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'.

Article 81, III, sole paragraph of the Consumer Protection Code defines homogeneous individual rights as 'those with a common origin'. Legal scholars have it that homogeneous individual rights are collective only incidentally because, in principle, their protection could be pursued individually by each holder, as it happens with the traditional system for protection of subjective rights. The approach to collective protection of individual rights, however, 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, that is, prohibitory actions, actions seeking affirmative and negative covenants, indemnification actions, declaratory actions, 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 expenses for the clean-up of illegally polluted soil. There are no objective and specific limits on the scope of class actions and of the particular claims, and the class that potentially benefits is defined based on the claims asserted by the plaintiff in the class action.

ii Commencing proceedings

With regard to the standing to file class actions, unlike what is found in US law, Brazilian lawmakers opted for expressly indicating which parties have standing to file a class action. Under Law 7,347 of 1985 (Article 5) and the Consumer Protection Code (Article 82), 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 federal district; (4) the entities and bodies of the direct or indirect public administration, even if with no separate 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 as an overseer of the law (when it is not a plaintiff in the class action).

In Brazil, there is generally no requirement for class-representative adequacy as to the parties with standing to file class actions, and 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. On the other hand, the legal standing is disjunctive, which is different from a 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'. Such standing is also exclusive in that the parties with legal standing are expressly identified in prevailing law.

The Brazilian legislation has not established mandatory binding effects in a class action (the opt-out system). The rule is that if the class action is judged groundless, it does not prevent citizens from filing indemnification claims, but if the class action is judged to have 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. Past rulings of the Superior Court of Justice 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.

It so happens that the matter was taken to the Full Bench of the Federal Supreme Court which, acknowledging the leading case status of this issue, held in Extraordinary Appeal 573.232/SC that the activity of associations in defending the interests of their members can take shape by representation only, not as substitute parties in the proceedings. It was thus declared that express authorisation should be obtained, whether individually or by a meeting resolution, for an association to file class actions. After this finding by the Federal Supreme Court, other Brazilian courts sided with this opinion that an association could only bring a class action defending its members by way of representation in the proceedings (Article 5, XXI of the Federal Constitution) under prior express authorisation (either through an individual act or through a resolution made at a meeting, which is a measure not satisfied merely via a generic statutory authorisation).

As mentioned above, in 2017, a new decision rendered by the Full Bench of the Federal Supreme Court held that 'the subjective efficacy of res judicata from an ordinary class action brought by a civil association in defence of the interests of its members only reaches those members residing within the jurisdiction of the adjudicating body on or before the filing date and listed on the complaint'. 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 the general statutory provision is not enough to legitimise the standing of associations in defence of the rights of their members, it being thus indispensable to obtain the prior express authorisation of such members.

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 controversy, 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 the standing to sue and to be sued, the procedural interest, and the legal possibility 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 so as to establish the matters in controversy 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 put forth 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 an expert of his or her trust, and the parties may also designate experts to assist in expert works. The parties submit questions that will 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 such decision until a future favourable judgment by the Court of Appeals.

Appeals, if any, are heard by a three-judge panel of the Court of Appeals. 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 sets 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' (Article 103, I).

For collective rights, the court ruling on a class action will ensure res judicata 'ultra partes, but limited to the group, category or class, except the claim is dismissed for lack of evidence' (Article 103, II).

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' (Article 103, III). 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' (Article 103, paragraph 2). 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, save in case of proven bad faith, to attorneys' fees and court costs and expenses.'

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 (how much is due) may then be ascertained for each citizen.

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

Nonetheless, one of the legitimate entities may file a class action suit for calculation and enforcement of an award as well. This possible enforcement by extraordinary legitimate entities was introduced in the Brazilian legal system to prevent the supplier or vendor from escaping the payment of damages out of the injury caused by it, if 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 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' (Article 100).

v Settlement

In Brazil, 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, Paragraph 6 of Law 7,347 of 1985 and in Article 107 of the Consumer Protection Code, but these provisions are clearly not enough, which ends up hindering the effective settlements involving class actions.

Article 5, Paragraph 6 of Law 7,347 of 1985 establishes the 'terms of agreement' by which 'the public bodies with standing to sue may demand from the legitimate parties to execute terms of agreement by which these will abide by legal requirements or else face penalties; such document is 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' by which '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 portion of legal writings 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'. Hence, according to the majority view emerging from legal writings 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 – without ever entailing a disposal or waiver of substantive rights, though.

In Brazil, the terms of agreement and consumer collective agreements may be executed out of court, but these may also be taken to court recognition – especially when a class action has already been brought. The judge's roles in recognising a settlement in class actions differ greatly from those 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 on the agreement. The judge only checks the formal aspects of a settlement, such as the parties' standing, 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, which may file individual lawsuits regardless of the agreement (unless they have expressly opted in). Also, most legal writings and court rulings hold that the execution of a settlement is not binding on the other legitimate parties that could file class actions to discuss the same collective dispute covered by the agreement.