Private antitrust litigation in Brazil: overview

A Q&A guide to private antitrust litigation in Brazil.

The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.

This Q&A is part of the Private Antitrust Litigation Global Guide.

The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.

Contents

Legal basis for bringing private antitrust litigation actions

1. Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?

Stand-alone actions

Under Brazilian law it is possible to bring stand-alone action, regardless of any prior decision or authorisation from the Brazilian Antitrust Authority (CADE).

Any injured individual can file suit to cease or to seek compensation for any violation of the economic order, on their own behalf or by means of their representatives or substitutes.

Private antitrust litigation is available for both bi- and multi-lateral antitrust infringements in stand-alone and follow-on actions.

Under the Brazilian legal system, private antitrust actions can be filed without a prior administrative or judicial decision as a basis for it. Parties have the right to seek redress in the courts and to obtain civil remedies whenever there is a violation or a threat of violation of their rights.

Legislative. The legal basis for bringing a stand-alone action is:

  • Article 5 (XXIV) of the Brazilian Federal Constitution.

  • Federal Law 10,406/2002 (Brazilian Civil Code).

  • Article 47 of Federal Law 12,529/2011.

  • Federal Law 8,078/90 (Brazilian Consumer Protection Code).

Non-legislative. Not applicable.

Adversarial or inquisitorial. Stand-alone actions are adversarial.

Follow-on actions

It is possible to bring follow-on actions in Brazil. The system does not require parties to wait for CADE's decision. Although CADE's decisions are not binding, they are usually respected by the courts.

Follow-on actions are available for any type of infringement. Parties do not need to wait for any prior decision (definite or preliminary) to file their claims. Strategically, some parties do wait for CADE's Tribunal decision in order to lower their litigation risks. Due to time constraints (the statute of limitation is three years), some claimants do not wait for CADE's Tribunal final decision, relying instead on the Administrative Technical Opinion that opened the investigation or the final Technical Opinion issued by CADE's Superintendence identifying the antitrust infringement and recommending sanctions to the parties involved. However these opinions are ancillary and not binding on CADE's Tribunal.

 

Parties to an action

2. What must be demonstrated to commence an action?

Stand-alone actions

To commence a stand-alone action, the parties must demonstrate they have standing and a legitimate cause of action.

The injured party or the successor can file private antitrust lawsuits in Brazil.

However collective lawsuits (class actions) can only be filed by:

  • The Prosecution Office. The role of the Prosecution Office has gained visibility, as more and more actions are filed to seek damages arising out of anticompetitive conduct. More lawsuits are expected as prosecutors increase their co-operation with CADE.

  • The union, states, municipalities and the federal district.

  • Direct and indirect government entities and agencies.

  • Associations existing for at least one year that include defending the interests and rights of their members.

Private companies or individuals are not authorised to file collective actions on behalf of the parties injured by anti-competitive behaviour.

Nevertheless, certain private actions based on competition issues may in fact indirectly result in some form of collective protection, such as when parties are not only seeking damages, but also filing for an injunction to immediately cease the antitrust violation (for example, to cease misleading advertising or any abusive or discriminating conduct).

Third parties (usually consumers) can bring actions claiming damages through the courts for losses suffered as a result of an antitrust infringement. This must be assessed on a case by case basis. Parties may be able to litigate over some aspects of the infringement or over its consequences. For example, if parties enter into an exclusivity clause deemed anticompetitive by CADE, they can litigate against each other over the consequences of the decision to the remaining obligations of the contract. Additionally, under Brazilian law, antitrust violators are jointly responsible for damage caused to consumers. However, after consumers are redressed, the parties of the infringement can compete to establish their individual share of responsibility.

Follow-on actions

See above, Stand-alone actions.

 
3. Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?

Stand-alone actions

Multiple claimants. According to Brazilian law, class actions can only be filed by entities or associations determined by law and cannot be brought by a single private party or a corporation.

Class action must involve collective rights, and the Brazilian system identifies three types of collective rights for this purpose:

  • Diffuse rights. These are indivisible, entitled to undermined holders and related to factual circumstances.

