All questions

Procedure

i Types of action available

In Brazil, as a rule, class actions can be brought to deal with matters relating to the environment, consumer relations, assets and rights carrying artistic, aesthetic, historical, tourism and landscape value, and should centre on the protection of diffuse, collective or homogeneous individual rights.

Article 81, I of the Consumer Protection Code defines diffuse rights as 'indivisible trans-individual rights held by unidentifiable persons linked by factual circumstances'.

Article 81, II of the Consumer Protection Code defines collective rights as 'indivisible trans-individual rights held by a group, category or class of persons linked to each other or to the opposing party through a basic legal relationship'.

The sole paragraph of Article 81, III of the Consumer Protection Code defines homogeneous individual rights as 'those with a common origin'. Legal scholars maintain that homogeneous individual rights are collective only incidentally because, in principle, their protection could be pursued individually by each holder, as happens with the traditional system for protection of subjective rights. However, the approach to collective protection of individual rights was incorporated into Brazilian law to resolve identical conflicts in one single proceeding, thus avoiding multiple individual actions.

According to Article 83 of the Consumer Protection Code, all kinds of actions can be brought for adequate and effective protection of diffuse, collective or homogeneous individual rights, namely prohibitory actions, actions seeking affirmative and negative covenants, indemnification actions, declaratory actions and actions seeking urgent relief, among others. Hence, class actions may result in condemnatory, declaratory, constitutive, self-enforceable and commanding judgments.

For illustrative purposes, class actions may be brought to seek compensation for damage caused to consumers on account of a defective product or to compel a certain polluter to bear the costs of cleaning up illegally polluted soil. There are no objective or specific limits on the scope of class actions and on the particular claims, and the class that potentially benefits is defined on the basis of the claims asserted by the plaintiff in the class action.

ii Commencing proceedings

With regard to the standing to file class actions, unlike US law, Brazilian law opted to expressly indicate which parties have standing to file a class action. Under Article 5 of Law 7,347 of 1985 and Article 82 of the Consumer Protection Code, the parties with standing to bring a class action to defend the rights of citizens in court are: (1) the Public Prosecutor's Office; (2) the Public Defender's Office; (3) the federal government, states, municipalities and the federal district; (4) entities and bodies of the public administration (both direct and indirect administration, even if they have no individual legal identity) when specifically intended to defend diffuse and collective interests and rights; and (5) associations legally organised for at least one year and whose institutional purposes include the defence of diffuse, collective or homogeneous individual rights. Further, the Public Prosecutor's Office must also intervene in class actions in a legal supervisory capacity (when it is not a plaintiff in the class action).

In Brazil, there is generally no requirement for class-representative adequacy of parties with standing to file class actions, and Professor Antonio Gidi notes that the standing to file a class action is concurrent, disjunctive and exclusive. It is concurrent because all parties with legal standing may seek collective relief for citizens in an independent manner. Furthermore, the legal standing is disjunctive, which is different from complex standing, 'as any of the parties with joint standing to sue may file, alone, a class action with no need to form a joinder or else obtain authorisation from the other parties which also have standing to sue'. The standing is also exclusive in that the parties with legal standing are expressly identified in prevailing law.5

Brazilian legislation has not established mandatory binding effects in a class action (the opt-out system). The rule is that a class action being judged to be groundless does not preclude citizens from filing indemnification claims, but if a class action is judged to have admissible grounds, the sentence benefits the victims and their successors, who may proceed with individual enforcement of the sentence.

As for the standing to file class actions, the most relevant matter up for debate in court in 2017 pertained to the standing of associations to file class actions. Earlier rulings of the Superior Court of Justice had signalled that associations and trade unions had standing to act as substitute parties in class actions, regardless of express authorisation from those being substituted and of submission of a nominal list of their members.

This matter was taken to the full bench of the Federal Supreme Court and, acknowledging the leading-case status of this issue, the Court held in Extraordinary Appeal No. 573,232/SC that associations can only defend the interests of their members through legal representation, not as substitute parties in the proceedings. It was thus declared that express authorisation should be obtained for an association to file class actions, whether from an individual or by means of a meeting resolution. Following this finding by the Federal Supreme Court, other Brazilian courts6 sided with this opinion that an association could only bring a class action defending its members by way of representation in the proceedings7 under prior express authorisation provided either through an individual act or through a resolution of a meeting (i.e., by a measure other than a mere generic statutory authorisation).

