Contributed By Machado Meyer
The Development of Collective Redress/Class Action Regimes in Brazil
Until the beginning of the 20th century, most countries’ legal systems focused on protecting individual rights, in particular, property rights and freedom of speech. In Brazil, the legal remedies available at that time were accrued to individuals and entities to pursue their rights. However, as time passed and society became more organised and interconnected, legislators saw a need for change and established mechanisms to protect not only individuals themselves, but also their community. Laws were enacted in that record allowing the public and certain types of groups, depending on the circumstances, to seek protection of collective rights.
In Brazil, the first judicial remedy to defend collective rights was introduced into the legal system by Section 113 of the Brazilian Federal Constitution enacted in 1934 and was called a popular action (ação popular). This provision established that any citizen could file a popular action against public authorities alleged to have committed acts capable of causing damage to public assets and to obtain the annulment of such acts. Federal Law No 4,717/1965 was enacted 32 years later to regulate popular action, creating specific provisions for the procedure. Despite being an important mechanism, popular actions have had limited scope, since they may only be brought against public authorities/bodies.
In 1985, an authentic procedure for collective redress was introduced into the Brazilian Legal System through Federal Law No 7,347/1985, referred to as a public civil action (ação civil pública). Federal Law No 7,347/1985 was originally intended to create a mechanism for certain parties to sue a person, public or private, who committed an unlawful act causing damage to:
After the advent of the Consumer Protection Act in 1990 (Federal Law No 8,078/1990), public civil action became a legitimate means of seeking compensation for damages caused to a class or a group of determined or undetermined individuals. At present, in addition to the above three instances, public civil actions may also be brought against those who have negatively affected the:
As briefly explained in 1.1 History and Policy Drivers of the Legislative Regime, in Brazil, public civil action was first conceived to protect collective rights in general. This means that public civil action is the suitable judicial mechanism for obtaining redress for acts violating:
Although to some extent Brazilian public civil actions related to homogeneous individual rights were inspired by US class actions, since both proceedings can only be brought to litigate matters of collective interest, and not individual ones, there are significant differences between these two procedures.
Differences between the Brazilian Public Civil Action and the US Class Action
In Brazil, public civil actions cannot be filed to seek compensation for any kind of damages other than in connection with the rights expressly provided for in Section 1 of Federal Law No 7,347/1985. In the US, Federal Rule of Civil Procedure 23 (“Rule 23”) does not set forth as a prerequisite for the filing of a class action that a certain type of right has been violated, but only that the claims or defences of the representative parties must be typical of the claims or defences of the class.
Parties that may file these actions in both countries
Another difference pertains to the parties that may file such actions. In Brazil, only a few parties have standing to file a public civil action, as per Section 5 of Federal Law No 7,347/1985:
In the US, according to Rule 23, one or more members of a class may file a class action as representative parties on behalf of all members.
As to the possibility that a person may decide not to be a party to a collective action, Brazilian law does not provide for the opt-in/opt-out mechanism set forth in US law for class actions. This means that, while in the US it is mandatory for all parties potentially involved in a class action to decide whether to opt in or opt out of the lawsuit, potentially waiving their right to take further action in the event the class action is dismissed, in Brazil, it is not necessary to do so, as the decision rendered in the public civil action will only benefit, not harm, the individuals affected by the unlawful act. In the event of an unfavourable ruling in the public civil action, any party with standing is entitled to file another lawsuit with new evidence in order to potentially obtain compensation.
Effects of the decision on the merits
Finally, there is a significant difference as to the effects of the decision on the merits rendered in each proceeding. In Brazil, the court may issue a decision in a public civil action that can produce effects:
In the US, the decision rendered in the class action will produce erga omnes effects, no matter the nature of the rights litigated.
There is no applicable information in this jurisdiction.
