Class Action Evolution

Executive Summary

The purpose of this paper is to provide an explanation of the impetus for the proposed changes to class action laws in Brazil and a critical assessment of these proposed changes.

The paper starts with a brief description of Brazil’s court system. It then provides a contextualized explanation of the changes brought about in the Brazilian legal system following adoption of the 1988 Constitution and how they have been reflected in Brazilian class action legislation.

In a critical assessment of the proposed changes, the paper explores the specifics of the bill currently under debate in the Senate, emphasizing its incompatibility with the constitutional principle of due process. Due process concerns arise particularly in the provisions which (i) permit individual damages awards, or a minimum damages value, to be set in homogeneous individual rights class actions, without considering any individualized proofs; (ii) alter the statute of limitations of individual and class actions; (iii) allow for the possibility of shifting the burden of proof in the judgment; (iv) allow the court on an ex officio basis to grant relief not sought by the parties; and (v) monetize class actions by offering “financial compensation” to civil associations in addition to costs.

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