  • Collective rights. These are indivisible and entitled to groups, categories or classes of individuals where its holders can be clearly identified.

  • Homogeneous individual interests or rights. These are individual rights arising from a common origin, which is usually the case with class actions aimed at redressing antitrust damages.

Opt-in or opt-out. Collective actions in Brazil have no opt-in or opt-out mechanism. If the collective action is successful, it will benefit the whole class.

The Supreme Court has decided that only members that have expressly authorised the filing of a class action will be able to enforce the relevant decision. This Supreme Court precedent goes against the Superior Court of Justice precedents on the same matter and limited the scope of class action for damages.

However, a judgment against the collective claimant will not harm the individual rights of the members of the class, who can still file their own private claims against the defendant (Article 103 (I), Brazilian Consumer Defence Code). However, consumers that have already filed their individual claims by the time the collective action is started must immediately request the suspension of the individual action; otherwise they will not be able to benefit from the result of the collective action.

Certification. Certification is not required for standing parties to file a class action.

Under the Brazilian law, representatives do not need approval or certification by the appropriate court. However, some precedents have recognised that courts should evaluate whether the association adequately provides representation for its members. The court can evaluate whether the association has the:

  • Ability to properly conduct the defence of the respective collective interest in court by revealing their technical expertise and financial capability to handle the class action (among others).

  • Association must show that it is comprised of at least an appropriate (minimum) number of alleged victims.

Follow-on actions

See above, Stand-alone actions.

 
4. On what basis will a court or tribunal assume jurisdiction with respect to a claim?

Stand-alone actions

Brazilian courts have jurisdiction over any dispute:

  • Where the defendant, regardless of nationality, has a registered office or a subsidiary in Brazil.

  • Where the obligation will be performed in Brazil.

  • That has arisen from a fact or act that took place in Brazil.

The lawsuit can be filed in Brazil in the presence of any of the above conditions, regardless of the nationality of the parties.

If there is more than one defendant, as long as one is domiciled in Brazil, all the others can be jointly sued in Brazil.

The Brazilian Competition Law is only applicable to acts perpetrated in Brazil or that may produce effects in Brazil (Article 2, Federal Law 12,529/2011).

Therefore, competition violations perpetrated abroad by Brazilian companies that produce effects in Brazil may still be litigated before Brazilian courts but will be governed by foreign law.

Ongoing disputes abroad do not prevent the filing of the same suit in Brazil.

If the final judgment has been rendered in a foreign court, it may be enforced in Brazil upon prior submission to the Superior Court of Justice for homologation (exequatur).

Follow-on actions

See above, Stand-alone actions.

 
5. Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside of, the jurisdiction?

Stand-alone actions

It is possible to bring an action against individuals (for example, directors of corporate entities) in private antitrust litigation. Under Brazilian Law, individuals that participated in the infringement are jointly responsible for the damage caused. However, with cases that involve consumer law or consumers, claimants must demonstrate that the individual acted with intent or was at fault.

Follow-on actions

See above, Stand-alone actions.

 

Limitation periods and forum

6. What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?

Stand-alone actions

Under the Brazilian Civil Code, the statute of limitation on private antitrust lawsuits is generally three years for injured parties.

If the victim is a consumer, the limitation period is five years (Article 27, Brazilian Consumer Protection Code).

The limitation period starts to run from the date the damage occurred. Every case of damage (that is, multiple purchases from a cartel) is counted individually.

In private antitrust litigation, there are no relevant circumstances within which the limitation period can be extended. However, parties are allowed to file a Court Ordered Notification with the defendants, in order to interrupt the statute of limitation (although this interruption can only happen once).

Follow-on actions

In follow-on actions, the limitation period starts to run from the date the damage occurred. As a result, the limitation period may have already passed by the time CADE's investigation is over.

Additionally, see above, Stand-alone actions.

 
7. Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?

Stand-alone actions

A private antitrust action can be filed before state or federal courts, depending on the parties involved (federal owned companies are not exempt from antitrust law). There are still no specialised courts or tribunal before which the action can be brought.

Follow-on actions

See above, Stand-alone actions.

 
8. Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?

