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Attorney Eduardo Filipe Alves Martins, son of the president of the STJ (Superior Court of Justice), Minister Humberto Martins, started to represent a company in litigation against the Union days before the judgment of an action on indemnities that could reach R$ 8 billion .

This is an old legal dispute between BR Distribuidora and Forte Comércio Importação, Export e Administração Ltda., a fuel dealer network. The parties intend for the Judiciary to define the cause of early termination of contracts and determine the application of billion dollar indemnities.

The case was on the agenda of the Special Court of the STJ last October 6th. On September 23, lawyer Ricardo Alexandre Hidalgo Pace, representative of Forte S/A, requested the sub-establishment of powers to a group of twenty lawyers, including Eduardo Martins.

During the session, Humberto Martins proclaimed the process and gave the floor to the rapporteur, Minister Francisco Falcão. Minister Laurita Vaz interrupted the president. “There is a case with Your Excellency’s impediment in this process”, he warned.

“Here there is an impediment and I didn’t notice that it was mine”, apologized Martins. The vice president, Minister Jorge Mussi, assumed the presidency of the session and remains in charge of the process.

The episode repeats a practice in the STJ known as puppies. That’s when young lawyers, sons of ministers, act like relative-lobbyists. That is, they do not make oral arguments in the judgments but suggest the possibility of influencing the processes. This expedient constrains other ministers.

In the current case, former STF minister Francisco Rezek previously gave oral argument representing Grupo Forte; the former attorney general of the Republic and also former minister of the Supreme Court José Paulo Sepúlveda Pertence acted as lawyer for Alberto Armando Forte and Maria Cristina Dragone Forte. Pace gave oral support by Grupo Forte in the last session.

Attorney Sergio Bermudes represents Petrobras Distribuidora.

According to Pace informed the Blog, Grupo Forte’s interests are sponsored by several law firms: Álvaro Villaça Azevedo, Oswaldo Chad, Marcílio Ramburgo, Guerra Advogados, André Almeida Advogados, Martins Advogados, and the firm of which he is a partner, Bettamio Vivone & Pace Associate Lawyers.

He says that Eduardo Martins’ office was hired for the case, and the partner Carlos Alexandre Paranhos de Macedo was incorporated in the records on May 10, 2018.

“Afterwards, Dr. Eduardo Martins’ office underwent a split with the departure of the partner Dr. Carlos Alexandre. The collection of processes continued with Dr. Eduardo Martins, having been granted replacement on September 23, 2021”, says Pace.

In March of this year, the Martins Paranhos Advocacia office was opened, headquartered in Brasília, having as partners Carlos Alexandre Paranhos de Macedo (administrator) and, with capital, Laís Camila Alves Martins, daughter of the president of the STJ.

In 2016, when the sheet revealed that three former national justice inspectors (Humberto Martins, João Otávio de Noronha and Francisco Falcão) voted in processes in which their children were active, the ministers alleged flaws in the system that should have alerted them.

On the occasion, Humberto Martins said that in 2010 he had communicated to the STJ that his impediment should be included in all processes in which his son Eduardo Filipe Alves Martins acted as a lawyer, an initiative repeated in 2014, including his daughter Laís Camila Alves Martins.

In September 2020, Eduardo Martins was accused, in the Car Wash Operation, to receive around R$ 82 million from Fecomércio in Rio de Janeiro to influence decisions by court ministers.

Controversial restructuring

In October 1998, Grupo Forte and BR Distribuidora signed long-term contracts to enable a debenture issue coordinated by Banco BCN. The purpose of the issue was the financial restructuring of Grupo Forte.

One of the backing of the debentures plan was the rents of seven gas stations, whose lessee was BR Distribuidora, which had to agree with the assignment of credit rights. This operation was approved by the Petrobras board.

The group’s financial recovery would depend on Petrobras’ agreement with the assignment of credits to Forte Trust de Aluguéis. There was no consent. In March 2000, Grupo Forte filed a court order for the early termination of the contracts, with the due application of contractual indemnities.

On May 20, 2009, almost ten years later, the Fifth Chamber of Private Law of the Court of Justice of São Paulo held BR responsible for the early termination of the contracts. He understood that “undoubtedly, the deal did not take place due to the lack of consent of Petrobras with the credit assignment, which was presented to it”.

Petrobras claimed that the project had been shelved for months and that the amount to be contributed (R$22 million at the time) had been raised to R$33 million. According to the records, “concerned with the change in the amounts involved and with the galloping increase in the plaintiffs’ liabilities, it asked Grupo Forte to present alternatives, as the project, structured by BCN, showed evident signs that it was becoming unfeasible”.

