Mexico’s Federal Consumer Protection Law, enacted in 1992, contemplated so-called “group actions” (Article 26), but this was only the start of the regulation of this legal figure. While Article 26 legitimated the Federal Consumer Protection Agency (PROFECO) to represent groups of consumers before courts against suppliers that had caused damages or harm to consumers, there were only a few cases in which PROFECO exercised such power.

Subsequently, the interest in properly regulating the figure of class actions in Mexico was developed at the International Congress on Access to Justice for Consumers through Class Actions, organised in November 2007 by the Instituto Tecnológico Autónomo de México, PROFECO and the non-profit organisation ALConsumidor, as well as at the International Seminar on Class Actions, organised by the Supreme Court of Justice of Mexico in March 2008.

In 2009, diffuse and collective rights were included in the Mexican legal system through the precedent issued by the First Chamber of the Supreme Court of Mexico (Amparo Directo 14/2009, related to 15/2009), which analysed a controversy between homeowners in a housing development and the builder of those homes, which had structural and service failures.

As a result of this precedent and the aforementioned congress and seminar, on 29 July 2010, a reform to Article 17 of the Mexican Constitution was published in the Federal Official Gazette, which incorporated the figure of the class action with the purpose of elevating an additional means of access to justice to constitutional rank. It is intended mainly for use by consumers, financial services customers and those affected by environmental damage.

Consequently, on 30 August 2011, the Federal Code of Civil Procedures was amended adding a last chapter to regulate class actions, defining the diffuse and collective interests, the scope of application of class actions, as well as applicable procedure.

Class actions in Mexico find their main inspiration in the essays contained in the so-called “Green Book” entitled “The protection of diffuse collective and individual homogeneous rights. Towards a Model Code for Ibero-America” (La tutela de los derechos difusos colectivos e individuales homogéneos. Hacia un Código Modelo para Iberoamérica), co-ordinated by Antonio Gidi and Eduardo Ferrer Mac-Gregor, approved at the XIX Iberoamerican Conference on Procedural Law of Caracas in 2004, with the participation of more than 30 Latin American authors in its drafting, as well as in the so-called “Red Book” entitled “Model Code of Class Actions. An Ibero-American Dialogue”, also co-ordinated by Antonio Gidi and Eduardo Ferrer Mac-Gregor. Both the Green Book and the Red Book are practically based on Brazilian law on class actions.

From the explanatory memorandum of the reform to Article 17 of the Constitution that included the figure of class actions in the Mexican legal system, as well as the addition of the chapter on class actions to the Federal Code of Civil Procedures, it is clear that such reforms were based on the analysis of Colombian law (Law 472 of 1998), US law (Rules 23, 23.1 and 23.2 of the Federal Rules of Civil Procedure) and Brazilian legislation (Law No 8.078 of September 1990), as well as on the comparative analysis of legislation from Spain, Costa Rica, Uruguay, Chile and Venezuela.

Mexico is not a member state of the EU and has not implemented the EU's collective redress regime. As discussed in 1.1 History and Policy Drivers of the Legislative Regime and 1.2 Basis for the Legislative Regime, Including Analogous International Laws, the Mexican class actions regime is based on a variety of Latin American and US sources.

The main laws governing class actions in Mexico are:

• the Federal Constitution, which establishes that individuals have the right to defend their collective rights and interests;
• the Federal Code of Civil Procedures, which regulates the procedure for class actions, the scope of application, as well as the authorities, entities and persons entitled to represent classes;
• the Federal Civil Code, which establishes the obligation to indemnify when damages are caused to a class or group of persons;
• the Federal Consumer Protection Law and its Regulations, which grant the power of representation to PROFECO to represent groups of consumers in class actions;
• the Law for the Protection and Defence of Users of Financial Services, which grants the power of representation to the National Committee for the Defence of Users of Financial Institutions (Comisión Nacional para la Defensa de los Usuarios de las Instituciones Financieras – CONDUSEF) to represent groups of users of financial services in class actions; and
• the General Law of Ecological Balance and Environmental Protection, which regulates the collective defence derived from the preservation and restoration of the ecological balance and environmental protection, as well as the power granted to the Federal Attorney General’s Office for Environmental Protection to file class actions within the scope of its authority.

Class actions may be brought when there is conduct that affects members of a class in matters of public or private consumer relations (goods, products or services), and environmental matters, among which are:

• consumer or financial service users’ rights, including public services;
• illegal concentrations or monopolistic practices;
• effects on the environment, ecological balance and sustainable development; and
• misleading advertising.

