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Archive for August, 2012

The Class Action Playbook, Second Edition

I was nearly distraught when I recently misplaced my only copy of The Class Action Playbook by Brian Anderson and Andrew Trask (Oxford University Press 2010).  Not only was the book a handy guide to just about every issue one might face in a class action, but it is also an accessible introduction to class action practice that has saved me hours of having to explain difficult concepts to new associates (I suspect that one of these associates is hoarding my lost copy, but alas, I have no solid proof).  Thankfully, Anderson and Trask have released the Second Edition of the book, which now is available at the OUP website.   So, not only do I have my quintessential guide to defending class actions back, it’s up to date with the latest trends and authorities.  Just in time!

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Brian Wolfman, Co-director of the Institute for Public Representation at Georgetown University Law Center, has two excellent recent posts on Public Citizen’s Consumer Law and Policy Blog that provide food for thought on the need for class action reform, and the best way to achieve reform if it is needed.

In the most recent of the two articles, Paying the Lawyer’s Expenses in Class Actions, Wolfman discusses the social importance of allowing plaintiffs’ attorneys to recover their reasonable costs incurred in successfully pursuing a class action settlement or judgment, but discusses a recent case in which two attorneys from a prominent plaintiffs’ firm were sanctioned for having claimed reimbursement for fancy dinners and first class airline tickets.  Wolfman warns about the negative impact that this type of conduct has on public perception of class actions, and makes the valuable point that even minor abuses of the system for personal gain threatens to bring scrutiny to the class action mechanism more generally, which limits access to justice that class actions may provide in meritorious cases.

In an earlier article, Important 7th Circuit Decision Rejecting Shareholder Derivative Suit, Wolfman applauds Judge Frank Easterbrook’s opinion throwing out the settlement of a shareholder derivative suit after finding that the underlying suit lacked merit and should be dismissed.  Wolfman makes the point that rather than approving a settlement that provides little or no benefit to class members on the grounds that the merits of the claims are weak, the better solution from a public policy perspective is to dismiss the case entirely.  He sums up this point concisely, “[a]n obviously meritless case should not benefit the lawyers and no one else.”

The two articles illustrate two important conceptual principles on which many consumer advocates and corporate interests may find themselves in complete agreement: First, it is the potential for abuse of class actions, and not the class action mechanism itself, that often provides the basis for legitimate criticism.  Second, courts can preserve the fairness and integrity of class action mechanism without the need for systematic reform simply by applying common sense restraints in the face of clear abuse.  I think that both of these points are correct as a matter of principle, and they are both eloquently illustrated by Wolfman’s posts.

My only question is whether the idea of preventing abuse through the application by the courts of common sense constraints, while pure in theory, is truly realistic in practice.  It only works to the extent that all judges will act as carefully and thoughtfully as the judges in the two cases highlighted above.  If courts do not dismiss all frivolous cases when a defendant files a motion to dismiss, what choice does a defendant have as a practical matter but to consider buying peace on the best terms possible, which often means paying off the lawyers at the expense of a class that the defendant doesn’t believe was harmed anyway?  And, if some courts continue let frivolous claims proceed in the hopes that the parties will settle, or turn a blind eye to small excesses in fee and cost petitions, then basic human nature says that some (but certainly not all) plaintiffs’ lawyers will continue to commit these abuses, and some (but not all) defense lawyers will play along to serve their own interests.  In the end, the cynic will question whether relying on the diligence and intellectual honesty of the judiciary and the professional integrity of the bar is a realistic path to reform.

On the other hand, for those of us who are practitioners and not policymakers, professional responsibility, appeal to reason, diligence, and intellectual honesty are the only tools we have at our disposal at maintaining the integrity of the judicial process.

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Editor’s Note: Many thanks to Larissa Clare Pochmann da Silva, complex litigation professor at Cândido Mendes University in Rio de Janeiro, Brazil, who graciously agreed to provide this valuable update on collective and mass action reforms being considered in Brazil. Not all of the reforms discussed in her article are expected to become law in the immediate future. However, they represent unique and creative potential approaches to common problems in collective redress, which should be of interest to anyone who follows trends in representative and multi-party litigation.