Stand-alone actions

Not applicable.

Follow-on actions

Not applicable.

 

Standard of proof and liability

9. What is the standard of proof?

Standard of proof

Under Brazilian law, there is no legal standard of proof.

The parties must declare early on in the lawsuit the types of evidence they intend to produce or to obtain through discovery. Failure to comply with this rule may result in the loss of the right to produce the evidence, as judges do not usually request its production ex officio.

Although exceptionally the judge may determine the production of evidence if deemed necessary to clarify potential doubts or if it is indispensable for the proper trial of the dispute.

Claimants must specify the evidence they want to produce when the defendant files the claim. Defendants must specify their evidence in their defences.

Different types of evidence have no legal hierarchy, so courts are free to decide on their significance as they see fit.

The New Civil Procedure Code considers all legal means of evidence admissible, as well as evidence that is considered morally legitimate (that is, for example, evidence that does not unreasonably violate the intimacy or privacy of the parties).

Wiretapping. This is generally considered illegal, whether the recording was conducted by a third party or by one of the parties to the conversation (although occasionally the courts will admit the recording as evidence, if it is necessary to prove the defendant is not guilty in a criminal trial).

Deposition. The court may summon the parties at any time to question them regarding the facts of the case. Each party is also entitled to motion for the other party to testify (however, they cannot motion for their own deposition in court). The main goal is to get the confession (admission of facts) of the party.

Testimony of witnesses. The parties have the right to summon up to ten witnesses (limited to three for each of the facts that the party intends to prove). Witnesses are not obliged to testify on facts that may endanger them or their relatives or on facts that they are bound to maintain confidential.

Documents. Parties can produce any document they possess in court. According to Brazilian law, a "document" means any material representation capable of reconstituting or preserving an image, sound, situation, idea or wish. Therefore, contracts, declarations, statements, business records, photographs, digital files (e-mails) and sound recordings are considered documents. As a general rule, parties must produce the original document in court. However, the law establishes that courts can accept copies, if properly certified by a public notary or if the lawyer assumes responsibility for the accuracy of the copy. If the document is not in the possession of the party, courts may be asked to reclaim such documents from the opposing party or any third party. However, in order to do so, the requesting party must describe the document as accurately as possible and inform the purpose of the evidence. The party must also demonstrate reasonable belief that the document exists and is in possession of the other party.

Burden of proof

The burden of proof falls on the claimant as a general rule. If, however, owing to the peculiarities of the case, the burden of proof is deemed excessively difficult for the party the judge may shift or redistribute it.

Parties are also allowed to agree (before the lawsuit or during the lawsuit) on the distribution of the burden of proof.

Litigation involving consumers can shift the burden to the defendant, if the claimant is deemed more vulnerable (that is, when there is a significant difference relating to the information or economic resources between the parties).

Rebuttable presumptions

The Brazilian legal system establishes no rebuttable presumptions that serve to shift the burden of proof in cases of private antitrust action.

 
10. Is liability on a joint and several basis?

In the event of a competition violation, Brazilian law determines that all individuals involved in the conduct (for example, all the members of the cartel) will be jointly liable for the damages caused (Article 942, Brazilian Civil Code).

On this basis, each of the offenders may be called to answer for the full amount of damages.

It is possible to seek damages against cartel members for purchases they made from non-cartel members on the basis of the same general rule of tort under the Brazilian Civil Code.

If the lawsuit does not involve consumers, the defendant may be able to bring a contribution claim against other infringing parties (Article 125 (II), New Civil Procedure Code). If the contribution claim is accepted by the competent court, the third party will join the lawsuit. If the claim is denied, the defendant can file a lawsuit for redress after the resolution of the main claim.

To date, contribution claims do not seem to be common in Brazil.

The defendant must bring a contribution claim on his answer, when parallel to the main claim. After the main claim, the defendant has three years (under the limitation period) to bring a contribution claim and seek redress (Article 206, subsection 3, Brazilian Civil Code).