In the Green Book, which served as the basis for class action legislation in Mexico, class actions are defined as “...actions brought by a representative (collective standing) to protect the right belonging to a group of persons (object of litigation) and whose judgment will bind the group as a whole...”.

In practice, class actions in Mexico constitute a procedural tool that allows groups of persons affected by common circumstances to jointly access justice in a more efficient, economical, and effective manner, avoiding duplication of efforts and resources that would imply the filing of multiple individual lawsuits, with the purpose of restoring things to the state they were in before the rights in question were effected or providing compensation for damages caused.

Diffuse and collective rights will be exercised through the following types of class actions:

• Diffuse action – this action is of an indivisible nature and is exercised to protect diffuse rights, whose holder is an undetermined class, which has the purpose of judicially claiming from the defendant the reparation of the damage caused to the class, consisting of the restitution of things to the state they were in before the damaging event/conduct or, if this is not possible, the substitute compliance of the judgment with orders designed to remedy the effect on the rights of the class.
• Collective action in a strict sense – this is an action of an indivisible nature that is exercised to protect collective rights, whose holders belong to a determined or determinable class based on common circumstances, whose purpose is to judicially claim from the defendant the reparation of the damage caused, consisting of the performance of one or more actions or to refrain from performing them, as well as to cover the damages individually to the members of the class.
• Homogeneous individual action – this is an action of a divisible nature, which is exercised to protect individual rights of collective incidence, whose holders are individuals grouped on the basis of common circumstances, whose purpose is to claim judicially from a third party the strict performance of a contract or its termination with its consequences and effects (damages).

Class actions will be processed exclusively before the federal judges of the domicile of the defendant who has caused the effect on the class.

Class actions in Mexico are processed under a special procedure regulated by the Federal Code of Civil Procedures, supplementarily applying the common rules of the ordinary federal civil trial, as well as the appeals system provided in such code. The key elements of the procedure are outlined below.

Discovery, Limitations and Requirements

There is no discovery (document disclosure) stage in the class action procedure. The general statute of limitations for class actions is three years and six months, counted from the date on which the damage was caused. The statute of limitations in environmental class actions is 12 years from the date on which the environmental damage was caused.

The lawsuit must comply, among other requirements, with:

• the identification of at least 30 members of the class;
• the precision of the diffuse, collective or individual right, in relation to the type of class action being brought;
• the statement of the benefits claimed; and
• the exhibition of documents evidencing the legal standing of the representatives of the class, as well as the consent of the members of the class to be represented by the corresponding authority, non-profit organisation or common representative.

Processing and Service

Once the claim has been filed, without any pronouncement of admission or dismissal, the lawsuit is granted initial processing, ordering the summons of the defendant so that within a term of five days it may express its statements exclusively on the requirements of the claim. The judge will analyse the compliance of such requirements and, if applicable, certify the action, granting the admission of the lawsuit and ordering the notification to the class by any possible means. If the aforementioned requirements are not accredited, the judge will dismiss the lawsuit. In jurisprudential criteria it has been determined that the admission of the lawsuit implies a massive civil liability against the defendant.

Upon admission of the claim, the judge will order the service of process of the defendant so that, within a term of 15 business days, extendable for another 15 business days, the defendant may answer the lawsuit opposing defences and attaching documents translated into Spanish to prove such defences. The class will have a period of five business days to express its opinion of the defences raised when answering the lawsuit.

Conciliation, Hearings, Judgment and Appeal

Subsequently, the Judge will schedule a conciliation hearing to try to conciliate the interests of both parties, in which case the proposed settlement will be notified to the relevant authorities so that they may express their statements, as well as to the members of the class so that they may express their consent. If the authorities and the community express their conformity with the proposal agreement, the judge will approve it, elevating it to the category of res judicata.

If the parties do not reach a settlement agreement, the Judge will open the evidentiary stage, granting a term of 60 business days for the offering of evidence, extendable for an additional 25 days, to subsequently order the production of the evidence 40 forty business days, setting a final trial hearing for the parties to express conclusions on the matter. Once the final trial hearing has been held, the judge will issue the final judgment, which may be appealed before a Court of Appeals, whose judgment may also be challenged through an amparo proceeding before a Federal Collegiate Tribunal, whose determination will be final, unless there is a constitutional interpretation that may be analysed by the Supreme Court of Justice in accordance with the respective motion for review.