Due to the delay in completing the transaction with BCN, Grupo Forte would have requested emergency bridge financing from Banco Alfa. The São Paulo court held that “Petrobras’ involvement in contracts with companies, notoriously in financial difficulties, occurred because it served its commercial interests.”

“There was no liberality, but a series of reciprocal interest contracts that Petrobras broke, frustrating the primary objective of issuing debentures, causing losses to other contractors, individuals and companies of Grupo Forte”, he decided.

“The breach of contract brought, in the indefinite period and after, a serious and distressing psychic shock to the authors [os dirigentes e sócios da revendedora de combustíveis]”.

“The loyalty and good faith of the Distributor must be questioned when alleging, as a factor of contractual rupture, certain credit and liquidity problems, imbalances, however, which were previously known and which, undoubtedly, were the motivators of the business carried out”, voted the rapporteur, Judge Oldemar Azevedo.

When judging an appeal filed by BR Distribuidora, on August 23, 2018, the Fourth Panel of the STJ determined that the case be returned to the TJ-SP, in view of the public interest in the dispute. Among the vices and omissions that the São Paulo court would not have remedied is the incidence of penal clauses that would make the conviction exceed the figure of R$ 8 billion.

The Union requested the referral of the records to the Federal Regional Court of the 3rd Region (SP-SP). He understood that, from the moment of his intervention in the process, [em fevereiro de 2018], the Federal Court became competent to analyze the matter. According to the records, the conviction of BR Distribuidora could affect the national distribution of fuels.

Reported by Diego Garcia, published in sheet in July 2019, revealed that in the preliminary prospectus for the sale of shares of BR Distribuidora, published on the company’s website and sent to CVM, Petrobras highlighted the lawsuit filed by Grupo Forte.

“Considering the terms of the decision handed down by the TJ-SP and the contracts entered into between the parties, the indemnity amounts to be paid by the company (Petrobras) may reach significant amounts. Although the opposing party has estimated the sentence amount at BRL 1.6 billion, having presented a proposal for an agreement in this regard, at the end of 2017, such party sent a letter to the market estimating the sentence at BRL 8 billion”, said Petrobras , in the document.

In a note sent to the report at the time, Grupo Forte said that “BR reported in its balance sheet that the impact of the sentence imposed in the lawsuit in question would be R$ 274 million, an amount that represents about only 3% of the amounts subject to the conviction”.

In an oral argument at the Special Court, lawyer Ricardo Pace said that there was a supervening loss of the Union in the process, when it indirectly controlled BR Distribuidora, then a mixed capital company, via Petrobras [a companhia foi privatizada, hoje é VIBRA].

“The argument of problems in fuel distribution policy has no basis in reality. If that were the case, the Union should have manifested itself in the records at the first instance, which it did not do. The appeal aims to delay the process”, said Pace. He maintains that it would be to attribute to the Federal Attorney General’s Office the power to change the jurisdiction whenever it saw fit.

When judging embargoes of divergence filed by the Union on March 17, 2020, the rapporteur, Minister Francisco Falcão, understood that it is not up to the TJ-SP to manifest itself. At the session last October 6, Falcão voted to refer the case to TRF-3.

Minister Luís Felipe Salomão asked for a view. Ministers Herman Benjamin and Nancy Andrighi anticipated the vote.

OTHER SIDE

Asked by the Blog about his role representing Grupo Forte, lawyer Eduardo Martins declined to comment. He forwarded the matter to the press office.

F7 Comunicações, which serves Martins, sent the following Clarification Note:

“The law firm Martins clarifies that it has been following the process in favor of Grupo Forte since 2018, a period in which former partner Carlos Alexandre Paranhos was appointed to work with the client. With the departure of Paranhos, this year, the office granted the replacement of the action to the partner Eduardo Martins, who was constituted in the process only in September.

The procedure of the Judgment Court, in a correct way, automatically places as impeded the ministers with a degree of kinship with constituted lawyers. Therefore, Minister Humberto Martins promptly accepted the impediment.

The case has been in court for twenty years, with the Martins Advocacia Office being just one of the firms acting in the case. Currently, the action is suspended by request seen with a vote in favor of the Union by the reporting minister.

The Martins Law Firm is regularly involved in the process, as well as the other replaced firms. The former partner, who worked with the client in question, no longer has ties with the bank and she, in turn, did not have information about her new professional paths.”

The advisor of Minister Humberto Martins, who did not comment on the episode, sent the following clarification:

“As established in articles 144 of the CPC and 272 of the Internal Regulation of the STJ, any minister who is impeded in a certain process cannot exercise his functions in this process.

In EREsp 1255625, the presiding minister is impeded. Thus, the conduct of the judgment is being carried out by the vice-president minister”.

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