Brazil: The International Comparative Legal Guide To: Class & Group Actions 2014

1 CLASS/GROUP ACTIONS

1.1 Do you have a specific procedure for handling a series or group of related claims? If so, please outline this.

Yes, Brazil has some specific federal laws that provide for a group of related claims, commonly named in the country as class actions or collective claims. It is important to note that the Brazilian class actions system differs from the class action procedures in the USA in several aspects.

1.2 Do these rules apply to all areas of law or to certain sectors only e.g. competition law, security/financial services? Please outline any rules relating to specific areas of law.

The Brazilian class actions system aims to protect the environment, consumers, the cultural patrimony, economic/antitrust rights and other so-called diffuse, collective, and homogeneous individual interests. Tax matters are excluded from group litigation.

1.3 Does the procedure provide for the management of claims by means of class action (whether determination of one claim leads to the determination of the class) or by means of a group action where related claims are managed together, but the decision in one claim does not automatically create a binding precedent for the others in the group?

The Brazilian model provides for the management of claims by means of class actions, but again it is important to bear in mind that this system is unique and not very similar to American class action litigation.

1.4 Is the procedure 'opt-in' or 'opt-out'?

There are no opt-in or opt-out mechanisms similar to the ones in the American system of class actions. In fact, in most cases, the individuals whose rights are protected and litigated under the Brazilian class action system do not become aware of the filing of the lawsuit. However, even in these cases, the ruling will benefit the individuals.

1.5 Is there a minimum threshold/number of claims that can be managed under the procedure?

No, no minimum threshold is requested.

1.6 How similar must the claims be? For example, in what circumstances will a class action be certified or a group litigation order made?

The claims must involve similar situations and in most cases the claims derive from a common legal relationship or a common origin. Brazil does not have certification rules for class actions.

1.7 Who can bring the class/group proceedings e.g. individuals, group(s) and/or representative bodies?

The Attorney General (called in Brazil Ministério Público), the Federative Republic of Brazil, the States, Municipalities and the Federal District, administrative agencies, and private associations can bring such proceedings. Individuals do not have standing to sue.

1.8 Where a class/group action is initiated/approved by the court must potential claimants be informed of the action? If so, how are they notified? Is advertising of the class/group action permitted or required? Are there any restrictions on such advertising?

Public notice of the existence of the class action is made by a publication in an official newspaper. No advertising is permitted.

1.9 How many group/class actions are commonly brought each year and in what areas of law e.g. have group/class action procedures been used in the fields of: Product liability; Securities/financial services/shareholder claims; Competition; Consumer fraud; Mass tort claims, e.g. disaster litigation; Environmental; Intellectual property; or Employment law?

Brazil does not have such official data, but the number of class actions has increased in the last few years and it will probably continue to grow in the near future.

1.10 What remedies are available where such claims are brought e.g. monetary compensation and/or injunctive/declaratory relief?

Under Brazilian law, all kinds of remedies are permitted, and the most common ones are injunctive relief, imposition by the court of an obligation against the defendant and monetary compensation. Brazil does not permit punitive damages.

2 ACTIONS BY REPRESENTATIVE BODIES

2.1 Do you have a procedure permitting collective actions by representative bodies e.g. consumer organisations or interest groups?

Yes, private associations, such as consumer organisations, are allowed to file class actions, provided they meet certain formal requirements.

2.2 Who is permitted to bring such claims e.g. public authorities, state appointed ombudsmen or consumer associations? Must the organisation be approved by the state?

Please see the answer to question 1.7 above.

2.3 In what circumstances may representative actions be brought? Is the procedure only available in respect of certain areas of law e.g. consumer disputes?

Please see the answer to question 1.2 above.

2.4 What remedies are available where such claims are brought e.g. injunctive/declaratory relief and/or monetary compensation?

Please see the answer to question 1.10 above.

3 COURT PROCEDURES

3.1 Is the trial by a judge or a jury?

The trial is by a judge.

3.2 How are the proceedings managed e.g. are they dealt with by specialist courts/judges? Is a specialist judge appointed to manage the procedural aspects and/or hear the case?

Class actions can be filed before State or Federal courts, depending on the parties involved in the case as plaintiffs and defendants. In most of the cases, there are no specialised courts/judges in class actions.