As explained in 1.1 History and Policy Drivers of the Legislative Regime, the principal statute in Brazil regulating collective actions is Federal Law No 7,347, enacted in 1985, which introduced public civil action into the legal system. The public civil action was designed to allow persons or entities that committed an unlawful act and violated collective, diffuse or homogeneous individual rights, to be sued to compensate the damages caused to the community or a specific group of individuals. Additionally, there are at least four other laws that in some manner seek to protect transindividual rights in certain areas of law:
As already mentioned, Federal Law No 4,717/1965 provides, in Section 1, that any citizen may file a popular action against public authorities who have committed acts capable of causing damage to public property, in order to obtain annulment of such acts.
The Consumer Protection Act provides, in Section 81, that defence of the interests and rights of consumers and victims may be pursued through the filing of collective actions when the litigation involves collective, diffuse or homogeneous individual rights.
Furthermore, on that point, Sections 208 et seq of the Brazilian Child and Adolescent Statute provides that collective actions may be brought to seek redress for offences against the fundamental rights of children and adolescents.
Lastly, Section 47 of Federal Law No 12,529/2011 provides that all individuals who have been affected by an unlawful act are entitled to bring an action in order to compel the defendants to cease acts constituting offence against the economic order, and for those individuals to seek compensation for the damage caused, aiming to protect their individual rights or homogeneous individual rights.
As defined in 1.1 History and Policy Drivers of the Legislative Regime, public civil actions may be filed against private or public persons who have committed an unlawful act causing damage to:
Federal Law No 7,347/1985 does not provide a definition as to what constitutes a public civil action. Due to the lack of a statutory definition, Brazilian scholars define public civil actions as being a special judicial mechanism for the protection of collective rights in general, which encompass collective rights stricto sensu, as well as diffuse and homogeneous individual rights, and which may be brought by public or specific private entities.
As explained previously, in Brazil, public civil actions may only be brought to litigate violations of collective rights related to the matters set forth in 3.1 Scope of Areas of Law to Which the Legislation Applies, pursuant to Section 1 of Federal Law No 7,347/1985. To be admitted, the lawsuit must be initiated by one of the parties expressly listed in Section 5 of such law:
The proceeding must be filed before the court with jurisdiction over the place where the damaged was caused, which can be either a federal court or a state court.
As provided in Section 3 of Federal Law No 7,347/1985, the claimants may request that the court compels the defendants to:
Laws and Rationale in the Framework of Brazilian Class Actions
Brazil has not adopted a specific procedural code for collective/class actions and redress of collective rights. Collective proceedings relating to this matter consist of the following commonly used laws:
One must bear in mind that the current Brazilian Code of Civil Procedure (Law No 13,105/2015), which came into force in March 2016, contains a provision allowing for repetitive individual appeals (appeals on the same issue of law) to be decided together (Sections 976 to 987, Code of Civil Procedure), which is considered by some scholars to be another means of addressing collective issues.
Legal Concepts and Collective Judicial Relief
In general, class/collective actions are procedures aimed at the protection of collective rights, defined as follows.
There are no differences between the regulatory framework for collective actions brought before federal or state courts in Brazil. According to Section 2 of Federal Law No 7,347/1985 and Section 93 of the Consumer Protection Act, a public civil action may be filed in the place where the damage at issue occurred, ie, in the state capital for damages at the local level and in federal districts in the case of regional or national reach.
Among the most frequent collective actions in Brazil are those filed for the protection of consumers and for redress for environmental accidents, including those related to civil damages to be paid to victims of an accident.
Standing to Sue in Brazilian Class Actions
As a general matter, in accordance with the overall procedure of public civil actions (Section 5 of Federal Law No 7,347/1985), the following groups are indicated.
Plaintiffs outside the jurisdiction
There are no restrictions on bringing claims on behalf of individuals from multiple jurisdictions. Where such a situation could potentially occur is a class action on behalf of victims of an aeroplane accident where some of the victims, or the airline itself, are from another country; or a class action on behalf of the victims of an environmental accident caused by a foreign person or entity.
It should be mentioned that the Brazilian Code of Civil Procedure includes a provision (Section 139, X) stating that, when facing multiple repetitive individual claims, a judge may notify the institutions referred to in Section 5 of Federal Law No 7,347/1985, for them to consider filing a collective action.