 

Costs and timing

11. What are the recent trends in relation to the costs of bringing an action before the relevant courts/tribunals?

Stand-alone actions

Besides judicial fees, in individual actions, the award includes the payment of lawyer fees (to be collected by the lawyers, not the parties), usually between 10% and 20% of the amount under dispute. In the event that the claimant is the losing party, the claimant must pay the lawyer fees to the defendant.

Defendants may also be subject to the payment of lawyer fees if a private party files the class action.

Follow-on actions

See above, Stand-alone actions.

 
12. What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?

Stand-alone actions

Brazilian law applies the "loser pays" approach to the costs of the action.

Follow-on actions

See above, Stand-alone actions.

 
13. Can parties insure against costs risk associated with an action?

Stand-alone actions

Parties can take out insurance against the costs associated with an action. Companies in Brazil can also buy insurance for their executives that involves the payment of costs associated with an action.

Follow-on actions

See above, Stand-alone actions.

 
14. Can a third party fund the costs of bringing an action?

Stand-alone actions

The Brazilian legal system allows for third party funding.

Follow-on actions

See above, Stand-alone actions.

 
15. Can claimants assign their claim to a third party funder?
 
16. Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?

Stand-alone actions

Conditional fee arrangements are prohibited under the Brazilian legal system. The legal representative is obligated to charge a minimum fee, even if the party represented is unsuccessful. This minimum is established by the Brazilian Bar Association.

Damages-based fee arrangements are possible and usual in practice. However, the legal representation's fee cannot be greater than the party's economic advantage.

Follow-on actions

See above, Stand-alone actions.

 
17. Is it possible for a defendant to a claim to bring an application for security for costs?

It is possible for a defendant to a claim to bring an application for security of costs. Claimants not domiciled in the jurisdiction must post a bond covering the payment of the court costs and the attorney fees. This bond is not necessary if the foreign claimant owns real estate in Brazil with enough value to cover such costs.

 
18. What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?

Stand-alone actions

The period of time from commencing an action and having a first instance judgment varies broadly and is very specific to the case under review. It is not possible to identify any discernible trend regarding this issue.

Follow-on actions

See above, Stand-alone actions.

 

Pre-trial applications and hearings

19. Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?

Stand-alone actions

Under Brazilian Law, civil lawsuits are public. Third parties are able to obtain copies (if the lawsuit has electronic files, third parties can obtain full copies through the court's website).

However, parties may request legal secrecy in order to protect the sensitive commercial nature of the dispute or the confidential information in the files. In such a case, third parties will not have access to the files. Exceptionally, third parties who demonstrate relevant interest may be able to obtain limited court statements regarding the decision of the lawsuit.

Follow-on actions

See above, Stand-alone actions.

 
20. Can a claimant seek interim measures?

Stand-alone actions

Claimants can apply for interim measures to prevent or stop anti-competitive behaviour.

Brazilian courts, for example, may impose daily, weekly or monthly fines on the offender, in order to seek mandatory compliance.

Courts structures fines according to the situation, and have broad discretion to raise the amount, if compliance is not immediate. Fines may be accompanied by any other measure required to stop the antitrust violation (Article 497, New Civil Procedure Code). For example, courts have the power to:

  • Suspend contractual clauses.

  • Restore unlawfully terminated agreements.

  • Impose obligations to negotiate.

  • Intervene in the defendant's business (in extreme cases) (Article 102, Federal Law 12,526/2011).

  • Order other measures.

Courts may grant provisional remedies if there is prima facie evidence on the strength of the claim and, cumulatively, there is risk of extraordinary damages resulting from a procedural delay.

Courts generally understand that the mere delay of a lawsuit poses no risk for claims for monetary damages. For that reason, it is very unlikely that courts will grant an injunction for a quicker payment of damages. The Brazilian New Civil Procedure Code may change this trend as it allows for courts to dispense with the urgency requisite. However, it is still too early to evaluate the effects of the new legislation.

On the other hand, courts can grant interim relief to stop the antitrust conduct, with obligations and fines to force compliance.

Follow-on actions

See above, Stand-alone actions.

 
21. Can a defendant seek to dispose of all or part of the action prior to a full trial?

The Brazilian New Civil Procedure Code allows the court to render a partial decision, before full trial. Those partial decisions may involve striking out some of the claims made by the claimant or summary judgment of some of the claims made by the claimant.