3.3 How is the group or class of claims defined e.g. by certification of a class? Can the court impose a 'cut-off' date by which claimants must join the litigation?

Brazil does not have a certification procedure for class actions. Also, there is no specific period for claimants to join the litigation because this is not a typical procedure under Brazilian law.

3.4 Do the courts commonly select 'test' or 'model' cases and try all issues of law and fact in those cases, or do they determine generic or preliminary issues of law or fact, or are both approaches available? If the court can order preliminary issues do such issues relate only to matters of law or can they relate to issues of fact as well, and if there is trial by jury, by whom are preliminary issues decided?

There are no test or model cases, although the ruling of a leading case can be used as a court precedent to the following cases that deal with similar issues. Judges decide both preliminary matters of law, such as lack of standing to sue or to be sued, and also issues of fact.

3.5 Are any other case management procedures typically used in the context of class/group litigation?

No other procedures are typically used.

3.6 Does the court appoint experts to assist it in considering technical issues and, if not, may the parties present expert evidence? Are there any restrictions on the nature or extent of that evidence?

Yes, the judge is entitled to appoint experts to assist with technical issues. The parties can also appoint experts to assist them. There are not many restrictions on the nature or extent of technical evidence, provided that it is useful to the judge to rule the case.

3.7 Are factual or expert witnesses required to present themselves for pre-trial deposition and are witness statements/expert reports exchanged prior to trial?

No, under Brazilian law, there is no pre-trial deposition. Expert reports are presented before the trial and witnesses are heard during the trial.

3.8 What obligations to disclose documentary evidence arise either before court proceedings are commenced or as part of the pre-trial procedures?

The Brazilian model does not have pre-trial procedures related to the disclosure of documentary evidence. Documents are presented by the parties during the case.

3.9 How long does it normally take to get to trial?

In general, the Brazilian Judiciary is very slow and the trial usually takes from two to six years, depending on the complexity of the case and whether or not the court ordered a technical examination.

3.10 What appeal options are available?

Interlocutory decisions, as well as final rulings, are subject to appeals. Parties are entitled to appeal to the second level of jurisdiction and after that to a special level of jurisdiction, which encompasses appeals to the Brazilian Supreme Court and to the Superior Court of Justice.

4 TIME LIMITS

4.1 Are there any time limits on bringing or issuing court proceedings?

Yes, the time limit depends on the nature of the claim.

4.2 If so, please explain what these are. Does the age or condition of the claimant affect the calculation of any time limits and does the court have a discretion to disapply time limits?

In the absence of a specific provision, the statute of limitation is ten years. However, Brazil has a wide range of time limits, such as five years for consumer-related claims and three years for tort claims. Several situations, such as the mental condition of the claimant and when the person is domiciled abroad serving the country, affect the calculation, because the time limit does not run under such circumstances.

4.3 To what extent, if at all, do issues of concealment or fraud affect the running of any time limit?

Usually no, but a case-by-case analysis is necessary.

5 REMEDIES

5.1 What types of damage are recoverable e.g. bodily injury, mental damage, damage to property, economic loss?

All types of damages are recoverable.

5.2 Can damages be recovered in respect of the cost of medical monitoring (e.g. covering the cost of investigations or tests) in circumstances where a product has not yet malfunctioned and caused injury, but it may do so in future?

Brazil does not accept indemnification for future or hypothetical damages, but only for actual damages. This specific situation raised in the question may be understood by the courts as future/hypothetical damages.

5.3 Are punitive damages recoverable? If so, are there any restrictions?

There is no specific provision related to punitive damages and thus they cannot be awarded in Brazil.

5.4 Is there a maximum limit on the damages recoverable from one defendant e.g. for a series of claims arising from one product/incident or accident?

No, there is no maximum time limit.

5.5 How are damages quantified? Are they divided amongst the members of the class/group and, if so, on what basis?

Material/economic damages must compensate all the losses suffered by each of the members. Thus, after the ruling of the case, the members must start a collection procedure. Moral/noneconomic damages are quantified by the judge according to the circumstances of the case, such as the degree of guilt of the offender, the seriousness of the violation and the economic capacity of the parties.

