The Brazilian Superior Court of Justice (“STJ” or “Court”) rendered an important decision on the Special Appel No. 1.900.843-DF, regarding the liability of shareholders and managers according to the “piercing of the corporate veil” theory.
The court adopted a restrictive interpretation of article 28, paragraph 5, of the Federal Law No. 8.078/90 (“Brazilian Consumer Protection Code”), establishing that the “piercing of the corporate veil” of a business legal entity does not authorize the personal liability (i) of the manager who is not a shareholder, and (ii) of the person who, despite being a shareholder, does not perform managerial acts, regardless of the type of corporate structure adopted by the business legal entity.
The Court analyzed that the Minor Theory (“Teoria Menor”) of piercing of the corporate veil, inaugurated by the Brazilian Consumer Protection Code provisions, and concluded that this legislative option diverges from the original concept of theory, since the latter requires existence of fraud, abuse of rights or confusion of assets, while the former does not require the existence of such elements.
For this reason, STJ has understood that a restrictive analysis of the Brazilian Consumer Protection Code provisions is necessary in order to standardize the application of the theory of piercing of the corporate veil as an exception to the rule of business legal entities’ patrimonial autonomy in Brazilian law, irrespective of its type.
Our team is at your disposal for further clarifications, as well as to assist you with issues related to shareholders liability.
Gustavo Flausino Coelho – gustavo@bastilhocoelho.com.br
Larissa Santos Bastos – larissa@bastilhocoelho.com.br