UNIVERSITY of HOUSTON
Public Law and Legal Theory Series 2006-A-11
Class Actions in Brazil:
A Model for Civil Law Countries
Antonio Gidi
THE UNIVERSITY OF HOUSTON
LAW CENTER
This article initially appeared at 51 AM. J. COMP. L. 11 (2003)
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1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. DIFFERENCES BETWEEN AMERICAN AND BRAZILIAN LEGAL
SYSTEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.2 American System of Civil Procedure . . . . . . . . . . . . . .
2.3 Brazilian System of Civil Procedure . . . . . . . . . . . . . . .
2.4 Individual Actions and Class Actions . . . . . . . . . . . . . .
3. BRIEF HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.1 Pioneers in Civil Law Class Action . . . . . . . . . . . . . . . .
3.2 The Brazilian Class Action Movement . . . . . . . . . . . . .
3.3 Brazilian Class Action: A Generation Later . . . . . . .
3.4 The (Cloudy) Future of Class Action in Brazil . . . . .
4. THE CONCEPT OF CLASS ACTION . . . . . . . . . . . . . . . . . . . . . . . .
4.1 Class Action Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2 Class Action or Collective Action? . . . . . . . . . . . . . . . . .
4.3 Consent of Absentees: Opt In v. Opt Out . . . . . . . . . .
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ANTONIO GIDI
Class Actions in Brazil—
A Model for Civil Law Countries
TABLE
OF
CONTENTS
ANTONIO GIDI is Assistant Professor of Law, University of Detroit Mercy School of
Law. Adjunct Professor, University of Pennsylvania Law School. LL.B., Federal University of Bahia, Brazil; LL.M., Ph.D., PUC University, Sao Paulo, Brazil; S.J.D., University of Pennsylvania Law School. The author would like to thank Neil Andrews,
Stephen Burbank, Loı̈c Cadiet, Richard Cappalli, Edward Cooper, Angelo Dondi, Ada
P. Grinover, Geoffrey C. Hazard, Jr., Mary Kay Kane, Per Henrik Lindblom, Richard
Marcus, Barbosa Moreira, Keith Rosenn, Tom Rowe, and Gerhard Walter for their
thoughtful comments on an earlier draft of this article. By pointing to ambiguous
aspects of the text, they cleared my own thoughts, and made a profound contribution
to this paper. The normal assumption of sole personal fallibility applies. I gratefully
acknowledge the invaluable linguistic assistance provided by my former students
Matthew Duncan, Natalie Thingelstad, and Michael Stamp, University of Pennsylvania Law School.
An earlier version of this paper was delivered in July 22, 2000 at a symposium
sponsored by Duke and Geneva Universities entitled “Debates Over Group Litigation
in Comparative Perspective: What Can We Learn from Each Other?” I thank Professor Thomas Rowe for organizing the symposium, and for inviting me to participate.
See Rowe, “Debates Over Group Litigation in Comparative Perspective: What Can We
Learn From Each Other?” 11 Duke J.Comp. & Int’l L. 157 (2001). The author also
presented earlier versions to the faculties of the University of Miami School of Law,
Louisiana State University Law Center, Temple University Law School, Osgoode Hall
Law School, Detroit Mercy School of Law, and received several useful comments and
criticisms at each session. The manuscript was completed in September 2001.
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4.4 Innovations in Brazilian Class Actions . . . . . . . . . . . .
4.5 Shortcomings of Brazilian Class Actions . . . . . . . . . .
TYPES OF GROUP RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1 (In)Compatibility of Group Rights with Civil Law
Tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.2 Types of Group Rights Recognized in Brazil . . . . . . .
5.3 Transidividual and Indivisible Group Rights . . . . . .
5.4 Group Rights in Practice . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4.1 Diffuse Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4.2 Collective Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4.3 Homogeneous Individual Rights . . . . . . . . . . . . .
5.5 Legal Definition of Group Rights: The Need for
Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
COLLECTIVE STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.1 Civil Law Resistence to Collective Standing . . . . . . .
6.2 Choice of Class Representative . . . . . . . . . . . . . . . . . . . .
6.3 Brazilian Approach to Collective Standing . . . . . . . .
6.4 The Role of Associations in the Protection of Group
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.5 The Role of the Ministère Public in the Protection
of Group Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.6 Parens Patriae and the Associational Standing in
American Class Actions . . . . . . . . . . . . . . . . . . . . . . . . . . .
RES JUDICATA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.1 Comparative Overview of Res Judicata . . . . . . . . . . . .
7.2 Reconciling Res Judicata with Class Actions . . . . . .
7.3 Legislative Choices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.4 Brazilian Approach to Res Judicata in Class
Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.5 Res Judicata and Insufficient Evidence . . . . . . . . . . .
7.6 Rationale of the Brazilian Approach . . . . . . . . . . . . . . .
7.7 Comparative Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . .
LIS PENDENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.1 Two Types of Lis Pendens . . . . . . . . . . . . . . . . . . . . . . . . .
8.2 Identical Class Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.3 Class Action and Corresponding Individual
Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.1 Brazilian Consumer Code . . . . . . . . . . . . . . . . . . . . . . . . .
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1. INTRODUCTION
Despite initial skepticism and strong academic opposition, good
sense has suggested and experience proven, that class actions are
compatible with civil law systems. So far however, Quebec and Bra-
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zil are the only civil law systems that have developed a sophisticated
system of class action suits.1 In the rest of the world, the evolution
toward class actions has been somewhat hesitant despite concentrated efforts to further it, especially from academics.2
1. A number of civil-law systems already provide some form of limited judicial
protection for group rights, but they are not very well developed yet. See more recently Peru, Code of Civil Procedure (1993), arts. 4 and 82, Portugal, Code of Civil
Procedure (1995), art. 26-A and Actio Popularis Act (1995), Uruguay, Code of Civil
Procedure (1989), arts. 42, 220; Costa Rica, Project of General Code of Procedure
(2000), arts. 17.1, 49.4; “Texto del Anteprojecto del Codigo Procesal Civil Modelo Para
Iberoamerica [Model Code of Civil Procedure for Ibero-America],” 52 Revista de
Processo 134 (1988), arts. 53, 194. All these systems were directly or indirectly influenced by the Brazilian class action legislation.
Some other civil law systems provide or are discussing the possibility of developing some form of judicial protection for group rights. See generally Lucio Cabrera
Acevedo, “Past and Possible Future of the Collective Amparo Process [Amparo Collectivo],” 6 U.S.—Mex. L.J. 35 (1998); Eduardo Mac-Gregor, “El Acceso a la Justicia de
los Intereses de Grupo (Hacia un Juicio de Amparo Colectivo en México),” in Derecho
Procesal Constitucional 217 (Eduardo Mac-Gregor ed., 2001); Bruno Sassani, “Définition d’Intérêt Collectif Justifiant les Différentes Actions en Justice des Organisations
de Consommateurs dans les États Membres de la Communauté Européenne,” 5 Roma
e America 121 (1998); Louis Boré, La Défense des Intérêts Collectifs par les Associations Devant les Juridictions Administratives et Judiciaires 395-411 (1997); Wouter
Le R. de Vos, “Reflections on the Introduction of a Class Action in South Africa,” Tydskrif Vir Die Suid-Afrikaanse Reg 639 (1996); Augusto Morello, La Tutela de los Intereses Difusos en el Derecho Argentino (1999); id., “El Proceso Civil Colectivo,” JA-I 861
(1993); Germán Palacio, Las Acciones Populares en el Derecho Privado Colombiano
83-92 (1988); Isabelle Romy, Litiges de Masse (1997); Marc Thewes, “Les Actions en
Justice des Groupements en Droit Comparé,” 5 Annales du Droit Luxembourgeois 39
(1995); Kojima, “Protection of Diffuse, Fragmented and Collective Interests in Civil
Litigation,” in Perspectives on Civil Justice and ADR: Japan and the U.S.A 3 (1990);
Note, “Class Action Litigation in China,” 111 Harv. L. Rev. 1523 (1998).
Also well known are the current class action proposed legislation in Sweden, Norway and Finland. See generally Lindblom, “Group Actions and the Role of the Courts
– A European Perspective,” Forum Internationale, May 1996, at 1; Lindblom, “Individual Litigation and Mass Justice: A Swedish Perspective and Proposal on Group
Actions in Civil Procedure,” 45 Am. J. Comp. L. 805, 824 (1997); Nordh, “Group Actions in Sweden: Reflections on the Purpose of Civil Litigation, the Need for Reforms
and a Forthcoming Proposal,” 11 Duke J. Comp & Int’l L. 381 (2001). See also the
official Swedish Report Grupprättegång Del A-C (SOU 1994:151, 1400 pp., with a
summary in English.)
2. The trend in Europe is to accept class actions limited to injunctive relief in
specific branches of the law, such as unfair competition, environmental and consumer
protection, labor law, sex and race discrimination, abstract judicial control (i.e., independently of the existence of a “case or controversy”) of abusive standard clauses in
adhesion contracts. This is not because civil-law lawyers see civil procedure as inherently connected to substantive law, but rather because the pressing need for class
action in certain areas of litigation is more evident or politically desired than in
others. It is submitted, however, that a connection between class actions and substantive law is not only misguided but also counter productive. A paradigmatic example is the following excerpt taken from Approximation of Judiciary Law in the
European Union 52 (Marcel Storme ed., 1994) (“Adequate protection of the consumer,
and of the environment, postulates a European judicial system for dealing with complaints in these sectors. For instance, class action in all Member States would be a
particularly valuable instrument.”) See also Storme, “The Legal Authority of the European Community to Intervene in the Matter of Group Actions for Consumers and
the Choice of Legal Instrumentation,” in Group Actions and Consumer Protection 179,
185 and 195 (Thierry Bourgoignie ed., 1992) (arguing that “in the given circumstances
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This paper briefly and critically describes the Brazilian system of
class action, compares it with its American counterpart, and places it
in the wide context of other system’s approaches to class action litigation. Adapting to the civil-law tradition and the peculiarities of local
culture and needs, the Brazilian class action legislation is a unique
regulation addressing standing to sue, types of group rights, res judicata, lis pendens, and several other important aspects. The Brazilian
experience demonstrates that civil law systems can employ a class
suit procedure but cannot transplant the American class action
model into their systems without substantial adaptation. This is
what I call “responsible transplant.”
The main objective of this paper is to present the Brazilian system of class actions to an international audience, “translating” it into
a framework that can be understood across legal and linguistic
boundaries. In comparative scholarship, however, it is impossible to
group actions are actually considered as the best solution in Europe.. . .[i]t is clear
that the launching of a European-scale group action ought to be one of the main topics
in the context of a [model] European code of civil procedure”). Compare Koch, “Class
and Public Interest Actions in German Law,” 5 C.J.Q. 66, 77 (1986); id., “Group and
Representative Actions in West German Procedure,” in German National Reports in
Civil Law Matters for the XIIIth Congress of Comparative Law in Montréal 27 (1990)
(arguing that different needs in specific fields of law have generated quite different
solutions in the German system); Lindblom, “Group Actions. A Study of the AngloAmerican Class Action Suit from a Swedish Perspective,” in Group Actions and Consumer Protection 3, 36 (Thierry Bourgoignie ed., 1992) (arguing that “it is particularly
important to present the question in the context of the functional need for the action
in every area of substantive law, rather than in terms of general theories of the action’s intrinsic merits and functions. . . [A] new group action [should] be construed in
terms conducive to the attainment of substantive policies in each area of law.”); Walter, “Mass Tort Litigation In Germany and Switzerland,” 11 Duke J. Comp. Int’l L.
369 (2001). This trend was predicted in 1979 by Vittorio Denti. See Denti, “Diritto
Comparato e Scienza del Processo,” Riv. Dir. Proc 334, 353-54 (1979).
See generally Directive from the Conseil des Communautés Européennes and
from the European Parliament on unfair terms in consumer contracts, April 5, 1999
(JCP 1993, Éd. G., II, 66199); Directive 98/27/EC of the European Parliament and of
the Council of 19 May 1998 on injunctions for the protection of consumer’s interests;
the German statutes on standard terms of contracts (Law of Dec. 27, 1973, No. 731193, [1973] J.O. 14139) and unfair competition; the Livre Vert (Green Book) “L’Accès
des Consommateurs à la Justice,” November 16, 1996, COM(93) 576 final; the French
Consumer Code (1993); the French Loi Royer (1973); Jean Calais-Auloy, Proposition
pour un Code de la Consommation [French Consumer Code Project], La Documentation Française (1990); Council of Europe, Recommendation R(81)2; La Protection
Juridique des Intérêts Collectifs des Consommateurs par des Organismes de Consommateurs (1981); the Italian statute (legge 30 luglio 1998, n. 281); the Spanish Ley 1/
2000 de Enjuiciamiento Civil, arts. 6.1.7, 11, 15, 78.4, 221, 519; the Spanish statute
Ley 7/1998, of april 13 (Ley sobre Condiciones Generales de la Contratación). See generally José Lebre de Freitas, Os Meios Processuais à Disposição dos Pleiteantes em
Sede de Condições Gerais dos Contratos (1995); José Lebre de Freitas, “A Acção Popular ao Serviço do Ambiente,” 75 Anos da Coimbra Editora 797 (1998); Ena-Marzis
Banons “L’azione collectiva. Aspetti comparatistici di un nuova tipo di azione a tutela
del consumatore,” Rivista di Diritto Civile 292 (1980). Calais-Auloy, “Les Actions en
Justice des Associations de Consommateurs,” Recueil Dalloz Sirey 193 (1988); Micklitz, “Efficacité Internationale de L’Action en Supression des Clauses Abusives: Le
Point de Vue Allemand,” 52 R.I.D.C. 867 (2000).
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write for an undetermined audience. It is, therefore, necessary to
choose a specific legal system as the frame of reference; this paper
will use the American class action for this purpose. Nevertheless, the
lessons to be learned, both positive and negative, are applicable to
both American and civil lawyers alike.
2. DIFFERENCES BETWEEN AMERICAN
BRAZILIAN LEGAL SYSTEMS
AND
2.1 Introduction
Before considering the technical aspects of the Brazilian class action one must first reflect on some of the basic societal differences
between Brazil and the United States. Brazil is a country of sharp
contrasts: it is the eighth largest world economy in terms of Gross
Domestic Product, but the eightieth in terms of per capita income.
Brazil is a rich country by developing nation’s standards, yet a large
portion of its population remains poor and undereducated.
The Brazilian population is approximately two thirds that of the
United States, but Brazil’s Gross Domestic Product (GDP) is only
about ten percent of the U.S. GDP. Even the richest Brazilian companies cannot be thought of as “deep pockets” in the American sense
of the phrase. The status of technological development in Brazil lags
almost a generation behind that in the United States. Brazil is thus
confronted with dramatically different problems than those faced by
the United States. Consequently, the Brazilian national legislature
has devised a system of remedies and solutions for the class action
problem that reflect the specific needs faced by the society.
Some civil law lawyers have a negative opinion of American class
actions, typically arguing that class actions are expensive and wasteful, that they generate high attorneys’ fees, huge compensatory and
punitive damage awards, and allow courts to create public policy and
usurp the legislative function of societal regulation. What the critics
fail to understand is that these aspects are not necessarily related to
class-action litigation, but to the peculiarities of American legal culture, civil procedure and the constitutional role of its judiciary.
These preculiarities reflect political, ideological, constitutional, structural, and technical differences between the systems that cannot be
disregarded if one wants to approach the topic of class action suits
from a comparative perspective.
Brazilian and American procedures differ in ways that transcend
the oft-cited differences between judge-centered and party-centered
methods of receiving evidence.3 In order to prevent these systemic
3. See generally Hazard, Jr., Taruffo, Stürner & Gidi, “Principles and Rules of
Transnational Civil Procedure,” 33 NYU J. of Int’l L. & Pol. 769 (2001) (providing a
concrete attempt to overcome the differences between civil and common law proce-
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differences from obfuscating consideration of class action, it is necessary to isolate the essential elements of a class action from the general cultural and legal background and identify the relevant
differences in individual litigation between both systems.4
2.2 American System of Civil Procedure
American civil procedure (as well as substantive law) is a practical technique for processing specific legal disputes.5 Functioning
within an extremely pragmatic and fact-driven regime, it is necessarily a very flexible and complex system. Because rules of procedure
are often written in broad language and place only modest limits on
the court’s power or creativity, the American judge has considerable
discretion in decisionmaking. Moreover, the American judge also
wields extensive control over the proceedings, parties, attorneys, and
third parties.
The American judiciary has a broad social and political role.
Judges often create substantive public policy and social regulation
through precedents announced in the decision of private litigation.
Although the judge plays a central role in the American legal system,
the systemic effects of a jury system must also be considered in order
to understand its technical procedural rules.
American civil procedure evolved in tandem with the jury system, which necessarily anterjects an element of amateur legal administration and consequently a degree of unpredicability and often high
damage awards. Jury trial and concentrated final hearing also require extensive pre-trial preparation in order to avoid surprise and
delay at trial. The structural division of proceedings into pre-trial
and trial phases allowed development of a system of discovery, which,
dure); Approximation of Judiciary Law in the European Union (Marcel Storme ed.,
1994), (providing an attempt to approximate civil procedure within the European
Union). For a broader and more abstract academic comparison that goes beyond the
traditional dichotomy between common law and civil law, See generally Mirjan
Damas̆ka, The Faces of Justice and State Authority: A Comparative Approach to the
Legal Process (1986) (analyzing the relationship between politics and legal process
and demonstrating how the political ideology of the society and the structure and
function of government may determine the form of procedure).
4. Gerry Bates was well aware of this problem when he proposed to use the
American experience “as a guide only” to the introduction of class actions into English
law. See Bates, “A Case for the Introduction of Class Actions Into English Law,” 130
New L. J. 560, 561 (1980) (“[W]e must be careful not to draw too many comparisons
with the development of the class action procedures in America. The United States
system is based on some concepts which are totally foreign to our way of thinking. . .”).
Of course, one must also be careful not to reject new ideas merely because they are
foreign to the usual way of thinking.
5. For a comparative analysis of American civil procedure, See generally, Geoffrey C. Hazard, Jr. & Michele Taruffo, American Civil Procedure (1993); Angelo
Dondi, Introduzione della Causa e Strategia di Difesa: Il Modello Statunitense (1991);
Michele Taruffo, Il Processo Civile “Adversary” nell’Esperienza Americana (1979); The
Grand Design of America’s Justice System (Takeshi Kojima et al. eds., 1995).
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in turn, justified the relaxation of the rules of pleading. At the same
time, generous discovery allows a strict application of rules of preclusion. Discovery has come to play a predominant role in American legal proceedings. Discovery, however, has a double edge: it facilitates
truth-finding, but can also result in burdensome and expensive proceedings in complex cases. The substantive law provides for high
awards through punitive damages, damages for pain and suffering,
and other awards not usually granted in civil law systems. These
factors in aggregate explain, in part, America’s litigiousness.
American lawyers are highly paid, generally by the hour and/or
with a high proportion of the award. High attorney compensation,
together with high jury awards, contingency-fee agreements, and the
general American rule that bars fee-shifting (with important statutory one-way exceptions in public interest litigation,) have promoted
emergence of an “entrepreneurial bar.” This practice increases access
to justice for some types of claims, but it also generates related ethical problems and stimulates more litigation, as plaintiffs need not expend the costs associated with the proceeding in order to make a
large recovery.
Trials may be dramatic, but the reality is that most cases settle.
The standard of proof in civil actions is the “preponderance of the
evidence,” which makes it comparatively easier for plaintiffs to satisfy their burden of proof than the civil-law standard. From a comparative perspective, the system as a whole is notably plaintifforiented.6
Finally, the American political culture has long supported litigation as a positive way of regulating society and changing the status
quo. This approach contributes to a flexible legal climate without the
delays of legislation, but the threat of liability may lead to overdeterrence of socially useful activities.
6. It is of little comparative relevance how Americans perceive their own system.
As a matter of fact, even if they perceived it as defendant-oriented in some types of
cases, this would not change the fact that it is, by far, more plaintiff friendly in all
types of cases than civil-law systems. See, e.g., Clermont & Eisenberg, “Trial by Jury
or Judge: Transcending Empiricism,” 77 Cornell L. Rev. 1124 (1992); Vidmar, “The
Performance of the American Civil Jury: An Empirical Perspective,” 40 Arizona L.
Rev. 849 (1998); Clermont & Eisenberg, “Appeal from Jury or Judge Trial: Defendants’ Advantage,” Am. L & Econ. Rev. (2001, forthcoming) (arguing that defendants
win some types of cases more frequently than plaintiffs.) In a comparative analysis,
however, these data mean only that plaintiffs in the United States can afford to take
more risks, bringing cases of doubtful merit or based on novel theories of law. If the
plaintiff’s case is strong, the dispute is settled. Since courthouse doors are much narrower in civil-law countries (because of fee-shifting rule, lack of contingency fee, discovery, high awards, entrepreneurial bar, etc) only those cases with a high probability
of success are brought to court. See generally Rolf Stürner, Why Are Europeans
Afraid to Litigate in the United States (2001) (listing some of the reasons why European defendants fear American litigation).
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2.3 Brazilian System of Civil Procedure7
Civil law procedure in general, and particularly Brazilian civil
procedure, differs from American procedure in several important
ways.8 Civil law procedure is a rigid and formalistic system. Rules of
procedure are written in elaborate detail and leave little room for judicial discretion in procedural matters.9 Under the presupposition
that codes are coherent and exhaustive, court decisions are made
with strict reference to rules and principles, with policy considerations and “external values” left to the legislature.10 As a result, the
7. Although Brazilian procedure has peculiarities within the civil law tradition,
most of the examples of discrepancies between American and Brazilian civil
procedure also apply to European civil law in general. For the sake of simplicity,
however, this paper focuses primarily upon Brazilian civil procedure.
8. For a comparative analysis of Brazilian civil procedure, See generally Rosenn,
“Civil Procedure in Brazil,” 34 Am. J. Comp. L. 487 (1986); Moreira, “Brazilian Civil
Procedure: An Overview,” in A Panorama of Brazilian Law 183 (Jacob Dolinger and
Keith Rosenn eds., 1992); Bermudes, “Administration of Civil Justice in Brazil,” in
Civil Justice in Crisis: Comparative Perspectives of Civil Procedure 347 (Adrian Zuckerman ed., 1999). See also Rosenn, “Brazil’s Legal Culture: The Jeito Revisited,” 1
Fla. Int’l L.J. 1 (1984) (commenting on Brazilian legal culture), Thomas Flory, Judge
and Jury in Imperial Brazil (1981) (commenting on Brazil’s legal history), Stuart
Schwartz, Sovereignty and Society in Colonial Brazil. The High Court of Bahia and
its Judges (1973) (commenting on Brazil’s legal history).
9. This is not to be interpreted as meaning that the civil-law judge mechanically
applies written rules to facts. Rather, it means that the rules of procedure afford the
judge little or no discretion to adapt the proceeding to the needs of each case. The
existence of discretionary judicial powers is hotly debated in Brazil. See generally
Barbosa Moreira, “Regras de Experiência e Conceitos Juridicamente Indeterminados,” in Temas de Direito Processual: Segunda Série 65-66 (1988); Arruda
Alvim, A Argüição de Relevância no Recurso Extraordinário 78-85 (1988); Calmon de
Passos, “Mandado de Segurança Coletivo,” Mandado de Injunção, Habeas Data—Constituição e Processo 46-52 (1989); Teresa Arruda Alvim, Mandado de Segurança Contra Ato Judicial 77-90 (1989); id., Agravo de Instrumento 142-52 (1991); id., Medida
Cautelar, Mandado de Segurança e Ato Judicial 106-34 (1992), id., “Limites à
Chamada ‘Discricionariedade’ Judicial,” 96 RDP 157-66 (1988), id., Controle das
Decisões Judiciais por Meio de Recursos de Estrito Direito e Ação Rescisória (2001);
Nelson Nery Junior, Código Brasileiro de Defesa do Consumidor Comentado pelos
Autores do Anteprojeto 884-85 (2000); Marcus Vinı́cius de Abreu Sampaio, O Poder
Geral de Cautela do Juiz 98-114 (1993).
The topic was recently discussed in the Colloquium of the International Association of Procedural Law organized in Ghent. See Colloquium: Discretionary Power of
the Judge: Limits and Control (International Ass’n of Procedural Law ed., Apr. 25-28,
2000). Compare the rigid civil-law approach in the reports presented by Burkhard
Hess, José Roberto Bedaque, Karen Broeckx, Ignacio Dı́ez-Picazo with the more flexible approach of common-law systems, in the report presented by Neil Andrews.
10. See Ewald, “Comparative Jurisprudence (I): What Was it Like to Try a Rat?,”
143 U. Pa. L. Rev. 1889, 1973 (1995) (arguing that in the civil-law tradition “[t]here is
a wide-spread disinclination to speculate about questions of . . . public policy—a feeling that such questions are not the province of lawyers but of the legislature.”). This
is one of the reasons why the economic analysis of law has had such little importance
in civil law legal science. But see Mattei & Pardolesi, “Law and Economics in Civil
Law Countries: A Comparative Approach,” 11 Int’l L. & Econ. 265 (1991) (arguing
that “there are no reasons against a successful transplantation of the economic analysis of law . . . in civil law countries.”) In any event, it seems undeniable that the role
of the economic analysis in a civil law country would be much more extensive in the
legislature than in the judicial process. See Kirchner, “The Difficult Reception of Law
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law is relatively simple and straightforward and leaves little room for
judicial precedent. Civil law civil procedure is more systematic, logical, structured and “scientific” than American civil procedure, and it
favors consistency and specificity rather than flexibility and
generality.
Consequently, Brazilian procedure, like many other civil-law jurisdictions, tends to follow an abstract and bureaucratic procedure,
distant from reality and from the needs of specific cases. Its practice
is poor with regard to evidence, conducted mostly in written form,
giving precedence to written evidence. There is little or no opportunity for direct examination of witnesses by the parties’ lawyers, let
alone cross-examination. Witness testimony is afforded little evidentiary value and the testimony of the parties is usually not considered.
Indeed, in most civil-law systems the party is not considered a true
witness, does not give evidence under oath, and cannot call herself to
testify.
A common misconception among common law lawyers is the notion that the civil law judge exercises great power over the conduct of
proceedings.11 On the contrary, civil-law codes of civil procedure
largely dictates the proceedings to be followed and neither the judge
nor the parties have much room to deviate from it.12
The civil law judge plays a substantial role in the receipt of evidence, but nevertheless has little power over the behaviour of the attorneys, parties or third parties. In addition, the judiciary in civil law
systems has, comparatively, a limited social and political role and, in
principle, does not create public policy or social regulation through
the litigation of private controversies.
Brazilian society is not very litigious simply because it has lost
hope on the legal system. The rate of settlement of pending cases is
considerably lower than in common law jurisdictions. In practice,
most Brazilian proceedings usually proceed past full trial and judgment to appeal on matters of both law and fact. This is a serious
cause of delays. Punitive damages, damages for pain and suffering,
and many other types of damages are usually unavailable to plainand Economics in Germany,” 11 Int’l L. & Econ. 277, 282 (1991) (arguing that “[i]f a
social science approach seeks entry into a legal system, the legislature is the natural
door.”)
11. It is commonplace, for example, to associate the new “managerial powers” of
common-law judges with the powers of civil law judges on the direction of civil proceedings. Civil-law judges, however, do not “manage” proceedings in the common-law
sense.
12. See Rudolf B. Schlesinger, Hans W. Baade, Peter Herzog & Edward M. Wise,
Comparative Law 263 (1998) (noting that civil-law codes are intended to be comprehensive statements of the law and adding that “[t]he feature of comprehensiveness
[inherent to any codification] is particularly striking in the procedural codes. . . The
adjective codes . . . are meant to be essentially all-inclusive statements of judicial
powers, remedies and procedural devices.”)
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tiffs in civil law systems. Moreover, career judges, being conservative
civil servants, are more likely to award modest amounts of damages.
There is also little possibility for contingency-fee agreements; in general, plaintiffs are responsible for the payment of their own attorney’s
fees if the case is lost. Under the Brazilian fee-shifting rule, the losing party is responsible for the expenses and attorney’s fees of the
winner. These rules offer a different system of economic incentives
than in the United States and provide few opportunities for the development of a strong, entrepreneurial plaintiff bar.
Regarding the more technical aspects of civil law procedure, Brazilian law has very limited discovery, and no compulsory disclosure of
adverse facts and evidence.13 Each party must provide in court the
evidence for its own contentions, without “help” from the opposing
party. Even though this aspect of procedure is not the subject of academic legal analysis, in practice, Brazilian law has a stricter standard of proof than American law, similar to the “clear and
convincing” standard at common law. As a whole, the system is restrictive with respect to the plaintiffs; it is a defendant-oriented system that weights preservation of the status quo equally with doing
justice for the parties. This situation generally results in under-deterrence of socially harmful activities.
In contrast to the flexible procedural laws of the United States,
Brazilian procedure does not offer realistic alternative devices to
class actions such as consolidation, test cases, joint trial, collateral
estoppel, stare decisis, and liberal rules for joinder of parties and intervention. Lack of alternative devices for the remedy of mass
wrongs in court emphasizes the importance of the class action device
in the Brazilian system.14
2.4 Individual Actions and Class Actions
The foregoing analysis is not an attempt to encapsulate in a few
paragraphs the differences of procedure in common law and civil law
countries. Rather, it is a brief description of these aspects of “individual civil procedure” (i.e., civil procedure for individual actions and individualized relief) directly relevant to the question of class action
procedure. Indeed, the class action law of any given country should
13. A procedural rule prescribing automatic disclosure of adverse information and
evidence was in force in the United States from 1993 to 2000. Unfortunately, this
rule was abolished. See Fed. R. Civ. P. 26.
14. Compare Watson, “Class Actions: The Canadian Experience,” 11 Duke J.
Comp. & Int’l L. 269 (2001) (discussing the reasons for a system to adopt a class action system and arguing that non-class solutions available in Canada are not really
tailored to widespread injury claims) with Walter, “Mass Tort Litigation In Germany
and Switzerland,” 11 Duke J. Comp. Int’l L. 369 (2001) (arguing that it is possible to
solve widespread injury claims without adopting the system of class actions). The
contradiction between the two scholars is surprising because the Canadian law is
more flexible than the German and Swiss laws.
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be understood by reference to the procedure adopted for regular single-plaintiff actions, which is applied to any litigation in the absence
of specific rules to the contrary.
When comparing class action rules, one must distinguish between the specific characteristics of the class action procedure (collective civil procedure or class litigation) and the regular system of civil
procedure that lies in the background (individual civil procedure or
single-party litigation.) To conflate the two would be to mistake the
trees for the forest. For example, it is arguably true in the United
States that class suits are inherently complex and expensive. It is
not correct, however, to say that, in the context of a civil law system,
class action proceedings are necessarily expensive and burdensome
for the defendant, or that they permit high recoveries and large legal
fee awards. These effects are the result of the background American
legal system as applied to class action procedure. The results in a
particular country therefore depend heavily on the peculiarities of
each nation’s system of substantive law and individual civil procedure, as well as ideological, cultural, political and philosophical attitudes towards law.
Class action litigation in Brazil is only marginally more expensive than individual actions, and the risks to defendants, as well as
the verdicts, are proportional to the actual damage suffered by each
class member multiplied by the number of members. The “negative”
characteristics of class action procedure in the United States do not
arise in Brazil because of the legal background in which class action
litigation arises. However, if the Brazilian class action statute were
to be applied in the United States, it would result in expensive proceedings because the indigenous American system of civil procedure
would generate extensive and expensive discovery, the economic incentives of the legal profession would generate large attorney’s fees,
and the substantive law and jury trial would permit greater damage
awards (or settlements.)
Although the results of American and Brazilian class action are
dissimilar, as will be more fully developed below, there are limited
substantial differences between Brazilian and American class action
law as a procedural device. The most profound distinctions between
class action proceedings in Brazil and in the United States stem from
the differences in the background rules of individual procedure and
substantive law governing civil litigation generally, not in the class
action law itself.
Once initial antagonism against class actions is overcome in civil
law jurisdictions, there is a strong indication that civil-law class actions will merely extend the local individual civil procedure rather
than incorporate all the various features of the American civil procedure. The civil-law class action proceeding is likely to fit in well with
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approaches, practices, habits, and attitudes peculiar to a civil-law
system. There is thus no reason to fear class litigation in any country.15 If individual litigation in a given system is cheap, simple, efficient, just and predictable, class litigation within the system will be
equally cheap, simple, efficient, just, and predictable.16
Importing class action law does not necessarily mean importing
American-style litigation. The transplant can be “surgically controlled.” There is no reason to believe that the whole “Yankee package” would invade a foreign system through the window opened by
the class action device.17 Contrary to the traditional myth, class actions can succeed in the absence of discovery, contingent fees, the
American cost rule, an entrepreneurial bar, and powerful and active
judges, at least as effectively as can traditional individual litigation.18 It is revealing that the American Rule 23 does not even refer
to discovery, attorney’s fees, the right to jury trial, an entrepreneurial
bar, or treble or punitive damages.19 In order to create a class action
15. But see Faulk, “Armageddon Through Aggregation? The Use and Abuse of
Class Actions in International Dispute Resolution,” Class Action Litigation Report,
May 25, 2001, p. 362 (arguing that there are plenty of reasons to fear adoption of class
action in civil-law countries).
16. See Lindblom & Watson, “Complex Litigation – A Comparative Perspective,”
12 C. J. Q. 33, 34 (1993) (arguing that complex litigation is a unique American phenomenon, related to factors unique to that country). Although the authors consider
that complex litigation is evolving in some civil law systems, it is doubtful that current civil-law procedure would ever attain the level of complexity of a common-law
proceeding because of inflexible procedural rules, especially regarding pleadings, intervention, and absence of discovery.
17. See Taruffo, “Some Remarks on Group Litigation in Comparative Perspective,” 11 Duke J. Comp. & Int’l L. 405 (2001) (arguing that “[m]any lawyers and scholars, even in so-called “advanced” countries, are still quite content with their cultural
parochialism and their substantial ignorance of what is going on beyond their national borders . . . [T]he European rejection of class actions — essentially based upon
ignorance — has usually been justified by the necessity of preventing such a monster
from penetrating the quiet European legal gardens.”)
18. See generally, Lindblom, “Group Actions. A Study of the Anglo-American
Class Action Suit from a Swedish Perspective,” in Group Actions and Consumer Protection 3, 15-6 (Thierry Bourgoignie ed., 1992) (listing some of the numerous myths
about American class action litigation.)
19. For example, if there is no discovery and attorneys’ fees are limited, the costs
of proceedings are generally lower, and the need and incentives for an entrepreneurial bar is considerably reduced. If the legislation gives standing to associations or governmental agencies, instead of class members, there is no compelling need
for contingent fees. In a system with low attorney’s fees and low costs, the American
cost rule loses its importance as a tool for access to justice. In addition, in a system of
detailed and compulsory procedural rules, with little room for discretion, there is no
need for a powerful and active judge.
If there is discovery, however, or the proceeding is otherwise expensive, the legislature may create a special fund to finance meritorious class litigation. See, e.g., Quebec’s Fonds d’aide au recours collectif (CODE OF CIVIL PROCEDURE, art. 1050.1);
Ontario’s “Class proceedings fund” (S.O. 1992, c. 7); South Africa’s proposed “Public
Interest Action and Class Action Fund,” arts. 8, 9, and 10. See South African Law
Commission, The Recognition of a Class Action in South African Law 45-52 (1995);
Wouter de Vos, “Reflexions on the Introduction of a class action in South Africa,” Tydskrif Vir Die Suid-Afrikaanse Reg 639, 650-52 (1996). See also Lord Woolf, Access to
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that is both effective and adapted to the peculiarities of the civil law
system, one must consider the needs and traditions of that system.20
This “responsible transplant” was the approach adopted by the Brazilian legislature.
3. BRIEF HISTORY
3.1 Pioneers in Civil Law Class Action
The Anglo-American class action traces its historic origins to the
ancient bills in equity.21 In contrast, in civil law countries, class acJustice. Final Report 239-42 (1996) (noting that “other common law jurisdictions with
a cost-shifting rule have not changed it when introducing special rules for [class action]”, and approving the creation in England of a “Contingency legal aid fund”). The
British Columbia Class Proceedings Act, however, followed a recommendation from
the Ontario Law Reform Commission and adopted the “American rule” on attorney
fees; neither party is liable for costs in the event of loss, with some exceptions
(R.S.B.C. 1996 C.50, S.37). See III Report on Class Action 704-09 (1982). See Watson,
“Class Actions: The Canadian Experience,” 11 Duke J. Comp & Int’l L. 269 (2001)
(discussing the perplexities of a class action in a fee-shifting system). But see Goldstein, “The Utility of the Comparative Perspective in Understanding, Analyzing and
Reforming Procedural Law,” 33 Comp. L. Rev. 87, 142-46 (1999) (noting that in Israel,
against the expectation of all, an entrepreneurial legal profession is using class actions at an increasing pace.)
