Finocchio & Ustra Sociedade de Advogados > Campinas, Brazil > Firm Profile

Finocchio & Ustra Sociedade de Advogados > Firm Profile

Finocchio & Ustra Sociedade de Advogados started with the dream to fill a gap in the State of São Paulo’s market and build a full-service office that could compete with the most admired offices in Brazil.

Focused on developing effective and reliable legal solutions, highly qualified professionals, and working closely with clients, we gained our market share and currently have in our client portfolio national and international companies of all sizes, and from all business sectors.

We have made investment in corporate governance and in our management model; such as our participation in the Partners for Excellence Program (PAEX) of Fundação Dom Cabral, which is one of the best business schools in the world.

With our future and the sustainability of the firm in mind, in 2019 we launched our innovation platform: Future in Us (https://www.futurein.us/en/), as we believe in the rapid evolution of law. We also believe that the best way to get to know us is by understanding our ideology. Thus, we make every possible effort and initiative on a daily basis to incorporate this into our culture.

Our vision
To be a benchmark firm, sustainable and timeless, in an ever-changing corporate environment.

Our mission
To understand and improve our clients’ businesses, delivering results through strategic, innovative, reliable, and effective solutions.

Our purpose
To fulfill our mission in an ethical and synergetic environment, developing people with respect and transparency.

Our values
We believe in and are guided by our values:

• We are committed to excellence and result delivering;
• We act ethically with integrity and transparency;
• We value our clients and work to exceed expectations;
• We value promptness and responsiveness;
• We are assertive through clarity;
• We are passionate about what we do;
• We cherish team spirit, an easy-going, and inspiring work environment;
• Our team is our greatest asset.

Main areas of practice
Banking and finance: the team advises Brazilian and multinational companies, institutional investors and financial institutions concerning all aspects of the banking and stock market activities. We advise our clients on syndicated and structured loans, securitizations and project financing.

Civil litigation: provides advice and represents its clients in the negotiation and pre-litigation phase, in lawsuits and civil arbitration proceedings, presenting the best possible legal solutions for each case, through highly technical, effective, viable and tailored service and performance.

Preventively, it provides legal guidance based on the latest understanding of the courts, aimed at preventing or minimizing the impact of disputes. Lawsuits and arbitration proceedings are conducted in a strategic manner, acting before the Judiciary Branch and Arbitration Courts.

Corporate compliance: relies on multidisciplinary participation of professionals working in the most diverse areas of law such as administrative, regulatory, tax, criminal, corporate, labour, M & A and contract, in order to align specialized technical knowledge with good compliance practices, providing the client with a customized and integrated solution to prevent, detect and avoid violations of corporate regulations and laws .

Contract law: provides assistance to Brazilian and foreign companies through the preparation, review and negotiation of preliminary agreements, as well as in the various types of contracts, typical and atypical, provided for in Brazilian and international law.

Corporate/M&A: was consolidated as a benchmark in the assistance for shareholding operations, also by participating in several operations of national relevance.

The firm has experience in the most diverse matters of corporate law and business transactions. It is known for presenting innovative and complete individualized solutions for planning, negotiating and implementing complex M&A transactions, corporate reorganization and strategic planning involving all-sized domestic as well as international companies with agility, excellence, straightforwardness and transparency.

Corporate criminal law has been consolidated by excellence in its dynamic and contemporary performance related to the elaboration of its strategies in cases of high complexity and national repercussion. The performance of the highly specialized team with solid experience, added by the full service structure provides the client with customized and comprehensive legal solutions. The agility combined with personal servicing in emergency and fragile situations such as searches and seizures and prisons are also trademarks of the corporate criminal law team that provide assurance and comfort to the client in these sensitive phases.

Customs and international trade consultancy: offers to clients counseling in tax and customs matters with high performance, agility, compliance and reduction of operating costs. It has the assumptions of (i) ensuring compliance and (ii) increasing the efficiency of our clients’ Foreign Trade operations.

Environmental: advises clients with a focus on understanding the solution regarding the interpretation of the complex and sparse environmental legislation, but also in complying with the requirements of the environmental control agencies, aiming at the company’s good standing and seeking to assist it in the adoption of the best strategy oriented to the client’s business, with the lowest risk of accountability.

In the area of litigation, the office is prominent for the strategic analysis of our clients’ demands, whether they are in an administrative or judicial phase, and for a vision that is not limited to the legal perspective.

