BRAZIL Law and Practice Contributed by: João Areosa, Guilherme Peres de Oliveira and Raphael Rangel, Areosa Advogados
3.3 Standing Brazilian law restricts the ability of individual citizens to file collective actions, allowing only specific entities to do so. The following are legitimate parties: Public entities: • Public Prosecutor ( Ministério Público ) – primary and most active plaintiff in collective litigation, with a constitutional mandate to protect collective interests. • Public Defender’s Office ( Defensoria Pública ) – represents economically disadvantaged groups. • Federal, state and municipal governments – through their respective executive branches. • Autonomous government agencies and pub- lic foundations – including consumer protection agencies (PROCONs). Private entities: • Legally constituted associations – must: (1) have been formally incorporated for at least one year; (2) have institutional purposes related to the subject matter of the action; and (3) demonstrate adequacy of representation. • Trade unions and professional associations – for matters affecting their members or professional categories. Key Restrictions Individual citizens and ad hoc groups lack standing. Standing is verified at filing and throughout proceed- ings. Associations must prove institutional connec- tion to the disputed matter and organisational capac- ity. The Public Prosecutor is involved in all collective actions, either as plaintiff or as mandatory intervenor (custos legis), ensuring protection of collective inter- ests. 3.4 Class Members, Size and Mechanism – Opting In or Out Class membership in Brazilian collective actions is determined by the type of collective right asserted in the initial petition: • Diffuse rights: Class includes all persons affected by indivisible harm (eg, environmental damage,
consumer safety). Membership is automatic and cannot be opted out of; beneficiaries need not be identifiable at filing. • Collective rights: Class comprises members of a defined group, category or class of persons linked by a common legal relationship (eg, residents of a neighbourhood, subscribers to a service). Member- ship is automatic based on group affiliation. • Individual homogeneous rights: Class consists of victims suffering divisible damages from a common origin (eg, defective product purchasers). Mem- bership is determined by proving individual harm stemming from the collective event. • Opt-in vs opt-out: Brazilian collective actions operate on an opt-out basis for individual homo- geneous rights. Judgments automatically bind all class members unless they expressly exclude themselves. For diffuse and collective rights, there is no opt-out – all affected persons are bound by the judgment (res judicata). • Class size limits: No numerical limits exist. Classes may encompass thousands or millions of peo- ple. The petition must classify the right type and describe the affected group, but need not identify individual members or provide precise figures. 3.5 Joinder Brazilian procedure allows parties to join ongoing col- lective actions through intervention mechanisms: • Intervention by legitimate entities: Any entity with standing to bring collective actions (Public Prosecutor, Public Defender, government entities, qualified associations) may intervene as assistant plaintiffs ( litisconsortes ativos ) to support the col- lective claim. Intervention is permitted at any stage before judgment, subject to court approval. • Mandatory Public Prosecutor participation: When the Public Prosecutor is not the original plaintiff, it must participate as custos legis (guardian of the law), monitoring proceedings and intervening to protect collective interests. This participation is automatic and mandatory. • Joinder of defendants: Plaintiffs may request join- der of additional defendants during proceedings if they share responsibility for the alleged harm, sub- ject to proper service and opportunity to defend.
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