Recent Developments in Collective Process and Mechanisms for Solving Collective Conflicts in Brazil

By Larissa Clare Pochmann da Silva

Class Actions

Collective actions in Brazil are not new. The first legislative enactment occurred with the 1934 Constitution, which provided, in art. 113, no. 38, the popular action. From 1934 until today, the collective procedural law has had, in its history, advances and retreats. The most important laws before 1988 were law 4.717/65, about the popular action, and law 7.347/85, about class actions. The 1988 Constitution increased protection of collective rights in a broad sense the constitutional level. Later, in 2009, Law n. 12.016/2009, repealing previous legislation (Law n. 1533), was enacted to regulate the collective writ of mandamus.

Today, the mechanisms used for collective protection are the popular action, class actions and collective writ of mandamus. Each one has its own mechanisms; however there are several general rules applicable to all of them, and they are discussed generally below.

The collective process aims to protect diffuse, collective and homogeneous rights, all of which have explicit definition in the art. 81 of the Consumer Protection Code:

Article 81 – The defense of the interests and rights of consumers and victims can be exercised either individually or collectively.

§ – Collective defense will be exercised when dealing with:

I – diffuse rights or interests, so understood, for the purposes of this Code, the trans, of indivisible nature, they hold people indeterminate and linked by factual circumstances;

II – collective interests or rights, so understood, for the purposes of this Code, the indivisible nature of trans holds that group, category or class of persons linked to the opposing party or by a legal relationship-based;

III – homogeneous interests or rights, herein defined as arising from a common origin.

Unlike the United States and other common law countries, Brazil doesn’t have a certification process for class actions.

Key Current Issues

Two concepts that today represent the greatest difficulties of the collective process in Brazil are standing and res judicata, but res judicata, since 2011, has become a less controversial issue than standing.

Standing, in the words of Professor Barbosa Moreira, is eclectic. Who has standing? This would be the public sector, associations and individual. Individuals only have standing to propose a popular action. Political parties with representation in Congress, union organization and associations legally established and in operation for at least a year, in the interests of its members or associates (art. 5, LXX of the Federal Constitution), have standing for collective writ. The Public Prosecutor; the Public Defender; Union, states, the Federal District and municipalities; the local authority; public corporation; foundation or mixed capital company and associations, which have existed since at least one year (requirement can be waived by the judge in this case, since the social relevance of observed) and has relevance to the topic, have standing for class actions.

There has been much discussion in recent years about the standing of the public prosecutor to pursue legal action for the protection of homogeneous individual rights. The view that predominates today is the importance of verifying whether the homogenous individual interests identified by the public prosecutor have the essential magnitude capable of characterizing a genuine social interest. If so, the Public Prosecutor will have standing for filing the lawsuit.

However, the issue is still in debate. In the Extraordinary Appeal No. 605,533, the Supreme Court of Brazil (STF) accepted review to decide whether prosecutors have standing to propose measures to protect legal rights related to delivery of medicines to patients with serious illnesses. Depending on the STF’s decision, the case may either be an important development in the history of collective protection or represent a phase of retrocession in the protection of rights.

The standing of the Public Defender is also being debated. The Public Defender’s standing in the legal system generally is governed by Law No. 11.448/2007. The role of the Public Defender in collective protection, however, is pending of decision by the Supreme Court, which must rule on that issue in the Direct Action of Unconstitutionality No. 3943-1. Another question is whether standing of the Public Defender is restricted to cases when the group involves persons who are unable to pay a lawyer to protect their own interests or if the Public Defender can act in every case that involves transindividual interests. The prevailing view is that Public Defender cannot act unless the group involves persons who are unable to pay a lawyer to protect their own interests.

The effects of res judicata are specified in art. 103 of the CDC, the systematic secundum eventus litis. In general, the res judicata effect of a sentence (judgment) is formed erga omnes, in the case of diffuse rights, ultra parts, limited to a group, category or class, in the case of collective rights, and erga omnes in the case of individual homogeneous rights to benefit all victims. The exception is when the claim is dismissed for lack of evidence, in which case any legitimate claimant may bring another action with the same basis drawing on new evidence.