Family and succession planning: provides assistance to its clients in drafting public deeds, out-of-court settlements and consensual actions.

It provides guidance on the property regime, preparing prenuptial agreements and common-law marriage deeds, as well as on property division in divorces, common-law marriage dissolutions, and inventories.

Succession planning is customized to meet the expectations and specific needs of each client, with the preparation of wills and corporate structuring, in conjunction with the corporate area.

Intellectual property: provides legal assistance for the protection of trademarks, patents, industrial designs, scientific, literary, artistic works, computer programs etc in Brazil and abroad.

The team works with all administrative or litigation procedures and also in the drafting of contracts related to intellectual property rights, such as licensing, assignment, distribution, franchising and technology transfer contracts.

It offers intellectual property portfolio strategic management services to assist clients in the protection of intangible assets. It has a strong performance in the area of technological innovation.

Labour: was consolidated as a benchmark in legal advisory assistance and strategic conducting of judicial and administrative proceedings, including accidental regressive claims, and it also has strong participation in collective bargaining and legal audits.

The team advises domestic and foreign companies in all aspects involving human resources, with emphasis on the analysis of HR routines, payroll and occupational medicine and safety; correction of vulnerable procedures and guidance of safe methods that minimize the risk of contingencies in the labor sector. It also works in shareholding operations for the assessment of possible labor liabilities.

Real estate: acts in the evaluation of the risks involved in the real estate business concerning the analysis of eventual environmental liabilities and compliance with the requirements established by the New Forestry Code, as well as in the preparation of the most diverse agreements.

Regulatory law: the advisory sector develops important work to follow up and support the entire license obtaining process with the federal, state and municipal management bodies, as well as dealing with compliance issues. In the litigation sector, it operates with the definition and structuring of these in administrative proceedings and tax infraction notices carried through by the most diverse instrumentalities of the Direct and Indirect Public Administration.

Restructuring and insolvency: has consolidated in working with companies undergoing economic and financial crisis in cases of national relevance. It assists clients in corporate restructuring processes and renegotiation of large liabilities through the planning, preparation and conduct of court assisted and extrajudicial reorganization processes, as well as through disputes resolution (judicial litigation) of financial origin.

Tax consulting: works together with other areas of the firm for the seamless search to understand the client’s business with the goal of bringing customized and unique alternatives for the process of decision making by the companies’ officers.

The tax consulting team understands that only a strategic perspective allows an adequate understanding of the core and routine fiscal issues experienced by the companies, and that is precisely what it has been doing for clients in a wide range of business sectors.

Tax litigation: is prominent for its comprehensive servicing of clients’ needs, working with professionals of solid academic backgrounds and broad expertise.

The area is familiar with taxes in practice and capable not only of conducting the administrative and judicial proceedings, but also to assist clients even before they constitute the tax credit, ie, in the inspection procedures, thus avoiding the generation of liabilities or increasing the chances of success. Being familiar with clients’ businesses and carrying out the strategic conduct of their actual or potential litigations is of essence to accomplish effective results in the litigation sphere.

Tax planning: is essential to corporate strategy and is currently a key financial tool, in addition to being an ally of compliance and corporate governance.

The team works alongside corporate and environment teams and has the experience and knowledge necessary to deliver customized tax planning and international taxation projects to clients. The multidisciplinary approach involving finance, accounting and the participation of other areas of the office guarantees fundamental solutions. In addition to creating tax efficiency, the work developed by the team contributes to the management of clients’ businesses.

Focus On

Public lighting PPP contracts in Brazil: an overview

Municipal responsibility

Since 2014, all the public lighting assets have been transferred to municipal authorities due to Resolution nº 414/2010 of the Electric Energy National Agency (ANEEL). Before this, the companies responsible for the electric energy distribution managed those assets.

In this sense, Brazilian cities became the sole ones responsible for providing all the utilities regarding public lighting services, including its expansion, modernization, control, operation, maintenance, and management. Those activities may demand great investments, compromising the fulfillment of other equal relevant activities under municipal jurisdiction.

Why PPP?

Public lighting services – if well provided – have positive externalities (private and social). It helps and supports public security, real estate appreciation, public health, local business development, etc.

However, public lighting is a kind of service that does not allow municipalities to collect fees or retribution from citizens. Public lighting lacks the necessary “individual utility” for that purpose – it is a “public good,” a well-known market failure.