As mentioned above, in 2017, a new decision rendered by the full bench of the Federal Supreme Court held that 'the scope of the res judicata effects from an ordinary class action brought by a civil association in defence of the interests of its members extends only to those members residing within the jurisdiction of the adjudicating body on or before the filing date and listed on the complaint'.8 This judgment has triggered discussions on whether the interpretation of Article 5, V of Law 7,347 of 1985 and Article 82, IV of the Consumer Protection Code would lead to the conclusion that a general statutory provision is not enough to legitimise the standing of associations in defence of the rights of their members, thus making it indispensable to obtain the prior express authorisation of the members.

The discussion is far from over and the limits of the standing of an association to bring class actions are currently the subject of debate in actions still pending in the higher courts.

iii Procedural rules

A class action starts with a complaint that must be addressed to a court with jurisdiction and must accurately identify the parties, the facts and their legal grounds, as well as the pleadings with all specifications, the amount in dispute and the evidence by which the plaintiff intends to prove the truthfulness of alleged facts.

Before analysing the merits of the case, the judge must scrutinise whether all conditions for valid existence of the class action have been satisfied, such as standing to sue and to be sued, the procedural interest and the legality of the pleading. These conditions may be recognised by the judge on his or her own initiative or challenged by the defendant as preliminary arguments in the defence.

After process is served upon the defendant, he or she will present an answer containing all possible arguments of defence, which will occasionally be followed by a reply and then a defendant's rejoinder. The judge then renders a decision on the preliminary arguments to establish the matters in dispute and to specify the evidence to be produced in the case.

The evidentiary phase (discovery) starts after the conciliation hearing. The parties may prove their allegations through all means admissible into evidence by operation of law. Basically, evidence can be composed of supporting documents, oral testimony or expert investigation.

The parties may present any type of document to prove the alleged facts. Ordinarily, the parties must introduce documentary evidence in the complaint and in the statement of defence, but further documents may also be put forward at a later stage in support of unforeseen facts or to refute evidence presented by the opposing party.

Examples of oral evidence are the plaintiff's deposition and the hearing of witnesses. Brazil adopts the inquisitorial system of proceeding. Oral evidence is collected at specific hearings in which the judge and the counsels for the parties may ask questions to the plaintiff or to the witnesses enrolled.

Expert evidence is made when specific forensic knowledge (e.g., in the accounting, medical or engineering area) is required. To obtain expert evidence, the judge appoints a trusted expert and the parties may also designate experts to assist in expert works. The parties submit questions to be answered by the court-appointed expert, who eventually issues an expert opinion.

There is no jury and the judge will make a decision granting or denying the class action. Under Law 7,347 of 1985, this decision has immediate effects and appeals usually cannot stay the applicability of the decision until it has been the subject of a future favourable judgment by the Court of Appeal.

Appeals, if any, are heard by a three-judge panel of the Court of Appeal. The appellate ruling can generally be challenged via an extraordinary appeal to the Federal Supreme Court and a special appeal to the Superior Court of Justice; such appeals, however, cannot revisit issues of fact and evidence.

As a class action can be filed to safeguard diffuse, collective or trans-individual rights, the Consumer Protection Code stipulates how res judicata applies to each of these scenarios.

For diffuse rights, the court ruling on a class action will ensure res judicata erga omnes, unless the claim is dismissed for lack of evidence, in which case any legitimate party may file another lawsuit with identical grounds and based on new evidence.9

For collective rights, the court ruling on a class action will ensure res judicata ultra partes but limited to the group, category or class, unless the claim is dismissed for lack of evidence.10

For trans-individual interests, the court ruling on a class action will ensure res judicata erga omnes, only if the claim is granted to benefit all victims and their successors.11 Also, 'if the claim is dismissed, the interested parties that did not intervene in the case as co-plaintiffs may file an individual suit for damages'.12 However, further class actions would be barred given the res judicata.

iv Damages and costs

As to court costs, Article 87 of the Consumer Protection Code states that, in class actions, 'there shall be no advance payment of costs, court fees, expert fees or any other expenses, nor shall there be any sentencing of the plaintiff association to pay attorneys' fees and court costs and expenses, except in cases of proven bad faith'.