This does not minimize the importance of money in litigation. Funding and adequate economic incentives, however, are essential for the success of any legal claim in
any legal system; class and public interest litigation are specially sensitive to these
factors. See generally Thomas D. Rowe, Jr., Shift Happens: Pressure on Foreign Attorney-Fee Paradigms from Class Actions, unpublished manuscript on file with author; Charles Silver, “Class Actions - Representative Proceedings,” in V Encyclopedia
of Law and Economics 194 (Bouckaert and Geest eds., 2000); Schaefer, “The Bundling
of Similar Interests in Litigation. The Incentives for Class Action and Legal Actions
Taken by Associations,” 9 European Journal of Law and Economics 183 (2000)
(presenting and economic analysis of class actions); Ontario Law Reform Comission,
III Report on Class Actions 647-752 (1982). As will be seen below, the Brazilian solution to this problem was the adoption of a one-way “American rule,” and a waiver of
legal costs. See Section 4.4, “Innovations in Brazilian Class Actions.”
20. See Per Henrik Lindblom, Grupptalan. Det Anglo-Amerikanska Class Actioninstitutet ur Svenskt Perspektiv [Group Actions. The Anglo-American Class Action
Suit from a Swedish Perspective] 730-31 (1989) (arguing that it is unlikely that the
American model for class action would best suit the Swedish situation. “It is more
likely that a combination of rules on class actions, public actions, and organizational
actions can form the basis for one or more Swedish group actions that are better
suited to the needs and circumstances of our country.”) A summary in English of this
book is published in Lindblom, “Group Actions. A Study of the Anglo-American Class
Action Suit From a Swedish Perspective,” in Group Actions and Consumer Protection
7-17 (Thierry Bourgoignie ed., 1992).
21. See generally Hazard, Jr., “Indispensable Party: The Historical Origin of a
Procedural Phantom,” 61 Colum. L. Rev. 1254 (1961); Marcin, “Searching for the Origin of the Class Action,” 23 Cath. U. L. Rev. 515 (1974); Stephen Yeazell, From Medieval Group Litigation to the Modern Class Action 24-31 (1987) (discussing examples of
class or representative action in England in the 12th century, where social groups
litigated in court represented by their leaders); Bone, “Personal and Impersonal Litigative Forms: Reconceiving the History of Adjudicative Representation,” 70 Boston
U. L. Rev. 213 (1990); Andrea Giussani, L’Evoluzione Storica delle “Class Actions”
(1992); Rowe, Jr., “A Distant Mirror: The Bill of Peace in Early American Mass Torts
and Its Implications for Modern Class Actions,” 39 Ariz. L. Rev. 711 (1997).
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tions are a more recent development. The Brazilian class action
traces its origins to academic papers delivered in Italy in the 1970s,
when a group of Italian scholars began studying American class actions and publishing articles and books on the subject. The most influential of the Italian works in Brazil were written by Mauro
Cappelletti, Michele Taruffo, and Vincenzo Vigoriti.22 The Italian acThe contemporary doctrine of class action began with the publication of Kalven &
Rosenfield, “The Contemporary Function of the Class Suit,” 8 U. Chi. L. Rev. 684
(1941). In practice, however, only with the 1966 amendments to Rule 23 did class
actions became such a powerful procedural tool for the protection of group rights.
This explains why European comparatists did not become interested in American
class action until the 70’s. But see Miller, “Of Frankenstein Monsters and Shining
Knights: Myth, Reality, and the ‘Class Action problem’,” 92 Harv. L. Rev. 664 (1979)
(arguing that the amendment of technical aspects of Rule 23 were less important than
the evolution in society and in substantive law). This last comment, however, undermines the importance of procedure in the development of the substantive law. Comparative analysis demonstrates that the class action suit did not develop in any
country without specific written rules.
It is important to open a parenthesis here to mention that Carl Wheaton proposed a class action statute or rule four years prior to the enactment of Federal Rule
of Civil Procedure 23 in 1938. Wheaton’s proposed rule was both simpler than, and
philosophically and technically superior to, James Moore’s proposal, which was ultimately adopted by the rulemaker. Had Wheaton’s proposal been adopted back then,
the future of the class action in the United Stated would have been much healthier
and the 1966 revision of Rule 23, absolutely unnecessary. See Wheaton, “Representative Suits Involving Numerous Litigants,” 19 Cornell L. Q. 399, 441 (1934).
22. Michele Taruffo seems to have been the first civil law scholar to write about
class action, “I Limiti Soggettivi del Giudicato e le Class Actions,” 24 Rivista di Diritto
Processuale 618 (1969), followed by Mauro Cappelletti, “Formazioni Sociali e Interessi
di Gruppo Davanti alla Giustizia Civile,” 30 Rivista di Diritto Processuale 361 (1975);
id., “La Protection d’Intérêts Collectifs et de Groupe dans le Procès Civil (Métamorphoses de la Procédure Civile),” 27 R.I.D.C. 571 (1975); Kötz, “Klagen Privater im
Öffentlichen Interesse,” in Klagen Privater im Öffentlichen Interesse 69 (Adolf
Homburger and Hein Kötz eds., 1975); Le Azioni a Tutela Degli Interessi Collettivi
(Vittorio Denti ed., 1976); La Tutela degli Interessi Diffusi nel Diritto Comparato
(Antonio Gambaro ed., 1976); Vincenzo Vigoriti, Interessi Collettivi e Processo—la
Legittimazione ad Agire (1979); The Florence Access-to-Justice Project (Mauro Cappelletti et al. eds., 1978-9).
In the last quarter of the 20th century, three important international congresses
were dedicated to the subject of class actions in a comparative perspective; one major
congress for each decade. Two of them were organized by the International Academy
of Comparative Law (1974 and 1990) and the other by the International Association of
Procedural Law (1983). The importance of these institutions, as well as the prestige
of the national and general reporters, assured that the subject would receive worldwide attention and influence many civil and common-law scholars. See Cappelletti,
“Governmental and Private Advocates for the Public Interest in Civil Litigation: A
Comparative Study,” in II Access to Justice. Promising Institutions 773-75 (Cappelletti & Weisner ed., 1979), also published in slightly different versions in 73 Mich. L.
Rev. 793 (1975) and in Mauro Cappelletti & J. A. Jolowicz, Public Interest Parties and
the Active Role of the Judge in Civil Litigation 23-24 (1975); Cappelletti & Garth,
“Finding an Appropriate Compromise: A Comparative Study of Individualistic Models
and Group Rights in Civil Procedure,” in Effectiveness of Judicial Protection and Constitutional Order. The General Reports for the VIIth International Congress on Procedural Law. Würzburg. 117 (Walter Habscheid ed., 1983), also published in 2 C.J.Q.
111 (1983); Garth, “Group Actions in Civil Procedure: Class Actions, Public Actions,
Parens Patriae and Organization Actions,” in XIIIth International Congress. Montreal
205 (1992). The General Reports as well as the numerous national reports are still
influential to this day.
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ademic movement was warmly received in Brazil by important legal
scholars. Shortly thereafter, José Carlos Barbosa Moreira, Ada Pellegrini Grinover, and Waldemar Mariz Oliveira Júnior, three of the
most distinguished Brazilian jurists, published important articles on
class action suits.23 The reputation of these jurists and their continuous research and lobbying efforts, as well as the undeniable importance of the device, contributed to the introduction of the class action
in the Brazilian system. The intellectual support of reputable scholars unlocked the doors of the Brazilian system to class actions.24 After that, it was a matter of time before the class action more fully
developed in Brazil. In the space of 15 years a sophisticated body of
law and doctrine had developed. By contrast, in Italy, the movement
was dismissed as an eccentric fancy of “left-wing” scholars and lost its
momentum.25
Following the tradition of holding one major comparative meeting in each decade,
in July 2000 Duke University and the University of Geneva organized a symposium
entitled Debates Over Group Litigation in Comparative Perspective: What Can We
Learn from Each Other? See Rowe, “Debates Over Group Litigation in Comparative
Perspective: What Can We Learn From Each Other?,” 11 Duke J. Comp. & Int’l L. 154
(2001). Chances are that before the end of this decade another major international
conference will revisit the subject.
23. See Barbosa Moreira, “A Ação Popular do Direito Brasileiro como Instrumento
de Tutela Jurisdicional dos Chamados Interesses Difusos,” in Temas de Direito
Processual. Terceira Série (1977); Grinover, “A Tutela Jurisdicional dos Interesses
Difusos,” 14 Revista dos Tribunais 25 (1979); Waldemar Mariz, “Tutela Jurisdicional
dos Interesses Coletivos,” 2 Estudos Sobre o Amanhã (1978).
24. In the civil law tradition, scholars, not judges, are the pre-eminent figures of
the legal profession. They are the central figures of the legal system: the ones who
shape and improve the law. See generally F. H. Lawson, A Common Lawyer Looks at
the Civil Law 69-76 (1953); John Henry Merryman, The Civil Law Tradition 56-67,
80-84 and 106-07 (1985) (proposing that in the common law tradition the law is what
the judges say it is while in the civil law tradition the law is what the scholars say it
is). See generally Kötz, “Scholarship and the Courts: A Comparative Survey,” in Comparative and Private International Law 183 (David S. Clark ed., 1990) (providing a
comparative analysis). Some civil-law scholars consider the writings of legal scholars
to be a true source of law, together with, but inferior to, the Constitution, statutes,
and precedents. See generally Sacco, “Legal Formants: A Dynamic Approach to Comparative Law,” 39 Am. J. Comp. L. 343, 346-49 (1991) (arguing that “scholarly writings, both essayistic and didactic, are a source of law, that is, they form a ‘legal
formant’ of the system.”)
25. However, a recent revival of interest has occurred in Italy. See generally
Dondi, “Funzione ‘Remedial’ delle ‘Injunctive Class Actions’,’ 42 Rivista Trimestrale
di Diritto e Procedura Civile 245 (1988); Cappalli & Consolo, “Class Actions for Continental Europe? A Preliminary Inquiry,” 6 Temp. Int’l & Comp. L.J. 217 (1992); Consolo, “‘Class Actions’ Fuori dagli USA?,” Rivista di Diritto Civile 609 (1993); Andrea
Giussani, Studi Sulle “Class Actions” (1996). A new consumer protection statute, enacted in 1998, in Italy, grants a limited protection for group rights (See legge 30 luglio
1998, N. 281).
Paradigmatic is the current political debate in Germany over the adoption of a
class action statute. See Koch, “(Non-Class) Group Litigation Under EU and German
Law,” 11 Duke J. Comp. Int’l L. 355 (2001) (noting that class actions proposals in
Germany are criticized as advocating socialism.) This opposition is laughable, if one
considers that socialist countries do not have class actions. Compare Glenn, “Class
Actions in Ontario and Quebec,” 62 The Canadian Bar Review 247, 273-72 (1984)
(arguing that the class action device may be seen merely as a “bourgeois, liberal in-
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3.2 The Brazilian Class Action Movement
The first Brazilian statute dealing specifically with class action
procedure was enacted in 198526. This statute, known as the Public
Civil Action Act, was designed to create an action to “protect the envivention capable of no more significant advancement of class interests than that which
can be effected by the legal system as a whole. Any possible resulting reallocation of
wealth would merely delay development of true class consciousness. . .”)
26. See Lei da Ação Civil Pública, Lei n. 7,347, de 24 de julho de 1985 [hereinafter, Public Civil Action Act.] The Brazilian statute is analyzed in Garth, “Group Actions in Civil Procedure: Class Actions, Public Actions, Parens Patriae and
Organization Actions,” in XIIIth International Congress. General Reports. Montreal
205, 216-18 (1992); Rosenn, “Civil Procedure in Brazil,” 34 Am. J. Comp. L. 487, 52223 (1986); Findley, “Pollution Control in Brazil,” 15 Ecology L.Q. 1, 21 and 42-49
(1988); Edesio Fernandes, “Defending Collective Interests in Brazilian Environmental Law: An Assessment of the ‘Civil Public Action’,” 4 Rev. Eur. Cmty. & Int’l Envt’l.
L. 253 (1995).
Prior to the introduction of the first class action statute, Brazil had incorporated
the popular action (actio popularis) into the 1934 Constitution. The actio popularis is
an action brought by any Brazilian citizen seeking judicial invalidation of administrative acts harmful to the public patrimony, the morality of the public administration,
the environment, or the historic or cultural patrimony. See Constitução Federal
[Hereinafter Brazilian Constitution], art. 5, LXXIII (1988); Lei da Ação Popular, Lei
n. 4,717, de 29 de junho de 1965 [hereinafter Actio Popularis Act.] Its scope, however,
is limited to the invalidation of administrative acts harmful to these public interests
and does not allow the issuing of injunctions. The class action dimension of the actio
popularis was not well understood in Brazil until Prof. Barbosa Moreira delivered his
pioneering paper. See Barbosa Moreira, “A Ação Popular do Direito Brasileiro como
Instrumento de Tutela Jurisdicional dos Chamados Interesses Difusos,” in Temas de
Direito Processual. Terceira Série 110 (1977).
Another example of class action in Brazil, also derived from the 1934 Constitution, is the “Direct Action of Unconstitutionality,” a suit brought in the Supreme
Court to attack, in the abstract (without a “case or controversy”), the constitutionality
of a federal or state statute or other normative government act. Standing to sue is
limited to the President, the Senate, the House of Representatives, State Governors,
the Federal Attorney General, the federal branch of the National Bar Association, a
political party, or a labor union. A declaration of unconstitutionality voids the statute
and has nationwide binding effect (erga omnes effect). See Brazilian Constitution,
art. 103 (1988). In the United States, however, federal courts have no jurisdiction to
decide questions of law presented without a “case or controversy.” See United States
Constitution, article III, Section 2, and Marbury v. Madison, 5 U.S. 137 (1803) (holding that a court has the power to declare a statute unconstitutional only as a consequence of its power to decide a case properly before it.) See also 13 Wright, Miller &
Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3529; Charles Wright, Law
of Federal Courts 60-93 (1994).
On the Brazilian popular action and direct action of unconstitutionality, see
Rosenn, “Brazil’s New Constitution: An Exercise in Transient Constitutionalism for a
Transitional Society,” 38 Am. J. Comp. L. 773, 794-98 (1990); id., “Judicial Review in
Brazil: Developments Under the 1988 Constitution,” 7 Southwestern Journal of Law
and Trade in the Americas 291 (2001); Findley, “Pollution Control in Brazil,” 15 Ecology L.Q. 1, 39-42 (1988) (discussing the Brazilian actio popularis in the field of environmental protection). See generally Ana Lucia de Lyra Tavares, “Aspects de
l’Acclimation du “Judicial Review” au Droit Brésilien,” 38 R.I.D.C. 1135 (1986);
Mauro Cappelletti, Judicial Review in the Contemporary World (1970). On the close
relationship between class actions and direct actions of unconstitutionality, See Arruda Alvim, “A Declaração Concentrada de Inconstitucionalidade pelo STF Impõe
Limites à Ação Civil Pública e ao Código de Proteção e Defesa do Consumidor,” in
Ação Civil Pública. Reminiscências e Reflexões Após Dez Anos de Aplicação 152 (Édis
Milaré ed., 1995).
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ronment, the consumer and properties and rights of artistic, aesthetic, historic, touristic and landscape value.” However, the
legislature later extended the use of class actions to protection of any
kind of diffuse or collective rights, making it a trans-substantive statute.27 This statute provided an adequate proceeding for injunctive
class action and for global damages suffered by the class (diffuse and
collective rights), but it did not allow for the collective legal redress of
violations of individual rights (homogeneous individual rights).28
Members of a class could recover individual damages only by bringing their own individual lawsuits.
In 1988, the new Brazilian Federal Constitution protected numerous substantive and procedural group rights.29 A procedural innovation created by the Constitution is the “mandado de segurança
coletivo,” a kind of class action version of a non-criminal law habeas
corpus, aimed at illegality and abuse of power from public officials.30
Since the enactment of the labor laws, in 1943, Brazil has had a primitive kind of
class action in labor courts (dissı́dios coletivos). See generally Nelson Nery Junior, “A
Ação Civil Pública no Processo do Trabalho,” in Ação Civil Pública. 15 Anos 555 (Édis
Milaré ed. 2001) (discussing class actions in labor courts).
27. In American legal jargon, procedural rules applicable to the litigation of any
matter, irrespective of the area of substantive law in dispute, are called “trans-substantive.” See generally Carrington, “Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil
Procedure,” 137 U. Pa. L. Rev. 2067 (1989); Hazard, “Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure,” 137 U. Pa. L. Rev. 2237
(1989); Tobias, “The Transformation of Trans-Substantivity,” 49 Wash. & Lee L. Rev.
1501 (1992); Weber, “The Federal Civil Rules Amendments of 1993 and Complex Litigation: A Comment of Transsubstantivity and Special Rules for Large and Small Federal Cases,” 14 Rev. Litig. 113 (1994).
28. See infra section 5, “Types of Group Rights” (discussing the definition of diffuse, collective, and homogeneous individual rights).
29. See generally Motauri Souza, Interesses Difusos em Espécie (2000); Celso Fiorillo, “A Ação Civil Pública e a Defesa dos Direitos Constitucionais Difusos,” in Ação
Civil Pública. Reminiscências e Reflexões Após Dez Anos de Aplicação 163 (Édis Milaré ed., 1995).
30. See Brazilian Constitution, art. 5, LXIX. See Gidi, “Acciones de Grupo y
“Amparo Colectivo” en Brasil. La Protección de Derechos Difusos, Colectivos y Individuales Homogéneos,” in Derecho Procesal Constitucional 973 (Eduardo Mac-Gregor ed., 2001); Uadi Lamêgo Bulos, Mandado de Segurança Coletivo (1996); Hermes
Zaneti Junior, Mandado de Segurança Coletivo (2001). See also Rosenn, “Civil Procedure in Brazil,” 34 Am. J. Comp. L. 487, 515 (1986) (noting that the individual (nonclass action) version of the “mandado de segurança” “combines into a single action the
effective characteristics of the Anglo-American writs of prohibition, injunction, mandamus, and quo warranto.”)
An analogue to this suit is the “amparo colectivo” currently under discussion in
Mexico, Argentina, and in other Latin American countries. See, e.g., Lucio Cabrera
Acevedo, “Past and Possible Future of the Collective Amparo Process [Amparo Collectivo],” 6 U.S.-Mex. L.J. 35 (1998) (discussing Mexico’s effort to create an “amparo coletivo” in the pattern of the Brazilian “mandado de segurança coletivo.”); Mac-Gregor,
“El Acceso a la Justicia de los Intereses de Grupo (Hacia un Juicio de Amparo Colectivo em México),” in Derecho Procesal Constitucional 217 (Eduardo Mac-Gregor ed.,
2001); Augusto Morello, La Tutela de los Intereses Difusos en el Derecho Argentino
(1999) (discussing the Argentine attempt).
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In 1989 and 1990, the Brazilian legislature enacted three statutes granting substantive legal protection for group rights of handicapped people, investors in the stock market, and children. These
statutes were substantive in character and provided little in terms of
procedural rules. The Public Civil Action Act (1985) provided the
procedural rules used to enforce these group rights in courts.31
In 1990, the legislature enacted the Consumer Code.32 In the
Title III of this code, which is dedicated to the protection of the consumer in court, the legislature includes detailed procedures for class
action suits for individual damages. It is important to note, however,
that even though these rules are set forth in the Consumer Code, the
class proceeding embodied in this piece of legislation is “trans-substantive” in character and so is applicable to every kind of group right
amenable to class litigation.33 The legislature articulated this principle in the Consumer Code itself, making it clear that its class action
rules are available to solve controversies in environmental, antitrust,
torts, tax, and any other branch of the law.34
The proceeding for the protection of diffuse and collective rights
is set forth in the Public Civil Action Act, and the proceeding for the
protection of homogeneous individual rights is set forth in the Consumer Code. These are comprehensive class action statutes that
complement each other, they amount, in effect, to a code of Class Action Procedure.35 They will be referred to in this paper generally as
the “Brazilian class action statute(s).”
31. See Lei n. 7,853/1989; Lei n.7,913/1989; Lei n. 8,069/1990. See also Trocker,
“The Protection of Group Interests Through the Civil Courts,” in 1 Italian Yearbook of
Civil Procedure 125 (Elio Fazzalari & Maurice Sheridan eds., 1991) (discussing substantive group rights in Italian law.)
32. See Código de Proteção e Defesa do Consumidor, Lei n. 8,078, de 11 de setembro de 1990 [hereinafter Consumer Code]. The Brazilian Consumer Code was drafted
by a commission of highly regarded scholars: Ada P. Grinover, Antônio Benjamin,
Daniel Fink, José Filomeno, Kazuo Watanabe, Nelson Nery, Jr., and Zelmo Denari. A
full English translation of the code is found in South American Consumer Protection
Laws (David Jaffe and Robert Vaughn eds., 1992) (noting that “[t]he Brazilian Consumer Protection Code has influenced the development of other consumer statutes in
South America . . . The Brazilian statute is the most comprehensive and detailed
consumer law in South America.”), id. p. 69.
33. See infra section 5, “Types of Group Rights” (defining diffuse, collective, and
homogeneous individual rights).
34. See Consumer Code, arts. 110 and 117. See supra n. 27 (explaining the definition of a “trans-substantive procedural rule.)
If practice demonstrates that specific kinds of litigation (small claims, public interest, mass torts class actions,) specific fields of the law (antitrust, securities, environmental, consumer class actions,) or specific kinds of class representatives
(organizations, public officials) face specific problems that should be addressed in a
differentiated manner, the legislature may enact specific rules.
35. See Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas 74-78
(1995) [Res Judicata and Lis Pendens in (Brazilian) Class Actions]. See also Nelson
Nery Junior, Código Brasileiro de Defesa do Consumidor 867-909 (1999) (for a general
analysis of the interrelation between both statutes).
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The time is ripe, however, for a consolidation of class action statutes in Brazil, and the development of a proper, updated Code of
Class Action Procedure.36 Such a code should provide consistent approaches to class action litigation and revise current rules, taking
into account accumulated practical experience, new developments in
foreign jurisdictions, and recent comparative studies.
3.3 Brazilian Class Action: A Generation Later
The reception of class actions into the Brazilian legal system has
been difficult and uncertain. A minority of conservative scholars and
judges, educated under the orthodox and dogmatic standards of legal
science, either did not understand the new concepts embodied in the
new class action statutes, or were ideologically opposed to them. It
was difficult, however, to distinguish between those two categories.
In any event, there was strong opposition.37
Some saw class actions not as a means to improve access to justice or to balance the individual’s lack of power over companies and
government, but rather as an unfair and unequal privilege.38 Others
36. This proposition was first enunciated by Antonio Gidi. See Antonio Gidi,
Coisa Julgada e Litispendência em Ações Coletivas 77-8 (1995). It encountered supportive eco in Uadi Lamêgo Bulos, Mandado de Segurança Coletivo 77 (1996); Renato
Braga, A Coisa Julgada nas Demandas Coletivas 103 (2000); and Nelson Nery Junior,
“A Ação Civil Pública no Processo do Trabalho,” in Ação Civil Pública. 15 Anos 555,
562 (Édis Milaré ed., 2001).
37. The atmosphere in Brazil was no different than that in the United States after the 1966 revision of Rule 23, in which some commentators and courts were overly
enthusiastic and others were strongly opposed to class litigation. Compare Pomeranz,
“New Developments in Class Actions—Has Their Death Knell Been Sounded?,” 25
Bus. Law. 1259 (1970) with and Handler, “The Shift from Substantive to Procedural
Innovations in Antitrust Suit—The Twenty-Third Annual Antitrust Review,” 71
Colum. L. Rev. 1 (1971). See generally Miller, “Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the ‘Class Action problem’,” 92 Harv. L. Rev. 664
(1979).
38. See Botelho de Mesquita, “Na Ação do Consumidor, Pode ser Inútil a Defesa
do Fornecedor,” 33 Revista do Advogado 80 (1990); id. “A Coisa Julgada no Código do
Consumidor,” in Código de Processo Civil. 20 anos de Vigência (Cruz e Tucci ed.,
1995).
Many cases illustrate the importance of small claims class actions in the United
States. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186, 94 S. Ct. 2140, 2156
(1974) (Douglas, dissenting in part) (“The class action is one of the few legal remedies
the small claimant has against those who command the status quo.”); Phillips Petroleum v. Shutts, 472 U.S. 797, 105 S. Ct. 2965 (1985); In re Hotel Telephone Charges,
500 F.2d 82 (9th Cir. 1974); Deposit Guaranty National Bank v. Roper, 445 U.S. 326,
100 S. Ct. 1166 (1980); Hawaii v. Standard Oil Co, 405 U.S. 251, 266, 92 S. Ct. 885,
893 (1972); Illinois v. Harper & Row Publishers, Inc., 301 F.Supp. 484 (N.D. Ill. 1969);
Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y 1968); Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997). See Kalven, Jr. & Rosenfield, “The Contemporary
Function of the Class Suit,” 8 U. Chi. L. Rev. 684 (1941); Weinstein, “Revision of Procedure: Some Problems in Class Actions,” 9 Buff. L. Rev. 433, 435 (1960); Frankel,
“Amended Rule 23 from a Judge’s Point of View,” 32 Antitrust L. J. 295, 299 (1966);
Ford, “Federal Rule 23: A Device for Aiding the Small Claimant,” 10 B. C. Indus. &
Com. L. Rev. 501 (1969) (focusing on the protection of small claims as the most important objective of class actions); Pomerantz, “New Developments in Class Actions—
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tried to find insurmountable technical and philosophical obstacles to
the class actions. This opposition, however, had less to do with the
law or legal science than with the reluctance of many contemporary
jurists to disrupt the status quo.39 Brazilian jurists were divided
along ideological lines. However, perhaps because Brazil had just
overcome a long and painful period of military dictatorship and political repression, the vast majority of the legal profession was open to
new ways of improving access to justice, and was enthusiastically in
favor of the new reforms.
As would be expected after any profound legal change, in this
case the introduction of class actions in a country of civil law tradition, it has required an entire generation for the creation of a new
mentality in the society and for the system to begin to work
smoothly.40 All expectations were surpassed, however, when, within
a few years, the legal community had fully absorbed the new system
and began to use it to protect group rights.
Has Their Death Knell Been Sounded?,” 25 Bus. Law. 1259, (1970); id., “Dialogue on
class actions,” 28 Bus. Law. 109, 111-12 (1973); Homburger, “State Class Actions and
the Federal Rule,” 71 Colum. L. Rev. 609, 610 and 639-43 (1971); Freeman, Jr., “Class
Actions from the Plaintiff’s Viewpoint,” 38 J. Air L. & Com. 401 (1972); Herbert Newberg & Alba Conte, Newberg on class actions, §§ 1-17, 1-20, 4-166—4-167 and passim
(1992); Fleming James, Jr., Geoffrey C. Hazard Jr. & John Leubsdorf, Civil Procedure
§ 10.20 (2001); Cooper Alexander, “An Introduction to Class Action Procedure in the
United States,” Duke J. Comp. & Int’l L. (2001).
A few American commentators still argue against small claims class actions. See
generally Hill, “Small Claimant Class Actions: Deterrence and Due Process Examined,” 19 Am. J. of Trial Advoc. 147 (1995) (the author, however, uses weak and
contradictory arguments and does not present any realistic and convincing alternative to the small claims class action); American College of Trial Lawyers, Report and
recommendations of the special committee on Rule 23 of the Federal Rules of Civil
Procedure (1972); Handler, “The Shift from Substantive to Procedural Innovations in
Antitrust Suit—The Twenty-Third Annual Antitrust Review,” 71 Colum. L. Rev. 1
(1971); Landers, “Of Legalized Blackmail and Legalized Theft: Consumer Class Actions and the Substance-Procedure Dilemma,” 47 S. Cal. L. Rev. 842 (1974); Labowitz,
“Class Actions in The Federal System and in California: Shattering the Impossible
Dream,” 23 Buff. L. Rev. 601, 632-34 (1974); Faulk, “Armageddon Through Aggregation? The Use and Abuse of Class Actions in International Dispute Resolution,” Class
Action Litigation Report, May 25, 2001. See also Zahn v. International Paper Co., 414
U.S. 291 (1973); Snyder v. Harris, 394 U.S. 332 (1969).
39. See Cooper, “Class-Action Advice in the Form of Questions,” 11 Duke J. Comp
& Int’l L. 215 (2001) (arguing that class action is a powerful device for the enforcement of substantive law. This thorough enforcement “will change the real-world effect of some existing substantive laws, and it may be difficult to predict which laws
will be most affected. Some substantive laws have little meaning because little is
enforced. Providing an efficient procedural tool that leads to widespread enforcement
changes may transform the social, political, and economic reality. Not everyone will
be pleased.”)
40. See Benjamin Kaplan, quoted in Frankel, “Some Preliminary Observations
Concerning Rule 23,” 43 F.R.D. 39, 52 (1968) (noting that “[i]t will take a generation
or so before we can fully appreciate the scope, the virtues, and the vices of new Rule
23”); Taruffo, “Intervento,” in Le Azioni a Tutela Degli Interessi Collettivi 336 (Vittorio
Denti ed., 1976) (arguing that in the civil-law system “new rules are necessary but not
sufficient: it is imperative that they be interpreted and applied in light of a new
sensitivity.”)
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Private corporations are frequent violators of group rights, especially in the field of consumer and environmental protection. However, the Brazilian Government, at all levels, is the primary violator
of established group rights. These violations range from illegal taxes
to improper administration of public monies. The Government,
therefore, is often a defendant in class actions.41
The potential effects of such a powerful tool in the hands of a
democratic society led the Federal government to attempt to curtail
its pervasive impact. To prevent supervision of the government by
means of the class suit, the executive, with assistance from the legislature, tried to limit associations’ standing to bring a class action, as
well as to limit the res judicata effect of class decrees to the territorial
limits of the court’s jurisdiction.42 Some scholars think, however,
that these restrictions will not have the intended consequences, either by reason of unconstitutionality or by an alternative interpretation of the rule that would circumvent the government’s intentions.43
There is reason to worry, however, that the executive might try again
to sabotage the class action legislation in the future, especially under
the umbrella of the harmonization of laws in the “Mercosul.44” This
smokescreen may provide the political cover the government needs to
curtail the political power inherent in class action litigation.
3.4 The (Cloudy) Future of Class Action in Brazil45
The introduction of class action suits in Brazil was sufficiently
important to have a profound impact in society. It brought access to
41. This is not a “privilege” of Brazilian society. See Jessurun d’Oliveira, “Group
Actions in Civil Procedure,” in Netherlands Reports to the Thirteenth International
Congress of Comparative Law 135, 147 (1990) (noting that “[t]he [Dutch] government,
as the repeat player par excellence, does not even shrink, following a lost case, from
taking the law into its own hands [and change the law]: ‘heads, I win, tails, you lose’ is
the slogan.”)
42. See, e.g., Medida Provisória n. 1,570/1997; Lei n. 9,494/1997; Medida
Provisória n. 1,798-1/1999.
43. See Ada P. Grinover, Código Brasileiro de Defesa do Consumidor 738-39 and
818-22 (1999), id., A Marcha do Processo 34-39 (2000), Kazuo Watanabe, Código Brasileiro de Defesa do Consumidor 738-39 (1999); Hermes Zaneti Junior, Mandado de
Segurança Coletivo (2001); Luiz Araújo Filho, Ações Coletivas: A Tutela Jurisdicional
dos Direitos Individuais Homogêneos 161-71 (2000); Renato Braga, A Coisa Julgada
nas Demandas Coletivas 153-76 (2000); Nelson Nery Junior & Rosa Nery, Código de
Processo Civil Comentado 1157-58 (1997), Rodolfo Mancuso, Ação Civil Pública 27482 (2001); José Vigliar, Ação Civil Pública 112-13 (1999); Francisco Oliveira, Da Ação
Civil Pública: Instrumento de Cidadania – Inconstitucionalidade da Lei 9.494, de
10.09.1997, 744 RT (1997); Hugo Mazzilli, A Defesa dos Interesses Difusos em Juı́zo
206-12 (2001). But see Luiz Wambier, Liquidação de Sentença 278-82 (2000); Antonio
Gidi, Class Actions e Ações Coletivas: Comparação Entre o Direito Norte-Americano e
Brasileiro, address at “Os Novos Direitos e a Sua Proteção Jurisdicional” in Curitiba
(December 14, 2001) (deploring the new reforms but considering them constitutional.)
44. ”Mercosul“ is the South American equivalent of the European Union, involving Brazil, Argentina, Uruguay, and Paraguay.
45. The expression is borrowed from Cooper, “The (Cloudy) Future of Class
Actions,” 40 Ariz. L. Rev. 923 (1998).
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justice and compensation to otherwise nonviable claims, as well as a
deterrent effect on illegal or otherwise undersirable conduct. However, it has not had any significant negative impact in the courts.46
The long-term utility and success of the Brazilian class action,
however, remains uncertain. It may be too soon to determine
whether Brazilian class action law will live up to expectations or will
be lost in the formalism of the system. Despite the absence of empirical studies in Brazil on civil procedure, there has been some anecdotal experience indicating a positive trend.47 For example, numerous
class actions have been brought against municipalities to challenge
illegal taxes and illegal price increases on bus fares. Other class actions have been brought against industries, banks, private schools,
credit card companies, health insurance plans, and other private corporations, in order to curb mass wrongs, such as misleading advertising, environmental damages, product defects, lack of adequate
information to consumers, and the use of abusive or deceptive clauses
in adhesion contracts.
There are some relatively primitive examples of mass tort class
actions in Brazil, which, unlike their American counterparts, have
successfully avoided the procedural quagmire associated with large
46. In Europe, there are contradictory objections to class actions, based more on
myth and self-serving interests than in a neutral evaluation of the facts. While some
objectors say that class actions are not needed because the amount of class litigation
will be too insignificant to justify the enactment of a special body of law, others say
that the introduction of class suits would clog the courthouses. Paradigmatic is the
political debate over the Swedish proposal for group actions. See Lindblom, “Individual Litigation and Mass Justice: A Swedish Perspective and Proposal on Group Actions in Civil Procedure,” 45 Am. J. Comp. L. 805, 829 (1997); Nordh, “Group Actions
in Sweden: Reflections on the Purpose of Civil Litigation, the Need for Reforms and a
Forthcoming Proposal,” 11 Duke J. Comp & Int’l L. 381 (2001).
47. The disdain for empirical research is typical of civil law systems. See Cappalli, “The Style and Substance of Civil Procedure Reform: Comparison of the United
States and Italy,” 16 Loy. L.A. Int’l & Comp. L.J. 861, esp. 883 (1994) (arguing that
procedural reform in Italy was informed by logic, intuition, and personal experience,
rather than being supported by quantitative data about the functioning of the civil
justice system.)
In sharp contrast, American law reform may often be anchored in solid empirical
studies. See generally Thomas Willging, Laural Hooper & Robert Niemic, Empirical
Study of Class Action in Four Federal District Courts: Final Report to the Advisory
Committee on Civil Rules (1996); Jay Tidmarsh, Mass Tort Settlement Class Actions.
Five Case Studies (1998); Deborah Hensler et. al., Class Actions Dilemmas (2000);
Report on Mass Tort Litigation (1999); Working Papers of the Advisory Committee on
Civil Rules on Proposed Amendments to Civil Rule 23, four vols. (1997); S. Elizabeth
Gibson, Case Studies on Mass Tort Limited Fund, Class Action Settlements and Bankruptcy Reorganizations (2000). But see Galanter, “An Oil Strike in Hell: Contemporary Legends About the Civil Justice System,” 40 Ariz. L. Rev. 717, 722 (1998)
(arguing that several “legal legends” might persist “against a now-formidable mass of
empirical data that shows that so many of its key assertions are at best exaggerated
and in many cases entirely mistaken.” In any event, at least in the United States
there is a “mass of empirical data” available to disprove such legends.) But see Hensler, “Why We Don’t Know More About the Civil Justice System – and What We Could
Do About It,” 1994 U.S.C. L. Rev. 10.
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class actions.48 These cases do not usually create difficult procedural
problems of predominance or manageability because the class decree
in Brazilian class actions for damages is limited to the declaration of
the defendant’s liability (issue class action), and each individual class
member must bring an individual action to prove causation and the
amount or extent of the individual damages suffered.49 In addition,
Brazilian class actions do not raise arcane conflict of laws dilemmas,
which have been problematic in some American class actions. Unlike
the U.S. laws, the Brazilian private and procedural law are federal,
regulated by the national codes and uniform in all 26 states. Although Brazilian class actions do not face many of the procedural
problems found in the American system, examples of mass toxic tort
class actions are still rare. The explanations include the lack of economic incentives for plaintiffs, absence of an entrepreneurial bar or
an organized society, low technical development, and limited
discovery.50
48. Only in the 1990’s did the problem of mass torts attract the attention of civillaw lawyers. See, e.g., Giussani, “Le ‘Mass Tort Class Action’ negli Stati Uniti,” Riv.
