy of minority shareholders to file a civil liability claim against the controlling shareholders and managers of the company
The Second Section of the Superior Court of Justice, after confirming its position of having jurisdiction to analyze conflicts of competence between Arbitral Tribunals (leading case CC 111.230/DF), granted a decision on the merits of such conflict, which originates from arbitration proceedings initiated by minority shareholders and by the company, all involving the discussion regarding the liability of controlling shareholders, managers and former managers for damages caused to the company.
The Superior Court of Justice ruled that (i) it has jurisdiction to analyze conflicts of competence between Arbitral Tribunals; (ii) the arbitration proceedings initiated by the company must continue; (iii) the minority shareholders could only initiate an arbitration proceedings against the controllers and managers of the company (iii.a) if in the following three months after the approval by the company’s general meeting, the arbitration is not initiated by the company; or (iii.b) if the company’s general meeting rejected the proposal to initiate a claim against the controlling shareholders, managers and former managers and as long as the minority shareholders represents at least 5% of the company’s shares.
(Superior Court of Justice. Conflict of Competence no. 185.702/DF, leading Justice Marco Aurélio Bellizze, 2nd Section, ruled on 06/22/2022)
The Superior Court of Justice defines the deadline rules for the submission of the main claim after the injunction relief is submitted
The Superior Court of Justice ruled that once the injunction relief is granted the 30-day period to present the main claim must be counted in business days and not in calendar days.
This decision rejects the argument that the deadline would have the nature of substantive law and for this reason this period must respect the general rule that procedural deadlines are counted in business days, according to the rule provided by the article 219 of the Brazilian Code of Civil Procedure.
(Superior Court of Justice. Special Appeal no. 1763736/RJ, leading Justice Marco Antonio Carlos Ferreira, 4th Panel, ruled on 06/21/2022)
The Superior Court of Justice grants decision regarding the Franchisor liability for acts performed by the Franchisee
The Superior Court of Justice reversed the decision granted by the Court of Appeals of the State of São Paulo determining that the Franchisor and Franchisee of an educational branch are jointly and severally liable for the indemnity payment, under the argument that the relationship with the student must be analyzed according to the Brazilian Consumer Protection Code, and Franchisor and Franchisee are part of a single provision chain.
However, according to the Superior Court of Justice, the Franchisor could only be held liable for damages resulting from the services that are within the scope of the franchise. Considering that the transport service is outside the scope of the franchise (teaching methodology) and that such service was hired by the Franchisee without the Franchisor consent, the Franchisor could not be jointly liable with its Franchisee.
(Special Court of Justice, Internal Appeal in the Interlocutory Appeal of the Special Appeal no. 1456249/SP, leading Justice Raul Araújo, 4th Panel, ruled on 06/07/2022)
The Superior Court of Justice will reevaluate its position regarding the effects of judicial deposits in foreclosure procedure
The Superior Court of Justice will reevaluate its position on the Topic 677, which discuss the effects of judicial deposits in foreclosure procedures. The current position of the Court is that in the foreclosure procedure “the judicial deposit of the amount (full or partial) of the condemnation extinguishes the debtor’s obligation, within the limits of the amount deposited, but does not release it from the consequences of its obligation [monetary and fees]”.
The new thesis discusses if in the foreclosure procedure the judicial deposit of the amount of the obligation exempts the debtor from interests and monetary correction, considering that the depository financial institution is responsible for interests and monetary correction, regardless of the release of the amount to the creditor.
Therefore, the Court will rule whether the judicial deposit is sufficient to pay off the debt and, consequently, prevent the incidence of interest and monetary correction regarding the deposited amount. The judgment has a score of 6×6 for each thesis and was interrupted by the request of the Minister Nancy Andrighi. The judgment will resume on 08/03/2022.
(Superior Court of Justice, Theme/Topic no. 677, leading Justice Nancy Andrighi, Special Court)