Those services are mainly financed by the Public Lighting Contribution (COSIP), a tax collected by the municipalities based (in most cases, but not in all of them) on the quantity of electric energy consumed by each taxpayer. The amount collected through COSIP has been insufficient to finance public lighting services appropriately.

Given that, while the service has been sub-provided, municipalities could not simply transfer it to private companies by ordinary concession contracts (Law nº 8.987/1995).

The alternative, thus, is a public-private partnership (PPP) on an administrative concession basis (in which there is no direct payment or contribution by the service users). Under this model, except for alternative projects that the private operator can eventually run, the entire project fund is derived from the contributions made by the public partner (Article 2º, §2º, Law nº 11.079/2004).

Bidding process

Before Law nº 14.133/2021, public lighting PPP tender offers could only be made through the “Competitive Modality.” After that, they may also happen through the “Competitive Dialogue Modality.” However, there is no evidence of the use of this later modality in public lighting PPP contracts.

The process in the competitive modality is mainly divided into two phases. In one of them, formal documents of the competitors are examined, such as corporate documents, financial registers, and certificates that prove previous experience in similar projects. In the other one, the bidding commission judges the economic proposals. Those phases can be reversed according to the bidding notice.

Although the law provides other bid criteria, municipalities usually select the proposal that provides the lowest value contribution.

Public contribution

Public contribution under public lighting PPP contracts essentially derives from financial resources collected by the municipalities based on COSIP.

It does not mean that the entire COSIP will be transferred to the private partner. Traditionally, the bidding process winner offers substantial discounts on the initial public contribution. By the way, this is one among many other reasons that make PPP contracts in public lighting services so attractive to municipalities.

Moreover, the public contribution can be conditioned to specific goals that have to be achieved by the private partner during the contract performance (PPP contracts tend to establish goals regarding the expansion of the public lighting net, assets modernization, service availability, etc.)

Main contractual responsibilities (of the private partner)

The private partner’s main responsibilities are to operate the public lighting system, assure its maintenance, keep its availability according to the levels outlined in the contract, expand the public lighting net toward uncovered areas, and modernize the public lighting assets (rendering relevant efficiency to municipalities regarding energy cost).

 

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Luis Felipe Dalmedico Silveira
Contracts Partner, Finocchio & Ustra
E: felipe.silveira@fius.com.br

Workplace Harassment: A Legal and Ethical Challenge in Corporate Environments.

In the contemporary business landscape, the issue of workplace harassment is a topic of growing importance and concern. Workplace harassment not only affects the psychological well-being of employees but can also have serious legal implications for employers and employees, in addition to potential damage to the reputation and image of companies in society and within the Judiciary itself.

The workplace, whether virtual or physical, is where a significant part of people’s lives unfolds, and therefore, it should be a space where all individuals feel respected, valued, and safe.

However, in recent years, workplace harassment has emerged as a significant challenge, both from a legal and ethical standpoint, especially after the International Labour Organization (ILO) published Convention No. 190 (the first international treaty to recognize the right of all individuals to a world of work free from violence and harassment) and the Brazilian Government enacted Law 14,457/22, which established the Emprega + Mulheres Program and imposed multiple obligations regarding the prevention of all forms of violence in the workplace, including Workplace Harassment.

ILO Convention 190 has not yet been ratified by the Brazilian National Congress, meaning it is not yet in force in Brazil, but the Federal Government submitted its text for approval on March 9^th, 2023.

Furthermore, the Judiciary has also been increasing its concern regarding the issue, and the National Council of Justice (CNJ) approved Resolution No. 492/23 in March, which requires the adoption of Gender Perspectives in the judgments by the Judiciary’s bodies, following a protocol approved by the Working Group established by CNJ Ordinance No. 27/2021, specifically addressing how Labor Justice should deal with the issue of workplace harassment and sexual harassment in its decisions.

Considering this entire scenario, the Brazilian Superior Labor Court, based on the guidelines of the aforementioned Resolution, has been convicting companies in recent decisions to pay substantial moral damages compensation due to the practice of workplace harassment, even using some concepts presented and updated by ILO Convention 190.

The Superior Labor Court states in its decisions that it is the company’s duty to provide a safe environment and prioritize the mental, physical, and emotional well-being of its employees, which is often not the case.

Furthermore, recurrent convictions for workplace harassment can reinforce the occurrence of this practice in the corporate context, which also implies serious difficulties for companies in labor lawsuits.