Cri. Dir. Priv. 331 (1989); Kojima, “Judicial Administration in Multi-District Mass
Litigation,” in Takeshi Kojima, Perspectives on Civil Justice and ADR: Japan and the
USA 47 (1990); Calais-Auloy, “Les Délits a Grande Échelle en Droit Civil Français,”
46 Revue Internationale de Droit Comparé [R.I.D.C.] 379 (1994); Koch, “Mass Torts in
German Law,” in German National Reports in Civil Law Matters for the XIVth International Congress of Comparative Law 67 (Erik Jayme ed., 1994); Nomi, “Mass Torts
in Japanese Law,” in Japanese Reports for the XIVth International Congress of Comparative Law; Ponzanelli, “Mass Torts in the Italian System,” in Italian National Reports to the XIVth International Congress of Comparative Law (1994); Isabelle Romy,
Litiges de Masse (1997). See also Fleming, Mass Torts, XLII Am. J. Comp. L. 507
(1994) (presenting the General Report for the XIVth International Congress of Comparative Law organized by the International Academy of Comparative Law).
49. See infra Section 5, “Types of Group Rights” (on the definition of homogeneous
individual rights).
In Castano v. American Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir.1996), the
Court did not allow the use of the issue class action device to overcome the lack of
predominance (“[a] district court cannot manufacture predominance through the nimble use of [issue class action].”)
50. In Brazil, as in other developing nations, the lack of scientific expertise and
effective procedural devices, such as discovery, often proves to be an obstacle not only
to proving causation, but also to detecting mass damages in the first place. See, e.g.,
Barry Castleman, Asbestos: Medical and Legal Aspects 852-57 (1996) (denouncing Canada and other asbestos-exporting nations for exploiting ignorance and poverty in
developing countries in order to offset the lost market due to the ban of asbestos import in developed countries); Huncharek, “Exporting Asbestos: Disease and Policy in
the Developing World,” Journal of Public Health Policy 51 (1993) (arguing that the
Canadian government orchestrated a malicious “mis-information” cover up in order to
convince developing countries that the kind of asbestos used in those countries is not
toxic, and advocating the safety of “controlled use” of asbestos. According to the author, not only does sufficient medical evidence exist to refute the non-toxic thesis, but
also it is widely known that no control or regulation exists in developing countries).
See also N. Pearce, E. Matos, H. Vainio, P. Boffetta and M. Kogevinas, Occupational
Cancer in Developing Countries (1994) (noting that while world production of asbestos
decreased in the 1980s, during the same period the amounts of asbestos mined and
consumed in some developing countries increased). I thank Prof. Annie ThébaudMony, from the Institut National de la Santé et de la Recherche Médicale and from the
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In general, however, experience suggests that class actions are
working well (or as well as other procedural devices) and, to date,
have been compatible with the Brazilian system. In the long run,
class actions might prove to be one of the most successful legal transplants in Brazilian legal history since colonial times.
4. THE CONCEPT
OF
CLASS ACTION
4.1 Class Action Defined
In order to understand the theoretical foundations of the Brazilian class action legislation one must first define the basic elements of
a class action. This preliminary inquiry is not an exercise of futile
conceptualism. It is essential to lay down some ground rules for the
debate because the comparative law literature reveals a pervasive
lack of understanding regarding the nature of a “class action.”
Elsewhere, I offered the following definition: “a class action is the
action brought by a representative plaintiff (collective standing), in
protection of a right that belongs to a group of people (object of the
suit), which judgment will bind the group as a whole (res judicata).”51
Therefore, the essential elements of a class action are the existence of
a representative plaintiff, the protection of a group right object of the
action (claim for class relief), and the res judicata effect.
Some scholars distinguish between class actions, parens patriae
civil actions and organizational or associational actions. According to
this distinction, “class actions” are brought by the members of the
class, “parens patriae civil actions” are brought by government officials, and “organizational actions” are brought by associations.52
However, the type of plaintiff representative is only incidental to its
qualification as a class action because what distinguishes a class action from an individual action is its application to protect a group
right (the object of the proceeding).
École des Hautes Etudes en Sciences Sociales, in Paris, for help with information and
bibliography.
51. See Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas 16
(1995). See also Márcio Leal, Ações Coletivas: História, Teoria e Prática 39-45 (1998).
52. See, e.g., Cappelletti, “Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study,” in II Access to Justice. Promising
Institutions 773-75 (Cappelletti and Weisner eds., 1979) (speaking of “public attorney
general”, “organizational private attorney general” and “individual private attorney
general”); Garth, “Group Actions in Civil Procedure: Class Actions, Public Actions,
Parens Patriae and Organization Actions,” in XIIIth International Congress. Montreal
205 (1992). Some other classifications along these same lines exist, especially in
France, where some scholars classify them as action associationelle and action de
groupe, according to the relief requested. The first category is a general injunction for
the benefit of group as a whole, the latter is for individual damages to the members of
the group. These classifications are alien to Brazilian law, which considers them all
class actions, regardless of the type of representative or the nature of claim. See infra
Sections 5, “Types of Group Rights” and 6, “Collective Standing.”
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Some scholars claim that class actions do not exist in Europe because associations, not class members, have standing to represent
the interests of groups in court, as if the essence of a class action is
that the claim is made by a class member. The so-called “associational action” adopted by European systems is as much a class action
as the American counterpart, the only difference being a limitation
on the kind of controlling representative party.53 Another recurrent
mistake is the assertion that class actions do not exist in Europe because the only remedies available to the vindication of group rights in
court are injunctive and declaratory.54 This rests on the false assumption that a class action can only concern damages rather than
other forms of relief. Damage relief, however, is not an element of the
definition of class action. As a matter of fact, although with much
less visibility in the media and less controversial, injuctive class actions have historically been more common in the United States than
those for damages.
The comparative study of this subject requires a comprehensive
view of the phenomenon of class litigation, as compared to individual
actions, not an artificial subcategorization of the class actions. This
broad view encompasses, under one umbrella, all kinds of actions in
protection of group rights, regardless of the remedy sought (injunctive, declaratory, damages,) the class representative (parens patriae
actions, organizational actions, citizen suits, actio popularis, class
members actions,) or the nature of the right vindicated in court (private conflicts, public interest litigation.) This does not mean, however, that they all should necessarily be identically regulated,
because each might involve different incentive structures and policy
considerations.55
4.2 Class Action or Collective Action?
It is revealing that in Brazil, class actions are called “collective
action” (ação coletiva), not “class action” or “group action.” Indeed, I
prefer “collective action” over “class action,” and “collective litigation”
53. Numerous class actions are brought by associations in the United States: the
mere fact that an association is the class representative does not change the fact that
it is still a class action. See infra Section 6.6, “Parens Patriae and Associational
Standing in American Class Actions.”
54. Since the beginning of the twentieth century, the German legal system has a
genuine injunctive class action in protection of business interests. The Unfair Competition Act authorized associations for the promotion of business interests and every
businessperson who produced or traded goods or services of the same kind as the
competitor to sue for an injunction against unfair practices. See Koch, “Class and
Public Interest Actions in German Law,” 5 C.J.Q. 66, 68 (1986).
55. It must be noted that not all parens patriae actions, or public interest litigation, are class actions but a number of them are. The reciprocal is also true: not all
class actions are parens patriae actions, or public interest litigation, but a number of
them are. See infra Section 6.6, “Parens Patriae and Associational Standing in American Class Actions.”.
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over “class litigation” because these expressions stress the collective
nature of the suit and the rights, and not merely the fact that there is
a group or class involved designated as a party.56 I would use the
expression “collective action” throughout this paper if it was not already established in the field of economic analysis of group behavior,57 and the term “class action” was not already strongly established
in the United States. Therefore, the best English translation for the
expression is indeed “class action.”58 Civil law countries, however,
should adopt the expression “collective action,” as is frequently used
in Italy (azione collettiva), Spain and Latin America (acción colectiva
or amparo colectivo), Brazil and Portugal (ação coletiva), and France
and Canada (action collective or recours collectif).
Some commentators prefer the term “group action59”. This expression does not differ in essence from “class action;” it makes ex56. The expression currently in use in Germany is Verbandsklage [associational
action,] stressing the entity with standing to sue.
57. See generally Mancur Olson, The Logic of Collective Action (1995).
58. “Representative action”, the term used in English and Australian Federal law,
is not an adequate substitute for “collective action” or “class action” because it is a
very broad term that embraces a myriad of different circumstances in which representation exists in individual actions. For an analysis of the English representative actions and relator actions, and a comparison with the American class actions, See, e.g.,
Jolowicz, “Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation: English Law,” 42 Cambridge L. J. 222 (1983); id., “Some Twentieth Century
Developments in Anglo-American Civil Procedure,” in 1 Studi in Onore di Enrico Tullio Liebman 218, 271-93 (1979); J.A. Jolowicz, On Civil Procedure 97-147 (2000); Uff,
“Class, Representative and Shareholders’ Derivative Actions in English Law,” 5
C.J.Q. 50 (1986); Neil Andrews, Principles of Civil Procedure 134-58 (1994); Maley,
“Toxic Torts: Class Actions in United States and England,” 19 Suffolk Transnat’l L.
Rev. 523 (1996); Sir Jack Jacob, The Fabric of the English Civil Justice 81-82 (1987).
“Multi-party action” is also an inadequate term, although it is used in some common-law jurisdictions as a functional synonym of class action. In a class action, there
may be only one formal party in the role of class representative, although it may be
considered that all absent members are virtual parties in a class action. In addition,
any individual action in joinder could also be properly considered a multi-party proceeding. This term may be better used in reference to a set of rules for managing
similar individual actions. See McBryde & Barker, “Solicitors’ Groups in Mass Disaster Claims,” 141 New L. J. 484 (1991) (discussing the formation of groups of solicitors
in mass disaster claims); Keith Uff, Recent Developments in Multy-Party Actions, 11
C.J.Q. 345 (1992).
59. See Koch, “(Non-Class) Group Litigation Under EU and German Law,” 11
Duke J. Comp. Int’l L. 255 (2001) (describing several injunctive class actions in Europe, but expressly refraining from calling them ”class actions“); Kessedjian, “L’Action
en Justice des Associations de Consommateurs et d’Autres Organisations Représentatives d’Intérêts Collectifs en Europe,” 33 Rivista di Diritto Internationale Privato e
Processuale 281, 283 (1997). The expressions used in Sweden, for example, are
grupptalan and grupprättegång [group action, group litigation.] See Per Henrik Lindblom, Grupptalan. Det Anglo-Amerikanska Class Actioninstitutet ur Svenskt Perspectiv [Group actions. The Anglo-American Class Action Suit From a Swedish
Perspective] (With a summary in English, 1989). The English summary of this book is
reproduced in Per Henrik Lindblom, “Group Actions. A Study of the Anglo-American
Class Action Suit from a Swedish Perspective,” in Group Actions and Consumer Protection 3 (Thierry Bourgoignie ed., 1992). In the State of Victoria, in Australia, class
actions are known as “group proceedings”. See Clark & Harris, “Multi-Plaintiff Litigation in Australia: A Comparative Perspective,” 11 Duke J. Comp. Int’l L. 289
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plicit the existence of a group (class), but lays insufficient emphasis
on the distinctive collective character of the action.60 Others use this
term correctly, in a broader sense, including under the umbrella of
“group action” an array of individual civil procedure devices such as
consolidation, transfer, test-cases, issue preclusion, joint trial, and
joinder of parties, that specifically address the problem of mass
conflicts.61
4.3 Consent of Absentees: Opt In v. Opt Out
It is common to say that a class action is, by definition, brought
without the consent of all represented persons.62 On the one hand,
this aspect might go to the essence of the class action. It is for this
reason that the old American spurious class actions and the new
French action en représentation conjointe, for example, are not properly considered class actions: these actions limit the res judicata effects to the members that had expressly accepted to be included in
the group (“opted in”) or that had expressly authorized the association to represent their interest in court through a signed document.
On the other hand, at least in theory, if the law provides for general publicity of the suit in order to give adequate notice to the members, and makes it easy for them to manifest consent or to opt in, the
number of represented members might approximate the number of
people actually interested in being represented in court. If the law
permits a collective treatment of the controversy through representation of absent members’ interest, without the need for evaluation of
(2001). The expression ”group action“ has a different meaning in English law. See
English Civil Procedure Rules, Part 19.
60. Compare Anne Morin, L’Action d’Interêt Collectif Exercée par les Organisations de Consommateurs Avant et Aprés la Loi du 5 Janvier 1988, in Group Actions
and Consumer Protection 57, 59 (Thierry Bourgoignie ed., 1992) (Favoring the term
“action d’intérêt collectif” [action in protection of collective interest] because she considers that “it is not the suit which is collective, nor its exercise, but the interest in
which it is based.”)
61. See, e.g., Kane, “Group Actions in Civil Procedure: The United States Experience,” 38 Am. J. Comp. L. 163 (1990) (Supplement).
62. See Fisch, “European Analogues to Class Actions: Group Action in France and
Germany,” 27 Am. J. Comp. L. 51, 78 (1979) (defining class action as “[t]he right of
one member of a group of persons to sue for all without the prior consent of each”);
Boré, “L’Action en Représentation Conjointe: Class Action Française ou Action MortNée?,” Recueil Dalloz Sirey 267 (1995); Lindblom, Group Actions and the Role of the
Courts — A European Perspective 12 (“[b]y a ‘true’ group action, I mean a suit brought
by a representative without express permission from the group members that results
in a judgment binding for and against all the members of the group”). This is, in fact,
the legal definition of “class action” stated in Quebec’s Code of Civil Procedure, art.
999(d) (“‘class action’ means the procedure which enables one member to sue without
a mandate on behalf of all the members.”) See Mazen, “Le Recours Collectif: Réalité
Québécoise et Projet Français,” 39 R.I.D.C. 373, 383-86 (1987). However, this definition is system-specific; it is the definition of class actions in Quebec but it does not
necessarily fix the contours of the device in other jurisdictions nor are scholars bound
by this restrictive legal definition.
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each individual claim, the action will be a “class action,” whether or
not the law requires previous consent from class members.63
The choice, by a certain national legislature, between an “opt in”
and an “opt out” class action procedure is critical and often extremely
controversial.64 The option in practice seriously interferes with the
size of the group actually represented in court and, consequently,
with its bargaining power and the effectiveness of the class action
device.65 However, it would not undermine the collective character of
the suit.66 “Opting in” a class action, therefore, must be distin63. In the French action en représentation conjointe, the statute expressly prohibits “solicitation” of absent members’ consent through personal letter, billposting, distribution of brochures, or television or radio advertisement. The representative can
only use the written press as a means of notice. See Louis Boré, “L’Action en Représentation Conjointe: Class Action Française ou Action Mort-Née?,” Recueil Dalloz
Sirey 267 (1995); Raymond Martin, “L’Action en Représentation Conjointe des Consommateurs,” JCP 1994 I 3756; Loı̈c Cadiet, “Chronique de Droit Judiciaire Privé,”
JCP 1992 I 3587, n. 6.
Article 30 of the Japanese Code of Civil Procedure instituted a limited representative action (appointed party), in which persons having a common interest may appoint one member as the representative for the entire body. This appointment can be
done before or after the filing of the suit. See Code of Civil Procedure, art. 30 (Japan).
Before enacting the statute, the Japanese legislature rejected a proposal under which
the court would publish a group notice in the newspapers. The proposal was rejected
because it was felt that the court should not appear to be endorsing the legitimacy of
the action. However, contrary to what happens with the French action de représentation conjointe, plaintiffs are free to “publicize their suit by themselves in order to recruit other claimants.” See Taniguchi, “The 1996 Code of Civil Procedure of Japan – A
Procedure for the Coming Century?” 45 Am. J. Comp. L. 767, 782-3 (1997).
The Scottish Law Commission’s proposal also adopts an “opt in” approach, clearly
reducing the effectiveness of the class action device. The proposal, however, does provide for court notice. See Multi-Party Actions 21-26 (1996). See also Note, “Class
Action Litigation in China,” 111 Harv. Law. Rev. 1523, 1526-27 and 1535 (1998) (discussing the ambiguous approach of Chinese law); Bernard Cairns, Australian Civil
Procedure 267 (1992); Clark & Harris, “Multi-Plaintiff Litigation in Australia: A
Comparative Perspective,” 11 Duke J. Comp. Int’l L. 289 (2001) (discussing an old
provision in the state of Victoria that provided for an opt in class action. This provision was repealed in 2000 and an opt out class action was adopted.); Nordh, “Group
Actions in Sweden: Reflections on the Purpose of Civil Litigation, the Need for Reforms and a Forthcoming Proposal,” 11 Duke J.Comp & Int’l L. 381 (2001) (noting
that it was still unknown whether the Swedish proposal would be opt out or opt in.)
64. See generally II Ontario Law Reform Commission, Report on Class Action 467
(1982) (noting that “[o]ne of the most controversial issues in the design of a class
action procedure is whether class members should be bound automatically by the
judgment, unless they exclude themselves from the action after certification, or
whether class members . . . should be required to take affirmative action after certification in order to be bound by the judgment . . .”) It is submitted, however, that this
controversy is dated: the opt out class action is superior, and should be adopted as the
default rule.
65. In practice, it is expected that very few members will take the active step of
opting out (or opt in) of a class. See Thomas Willging, et al., Empirical Study of Class
Actions in Four Federal District Courts 52-55 (Federal Judicial Center, 1996) (noting
that in four American Federal District Courts “the median percentage of members
who opted out was 0.1 or 0.2% of the total membership of the class. . .”)
66. United States, Canada, and Australia adopt a system of opt-out class action.
See supra Section 7.7, “Comparative Remarks” (noting that the Brazilian system is
incompatible with the opt in – opt out dichotomy.)
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guished from “intervening” in a class action. By “opting in,” a person
becomes a member of the class, not a party to the suit.
4.4 Innovations in Brazilian Class Actions
Several innovative aspects of Brazilian class action procedure deserve the attention of the comparative lawyer. For example, the office of the Attorney General is always notified of the filing of a class
suit and is invited to participate in the proceeding as an overseer
(custos legis), in order to guarantee the adequacy of representation of
the absentees’ interests.
In 1985, the Public Civil Action Act created the concept of a Special Fund Account in Protection of Diffuse Rights.67 This device is
rather complex, and cannot be adequately explained within the limits
of this paper. However, because of its practical importance, some aspects must be briefly mentioned.
This special bank account serves as a repository for damages
awarded in class actions. For example, if a defendant is ordered to
pay a fine or damages for the destruction of a forest or for the broadcast of a misleading advertisement, the award will be deposited in
this special account. In addition, if, for some reason, such as the difficulty of identification of the victims, for example, it is not possible to
distribute individual damages to absent class members, the judge
will calculate the damage caused to all the members as a whole and
the “lump sum” thus obtained will be deposited into the account.
This special fund is administered under the auspices of the Ministry of Justice, by a mixed committee comprised of government officials and citizens at large. The resources are to be used to finance the
restoration of the rights violated by the defendant’s conduct. When
For examples of sound uses of “opt in” class actions in some specific circumstances, See Cooper, “Rule 23: Challenges to the Rulemaking Process,” 71 N.Y.U.L.
Rev. 13, 33-34 and 70-71 (1996) (proposing to reform Rule 23 by adding new subdivision (c)(1)(A) that gives discretionary power to the court to determine whether the
class action should proceed in an ‘opt out’ or ‘opt in’ basis); Cooper, “Class-Action Advice in the Form of Questions,” 11 Duke J. Comp. Int’l L. 215 (2001); Lord Woolf,
Access to Justice. Final Report 235-36 and 249 (2000) (arguing that “[t]he court
should have the power to [maintain a class action] on an ‘opt out’ or ‘opt in’ basis,
whichever contributes best to the effective and efficient disposition of the case”). This
flexible approach is the current rule in the state of Pennsylvania. See Pa. R.C.P. Rule
1711 (2000). See also Alberta Law Reform Institute, Class Actions 92-100 (2000). See
also the proposed Public Interest Actions and Class Actions Act in South Africa, giving
the court discretionary powers between opt-in notice (in limited circumstances), optout notice, or no notice at all. See South African Law Commission, The Recognition of
a Class Action in South African Law 38 (1995); Wouter de Vos, “Reflections on the
Introduction of a class action in South Africa,” Tydskrif Vir Die Suid-Afrikaanse Reg
639, 646-8 (1996).
67. See Public Civil Action Act, art. 13. See also Antonio Ferraz, Édis Milaré and
Nelson Nery Junior, A Ação Civil Pública e a Tutela Jurisdicional dos Interesses
Difusos 82 (1984); Luiz Wambier, Liquidação de Sentença 283-97 (2000); Elton Venturi, Execução da Tutela Coletiva 114-19 and 153-58 (2000).
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such restoration is not possible, these funds are to be used flexibly
and creatively to protect group rights similar to those advanced by
the class action; typical uses include funding of research and educational projects. The concept is essentially similar to “fluid recovery”
recognized in some American class suit jurisprudence.
Over the last few years, several different special bank accounts
have been created by statute. Some explicitly prescribe the object of
the protection, and specify the allocation of the funds, such as the
environmental, children, or consumer accounts. In addition, because
of the peculiarities of the federal system of government, there are
also Federal and state accounts.68
Brazilian class action law also incorporates several innovations
addressing the unavoidable increased costs and risks of large-scale
litigation. In any country that adopts the general rule of fee shifting
(loser pays,) the risk of incurring legal costs in case of loss is a serious
deterrent to the bringing of any lawsuit. This risk is intensified in
Brazil, because the amount of attorney’s fees that the loser pays the
winner is determined not by the time spent by the attorneys in preparing and arguing the case, nor by a predetermined lump sum, but
by a percentage of the amount in controversy (usually between 10
and 20%.) This rule considerably raises the stakes for the parties in
class suits.69
One important innovation in Brazilian class action statutes protects class representatives from the responsibility for defendant’s attorney’s fees, costs and expenses in case of loss, except in cases of
bad-faith litigation.70 This protection, however, is limited to class
plaintiffs: defendants are liable for attorney’s fees, costs and expenses
in case of loss, under the traditional rule of fee shifting. As an American lawyer would easily understand, the importance of this one-way
“American rule” is not peculiar to class actions, but is part of a
broader policy of access to justice71. The Brazilian rule places class
representatives in a comfortable position, without seriously harming
the opposing party, when one considers the low cost of litigation in
civil-law systems.72
68. In spite of its practical importance, development in this area has been curiously slow. In many states, the fund has not yet been created. Moreover, the money
collected in some existing funds has been underutilized. See Ronaldo Macedo Júnior,
“Propostas para a Reformulação da Lei que Criou o Fundo de Reparação de Interesses
Difusos Lesados,” in Ação Civil Pública 752, 753 (Édis Milaré ed., 2001).
69. This percentage is common in individual litigation. For obvious reasons, the
percentage in class actions should be considerably lower.
70. See Brazilian Consumer Code, art. 87.
71. See generally Rowe, “The Legal Theory of Attorney Fee Shifting: A Critical
Overview,” 1982 Duke L.J. 651.
72. See Koch, “Class and Public Interest in German Law,” 5 C.J.Q. 66, 71 (1986)
(noting that the risk of incurring legal costs reduces the associations’ eagerness to
claim large and difficult cases.), id., “Group and Representative Actions in West German Procedure,” in German National Reports in Civil Matters for the XIIIth Congress
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In addition, class action plaintiffs do not have to advance the
payment of court costs, fees, experts’ fees or any other expenses.73
With these relatively simple adjustments from classical civil law
dogma, the Brazilian legislature disposed of financial barriers that
inhibit access to justice. In doing so, Brazil has also gone far in maximizing the effectiveness of the class action device.74
4.5 Shortcomings of Brazilian Class Actions
Despite these important innovations, Brazilian class action statutes are deficient in several aspects. For example, the “notice” requirement is satisfied merely by a single publication in an official
newspaper.75 This fictitious and perfunctory notice is clearly inadequate, particularly because of the low levels of public readership of
the official newspaper.76 Moreover, the statute provides for this noof Comparative Law in Montréal 27, 34 and 37 (1990) (noting that most class actions
in Germany (Verbandsklagen) are brought by publicly funded consumer centers.);
Kötz, “Civil Litigation and the Public Interest,” 1 C.J.Q. 237, 247-49 (1982) (noting
that the German legislation provides for a device that reduces the amount of attorney’s fees to be paid by the loser, if the party (plaintiff or defendant) is financially
unable to bear this expense.)
73. See Brazilian Consumer Code, art. 87.
74. In the United States, class attorneys can ethically advance these expenses
and finance the litigation on behalf of the class. See American Bar Association Model
Rules of Professional Conduct, Rule 1.8(e) (1983) (“[A] lawyer may advance court costs
and expenses of litigation, the repayment of which may be contingent on the outcome
of the matter.”) See also Rand v. Monsanto Co., 926 F.2d 596 (7th Cir.1991). This
rule is still a taboo in most civil-law systems, with rare exceptions.
Moreover, the “American rule” prohibiting fee shifting, supplemented by one-way
fee-shifting statutes in certain areas of public law litigation and the “common fund
doctrine,” further establishes adequate, albeit controversial, financial incentives for
lawyers who are vindicating group rights through the courts in the United States.
75. See Brazilian Consumer Code, art. 94.
76. The members of the Advisory Committee who drafted the Brazilian statute
clearly wished to avoid the consequences of Eisen v. Carlisle & Jacquelin, 417 U.S.
156 (1974), where, in a rare display of social insensitivity, the United States Supreme
Court made small claims class actions more difficult to bring. The Brazilian legislature, in its desire to facilitate access to justice, opted for the extreme opposite. While
the United States Supreme Court closed the doors of the courthouse to valid small
claims class actions, the Brazilian legislature opened them to proceedings conducted
without the participation of the people they intended to benefit. One can only expect
that both systems will ultimately arrive at a sensible intermediate solution to this
important problem, such as the ones found in Canada and Australia. See Antonio
Gidi, A Class Action Como Instrumento de Tutela Coletiva dos Direitos. Uma Perspectiva Comparada [The (American) Class Action as a Tool for Collective Protection of
Rights. A Comparative Perspective] 181-83 (forthcoming 2003). The vast majority of
American scholars have expressed dissatisfaction with Eisen. See generally, Marcus
et al., Civil Procedure – A Modern Approach 285-86 (1986); Dam, “Class Action Notice: Who Needs It?,” 1974 Sup. Ct. Rev. 97 (1974); Wright et al., 7b Federal Practice
and Procedure: Civil 2d, 201-06 (1986). Abundant criticism was also directed at the
Court of Appeals opinion in the case.
The need for a flexible system of notice had been suggested several years before
the Eisen decision. See Ford, “Federal Rule 23: A Device for Aiding the Small Claimant,” 10 B. C. Indus. & Com. L. Rev. 501, 511-12 (1969); Pomerantz, “New Developments in Class Actions – Has Their Death Knell Been Sounded?,” 25 Bus. Law. 1259,
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tice, inadequate as it is, only in class action for individual damages;
in other kinds of class actions, no notice is legally mandated.77
Another serious deficiency in the Brazilian statutes is the absence of a defendant class action provision. The absence of a clear
authorization and detailed determination of the proceeding may lead
some commentators to conclude that defendant class actions are not
yet possible in Brazil.78
Another major shortcoming of Brazilian class action law is the
absence of regulation and procedures for approval of settlements.
This aspect was neglected by the legislature, most likely because the
rate of settlement in Brazil is almost insignificant.79 American class
1263-66 (1970); Comment,” Adequate Representation, Notice and the New Class Action Rule: Effectuating Remedies Provided by the Securities laws,” 116 U. Pa. L. Rev.
889 (1968); Comment, “Constitutional and Statutory Requirements of Notice under
Rule 23(c)(2),” 10 B. C. Indus. and Com. L. Rev. 571 (1969); Miller, “Problems of Giving Notice in Class Actions,” 58 FRD 299, 319-20 (1973).
77. See infra Section 5.4, “Group Rights in Practice” (explaining diffuse, collective, and homogeneous individual rights.)
78. See Arruda Alvim, Thereza Alvim, Eduardo Arruda Alvim & James Marins,
Código do Consumidor Comentado 345-47 (1995); Pedro Dinamarco, Ação Civil Pública 268-73 (2001).
Contrary to what happens in common law jurisdictions, in which there is a pervasive absence of specific and detailed rules and the court has discretion to determine
the adequate proceeding of any suit, in civil-law systems the proceedings are specified
in great detail in the codes of procedure, and the absence of specific rules dictating the
proceeding is tantamount to an express prohibition. The “publicistic” approach to procedure in civil-law systems suggests that what is not expressly allowed by law is prohibited to the judge. For example, in a class action brought by the office of the
Attorney General of the State of Bahia against the association of private schools,
Judge Sı́lvia Zarif refused to certify a defendant class action against all private
schools in the State, because there was no positive law granting associations standing
to represent defendants. See 51 Ciência Jurı́dica 215 (1993). See Antonio Gidi, Coisa
Julgada e Litispendência em Ações Coletivas 52 (1995). Moreover, defendant class
actions will be ineffective in Brazil if the interpretation that prevails is that the class
decree in defendant class action can only benefit the members of the group, as is the
rule in plaintiff class actions. See infra Section 7, “Res Judicata”. In order to be effective, however, defendant class actions must be maintained without permission to “opt
out” and the class decree must be binding to all absent members of the class independently of the outcome of the litigation. See National Conference of Commissioners on
Uniform State Laws, Uniform Class Actions [Act] [Rule] Section 8(d) (1976) (“A member of a defendant class may not elect to be excluded.”)
An analogous problem is encountered in the American class action debate. Although Rule 23 expressly authorizes a defendant class action, it is clearly written
from the plaintiff class action viewpoint. See generally Note, “Defendant Class Actions,” 91 Harv. L. Rev. 630, 634 (1978); Note, “Certification of Defendant Classes
Under Rule 23(b)(2),” 84 Colum. L. Rev. 1371 (1984); Comment, “Defendant Class
Certification: The Difficulties Under Rule 23(b)(2) and the Rule 65(d) Solution,” 8 N.
Ill. U. L. Rev. 143 (1987); Conte e Newberg, 1 Newberg on Class Actions 4-37—4-38, 458—4-59, and 4-242—4-253; Max, “Defendant Class Suits as a Means of Legal and
Social Reform,” 13 Cum. L. Rev. 451, 456 (1983); 7A Wright, Miller e Kane, Federal
Practice and Procedure: Civil 2d, 461-63 (1986).
79. Apart from family and labor proceedings, settlement is a non-issue in Brazilian litigation practice. The reasons for this failure of the system are complex and
deserve a separate treatment. From a legal point of view, they stem, inter alia, from a
complete absence of effective devices to disincentivize defendants from pursuing meritless defenses. However, in general, it seems safe to say that class litigation is an
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plaintiffs negotiate aggressively with the opposing party.80 They can
and do make substantial concessions and may even partially or totally waive rights of absent class members. In comparison, the powers of the Brazilian class representative are very limited. Since the
rights do not belong to the representative, but to the group as a
whole, plaintiff cannot freely dispose of the group’s rights (“inalienable rights”). Therefore, representatives are allowed to make only peripheral concessions over the manner in which the defendant will
adjust its behavior to the law, regarding time and place, for
example.81
The power of the American class representative to settle the
group’s claim is legitimized by a sophisticated regulation of adequacy
of representation, which includes judicial approval of the settlement,
with notice to absent members, evidentiary hearing, right to intervene and challenge the terms of the settlement, right to opt out, etc.82
In contrast, in Brazil, as long as the statute or case law does not establish an adequate proceeding for court approval and notice to the
group, giving binding effect to any class-wide settlement would be a
precarious enterprise.83
The impact of this omission is further amplified by the specific
rules of res judicata in Brazilian class actions, which do not bind absentees if the judgment is not favorable to their interests.84 After all,
if the class decree is binding on the absent class members only if
favorable to their interests, to what extent should a class settlement
be binding at all?85
area of practice most conducive to settlement, particularly because the magnitude of
liability puts the defendant on equal grounds with the plaintif class.
80. Actually, in practice, the negotiation is conducted by class attorneys.
81. Most Brazilian scholars deny that representative entities in Brazil have broad
powers for negotiating settlement of group rights. See generally Vieira, “A Transação
na Esfera de Tutela dos Interesses Difusos e Coletivos: Compromisso de Ajustamento
de Conduta,” in Ação Civil Pública 220 (Édis Milaré ed., 2001); Fink, “Alternativa à
Ação Civil Pública Ambiental” (Reflexões Sobre as Vantagens do Termo de Ajustamento de Conduta), in Ação Civil Pública 113 (Édis Milaré ed., 2001); Francisco
Sampaio, Negócio Jurı́dico e Direitos Difusos 101-20 (1999); Patricia Pizzol, Liquidação nas Ações Coletivas 211 (1998); Hugo Mazzilli, O Inquérito Civil 361-62, 375-76,
and 392-94 (2000); Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas
44-46 (1995); Carneiro, “A Proteção dos Direitos Difusos Através do Compromisso de
Ajustamento de Conduta,” 6 Livro de Estudos Jurı́dicos 234 (1993); Rodolfo Mancuso,
Ação Civil Pública 225-38 (2001); Hugo Mazzili, A Defesa dos Interesses Difusos em
Juı́zo 283-303 (2001); Édis Milaré, “A Ação Civil Pública em Defesa do Ambiente,” in
Ação Civil Pública 193, 225-29 (Édis Milaré ed., 1995); Paulo Brandão, Ação Civil
Pública 127-35 (1996).
82. See Federal Rule of Civil Procedure 23(e).
83. In the United States, Australia, and Canada, settlement of class claims is subject to court approval. In an odd decision, the Scottish Law Commission expressly
decided against adopting such a rule. See Multi-Party Actions 29-31 (1996).
84. See infra Section 7, “Res Judicata.”
85. According to most Brazilian scholars, a settlement agreement does not bind
absent members who disagree with its terms and the same class action can be
brought again in protection of dissatisfied members. See José Vigliar, Tutela Jurisdi-
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The Brazilian class action legislation is rather comprehensive
and complex. The foregoing presentation does not allow an in depth
analysis of all its intricate aspects. This paper, therefore, will focus
on the most important aspects of the system, namely the rules concerning types of group rights, collective standing, res judicata, and lis
pendens.
5. TYPES
OF
GROUP RIGHTS86
5.1 (In)Compatibility of Group Rights with Civil Law Tradition
In the civil law tradition, the law is applied through abstractions:
legal principles and concepts, not pragmatic response, are the tools
used to apply law to facts.87 One of those “operative abstractions” is
the concept of “subjective right” (droit subjectif, subjektives Recht,
diritto soggettivo, derecho subjetivo,) which may be defined as a personal right, or a right that “belongs” to someone (a specific person).88
This abstraction is a central pillar of the civil law system, even
though recent doctrinal developments have eroded some of its integcional Coletiva 166 (1999); Marcelo Dawalibi,”Limites Subjetivos da Coisa Julgada
em Ação Civil Pública,” in Ação Civil Pública – 15 Anos 526, 538-42 (2001). This
notion shows that in Brazil the representatives can make no real concessions on behalf of the class, therefore this is not a real settlement agreement. If settlements are
binding on defendants and not on the class, there is no incentive for the defendant to
enter into real settlement negotiations in the fist place.
86. “Group rights” is the generic term used in this paper in opposition to
individual rights. As seen in Section 5.2, there are three kinds of group rights
recognized in Brazil (diffuse, collective, and homogeneous individual). In commonlaw terminology, “group rights” is the functional equivalent of “class claims.”
87. Cf. William Bridge et al., A Different Legal System, in Doing Business in Mexico 3.02[3] (Michael Gordon ed., 1992) (“[t]o paraphrase Holmes by inversion, the life
of the civil law has not been experience but logic.”), cited by James Smith, “Confronting Differences in the United States and Mexican Legal Systems in the Era of
NAFTA,” 1 U.S.-Mex. L.J. 85, 87-88 (1993).
88. For an explanation, in English, of the civil-law concept of “subjective right”,
See Hans Kelsen, Pure Theory of Law 125-30 (1989). It is revealing that the works of
Hans Kelsen, one of the most influential jurists in the dogmatic approach of law in the
civil law tradition, have little or no influence in American law, although he taught for
a long period in the United States. See also Federico Carpi, “Reflections on the Means
Available to Protect Subjective Rights,” in 1 Italian Yearbook of Civil Procedure 305
(Elio Fazzalari & Maurice Sheridan eds., 1991); Shelton, “Reconcilable Differences?
The Interpretation of Multilingual Treaties,” 20 Hastings Int’l & Comp. L. Rev. 611,
619 (1997) (noting that “The term “droit subjectif” has no equivalent in English”);
Hutson, “The Emergence of the Modern Concept of a Right in America: The ContriBution of Michel Villey,” 39 Am. J. Juris. 185, 189 (1994) (noting, citing French author
Michel Villey, that “subjective right is the “master word” of modern judicial thought, a
concept even more fundamental to modern jurisprudence than positivism.”) See also
Rodolfo Sacco, “Diversity and Uniformity in the Law,” 49 Am. J. Comp. L. 171, 182
(2001) (noting that “the notion of a “subjective right” . . . has impeded German and
Italian scholars (and, before them, the students of Roman law) to affirm that trust
exists also on the continent. . .”). A classic is Jean Dabin, Le Droit Subjectiff (1952).
For a critical analysis of the concept of “subjective right,” See Ross, “Tû-tû,” 70 Harv.
L. Rev. 812 (1957) (arguing that “subjective right” is an expression with no meaning
and does not exist per se; it is merely used as a convenient systematic explanation of
legal relationships among people.)