The following entities and individuals have standing to represent collectives in class actions:

• the Federal Consumer Protection Agency, the Federal Attorney’s Office for Environmental Protection, the National Commission for the Protection and Defence of Users of Financial Services and the Federal Economic Competition Commission;
• the Federal Attorney General’s Office;
• a common representative of the class, who may or may not be a member of the class; and
• non-profit organisations legally incorporated at least one year prior to the time of the filing of the class action, whose corporate purpose includes the promotion or defence of diffuse or collective rights, and which are registered before the Federal Judiciary Council.

Any person who feels affected in matters related to public or private consumer relations (goods, products or services) and environmental matters may file a class action or join a class action, since there is no maximum limit on the number of members that may form a class; however, it is an indispensable requirement that the class be composed of at least 30 persons, who must be related by common legal or factual circumstances.

The mechanism to join a class action in Mexico is opt-in. This means that persons wishing to participate in a class action must express their willingness to join the class.

Affected persons may join the class from the beginning of the action, during the proceeding, or up to 18 months after the final judgment or agreement are considered as res judicata, through a simple request addressed to the representative of the class, who in turn will submit it to the judge, who will decide on the joinder.

In the event of coexistence of an individual proceeding and a class action arising from the same cause, the defendant in both proceedings shall inform the judges of such situation. The judge of the individual proceeding shall notify the plaintiff of the existence of the class action so that, if applicable, it may decide to continue with the individual proceeding or exercise its right to join the class within 90 days from the notification. In order for the plaintiff to join the class action, it must withdraw from the individual proceeding in order for it to be dismissed.

In the case of individual rights of collective incidence, if the lawsuit in the class action proceeding is declared unfounded, the members of the class retain the ability to exercise their rights individually.

If any member requests its exclusion from the class action, once the defendant has been summoned, that exclusion will be equivalent to a withdrawal from the class action for that member, and therefore it will not be able to participate again in a class action proceeding derived from the same facts.

In general terms, the judge shall interpret the rules and facts expressed in the lawsuit in a manner compatible with the principles and objectives of class action proceedings, in order to protect and safeguard the general interest of the class.

In addition, the judge has the following powers within the procedure:

• to start an ancillary proceeding for the removal or substitution of a representative of the class when such representation is not adequate;
• to verify the compliance of the certification stage requirements at any time during the class action proceeding;
• to verify, in the case of a potential agreement, that the interests of the class are duly protected;
• to receive any statement, opinion, or document (including amicus curiae) from third parties not involved in the proceeding, provided that they are relevant to resolving the controversy and that there is no conflict of interest with respect to the parties; and
• to request an opinion, preparation of studies or production of evidence from the various relevant entities and agencies.

Pursuant to the stages, terms and periods set forth in the Federal Code of Civil Procedures, class actions must be processed within eight months; however, taking into consideration that certain periods may take longer than normal (particularly, the notification to the defendant), as well as the workload of the federal courts in Mexico, the complexity of the matter and the combative attitude (appeals and amparos) of the parties, class actions are normally resolved in approximately two to four years.

Under Mexican class action legislation, there are no procedural mechanisms to accelerate the procedure, nor is there a summary procedure, since the terms and deadlines established for class action proceedings must necessarily be complied with; however, there may be considerable delays in the resolution of a class action due to the parties filing appeals or amparo proceedings (constitutional proceedings) during the class proceeding, since such challenges will affect the normal course of the proceeding.

As a general rule, each party will assume its legal expenses and judicial costs for the processing of a class action, as well as the fees of its representatives; however, in the judgment or agreement, the judge must decide on the payment of the expenses and judicial costs according to the merits and (in)admissibility of the action. In the case of the plaintiff class, the fees of the representatives are capped according to a tariff provided in the Federal Code of Civil Procedures. There is no restriction or limitation on the class being financed by a third party.

Further, the Federal Code of Civil Procedures establishes that the Federal Judiciary Council will administer the resources obtained from judgments derived from diffuse class actions, which must be used exclusively for the payment of the expenses of other class action proceedings, as well as the fees of the representatives; however, since the creation of the fund no amount has been received, so in practice, the members of the class must assume and pay the costs for the implementation of the class action they wish to pursue.

The diffusion of a class action, prior to its filing, depends exclusively on the representative of the class. When PROFECO represents consumer collectives, it normally publishes on its official website its intention to file a class action lawsuit against a supplier, so that affected consumers may join the class.

During the proceeding, one of the effects of the admission of the lawsuit is the notification to the members of the class of such admission, which may be made by any suitable means, taking into consideration the size, location of the lawsuit and the class itself, as well as any other characteristics of such class, on the understanding that such notification must be economical, effective and ample.