Furthermore, in line with the ESG (Environmental, Social, and Governance) agenda, this is also a concern of the United Nations (UN), which deeply incorporates the topic into corporate discussions through the 2030 Agenda, with specific goals of achieving gender equality, including in the workplace, promoting sustained, inclusive, and sustainable economic growth, full and productive employment, and decent work for all, as well as fostering peaceful and inclusive societies for sustainable development, ensuring access to justice for all, and building effective, accountable, and inclusive institutions at all levels (Goals 5, 8, and 16 of the 2030 Agenda).

However, society is undergoing a true and rapid transformation, with structural inequalities and cultural clashes related to ethnic, gender, age, religious, and other issues that, without a collaborative, ethical, inclusive, harmonious, and respectful work environment, can lead to workplace harassment.

Accordingly, companies face a tremendous challenge in terms of disseminating the topic within their structures and combating it vigorously. On the other hand, there is also a sea of opportunities to promote a collaborative and mutually respectful work environment, with the possibility of making a strong contribution to achieving a more humane, fair, supportive, and fraternal society.

 

Author:

Giovanni Anderlini Rodrigues da Cunha

Senior lawyer and leader of the advisory labor team at Finocchio & Ustra Sociedade de Advogados.

 

 

 

Press Releases

new M&A transaction

17th October 2023 The corporate department of Finocchio & Ustra Sociedade de Advogados advised Enso, a reference in the wealth management,

A new M&A transaction

25th September 2023 The corporate and M&A department of Finocchio & Ustra Sociedade de Advogados advised Kaefer Group,

a new M&A transaction

17th August 2023 The corporate department of Finocchio & Ustra Sociedade de Advogados advised ADTsys, a reference in public cloud and data services, in the M&A transaction with Claranet, multinational company specializing in cloud and cybersecurity.

Finocchio & Ustra Sociedade de Advogados: M&A Transaction

5th June 2023 The corporate, mergers and acquisitions team of Finocchio & Ustra Sociedade de Advogados advised the quotaholders of Monitora Soluções Tecnológicas Ltda., a company in the technology and software development sector, in the transaction of the sale of 100% of its equity interest to Marlabs Innovation Tecnologia Brasil Ltda., a company that operates in the same market in Canada, Germany, Brazil, India, US, and UK.

New M&A Transaction

2nd June 2023 The corporate, mergers and acquisitions team of Finocchio & Ustra Sociedade de Advogados advised the quotaholders of Monitora Soluções Tecnológicas Ltda., a company in the technology and software development sector, in the transaction of the sale of 100% of its equity interest to Marlabs Innovation Tecnologia Brasil Ltda., a company that operates in the same market in Canada, Germany, Brazil, India, US, and UK. The closing of the transaction took place in May, 2023 and the acquisition is in line with Marlabs’s strategy to expand its operation in Brazil. The Transaction was led by Felipe Cervone and Andrea Bittar, corporate and mergers and acquisitions team’s partner, with the participation of the lawyers Rachel Cerqueira Salvador Marques, Patrícia Bruzzi Carrion Paraguay and Tainara Morata Sanzovo, all from Finocchio e Ustra Sociedade de Advogados.

Finocchio & Ustra Sociedade de Advogados is delighted to announce the addition of two new partners to its esteemed team

15th May 2023 The firm, one of Brazil's leading law firms with a reputation for excellence, welcomes Marco Aurélio Orosz and Andrea Ometto Bittar Tincani as its newest partners, both of whom bring a wealth of experience and expertise to their roles.

Finocchio & Ustra opens office in São José dos Campos

27th April 2023 The customer-centric law firm, making waves since its foundation, has just opened a new office in São José dos Campos. According to partner José Luis Finocchio Jr, this dynamic team of legal experts is dedicated to providing their clients with top-notch, reliable solutions and experiences.

M&A Transaction

11th April 2023 The corporate and mergers and acquisitions department of Finocchio & Ustra Advogados advised Bosch, a consolidated company in the automotive sector, to acquire 20% of Peça.Ai, a platform for the sale and purchase of automotive parts for the B2B market.

Press Release

14th February 2023 “The corporate, mergers and acquisitions team of Finocchio & Ustra Advogados advised the quotaholders of  Iplasa Indústria e Comércio de Produtos Domissanitários Ltda., a company that markets and sales household cleaning products, in the transaction of sale of 100% of its equity interest to Indústrias Reunidas Raymundo da Fonte S.A., a company that operates in the same market, with dominant present in the North and Northeast of Brazil.