5.6 Do special rules apply to the settlement of claims/proceedings e.g. is court approval required?

Parties can reach a settlement in any class action and the agreement must be approved by a court.

6 COSTS

6.1 Can the successful party recover: (a) court fees or other incidental expenses; (b) their own legal costs of bringing the proceedings, from the losing party? Does the 'loser pays' rule apply?

If the claimant succeeds, it can recover court fees and other related costs (such as costs with evidence/technical exams). Some judges also entitle the winning claimant to receive attorney fees, which are calculated by the judge, usually fixed at between 10% to 20% of the amount in dispute. On the other hand, if the defendant succeeds, it is not entitled to recover costs and fees, because the law exempts the plaintiff of a class action to pay such amounts, except in case of frivolous litigation.

6.2 How are the costs of litigation shared amongst the members of the group/class? How are the costs common to all claims involved in the action ('common costs') and the costs attributable to each individual claim ('individual costs') allocated?

The costs of litigation are not shared amongst the members. The entities with standing to sue, such as the Attorney General and civil organisations, support the entire cost.

6.3 What are the costs consequences, if any, where a member of the group/class discontinues their claim before the conclusion of the group/class action?

Please see the answer to question 6.2 above.

6.4 Do the courts manage the costs incurred by the parties e.g. by limiting the amount of costs recoverable or by imposing a 'cap' on costs? Are costs assessed by the court during and/or at the end of the proceedings?

No, the Brazilian courts do not control litigation costs.

7 FUNDING

7.1 Is public funding e.g. legal aid, available?

Yes, as mentioned in the answer to question 6.2 above, the entities with standing to sue, such as the Attorney General and other government bodies, support the litigation costs with public funding.

7.2 If so, are there any restrictions on the availability of public funding?

There are no specific restrictions.

7.3 Is funding allowed through conditional or contingency fees and, if so, on what conditions?

No, it is not allowed.

7.4 Is third party funding of claims permitted and, if so, on what basis may funding be provided?

Third party funding is not a common practice in Brazil and it may raise some ethical issues.

8 OTHER MECHANISMS

8.1 Can consumers' claims be assigned to a consumer association or representative body and brought by that body? If so, please outline the procedure.

Yes, consumer associations and other entities have standing to sue. Please see the answer to question 1.7 above. The procedure related to consumers' claims does not differ from other class action claims.

8.2 Can consumers' claims be brought by a professional commercial claimant which purchases the rights to individual claims in return for a share of the proceeds of the action? If so, please outline the procedure.

No. A professional commercial claimant does not have standing to sue.

8.3 Can criminal proceedings be used as a means of pursuing civil damages claims on behalf of a group or class?

If certain conduct is ruled by the Judiciary as a crime, the victim can use the criminal decision to pursue suffered damages. However, this is not a common practice in class actions.

8.4 Are alternative methods of dispute resolution available e.g. can the matter be referred to an Ombudsperson? Is mediation or arbitration available?

Parties are entitled to settle during the course of the class action, but there is no specific method for that, such as mediation. Arbitration is an alternative method of dispute resolution in Brazil, but it is not resorted for resolving class action claims.

8.5 Are statutory compensation schemes available e.g. for small claims?

Individuals can file claims before small claims courts. Such cases are simple and limited to a small amount. Class action claims cannot be filed before small claim courts.

8.6 What remedies are available where such alternative mechanisms are pursued e.g. injunctive/declaratory relief and/or monetary compensation?

All remedies are available but, in practical terms, the most common is monetary compensation.

9 OTHER MATTERS

9.1 Can claims be brought by residents from other jurisdictions? Are there rules to restrict 'forum shopping'?

Yes, residents from other jurisdictions can file claims in Brazil, but they are obliged to present a guarantee (such as a bond) to guarantee the payment of court costs and attorney fees in case they lose the claim.

9.2 Are there any changes in the law proposed to promote class/group actions in Brazil?

Since 2009, Brazil has been discussing changes to the class action law, but it does not seem that we will have a new legislation in the near future.

Originally published in the 2014 edition of The International Comparative Legal Guide To: Class & Group Actions by Global Legal Group Ltd., London, www.iclg.co.uk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.