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rity. If the plaintiff does not have a “personal right” recognized by
the legal system, he or she cannot be successful in court.89
One of the most frequent arguments against the introduction of
the class action in Brazil, as in other civil law countries, was the objection that group rights do not fit in with the traditional individualistic standards laid out by the European jurists of the 19th century
who worked under the influence of the Napoleonic codes. The reasoning was simple: since all rights must belong to someone, and
group rights, like legal interests in the environment, do not belong to
anyone, no one could assert such rights in a court proceeding. Unattached rights do not exist in substantive law, and therefore cannot be
vindicated in court.90
89. Another relevant abstraction in some civil-law countries that follow a system
of administrative jurisdiction, such as Italy, is the concept of “legitimate interest” (interesse legittimo.) On the rather complex difference between subjective rights and
legitimate interests, See generally Mauro Cappelletti & Joseph Perillo, Civil Procedure in Italy 112 (1965); Mauro Cappelletti, John Henry Merryman and Joseph Perillo, The Italian Legal System: An Introduction 81-82 and 115-16 (1967) (“a right
(diritto soggettivo) is defined as an interest directly guaranteed by law to an individual, whereas a legitimate interest (interesse legittimo) is defined as an individual interest closely connected with a public interest and protected by law only through the
legal protection of the latter.”) (citation omited). See Parker, “Standing to Litigate
‘Abstract Social Interests’ in the United States and Italy: Reexamining ‘Injury in
Fact’,” 33 Colum. J. Transnat’l L. 259, 278-82 (1995) (noting that, in Italy, in order to
have authority to act in a legal proceeding, “the plaintiff must allege in the initial
pleadings that the defendant violated either a “subjective right” (“diritto soggettivo”)
if the case is brought in the “ordinary” courts or a “legitimate interest” (“interesse
legittimo”) if the case is brought in the administrative courts.” Moreover, “[i]n determining whether a plaintiff is alleging the existence of a protected diritto soggettivo or
interesse legittimo and the necessary possession (titolarità) to such a right or interest,
the Italian courts have generally looked for claims rooted in traditional notions of
property and individual ownership.”) (emphasis added). The Brazilian system, however, does not have administrative jurisdiction and, therefore, makes no such
distiction.
90. See generally Cappalli & Consolo, “Class Actions for Continental Europe? A
Preliminary Inquiry,” 6 Temp. Int’l & Comp. L.J. 217, 289-90 (1992) (arguing that the
greatest obstacle to class action in Italy is the “continuing centrality . . . of the injured
person’s role as the personal holder and proponent of rights, not as figurehead.”);
Nicolò Trocker, “The Protection of Group Interests Through the Civil Courts,” in 1
Italian Yearbook of Civil Procedure 125, 125-25 (1991); Wouter Le R. de Vos, “Reflections on the Introduction of a Class Action in South Africa,” Tydskrif Vir Die SuidAfrikaanse Reg 639, 642 (1996) (noting that “[t]he obstacle that has thus far impeded
public interest actions in South Africa is the well-known locus standi rule, which requires that the plaintiff must have a personal interest in the relief claimed.”). See
also Parker, “Standing to Litigate ‘Abstract Social Interests’ in the United States and
Italy: Reexamining ‘Injury in Fact’,” 33 Colum. J. Transnat’l L. 259, 280, note 72
(1995); Mauro Cappelletti, The Judicial Process in Comparative Perspective 272-74
(1991); Sassani, “Définition d’Intérêt Collectif Justifiant les Différentes Action en Justice des Organisations de Consommateurs dans les États Membres de la Communauté Européenne,” 5 Roma e America 121, 131, n. 19 (1998).
The opposition was probably never expressly raised in any academic publication.
This perplexity, however, was pervasive in the legal profession. Scholars would consider the subject scientifically unworthy, judges would dismiss cases that did not fit
the existing legal concepts, and lawyers would not risk their reputations by bringing
such “inadmissible” suits. This dynamic also played a decisive role in the minds of
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Civil lawyers continue to have great difficulty overcoming this
conceptual obstacle, particularly because they widely regard law as
science and rely on a highly logical systematization of law. Facts and
social needs that do not fit into the traditional “legal science” created
over the centuries either do not or should not exist. For a major legal
innovation to occur, civil law jurists must first arrive at a consensus
to change the “science.”91 Needless to say, this dogmatic approach
remains a powerful psychological obstacle in changing the status
quo.92
civil-law jurists, consistently discrediting any proposal of class action legislation. The
Brazilian Consumer Code, for example, reflected the fear that courts and commentators would not accept “group rights” as a droit subjectif and called them, in the alternative, “interests or rights”. The same technique is used by the Spanish Ley de
Enjuiciamiento Civil, art. 11 (2000) (referring to them as “derechos e intereses colectivos y difusos” [interests and rights]). Calmon de Passos, however, demonstrated
that any interest protected by the legal system is a droit subjectif. Cf. Calmon de
Passos, Mandado de Segurança Coletivo, Mandado de Injunção, Habeas Data—Constituição e Processo 9-17 (1989). The Model Code of Civil Procedure for Ibero America
(arts. 53 and 194) and the codes of civil procedure of Uruguay (arts. 42 and 220) and
Peru (arts. IV and 82) refer to group rights merely as “intereses” [interests].
For other, more fully developed, objections to the introduction of class actions in a
civil law system (and responses to those objections,) See Andrea Giussani, Studi Sulle
“Class Actions” 371 and 376-99 (1996); Louis Boré, La Défense des Intérêts Collectifs
par les Associations Devant les Juridictions Administratives et Judiciaires 412-36
(1997); Francis Caballero, “Plaidons par Procureur!, De l’Archaı̈sme Procédural à
l’Action de Groupe,” R. Trim. D. Civ. 247 (1985); Patrick Glenn, “À Propos de la Maxime “Nul ne Plaide par Procureur,” R. Trim. D. Civ. 59 (1988); Valérie Courtois, La
Class Action: Les Raisons de son Echec en France (1990); Mauro Cappelletti, The Judicial Process in Comparative Perspective 294-99 (1991); Federico Carpi, “Cenni sulla
Tutela degli Interessi Collettivi nel Processo Civile e la Cosa Giudicata,” 3 Rivista
Trimestrale di Diritto e Procedura Civile, 957 (1974); Cappalli & Consolo, Class Actions for Continental Europe? A Preliminary Inquiry, 6 Temp. Int’l & Comp. L.J. 217
(1992); Lindblom, “Individual Litigation and Mass. Justice: A Swedish Perspective
and Proposal on Group Actions in Civil Procedure,” 45 Am. J. Comp. L. 805, 828-30
(1997).
91. See Vittorio Denti, “Relazione Introdutiva,” in Le Azioni a Tutela Degli Interessi Collettivi 18 (Vittorio Denti ed., 1976); id. Interessi Diffusi, at 2089-90 (recognizing the doctrinal tradition as a heavy obstacle to the protection of group rights in
court.) See generally John Merryman, The Civil Law Tradition 63 (1985) (“[l]ike the
natural sciences, legal science [in civil-law tradition] is highly systematic. Principles
derived from a scientific study of legal data are made to fit together in a very intricate
way. As new principles are discovered they must be fully integrated into the system.
If new data do not fit, either the system must be modified to accommodate them, or
they must be modified to fit the system. In this way the preservation of systematic
values becomes an important consideration in criticizing and reforming the law”). For
a critical perspective, See Mauro Cappelletti, John Henry Merryman and Joseph Perillo, The Italian Legal System: An Introduction 161 and 164 ss (1967) (arguing that
“[p]rocedural doctrine is marked by an excessive emphasis on systematic construction
and dogmatics; often purely theoretical in structure, it is divorced from the social,
economic and ideological bases of the law. . .”)
92. Conservatism, however, is not a monopoly of civil law jurisdictions. See Andrews, “Multi-Party Proceedings in England: Representative and Group Actions,” 11
Duke J. Comp & Int’l L. 249 (2001) (arguing that “[t]he English legal system is more
circumspect than many other systems in recognizing new legal techniques and
concepts.”)
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In civil law systems, substantive and procedural law have traditionally operated exclusively in terms of individual needs and interests.93 Until quite recently, Brazilian law largely reflected the needs
of a vanishing agricultural and individualistic society that is now at
odds with the country’s new role as a semi-industrialized economy.
The old legal model was not sufficiently well equipped to deal with
collective or mass conflicts inherent to modern society. In order to
respond to a growing body of concern over group interests, mere adaptations of existing rules were not enough. It was necessary to overcome the old dogmas and build a new system of substantive and
procedural law that could respond to the needs of the new mass
society.94
93. See generally Lindblom, “Individual Litigation and Mass Justice: A Swedish
Perspective and Proposal on Group Actions in Civil Procedure,” 45 Am. J. Comp. L.
805, 816 (1997) (“. . . the Swedish Code of Procedure knows individuals only,” paraphrasing Roscoe Pound); Glenn, “Class Actions in Ontario and Quebec,” 62 The Canadian Bar Review 247 (1984) (arguing that “[t]he civil adjudicative process, whether of
the adversarial or of the investigative tradition, is profoundly marked by liberal political philosophy”); Thewes, “Les Actions en Justice des Groupements en Droit Comparé,” 5 Annales du Droit Luxembourgeois 39, 81 (arguing that France, Belgium,
Luxembourg, Germany, and Switzerland maintain an individualistic approach to law
and procedure.)
94. See Taruffo, “Group Actions in Civil Procedure,” in Italian National Reports to
the XIIIth International Congress of Comparative Law 191 (1990) (referring to a
“revolution in the legal culture and in procedural institutions”); Cappelletti, “La Protection d’Intérêts Collectifs et de Groupe dans le Procès Civil (Métamorphoses de la
Procédure Civile),” 27 R.I.D.C. 571, 587 (1975) (referring to a “metamorphosis” of the
procedural legal system that would demolish the traditional rules and structures); id.
“Appunti sulla Tutela Giurisdizionale di Interessi Collettivi o Diffusi,” in Le Azioni a
Tutela degli Interessi Collettivi 191, 208-17 (Vittorio Denti ed., 1976) (favoring a “destructive criticism” and “legal reform” over a “manipulative interpretation” of old
rules); Martin & Martin, “L’Action Collective,” JCP 1984 I 3162 (questioning whether
the French jurists were ready for an iconoclasm of their traditional legal principles);
Vittorio Denti, “Relazione Introdutiva,” in Le Azioni a Tutela Degli Interessi Collettivi
18 (Vittorio Denti ed., 1976); Cappelletti & Garth, “Finding an Appropriate Compromise: A Comparative Study of Individualistic Models and Group Rights in Civil Procedure,” in Walter Habscheid (ed.), Effectiveness of Judicial protection and
Constitutional Order. The General Reports for the VIIth International Congress on
Procedural Law. Würzburg. 117, 126 (1983) (arguing that “[t]he problem of protecting
diffuse interests is not just a technical malfunction in civil procedure; it calls into
question the basic structure of civil procedure as we have known it for over a century.”). Indeed, the problem of protecting diffuse rights is not confined to the boundaries of civil procedure; it calls into question the basic structure of the legal system as a
whole.
In sharp contrast, See Proto Pisani, “Appunti Preliminari per uno Studio sulla
Tutela Giurisdizionale degli Interessi Collettivi (o Più Esatamente: Superindividuali)
Innanzi al Giudice Civile Ordinario,” in Le Azioni a Tutela Degli Interessi Collettivi
270 (Vittorio Denti ed., 1976) (favoring a technique of constructive interpretation to
adapt old rules to current needs.) Cautioning against the risk of “throwing the baby
out with the bath water,” Per Henrik Lindblom suggests that, “instead of tearing
down and rebuilding traditional civil procedure to fit mass claims, the mass claims
should be adapted to the traditional individualistic two-party procedure as far as possible.” See Lindblom, “Individual Litigation and Mass Justice: A Swedish Perspective
and Proposal on Group Actions in Civil Procedure,” 45 Am. J. Comp. L. 805, 819
(1997). See also Mauro Cappelletti, The Judicial Process in Comparative Perspective
304 (1991) (adopting a more prudent tone than in his earlier publications and arguing
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In order to develop a system of class litigation that would be acceptable to civil lawyers, it was important first to create substantive
rights in the positive law and then attribute them to groups. If the
legal system does not specifically provide for those rights, the class
action would be a procedural tool with no rights to protect.95 This
was accomplished by the Brazilian Constitution and by many substantive statutes enacted in the 1980s and 1990s.96 It was then necessary to create the needed abstractions and bestow a “legal title”
upon group rights. Moreover, these abstractions had to be conceptualized in a manner that gave scholars and judges the comfort of the
familiar, scientific approach. Only then could a procedural tool for
vindication of group rights be successfully designed and utilized.97
With both hope and apprehension, Brazilian jurists witnessed
this dialectic of legislative creation of new substantive rights and procedural remedies that derogated from established legal concepts.98
Fifteen years after the enactment of the first Brazilian class action
statute, today it is clear that the initial apprehension was misplaced
and that there was no reason to fear that this change would compromise the structural integrity of the civil-law legal system. The same
spirit of adherence to the written law remained and the same fundathat “[e]ven the most sacred principles . . . must . . . be reconsidered in view of the
changed needs of contemporary societies. Reconsideration, however, does not mean
abandonment, but rather adaptation. . . [A]n individualistic vision of procedural due
process should give way to, or be integrated with, a social or collective concept of due
process.”); Mauro Cappelletti & Bryant Garth, “Finding an Appropriate Compromise:
A Comparative Study of Individualistic Models and Group Rights in Civil Procedure,”
in Effectiveness of Judicial protection and Constitutional Order. The General Reports
for the VIIth International Congress on Procedural Law. Würzburg. 156 (Walter Habscheid ed., 1983) (arguing that “[s]ometimes traditional, inflexible, individual rights
such as due process can be modified only at the risk of giving the powerful another
weapon against the relatively weak”); Girolamo Monteleone, I Limiti Soggettivi del
Giudicato Civile 178 (1978).
95. See Ontario Law Reform Comission, I Report on Class Actions 213 (1982) (noting that “a class action is primary a procedural device, designed to give effect to existing statutory and common law remedies . . . regardless of the pervasive nature of
an alleged wrong, if the substantive law does not provide an applicable remedy, a
class action will be of no avail to aggrieved persons.”) See also J. A. Jolowicz, On Civil
Procedure 98-99 and 125-28 (2000) (differentiating the procedural “protection” of existing group rights in courts from the “creation” of group rights in the substantive law
and noting that, in the absence of a directly applicable legal framework in the substantive law, the issue is not justiciable. In those circumstances, mass conflicts of
interests can only be resolved at the political level.)
96. These statutes deal, for example, with environment, securities, antitrust, cultural heritage, public finance, consumer and minority rights. See generally Márcio
Leal, Ações Coletivas: História, Teoria e Prática 117 (1998); José Vigliar, Tutela Jurisdicional Coletiva 106-27 (1999); Motauri Souza, Interesses Difusos em Espécie (2000);
José Leite, Dano Ambiental: Do Individual ao Coletivo Extra Patrimonial (2000).
97. See generally Proto Pisani, “Appunti Preliminari per uno Studio sulla Tutela
Giurisdizionale degli Interessi Collettivi (o Più Esatamente: Superindividuali) Innanzi al Giudice Civile Ordinario,” in Le Azioni a Tutela Degli Interessi Collettivi 269
(Vittorio Denti ed., 1976) (arguing that once the Constitution and statutes grant new
substantive rights, it is imperative to afford judicial protection to those rights.)
98. See supra Section 3, “Brief History.”
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mental legal principles were maintained. The written law had only
changed in a very specific point, in order to create a new procedural
device aimed at facilitating access to justice for group rights.99
5.2 Types of Group Rights Recognized in Brazil
Article 81 of the Brazilian Consumer Code enumerates the categories of group rights amenable to collective litigation in Brazil.100 It
classifies group rights as “diffuse,” “collective,” and “homogeneous individual” rights.101 These three types of “group rights” theoretically
correspond to three types of class actions, each with a slightly different procedure and scope of judgment.
As in the original Rule 23 of the American Federal Rules of Civil
Procedure, effective in 1938, the procedure of the Brazilian class ac99. See Cappelletti & Garth, “Finding an Appropriate Compromise: A Comparative Study of Individualistic Models and Group Rights in Civil Procedure,” in Effectiveness of Judicial Protection and Constitutional Order. The General Reports for the
VIIth International Congress on Procedural Law. Würzburg. 156-57 (Walter Habscheid ed., 1983) (arguing that a class action is merely a method to ensure legality:
“[t]he protection of diffuse interests can be seen simply as a problem of ensuring that
the behavior of large institutions conforms to constitutional and statutory law.”) Indeed, the class action merely give standing to invoke the courts’ jurisdiction and petition them to apply a legal remedy to a situation of mass illegality.
100. See Brazilian Consumer Code, art. 81, translated infra Section 10.1.
101. See infra Section 5.4, “Group Rights in Practice”. The Brazilian statute
adopts a similar structure to the one suggested at the VIIth International Congress of
Procedural Law held in Würzburg in 1983 (The Protection of Diffuse, Fragmented and
Collective Interests in Civil Litigation). See Cappelletti & Garth, “Finding an Appropriate Compromise: A Comparative Study of Individualistic Models and Group Rights
in Civil Procedure,” in Effectiveness of Judicial protection and Constitutional Order.
The General Reports for the VIIth International Congress on Procedural Law. Würzburg. 117 (Walter Habscheid ed., 1983).
In contrast to the French and German approaches, Italian scholars approach the
protection of group rights in courts from the point of view of the substantive right, not
the procedural remedy. The Italian legal science is particularly rich with attempts to
define the concepts of diffuse and collective rights. There are almost as many different definitions as there are scholars in the field. See generally Le Azioni a Tutela
Degli Interessi Collettivi (Vittorio Denti ed., 1976); La Tutela degli Interessi Diffusi nel
Diritto Comparato (Antonio Gambaro ed.,1976); Vincenzo Vigoriti, Interessi Collettivi
e Processo—la Legittimazione ad Agire, (1979); Ugo Ruffolo, Interessi Collettivi o Diffusi e Tutela del Consumatore (1985); Giorgio Costantino, “Brevi Note Sulla Tutela
Giurisdizionale degli Interessi Collettivi Davanti al Giudice Civile,” Dir. e Giur. 817
(1974), Vittorio Denti, “Interessi Diffusi,” IV App. Nov. Dig. It. 305; Nicolò Trocker,
“Interessi Collettivi e Diffusi,” XVII Enc. Giur. Treccani. For a summary in English of
the Italian debate, See Cappalli & Consolo, “Class Actions for Continental Europe? A
Preliminary Inquiry,” 6 Temp. Int’l & Comp. L.J. 217, 264-66, n. 270 (1992); Nicolò
Trocker, “The Protection of Group Interests Through the Civil Courts,” in 1 Italian
Yearbook of Civil Procedure 125 (Elio Fazzalari & Maurice Sheridan eds., 1991).
Brazil has benefited greatly from the long debate in Italy, but has created a distinctive and functional approach to the legal definition of group rights, not only distinguishing diffuse from collective rights, but also creating the new category of
homogeneous individual rights. See generally Péricles Prade, Conceito de Interesses
Difusos (1987); Rodolfo Mancuso, Interesses Difusos. Conceito e Legitimação para Agir
(2000). See also Calmon de Passos, “Substituição Processual e Interesses Difusos,
Coletivos e Homogêneos. Vale a Pena “Pensar” de Novo?” in Seleções Jurı́dicas 25
(1993) (offering a critical analysis.)
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tion depends largely on the characteristics of the right being protected in court.102 At first glance, this approach may seem as
complicated, abstract and difficult to apply as the old American
“true,” “hybrid” and “spurious” class actions, whereby the court had
to categorize the rights as joint, common, secondary or several.103
This comparison is not entirely acurate, but the fundamental logic is
the same, i.e., that the facts must be subsumed within the typology of
the written rule. Although the Brazilian classification of group rights
is not as abstract and confusing as the original version of the US Rule
23, there is a great deal of overlap and confusion within the Brazilian
concepts.104
According to article 81 of the Brazilian Consumer Code, a “DIFFUSE RIGHT” is a transindividual and indivisible right that belongs to
a group of indeterminate people not previously connected, who are
linked only by the factual circumstances of the specific instance. A
“COLLECTIVE RIGHT” is also “transindividual” and “indivisible,” but belongs to a more specific group of persons linked to each other or to the
opposing party by a legal relationship. The “HOMOGENEOUS INDIVIDUAL RIGHTS” are divisible individual rights with a common origin.105
Article 81 is the civil law equivalent to Rule 23(b) of the current
American Federal Rules of Civil Procedure.106 Comparison of the
rules reflects a profound philosophical difference between the two
procedural systems: while lawyers in common-law jurisdictions think
of law in terms of “types of actions” or “types of facts,” civil lawyers
think of it in terms of “types of substantive rights.” The classification
is not the same in both systems, but there are some similarities. As a
general proposition, it can be said that “diffuse” and “collective”
rights are rights belonging to the group as a whole, such as those
protected by an injunction or global class damages. In contrast, “homogeneous individual” rights are used for the protection of individual
rights, such as class actions for individual damages.107
102. See Fed. R. Civ. P. 23 (1938).
103. See Fed. R. Civ. P. 23 (1938).
104. The Brazilian legislature could have avoided this result had they learned from
the history of American class action that it is a mistake to establish different procedures for subcategories of class action. In American class action law, the rules of
notice and “opt out” are inappropriately differentiated in Rule 23(b)(3) class actions as
compared to the other two types of class actions. Likewise, in Brazilian class action
law, the rules of class member intervention and res judicata are unreasonably different in class actions brought to protect homogeneous individual rights as compared to
the other two types of class actions.
105. See Brazilian Consumer Code, art. 81, translated infra Section 10.1.
106. See Fed. R. Civ. P. 23 (b).
107. An example of global class damage is the environmental damage to a river
(violation of a diffuse right) and an example of individual damages stemming from
that same situation are the economic damages suffered by each fisherman (violation
of homogeneous individual rights.)
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5.3 Transindividual and Indivisible Group Rights
Before illustrating each of these kinds of rights, one must first
explain the conceptual underpinnings of a “transindividual right”
and the related concept of “indivisibility of the right.”
The concept of a “transindividual right” (or “supra-individual
right”) merely means that the right is not individual, but exists as an
entity distinct from any individual or group of individuals. It transcends the individual and yet it is not a mere collection of individual
rights.108 Therefore, it is legally irrelevant to determine which individuals belong to the group and are, ultimately, the holders of the
transidividual right.109 A “transindividual” right, such as the purity
of the air, the cleanliness of a river, the truthfulness of advertisements, or the safety of products, belongs to the community as a
whole, not to specific individuals, or associations, nor to the government. In economic terms, it consists of a “public good.” Therefore,
this right is situated halfway between public and private law.110 Although transindividual rights are situated halfway between individual rights and the public interest, some cases traditionally classified
under the category of “public interest litigation” in some jurisdictions,
are considered, in Brazil, to be class actions in protection of transindividual rights.111
108. See Kazuo Watanabe, Código Brasileiro de Defesa do Consumidor 723 (1999);
Arruda Alvim, Thereza Alvim, Eduardo Arruda Alvim & James Marins, Código do
Consumidor Comentado 366 (1995)
109. Compare Arruda Alvim, Thereza Alvim, Eduardo Arruda Alvim & James
Marins, Código do Consumidor Comentado 365 (1995) (arguing that it is legally irrelevant to determine which individuals belong to the group) with Calmon de Passos,
“Substituição Processual e Interesses Difusos, Coletivos e Homogêneos. Vale a Pena
“Pensar” de Novo?,” in Seleções Jurı́dicas 25, 28 (1993) (arguing that it is essential to
individually determine each member of the group, because of the defendant’s due process right to present a legal defense).
110. The civil law traditionally divides the law into private and public law, the first
consisting of civil (torts, contracts, property) and commercial law and the second consisting of constitutional, administrative and criminal law. See John Henry Merryman, The Civil Law Tradition 68-79, 133-41 (1985). The recognition of group rights
led to the need to accept that there were a tertium genus between public and private
law. See Cappelletti, “La Protection d’Intérêts Collectifs et de Groupe dans le Procès
Civil (Métamorphoses de la Procédure Civile),” 27 R. I. D. C. 571, 574-5 (1975); Cappelletti & Garth, “Finding an Appropriate Compromise: A Comparative Study of Individualistic Models and Group Rights in Civil Procedure,” in Effectiveness of Judicial
protection and Constitutional Order. The General Reports for the VIIth International
Congress on Procedural Law. Würzburg. 117, 123-28 (Walter Habscheid ed., 1983).
See also J.A. Jolowicz, On Civil Procedure 97-108 (2000).
111. On public interest litigation in the United States, See generally Homburger,
“Private suits in the public interest in the United States of America,” 23 Buffalo L.
Rev. 343 (1974); Chayes, “The Role of the Judge in Public Law Litigation,” 89 Harv. L.
Rev. 1281 (1976); id. “The Supreme Court, 1981 Term: Foreword: Public Law Litigation and the Burger Court,” 96 Harv. L. Rev. 4 (1982); Marcus, “Public Law Litigation
and Legal Scholarship,” U. Mich. J.L. Ref. 647 (1988); Weinstein “Ethical Dilemmas
in Mass Tort Litigation,” 88 Nw. U.L. Rev. 469 (1994) (arguing that mass tort cases
are akin to public litigations); Mullenix, “Mass Tort as Public Law Litigation: Para-
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Recognition of a right that belongs to an indeterminate group of
people without legal personality is indeed a departure from traditional civil-law dogma.112 The statute incorporated the concept of
transindividuality because the legislature felt the need to acknowledge affirmatively the existence of a new category of positive rights,
in order to avoid misinterpretations by the most conservative courts
and scholars, who might otherwise have emasculated the statute.
The concept of “indivisibility of the right,” however, is both practically relevant and easier to understand. The right is indivisible
whenever it cannot be divided into separate individual claims. This
means that it is impossible to divide the right into quotas attributable to each one of the group’s members; the interests of the members
are so closely related that, when relief is granted to one member, it
implies satisfaction of each group member’s claims, and when the
rights of one of the members are violated it implies violation of the
rights of the whole group.113 Therefore, when the right is indivisible
it is not possible to limit legal relief to specific members of the group.
digm Misplaced,” 88 Nw. U.L. Rev. 579 (1994) (disagreeing with Judge Jack Weinstein, and distinguishing mass torts from public interest litigation).
For a comparative perspective, See Kötz, “Public Interest Litigation: A Comparative Survey,” in Access to Justice and the Welfare State 85 (Mauro Cappelletti ed.,
1981); Feldman, “Public Interest Litigation and Constitutional Theory in Comparative Perspective,” 55 M.L.R. 44 (1992); Langer, “Public Interest in Civil Law, Socialist
Law, and Common Law Systems: The Role of the Public Prosecutor,” 36 Am. J.
Comp. L. 279 (1988); Greve, “The Non-Reformation of Administrative Law: Standing
to Sue and Public Interest Litigation in West German Environmental Law,” 22 Cornell Int’l L.J. 197 (1989). See Marc Thewes, Les Actions en Justice des Groupements
en Droit Comparé, 5 Annales du Droit Luxembourgeois 39, 50 and 64 (1995) (noting
that case law in France and Luxembourg have liberal rules on actions brought by
associations to protect the collective interests of their members (intérêts collectives de
leurs members,) but do not allow the protection of the general interest (intérêt general.) See also Public Interest Litigation Before European Courts 385 (Hans-W. Micklitz and Norbert Reich eds., 1996) (analysing recent developments in Europe.)
112. A relatively recent legal fiction that closely resembles the contemporary need
for recognition of a transindividual right is the possibility of a corporation holding
rights and enforcing them in court (artificial or legal persons, as distinct from natural
or physical persons.) In class action litigation, it is as if the group were a corporation,
with the difference that in the class action the group has no previous legal recognition
(incorporation) and thus has no legal personality; it does not have a legal existence
recognized by the law. See Stephen Yeazell, From Medieval Litigation to the Modern
Class Action 1-2 and 20-21 (noting that groups who had no previous organization may
become, through the medium of the class action, a single “litigative entity,” capable of
pressing claims in court.)
113. See Proto Pisani, “Appunti Preliminari per uno Studio sulla Tutela Giurisdizionale degli Interessi Collettivi (o Più Esatamente: Superindividuali) Innanzi al Giudice Civile Ordinario,” in Le Azioni a Tutela Degli Interessi Collettivi 263, 264 and
278 (Vittorio Denti ed., 1976); Barbosa Moreira, “A Legitimação para a Defesa dos
‘interesses difusos’ no Direito Brasileiro,” in Temas de Direito Processual. Terceira
Série 184 (1984). See also Grinover, “As Garantias Constitucionais do Processo nas
Ações Coletivas,” in Novas Tendências do Direito Processual 45, 51 (1990); Calmon de
Passos, “Substituição Processual e Interesses Difusos, Coletivos e Homogêneos. Vale
a Pena “Pensar” de Novo?,” in Seleções Jurı́dicas 25-26 (1993).
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A good example illustrating the concept of “transindividual” and
“indivisible” rights is the airing of a misleading or deceptive advertisement. Since such an advertisement harms the community as a
whole, not only specific individuals, an injunctive class action to remove this alleged misleading advertisement from the air benefits the
whole community or no one. For practical reasons, this right is considered indivisible because the broadcasting cannot be eliminated
from one television set and not another. On the other hand, the individual right to monetary damages for harm caused by the same advertisement is an example of a right that is neither indivisible nor
transindividual. The Brazilian substantive law provides for damages
if a consumer is harmed by a misleading or deceptive advertisement.114 However, the many individual damage claims arising from
the same advertisement may be decided differently by different
courts, even though the claims are similar. Some consumers may fail
to convince the court that they were deceived by the advertisement or
that it was misleading in the first place, while others may present a
strong case for damages. The rights are divisible among class members and each person has his or her own discrete personal right to
damages.115 One should resist, however, the temptation to call them
“several rights.”
Recognition of the concept of indivisible class claims would be an
important evolution in American class action law. It would be a useful criterion, for example, to decide whether there should be a right to
“opt out” of the class or not. For example, in case of indivisible claims
(indivisible remedy, from a common-law perspective) there could be
no “opt out” right (“mandatory class actions”), while in cases concerning divisible claims, the right to “opt out” could either be as of right or
left to the discretion of the court.116 The way the matter is currently
regulated in Rule 23 seems a little arbitrary. The fact that Rule 23
limits the possibility of “opting out” to (b)(3) class actions is disturbing for someone who tries to find some rational basis in the
law.117
114. See Consumer Code, art. 37.
115. Understanding that the same factual situation may give rise to different
kinds of group rights (diffuse, collective, and homogeneous individual) is essential to
the understanding of the res judicata effect of Brazilian class actions. See infra Section 7, “Res Judicata.”
116. See Cooper, “Rule 23: Challenges to the Rulemaking Process,” 71 N.Y.U. L.
Rev. 13, 33-4 and 70-1 (1996) (proposing to reform Rule 23 by adding new subdivision
(c)(1)(A) that gives discretionary power to the court to determine whether the class
action should proceed on an ‘opt out’ or ‘opt in’ basis).
117. See Fed. R. Civ. P. 23(c)(2)(A) (limiting the right to opt out to class actions for
individual damages.) It is understandable that a (b)(1) class action be mandatory
because its objective is to avoid contradictory decisions. However, there is no inherent
reason why this right is denied a priori for (b)(2) class members and unconditionally
permitted for (b)(3) class members. It is not a convincing argument to say that (b)(2)
classes are generally more cohesive than (b)(3) classes. See Wright et al., 7B Federal
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Even though class actions were created in Brazil only to facilitate
access to justice, the category of indivisible rights might also be understood within the spirit of American Federal Rule 23(b)(1)(A): individual litigation would create a risk of establishing “incompatible
standards of conduct for the party opposing the class.”
In the litigation of indivisible rights in the United States, such as
a class action seeking an order to desegregate a city’s school system, a
tension may be created if members of the class disagree on the way
the litigation should be conducted or on the remedy sought.118 This
is a serious problem that has to be faced by the court, and cannot be
overcome by the easy path of opt out. The problem exists to a lesser
extent in the litigation of a divisible right, in which, if divergences are
irreconcilable, dissatisfied members may resort to opt out.
5.4 Group Rights in Practice
Examples illustrating the three kinds of group rights that may
be adjudicated through class litigation may clarify Brazilian class action law. Since this is an area where civil procedure closely connects
with substantive law, some examples may not be encountered in
other jurisdictions.
5.4.1 Diffuse Rights
The most illuminating examples of diffuse rights are found in the
fields of environmental and consumer protection.119 The right to a
safe environment, and to truthfulness in advertising belongs to everyone in the community and, at the same time, belongs to no one in
particular.
In the case of pollution in a bay, for example, it is apparent that
the bay does not belong to anyone in particular; pollution of its waPractice and Procedure: Civil 2d 255 (1986); Kamp, “Adjudicating the Rights of the
Plaintiff Class: Current Procedural Problems,” 26 St. Louis U. L.J. 364, 392-4 (1982);
Cottreau, “The Due Process Right to Opt Out of Class Actions,” 73 N.Y.U.L. Rev. 480
(1998).
According to some, the ideal solution is to deny the right to “opt out” in all cases.
See Note, “Developments in the Law – Class Actions,” 89 Harv. L. Rev. 1318, 1488
(1976). See also Friedman, “Constrained Individualism in Group Litigation:Requiring Class Members to Make a Good Cause Showing before Opting Out of a
Federal Class Action,” 100 Yale L.J. 745, 761-2 (1990) (presenting ideas and proposals
regarding opting out.)
118. See generally Bell, “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” 85 Yale L.J. 470 (1976); Rhode, “Class Conflicts in Class Actions,” 34 Stan. L. Rev. 1183 (1982); Garth, “Conflict and Dissent in
Class Actions: A Suggested Perspective,” 77 NW. U. L. Rev. 492, 499-504 (1982); Rubenstein, “Divided We Litigation. Addressing Disputes Among Group Members and
Lawyers in Civil Rights Campaigns,” 106 Yale L.J. 1623 (1997).
119. Numerous practical examples of class actions in protection of diffuse rights
are found in Findley, “Pollution Control in Brazil,” 15 Ecology L.Q. 1, 45-9 (1988)
(describing several environmental class actions brought in Brazil by the office of the
Attorney General.)
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ters will damage the community as a whole, and the cleaning of the
water will benefit the group as a whole (indivisibility). This right belongs to the community as a whole, not to individual members of the
group. It is a transindividual right, not an individual right. Since
there is no distinct property right in jeopardy, this conflict cannot be
compared with the nineteenth century neighborhood controversies
and cannot be solved by the traditional rules of nuisance.
In a class action for the protection of diffuse rights, the court may
issue various kinds of orders. Examples might include an injunction
to avoid future harm, an order to reinstate the status quo ante, or a
damage award to compensate for the global harm caused to the community, or all of these remedies, according to the needs of the specific
case. Brazilian class action statutes favor the remedy of specific performance, enforced by daily fines. Only when specific performance is
not possible is there a damage award.120 The damage award reverts
to a governmental fund.121 In the example of environmental litigation, the court may enjoin a polluter from depositing chemical waste
into a bay, as well as compel the defendant to install a filter, order
cleaning of the waters following past pollution, or demand payment of
damages for the global harm caused to the environment. In a case of
misleading advertisement, the court may prevent the advertisement
from being broadcasted, order corrective advertising at the defendant’s expense, as well as impose damages for the global harm caused
to consumers.
It is important to stress, however, that the right protected
through this kind of class action is the diffuse right. As already
noted, a diffuse right is transindividual and indivisible; it belongs to
a group of unidentifiable people without any previous links, who are
only connected with each other because of a specific event.122 Therefore, protection of the diffuse right in court does not preclude protection of individual rights of class members harmed by the defendant’s
illegal conduct.123 Class members actually harmed by the pollution
or advertisement can still claim individual damages, individually or
through a class action for individual damages.124
120. See Brazilian Consumer Code, art. 84, paragraph 1; Public Civil Action Act,
art. 11.
121. See supra Section 4.4, “Innovations in Brazilian Class Actions”.
122. See Brazilian Consumer Code, art. 81, sole paragraph, translated infra Section 10.1.
123. In addition, it does not affect the applicability of the criminal law. In Brazilian law, the conducts above described may constitute a crime, according to consumer
and environmental laws.
124. See infra Section 5.4.3, “Homogeneous individual rights.”
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5.4.2 Collective Rights
A collective right is defined by statute in terms similar to a diffuse right.125 A collective right is also defined as transindividual and
indivisible. However, it differs from a diffuse right in that, instead of
the group being constituted of indefinite persons linked only by factual circumstances (living in the same neighborhood, buying the
same product, watching the same television program, etc), the members of the group in the case of a collective right are linked to each
other, or to the opposing party, by a prior common legal relationship.
