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Compania Embotelladora Del Pacifico SA v. Pepsi Cola Co.

Liquidator's action commenced without consent of creditors is dismissed.

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Judge Owen

COMPANIA EMBOTELLA DEL PACIFICO, S.A. v. PEPSI COLA CO. — Plaintiff Compania Embotelladora Del Pacifico, S.A. (hereafter CEPSA), a Peruvian bottling corporation, in Lima, Peru was owned and operated by members of the Heredia family since its formation in 1952 until November 19, 1999, when it fell on hard times and creditors put it in involuntary liquidation under Peruvian Law. It had a bottling contract with defendant Pepsi Cola Company. In Peru, when a company enters into liquidation, a Liquidator is appointed who completely supplants the owners and operators.1 Essentially the Liquidator, on behalf of the creditors, is to take inventory, establish the extent of the company’s capital, deal with payables and receivables (“credits”), and assume such commitments as are appropriate to wind down and close the business. General Companies Law Article 416. Peru’s Capital Restoring Law, Article 77, in accord with the foregoing provides that the “attributes and authorities of the Liquidator” are essentially to safeguard the interest of insolvent estates, to dispose of its property while further providing that the Liquidator may “provisionally” continue the business “as agreed by the Meeting of Creditors” (emphasis supplied). A Liquidator under said Article 77 is specifically given the power to file criminal complaints with the prosecutor’s office if fraudulent acts of management or fraudulent bankruptcy shall appear “which fact, shall be made known to the meeting creditors.” The Liquidator is not anywhere, however, specifically given the power to file civil actions absent a majority vote of the creditors’ interests at a full Meeting of Creditors at which a quorum is present.2 This requirement is in sensible accord with a liquidation situation, where a Liquidator must consult with the creditors before filing a civil action that may put creditors’ interests at further risk of loss from major litigation expense, or successful counterclaims, or other unexpected drains on an already damaged estate.

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