The Superior Court of Justice (STJ) in Brazil, in the judgment of RESP 1.864.620, established that it is necessary to open the corporate veil piercing incident before foreclosing the assets of a company belonging to the same economic group as the executed company, but that did not participate in the initial action. This understanding emerged after reviewing a case where a company faced foreclosure of over R$ 500,000 due to a debt of another company in the same group, originating from an action initiated by a consumer.
Previously, the Court of Justice of São Paulo (TJSP) had upheld the foreclosure decision based on Article 28, Paragraph 2, of the Consumer Defense Code (CDC), which foresees the subsidiary liability of legal entities that are part of the same group as the main debtor company. Therefore, according to TJSP, if assets of the main company were not found, assets of other companies in the group could be foreclosed.
However, Minister Antonio Carlos Ferreira, the rapporteur of the special appeal, emphasized that the subsidiary civil liability in the CDC does not eliminate the need to follow procedural rules that guarantee rights such as contradictory procedure and broad defense. Among these norms is the obligation to institute the corporate veil piercing incident.
The minister’s argument highlights that the CDC, when mentioning the subsidiary liability of companies from the same economic group, does so in the same section that deals with the piercing of the corporate veil. Thus, the rapporteur pointed out that the legal process requires the initiation of this incident before any foreclosure.
Consequently, the higher court concluded that it is not permissible to simply redirect the execution of a sentence to a company that was not involved in the knowledge phase of the action, without the prior initiation of the corporate veil piercing incident, based on both the CDC and the Civil Procedure Code. This decision aims to ensure the principles of contradictory procedure and broad defense, reaffirming the need to strictly follow procedural norms, even in light of the provisions of the Consumer Defense Code (CDC).