The pre-existing common legal relationship makes the membership in the class more definite in the case of collective rights than in
the case of diffuse rights. For example, when a bank, a credit card
company or a school charges excessive or illegal fees to its clients, or a
health insurance company refuses to cover treatment for some diseases, they are violating the collective rights of their clients. In those
cases, there is a contractual relationship that links all class members
(consumers) with the opposing party (corporation). Thus, an injunctive claim against the defendant to cease charging abusive or illegal
fees, or to conform its practices to the substantive law, falls in this
category. Because each contract is governed by the same provisions
(usually an adhesion contract,) and each is subject to the same substantive law, the decision regarding the legality of the defendant’s
conduct is identical for all members of the group. This is a common
question of law that allows a uniform decision that will affect the interests of all class members.126
The statute prescribes that collective rights are transindividual
and indivisible.127 In some cases, the collective right may be truly
indivisible, such as when the controversy concerns the quality of instruction in a given school.128 In that case, there is no separate individual student’s right to competent instruction. This group right is
indivisible because it is impossible to divide it into quotas attributable to each group member. Therefore, it cannot be divided into separate individual injunctive claims or limit legal relief to specific
members of the group. The interests of the class members are so
closely related that, if relief is granted to one member, it implies sat125. See supra Section 5.2, “Types of Group Rights Recognized in Brazil”; See infra
a translation to article 81, sole paragraph, II.
126. It is important to reiterate that, contrary to what happens in the United
States, private and procedural law in Brazil is Federal Law, regulated by the national
codes and uniform in all 26 states. Conflicts of laws problems, as they are known in
the United States, are unheard of in domestic law. According to the structure of the
Brazilian constitutional system, state legislatures have legislative jurisdiction limited
to questions of local interest. See Brazilian Constitution, art. 25 ss (1988).
127. See supra Section 5.2, “Types of Group Rights Recognized in Brazil”; See Brazilian Consumer Code, art. 81, sole paragraph, II, translated infra Section 10.1.
128. See Nelson Nery Junior & Rosa Nery, Código de Processo Civil Comentado
1394 (1997).
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isfaction of each group member’s claims, and if the rights of one of the
members are violated it implies violation of the rights of the whole
group. From that point of view, there is little difference between collective rights and diffuse rights.129
However, this is not necessarily true in all cases of collective
rights. Unlike the examples of diffuse rights (pollution of a bay, or
advertisements on television,) in the above examples of collective
rights, the defendant can charge illegal fees or refuse to cover treatment to some, but not all, clients (however unlikely this may be.) In
addition, one member of the class may be successful in an individual
action, while another may not. In these cases, the collective right is
divisible into individual rights held by members of the class. The indivisibility of the collective right arises only from the legal authorization to treat the controversy collectively, affording the possibility of a
uniform and indivisible decision of the case. From that point of view,
there is little difference between collective rights and homogeneous
individual rights.130
5.4.3 Homogeneous Individual Rights
Diffuse and collective rights are a novel byproduct of the end-ofthe-twentieth-century ideology that seeks to protect the environment,
consumer and minority rights, and other group rights, through injunctions applicable to the group as a whole. They are, therefore, a
new category of substantive right, an abstraction created by legal
scientists to address the contemporary needs of a mass society. Homogeneous individual rights, however, are the very same individual
rights that have traditionally been known in the civil law system as
“droits subjectifs”. The novel concept of homogeneous individual
rights only reflects the creation of a new procedural device for the
unitary treatment of related individual rights in a single action: a
class action for individual damages.
In a mass controversy, many individual claims for damages may
arise from a “common origin” (common question of law or fact).131 Violation of diffuse rights may give rise to infringement of a series of
connected individual rights. Because these individual rights have a
common origin, they are called “homogeneous.”132 In the preceding
129. See supra Section 5.3, “Transindividual and Indivisible Group Rights.”
130. See Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas 26-28
(1995). See also Rodolfo de Camargo Mancuso, Comentários ao Código de Proteção do
Consumidor 276 (1991); Ada P. Grinover, “A Coisa Julgada Perante a Constituição, a
Lei da Ação Civil Pública, o Estatuto da Criança e do Adolescente, e o Código de
Defesa do Consumidor,” in 5 Livro de Estudos Jurı́dicos 412 (1992); Márcio Leal,
Ações Coletivas: História, Teoria e Prática 188-200 (1998).
131. See Brazilian Consumer Code, art. 81, sole paragraph, III translated infra
Section 10.1.
132. Understanding this point is essential to understanding the effect of res judicata on Brazilian class actions. See Section 7, “Res Judicata.”
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discussion about the divisibility of the diffuse right, the example was
provided of a claim to terminate the broadcast of an allegedly misleading or deceptive advertisement. Such a claim protects a diffuse
right; the individual rights to damages resulting from the same advertisement are homogeneous individual rights.133
The concept of “homogeneous” rights is further illustrated by the
aforementioned example of pollution in a bay.134 For example, suppose the inhabitants of the area were injured by the pollution; some
people might have developed health problems, others, such as fishermen or landowners, might have suffered property damage. The class
claim to render the defendant liable to those individual members of
the class fits under the label of homogeneous individual rights. Similarly, individual claims for damages suffered by each client in the example of the health insurance company’s illegal refusal to cover
treatment also fit in this category.135
The statute does not and probably could not provide a clear definition of individual homogeneous rights. It merely states that they
are rights of common origin, without explaining what “common origin” is. Common origin, however, is correlated to the broader but
more precise notion of “common questions of law or fact.” It is crucial
to this concept of “common origin” that the individual rights have the
same or similar cause of action. This is what defines the individual
rights as “homogeneous” and permits uniform treatment and judgment. The rights or claims continue, however, to be merely a collection of separate individual personal rights (droits subjectifs)
individually held by each class member.
“Common origin” does not mean that the origin of the claim is
necessarily one single event at a determinate time, resulting in mass
injury, as would be the case with an explosion, an airplane crash, or
the collapse of a building. The event that is the “common origin” of
the homogeneous individual rights may, in fact, be dispersed accros
time and space, so long as the facts are so closely related that they
may be considered legally one and the same.136 In the case of pollution in a bay, the damage might have been caused by years of ongoing
hazardous waste dumping and not by one isolated act. In the case of
a misleading or deceptive advertisement, it does not matter if some
individuals were deceived during one broadcast and others during
133. See supra Section 5.4.1, “Diffuse Rights”.
134. See supra Section 5.4.1, “Diffuse Rights”.
135. See supra Section 5.4.2, “Collective Rights”.
136. See Kazuo Watanabe, Código Brasileiro de Defesa do Consumidor 724 (1999);
Kazuo Watanabe, “Demandas Coletivas e os Problemas Emergentes da Práxis
Forense,” in As Garantias do Cidadão na Justiça 189 (Sálvio Teixeira ed., 1993); Arruda Alvim, Thereza Alvim, Eduardo Arruda Alvim & James Marins, Código do Consumidor Comentado 371, 377 and 380 (1995); Antonio Gidi, Coisa Julgada e
Litispendência em Ações Coletivas 31-32 (1995).
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another, or in a different city, as long as there is a sufficient link
between the advertisements.
The Brazilian class action for individual damages is largely an
“issue class action,” as opposed to its American counterpart.137 Its
scope is limited to declaring a defendant’s liability. In case the class
action is successful, each individual class member must bring his or
her own case to court, to establish that the claimant is a member of
the group (causation) and to prove the amount and extent of the individual damages suffered.138
This device may overcome serious problems of factual, legal, and
evidentiary complexities in mass torts, especially in toxic tort cases,
in which questions of individual causation and damages are peculiar
to each class member.139 In a different sense, however, the need for
individual suits is a serious shortcoming of Brazilian class actions for
individual damages, especially in small claims class actions. Consistent with traditional civil-law practice, after issuance of the class decree, class members have to commence new individual actions to
prove causation and calculate damages and, after this action is over,
a new enforcement suit is necessary in order to enforce the
judgment.140
American class action experience, however, has shown that
sometimes the calculation of individual damages can be relatively
straightforward, such as when a formula may be devised, when statistical methods can be used, or when simply consulting the defendant’s records is enough to provide individual calculations of
damages. In such cases, it would have been better if the Brazilian
statutes had allowed the judge to award damages in the class decree
and order payment to class members. Brazilian law makes no such
137. As will be explained below, Brazilian class actions involve both issue preclusion and issue class actions. See infra Section 7.4, “Brazilian Approach to Res Judicata in Class Actions” (noting that “the whole system of res judicata in Brazilian class
actions can be understood through the concept of issue preclusion. . .”)
138. See infra Section 7.4, “Brazilian Approach to Res Judicata in Class Actions”.
This type of issue class action for damages has been available in England at least
since 1981. See J. A. Jolowicz, On Civil Procedure 132-33 (2000) (noting that “the
furthest any [English] judge has been prepared to go was to make a declaration that
each member of the class was entitled to recover from the defendant such damages as
he could prove in separate proceedings in which the issue of the defendant’s liability,
and that alone, would be res judicata.”) (citing Prudential Assurance Co. Ltd. V. Newman Industries Ltd. [1981] ch. 229).
139. In Castano v. American Tobacco Co., 84 F.3d 734, 745, n. 21 (5th Cir. 1996),
the Court did not allow the use of the issue class action device to overcome the lack of
predominance in an American class action (reasoning that “[a] district court cannot
manufacture predominance through the nimble use of [issue class action.]”)
140. See generally, Patricia Pizzol, Liquidação nas Ações Coletivas (1998); Luiz
Wambier, Liquidação de Sentença (2000); Elton Venturi, Execução da Tutela Coletiva
(2000); Luiz Araújo Filho, Ações Coletivas: A Tutela Jurisdicional dos Direitos Individuais Homogêneos (2000); Flávio Yarshell, “Observações a Propósito da Liquidação na Tutela de Direitos Individuais Homogêneos,” in Atualidades Sobre Liquidação
de Sentença 15 (Teresa Wambier ed., 1997).
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provision, but authorizes the representative to enforce the class decree if, within one year, an insufficient number of class members
have come forward to bring individual actions for damages. The representative must then prove the amount of damages caused to the
class members in its entirety. The global damage award thus obtained reverts to a Government Fund to be used in the protection of
group rights similar to the ones violated (fluid recovery).141 Rather
than the rule, as it is in Brazilian law, issue class actions should be
the exception in class actions for individual damages and should be
an option only in cases in which calculation of individual damages or
the proof of causation cannot be achieved within the main class
proceeding.
5.5 Legal Definition of Group Rights: The Need for Flexibility
The existence of legal definitions of group rights minimizes the
need for extensive consideration about the presence of common questions or predominance in a specific case.142 Since Roman Law, however, it has been generally recognized that legal definition carries the
danger of being incomplete or inadequate, thereby obstructing legal
development by the courts (in iure civili omnis definitio periculosa
est).
The Consumer Code Drafting Committee acknowledged this
problem. However, at that time, the idea of protecting group rights
in courts was novel, almost revolutionary, and the few scholars writing about the subject in Brazil and Italy had employed diverging definitions of diffuse and collective rights.143 Without a clear definition
of group rights in the written statute, the courts might have approached the whole system of class action with excessive conserva141. This topic is rather complex in Brazilian law and cannot be adequately developed here. The proceeding for a Brazilian class action for damages is set forth in articles 91 to 100 of the Consumer Code. See article 100. For a brief description of these
Special Fund Accounts, See supra Section 4.4, “Innovations in Brazilian Class
Actions.”
142. Perhaps for this reason, the Brazilian class action statutes dispensed with a
specific certification stage. But see Cooper, “Class-Action Advice in the Form of Questions,” 11 Duke J. Comp & Int’l L. 215 (2001) (discussing the importance of the certification stage in class action litigation).
143. In the face of many contradictory definitions, in Spain, diffuse rights are sarcastically termed confused rights. See Andrés de la Oliva Santos & Ignacio Dı́ez-Picazo Giménez, Derecho Procesal Civil. El Proceso de Declaración 596 (2000) (referring
to the practice, in Spain, of calling “derechos difusos” as “derechos confusos y
profusos”). Massimo Villone called diffuse rights an “absolutely misterious character.” See Massimo Vilone, “La Colocazione Istituzionale dell’Interesse Diffuso (Considerazione sul Sistema Statunitense),” in La Tutela degli Interessi Diffusi nel Diritto
Comparato 71, 73 (A. Gambaro ed., 1976) (referring to diffuse rights as a “personaggio
assolutamente misterioso.”) See supra n. 101.
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tism.144 The Drafting Committee correctly risked the limiting effects
of codification in favor of certainty and uniformity in the applicability
of the new statute.
The legal definition adopted by the Brazilian legislature seems to
be sufficiently precise, yet broad enough to encompass all situations
in which class treatment is needed. It is imperative, however, that
Brazilian judges and scholars understand that the definitions of
group rights enumerated in the class action statute are only general
categories. They should not constrain the power of the court when
the factual situation is adequate for class treatment but does not fit
into the legal definitions of diffuse, collective, and individual homogeneous rights. These abstract definitions are important only insofar
as they facilitate an understanding of the kinds of rights that can be
vindicated collectively in court.
In the early years of the class action statute, the definitions facilitated judicial application of the novel procedural rules and helped
stablish the concept and scope of class action litigation. It was important then, even if only for pedagogical purposes, that the written law
established and consolidated the theoretical contours of various
group rights.145
Despite these substantive legal definitions, ambiguities and
problems arose concerning the statute’s application.146 The Brazilian
statute does not explicitly state that a class action requires a common
question of law or fact among class members. This requirement,
however, is implicit in the definition of each kind of group right. The
statute prescribes that class members are linked by “factual circumstances” in the definition of diffuse rights; by a “legal relationship” in
the definition of collective rights; and by a “common origin” in the
definition of homogeneous individual rights.147 The use of legal abstractions resulted in unnecessary statutory line drawing, creating
needless and unjustified differences in the ways in which the three
types of class actions were carried out.148
144. See Benjamin, “Group Action and Consumer Protection in Brazil,” in Group
Actions and Consumer Protection 141, 149 (Thierry Bourgoignie ed., 1992); Kazuo
Watanabe, Código Brasileiro de Defesa do Consumidor 711 (1999).
145. Civil-law systems that provide for protection of diffuse rights without a clear
legal definition of the concept may face some difficulty in utilizing class proceedings,
especially if the courts are conservative or not willing to play an active role in matters
of public interest. See generally Santiago Campos, “Interesses Difusos y Colectivos en
Uruguay: Marco Conceptual, Legitimación y Effectos de la Cosa Juzgada,” Revista
Uruguaya de Derecho Procesal 249, 254-59 (2000) (arguing that in Uruguay, diffuse
interests have escaped a precise legal definition and there is no consensus whether
there is a difference between diffuse and collective rights.)
146. See Kazuo Watanabe, Código do Consumidor Comentado 729-31 (listing examples in which Brazilian courts displayed a lack of understanding of the legal
definitions).
147. See Brazilian Consumer Code, art. 81, translated infra Section 10.1.
148. In numerous situations, the Brazilian legislature created unwarranted differences in the proceedings of each kind of class action. For example, members of the
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However, Brazil must abandon abstractions and instead adopt
the traditional and simple common-question standard. Such a standard supplies the necessary flexibility to deal with group rights.149
Adoption of the common-question standard would enable labels to be
developed doctrinally.150 The abstract definitions contained in the
Brazilian statute could then be tested and modified in the laboratory
of concrete controversies. Under the current statutes, however, the
facts must be squeezed to fit the definitions.151
An important distinction among group rights remains, however,
between essentially collective and accidentally collective rights.152
Essentially collective rights are the transindividual and indivisible
rights that belong to an entire community, such as the right to pure
air or truthful advertisements. Accidentally collective rights are the
traditionally individual rights that belong to individual members of
the group that are accorded collective relief through a class action
because of the existence of common question of law or fact (individual
and divisible.) Those are quite different categories, and may require
different rules of procedure. To quote the European Community’s
Green Book, the former are “protection of collective rights” and the
group can join class actions for the protection of homogeneous individual rights in
order to assist the representative plaintiffs (See Consumer Code, art. 94), but this
option is unavailable to members in class actions filed to protect diffuse or collective
rights. See infra. n. 271.
149. On the theoretical foundation of common questions, See Hazard, Jr., “The Effect of the Class Action Device Upon the Substantive Law,” 58 FRD 307, 309-10
(1973) (arguing that the class action’s “unique characteristic is the assertion that a
large number of individuals are, in one aspect of their legal status, indistinguishable
from each other and that they should therefore be considered essentially as one. The
members of the class can say this of themselves precisely because in this aspect of
their legal status, they were treated as one by their antagonist, or so they claim.”)
150. See Zechariah Chafee, Jr., “Representative Suits,” in Some Problems of Equity
243, 245-49, 255-57, 264-65, 280-01 (1950). Zechariah Chafee, Jr.’s criticisms of the
original version of Rule 23 are well known and are equally applicable to the version of
Rule 23 currently in force. See Cooper, “Rule 23: Challenges to the Rulemaking Process,” 71 N.Y.U. L. Rev. 13, 53-54 (1996) (proposing an excellent reform of Rule 23, in
which the predetermined labels stated in Subdivision (b) would be transformed into a
criteria pertinent to the analysis of the superiority of the class action.) See also National Conference of Commissioners on Uniform State Laws, Uniform Class Actions
[Act] [Rule] Section 3 (1976) (listing criteria to be considered by the court in determining whether to certify an action as a class action.)
151. I am mindful that, today, it is extremely easy to criticize the Brazilian class
action statutes. In fairness, however, it should be noted that only a generation ago
the Brazilian legislature found a “terra icognita” not only in Brazil, but in all civil-law
systems. The legislature made sense out of a bunch of academic abstractions, creating a practical and operative categorization of group rights. The members of the Advisory Committee who drafted the proposal for the class action statutes should be
commended for this pioneering accomplishment.
152. See Barbosa Moreira, “A Tutela Jurisdicional dos Interesses Coletivos ou
Difusos,” in Temas de Direito Processual, Terceira Série 193 (1984). See also Serge
Guinchard, “L’Action de Group en Procédure Civile Française,” 42 R.I.D.C. 599
(1990).
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latter the “collective protection of individual rights.”153 This distinction essentially mirrors that between true group rights and spurious
group rights as defined by the original US Rule 23 enacted in 1938.154
If the latter terms did not have a negative connotation in the American jurisprudence, they would readily apply to this distinction.155
6. COLLECTIVE STANDING156
6.1 Civil Law Resistence to Collective Standing
Once the substantive law recognizes legal protection for group
rights, another fundamental problem arises: who should the law recognize as having “collective standing” to represent the group’s interests in court?
It has proved to be very difficult to assimilate the new concept of
a representative suit to the long-standing dogmas built by legal scholars. To allow courts to protect group rights, civil law systems must
abandon the orthodox and individualistic principles of civil procedure, which traditionally have demanded the existence of a personal
and direct interest in the outcome of the litigation and thus have not
allowed such absentee representation.157
153. See Livre Vert (Green Book) “L’Accès des Consommateurs à la Justice,” November 16, 1996, COM(93) 576 final; See also Bruno Sassani, “Définition d’Intérêt
Collectif Justifiant les Différentes Action en Justice des Organisations de Consommateurs dans les États Membres de la Communauté Européenne,” 5 Roma e America
121, 139 (1998); Teori Zavascki, Defesa de Direitos Coletivos e Defesa Coletiva de
Direitos 78 Revista de Processo 32 (1995); Serge Guinchard, “L’Action de Group en
Procédure Civile Française,” 42 R.I.D.C. 599, 606 (1990).
154. See Fed. R. Civ. P. 23 (1938).
155. See Kaplan, “Continuing Work of the Civil Committee: 1966 Amendments of
the Federal Rules of Civil Procedure (I),” 81 Harv. L. Rev. 356, 395, n. 150 (1967)
(arguing that “the word ‘spurious’ should ultimately disappear from the class-action
lexicon.”)
156. Standing to sue, the common law doctrine of locus standi (the issue whether
the plaintiff has a sufficient stake in the proceeding to invoke the judicial process), is
the only available translation of the civil law concept of legitimatio ad causam. These
two concepts, however, do not coincide precisely. See Parker, “Standing to Litigate
‘Abstract Social Interests’ in the United States and Italy: Reexamining ‘Injury in
Fact’,” 33 Colum. J. Transnat’l L. 259, 278-82 (1995) (noting that legitimatio ad
causam “may be translated as the power or authority to act in a legal proceeding, or
the power to seek from a court a decision on the merits of a legal claim.”) In this
article, in absence of a better term, the expression “collective standing” (or class
standing) will designate the kind of persons authorized under national law to bring a
class action to protect group rights.
157. Civil law countries generally forbid a suit to protect third persons’ rights unless otherwise allowed by the law or by that person. See, e.g., Codice di Procedura
Civile art. 81 (It.); Código de Processo Civil art. 6 (Braz.). See also Cappelletti, “Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study,” in II Access to Justice. Promising Institutions 834-35 (Cappelletti &
Weisner ed., 1979); Watanabe, “Tutela Jurisdicional dos Interesses Difusos: A Legitimação para Agir,” in A Tutela dos Interesses Difusos 85 (Ada P. Grinover ed., 1984);
Koch, “Cross Border Consumer Complaints and the Public Interest. The German Perspective, in Public Interest Litigation Before European Courts 427, 431 (Hans-W.
Micklitz & Norbert Reich eds., 1996) (“[The courts] seem to be afraid of abundant
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The struggle for recognition of group rights on the protection of
the environment has been particularly difficult. Harald Koch gives
an example in which the North Sea seals were the plaintiffs in an
action against the Federal Republic of Germany challenging a waste
grant for the North Sea. The seals were represented in court by environmental groups. Predictably, the case was dismissed for lack of legal capacity of the seals. However, the objective of the groups was to
publicize their cause and inform public opinion.158
The question of who should have standing to represent a group’s
interests in court may not have been a serious concern in the early
years of group litigation in the United States, because the historical
assystematic development of representative suits has led to the selection of a group member as class representative.159 Contemporary
civil law systems incorporating class litigation into national civil procedure through systematic and comparative consideration, however,
may take into account a number of models that were not previously
available in early common law. Thus, while civil law systems are not
as flexible as common law systems in adapting to changes and the
emergence of new situations, they can benefit by learning from procedural developments in other jurisdictions. In this sense, civil law systems may ultimately benefit from their inherent resistance to
change.160
litigation by all kinds of people doing nothing other than pursue other people’s or the
public interest . . . But it seems doubtful whether this risk is really so imminent, and
even if so, whether it could not be tolerated”); Scott, “Standing in the Supreme Court –
A Functional Analysis,” 86 Harv. L. Rev. 645, 674 (1973) (arguing that “the idle whimsical plaintiff, a dilettante who litigates for a lark, is a spectre which haunts the legal
literature, not the court room.”); Kötz, “Civil Litigation and the Public Interest,” 1
C.J.Q. 237, 251 (1982) (arguing that “traditional rules on standing are based on a
built-in bias in that they unduly favour proprietary or other economic interests held
by individuals, but discriminate against fragmented and diffuse interests held by the
public or large segments of it.”); Sassani, “Définition d’Intérêt Collectif Justifiant
lesDdifférentes Action en Justice des Organisations de Consommateurs dans les
États Membres de la Communauté Européenne,” 5 Roma e America 121, 161-62
(1998). Compare the more liberal common law rule on standing in Canadial law in
Peter Hogg, Constitutional Law 1263-74 with the more restrictive American law in
Laurence H. Tribe, American Constitutional Law 107-56 (1988).
158. See Koch, “Group and Representative Actions in West German Procedure,” in
German National Reports in Civil Law Matters for the XIIIth Congress of Comparative Law in Montréal 27, 33-34 (1990). See also Stone, “Should Trees Have Standing?—Toward Legal Rights for Natural Objects,” 45 S. Cal. L. Rev. 450 (1972);
Mendelson, III, “Should Animals Have Standing? A Review of Standing Under the
Animal Welfare Act,” 24 B.C. Envtl. Aff. L. Rev. 795 (1997); Sunstein, “Standing for
Animals (With Notes on Animal Rights),” 47 UCLA L. Rev. 1333 (2000); Note, Kolber,
“Standing Upright: The Moral and Legal Standing of Humans and Other Apes,” 54
Stan. L. Rev. 163 (2001).
159. See Stephen Yeazell, From Medieval Group Litigation to the Modern Class
Action (1987).
160. Other common law countries may also have benefited in a similar way from
the long delay in adopting class action proceedings. See Ontario Law Reform Commission, I Report on Class Actions 279-308 (1982) (considering whether class proceedings
are to be initiated by class members or by government officials.)
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6.2 Choice of Class Representative
Rules of standing and res judicata in class actions are two sides
of the same coin; behind each lies the need for protection of absent
members’ rights. Although the question of collective standing temporally precedes the problem of res judicata in the course of litigation,
for the legislature it is logically subsequent, because only after the
legislature mandates that the class judgment will bind absent members, will it have to decide who is able to adequately represent their
interests in court.
One of the most crucial components of any class action legislation
is determining who can represent a group’s interest in court. There
are many bases on which to identify an appropriate representative
for the group’s interests. The law may vest this power in an individual (whether or not a member of the group,) a private association
(whether or not previously authorized by the government, by the
court or by its members,) or the government (through agencies or
public officials, the ombudsman, or the office of the Attorney
General.)
These options are not necessarily mutually exclusive. Each solution has both advantages and disadvantages, and no single approach
is likely to achieve an ideal system on its own. Limiting the selection
of class representation to just one of the three alternatives might be
more detrimental than beneficial to the integrity of the system, to
absent members, and to defendants. A combination of the three options, enabling individuals as well as public and private entities to
have “collective standing,” promotes the positive aspects of each approach while mitigating the inherent problems and risks of the
others.161 The Brazilian class action statutes have adopted a plural161. See Cappelletti, “Governmental and Private Advocates for the Public Interest
in Civil Litigation: A Comparative Study,” in II Access to Justice. Promising Institutions 856, 861-65 (Cappelletti & Weisner ed., 1979) (“I believe that the lesson is one of
pluralism”; “Private” and “governmental” action should supplement each other”;
“[t]he answer – admittedly difficult to implement – is to combine solutions, encouraging individual and organizational championship for the public interest in addition to
governmental intervention and control”); Mauro Cappelletti, The Judicial Process in
Comparative Perspective 283-87 and 297-99 (1991) (giving examples in comparative
law of “the myriad ways to combine, and mutually integrate, the ‘partisan zeal of
private interest groups’ with the equilibrium, the detachment, and the ‘neutrality’ of a
governmental official who is midway between a judge and a public administrator”);
Proto Pisani, “Appunti Preliminari per uno Studio sulla Tutela Giurisdizionale degli
Interessi Collettivi (o Più Esatamente: Superindividuali) Innanzi al Giudice Civile
Ordinario,” in Le Azioni a Tutela Degli Interessi Collettivi 263, 274-79 (Vittorio Denti
ed., 1976). See also Barbosa Moreira, “A Legitimação para a Defesa dos ‘interesses
difusos’ no Direito Brasileiro,” in Temas de Direito Processual. Terceira Série 184, 185
(1984); Cappelletti & Garth, “Finding an Appropriate Compromise: A Comparative
Study of Individualistic Models and Group Rights in Civil Procedure,” in Effectiveness
of Judicial protection and Constitutional Order. The General Reports for the VIIth
International Congress on Procedural Law. Würzburg. 117 (Walter Habscheid ed.,
1983); Kojima, “Protection of Diffuse, Fragmented and Collective Interests in Civil
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istic model, conferring standing upon a broad and diverse list of entities. There is no ideal model, however. Other jurisdictions, when
deciding how to determine standing requirements for class action
suits, should consider the society’s peculiarities and needs.
6.3 Brazilian Approach to Collective Standing
Article 82 of the Brazilian Consumer Code exclusively confers
“standing” to initiate a class action on behalf of the group’s interests,
upon the office of the Attorney General (Ministère Public – Ministério
Público), the Federative Republic of Brazil, the states, municipalities,
and the Federal District, administrative agencies, and private associations (nongovernmental organizations.) These entities can bring
a class action alone or jointly.162
Adopting Anglo-American legal terminology, the philosophy underlying Brazilian class actions might be regarded as akin to “parens
patriae” actions, rather than “private attorney general” suits, because
of the government’s collective standing. However, the Brazilian class
action doctrine actually rests somewhere between those two concepts,
insofar as not only the government but also a private association has
standing to represent a group in court. A consumer or environmental
association has a role that is much like a “private attorney general”
as does an individual member of the class.163
Article 82 prescribes an exhaustive list; only the parties enumerated above—the office of the Attorney General (Ministère Public), the
Federative Republic of Brazil, the states, municipalities, the Federal
District, administrative agencies, and private associations—have
standing to sue on behalf of a group.164 New statutes or amendments
may alter this general rule eventually, either by expanding or restricting the list of representatives. At this time, however, individuals, whether or not they are members of the affected group, lack
standing to sue on behalf of the group’s interests, outside the limited
scope of the popular action.165
Litigation,” in Perspectives on Civil Justice and ADR: Japan and the U.S.A 3, 3-4
(1990) (arguing that “[e]specially in the field of diffuse and collective interests, a
healthy competition between the public and private sectors should be encouraged”).
162. See Brazilian Consumer Code, art. 82, translated infra Section 10.1.
163. See Cappelletti, “Governmental and Private Advocates for the Public Interest
in Civil Litigation: A Comparative Study,” in II Access to Justice. Promising Institutions 773-75 (Mauro Cappelletti & John Weisner ed., 1979) (distinguishing, for classification purposes, between “individual private attorney general” and “organizational
private attorney general.”) The phrase “private attorney general” is relatively recent.
It was first used by judge Jerome Frank in Associated Industries, Inc. v. Ickes, 134
F.2d 694, 704 (2d Cir. 1943) (Frank J.), vacated 320 U.S. 707 (1943). See also Jaffe,
“The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff,” 116 U. Pa. L. Rev. 1033 (1968) (using the phrase “ideological plaintiff”).
164. See Brazilian Consumer Code, art. 82, translated infra Section 10.1.
165. The actio popularis is the only kind of class action in Brazil that is filed exclusively by private persons, but its scope is very limited. The Actio Popularis Act gives
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Since individual members of the group have no standing to sue
on behalf of the group, the typicality requirement does not arise in
Brazilian law. The legislature gave standing to entities in recognition of a social or community interest in a class suit, and not — as in
the United States — in reliance on individual interest and initiative.166 By doing this, the Brazilian legislature also bypassed technically complex rules of court-created associational standing.167
There is, moreover, no formal requirement regarding adequacy of
representation. This does not mean that the question of adequacy of
representation, or fairness to absentees, is irrelevant in Brazil.
Rather, adequacy of representation is not generally a matter left to
judicial discretion. The legislature prescribed a priori a standard
identification of plaintiffs who could fairly and adequately represent
the group’s interests. It was thus implicit in the legislature’s reasoning and decisionmaking that those selected entities would represent
the group’s interests more fairly than would one of the class
members.168
To ensure fair treatment for absentee class members, the Brazilian statute requires that the office of Attorney General be notified of
the filing of any class suit and invited to intervene as an “overBrazilian “citizens” standing to sue only for the violation of political rights (nullification of public acts that violate the public patrimony, the environment, rights of historic or cultural value or the morality in public administration). See Brazilian
Constitution, art. 5, LXXIII. See supra n. 26.
166. For the contrasting view in the United States, See generally Homburger,
“State Class Actions and the Federal Rules,” 71 Colum. L. Rev. 690, 610 (1971) (arguing that “[t]he basic philosophy of class actions has remained unchanged through the
centuries. Self-interest, the motivating force that sparks the adversary system, also
sustains the doctrine of class action. We may trust man to help his fellow man if by
doing so helps himself – particularly if only by helping others will he be able to protect
and promote his own interests. Building on that simple premise, the device provides
for the use of man’s natural instinct to act in his own best interest in order to achieve
justice and procedural efficiency in mass litigation.”) See also Degnan, “Foreword:
Adequacy of Representation in Class Action,” 60 Cal. L. Rev. 705 (1972). Compare
Wouter de Vos, “Reflections on the Introduction of a Class Action in South Africa,”
Tydskrif Vir Die Suid-Afrikaanse Reg 639, 643-44 (1996) (arguing that “the representative may also be inclined to advance his own interests to the detriment of the other
members of the class.”)
167. The numerosity requirement is also nonexistent in Brazil. In some systems,
the law requires a class composed of at least two or more members (Canada), in
others, at least seven or more (Australia), or ten or more (China.) In the United
States, Federal Rule 23(a)(1) requires joinder impracticability (“the class is so numerous that joinder of all members is impracticable.”) The criterion adopted in American
law is flexible; when the class is relatively small (20 to 40 members,) the court takes
into account a myriad of factors in order to determine the presence of this prerequisite. See generally Herbert Newberg and Alba Conte, 1 Newberg on Class Actions 313–3-45 (1992); Verner, Jr., “Numerosity and Federal Rule 23: How Many is Too
Many?” 49 UMKC L. Rev. 312 (1981). There is no compelling reason, however, for the
existence of this requirement, other than history and tradition. See Federal Equity
Rule 48 (1842); Federal Equity Rule 38 (1912).
168. See infra Section 7.5, “Res Judicata and Insufficient Evidence” (discussing adequacy of representation in light of the production of insufficient evidence).
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seer.”169 In the context of the civil law tradition, being a neutral disinterested third party, the Attorney General may be in a better
position than the judge to monitor the proceeding, evaluate the adequacy of representation, and protect the group’s interests.170 Moreover, among the broad list of entities with standing to bring class
suits, any of them has the right to intervene in the class proceeding to
assist the original plaintiff.171 This “assistant party” may exercise an
active role, including taking an appeal, or even assume the role of
representative altogether if the original plaintiff abandons the proceeding. At least in theory, this mitigates some of the concerns regarding adequacy of representation that might otherwise arise. The
fact that collective standing is limited to organizations and official
entities further reduces the need for the judge to be active in controlling adequacy.
The reluctance of civil-law jurisdictions to grant collective standing to individuals can be better understood if one recalls some of the
characteristics of civil-law systems, particularly the lack of an entrepreneurial bar, the existence of a fee-shifting rule, and the comparatively low amounts of damages and attorneys’ fees awards.172
Indeed, in a system that is considerably defendant oriented, such as
civil-law systems, the main concern is not with strike suits or blackmail (plaintiffs are powerless enough as it is!), but with the adequacy
of representation of group rights in court. In addition, class action
defendants are usually “repeat players,” such as well-organized corporations and the government.173
169. See Popular Action Act, art. 5, § 1; Consumer Code, art. 92.
This is a recurrent theme in class action legislative proposals in the United
States. See H.R. 5103, 96th Cong. (1979) and Class Action Fairness Act, S. 353, 106th
Cong. (1999). So far, however, in the United States, the only formal control over the
class representative (in practice, over the class attorneys) is conducted by the judge.
170. An important difference between the American and Brazilian systems is the
role of the Attorney General’s office in non-criminal matters. See “Governmental and
Private Advocates for the Public Interest in Civil Litigation: A Comparative Study,” in
II Access to Justice. Promising Institutions 802-08 (Cappelletti & Weisner ed., 1979);
Hazard, “The Role of the Ministère Public in Civil Proceedings,” in Law in the United
States of America in Social and Technological Revolution 209 (John Hazard & Wenceslas Wagner eds., 1974); Langer, “Public Interest in Civil Law, Socialist Law, and
Common Law Systems: The Role of the Public Prosecutor,” 36 Am. J. Comp. L. 279
(1988).
171. See Gidi, “Assistência em Ações Coletivas,” in Código de Processo Civil. 20
anos de Vigência (Cruz e Tucci ed., 1985).
172. See infra, Section 2.3, “Brazilian System of Civil Procedure”.
173. Civil-law scholars have felt so strongly about this point that they have brandished the rhetorical saber of literary and biblical metaphor. Mauro Cappelletti
preached against giving individuals collective standing, comparing it to the pathetic
battle of Don Quijote against windmills. Barbosa Moreira compared it to the battle of
David without his slingshot. See Cappelletti, “Formazioni sociali e interessi di gruppo
davanti alla giustizia civile,” 30 Rivista di Diritto Processuale 361 (1975); id., “La protection d’intérêts collectifs et de groupe dans le procès civil (métamorphoses de la procédure civile),” 27 R.I.D.C. 571, 576 (1975); id., “Appunti sulla Tutela Giurisdizionale
di Interessi Collettivi o Diffusi,” in Le Azioni a Tutela degli Interessi Collettivi 191,
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It is indisputable that in the American system, the true representative of the group’s interest in court and, ultimately, the dominus
litis, is the class attorney, not the class members or the representative. The attorney is openly and approvingly considered an entrepreneur, and the class suit as the attorney’s private investment.174 The
representative is merely a “key” that the attorneys needs to open the
courtroom doors. This reality has led to the bold and intellectually
honest suggestion of eliminating the class member as a representative altogether, giving collective standing directly to the attorneys.175
210-20 (Vittorio Denti ed., 1976); Barbosa Moreira, “A Proteção Jurı́dica dos Interesses Coletivos,” in Temas de Direito Processual. Terceira Série 176 (1984). These
images are strongly established in the comparative class action folklore in civil-law
scholarship.
174. See generally, Coffee, Jr., “Understanding the Plaintiff’s Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions,” 86 Colum. L. Rev. 669 (1986); id., “The Regulation of Entrepreneurial
Litigation: Balancing Fairness and Efficiency in the Large Class Action,” 54 U. Chi. L.
Rev. 877 (1987); Kane, “Of Carrots and Sticks: Evaluating the Role of the Class Action
Lawyer,” 66 Tex. L. Rev. 385 (1987); Macey & Miller, “Auctioning Class Action and
Derivative Suits: A Rejoinder,” 87 Nw. U. L. Rev 458 (1993).