The notice must contain a succinct relation of the essential points of the class action, as well as the characteristics that allow the identification of the class.

In this regard, the Supreme Court of Justice has considered that judges may order that the notification to the class of the commencement and admission of the action be made through the mechanisms they deem pertinent to guarantee the full identification of the persons who may join the action, even when this implies an additional burden for one of the parties.

Class actions in Mexico are regulated by the Federal Code of Civil Procedures, which limits them to matters of public or private consumer relations (goods, products or services), and to environmental matters. The remedy normally claimed in class actions consists of restoring things to the state they were in before the effect on the class and, if this is not possible, a substitute compliance with orders designed to remedy the effect on the rights of the class, as well as compensation for damages caused, depending on the specific type of class action exercised.

Prior to the trial, the affected consumers may file a collective complaint before PROFECO against the supplier whose products or services have caused damage or harm to the collective, to initiate a conciliation procedure in terms of the Federal Consumer Protection Law.

Within the class action procedure provided for in the Federal Code of Civil Procedures, as an alternative dispute resolution mechanism, a conciliation hearing must be held in which the judge must actively participate by proposing alternative solutions to the conflict, urging the parties to resolve it – even including the possibility of providing expert assistants for such solution, which could consist of referring the parties to a public or private mediation procedure.

The judgments issued in class actions may resolve different kinds of claim, depending on the effect of the conduct that is the subject of the class action and the type of class action being filed:

• Diffuse action – the judgment may only order the restitution of things to the state they were in before the damage or, if this is not possible, to substitute compliance according with orders to remedy the effect on the class.
• Collective action in a strict sense – the judgment may decree the reparation of the damage caused, consisting of the performance of one or more actions or to refrain from performing them, as well as to cover the damages individually to the members of the collective.
• Homogeneous individual action – the judgment may order the strict performance of a contract or its early termination, plus the payment of damages individually to the members of the collective.

In the case of collective actions in a strict sense and homogeneous individual actions, the judgment that resolves such types of class action must establish the requirements to be met by the members of the class to prove the damage in the respective ancillary proceeding, since each member of the class must prove the personal and individualised existence of such damage; on the understanding that the payment ordered in the corresponding ancillary proceeding must be made directly to the affected member, never through the representative of the class.

With the main purpose of unifying civil and family proceedings throughout the country, on 7 June 2023, the new National Code of Civil and Family Proceedings was published in the Federal Official Gazette. This new Code will abrogate the Federal Code of Civil Procedures and its entry into force will be gradual and may not occur before 1 April 2027. In the new Code there are substantial modifications to the procedure governing class actions; some of the key differences with the Code currently in force are highlighted below:

• Under the current legislation, class actions statute of limitations will expire in three years and six months, counted from the time the damage was caused; however, the new National Code establishes a five-year statute of limitations term.
• With respect to numerosity, currently at least 30 members of the class are required to bring a class action, while in the new National Code only 15 members will be required.
• Currently, once the lawsuit is filed, the defendant is notified so that within five days it may express its opinion on the requirements for certification of the action; however, under the new National Code, the defendant would no longer express such opinions, and therefore the judge would have to resolve about the certification of the class action without hearing the defendant.
• Once the certification stage of the action is concluded, the judge will have a term of 48 hours to admit or dismiss the class action.
• Under current legislation, the production of evidence stage is 60 business days and may be extended for an additional 20 business days; however, under the new National Code, the period will be 30 business days and may be extended for up to ten additional business days.

On 8 August 2023, Deputy Genoveva Huerta from Partido Acción Nacional filed a bill to amend the Federal Code of Civil Procedures, in order to broaden the scope of application of class actions, so that they can be exercised to protect the cultural heritage of indigenous and Afro-Mexican peoples and communities, as well as to include the National Institute of Indigenous Peoples and the National Copyright Institute as authorities entitled to represent a class; however, due to the publication of the new National Code, such amendment may not be approved.

Brexit has had no impact in Mexico in relation to class actions.

ESG factors are of the highest relevance in the operation of companies, so non-compliance with ESG standards has begun to generate litigation against companies that do not comply with ESG standards, including class actions.

In Mexico there are cases of class actions brought against companies whose products or services have not minimised environmental damage or have engaged in corrupt operations or abusive practices to the detriment of consumers and indigenous communities, so that class actions are becoming a mechanism that seeks greater compliance with ESG factors from corporate actors.