Proposed Reforms

Article 16 of the Class Action Law places territorial limits on the effects of res judicata. However, in October 2011, the Special Court of the Superior Court, in Recurso Especial No. 1,243,887, ruled in that “… the effects and effectiveness of the judgment are not confined to geographic limits, but the objective and subjective limits of what was decided.” (STJ. Recurso Especial nº 1.243.887/PR. Corte Especial. Rel. Min. Luis Felipe Salomão. DJ 19/10/2011).

One of the challenges in analyzing the collective process in Brazil is the difficulty of finding accurate data and national level on the collective process. The National Register for Class Actions and for Class Action Investigation, proposed by Resolution No. 2, June 21, 2011, and originally expected to be in force beginning December 2011, so far not been implemented. It is estimated that the National Register will finally enter into force in the second half of this year.

Nowadays, each court has its own system of search, which provides the data processing procedures in the court determined that the search engines have different search parameters, i.e., some courts make the details of the processes by name only the defendant, others only provide process data by reporter, other process per year, which makes an overview of information difficult in national terms.

There are bills to bring improvements to the collective protection, but it’s still hard to think that the changes will occur anytime soon.

A bill for a new law on class actions and the proposed legislative amendment to the Code of Consumer Protection, Draft Law No. 5.139/09, aims to replace Law No. 7.347/85. The Draft Law has had a long course and numerous changes in its text. In general, the project aimed, among other modifications, (a) to substantially reduce judicial activism, restoring the prevalence of the initiative of the parties, (b) to adopt the principle of dynamic evidentiary burden by assigning the responsibility of proving a fact to the party better able to accomplish it, and (c) to emphasize the public prosecutor’s power to conduct a civil investigation preliminary to the class action.

The project also provided for the creation of the Register of Class Actions, mentioned above, and would confer standing to the public prosecutor without any restriction on the defense of individual homogeneous rights, which today is still a controversial point in the collective process of Brazil.

The project sought to clearly express the role of associative entities. Art. 6 would convey standing to the Brazilian Bar Association (including its sections only–subsections were removed from the legal text for a suggested amendment), unions, and associates formed for the purpose of monitoring the exercise of professions (restricted by the interests linked to their category), the political parties with representation in Congress, in the Legislative Assemblies or Municipal Chambers, and civil associations and foundations under private law legally constituted for at least one year, for the defense of rights related to their institutional objectives. According the art. 6 § 1, the requirement that civil associations and foundations must have been constituted for at least may be waived at the judge’s discretion with consent of the committee and the submission of nominal roll of members.

On March 17, 2010, the draft resolution was rejected by the Constitution and Justice Commission of the Chamber of Congressman in a vote by a majority of 17 votes to 14, the ground of lack of debate and public discussion. On March 23, 2010, members of the committee of lawyers responsible for drafting the project appealed against the dismissal. A new opinion in favor of approving the project was issued on April 27, 2010. However, a few days later, the project was declared suspended unless another appeal should be filed. A second appeal was filed later that year.

No decision has been made on the appeal, and so it remains uncertain whether the bill will be transformed into law, which would represent another major step for Brazilian collective protection, or be permanently archived, burying important ideas for themselves the effectiveness of collective protection.

In 2011, there was a proposal to amend the Consumer’s Protection Code, the project PLS 282/12. The proposal does away with one of these controversial points regarding standing, dismissing any discussion on the standing of the prosecutor to the defense of individual rights homogeneous, stating that these rights, by their nature, already have social relevance. The project also dismisses the discussion about the Public Defender: the Public Defenders can act in all the cases of transindividual rights, not only when there is a group that couldn’t pay for a lawyer. Another proposal would widen participation in public actions through the filing of amicus curiae submissions. However, there is, so far, no indication on the adoption of these proposals.

Thus, despite the existence of bills to improve the previsions on collective protection, there aren`t prospects for approval soon. The only reform that is likely to occur this year is the implementation of the National Register for Class Actions and for Class Action Investigation. On the other hand, as we will explain, the mass torts are to gain a new instrument in the near future.

Mass Torts

A mechanism known today in conflict resolution for mass torts in the country is the so called recurso repetitivo (repetitive appeals). It has existed in the law since 2008, when Law No. 11,672 included items 543-543-B and C of the Code of Civil Procedure. The amendment states that when there are multiple claims requiring resolution of an identical point of law, the President of the court of origin may admit one or more representative features of the dispute and refer them to the Supreme Court (543-B of the Civil Procedure Code) or to the STJ ( 543-C of the Civil Procedure Code). The other cases are to be suspended until the final pronouncement of the Court in the representative appeal. The grouping of recursos repetitivos will take in consideration only the essential issue in discussion whenever resolution of that issue can reduce the analysis of other issues in the same plea.