Currently, this proposition is unacceptable in civil law tradition. But see Note,
“Class Action Litigation in China,” 111 Harv. L. Rev. 1523, 1533-34 and 1536-40
(1998) (arguing that “a market-driven legal profession may be essential not just to
increasing access to China’s courts, but also to the project of law implementation.”)
175. See Wegman Burns, “Decorative Figureheads: Eliminating Class Representative in Class Actions,” 42 Hast. L. J. 165 (1990); Macey & Miller, “The Plaintiff’s Attorney’s Role in Class Action and Derivative Litigation: Economic Analysis and
Recommendations for Reform,” 58 U. Chi. L. Rev. 1 (1991).
This issue is not new in the United States. It was first raised in 1940 by Harry
Kalven, Jr. and Maurice Rosenfield. See Kalven, Jr. & Rosenfield, “The Contemporary Function of the Class Suit,” 8 U. Chi. L. Rev. 684, 718, n. 98 (1940) (arguing that
“[f]rom one point of view the requirement of the initial client does seem anachronistic;
the class is the real client and the situation does not readily adjust to orthodox notions of the lawyer-client relationship. (. . .) [T]he question naturally arises: why not
permit the lawyer alone to bring a class suit without an initial client?”) See also Comment, “Adequate Representation, notice and the new class action rule: effectuating
remedies provided by the Securities laws,” 116 U. Pa. L. Rev. 889, 903 (1968) (“the
client is, in reality, the class itself.”)
Unfortunately, however, American courts and scholars have not learned this lesson yet. Several books (casebooks, treatises, and professional publications) continue
to consider class actions as a joinder device or as a representative device, bundling it
together with joinder of parties, intervention, impleader, and interpleader. The origin
of the mistake are the American Federal Rules of Civil Procedure themselves, who
buried the class action procedure in the section about parties (See Fed. R. Civ. P.,
Section IV, Rules 17-25). One of the few exceptions is Friedenthal, Kane & Miller,
Civil Procedure (1999) (treating class actions in a separate chapter, as a “specialized
proceeding”.)
Maybe because the evolution of class action has been a long, assystematic, and
slow process in the United States, going on for several centuries, Americans never
really fully grasped the perspective that class actions constitute a separate branch of
civil procedure, with its own province and different from individual litigation. Therefore, Americans always had the comfort of seeing class actions as just another representative action or worse a joinder device. More than half a century has already
passed since Kalven and Rosenfield first noticed that “the class is the real client.”
This old and rather obvious lesson might still be considered by some as revolutionary
and unorthodox. See Shapiro, “Class Actions: the Class as Party and Client,” 73 Notre
Dame L. Rev. 913, 960 (1998) (stating that “[t]he reader of this essay may view the
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In practice, however, this extensive power of class action attorneys
has led to abuses and has generated an accentuated hostility against
class litigation in courts, corporations and the media. A recent legislative reaction is the Federal Private Securities Litigation Reform Act
of 1995, which tries to take some of the power away from the attorneys and give it back to the representative.176
The American literature, however, has already recognized that
the most effective monitors of class attorneys are often organizations
who are not class members, but who have a special interest in the
subject of the litigation.177 Moreover, “an experienced organization
could provide a court with all the information it needs to understand
the implications of its rulings; indeed, an organization would probably be more capable of providing this kind of information than an individual whose concerns may focus only on her immediate
interests.”178
Adequacy of representation is not more fully addressed in the
Brazilian class action statutes because the individual rights of class
members will not be compromised if the judicial decree is against the
group interests.179 Moreover, there will be no res judicata at all if the
action is lost due to insufficient evidence.180 In the latter case, the
same class action might be brought again if new evidence is
presented.181 Although the group members’ individual rights may
not be compromised if the decree is against the group’s interests, relitigation of the transindividual right (diffuse and collective) will be
pre-empted by res judicata, precluding a second class suit over the
ideas advanced here as constituting a radical departure from traditional notions or, at
the other extreme, as just a rehashing of developments that have long been in the
making . . . If we can accept the notion that in a proper context, the class itself is – or
at least should be – the claimant, and the represented litigant, we will be in a far
better position to talk about the changes that are needed [for the class action to realize its full potential], and the institutional problems that must be confronted in attempting to implement those changes.”)
176. See generally Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 7B
Federal Practice and Procedure 2d, Pocket Part § 1806; Weiss & Beckerman, “Let the
Money Do the Monitoring: How Institutional Investors Can Reduce Agency Costs in
Securities Class Actions,” 104 Yale L.J. 2053 (1995); Burbank, “The Class Action in
American Securities Regulation,” ZZPInt. 4 (1999).
177. See Wegman Burns, “Decorative Figureheads: Eliminating Class Representative in Class Actions,” 42 Hast. L. J. 165, 196 (1990) (arguing that “[u]nlike many
private individuals, [nonmember organizations] often have the sophistication and financial resources to supervise a lawsuit over many years.”) See also Donald Farole,
Jr., Interest Groups and Judicial Federalism (1988) (discussing the importance of organized interest groups in the American judicial process).
178. See Parker, “Standing to Litigate ‘Abstract Social Interests’ in the United
States and Italy: Reexamining ‘Injury in Fact’,” 33 Colum. J. Transnat’l L. 259, 312
and 316 (1995) (arguing that “[t]here is a risk that the injured person’s claim could be
so idiosyncratic that it can actually mislead the court about the effects of its
decision.”)
179. See infra, Section 7, “Res Judicata.”
180. See infra, Section 7.5, “Res Judicata and Insufficient Evidence.”
181. See id.
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same group right.182 The legislature thus was mistaken in not drafting guidelines that expressly empower presiding judges to actively
evaluate the adequacy of representation on a case-by-case basis.
According to the predominant view in Brazil, what is relevant is
only that the representative be one of the entities authorized in the
statute.183 Therefore, absence of adequate representation of the
group’s interests in the proceeding does not affect the res judicata
effect in class actions.184 Some scholars claim that the judge is forbidden to evaluate adequacy of representation.185 Once granted and
firm, a class decree can only be nullified through an independent proceeding restricted to very narrow grounds.186
It is disturbing that adequacy of representation, the touchstone
of due process in American class actions, is so weakly regulated in
Brazil.187 It is generally feared that civil-law judges may not have
the power, the inclination or the professional ability needed to examine adequacy of representation on a case-by-case basis.188 Al182. The regulation of res judicata in Brazilian class actions is rather complex and
interesting and will be more fully developed below. See infra, Section 7, “Res
Judicata.”
183. See Brazilian Consumer Code, art. 82, translated infra Section 10.1.
184. See generally Ada P. Grinover, Código Brasileiro de Defesa do Consumidor
805-06 (1999).
185. See generally Nelson Nery Junior & Rosa Nery, Código de Processo Civil Comentado 1137 (1997); Arruda Alvim, Thereza Alvim, Eduardo Arruda Alvim, & James
Marins, Código do Consumidor Comentado 381-82 (1995).
186. See Brazilian Code of Civil Procedure, arts. 485-95. The suit must be based on
very narrow grounds (fraud, mistake, newly discovered evidence, etc.) and must be
commenced within two years. After the expiration of this period, all procedural irregularities, injustices, and illegalities are considered moot. This proceeding is functionally equivalent to a Rule 60(b) motion under American procedure.
187. See generally Mauro Cappelletti, The Judicial Process in Comparative Perspective 304 (1991) (considering adequacy of representation as a tool for a new social
or collective concept of due process, adapted to mass conflicts.) See also Comment,
“Adequate Representation, Notice and the New Class Action Rule: Effectuating Remedies Provided by the Securities Laws,” 116 U. Pa. L. Rev. 889 (1968); Comment, “The
Importance of Being Adequate: Due Process Requirements in Class Actions Under
Federal Rule 23,” 123 U. Pa. L. Rev. 1217 (1975).
188. See Cappalli & Consolo, “Class Actions for Continental Europe? A Preliminary Inquiry,” Temple Int’l & Comp. L.J. 217, 291 (1992) (arguing that the Italian,
and maybe even other Continental European judges, would be “absolutely unable to
execute, in credible fashion, the same functions as the American judge,” including
evaluating adequacy.) See also Andrea Giussani, Studi Sulle “Class Actions” 371 and
387 (1996).
Compare Koch, “Group and Representative Actions in West German Procedure,”
in German National Reports in Civil Law Matters for the XIIIth Congress of Comparative Law in Montréal 27, 34-35 (1990) (giving examples in which German courts evaluated, in a primitive way, adequacy of representation in class action); Cooper, “ClassAction Advice in the Form of Questions,” 11 Duke J. Comp. Int’l L. 215 (2001) (arguing that “[i]ndividual participation and control may indicate a point at where inquisitorial systems have an advantage over adversarial systems. Each increase in the
level of the judge’s responsibility for directing and defining the litigation reduces the
importance of party participation and the significance of conflicting interests. In
time, class-based litigation may prove more suitable to civil-law systems than to the
common-law systems that have fed its early growth.”).
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though difficult to assess, control of adequacy over the representation
of absentee’s interests may not be left completely beyond judicial
scrutiny. The role performed by civil law judges may differ, perhaps
substantially, from that performed by common law judges. It does
not necessarily mean, however, that civil law judges are incapable of
exercising some control of adequacy of representation, especially if
they are supported by other devices.189
A proposed class action bill at one time would have given Brazilian judges the power to control adequacy of representation on a caseby-case basis. This approach was never enacted, but it offered a more
adequate solution to the inherent problems of representative actions
than the statute that was ultimately adopted by the legislature.190
As a practical matter, the representative may litigate poorly or
even lose the case on purpose; absent members’ interests may be unrepresented, underepresented, or even be victims of fraud. Absentees
should not be bound by the acts of an inadequate representative. The
very notion of an “inadequate representative” should be regarded as a
contradiction in terms: an inadequate representative is a non-representative. Therefore, although the class action statutes do not address this issue, and it is not yet the general opinion, it is submitted
that the incompetent representation of group rights by a representative entity should be considered a denial of the due process of law
guaranteed by the Brazilian Constitution.191 In such circumstances,
the court should dismiss the case. If the court inadvertently decides
the merits of the case, the judgment should not have res judicata
effect.192
6.4 The Role of Associations in the Protection of Group Rights
Traditional civil-law political ideology generaly looks to the government for protection of the public interest.193 There is a growing
189. Some of these devices may include a careful legislative selection of categories
of representatives; prior administrative accreditation of private associations; and notification to the office of the Attorney General, other interested associations and some
absent members. These devices are discussed in this paper elsewhere.
190. See Proposed Bill No. 3,034/1984, reproduced in A Tutela dos Interesses
Difusos 189 (Ada P. Grinover ed., 1984).
191. See Brazilian Constitution, art. 5, LIV (“No person shall be deprived of liberty, or property without due process of law.”)
192. See Gidi, “A Representação Adequada nas Ações Coletivas Brasileiras. Uma
Proposta,” 108 Revista de Processo 61 (2002) (address at IV Jornadas de Direito
Processual Civil in Fortaleza, August 8, 2001).
193. The rule is no different in the traditional common-law approach. See Gouriet
v. Union of Post Office Workers [1977] 3 WLR 300 (“[i]t [is] a fundamental principle of
English law that private rights can be asserted by individuals, but that public rights
can only be asserted by the Attorney-General as representing the public. In terms of
constitutional law, the rights of the public are vested in the Crown, and the AttorneyGeneral enforces them as an officer of the Crown.”) That is the basis for the English
“relator actions,” in which “a person must first obtain the consent of the AttorneyGeneral to bring certain actions on his relation, such as to restrain interference with a
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sense, however, that because government has limited knowledge and
resources it will be neither willing nor able to ensure adequate representation of some group interests in court.194 Since the Brazilian legislature has determined that class actions would be ill-served if this
responsibility were entrusted to a self-appointed or lawyer-solicited
member of the group, the next-best option was for the class action
statutes to attribute collective standing to private associations.195
In order to ensure adequacy and preserve representativeness of
group rights, the association should have a well-defined social program. Therefore, an association should be allowed to bring a class
suit only to protect interests at least broadly related to the institutional objectives established in its by-laws.196 For example, a conpublic right, or to abate a public nuisance, or to compel the performance of a public
duty”. See Sir Jack Jacob, The Fabric of the English Civil Justice 81 (1987). See also
Carol Harlow & Richard Rawlings, Pressure Through Law 144-45 (1992); J.A.
Jolowicz, On Civil Procedure 133-42 (2000); Langer, “Public Interest in Civil Law,
Socialist Law, and Common Law Systems: The Role of the Public Prosecutor,” 36 Am.
J. Comp. L. 279 (1988). But see Sir Jack Jacob, The Fabric of the English Civil Justice 81 (1987) (arguing that the practice of relator actions in England “should be extended to enable such actions to be brought without the prior consent of the AttorneyGeneral when a person can show that he has a sufficient interest in the proceedings,
however widely this term is interpreted.”)
194. See generally Cappelletti & Garth, “Finding an Appropriate Compromise: A
Comparative Study of Individualistic Models and Group Rights in Civil Procedure,” in
Effectiveness of Judicial protection and Constitutional Order. The General Reports for
the VIIth International Congress on Procedural Law. Würzburg. 117, 130 (Walter
Habscheid ed., 1983) (arguing that government agencies have limited resources and
they often remain dependent of the government in power.) See more recently Afialo,
“Towards a “Common Law” of Europe: Effective Judicial Protection, National Procedural Autonomy, and Standing to Litigate Diffuse Interests in the European Union,”
22 Suffolk Transnat’l L.J. 349, 371-76 (2000) (arguing that leaving enforcement of
Community environmental laws to the government would result in under-enforcement); Márcio Leal, Ações Coletivas: História, Teoria e Prática 131 (1998).
195. See Bruno Sassani, “Définition d’Intérêt Collectif Justifiant les Différentes
Action en Justice des Organisations de Consommateurs Dans les États Membres de la
Communauté Européenne,” 5 Roma e America 121. 147-48 (1998) (arguing that attributing class standing to private associations is the least problematic and most
fruitful technique for class actions and noting that it is the technique of choice in the
Directives of the European Community and in national laws that follow them.)
196. See Barbosa Moreira, “Ações Coletivas na Constituição Federal de 1988,” 61
Revista de Processo 187, 191 (1991); Édis Milaré, “A Ação Civil Pública em Defesa do
Ambiente,” in Ação Civil Pública. Reminiscências e Reflexões Após Dez Anos de Aplicação 193, 248-49 (Édis Milaré ed., 1995); Luiz Araújo Filho, Ações Coletivas: A Tutela
Jurisdicional dos Direitos Individuais Homogêneos 95-97 (2000); Rodolfo Mancuso,
Ação Civil Pública 50-61 (2001); Ernane Fidélis dos Santos, Mandado de Segurança
Individual e Coletivo. Legitimação e Interesse 28 Ajuris 25, 33 (1995); Hugo Mazzilli,
A Defesa dos Interesses Difusos em Juı́zo 223 (2001). Compare Nelson Nery Junior &
Rosa Nery, Código de Processo Civil Comentado 1138 (1997) (arguing that express
provisions in by-laws are not necessary; the existence of a practical policy supporting
vindication of these interests should be enough to allow standing.) The Brazilian statutes, however, are not clear on this matter.
See Thewes, “Les Actions en Justice des Groupements en Droit Comparé,” 5 Annales du Droit Luxembourgeois 39, 48, 58, 61, 66, 70, 73, 80 (stating that, in Europe,
class action statutes clearly requires that the by-laws expressly assign to the association the objective of protecting the rights of its members.); Quebec’s Code of Civil
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sumer protection association can bring a consumer class action; in
principle, it will not have standing (“legal interest” in civil-law terminology) to bring an environmental or civil rights class suit. The same
rule applies to labor unions, which are associations under Brazilian
law; labor unions (“sindicatos”) may protect only the labor and employment rights of workers in the areas of vocation that they
represent.
Associations are considered natural representatives of group
rights not by virtue of the self-proclaimed statements in its by-laws,
but because there is a comforting correspondence between the transindividual character of the right being vindicated in court and the
need for a transindividual representative.197 More importantly, associations should be authorized to initiate class proceedings not primarily because they represent their member’s concerns, but because
associations can often guard these valued group rights more effectively than can individuals.198
Once an association initiates a class action in Brazil, the scope of
representation is not limited to the association’s own members.
Rather, the rights enjoyed by the entire group will be adjudicated in
the action, and thus all people prejudiced by the defendant’s allegedly
unlawful conduct will be represented in the class suit.199 All class
members, whether or not members of the association that initiated
litigation, will benefit from the class decree’s binding effect. It is necessary, therefore, to distinguish between “class members” and “members of the association”: a member of the class may or may not be a
member of the plaintiff association, and a member of the association
may or may not be a member of the class. For example, the member
of the plaintiff consumer association will not be a member of the class
unless he or she was harmed by the defendant’s allegedly illegal conduct. Likewise, a member of the class harmed by the defendant’s conduct may have never joined the association.
In contrast to the trend Brazil and in some European countries,
the Supreme Court of the United States decided in Sierra Club v.
Procedure, art. 1048 (authorizing legal persons, cooperatives, and associations to apply for the status of representative whenever one of their members is a member of the
class and the suit is aimed at protecting interests related to “the objects for which the
legal person has been constituted.”)
197. See generally Luı́s Antunes, A Tutela dos Interesses Difusos em Direito Administrativo: Para Uma Legitimação Procedimental 26-27 (1989); Marco Cresti, ContriButo allo Studio Della Tutela Degli Interessi Diffusi 59 (1992); Rodolfo Mancuso,
Ação Civil Pública 101 (2001).
198. See Koch, “Group and Representative Actions in West Germany Procedure,”
in German National Reports in Civil Law Matters for the XIIth Congress of Comparative in Montréal 27, 34 (1990) (arguing that the public interest in affording an effective protection of group rights is so strong that the control should not be left to the
indirect enforcement by individuals).
199. See Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas 128
(1995); Kazuo Watanabe, Código Brasileiro de Defesa do Consumidor 724 (1999).
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Morton that, in order to have standing, an association has to allege
that either it or its members had been or would be injured by defendant’s conduct.200 According to the Sierra Club holding, a mere longstanding “organizational interest” and concern for the protection of
natural resources, coupled with litigation expertise, is insufficient to
give standing to the association as a representative of the public interest in an environmental class action.201
Indeed, giving broad collective standing to associations may not
be an option in the United States, even through legislation. In Lujan
v. Defenders of Wildlife, the Supreme Court may have barred the
courthouse door when it held that Congress could not constitutionaly
grant an association standing to sue absent an “injury of fact.202“
200. See Sierra Club v. Morton, 405 U.S. 727 (1972). See Charles Allan Wright,
Law of Federal Courts 74 (1994); Lawrence H. Tribe, American Constitutional Law
145-54 (1988); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction
2d § 3531.1, p. 370 and note 52 (noting that in Sierra Club the Court disapproved of
some lower court decisions recognizing standing on the basis of an organizational interest in problems of environmental or consumer protection. The decision, however,
recognized that associations have standing to assert the interests of any of its members, including noneconomic injuries, such as recreational use or aesthetic apreciation. Thus, the Sierra Club would be able to simply amend the complaint and allege
that some of its members were, in fact, prejudiced by the defendant.)
201. See Sierra Club v. Morton, 405 U.S. 727 (1972).
202. See Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992). Compare: Italian
statute on the protection of the environment (legge 8 luglio 1986 n. 349, arts. 13 and
18) (giving standing, in administrative courts, to accredited associations seeking judicial invalidation of governmental acts harmful to the environment, regardless of any
allegation of specific injury to the association or to its members.)
For a sober comparative analysis of the American and Italian laws of standing,
with close connection to the object of this paper, see Parker, “Standing to Litigate
“Abstract Social Interests” in the United States and Italy: Reexamining “Injury in
Fact”,” 33 Colum. J. Transnat’l L. 259 (1995) (considering the Italian law giving
standing to associations as representatives of the public interest to be more advanced
than American law and proposing a reexamination of American law.) The issue is not
new, nor is the conclusion original. See Grimes, “Control of Advertising in the United
States and Germany: Volkswagen Has a Better Idea,” 84 Harv. L. Rev. 1769, 1800
(1971) (arguing that the German system of conferring standing to sue upon associations, as representatives of the public interest, should be adopted in the United
States); Owens, “Comparative Law and Standing to Sue: A Petition for Redress for
the Environment,” 7 Envt’l. Law. 321 (2001) (commenting on the advantages of several foreign systems, calling for a broader application of the standing doctrine in the
United States, and suggesting that the U.S. Supreme Court should reduce its restrictions on standing in order to allow broad access to the courts to seek redress for violations of public law.) See Mauro Cappelletti, The Judicial Process in Comparative
Perspective 298-99 (1991). See also Serge Guinchard, “L’Action de Groupe en Procédure Civile Française,” 42 R.I.D.C. 599, 613-26 and 632-35 (1990) (noting that, in
absence of a written statute, in principle French law does not grant standing to associations to bring actions in protection of the public interest. However, there is a
trend towards accepting this kind of actions); Marc Thewes, “Les Actions en Justice
des Groupements en Droit Comparé,” 5 Annales du Droit Luxembourgeois 39 (1995)
(describing “associational actions” in French, Belgian, Luxembourgish, German, and
Swiss law); Ari Afialo, “Towards a “Common Law” of Europe: Effective Judicial Protection, National Procedural Autonomy, and Standing to Litigate Diffuse Interests in
the European Union,” 22 Suffolk Transnat’l L.J. 349 (2000) (arguing that the European Court of Justice should develop a “common law” of associational standing in the
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Suspicious of private litigation in the public interest, however,
the Brazilian legislature granted collective standing only to associations that had been legally incorporated for at least one year. The
rationale of such a rule (of doubtful effectiveness) is to favor organizations with a longstanding commitment to protecting group rights and
to prevent both abuse against defendants and prejudice to absent
members. To allow some flexibility, however, article 82, paragraph
one authorizes courts, in cases of evident social interest, to waive the
prior incorporation requirement, and allow an ad hoc association, incorporated after the fact, to bring a class suit.203
Furthermore, in order to facilitate access to justice, and contrary
to the tendency in Europe, an association need not be previously authorized, recognized, or certified by the Brazilian Government before
it is allowed to bring a class suit. It need only satisfy the general
statutory criteria of previous incorporation and institutional objectives. There is an element of danger hidden in this liberal rule that
was not anticipated by the legislature. First, not all associations legitimately represent social interests. Second, the legal requirements
for incorporating an association are minimal; to legally incorporate
an association, the law requires only that two people be in agreement. Third, the statute does not require that an association receive
prior authorization from the general assembly of its members to
bring a class suit. This situation gives the association’s officers the
power to disregard members’s interests and to act for their personal
benefit or political motivation. By creating the procedural means by
which associations, like the above, can gain collective standing, the
legislature has undermined the class action device.
There is no proper control over adequacy of representation in the
Brazilian system.204 To function efficiently, the Brazilian class action statutes presuppose that an association at least minimally represents its community’s interests. Because the association’s officers are
not required to obtain prior accreditation from the government or authorization from the membership before initiating an action, there is
an increased risk of abuse and strike suits that will harm members of
the group and the defendant. The only limitation on officers’ actions
is that, in cases of bad faith litigation, the association and the officers
responsible for initiating the class suit are jointly liable for attorneys
European Union); Jaffe, “The Citizen as Litigant in Public Actions: The NonHohfeldian or Ideological Plaintiff,” 116 U. Pa. L. Rev. 1033 (1968) (arguing that an
“ideological plaintiff” is not incompatible with the “case or controversy” requirement
in American constitutional law.)
203. See Brazilian Consumer Code, art. 82, paragraph one, translated infra, Section 10.1.
204. See supra Section 6.3, “Brazilian Approach to Collective Standing” (arguing
that a more stringent control of adequacy of representation is required by the due
process clause in the Brazilian Constitution.)
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fees, a limited fine, and damages.205 These penalties might be effective in cases in which the association or the officers have sufficient
money to pay them. However, it is unlikely that they will be a especially effective deterrent because only very limited types of misconduct constitute “bad faith litigation”.206
In an effort to curb the use of class action litigation for political
reasons, especially with the objective of protesting against unpopular
policies or obstructing unpopular governmental action, the Federal
Government of Brazil recently enacted legislation that places restriction on associations’ collective standing. The new rules require prior
authorization from the association’s assembly of members, whenever
a class action is brought against the government.207 A rule requiring
authorization from the members of the association is not inherently
objectionable. However, it may violate the principle of equality
stated in the Federal Constitution because this rule applies only in
class actions against the government. Therefore, this rule may be
considered unconstitutional and be disregarded by the courts.208
One solution to the aforementioned problems may be to limit collective standing to associations previously accredited by the government.209 In a brief administrative proceeding, the government would
evaluate the competence, independence, seriousness, and representativeness of the association (in one word, its “adequacy”.) The law
could create different levels of “representativeness” for cases of different scope: local, regional, and national associations could be given
standing to bring local, regional, and national class suits.
This approach, however, is problematic, because the government
itself is a recurrent class defendant in Brazil. Therefore, the accreditation process should be free from political interference, and the decisionmaking should not be discretionary but, rather, should be
205. See Brazilian Consumer Code, art. 87.
206. See generally Abuse of Procedural Rights: Comparative Standards of Procedural Fairness (Michele Taruffo ed., 1999). See also Clark & Harris, “Multi-Plaintiff
Litigation in Australia: A Comparative Perspective,” 11 Duke J. Comp & Int’l L. 289
(2001) (discussing the Australian rule allowing defendants to seek “orders for costs
against plaintiffs’ lawyers in circumstances where it has been asserted that the class
action commenced had no prospect of success.”)
207. See Medida Provisória n. 1,798-1, de 11 de fevereiro de 1999.
208. See supra Section 3.3, “Brazilian Class Action: A Generation Later” (discussing the Brazilian Government’s sabotage of the class action rule.)
209. This is the current rule, for example, in France, Loi Royer, art. 46, law n. 731193 of Dec. 27, 1973 and Décret n. 90-235, March 16, 1990, JCP 1990, Éd. G., III,
63718, and Italy, legge 30 luglio 1998, n. 281, article 5 (consumer class actions) and
legge 8 luglio 1986, n. 349, art. 13 (environmental class actions). In these countries,
the government maintains a list of accredited associations. A detailed account of the
French practice of agréments administratifs is found in Louis Boré, La Défense des
Intérêts Collectifs par les Associations Devant les Jurisdictions Administratives et
Judiciaires 64-82 (1997). The Italian practice is discussed in Parker, “Standing to
Litigate “Abstract Social Interests” in the United States and Italy: Reexamining “Injury in Fact”,” 33 Colum. J. Transnat’l L. 259 (1995).
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regulated by objective requirements, such as the number of association members, the length of incorporation, the non-profit organization status, the democratic character of its deliberations and
elections, the source of income, the record of political, social, and legal
activism, etc. The accreditation could be either temporary and renewable, or permanent and revocable for good cause.
Legal requirements such as these should be sufficiently strict to
exclude inadequate representatives of group rights, but should not be
so tightly drawn as to limit the prerogative to bringing class suits to a
handful of associations closely connected to the government. Strict
accreditation requirements may reduce the number of authorized associations, strengthen the power of the few accredited ones, and ultimately make them detached from individual members of the
community. Those entities may develop a life of their own and become centers of power and oppression, as capricious and overbearing
as those bodies which class suits are conceived to counter.210
In exceptional circumstances, such as in an urgent case, or when
there is no other association that could or would bring the action, the
prior government accreditation might be postponed or waived by the
courts. This practice would be especially important during the early
years of such a regulatory regime, when few associations would be
accredited, but would decline in importance, as associations become
an increasingly strong and more stable form of social organization in
Brazil.211 Another example in which the waiver of government accreditation might prove particularly important is when the group is
composed of foreigners and the association, being a foreign entity, is
not accredited in the forum.212 When the court waives government
210. See Mauro Cappelletti, The Judicial Process in Comparative Perspective 29798 (cautioning that “[l]abor unions, political parties, national and transnational corporations, and professional organizations can themselves become fearful centres of
oppression against both their members and third parties.”)
211. In the same vein of reasoning, the requirements for government accreditation
may be liberal in the first years and tighten up after a sufficient number of associations are accredited.
212. This problem is particularly acute in the European Union. See Kessedjian,
“L’Action en Justice des Associations de Consommateurs et d’Autres Organisations
Représentatives d’Intérêts Collectifs en Europe,” 33 Rivista di Diritto Internationale
Privato e Processuale 281, 283-85 (1997); Sassani, “Définition d’Intérêt Collectif Justifiant les Différentes Action en Justice des Organisations de Consommateurs dans
les États Membres de la Communauté Européenne,” 5 Roma e America 121, 123-25
(1998). See also Lucio Cabrera Acevedo, “La Tutela de los Intereses Colectivos o
Difusos,” in XIII Jornadas Iberoamericanas de Derecho Procesal 211, 215, 217, and
234 (1993) (noting that the violation of group rights tend to have global effects and
disregard national borders). But see Faulk, “Armageddon Through Aggregation? The
Use and Abuse of Class Actions in International Dispute Resolution,” 10 Class Action
Litigation Report 362 (2001) (criticizing the abuse of international class actions with
extraterritorial effects in American Courts and arguing that “[t]he use of American or
any other nation’s collective liability devices to resolve claims of non-resident foreign
litigants represents a major intrusion into the internal social policies and cultures of
other sovereign states.” I agree.)
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accreditation, however, the court should provide an “ad hoc” accreditation of the association, examining more closely the adequacy of the
representative on a case-by-case basis.
The “government accreditation” just described should be distinguished from the “court certification” procedure in United States
practice. They are both devices to control the adequacy of the representation. However, while “court certification” concerns the conduct
of the representative in a specific lawsuit, the government accreditation is generic: the association is accredited as a “fit representative”
independent of the existence of an actual lawsuit. As Douglas Parker
aptly comments, once an organization has been anointed by the government as a private public interest organization, the accreditation
grants it carte blanche to sue in protection of the interests set out in
its charter.213 This feature further distinguishes the system of “government accreditation” from the English “relator actions,” in which
an authorization from the Attorney General is essential before a person or association can bring a specific action.
One form of certification, however, does not necessarily exclude
the other. The fact that an association is accredited by the government does not authorize it to represent group interests inadequately
in court. The court should retain power to control adequacy of representation in a specific case, although the previous government accreditation makes the judicial control of adequacy considerably
easier.
In addition, prior authorization from the assembly of members of
the association should be mandatory before the initiation of any class
suit brought by an association.214 The court may postpone such an
authorization in urgent cases, for example, when the statute of limitations is near, or in the case of provisional measures. However,
given the salutary purposes of such a provision, membership authorization should not be waivable.
6.5 The Role of the Ministère Public in the Protection of Group
Rights
Although several class actions have been brought by private associations under the new statutes, so far the offices of the Attorney
General (state and federal branches) has played the primary role in
protection of group rights in Brazil. These offices have brought important class suits to curb illegal or abusive conduct against groups,
213. See Parker, “Standing to Litigate ‘Abstract Social Interests’ in the United
States and Italy: Reexamining ‘Injury in Fact’,” 33 Colum. J. Transnat’l L. 259, 296
(1995).
214. This suggestion does not refer to authorization by class members, but rather
to an authorization by the members of the association, who should approve the officers’ proposal to bring a class suit by a majority of vote.
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whenever the “social interest” has been at play.215 This reality challenges Mauro Cappelletti’s theory that the Ministère Public would
not adapt to its revised role of “effective champion of newly emerged
collective interests.”216
215. The majority of class actions filed in Brazil are brought by the Ministère Public as plaintiff. In all other actions, the Ministère Public is necessarily notified and
intervenes in the action as an “overseer.” See Antonio Herman Benjamin, “A Implementação da Legislação Ambiental: O Papel do Ministério Público,” in Dano
Ambiental, Prevenção, Reparação e Repressão 360, 371 (Antonio Herman Benjamin
ed., 1993); Antonio Herman Benjamin, “Group Action and Consumer Protection in
Brazil,” in Group Actions and Consumer Protection 141, 153 (Thierry Bourgoignie ed.,
1992) (arguing that, unlike its European counterparts, the Brazilian offices of the
Attorney General have played an extremely aggressive role in protecting group
rights); Antonio Ferraz, “Ação Civil Pública, Inquérito Civil e Ministério Público,” in
Ação Civil Pública. 15 Anos 84 (Édis Milaré ed., 2001); Nelson Nery Junior, “O Ministério Público e as Ações Coletivas,” in Ação Civil Pública. Reminiscências e Reflexões
Após Dez Anos de Aplicação 356 (Édis Milaré ed., 1995); Findley, “Pollution Control in
Brazil,” 15 Ecology L.Q. 1, 66 (1988); Paulo Carneiro, Acesso à Justiça – Juizados
Especiais Cı́veis e Ação Civil Pública (1999).
An attentive observer would not miss the irony that, in Brazilian class action
experience, one of the most frequent defendants is the government and the most frequent plaintiff is the office of the attorney general (i.e. the government). It is an odd
situation, in which the same party that violates also vindicates group rights in court.
216. See Cappelletti, “Governmental and Private Advocates for the Public Interest
in Civil Litigation: A Comparative Study,” in II Access to Justice. Promising Institutions 774-75, 783-87 (Cappelletti & Weisner ed., 1979) (arguing that “[v]irtually insurmountable organizational, educational, and psychological barriers stand in the
way of [the Ministère public] becoming the effective champion of newly emerged collective interests.”) The author notes that one of the most relevant obstacles to government protection of group interests, is the fact that the offices lack the proper
specialization, are subject to political interference, and frequently understaffed and
underfunded. See also Cappelletti, “La Protection d’Intérêts Collectifs et de Groupe
dans le Procès Civil (Métamorphoses de la Procédure Civile),” 27 R.I.D.C. 571, 576-80
(1975); Mauro Cappelletti, The Judicial Process in Comparative Perspective 275-78
(1991); Vicenzo Vigoriti, Interessi Collettivi e Processo – La Legittimazione ad Agire
235 et seq. (1979); Vescovi, “Tareas del Ministerio Publico en el Proceso Civil,” in,
Towards a Justice with a Human Face 459, 471-82 (Marcel Storme & Hélène Casman
eds., 1978). Compare Proto Pisani, “Appunti Preliminari per uno Studio sulla Tutela
Giurisdizionale degli Interessi Collettivi (o Più Esatamente: Superindividuali) Innanzi al Giudice Civile Ordinario,” in Le Azioni a Tutela Degli Interessi Collettivi 276
(Vittorio Denti ed., 1976) (arguing in favor of giving standing to the Ministère public
to bring class actions, after internal restructuring.)
Cappelletti’s objections, however, may not apply specifically to the Brazilian
Ministère Public. See Antonio Ferraz, Édis Milaré & Nelson Nery Junior, A Ação Civil
Pública e a Tutela Jurisdicional dos Interesses Difusos 62 and 72 (1984). Mauro Cappelletti conceded this point in his most recent publication. See Mauro Cappelletti,
Dimensioni della Giustizia nelle Società Contemporanee 87-88, 109-10 (1994) (noting
that “[i]t is possible that the reasons for the limited success of [giving collective standing to the Public ministère] are not applicable in the same extent to the Brazilian
Public ministère, especially after its [political] independence [from the executive and
legislative] were guaranteed [in the Brazilian Constitution] and because many departments specialized in class action litigation were organized in the offices of the
Public ministère around the country. It should be clear, however, that independence
and specialization are the two absolutely necessary requisites to the success of this
solution.”) See also Findley, “Pollution Control in Brazil,” 15 Ecology L.Q. 1, 44-45
and 66-67 (1988) (describing the members of the Brazilian Ministère public as “relatively well-funded, nonpolitical group of career lawyers with substantial investigative
powers and a strong commitment to the public interest . . . all these attorneys have
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The Ministère Public’s success in assuming this new social role
has considerably broadened its political power as an institution, to
the extent that it is now considered by some to be a sort of fourth
branch of government. This phenomenon evoked bitter criticism by
some judges, practitioners, scholars, and social observers. Critics assert that this power undermines the democratic doctrine of government because the members of the Ministère Public are public
servants, not elected officials. Others resent the attention the institution receives from the media. This criticism is intensified by accusations that some officials abuse their powers and bring class actions
for reasons of self-publicity and a desire for media attention.
The members of the Brazilian Ministère Public (Ministério Público) were active participants in the committee that drafted the class
action statutes. They are also the most active practitioners and the
most authoritative scholars in interpretation of the class suit legislation. It is worrisome that they have considerable influence in shaping the very statutes and precedents that are intended to limit their
own power.217
On the other hand, the active participation of the Ministère Public in the protection of group rights has been essential for the evolution of class actions in Brazil in every respect, especially in the
drafting and promotion of legislation, development of precedents and
elaboration of scholarly comments. It can be argued that such conspicuous governmental activity is a manifestation of a largely disorganized and apathetic society. Unlike, say, France and the United
States, Brazilian society lacks a structure of mature associations or
interest groups.218 With the expansion and development of associations in Brazil (from an organizational as well as a financial perspectenure as civil servants and cannot be removed for political reasons.”) Although not
as political as the American Attorney General, it is a mistake to consider the Brazilian Ministério Público nonpolitical.