As for damages awarded on behalf of citizens in a class action, a class action in Brazil generally seeks to have the courts recognise a legitimate right and establish the an debeatur (what is due), so that the quantum debeatur (the amount due) may then be ascertained for each citizen.

As a rule, each aggrieved citizen must sue for calculation and enforcement of the award. Each new individual proceeding would require the presentation of evidence and a statement by the defendant, but the statement would be limited to discussing the quantum debeatur.

Nonetheless, one of the legitimate entities may also file a class action suit for calculation and enforcement of an award. This option for enforcement by extraordinary legitimate entities was introduced to the Brazilian legal system to prevent the supplier or vendor from escaping the payment of damages arising from injury caused by it in the event that citizens do not show interest in seeking recovery on an individual level. If citizens are not interested in seeking individual redress of the damage caused, the recovery sum is to accrue to a diffuse rights defence fund. Under Article 100 of the Consumer Protection Code, the legitimate entities can only plead fluid recovery after 'one year has elapsed without identification of interested parties in a number compatible with the seriousness of the damage'.

v Settlement

In Brazilian law, unlike in US law, there is no systematic regulation of settlements in class actions involving diffuse, collective or homogeneous individual rights. There are only sparse provisions in Article 5, Section 6 of Law 7,347 of 1985 and in Article 107 of the Consumer Protection Code, but these provisions are clearly not adequate and ultimately hinder effective settlements involving class actions.

Article 5, Section 6 of Law 7,347 of 1985 establishes the 'terms of agreement' whereby 'the public bodies with standing to sue may demand of the legitimate parties that they execute terms of agreement by which they will abide by legal requirements or else face penalties, with the agreement being valid and enforceable as an extrajudicial enforcement instrument'. Terms of agreement are defined as an alternative dispute resolution method that is meant to avoid or put an end to the lawsuit by means of execution of an agreement between a private party and one of the public bodies with standing to file a class action.

Article 107 of the Consumer Protection Code in turn institutes the 'consumer collective agreement' whereby 'the civil consumer entities and the associations of suppliers or unions of an economic category may regulate, by means of a written agreement, consumer relations intended to lay down specific conditions on price, quality, quantity, warranty and characteristics of products and services, as well as complaints and settlement of consumer-related disputes'.

However, a significant body of legal doctrine states that the terms of agreement and the consumer collective agreement do not operate as true forms of settlement since there is purportedly no actual disposal of rights under those instruments. Generally, in the terms of agreement and in the consumer collective agreement, the representatives of a given class are not the holders of the substantive right being protected and are, thus, unable to 'perform any act that directly or indirectly entails the disposal of those substantive rights involved, as the latter do not belong to them'.13 Hence, according to the majority view emerging from legal doctrine and court rulings, such settlements could only be reached with regard to the form, time, place and conditions for fulfilment of an obligation or redress – although without ever entailing a disposal or waiver of substantive rights.

In Brazil, the terms of agreement and consumer collective agreements may be executed out of court, but recognition of these may also be sought from the courts – especially when a class action has already been brought. The judge's role in recognising a settlement in a class action differs greatly from that of a US judge. As a rule, the Brazilian judge does not analyse the merits of a settlement or whether the interests of the class have been properly satisfied in the agreement. The judge only checks the formal aspects of a settlement, such as the parties' standing, ascertaining that there has been no undue disposal of a right, and the parties' status in the proceedings.

Settlements in class actions follow the opt-in system and are not automatically binding upon all interested parties, who may file individual lawsuits regardless of the agreement (unless they have expressly opted in). Also, most legal doctrine and court rulings hold that the execution of a settlement is not binding on other parties that have legitimate cause to file class actions to consider the same collective dispute covered by the agreement.