The Court justice in charge of reporting the case may request information, which must be provided within 15 days to state or federal courts concerning the dispute. After receiving the information, and after the demonstration of third parties, if appropriate, the case will be referred to the Public Prosecutor will for a period of 15 days. After the deadline for Public Prosecutors, the process will be placed on the agenda of the section or the Special Court, which must be judged with preference over other cases, except criminal cases and requests by accused of habeas corpus.

After a final decision, the judgment is to be published. Any identical issues in the stayed cases are to be decided based on the judgment of the Superior Court, and any unique issues remaining in the other cases pending in the court of will be re-examined by the Court of origin in the case.

Another procedure to resolve claims massed, but in the court of first instance, is a “preliminary ruling”. When the matter at issue is solely of law and judgment has already been pronounced in other similar cases, the judge can enter the same ruling in the case without notifying the defendant. In spite of the criticisms on this provision, it is important to note that it only applies to issues of law.

There are other legal instruments that aim to reach the speed of the procedure in mass tort cases, but one in particular worth mentioning is an instrument that it likely to join the legal system very soon, when it approved the Project for the New Civil Procedure Code.

Proposed Reform: Incidente de resolução de demandas repetitivas

The design of the new Civil Procedure Code was presented to the Senate President on August 6, 2010 and as of July 2012, after passing the Senate, already proceeding through the house, was in the process of public hearings. One of its innovations is the incidente de resolução de demandas repetitivas (incident for solving repetitive pleas, or “Incident”), inspired by the second version of the German Musterverfahren, but with many peculiarities.

The mechanism is found under Chapter VII of Project of the New Civil Procedure Code, Articles 930 to 941, in the title “Of Processes in the Courts,” which is not just about appeal, but all the processes that proceed through the courts. It exemplifies one of the concerns of the project: a uniform jurisprudence of the courts, trying to avoid conflicting decisions.

The Incident will take place in case of dispute that may generate significant multiplication of processes based on an identical question of law and cause serious legal uncertainty due to the risk of conflicting decisions. The mechanism will only work for identical issues of law not being applied to questions of fact. One of the practical challenges in implementing the new rule will be the difficulty of decoupling the issues of law of the facts. In fact, law and fact are associated, and it is often difficult in practice to make a clear distinction between the two.

The parties with standing to raise the new Incident procedure, which can be done ex officio by the court, are the parties and the public prosecutor, through simple petition, although the prosecutor must intervene to do so. Incidents raised will be recorded in the National Council of Justice.

The judge to whom the Incident is raised (the rapporteur) may inquire of the lower court which handled the process originally, and the information should be provided within 15 days. After the information is provided, the court of appeal will evaluate the request, and if the use of the Incident is approved, all cases that deal with the same question of law in the court of appeal jurisdiction area will be suspended until a ruling on the common legal question. The time period in which other cases are suspended is limited to six months as a rule, but the period can be extended by the rapporteur of the Incident.

The design of the new code specifically provides for the investigation and resolution of a single case to be admitted as a paradigm of the controversy. The code does not specify whether the Incident is to be considered a representative process, an individual process, or a collective process. In any event, all individual actions may be suspended the same as in a collective action if they are not chosen as representative of the dispute process.

Interested parties may participate in the controversy, joined by the request for documents or conducting investigations. They will have fifteen days to present documents and explain the controversy in 15 days, as well as the Public Prosecutor.

In the trial day, all interested parties are limited to a total of 30 minutes of presentation time to the court. This can be a very small amount of time per interested party, depending on the number who seek to appear. Thus, as a practical matter, although the Incident process is described as participatory, stakeholders have a limited practical ability to manifest themselves in the process. Instead, all cases are decided based on a paradigm.

There is a possibility of appeal to the Superior Court (STJ), or in extraordinary cases, to the Supreme Court (STF), from the court of origin where the Incident was approved. The appeal can be brought by any person who is party to ongoing process which discusses the same legal situation.