217. Not surprisingly, the statutes, the precedents and the scholarly debate give
the Ministère Public a sort of “preferential treatment.” Class actions in Brazil grew to
be closely identified with the Ministère Public. The debate over the role of the Ministère Public in the protection of group rights seems to be the single most frequently
encountered topic in the specialized literature. In a recent book, published in commemoration of the 15th birthday of the first Brazilian class action statute, collecting
papers from the most prominent scholars in Brazil, 17 out of 28 authors were or had
been members of the Ministère Public, including the editor. See Ação Civil Pública.
Lei 7.347/1985 – 15 Anos 19 (Édis Milaré ed., 2001). The amount of times the book
has been cited in this paper is indicative of its importance in Brazilian scholarship.
218. See Consumer Legislation in France. A Study Prepared for the EC Commission 2-3 (Jean Calais-Auloy ed., 1981) (“Associations enjoy enormous popularity in
France, being adapted, as they are, to the defence of all kinds of collective interests
. . .. There is, in fact, in recent years, evidence of a strong movement towards associating on the part of individual citizens. . .”); Susan Welch et al., American Government
124-55 (1990) (“In the United States everything from fruits to nuts is organized.
From apple growers to filbert producers, every interest has an organization to represent it, and these organizations touch every aspect of our lives”); Donald Farole,
Jr., Interest Groups and Judicial Federalism xi (1988) (arguing that “a number of
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tive,) society at large might play a more active role in protecting
citizen interests.219 Ultimately, associations are the protectors of
group rights par excellence, and it would be politically unwise to place
this responsibility exclusively on the shoulders of public officials.
There are now greater legal, social, and political incentives to develop
associations in Brazil. It remains to be seen whether Brazilian society will become more active in the protection of group rights.220
6.6
Parens Patriae and Associational Standing in American Class
Actions
Comparison of Brazilian and American class actions is not simple. Initially, it might appear that in the United States only class
members have standing to bring a class action on behalf of all others
similarly situated. This might be the general rule, but it can hardly
be considered the only means by which to proceed with a class action,
even in the United States.
The parens patriae doctrine is a traditional justification, in the
United States, for conferring standing to the government to protect
public interests in court. This doctrine is not limited to class actions;
it confers on states standing to bring lawsuits to protect their residents’ interests. American courts, however, interpret this principle
rather narrowly, confining it to the protection of fundamental public
interests. Furthermore, only states, not municipalities, are granted
standing, and the state must have an independent interest in the
controversy. In addition, the action is limited to declaratory and inimportant rights developments in this century are the result of litigation campaigns
by organized interest groups.”)
While this may have been a recent development in France, it has always been a
traditional characteristic of American society. Compare Mauro Cappelletti, The Judicial Process in Comparative Perspective 296-97 (1991) (Explaining an ideological mistrust, ever since the French Revolution, of corps intermédiaires, which were
“organizations intermediate between the individual and the state, which were identified with the Feudal structure of the ancien régime,” such as manor, guild, estate and
province.) and Greve, “The Non-Reformation of Administrative Law: Standing to Sue
and Public Interest Litigation in West German Environmental Law,” 22 Cornell Int’l
L.J. 197, 236-39 (1989) (arguing that the experience with totalitarianism in Germany
may have brought an ideological mistrust on associational standing.) with Alexis de
Tocqueville, Democracy in America (Harvey Mansfield & Delba Winthrop eds., 2000)
(noting, in the nineteenth century, that “Americans of all ages, all stations in life, and
all types of disposition are forever forming associations.”)
219. Labor interests in Brazil, however, are highly organized in labor associations
called “sindicatos.”
220. See Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas 36
(1995). See also Edesio Fernandes, “Defending Collective Interests in Brazilian Environmental Law: An Assessment of the ‘Civil Public Action’,” 4 Rev. Eur. Cmty. & Int’l
Envt’l. L. 253, 254 (1995) (noting that, prior to the enactment of the class action statutes, associations (nongovernmental organizations) were mere pressure groups, but
the new legislation recognized their legitimacy to promote the protection of group
rights in courts.)
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junctive relief, and the states cannot claim damage, unless specifically authorized by law.221
In order to overcome the restrictive views adopted by American
courts, in 1976 the United States Federal Government enacted a statute authorizing state Attorneys General to bring class actions for
damages on behalf of state residents. The authorization is limited,
however, to the violation of antitrust laws.222 In 1978, the United
States Department of Justice submitted to the Federal Congress an
ambitious proposal to give standing to the Federal Government to initiate or become a party to any small claims class action suits.223
However, this proposal was filed and forgotten, perhaps because it
would have reduced the opportunities of the plaintiffs’ bar, perhaps
because it would have been a further irritation to Corporate America,
during a time of recession.224
In limited circumstances, American law gives unions or organizations “associational standing” to bring an injunctive class action to
protect their members’ interests with no claim of injury to their own
interest.225 This practice is not expressly authorized by Rule 23, and
is largely ignored by class action commentators. Nonetheless, Herbert Newberg and Alba Conte stress the importance of joining an organization in a class action for multiple litigation reasons, such as
enhancement of psychological and bargaining power. The practice is
common, especially in civil rights litigation.226
Contrary to what happens in the United States, Quebec’s Code of
Civil Procedure explicitly grants authority to some legal persons, co221. See generally Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 7B
Federal Practice and Procedure: Civil 2d 63-67 (1986); Wright, Miller & Cooper, 13A
Federal Practice and Procedure: Jurisdiction 2d § 3531.11 (1984); Herbert Newberg &
Alba Conte, 1 Newberg on Class Actions 3-174—3-175 (1992).
222. See 15 U.S.C.A. §§ 15c – 15h (West, 2000).
223. See S. 3475, 95th Cong., 124 Cong. Rec. 27859 (daily ed. August 25, 1978);
H.R. 5103, 96th Cong. (1979). The proposal, however, was limited to class actions for
damages, and prescribed notification of the United States Attorney General in lieu of
absentee’s notice and right to opt out. See generally United States Department of
Justice, Bill commentary. The case for comprehensive revision of federal class damage
procedure 36-40 (1979); Berry, “Ending Substance’s Indenture to Procedure: The Imperative for Comprehensive Revision of the Class Damage Action,” 80 Colum. L. Rev.
299 (1980); Weiss, Note, “Reforming Federal Class Action Procedure: An Analysis of
the Justice Department Proposal,” 16 Harv. J. on Legis. 543 (1979); Miller, “Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the “Class Action problem”,” 92 Harv. L. Rev. 664, 684-93 (1979).
224. See more recently Brunet, “Improving Class Action Efficiency by Expanded
Use of Parens Patriae Suit and Intervention,” 74 Tulane L. Rev. 1919 (2000).
225. There must be, however, allegation of injury to the association’s members.
See Sierra Club v. Morton, 405 U.S. 727 (1972); Lujan v. Defenders of Wildlife, 112
S.Ct. 2130 (1992). See infra Section 6.4, “The Role of Associations in the Protection of
Group Rights” (discussing associational standing in American law.)
226. See Herbert Newberg & Alba Conte, 1 Newberg on Class Actions 2-73-77, 3177-79 (1992).
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operatives and associations to bring class actions227. These entities
may apply for the status of representative whenever one of their
members is a member of the class and the suit is aimed at protecting
interests related to “the objects for which the legal person has been
constituted.”228
Certification of defendant class actions with an association as
class representative is also common in the United States. In Thillens, Inc. v. Community Currency Exchange Association of Illinois,
the court did not hesitate to allow an association to function as the
class representative, even over objection from the association and the
class members.229 The court reasoned that since the class members
had previously agreed that the association would represent their interests, there was no reason for that association not to be considered
an adequate representative in a defendant class action. In that case,
the association was not only well-funded by the members, but it was
also experienced in litigating on behalf of its members in court.230
7. RES JUDICATA
7.1 Comparative Overview of Res Judicata
Common law and civil law systems employ different concepts of
res judicata. It is important, therefore, to discuss these systemic differences before dealing with an analysis of res judicata rules in Brazilian class actions.231 The policy reasons underlying the use of res
judicata to preclude litigation are the same in both systems, and the
general rule is expressed in similar language: A party cannot assert
the same cause of action twice. The similarities between the two sys227. See Quebec’s Code of Civil Procedure, art. 1048. A similar rule is found in the
British Columbia Class Proceedings Act, S.2(4).
228. See Quebec’s Code of Civil Procedure, art. 1048.
229. See Thillens, Inc. v. Community Currency Exchange Association of Illinois,
United States District Court, Northern District of Illinois, 97 F.D.R. 668 (1983). See
also Note, “Defendant Class Actions,” 91 Harv. L. Rev. 630, 645, n. 81 and 656 (1978);
Parsons & Starr, “Environmental Litigation and Defendant Class Action: The Unrealized Viability of Rule 23,” 4 Ecology L. Q. 881, 911-3 (1975); Conte & Newberg, 1
Newberg on Class Actions 4-225 (1992).
230. See Thillens, Inc. v. Community Currency Exchange Association of Illinois,
United States District Court, Northern District of Illinois, 97 F.D.R. 668 (1983).
231. On the civil law concept of res judicata, See Note, “Pilie & Pilie v. Metz Common-Law Incursion into the Civilian Conception of Res Judicata,” 64 Tul. L. Rev. 1733
(1990) (arguing that “[t]he civilian doctrine of res judicata applied in Louisiana is
much narrower in scope than the common-law doctrine. As a result, barring subsequent litigation is more difficult in Louisiana than in common-law jurisdictions.”) Id.
at 1735. The laws of res judicata in Louisiana, however, have recently been amended,
and are now similar to the federal procedure approach. See Louisiana Code of Civil
Procedure, arts. 425 and 1061 (as amended in 1991) (adopting a system of compulsory
pleading and compulsory counterclaim.) See also Taruffo, “‘Collateral Estoppel’ e Giudicato Sulle Questioni (I),” Riv. Dir. Proc. 651 (1971); Taruffo, “Collateral Estoppel” e
Giudicato Sulle Questioni (II), Riv. Dir. Proc. 272 (1972) (providing a comparative
study of the American concept of collateral estoppel).
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tems end here. The primary differences are most visible in the concept of “cause of action” itself. Cause of action has a much broader
meaning in common law systems, as it refers to the whole controversy between the parties. Res judicata, correspondingly, has a much
broader scope in common than in civil law systems.
The common law doctrine of res judicata includes both issue preclusion, also known as collateral estoppel, and claim preclusion. Issue preclusion bars relitigation of all issues that are “necessary
steps” to the first decision on the merits, provided that those issues
have actually been litigated and decided in the first action.232 Civil
law doctrine has claim preclusion alone.233
In addition, the concept of claim preclusion is broader in common
law than in civil law systems. In the civil law tradition, only the
claims formally raised in an earlier proceeding are barred from being
relitigated234. Claims not raised in a previous action may be the object of a subsequent proceeding. The common law tradition, however,
precludes not only claims actually raised but also those that could
potentially have been raised but were not. Therefore, all claims that
can be raised in a proceeding, arising from the same conflict (i.e.,
transaction) between the parties, must be raised under penalty of being precluded in a future action.235
Proper appreciation of the broad rules of claim preclusion that
are characteristic of the American legal system requires an understanding of the procedural foundation upon which they have been
constructed. As a counterbalance to broad application of res judicata,
common-law systems allow more liberal discovery of evidence, pleading amendments, and authorize the judge to decide issues not explicitly included in the parties’ claims.236 Moreover, in limited
situations, courts can avoid the application of the strict rules of claim
232. See Restatement (Second) of Judgments § 27 (1982).
233. According to art. 1,525 of the Brazilian Civil Code, whenever the existence of a
fact or its authorship is determined by a criminal judgment, these issues cannot be
relitigated in civil courts. This is a kind of collateral estoppel. Appart from this narrow exception, there is no collateral estoppel in Brazilian law.
234. See, e.g., Brazilian Code of Civil Procedure, art. 468 and 469.
235. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (holding that “[u]nder res judicata, a final judgment on the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in that action”); See also
Restatement (Second) of Judgments § 24(1) (1982) (“When a valid and final judgment
rendered in an action extinguishes the plaintiff’s claim (. . .) the claim extinguished
includes all rights of the plaintiff to remedies against the defendant with respect to all
or any part of the transaction, or series of connected transactions, out of which the
action arose”). A broad and pragmatic definition of “transaction” is given in § 24(2) of
the Restatment. See also Fleming James, Jr., Geoffrey C. Hazard, Jr. & John Leubsdorf, Civil Procedure §§ 11.8 and 11.9 (2001); Jack Friedenthal, Mary Kay Kane &
Arthur Miller, Civil Procedure 639-48 (1999).
236. See Fleming James, Jr., Geoffrey C. Hazard, Jr. & John Leubsdorf, Civil Procedure § 11.2 (2001) (noting that “[a]s the rules of procedure have expanded the scope
of the initial opportunity to litigate, they have invited a corresponding expansion of
the extent to which that opportunity forecloses a subsequent opportunity”).
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and issue preclusion if the particular circumstances of the case suggest that this is the most adequate course of action.237 In contrast, in
civil law systems, generally, the opportunity for discovery is narrower, the rules of amendment are more restrictive, the judge is not
allowed to decide beyond the claims stated in the pleadings (prohibition of ultra petita and extra petita decisions,) and the rules of res
judicata are applied mechanically.
7.2 Reconciling Res Judicata with Class Actions
Traditional principles of res judicata in individual litigation constitute a serious obstacle to the transplant of class actions into civil
law systems. It is a well-established principle of procedure in civillaw jurisdictions that res judicata binds only the parties to the proceeding and that it neither benefits nor prejudices third parties. This
principle is reflected in the old Roman Law formula res inter alios
acta vel iudicata aliis non nocet nec prodest.238
This general principle, however, is not peculiar to civil-law legal
systems. That is the rule in the United States in individual litigation, and there was a historical hesitation to give erga omnes effect to
a class decree, binding all class members, especially in the event of an
unfavorable judgment.239 The rules were silent, the decisions contradictory and the doctrine confused. Uncertainty dominated the law of
res judicata in class actions before the enactment of the Federal
Rules of Civil Procedure in 1938. The first written rule about class
actions in the United States provided that “. . . the decree shall be
237. See, e.g., Restatement (Second) of Judgments §§ 20, 26, 28 (1982); Wright,
Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d §§ 4415 and 4426
(1981) and Supp. (2000).
238. See generally Leopold Wenger, Institutes of the Roman Law of Civil Procedure
220 (1986); Black’s Law Dictionary (1990) (defining res inter alios judicatae nullum
aliis praejudicium faciunt as “matters adjudged in a cause do not prejudice those who
were not parties to it.”)
The existence of an indirect effect of res judicata, beyond the parties to individual
actions has been a recurring theme of scholarly debate in the European legal culture
since at least the mid 1930s. See generally Enrico Allorio, La cosa giudicata rispetto
ai terzi (1935); Enrico Liebman, Efficacia e autoritá della sentenza (2nd ed., 1962);
Andrea Proto Pisani, Opposizione di terzo ordinaria (1965); Federico Carpi, L’efficacia
“ultra partes” della sentenza civile (1974); Franceso Luiso, L’esecuzione “ultra partes”
(1984). This rather technical debate will not be developed here.
239. See generally Hazard, Jr. et al., “An Historical Analysis of the Binding Effect
of Class Suits,” 146 U. Pa. L. Rev. 1849, 1854, 1857, 1863, 1865, 1876-78, 1885-86,
1901-02, 1917-23, 1937, 1942, 1947 (1988); See also Joseph Story, Commentaries on
Equity Pleadings and Incidents Thereof (10th ed., John M. Gould rev., 1892). Unlike
practice in the United States, in England the class decree has always bound absent
members, perhaps because of the absence of a constitutional guarantee of due process
of law. See Zechariah Chafee, Jr., Some Problems of Equity 224-25 (1950); see also
Note, “Collateral Attack on the Binding Effect of Class Action Judgments,” 87 Harv.
L. Rev. 589, 590 (1974); Wright, Miller & Kane, 7A Federal practice and procedure:
civil 2d 12 (1986).
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without prejudice to the rights and claims of all absent parties.”240 It
was not uncommon, however, for courts to openly disregard this last
sentence of the Rule.241 The 1966 Amendment of Federal Rule 23
sought to remedy this unsatisfactory contradiction. Perhaps to quell
a century of controversy, perhaps to eradicate any ideas of one-way
intervention, the 1966 rulemaker used the expression “whether or
not favorable to the class” three times in Rule 23, in codifying the res
judicata effect of the class decree.242
7.3 Legislative Choices
An action is a class action if it determines the interests of absent
members of a class.243 The judgment must have binding effect ultra
partes (beyond the parties).244 The character erga omnes (against all)
of res judicata is an essencial element of class action proceedings.245
A judgment limited to the parties present in court (including inter240. See Fed. R. Equity 48 (1842).
241. See Smith v. Swormstedt, 57 U.S. 288 (1850) (Published only a decade after
the enactment of Equity Rule 48, the case disregarded the plain language of the rule
and held that a class decree may be binding on absentee members of the class.); See
also 1 Thomas Atkins Street, Federal Equity Practice 271-72, 344-45 (Edward Thompson Co., 1909) (§§ 433-335, 551-52).
242. See Fed. R. Civ. P. 23 (c)(2)(B), (c)(3) (providing that the class decree is binding on absentees whether or not favorable to the class.) A foreign observer would
wonder what would happen if that expression appeared only once in the text of Rule
23. . .
243. See infra Section 4.1 “Class Action Defined”.
244. For no other reason, the now-extinct “spurious class action” was not considered a class action at all, just a permissive joinder device. Hence, the name
“spurious.”
245. See Hazard Jr. et al., “An Historical Analysis of the Binding Effect of Class
Suits,” 146 U. Pa. L. Rev. 1849, 1850 (1998) (noting that “[w]hether a class suit decree
has binding effects on the class goes to the essence of the class suit device”); Taruffo,
“Intervento,” in Le Azioni a Tutela Degli Interessi Collettivi 330 (Vittorio Denti ed.,
1976) (arguing that, when the object of the suit is a diffuse right, it is necessary to
grant a correspondingly diffuse efficacy of the judgment); d’Oliveira, “Protection of
Diffuse, Fragmented and Collective Interests in Civil Litigation,” in XXX Netherlands
International Law Review 161, 179-81 (1983). The character erga omnes of a class
decree is even more important in civil law systems, where the impact of precedents in
future litigation is considerably lower.
Henk J. Snijders argues that there can be “a class action without erga omnes res
judicata effect.” See Snijders, “Netherlands Civil Procedure,” in Access to Civil Procedure Abroad 239, 256-57 (Henk J. Snijders ed. & Benjamin Ruijsenaars trans., 1996)
(“In representative actions the difficult question is whether the persons whom the
organisation represented are bound by the judgment in the representative action. In
principle, as a point of law, that question must be answered negatively. The individuals involved were not a party to the representative action, so that the judgment does
not have the authority of res judicata for them. Despite this, the effect of the judgment on third parties interested in the matter may be considerable, either in a negative or a positive sense.”) (citation omitted). However, this assertive proves too much;
it proves that res judicata is not essential to any action. A class decree with no res
judicata effect is equivalent to a judgment in an individual action with no res judicata
effect. Because the Dutch representative actions described above are more comparable to a “test case” device than to a class action, they may be better labelled as “test
class actions.”
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venors) defeats the fundamental essence of class action procedure.246
Thus, the doctrine of res judicata is probably the single most important element of any class action legislation. However, it must also be
recognized that absent members’ interests are at stake in a class action and these must be protected from dishonest or incompetent
representatives.
There are two obvious solutions to address the delicate balance of
fairness of res judicata in class action litigation: either the law gives
binding effect to the class decree irrespective of the outcome (pro et
contra),247 or the law binds absent members solely if the class
prevails (“one way” preclusion in American parlance or secundum
eventum litis in civil law terminology).248 The Brazilian solution provides a complex and sophisticated approach, which embraces the beneficial aspects of each of these two extreme rules.
7.4 Brazilian Approach to Res Judicata in Class Actions
Article 103 of the Brazilian Consumer Code concerns the res
judicata effect of class actions.249 The statute prescribes that a class
action judgment shall bind all members of the class, but the decision
246. See d’Oliveira, “Group Actions in Civil Procedure,” in Netherlands Reports to
the Thirteenth International Congress of Comparative Law 135, 147 (1990) (arguing
that “‘repeat players’ follow the strategy of generalizing their procedural victories and
confining their losses to res judicata in the individual case.”)
247. This is the prevailing rule in all common law class action doctrines. See, e.g.,
Fed. R. Civ. P. 23(c)(2)(B); (c)(3) (1966) (providing that class decree is binding on absentees whether or not favorable to the class); See also Class Proceeding Act, S.O.,
27(3) (1992) (Ont.); Code of Civil Procedure, S.Q., ch. 48, art. 1027 (1976) (Que.).
248. This is the general rule in the German Verbandskage (associational action) for
the judicial control of abusive standard clauses in adhesion contracts. If the consumer’s association wins the class action and the clause is considered abusive, it is
deemed void to the benefit of all class members. If the association loses, another association may bring the same class action again. See Koch, “Class and Public Interest
Actions in German Law,” 5 C.J.Q. 66, 70-71 (1986).
The res judicata secundum eventum litis is a controversial issue among civil-law
scholars, but it has prominent suporters. In Italy, see generally Proto Pisani, “Appunti Preliminari per uno Studio sulla Tutela Giurisdizionale degli Interessi Collettivi (o Più Esatamente: Superindividuali) Innanzi al Giudice Civile Ordinario,” in Le
Azioni a Tutela Degli Interessi Collettivi 263, 284-86 (Vittorio Denti ed., 1976); Giorgio
Costantino, Brevi Note Sulla Tutela Giurisdizionale degli Interessi Collettivi Davanti
al Giudice Civile, Dir. e Giur. at 235 (1974); Vittorio Denti, Relazione Introdutiva, in
Le Azioni a Tutela Degli Interessi Collettivi 3 (Vittorio Denti ed., 1976); Michele
Taruffo, “Intervento,” in Le Azioni a Tutela Degli Interessi Collettivi 329, 330-06 (Vittorio Denti ed., 1976). In Spain, see generally Joaquin Estagnan, La Tutela Jurisdicional de los Intereses Colectivos a Través de la Legitimación de los Grupos 362-63 and
384 (1995); José Estévez, Tutela Procesal de los Consumidores 92-93 and 136-37
(1995). Against res judicata secundum eventum litis, see Mauro Cappelletti, “Appunti
sulla Tutela Giurisdizionale di Interessi Collettivi o Diffusi,” in Le Azioni a Tutela
degli Interessi Collettivi 191, 205-06 (Vittorio Denti ed., 1976).
249. See Brazilian Consumer Code, art. 103, translated infra Section 10.1. See
Carmen Azambuja, Rumo a Uma Nova Coisa Julgada (1994); Renato Rocha Braga, A
Coisa Julgada nas Demandas Coletivas (2000).
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cannot prejudice their individual rights.250 Put simply, if the class
action is decided in favor of the group, all absent members of the class
benefit from the decision. If decided against the group, however, the
class action is precluded and no other class action can be brought
again to represent the same group right, but the class members are
not bound by the decision; they can still go to court to pursue their
individual rights in individual actions.
At first glance, this system of res judicata may look like the old
American controversy concerning so-called “one-way intervention.251”
Some may even call it “one-way res judicata.” However, this first impression is false. Unlike one-way intervention, the group in a Brazilian class action only has a single opportunity at class litigation.
Should the group prevail, not only the group as a whole, but all members will benefit from the favorable decision. If the group loses, however, the group right will perish, and any additional class litigation
on the same controversy is precluded.252 In this respect, the class
decree is binding on the group as a whole, whether the decree is
favorable or not. However, individual rights stemming from the
same controversy are not precluded, and the members retain the opportunity to sue individually to vindicate their individual rights.
An example will make the distinction clear. As has been discussed above, the transindividual right of a group (diffuse or collective rights) is closely intertwined with the individual rights of its
members. Violation of a diffuse right (e.g., truthfulness of advertisements) may give rise to the violation of a series of individual rights
that, because they have a common origin, are called “homogeneous”
(e.g., individual damages caused to consumers by the advertisement.)
An understanding of this concept is essential in order to appreciate
the res judicata effect of the class decree in Brazil. The object of a
class action brought to enjoin an allegedly misleading advertisement
is to ban the broadcast of the advertisement (injunctive class action
250. See id. In comparative law, a similar res judicata effect may be found in
stockholders suits on behalf of a corporation (shareholder derivative suits) and in
shareholders suits against company board deliberations. See generally Wright et al.,
7C Federal Practice and Procedure: Civil 2d, § 1840 (1986).
251. The term ”one-way intervention“ was commonly used before the 1966 amendments to the US Federal Rules of Civil Procedure. It was used in a derogatory manner to denote the possibility that in a spurious class action a member of the class
might intervene in an action after a favorable decision was rendered. Harry Kalven &
Maurice Rosenfield developed this idea, which was accepted by some courts and not
others. See Kalven & Rosenfield, “The Contemporary Function of the Class Suit,” 8
Chi. L. Rev. 684 (1941). There was a bitter controversy over this subject because
many thought it unfair to allow a member to benefit from the class judgment without
the risks of failure. An amendment of Federal Rule of Civil Procedure 23 followed in
1966 in part to address these concerns. See Fed. R. Civ. P. 23 advisory committee’s
note; See also Kaplan, “Continuing Work of the Civil Committee: 1966 Amendments
of the Federal Rules of Civil Procedure (I),” 81 Harv. L. Rev. 356, 385-86 (1967).
252. The term “controversy” has a narrower meaning in civil law than in common
law. See supra Section 7.1, “Comparative Overview of Res Judicata”.
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in protection of diffuse right.) If the class claim prevails, not only the
advertisement will be banned, but also all class members will benefit
from the binding effect of the class decree. In their individual actions
for damages, members will not need to prove that the advertisement
was deceptive: they will only have to prove individual causation and
the amount of damages.253 Should the class action fail, however, the
advertisement will not be considered misleading and will not be
banned. This decision is res judicata, and the class as a group is precluded from taking a second bite at the proverbial apple. Although
the class cannot bring another injunctive class action under the same
cause of action, the individual members of the group will not be
prejudiced in their individual claims for damages and will still be
able to allege that the advertisement is misleading in their individual
action for damages.
Because in a class suit the interested persons are not necessarily
made parties to the action, given a direct day in court, or informed of
the action’s existence, the Brazilian legislature considered it acceptable that a person be benefited by the class decree but not prejudiced
by it. It was a correct policy choice under the circumstances. There
are no compelling reasons for excluding non-party class members
from the benefits of a successful class action. However, the Brazilian
legislature considered that important due process guarantees might
be violated or impaired should an adverse decision have a preclusive
effect.254
253. American scholars might consider this to be an example of issue preclusion
(collateral estoppel.) This analysis would be correct. Indeed, the whole system of res
judicata in Brazilian class actions can be understood through the concept of issue
preclusion and it will then look more familiar and more acceptable to an American
observer. It is relevant to mention, however, that in civil law systems there is generally no issue preclusion and this solution would not have been possible without an
express provision in a written statute. One of the few voices in Brazil advocating a
res judicata effect similar to the common law concept of issue preclusion was Thereza
Alvim, Questões Prévias e os Limites Objetivos da Coisa Julgada 31-85 (1977). See
infra Section 7.6, “Rationale of the Brazilian Approach” (discussing offensive nonmutual issue preclusion in American law.)
254. It has long been accepted in the United States that adequacy of representation of absentees’ interests (and maybe also adequate notice) are sufficient under the
due process of law clause. See generally Note, “Proposed Rule 23: class action reclassified,” 51 Va. L. Rev. 629, 654 (1965); Comment, “Adequate representation, notice and
the new class action rule: effectuating remedies provided by the Securities laws,” 116
U. Pa. L. Rev. 889, 910-15 (1968); Marvin Frankel, “Some preliminary observations
concerning Civil Rule 23,” 43 F. R. D. 39, 45 (1968); Kaplan, “The class action – A
symposium. A prefatory note,” 10 B.C. Indus. & Comm. L. Rev. 497, 499 (1969);
Degnan, “Foreword: Adequacy of representation in class action,” 60 Cal. L. Rev., 705,
719 (1972); Note, “Collateral attack on the binding effect of class action judgments,”
87 Harv. L. Rev. 589, 599-601 and 605-06 (1974); Note, “The importance of being adequate: due process requirements in class actions under Federal Rule 23,” 123 U. Pa.
L. Rev. 1188 (1975); Note, “Developments in the law – class actions,” 89 Harv. L. Rev.
1318, 1402-16, esp. 1403 e 1413 (1976); 7B Wright et al., Federal Practice and Procedure: Civil 2d 253-58 (1986), Friedenthal, Kane e Miller, Civil procedure 772, n. 8
(1999).
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Therefore, according to the Brazilian class action statutes, only
the benefits of the class decree are extended to the individual absent
members; the members cannot be prejudiced by an unfavorable decision.255 Civil law scholars call this situation an extension in utilibus
(from the Latin “useful”) of the class decree, because it only happens
when the decree is favorable to the interest of the group. It is also
called secundum eventum litis, as it depends on the outcome of the
litigation.
The aforementioned is an example of a class judgment’s res judicata effect in a class action in protection of diffuse rights.256 The
judgment in a class action in protection of collective rights is governed by the same rule.257 For example, in a class action to compel a
health insurance company to perform treatment of a certain disease,
the judgment will benefit all class members (clients) that had suffered some damage by the defendant’s refusal. In that case, class
members, when bringing their individual suit for damages, will not
need to prove the illegality of the defendant’s conduct. Class members will only have to prove individual causation and amount of individual damages.
It is important to distinguish this rule from the position in the
United States, as stated by the Supreme Court in Cooper v. Federal
Reserve Bank of Richmond.258 In that case, the Supreme Court held
that if the class representative could not prove a pattern of classwide
discrimination, each absent member could still bring her own individual action in order to prove individual discrimination against that
plaintiff. The object of a class action is the classwide discrimination.
If a pattern of discrimination is not proved, the class action is rejected, regardless of the existence of specific cases of individual discrimination, as occured in Cooper.259
This rule differs from the Brazilian one, because, in Cooper, the
plaintiff in the individual action is bound by the class decree and precluded from alleging classwide discrimination: The members’ individual actions are therefore limited to allegations of individual
discrimination. According to Brazilian law, however, the class member would not be bound by the class decree at all and would be able to
bring an individual action to allege and prove classwide discrimination, as long as the plaintiff requested an individual remedy to redress the violation of an individual right. The class claim, however,
is precluded.
255. See Brazilian Consumer Code, art. 103, paragraphs 1 and 2, translated infra
Section 10.1.
256. See supra Section 5.4.1, “Diffuse Rights”.
257. See supra, Section 5.4.2, “Collective Rights”.
258. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984).
259. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984).
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In order to offer a complete picture of the res judicata in Brazilian class actions, it is necessary to explain the binding effect of the
class judgment in a class action to protect homogeneous individual
rights. As already mentioned, the Brazilian class action for individual damages is an “issue class action.” Its scope is limited to declaring a defendant’s liability. In the event the class action is successful,
each individual class member is benefited by this declaration. However, each class member must bring his or her own case to court, to
establish that he or she is a member of the group (causation) and
prove the amount and extent of the individual damages suffered.260
If the class action is decided against the group, class members are not
prejudiced by the class judgment, and can bring their own individual
actions in protection of their individual rights. If a class member had
intervened in the class action, however, he or she will be bound by the
unfavorable judgment.261
7.5 Res Judicata and Insufficient Evidence
Changing centuries of established practice in traditional litigation, the Brazilian legislature has provided that there is no res judicata effect if the class claim is deemed groundless due to insufficient
evidence.262 This development is, perharps, an even greater innovation than the aforementioned doctrine of non-binding adverse decisions.263 Any class representative may re-file the same class action
for protection of the same transindividual right in the event of new
evidence being presented. For example, suppose that a judge decides
a class action in favor of the tobacco companies, holding that cigarettes do not cause cancer; the tobacco companies did not know that
cigarettes cause cancer; and cigarettes are not addictive. If contrary
evidence, sufficient to warrant a different decision, surfaces several
years later (and the applicable statute of limitations has not run), the
same class action for protection of the same right may be re-initiated
by any entity with collective standing.
In the above example, the Brazilian policy is explained as follows: the fact that the representative could not find or did not pro260. See supra Section 5.4.3, “Homogeneous Individual rights”.
261. See Brazilian Consumer Code, art. 103, III and 103, paragraph 2, translated
infra Section 10.1.
262. See Brazilian Consumer Code, art. 103, I - II, translated infra Section 10.1.
This rule is not new in Brazilian class action law. It has been in force in Brazil at
least since the enactment of the Actio Popularis Act in 1965. See id., art. 18. The
Brazilian rule influenced other Latin American class action legislation. See “Model
Code of Civil Procedure for Ibero America,” 52 Revista de Processo 134 (1988), art. 194
and Uruguay’s Code of Civil Procedure, art. 220.
The traditional rule is maintained in individual litigation; the parties have the
burden of proving the facts that are favorable to their claims and a lack of evidence
means res judicata against the parties. It is unlikely that this rule will be altered in
the foreseeable future.
263. See supra Section 7.4, “Brazilian Approach to Res Judicata in Class Actions.”
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duce all evidence, signifies that the representative inadequately
advocated the group’s interests in court. On the one hand, judicial
scrutiny of the adequacy of representation in Brazilian class actions
is thereby more intense than in the American system because it is
objective: inadequacy in the previous action is presumed if new evidence is presented in the second and thus an independent analysis of
adequacy is not required. On the other hand, the Brazilian standard
is less searching, because it is limited to the sufficiency of the evidence: If the class action is badly argued in the issues of law or the
advocate prepared the case incompetently, the adverse decision will
be res judicata.264
According to the majority of Brazilian commentators, in order for
this exception to apply, and for the class decree to escape res judicata,
it is imperative that the court expressly acknowledge in the reasoning that the adverse decision was based on a lack of evidence.265 In
some clear cases, it might be possible for the judge to be aware that
the rejection of the class claim is due to insufficient evidence. However, in numerous cases, the court might not be aware that relevant
evidence was not presented in court. It is a recognized rule in American civil procedure that a court cannot predetermine the binding effects of its own judgments.266 Consistent with that, the Brazilian
rule should be interpreted as not requiring the express or implicit
acknowledgment of the lack of evidence in the previous decision. Accordingly, if, at any time after the judgment, new evidence is discovered that would have changed the outcome of the case, the class
action in protection of the same group right can be relitigated.267 If
the res judicata rule is to be effective in practice, this liberal interpretation is imperative.
It would not be enough, however, to allege that the first decision
was based on insufficient evidence. Presentation of new evidence is
essential and must be made in the statement of claim, as a prerequi264. See supra Section 6.3, “Brazilian Approach to Collective Standing” (discussing
adequacy of representation in Brazilian class actions.)
265. See José Afonso da Silva, Ação Popular Constitucional 273 (1968), Rodolfo de
Camargo Mancuso, Ação Popular 204 (1994). Arruda Alvim has a somewhat more
liberal position, accepting an implicit acknowledgment of lack of evidence in the decision’s reasoning. See Arruda Alvim, Thereza Alvim, Eduardo Arruda Alvim & James
Marins, Código do Consumidor Comentado 464 (1995); Luiz Wambier, Liquidação de
Sentença 277 (2000).
This device is no different from the iurare sibi non liquere, a prerogative of Roman judges to abstain from deciding a case in which the evidence is not conclusive for
either side. See Leopold Wenger, Institute of The Roman Law of Civil Procedure 204
(1955); Arthur Engelmann et al., A History of Continental Civil Procedure 364 (1969).
266. See Note, “Binding effect of class actions,” 67 Harv. L. Rev. 1059, 1060 (1954);
Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d, vol. 7B, p. 245-52;
Hazard, Jr., Gedid & Sowle, “An Historical Analysis of the Binding Effect of Class
Suits,” 146 U. Pa. L. Rev. 1849, 1854 (1998).
267. See Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas 131-35
(1995).
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site to the commencement of the second class suit. It is not necessary
that the plaintiff demonstrate that the evidence was available and
could not have been obtained with reasonable diligence for use in the
first proceeding. The mere presentation of new evidence is enough.
The evidence might even have become available years after the judgment, through developments in science, for example.268
The new evidence does not have to be so persuasive that by itself
it would ensure a decision for the class. However, the new evidence
must be sufficiently probative to justify the possibility of a different
outcome. The second court must evaluate all the evidence presented
in the case in its entirety, including the evidence previously considered insufficient.269
While the statute only applies this rule to class actions for the
protection of diffuse and collective rights, there is no compelling reason why it should not apply also to class actions for individual damages (i.e., homogeneous individual rights). Indeed, the legislature
would have been more consistent had it extended the application of
this rule to all types of class actions.270
7.6 Rationale of the Brazilian Approach
The possibility that a defendant may be required to relitigate a
matter previously decided favorably may seem unfair and perhaps
inefficient. However, compelling policy reasons prompted the Brazilian legislature to adopt such an approach to class actions. The class
action is a relatively new procedural tool in Brazil. Moreover, some
devices utilized by American courts to protect the legitimate interests
of absent members are not available in the procedure of civil law
systems.
