A Comparison of the Class Action for Damages in the American Judicial System to the Brazilian Class Action: the Requirements of Admissibility

• Author: A. P. Grinover
• Position: University of São Paulo (São Paulo, Brazil)
• Pages: 33-49

a ComPaRISon of ThE CLaSS aCTIon foR damagES

In ThE amERICan JudICIaL SySTEm To ThE BRazILIan CLaSS aCTIon:

ThE REquIREmEnTS of admISSIBILITy

ADA PELLEGRINI GRINOVER,

University of São Paulo

(São Paulo, Brazil)

After describing the class action for damages in the A merican judicial system, with

the requisites of ‘prevalence’ and ‘superiority,’ the study passes to the examiner of the

requirements of the admissibility of the Brazilian class action for damages, concluding

on the existence of the same requisites, even in a civil law system.

Keywords: common law and civil law; class action for damages; American system of class

action for damages; prevalence and superiority; Brazilian class actions for damages;

same requisites.

Recommended citation: Ada Pellegrini Grinover, A Comparison of the Class Action for

Damages in the American Judicial System to the Brazilian Class Action: The Requirements

of Admissibility, 2(1) BRICS LJ (2015).

Table of Contents

1. Introduction

2. Rule 23 of the Federal Rules of Civil Procedure

3. Specic Requisites of the Class Action for Damages in the American

Judicial System: The ‘Prevalence’ of Common Questions and the ‘Superiority’

of Group Protection

4. Some Examples of American Rulings

5. The Protection Requisites of Homogeneous Individual Interests: Common

Origin and Homogeneity

6. Homogeneity and Prevalence of Common Interests. The Legal Potentialities

of the Petition

BRICS LAW JOURNAL Volume II (2015) Issue 1 34

7. Superiority (rectius, Ecacy) of Group Protection and Interest in Acting.

Evidence of the Causal Connection

8. Procedural Technique and Eectiveness of the Proceeding: Ecacy and

Justice of the Decisions

9. Conclusion: Applicability of the Requisites of ‘Prevalence’ and ‘Superiority’

(or ‘Ecacy’) to the Brazilian Public Civil Action for Reparation of Damages

Individually Incurred

1. Introduction

It is k nown that the great novelty of the Brazilian Consumer Protection Code

(Código Brasileiro de Defesa do Consumidor) [hereinafter CDC], in terms of jurisdictional

protection, was the creation of the category of individual homogeneous interests

or rights, which are really traditional subjective rights that are still subject today to

individual procedural treatment but also, now, group treatment, by reason of their

homogeneity and common origin.

Among the public civil actions in defense of homogeneous individual rights, the

action provided for in Arts. 91–100 of the CDC, intended to be used for reparation

of damages individually incurred, was called ‘Brazilian class action,’ because its

precedent was found in the ‘class action for damages’ of the American system. But

the United States has 34 years of experience with such actions, while in Brazil the

compensatory action of Art. 91 . of the CDC has not progressed beyond being

a general conviction, with practical application of the regulations occurring only in

the process of paying damages to victims or their unknown successors, especially

in the area of losses deriving from product defects.

Therefore, it was with great pleasure that I accepted the invitation of Dr. Michael

Socarras, Shook, Hardy & Bacon Law Firm (K ansas City, Missouri), to meet, in the

United States, with Professor Linda Mullenix, University of Texas, one of the greatest

and most esteemed specialists in ‘class actions’ in that country. Being able to nd out

about the American experience up close, with personal explanations from experts

about legal norms and especially jurisprudence, was a unique opportunity for this

studious foreigner.

Therefore, I thank Professor Mullenix for her valuable contribution to a better

underst anding of Ru le 23 of the Federal Rules of Ci vil Proc edure [hereinafter

FRCP], notably sec. (b)(3), which deals with ‘class actions for damages,’ and for

the understanding of the difficulties encountered by the American courts in

deciding on the admissibility (certication) of ‘mass tort cases.’ And I am grateful

for the intelligent assistance of Dr. Socarras, a sharp observer of the similarities and

dierences between the US and Brazilian systems. My thanks also go to both of these

individuals and to their assistants for the interest they showed with respect to the