LyondllBasell Group M&A Transaction

8th November 2022 LyondllBasell Group, one of the biggest chemical industries group in the word, acquired, through its Brazilian subsidiary Basell Poliolefinas Ltda., Colortech da Amazônia Ltda., a manufacturer of color concentrates, additive masterbatches and mineral-filled compounds located in Manaus, Brazil. The share purchase agreement was signed on June 6th, 2022, and the closing of the transaction was due on September 30^th, 2022. Finocchio & Ustra Sociedade de Advogados (Brazilian Law Firm) is proud to represent LyondllBasell Group in the acquisition of Colortech da Amazônia Ltda.

Legal Developments

Brazilian PAC-3: Public Procurements and Private Sector Partnerships

22nd August 2023 In this month of August, the Brazilian government announced the reestablishment of the Growth Acceleration Plan (PAC-3), encompassing a series of initiatives aimed at fostering investment in various sectors of the Brazilian economy over the coming years.

Court-supervised Reorganization and Bankruptcy

2nd September 2022 The Law on court-supervised reorganization and Bankruptcy (Law 11,101/2005) was created in 2005 and underwent some changes in 2020. The sanction of Law 14,112 brought some news to creditors and debtors on matters regarding: mediation, stay of proceedings, provisional asset protection, reorganization plan presented by creditors, financing for debtors undergoing reorganization, fresh start, individual rural producer, reorganization.

Considerations about Brazil’s Accession to the OECD

9th August 2022 In the last few decades, the Organization for Economic Co-operation and Development (OECD) has gained greater prominence in the international economic scenario, especially in the Brazilian panorama, as there has been a considerable rapprochement between the Country and the Organization. Although Brazil has been engaged with the OECD since 1994, it became a key partner only in 2007. That was when the Organization expanded its list of partners to achieve greater integration and intercontinental cooperation, strengthening its ties with "emerging" countries such as India, China, South Africa, and Brazil.

Brazil: are we more mature about corporate compliance best practices?

4th May 2022 To optimize your time, the answer to the above question will be given in the first sentence of this article: it seems so. At least this is the feeling we get when we read news about situations that, in the recent past, would not be on the agenda.

Good news for the Brazilian footballing industry

11th April 2022 In August 2021, during the Covid-19 pandemic, the Brazilian President passed a law long-awaited by the football teams throughout the country - Law No.14,193/2021, known as the “Lei da Sociedade Anônima de Futebol (SAF)”, or the Football Corporation Law. This law finally allowed football teams to be incorporated as a corporation (SAF – football corporation), bestowed upon specific legal regulations such as corporate governance and specific taxation rules, but most importantly, it facilitated their ability to raise resources to finance their everyday activities. As a corporation, the SAF is also governed, in a subsidiary manner, by the provisions set forth by Law No. 6,404/1976 (Corporation Law) and Law No. 9,615/1998 (Lei Pelé – lays down general rules on the sport). This corporate structure is common in large clubs outside Brazil, for instance, Bayern Munich, which has major sporting companies as shareholders such as Adidas and Allianz.

Brazilian new railway legislation (and why it may be a great opportunity for passenger rail transport investments)

28th February 2022 At the end of 2021, the new Brazilian railway law (Law nº 14.273/2021) was finally approved, it promises to facilitate and optimize the expansion of railway transport and, as a consequence, to expand the already existing options to the outflow of goods throughout the country. With the consolidation of the brand new authorization regime – which had been, in a certain way, addressed in the former Provisory Measure nº 1.065/2021 (ProTrilhos) - it is expected that companies and investors become more confident about the economic exploitation of new railways.

Confusion and changes to the Brazilian State Goods and Services Tax (ICMS) in early 2022: how a ruling by the Supreme Court created a new and unconstitutional law in Brazil

7th February 2022 As many readers may know, taxes are not straightforward anywhere in the world but this is particularly true in Brazil and even more so when one looks at Brazil´s indirect taxation on sales and goods, the “Imposto sobre Operações relativas à Circulação de Mercadorias e sobre Prestações de Serviços de Transporte Interestadual e Intermunicipal e de Comunicação” or simply ICMS.

Perspectives for teleworking in Brazil

3rd December 2021 It was already notorious that the feasibility of implementing remote working had been discussed for a long time. While many companies already saw this condition as an advantage, others were still quite resistant to the idea.

The main aspects of the Brazilian income tax reform proposal

15th November 2021 Updates on Brazil’s potential income tax reform are brought by Finocchio and Ustra’s Tax Team.