Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos

Introduction
On April 9th, the Second Panel of the Superior Court of Justice (STJ) unanimously ruled a case law regarding Special Appeals 2.090.060, 2.090.066 and 2.100.114, which were heard by Justice Humberto Martins, for judgment by the repetitive rite.

The controversial issue, registered as Theme 1,250 in the STJ database, analyzed “whether an award of attorney’s fees is due in the event of a claim being upheld in judicial reorganization and bankruptcy proceedings”.

The panel decided to stay the processing of all individual or collective cases dealing with the same legal issue, in which special appeals or interlocutory appeals have been filed.

Background
The Superior Court of Justice internal regulation, in its section 256-I, in addition to sections 1,036 et seq. of the Brazilian Civil Procedure Code, regulate trial by sampling, selecting special appeals that have identical controversies. By assigning a case, i.e. submitting it for judgment under the repetitive rite, the Minister rules the demands that are repeated in Brazilian lower courts.

Minister Judge Humberto Martins pointed out that the repetitive nature of the matter was found through a search of the STJ’s case law database, with the Precedents and Collective Actions Management Commission (Cogepac) retrieving 12 court rulings and 299 monocratic decisions on the subject.

For the rapporteur, this demonstrates the scope of the matter and the need to settle a standard interpretation of the legislation on the subject. The ruling of the case law “makes it possible to deliver equal, safer and faster judicial service, and also prevents new appeals from crowding the STJ, helping to reduce the overload of cases,” he said.

Case Law
The Special Appeal was filed against the decision rendered by the Civil Justice Court of São Paulo that dismissed the request of arbitration of legal fees due to an objection to claim raised from the bankruptcy case.

The Appellant claimed violation of section 85, §2, I to IV, of the Brazilian Civil Procedure Code arguing that once the objection to claim was upheld, the legal fees should be as well.

Meanwhile, since the case involves a party that is bankrupt and there is a blank on the legislation concerning such matter, the subject was submitted to a repetitive trial.

The company in bankrupt estate rebutted with the STJ precedent no. 7 and requested the dismissal of the Special Appeal.

Considering the existence of similar cases, the decision of the Special Appeal dismissed the arbitration of legal fees in objections or allowances to claim, not only in bankruptcy estates, but also for judicial reorganization cases based on the lack of litigation, independently of having the objection to claim or allowance granted.

Comment
The vote represents an important milestone in discussing the fees that the losing party in a legal dispute must pay to the attorney representing the prevailing party in insolvency and reestructuring cases, settling precedent to cases with the same subject matter.

The possibility of applying the same legal understanding to several cases saves time and creates legal certainty. On the STJ’s website, it is possible to access all the issues affected, as well as the scope of the decisions to stay the case and the legal theses established in the judgments, among other information.

Published in Lexology.