Main Procedural Aspects and Opt-In/Opt-Out Mechanism
Brazil has not adopted a mechanism for preliminary decisions defining and certifying a class. A general analysis of standing is conducted, according to the provisions of Federal Law No 7,347/1985 and the general rules of the Code of Civil Procedure. The plaintiff identifies the class in the complaint and the judge defines the beneficiaries at the trial level (generic award).
The mechanism for joining the action in Brazil is opt-in. Once the case is filed, a public notice should be published in the Official Gazette to enable individuals to join the case as co-plaintiffs. Other associations can also join the case.
Opt-in is not mandatory in order for individuals to benefit from a favourable decision. To benefit from a generic award, plaintiffs in individual lawsuits must request suspension of any individual claims within 30 days of publication of the public notice of the class action.
Furthermore, no minimum number of plaintiffs is required before an action may be brought.
The potential plaintiffs are restricted to those referred to in 4.3 Standing and do not include individuals. Since transindividual rights cannot be exercised individually, there are no opt-in or opt-out provisions concerning this type of class action.
For cases involving homogeneous individual rights, the following rules establish the relationship between a class action and individual claims.
It should be mentioned that any of the potential plaintiffs may solely file a class action with no need for joinder or need to obtain authorisation from the other parties who have standing.
A defendant can apply for a joinder with other defendants if one of the requirements established in Section 113 of the Brazilian Code of Civil Procedure is met:
The Brazilian Code of Civil Procedure establishes the possibility of admitting an amicus curiae and public hearings (Section 138) in cases in general, especially class actions, in order to assist the court and provide clarifications, considering the relevance and complexity of the case under discussion.
Regarding the powers established by the Brazilian Code of Civil Procedure, an amicus curiae may appeal against the decision adjudicating an incidental proceeding for repetitive individual appeals (Sections 976 to 987).
As a general rule, a potential plaintiff or legal entity that is not a party to a class action can also ask to participate as an "assistant" to one of the parties if it is established that the assistant has a legal interest in the outcome of the case.
Brazilian Case Law
Furthermore, for the justices of the fourth panel of the Brazilian Superior Court of Appeals (Superior Tribunal de Justiça or STJ), in collective actions related to procedural substitution by parties with extraordinary standing, it is not necessary for the same parties to be present to give rise to lis pendens. In line with the STJ's understanding in other judgments, the judge must eminently observe the identity of the potential beneficiaries of the outcome of decisions.
The leading case on the subject before the STJ was the ordinary appeal in the writ of mandamus (RMS) No 24.196/ES, for which the opinion was drafted by Justice Felix Fischer and decided by the Fifth Panel of the STJ on 18 February 2008. On that occasion, it was ruled that "the subjective aspect of lis pendens in collective actions must be seen from the perspective of the beneficiaries affected by the effects of the decision, and not by a simple examination of the parties that appear as plaintiffs in the claims". This understanding was reiterated by Justice Eliana Calmon, who drafted the opinion in REsp 1.168.391/SC (decision rendered on 20 May 2010) and other subsequent judgments.
There are no specific rules concerning the powers the courts have in respect of class actions. However, under the general rules of the recently enacted Brazilian Code of Civil Procedure, one of the first steps of any lawsuit is a conciliation/mediation hearing seeking amicable settlement of the dispute, aided by a specialised mediator or conciliator. While a conciliation hearing was optional under the prior Code of Civil Procedure (1973), it is now mandatory, unless both parties agree to waive it and take part in alternative dispute resolution.
In Brazil, it is quite difficult to estimate the timeframe of proceedings in individual lawsuits or collective actions at the trial level, since this is subject to various acts/facts that are beyond the control of the parties, in addition to the possibility of interlocutory appeals from certain decisions and the lengthy production of evidence. Also, the duration of each step of a lawsuit depends significantly on the place where it is filed, as this can vary significantly between different courts.