First, extensive use of discovery in the United States promotes
increased access to relevant information. The absence of an effective
268. Id. at 135-37.
269. See Paulo Affonso Leme Machado, Ação Civil Pública e Tombamento 46
(1987).
270. The only relevant difference between these proceedings is that the statute
provides a general notice and expressly allows intervention by individual members
only in class actions for the protection of individual homogeneous rights (class actions
for individual damages.) Such notice is not provided in class actions for the protection
of diffuse and collective rights. See Brazilian Consumer Code, art. 94. Unlike the
other two types of class action, theoretically at least, individuals have more control
over, and can assist the representative in the progression of class action for the protection of individual homogeneous rights. However, this hardly justifies the radical
difference in res judicata effect between the types of class actions, in light of the lack
of adequate notice and control by the judge. Moreover, there is no reason for allowing
class member intervention in one type and not in other types of class actions. See
supra Section 5.5, “Legal Definition of Group Rights: The Need for Flexibility” (arguing that “[t]he use of legal abstractions resulted in unnecessary statutory line drawing, creating needless and unjustified differences in the ways in which the three types
of class actions were carried out.”) See supra n. 148.
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discovery in Brazil results in decisions often being based on limited
evidence and information. This is the single most compelling argument against a strict rule of res judicata in class actions.271 Secondly, civil law judges have historically lacked the power, inclination,
and professional ability to scrutinize the adequacy of representation.272 Thirdly, the legislature considered the practical difficulties
and financial burdens of providing an adequate method of notice to
absent members.273 Brazil is a geographically vast and economically
undeveloped country; the majority of its citizens lack full political
consciousness, are poor and ill-educated. It would be impossible to
create an adequate and efficient notice device in such circumstances.274 Fourth, the population is not well served by the judicial
system. The ethical rules of the bar and bench are largely unenforced, and there is a pervasive distrust of the judiciary. Finally, the
lack of technological development and scientific information about
dangerous products, as well as the absence of a well funded entrepreneurial bar, highlights the need for a relaxed res judicata rule
in class action litigation.
A system of res judicata that varies according to the result of the
judgment, however, is important not only in developing countries.
American scholars are accustomed to aggressive rules of offensive
nonmutual issue preclusion, and American courts often apply res
271. Two functionally equivalent devices available in Brazilian civil procedure are
the judicial power for shifting the burden of proof and the “civil investigation” (“inquérito civil.”) The “civil investigation” is an important investigative device used in
preparation for class suits, similar to the “police investigation” (“inquérito policial”)
available to the office of the Attorney General in criminal procedure. See generally
Antonio Gidi, Aspectos da Inversão do Ônus da Prova no Código do Consumidor 3
Revista de Direito Processual Civil 583 (1996); Hugo Mazzilli, O Inquérito Civil
(1999). However, shifting the burden of proof may have limited utility in discovering
unknown facts and the “civil investigation” can only be conducted by the office of the
Attorney General.
Adoption of substantive rules of strict liability and the absence of punitive damages also minimizes the problem of asymmetrical information in civil litigation and
consequently the need for discovery.
272. See Cappalli & Consolo, “Class Actions for Continental Europe? A Preliminary Inquiry,” Temple Int’l & Comp. L.J. 217, 291 (1992) (arguing that the Italian,
and maybe even other Continental European judges would be “absolutely unable to
execute, in credible fashion, the same functions as the American judge,” including
evaluating adequacy.) See also Andrea Giussani, Studi Sulle “Class Actions” 371 and
387 (1996).
Compare Koch, “Group and Representative Actions in West German Procedure,”
in German National Reports in Civil Law Matters for the XIIIth Congress of Comparative Law in Montréal 27, 34-35 (1990) (giving examples in which German courts evaluated, in a primitive way, the adequacy of representation in class actions).
273. See, e.g., Ahearn v. Fibreboard Corp., 162 FRD 505 (E.D. Tex. 1995), an American case in which providing notice to absent class members cost approximately 22
million dollars.
274. Brazil has approximately 170 million inhabitants, unevenly spread over approximately 8.5 million square kilometers, an area larger than the Continental
United States. Almost one sixth of the adult population is illiterate.
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judicata erga omnes secundum eventum litis in individual actions.275
This distinctively American approach can be better explained to civil
lawyers with a rather simple example. After a traffic accident, involving a bus and resulting in fifty injured passengers, Passenger A
sues the bus company, alleging negligence on the part of the bus
driver. If the court finds the bus company negligent, then in a subsequent action brought by Passenger B, the court may consider the negligence issue to be settled against the bus company by the previous
litigation (assuming this issue was effectively litigated and adjudicated in the previous trial). Such use of discretion is justified if no
reason exists to suspect that a different result will emerge, because
the bus company had a full and fair opportunity to litigate the matter
and no legitimate reason exists for the bus company to relitigate it in
another case. However, should the bus company win in the first trial
initiated by Passenger A, Passenger B is not bound by that decision
because he was not a party to that action and did not have his day in
court.276
The “one-way” preclusion can be very important in product liability cases, particularly in litigation concerning design defects in massproduced products. For example, should a defect be found to exist in
275. See generally Bernhard v. Bank of America, 122 P.2d 892 (1942) (defensive
use); Blonder-Tongue Lab. v. University of Ill. Found., 402 U.S. 313 (1971) (defensive
use); Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) (offensive use by a private
party after a governmental action); Zdanok v. Glidden Co., 327 F.2d 944 (2nd Cir.
1964); See also Restatement (Second) of Judgments § 29 & reporter’s note (1982);
Furman, Note, “Offensive Assertion of Collateral Estoppel by Persons Opting Out of a
Class Action,” 31 Hastings L.J. 1189 (1980). See 18 Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction 2d §§ 4463-4465 (discussing the abandonment of
the rule of mutuality and limitations to nonmutual preclusion).
276. There are exceptions, qualifications, and many policy bases to this rule that
will not be addressed here. As a general rule, however, issue preclusion will not be
granted when manifestly unfair to the defendant. This information may not be very
helpful because notions of fairness in civil and common law traditions differ greatly.
Moreover, rules of issue preclusion also differ among states and between levels of
state and federal systems (i.e., state and federal governments). See generally
Friedenthal et al., Civil Procedure 704-10 (1999); See also James, Hazard & Leubsdorf, Civil Procedure § 11.25 (2001) (discussing the doctrine of mutuality and its
erosion).
Offensive use of issue preclusion by non parties is a controversial subject in
American procedure and, in principle, is not yet available in England or any other
common law jurisdictions. But see Watson, “Issue Estoppel, Abuse of Process and
Repetitive Litigation: The Death of Mutuality,” in International Perspectives on Civil
Justice 179, 179 (I. R. Scott ed., 1990) (arguing that in some cases English and Canadian Courts have abandoned mutuality and given “some form of preclusive effect” in
favor of third parties.)
Civil law systems normally do not give preclusive effect to any “incident” or “preliminary question” (“issues” in common law terminology.) An issue will only be res
judicata in a civil law system if the parties specifically request an “incidental declaratory judgment.” This device has consequences similar to those of issue preclusion but
is much more formalistic and restrictive because this is an incidental lawsuit. The
general rules of res judicata apply, binding only the parties to the case. See, e.g.,
Brazilian Code of Civil Procedure, arts. 5, 325, 470.
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an initial case, the decision may operate to establish liability upon
the entire product line. In pharmaceutical cases, when a product is
found to adversely affect human health, relitigation of the issue may
be precluded in all subsequent cases, potentially placing a defendant
in a dangerous position.277 As a result, many defendants will feel
compelled to settle cases so as to avoid a trial that might ultimately
determine liability for an entire product line. If this rule can be accepted in individual litigation in the United States, where there is no
protection for the group, such as judicial control of adequacy of representation, no fundamental principle of justice exists that would exclude the same rule in the context of class actions.
The existence of judicial control over the adequacy of class action
representation is frequently asserted by American scholars as a conclusive argument for the binding effect of class decree, irrespective of
the outcome. This is not persuasive because adequacy of representation is a device to protect absent members, not to prejudice them.
Another functional analogy to the Brazilian res judicata
secundum eventum litis, in the American class action doctrine, is the
now forbidden practice of holding a preliminary hearing on the merits
of the class claim before certifying a class action. According to the old
practice, the class action would only be certified if the class had a
probability of winning on the merits.278 By providing that only
277. See Hazard, Jr., Gedid & Sowle, “An Historical Analysis of the Binding Effect
of Class Suits,” 146 U. Pa. L. Rev. 1849, 1850 and 1917, n. 315 (1998) (arguing that
“with the abolition of the mutuality rule, an absentee who is situated similarly to a
prevailing litigant may be able to invoke the prevailing litigant’s judgment in quite
the same way a class member could do so” and “upon abrogation of the mutuality rule,
any case in which one of several claimants litigates successfully, is in effect potentially a representative suit as to the common issues.”)
278. Compare Dolgow v. Anderson, 43 F.R.D. 472 (D.C.N.Y.1968) (holding that a
preliminary inquiry into the merits of the case should be made, before certifying the
class action) with Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (holding that it is
improper to make a preliminary inquiry into the merits of a case, determine that the
plaintiff was likely to succeed, and consequently shift the cost of providing notice to
the defendant); Miller v. Mackey International, 452 F.2d 424 (5th Cir. 1971) (holding
that a district court cannot deny certification based on its belief that the plaintiff
could not prevail on the merits); Castano v. American Tobacco Company, 84 F.3d 734
(1996) (the strength of a plaintiff’s claim should not affect the certification decision.)
But See In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) (making a preliminary inquiry into the merits of the case); Hazard, Jr., “Class Certification Based
on Merits of the Claims,” 69 Tenn. L. Rev. 1 (2002).
An old proposal from the United States Department of Justice tried to resuscitate
this practice but was never enacted. See S. 3475, 95th Cong., 2d Sess., 124 Cong. Rec.
27.859 (1978); United States Department of Justice, Bill Commentary. the Case for
Comprehensive Revision of Federal Class Damage Procedure 51-57 (1979); Berry,
“Ending Substance’s Indenture to Procedure: the Imperative for Comprehensive Revision of the Class Damage Action,” 80 Colum. L. Rev. 299, 312-15 and 335-37 (1980).
This is the current rule in securities class actions in Israel. See Goldstein &
HaCohen, “Class Actions [in Israel],” in Int’l Enc. of Laws 261, 263 (1994). See also
Quebec’s Code of Civil Procedure, art. 1003(b) (requiring, for certification of a class
actions, that “the facts alleged seem to justify the conclusions sought”); Ontario Law
Reform Commission, II Report on Class Actions 309-24 (1982).
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claims with a high probability of success can proceed as a class action, this device ensures that only a favorable class decree will have a
binding effect over absent class members.279
7.7 Comparative Remarks
The transplant of the Brazilian system of res judicata in class
actions into a common law system would not be appropriate without
modification, particularly with respect to the binding effects of a defendant class action and a class settlement.280 The American class
action law, however, could greatly benefit from a system of res judicata that integrates a compromise between the over-liberal “one-way
intervention” and the over-restrictive “whether favorable or not”
approach.
In the United States, class action treatment is denied in numerous cases because of the fear that interests of absent members will be
prejudiced. Some of these class suits could have been permitted if the
court had known in advance that no harm could be done to the individual rights of absent class members. In addition, using a modified
system of res judicata means that the “futures problem” becomes a
non-issue, because a much smaller risk is imposed on the future
claimants.281 On the one hand, this system of res judicata is beneficial to the “futures” because they will receive the fruits of a favorable
decision without the risk of being prejudiced by an eventual adverse
decision. One the other hand, if the class wins, the “futures” run the
risk that the funds available will be depleted by the time they become
“present members.” This practical problem can only be avoided by a
class decision that carefully takes into account all the variables in the
situation. The futures problem, however, was not specifically ad279. The other side of the coin is that this device would also be beneficial to defendants because it would deter frivolous suits and curb abuses and blackmail. See Note,
“Developments in the Law – Class Actions,” 89 Harv. L. Rev. 1318, 1416-38 (1976),
Katarincic & Mcclain, “Federal Class Actions under Rule 23: How to Improve the
Merits of your Action Without Improving the Merits of your Claim,” 33 U. Pitt. L. Rev.
429, 439-43 (1972), and Blecher, “Is the Class Action Rule Doing the Job? (Plaintiff’s
Viewpoint),” 55 F.R.D. 365, 368-70 (1973).
280. See supra Section 4.5, “Shortcomings of Brazilian Class Actions.”
281. The problem of future class members is one of the most delicate in mass torts
class litigation, in which serious considerations of fairness and due process are involved. See Hazard, Jr., “The Futures Problem,” 148 U. Pa. L. Rev. 1901, 1910-13
(2000) (discussing Amchem Prods., v. Windsor, 521 U.S. 591 (1997) and Ortiz v.
Fibreboard Corp., 527 U.S. 815 (1999)). In those cases two other especially troublesome aspects further complicated the issue: both were settlement class actions and
both involved mass toxic tort claims. See generally Jack Weinstein, Individual Justice in Mass Tort Litigation (1995); Linda Mullenix, Mass Tort Litigation. Cases and
Materials (1996); Jay Tidmarsh, Mass Tort Settlement Class Actions. Five Case Studies (1998); Richard Faulk, Stopping the Speeding Locomotive: Perspectives on Toxic
Tort and Environmental Litigation (2000). See also Symposium, “Mass Tortes: Serving Up Just Desserts,” 80 Cornell L. Rev. (1995); Symposium, “Mass Torts,” 148 U.
Pa. L. Rev. (2000).
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dressed by the Brazilian statutes, and it cannot be adequately resolved in Brazil even through bankruptcy proceedings.
The Brazilian system of res judicata can be considered an alternative to the opt-out system, in which a class member may request
exclusion from the class judgment. The opt-out device is only justified in a system in which the class judgment is binding on absent
class members, regardless of the case’s ultimate outcome (“whether
or not favorable to the class.”) However, an opt-out system is incompatible with a system of res judicata secundum eventum litis. Inasmuch as absent members will not be bound by an unfavorable class
decree, a member need not exclude himself from the class.
8. LIS PENDENS
8.1 Two Types of Lis Pendens
One final concept essential to an understanding of the Brazilian
class action system is the rule of lis pendens, which demonstrates the
importance that the Brazilian legislature places upon an individual’s
right to pursue an individual claim. Two kinds of lis pendens may be
encountered in class action litigation: the lis pendens between two
identical class actions, and the so-called “lis pendens” between a class
action and a corresponding individual action.
8.2 Identical Class Actions
The first kind is the “true” lis pendens. It occurs whenever one
group requests identical relief in two or more class actions based on
the same cause of action.282 Brazilian class action statutes did not
address this kind of lis pendens, because in all probability the legislature believed that the conventional rule in individual litigation already provided an adequate solution to the problem. Therefore, a
court should apply the traditional civil law rule applicable to individual actions, namely, that the first action filed in court takes precedence and will proceed, and all others will be dismissed. Courts
automatically apply this rule, as they do most procedural rules in
civil law systems, without consideration of the underlying facts or
any room for judicial discretion.283
282. That these actions may be brought by different entities is irrelevant to the
characterization of lis pendens. What is important is that the right and the group
represented in court are the same in both actions.
283. In contrast, in a common law system “each court has discretion to stay the
proceedings before it if it considers the other tribunal more adequate to adjudicate the
controversy.” Friedenthal et al., Civil Procedure 194-95 (1999). The same rule applies in England, unless the matter falls under the Brussels or Lugano Conventions,
in which case the first in time prevails to the exclusion of other jurisdictions. See Neil
Andrews, Principles of Civil Procedure 103-05 (1994) (noting that “only the action
which is first commenced is effective”).
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This approach rewards the race to the courthouse, but it may not
be the most appropriate solution for the protection of the interests of
absent members. According to the strict civil-law rules of pleadings,
the plaintiff’s claim (in the statements of claim) determines the object
of the action and restricts the scope of the proceeding: The court cannot decide beyond the claims stated in the pleadings.284 Since Brazilian rules of procedure are extremely restrictive on amendment of
pleadings.285 absent members may be prejudiced if the first action is
not well pleaded or if the group is not as well represented as in the
second action.
It is submitted, therefore, that traditional civil-law rules of lis
pendens must be sacrificed in the interest of absent members. The
best solution would be to create a flexible mechanism to merge the
actions, to choose the class action with the broadest scope, to allow
the plaintiff in one class action to intervene in the other and make a
new claim if necessary, or a combination of these devices.286
284. See, e.g., Brazilian Code of Civil Procedure, arts. 460 and 128 (providing that
the judge will decide the controversy within the limits established by the plainfiff or
counterclaimant and that the court is prohibited from granting a different remedy, or
awarding a different object or higher amount from what was requested.) This prohibition on extra petita and ultra petita judgments is unknown in American procedure,
but it is the general rule in all civil law countries. See, e.g., the German ZPO, § 308(1)
(providing that “[t]he court is not empowered to award by judgment a party anything
which has not been demanded.”); the French Code of Civil Procedure, arts. 4 and 5
(providing that “[t]he object of the litigation is determined by the claims of the parties.” “The judge shall pronounce about all that is demanded and only about what is
demanded.”); the Italian Code of Civil Procedure, art. 112 (“The judge must pronounce
about all claimed, not beyond the limits of the claim.”) This is a traditional rule, with
Roman Law pedigree. See Leopold Wenger, Institutes of the Roman Law of Civil Procedure 207 (1986) (noting that “[t]he contents of the judgment is determined by the
formulation of the controversy submitted by the parties to the judge in their claims.”)
285. See Brazilian Code of Civil Procedure, arts. 264 and 294 (providing that the
plaintiff can freely add claims or change the cause of action before service of process.
After defendant is served, amendment is allowed only with the defendant’s discretionary permission. There is no possibility for amendment once the pleading stage has
ended.)
These restrictive rules have a reason in the structure of civil-law proceedings.
Since there is no pretrial phase in civilian systems, for all comparative purposes, the
“trial” begins right after the pleading phase is concluded and the court collects evidence “in installments” until the final decision. Therefore, changing the claim or
cause of action during the “instruction phase” is comparable to changing it during
trial in common-law procedure. There is no reason, however, for civil law systems to
be so restrictive and deny judicial discretion to allow amendments in the absence of
prejudice to the parties. En revanche, the civil-law approach to res judicata is not so
restrictive as the common-law approach; the plaintiff can bring the negleted claim in
a subsequent action.
286. A similar approach would be particularly useful in the American context,
which lacks formal mechanisms to consolidade or prioritize overlapping class actions
simultaneously in state and federal courts. This is a practice with dangerous consequences. See Silberman, “The Vicissitudes of the American Class Action – With a
Comparative Eye,” 7 Tulane J. of Int’l & Comp. Law 201, 215-16 (1999).
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8.3 Class Action and Corresponding Individual Actions
The second kind of “lis pendens” arises when a class suit is initiated upon the same factual issue as a corresponding individual action. As already explained, there are cases in which a class action
addresses the same conflict as individual actions filed by class members.287 This situation can be better described as a class action overlapping with an individual action, rather than an actual case of lis
pendens. However, analyzing the situation as a “partial lis pendens”
may be useful if one considers that the individual action is subsumed
by the class action.
An example might be a class action to enjoin a misleading or deceptive advertisement, and a contemporaneous individual action
brought by a consumer requesting damages based on the same advertisement. Article 104 of the Brazilian Consumer Code establishes the
general rule that an individual action brought by a class member will
always have precedence over the class action. More specifically, if a
class member wants to vindicate an individual right on an individual
basis, he or she can do so regardless of the existence or the outcome of
a class action.288
However, if the defendant notifies the plaintiff, in the individual
action, of the existence of a pending class action with a corresponding
claim, the class member must decide within 30 days between persisting in individual action or requesting a stay of the individual proceeding. If the class member continues with the individual action, that
claimant will not benefit from any ultimately favorable decision in
the class action. If the individual plaintiff requests a stay of the individual proceeding, the member will benefit from a favorable res judicata effect of the class decree, but will not be bound by an unfavorable
decision. The member is generally well-advised to adopt this later
course because, if the class action fails, the member can still proceed
with the individual action.
The Brazilian approach contrasts with settlement practice in
American class actions, where the class action may have precedence
and may swallow the individual actions of absent members of the
group.289
287. See supra Section 5.4.3, “Homogeneous Individual Rights”.
288. See Brazilian Consumer Code, art. 104, translated infra Section 10.1. This
rule may even be dictated by the Brazilian Constitution, which guarantees access to
justice. See Brazilian Constitution art. 5, XXXV (providing that “[t]he law cannot
exclude from the appreciation of the judiciary harm or threat to any right”). See also
U. S. Const. amend. I (providing that “Congress shall make no law . . . abridging . . .
the right of the people . . . to petition the Government for a redress of grievances.”)
289. See Silberman, “The Vicissitudes of the American Class Action – With a Comparative Eye,” 7 Tulane J. of Int’l & Comp. Law 201, 202 (1999) (arguing that “[m]ore
recently, however, aggregation in the United States has had the effect of restraining
individuals from commencing their own litigation, in the service of (we are often told)
preserving access to justice,”); Burbank & Silberman, “Civil Procedure Reform in
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9. CONCLUSION
The need to provide legal redress for group rights is a pressing
reality in civil-law jurisdictions. The class action is becoming increasingly available in some civil-law systems, and can no longer be
viewed as a short-term flirtation with US procedure. Rather, it is a
“major trend of universal dimentions.290” Ultimately, most, if not all,
democratic systems will provide some form of judicial protection for
group rights.291
This paper has sought to demonstrate that the introduction of
class actions does not necessarily open the floodgates to an Americanization of civil law systems.292 Civil law systems present substantial
obstacles to the legal protection of group rights. These obstacles include the tradition of judicial conservatism, a deeply ingrained individualistic philosophy, the “scientific” and legalistic approach to law,
and the judicial tendency to revere the status quo. However, these
influences can be overcome if law reformers are willing to engage in a
comprehensive analysis of their own systems so that the existing civil
law structure can be tailored to effectively receive the doctrine of
class action. Simultaneously, there must be a comprehensive effort
Comparative Context: The United States of America,” 45 Am. J. Comp. L. 675, 685-86
(1997) (“[a]re settlement classes being used to disempower individuals rather than
empower them?”)
290. The expression is borrowed from Mauro Cappelletti, The Judicial Process in
Comparative Perspective 308 (1991).
291. Even in common law systems that offer several alternative devices to individual litigation, these alternatives do not seem to be an effective substitute to class
actions. See Ontario Law Reform Commission, I Report on Class Action 4, 100 (1982)
(noting that “individual legal proceedings may provide an inadequate and inefficient
means of resolving many types of multi-party disputes. Moreover, . . . other existing
procedural alternatives to protect legal rights where mass wrongs are involved – for
example, joinder and consolidation, test cases, and declaratory judgments in favour of
all injured parties – do not fill the present legal vacuum in an entirely satisfactory
way . . . [t]hese alternatives have significant inherent limitations, and . . . their utilization in a variety of circumstances, no matter how much animated by ingenuity and
good will, frequently results in ad hoc, ineffective half-measures . . . [M]any kinds of
mass wrong that increasingly arise in a modern industrial society generate novel procedural problems that call for unique procedural rules – a mass remedy – in order to
resolve all contentious issues in an efficient, effective, and equitable fashion.”); Maley,
“Toxic Torts: Class Actions in the United States and England,” 19 Suffolk Transnat’l
L. Rev. 523, (1996) (arguing that England “has not established a means for adequately managing multi-party actions, thereby endangering toxic torts victims’ rights
to redress” and suggesting that England should reform their procedure toward United
States class treatment as a means for managing toxic tort cases.)
Legislative solutions might work in specific instances of mass conflicts, especially
in cases involving a large class (such as gun control, tobacco, asbestos, or breast implants) or in cases involving politically sensitive matters (such as the Bhopal accident
in India). However, legislative solutions are not a realistic alternative for other cases
of little public visibility or low political impact. For those cases, private enforcement,
through class actions, might be the only viable alternative.
292. The Americanization of civil law systems, however, may not be an avoidable
trend. See Wiegand, “The Reception of American Law in Europe,” 39 Am. J. Comp. L.
229 (1991) (comparing the “reception” of American law in Europe with the dissemination of Roman Law as ius commune throughout Europe in the 12th to 16th Centuries.)
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to adapt the class action device to fit into the civil law system. This
dialectical approach, where the existing system and the class action
doctrine are simultaneously reconciled with each other, is the key to
a “responsible legal transplant” with minimal risk of institutional rejection. In this sense, the civil law system must operate with a degree of flexibility that may be initially uncomfortable for many
traditionalists. But the traditionalists need not worry about apocalyptic consequences. By carefully and systematically incorporating
the lessons learned from other class action experiments, civil law
countries can take advantage of this device without radically altering
their legal systems.
Fifteen years after the enactment of the first class action statute,
Brazil is still struggling to overcome the perplexities of establishing
this new device in a civil law environment. Indeed, the Brazilian approach to the problem of vindicating group rights in court is still not
ideal. It suffers from some structural and technical weaknesses,
most of them not necessarily related to the technical qualities of the
class action statutes themselves, but to a conservative and inefficient
approach to procedure, an inefficient judicial system, as well as
broader societal problems. However, the long-term prospects for the
Brazilian class action are very promising; it provides an important
point of reference for other civil-law systems interested in creating a
civil law-style class action.
Although this was unimaginable a decade ago, there are now
courses devoted to class actions at the best law schools in Brazil.
There are also several courses at the post-graduate level, offered as
part of the curriculum for Masters and Doctorate degrees. The subject is compulsory in the entry examinations for several official public
positions, including Judge, and assistant Attorney General. After the
exams, candidates for these public positions may also receive further
specialized training in their departmental schools.293
The Brazilian literature on domestic class actions is vast, sophisticated and extensively relied upon by numerous foreign scholars interested in transplanting similar legislation into their countries. No
other civil-law system has attained this level of sophistication. However, it would be premature and dangerous for Brazilian scholars to
become complacently insular regarding the subject and consider the
system self-sufficient.294
293. As is current in Europe, after a candidate passes a competitive examination
for judge or assistant Attorney General positions, the candidate must also attend a
preparatory course.
294. In a recent book, published in commemoration of the 15th birthday of the first
class action statute, collecting 28 papers from the most prominent scholars in Brazil,
only one had a comparative law approach. See Grinover, “Da Class Action for Damages à Ação de Classe Brasileira: Os Requisitos de Admissibilidade,” in Ação Civil
Pública. Lei 7.347/1985 – 15 Anos 19 (Édis Milaré ed., 2001).
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Although the Canadian class action legislation may be more akin
to the civil-law tradition,295 and although injunctive class action have
been recognized in some civil-law countries, the main point of reference for the academic debate remains the American class action system. After all, contemporary class action doctrines are either directly
or indirectly influenced by the American model. The Brazilian statutes are no exception, although this influence in Brazil was indirect,
through Italian texts.296 The methodological distance from original
sources, however, may have been beneficial because it afforded Brazilian lawyers the opportunity to develop a unique system of class
action, adapted to the civil-law tradition.
Class actions have been an important topic of comparative research in the civil law world for the past thirty years. In some countries, this extensive body of comparative scholarship is reflected in
the publication of treatises and the enactment or proposal of statutes.297 Scholarship and professional literature in the United States,
295. See Lindblom, “Individual Litigation and Mass Justice: A Swedish Perspective and Proposal on Group Actions in Civil Procedure,” 45 Am. J. Comp. L. 805, 823
(1997) (arguing that “[f]rom an European perspective, the Canadian experience in the
class action area is the most interesting one.”) See Watson, “Class Actions: The Canadian Experience,” 11 Duke J. Comp. Int’l L. 269 (2001) (arguing that “the Canadian
legislation is more liberal in facilitating class actions than its American counterpart.)
(citations omited); Patrick Glenn, “Class Proceeding Act, 1992, S.O. 1992, C.6 - Law
Society Amendment Act (Class Proceedings Funding), 1992, S.O. 1992, C.7,” 72 The
Canadian Bar Review 568 (1993) (arguing that Ontario Class Action Acts in some
aspects are more liberal than its American counterpart.) See also Clark & Harris,
“Multi-Plaintiff Litigation in Australia: A Comparative Perspective,” 11 Duke J.
Comp. Int’l L. 289 (2001) (arguing that Australian class action is more plaintifffriendly than its American counterpart.) Nevertheless, both the Canadian and the
Australian class action laws modeled themselves substantially on the American experience and scholarship.
296. See supra Section 3.1, “Pioneers in Civil Law Class Action”. American law,
and particularly American civil procedure, is virtually unknown in Brazil. Even
though the class action debate began in Brazil as early as 1977, the first studies of
class action that used American sources were published only in the 1990s. The influence of Italian scholarship, however, has always predominated. See José Rogério
Cruz e Tucci, “Class Action” e Mandado de Segurança Coletivo (1990). Only after
1995 did Brazilian scholars began to approach American sources directly and in a
systematic way, in order to offer a better understanding of the Brazilian class action
legislation. See, e.g., Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas
(1995); Arruda Alvim, Thereza Alvim, Eduardo Arruda Alvim, & James Marins,
Código do Consumidor Comentado (1995); Cássio Scarpinella Bueno, “As Class Actions Norte-Americanas e as Ações Coletivas Brasileiras,” 82 Revista de Processo 92
(1996); Márcio Leal, Ações Coletivas: História, Teoria e Prática (1998); Ada P. Grinover, “Da “Class Action for Damages” à Ação de Classe Brasileira: os Requisitos de
Admissibilidade,” in Ação Civil Pública. Lei 7.347/1985 – 15 Anos 19 (Édis Milaré ed.,
2001); Pedro Dinamarco, Ação Civil Pública (2001). The abundant debate in French
and German literature about class actions also had limited influence in Brazil.
297. On the importance of comparative law in the development of national legislation worldwide, See Garth, “Group Actions in Civil Procedure: Class Actions, Public
Actions, Parens Patriae and Organization Actions,” in XIIIth International Congress.
Montreal 205, 213-15 (1992). However, the lobby from the establishment against
class actions has been powerful.
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however, has stood outside this debate.298 It is suggested that Americans would now profit from studying the result of their influence in
other systems of class action. They may be surprised, even excited,
by what they discover.
Christopher Hodges has provocatively asserted that “Europe
neither needs nor wants US-style class action litigation.”299 This
comment is geographically sweeping and is perhaps a personal point
of view. It is indicative of the dogmatic attitudes that are an obstacle
to the responsible transplant of class actions into civil law systems.
Civil law reformers who seek to overcome these barriers understand
that the class action device can be instrumentally matched to any
particular system. Thus, the benefits associated with class actions
(economic and social justice) can be achieved without a radical transformation of the entire legal system. Certainly, Brazil needs class
actions, as I have explained. Their introduction has been a positive
and dynamic development. Just as the United States must be receptive to learning from class action developments in other jurisdictions,
the civil-law community must not reject class actions out of hand.
With careful experimentation and comparative study—by learning
from each other—the positive aspects of class action can be tailored
to fit a wide variety of legal systems.
298. See Mullenix, “Lessons From Abroad: Complexity and Convergence,” 46 Villanova L. Rev. 1, 31 (2001) (noting that “very little of the civil law experience has permeated or influenced the American understanding of the ways in which other nations
resolve complex litigation.”)
299. Hodges, “Multi-Party Actions: A European Approach,” 11 Duke J. Comp. &
Int’l L. 321 (2001). See also Faulk, “Armageddon Through Aggregation? The Use and
Abuse of Class Action in International Dispute Resolution,” Class Action Litigation
Report, May 25, 2001, p. 362. Needless to say, this opinion is not universally accepted
either in England or in Europe. The bibliography on this matter is overwhelmingly
vast and it would be extremely burdensome to list in this note all the papers published in the past thirty years. Suffice it to say that in the end of the twentieth Century, important studies on the protection of group rights were published around the
world, with extensive research on the comparative aspects of class actions. See, in
South Africa, Wouter de Vos, Verteenwoordiging van Groepsbelange in die Siviele
Proses (1984, with a summary in English), in Sweden, Per Henrik Lindblom,
Grupptalan. Det Anglo-Amerikanska Class Actioninstitutet ur Svenskt Perspectiv
(1989, with a summary in English), in Spain, Joaquin Estagnan, La Tutela Jurisdicional de los Intereses Colectivos a Través de la Legitimación de los Grupos (1995), in
Italy, Andrea Giussani, Studi sulle “Class Actions” (1996), in France Louis Boré, La
Défense des Intérêts Collectifs par les Associations Devant les Juridictions Administratives et Judiciaires (1997), in Swizerland, Isabelle Romy, Litiges de Masse (1997).
What these studies have in common is that they considered their domestic regimes to
be clearly insufficient for an adequate protection of group rights.
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10. APPENDIX
10.1 Brazilian Consumer Code 300
Title III.
Consumer Protection in Court
Art. 81. The protection of consumers’ interests or rights may be
granted in court individually or collectively.
Sole paragraph. The collective protection shall be allowed in
the case of:
I.
Diffuse interests or rights, meaning the transindividual, indivisible interests or rights held by indeterminate persons
linked by factual circumstances;
II. Collective interests or rights, meaning the transindividual,
indivisible interests or rights held by a group, category or
class of persons linked to each other or to the opposing party
by a common legal relationship; or
III. Homogeneous individual interests or rights, meaning those
stemming from a common origin.
Art. 82. For purposes of bringing a class action in protection of
the rights described in Article 81, sole paragraph, the following entities have collective standing:
I.
The office of the Attorney General;
II. The Federal, State or Municipal Governments and the Federal District;
III. Entities and agencies of the direct and indirect public administration, including those without legal identity, specifically designed for the protection of the interests and rights
protected by this Code; and
300. Translated by the author. See Código de Proteção e Defesa do Consumidor, Lei
No. 8.078, de 11 de Setembro de 1990, arts. 81, 82, 103, 104 (Brazilian Consumer
Code). This is a small fragment of Brazilian class-action statutes. The text was
edited for a better understanding of its content. A full English translation of the
Brazilian Consumer Code is found in South American Consumer Protection Laws 89147 (David Jaffe & Robert Vaughn eds., 1992).
Even though these rules are set forth in a Consumer Code, the class proceeding is
trans-substantive in character, being applicable to any kind of right amenable to class
litigation. Therefore, the Brazilian class action statutes are available to solve
controversies in environmental, antitrust, torts, tax and in any other branch of the
law. See Brazilian Consumer Code, arts. 110 and 117. See supra n. 27 (explaining
the definition of a “trans-substantive procedural rule.)
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IV. Associations legally incorporated for at least one year, whose
institutional purposes include the protection of the interests
and rights protected by this Code. An authorization to bring
suit from the association members is not required.
Paragraph 1. The requirement for prior incorporation may be
waived by the court in class actions for the protection of homogeneous
individual rights, in the case of manifest social interest, evidenced by
the extent or characteristics of the damage, or by the relevance of the
juridical object to be protected.
Art. 103. In the class actions referred to in this Code, the decision shall be res judicata:
I.
erga omnes in class actions for the protection of diffuse
rights, unless the claim is deemed groundless due to insufficient evidence, in which event any entity with collective
standing may file the same action, making use of new
evidence;
II. ultra partes in class actions for the protection of
rights, but limited to the group, category or class,
the event of dismissal for insufficient evidence,
event any entity with collective standing may file
action, making use of new evidence;
collective
except in
in which
the same
III. erga omnes in class actions for the protection of homogeneous individual rights, only if the claim is granted for the benefit of all the members.301
Paragraph 1. The effects of res judicata provided for in items I
and II shall not adversely affect the individual interests and rights of
the members of a collectivity, group, category or class.
Paragraph 2. Under item III, if the claim is denied, the absent
members who did not intervene in the class action as co-parties may
file individual damage actions.302
301. There is no significant difference between the Latin expressions erga omnes
(against all) and ultra partes (beyond the parties). Both mean that the class decree
binds all absent members of the class, with the qualification stated in the paragraphs
1 and 2 of this article, that the decision cannot prejudice their individual rights. See
Antonio Gidi, Coisa Julgada e Litispendência em Ações Coletivas 108-12 (1995).
302. According to article 94 of the Consumer Code, in a class action for the protection of homogeneous individual rights (class actions for individual damages), absent
members are notified and may intervene as co-parties. The statute is silent about
notice and intervention in cases of class actions for the protection of diffuse and collective rights.
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Paragraph 3. The effects of res judicata on class actions in
protection of diffuse and collective rights shall not adversely affect
the individual rights of the members of the class, who can bring individual or class action for damages. However, if the claim is granted
the class judgment will benefit the members, who may then file an
action for calculation of damages and enforcement according to articles 96 to 99.
Paragraph 4. The effects of res judicata on condemnatory
criminal judgments shall not adversely affect the individual rights of
the members of the class, who can bring individual or class action for
damages. However, if the defendant is convicted, the criminal judgment will benefit the members, who may then file an action for calculation of damages and enforcement according to articles 96 to 99.303
Article 104. Class actions do not entail lis pendens for corresponding individual actions. However, the effects of erga omnes or
ultra partes of the class decree shall not benefit the plaintiffs that fail
to apply for suspension of their individual actions within thirty days
of gaining knowledge, in the case record of the individual action, of
the existence of a corresponding class action.
303. In the original, this rule says only “[t]he rule stated under the preceding subsection is applicable to condemnatory criminal judgments.”