Takeaway: The 3rd Panel of the Brazil’s Superior Court of Justice (STJ) ruled that only fund unitholders representing at least 5% of the fund’s unit have standing to request disclosure of documents from investment funds.

The case originated from a request for early production of evidence (PAP) filed by a shareholder of a company belonging to the same economic group as the investment fund, who sought to obtain from the fund’s manager the disclosure of documents related to the fund’s activities. The shareholder alleged signs of fraud and asserted an interest in monitoring the fund’s operations; however, it was neither a unitholder of the fund nor could demonstrate any direct legal relationship with it.

The action for early production of evidence (“PAP”) has gained relevance as a strategic tool for obtaining information and assessing risks before litigation begins. It allows a party to request documents or other evidence when this may (i) ensure the preservation of proof, (ii) facilitate a settlement or another suitable form of dispute resolution, or (iii) guide the decision on whether to file a lawsuit. In practice, the PAP can serve as a preparatory and mapping stage, enabling companies and investors to evaluate the consistency of claims, measure potential exposure, and negotiate with greater confidence. It is particularly useful in corporate and shareholder disputes and in transactions involving investment funds, where access to information is often decisive for exercising the right of oversight.. With its streamlined procedure, lower court costs, and limited exposure to adverse fee awards, the PAP can be an effective means to anticipate evidence and strengthen conflict-management strategies.

On October 14, 2024, the 3rd Panel of the STJ upheld the São Paulo Court of Appeals (TJSP) ruling and applied by analogy Article 105 of the Brazilian Corporations Law (Law No. 6,404/1976), which provides that only shareholders holding at least 5% of the company’s capital stock may request inspection of books and documents to investigate potential irregularities.

The Court held that this standard also applies to private equity investment funds (FIPs), whose assets are held jointly by the unitholders. Thus, for an investor to have standing to request the production of documents, they must demonstrate ownership of at least 5% of the fund’s units.

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The MAC Advogados team specializes in corporate litigation and closely monitors STJ decisions on investment fund governance, assisting clients not only in dispute prevention and regulatory compliance but also in developing strategies to pursue or defend claims in pre-trial evidence proceedings and complex corporate disputes.

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Authors: Mateus Carreteiro, Igor Castro and Aline Borges