At the appellate level (eg, State Court of Appeals of Minas Gerais), an appeal tends to be heard within a period of eight to ten months, depending on its complexity.
Regarding the hearing of special and extraordinary appeals, this is also very difficult to estimate due to a backlog at both courts.
Accordingly, a trial decision generally takes a couple of years. When filing a class action, plaintiffs may request in limine relief, which is likely to be decided within a few weeks, if not days.
Alternative Dispute Resolution Methods and Brazilian Class Actions
Section 5, paragraph 6 of Federal Law No 7,347/1985 establishes a framework for settlement of claims filed by the public prosecutor, eg, alternative dispute resolution (ADR) as applied in the collective action system.
ADR requires defendants to abide by legal requirements or face penalties.
In public civil actions, it is common for plaintiffs to request in limine relief, which is likely to be decided within a few weeks, if not days (Section 4, Federal Law No 7,347/1985). The following applies for res judicata.
Territorial Reach of the Decision
In accordance with Section 16 of Federal Law No 7,347/1985, the territorial reach of decisions rendered by a court should be limited to the jurisdiction of the court issuing them. However, the STJ has decided a considerable number of cases recognising that res judicata in public civil actions is not limited to the jurisdiction of the court rendering the decision, but to the matters for which relief was granted and the persons affected.
This scenario was confirmed by the Brazilian Federal Supreme Court, acknowledging the leading-case status of this issue in Extraordinary Appeal 1.101.937 (decision rendered on 4 July 2021), which recognised that it is unconstitutional to limit the territorial reach of decisions rendered in public civil actions.
In class actions, the plaintiff is exempted from paying court fees, judicial expert fees, and awards of attorneys’ fees unless bad faith is proved (Section 17, Federal Law No 7,347/1985 and Section 87, Consumer Protection Act). This legal prerogative is intended to protect collective rights and the fundamental right of access to court.
However, because plaintiffs are exempted from paying court costs, public civil actions are unfortunately frequently filed with little consideration for the actual chances of success.
Furthermore, regarding the value of the claim, the Brazilian Code of Civil Procedure establishes that all lawsuits are to be ascribed a certain value, even if this is not a readily ascertainable monetary sum. Also, it establishes that the judge must correct, sua sponte, the value of the claim if it is observed that it does not correspond to the property rights in question, or the economic benefits claimed by the plaintiff (Section 292, Code of Civil Procedure).
Criticism of the Procedural Framework Concerning the Value of the Claim in Class Actions
Unfortunately, public civil actions are often filed by potential plaintiffs with no regard for the overall procedure, especially Section 292 of the new Code of Civil Procedure mentioned above. This scenario allows a court to “award” unreasonable attorneys' fees to the potential plaintiffs, entirely disregarding the procedural principles of proportionality and reasonableness.
For example, with regard to the case strategy and defence in more than 100 significant public civil actions for Samarco, there are two similar class actions, the first filed by government entities and the second by the public prosecutor's office. Both involve the accident mentioned, where the value of the claim is ascribed a total of BRL20 billion and BRL155 billion, respectively, in total disrespect for the regulatory framework specified above.
In Brazil, there is no procedure for pre-trial disclosure, unlike in some common law systems. All necessary evidence may be requested before the court, during the judicial phase.
Parties may only request advance production of evidence in some specific cases, especially where there is a reasonable fear that it may become impossible or very difficult to ascertain some facts in the future, or the evidence relates to facts that could prevent a judicial claim. It should be noted that this procedure takes place before a judge, unlike in the case of US pre-trial disclosure.
Brazilian law does not provide for the duty of full disclosure, although the judge may order a party (or third party) to exhibit a document or object in its possession.
A party may be exempt from disclosing a document, even if ordered by a judge, where:
However, a party may not refuse to present a document if:
Rules of privilege apply to all attorney-client communication, regardless of how the communication was held.