After the judgment of the Incident, the bill states that a party may file a complaint in the court that issued the judgment is another court disregards the theory adopted in the Incident.

This was just a brief overview of the new Incident procedure, which is expected to be integrated into Brazilian law in the very near future. However, the bill for a new civil procedure code is still in process, and there are a large number of projects of new bills and new codes in analysis in Brazil, so changes can happen at any time.

So, stay tuned!

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The wait is finally over!  World Class Actions is finally out in print, and the book is available for order via the Oxford University Press website.  For those of you who have been holding your breath in anticipation of the book’s release… well, you’ve probably long since passed away from asphyxiation.  For those who have not heard about the book, however, here’s a short summary.

Class action and other group litigation procedures are increasingly being adopted in jurisdictions throughout the world, as more countries deal with the realities of increased globalization and access to information. As a result, attorneys and their clients face the ever-expanding prospect of a class or group action outside their home jurisdictions.

World Class Actions: A Guide to Group and Representative Actions around the Globe is a guide for attorneys and their clients on the procedures available for class, group, and representative actions throughout the world. It helps lawyers navigate and develop strategies for litigation and risk management in the course of doing business abroad, or even in doing business locally in a way that impacts interests abroad.

Part I of the book provides a jurisdiction-by-jurisdiction survey of the class action, group, collective, derivative, and other representative action procedures available across the globe. Each chapter is written from a local perspective, by an attorney familiar with the laws, best practices, legal climate, and culture of the jurisdiction.

Part II provides guidance from the perspective of international attorneys practicing in foreign jurisdictions and the art of counseling and representing clients in international litigation. It also covers a variety of topics related to transnational, multi-jurisdictional, and class or collective actions that involve international issues and interests.

Each chapter offers practice tips and cultural insights helpful to an attorney or litigant facing a dispute in a particular part of the world. Many of the chapters introduce key books, treatises, articles, or other reference materials to foster further research. Its focus on international class and group litigation law from a practitioner’s perspective makes World Class Actions an essential guide for the lawyer or client.

Many thanks to the more than 50 authors from all over the world who contributed to the book.

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Professor Eric Voigt of the Jones School of Law at Faulkner University in Alabama has authored an intriguing article entitled A Company’s Voluntary Refund Program for Consumers Can Be a Fair and Efficient Alternative to a Class Action, 31 Review of Litigation 617 (University of Texas 2012).  Voigt proposes that a company’s voluntary efforts in providing refunds to customers in consumer litigation can, in an appropriate case, be a more efficient means of providing collective redress than a class action settlement, which a court should take into account in conducting the superiority analysis required under Rule 23.  Voigt argues that in evaluating superiority of a class action, non-judicial alternatives must be considered in addition to individual lawsuits.  Therefore, he argues, a court must consider whether a company’s voluntary refund program is a more fair and efficient alternative to class action litigation.  He also proposes various procedural and substantive features that should be included in any voluntary refund program to satisfy the requirement that it be a fair and efficient alternative to a class action.  Voigt’s article is one of the first I have seen addressing this issue in detail, and I highly recommend it to practitioners, academics, judges, and policymakers alike.

As Voigt’s analysis suggests, even though it lacks the same preclusive effect as a class action settlement judgment, a voluntary refund program is something that a defendant may consider in attempting to avoid or defeat a class action in an appropriate case.  Candidates for this strategy could include any case where the cost of providing direct relief to customers for 100% of damages that could be claimed in a lawsuit is outweighed by the cost of defending a potential class action combined with the likely cost of having to ultimately settle the case for some smaller amount.   The strategy is far from failsafe because a voluntary refund program lacks the same preclusive effect as a class action settlement, and because a court’s evaluation of the superiority requirement is a matter of discretion.  However, having done a voluntary refund program with the protections proposed in Voigt’s article can provide a strong basis to seek an early ruling not to certify any subsequent class action.  Similarly, even when a class action lawsuit has already been filed, the prospect of doing a voluntary refund program can be used as leverage in bringing down an unreasonable settlement demand from plaintiff’s counsel.  This is especially true in jurisdictions that do not recognize the “catalyst” theory (click link to read 2005 article on the topic by Professor Roy Simon) as a basis for the recovery of attorney’s fees.

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