There is no rule restricting the remedies that can be sought through a public civil action in Brazil, as compared to general individual civil cases. As one of the main goals of this procedure is the resolution of the harmful act, affirmative and negative injunctions are remedies usually seen in this kind of case, to oblige the defendant to perform some act (eg, to disclose certain information on a product’s packaging) or refrain from performing it (eg, refrain from using a polluting substance in its production process).
In addition, plaintiffs usually claim redress and compensation for substantial and moral damages, which can be awarded cumulatively.
Damages in Brazilian Class Actions
Moral damages discussed in a public civil action may have either an individual or a collective nature. These two types of moral damages differ not only on their grounds but also their recipient: while individual moral damages are intended to cover each person affected by the conduct discussed in the lawsuit (usually, in consumer collective actions) and can be individually enforced by them, collective moral damages aim at the group or community affected, as a whole, and are allocated to a fund managed by the public prosecutor’s office and members of the community.
Punitive damages are not expressly provided for in Brazilian law and the possibility of contemplating them in collective actions is the subject of great debate among courts and scholars. Although the topic is still controversial, it is not uncommon to find judicial decisions in public civil actions where the reasoning refers to the exemplary effect of this type of remedy, justifying a high amount of non-economic damages as a tool to prevent the recurrence of such conduct.
It is very common to see interim relief requested in public civil actions in Brazil, especially to bring about the ceasing of misconduct or the freezing of assets to guarantee compliance with a future monetary remedy.
The judge is allowed to order interim relief at any stage of the proceeding.
Brazilian law provides a few special rules with respect to settlement of collective actions, but there are no systematic rules as seen in other jurisdictions. The most relevant provisions on this matter are:
In public civil actions filed by the public prosecutor’s office, settlements usually take the form of Conduct Adjustment Terms (Termo de Ajustamento de Conduta).
Extrajudicial settlements are allowed, but the parties usually submit the settlement for judicial approval when the lawsuit has already been filed. The judicial assessment is generally limited to formal requirements.
Awards granted in collective actions in Brazil generically establish the liability of the defendant, but when an award is given to the benefit of a specific group of individuals (see 1.2 Basis for the Legislative Regime, Including Analogous International Laws), each injured class member (or respective successor) may file an individual enforcement proceeding to ascertain the portion they are entitled to receive.
Defendants will have the opportunity to present a response to this enforcement proceeding, but this should be limited to discussing the amount due, not the liability itself.
To prevent defendants from avoiding liability in certain circumstances, Brazilian law authorises one entity with standing to enforce awards granted in public civil actions whenever it is impracticable or unlikely that each class member will, as a practical matter, file an individual enforcement proceeding. According to Section 100 of the Consumer Protection Act, entities with standing are allowed to plead fluid recovery after a period of one year without identifying a minimum number of individual enforcement proceedings, compatible with the seriousness of the damage.
In 2020, the Brazilian National Justice Board (Conselho Nacional de Justiça or CNJ) approved two important normative acts to improve the performance of the judiciary in collective actions. These acts create an executive committee and oblige the superior, circuit and state courts to create centres for registering and monitoring collective actions and the awards granted therein. The goal is to promote efficiency in these proceedings, standards for decisions, and transparency in the information discussed in collective actions.
Another trending topic at the moment is the use of collective actions to defend rights provided by the Brazilian General Data Protection Regulation, which recently came into force in the country. This could have a great impact on companies operating in Brazil, given that awards granted in public civil actions can reach very high amounts.
There are currently three legislative bills being discussed in Brazil, which propose deep changes in the processing of public civil actions in the country: Bill 1,641/2021; Bill 4,441/2020; Bill 4,778/2020.
In general terms, these legislative bills intend to modernise the procedure and harmonise the various rules related to the subject, which are currently spread throughout different statutes. In addition, Legislative Bill 1,641/2021, specifically, brings in an important rule on case management and structural process.
Brexit has had no significant impact in the context of collective actions in Brazil.
In the scenario of the pandemic, public civil actions were used, in some specific cases, as an instrument for the protection of collective rights, such as cases of potential irregularities in bids for the acquisition of medical equipment or to guarantee access to medicine and vaccines for the homeless population.