The defendant can apply to strike out a decision when the claimant does not have standing for some of the claims or does not fulfil the legal conditions for the action.

The claimant and defendant can request summary judgment when the dispute does not involve the production of evidence, or if the relevant issues of fact are not disputed.

Although there is a legal possibility of summary judgment, it is not usual in private antitrust litigation as it usually involves complex issues of causation and damages.

 
22. Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?

Staying a claim

A stand-alone action usually will not be stayed if there is an ongoing competition authority investigation into the same alleged infringement.

The administrative (CADE) and judicial spheres are independent, so under Brazilian law, victims are allowed to go to court even if CADE has expressly decided that no violation has occurred.

Defendants may seek a stay of proceeding of up to one year if the judgment of the lawsuit depends on the decision of another case, or depends on the declaration of a relation that is the object of another lawsuit.

 
23. Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?

Under Brazilian Law the following issues must be tried as a preliminary issue (Article 337, New Civil Procedure Code):

  • Lack or nullity of summons.

  • Absolute or relative incompetence.

  • Incorrect estimate of the value of the claim.

  • Defects in the initial filing.

  • Previous abandonment of the lawsuit.

  • Lis pendens cases (the first party in time to issue proceedings at court secures the jurisdiction of the court in a particular country).

  • Res judicata cases (doctrine preventing a party from re-litigating any claim or defence already litigated).

  • Connection with another lawsuit.

  • Defects in the representation or the capacity of the parties.

  • Arbitration agreement.

  • Lack of action conditions.

  • Lack of bond or any other warranties required by law.

  • Request for judicial gratuity.

Courts should decide about all preliminary issues before the production of evidence and in advance of a full trial.

 

Evidence and legal privilege

24. Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?

Competition authority decisions

Courts are not bound by CADE's judgment and are therefore free to take a different view of the matter. Naturally, even if judges are not bound by CADE's opinion, its authority as the antitrust agency will lend considerable weight to its influence on the judicial decision.

Judgments

Under the Brazilian legal system, courts are not bound by a finding of fact and infringement by another court with competency in respect of the jurisdiction. When there is a risk of a contradictory judgment on an action regarding the finding of fact and infringement, it is possible for joint actions to provide the same judgment (Article 55, New Civil Procedure Code).

 
25. What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?

Brazilian courts are not bound by decisions rendered by foreign jurisdictions. Foreign decisions will be treated as a document and, depending on the authority and contents of the decision, may or may not have weight in the Brazilian judgment.

 
26. If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?

Under Brazilian civil procedure law, parties produce their evidence in the course of the lawsuit. The procedure does not include any phase that is similar to a pre-trial discovery.

However, the recently enacted Civil Procedure Code (Federal Law 13,105/2015) allows for a widespread use of anticipated production of evidence, in cases which there is no risk involved, but the evidence may help the parties reach a settlement or in cases when the production of evidence may prevent a lawsuit altogether.

This new provision may turn the anticipated production of evidence into a Brazilian "discovery phase" through which potential claimants would access the viability of their claims.

Documents produced in previous lawsuits or administrative procedures (for example, those provided to CADE or any regulatory agency) are admissible under Brazilian case law as "borrowed evidence".

Despite this, it is not possible to obtain copies of confidential version of the decisions of CADE or even the leniency materials prepared and submitted by the defendant, by third parties (including victims).

Opinion No. 206/2010 from the Office of the General Counsel was issued to the CADE, providing that anyone can inquire or obtain copies of records of an administrative proceeding in progress with the CADE. This is regardless of any private or collective interest being defended. However, once confidentiality is granted to the files of an administrative proceeding, or to certain data, information, communication, objects or documents, it constitutes an insurmountable barrier that third parties are not permitted to consult.

 
27. Can a party oppose the provision of any documents not in their possession or control?

Parties (the claimant and/or the defendant) can ask the court to request documents that are in the possession of third parties. Parties may oppose the request on the grounds that such documents are confidential or unnecessary for the lawsuit.

However, once the request is admitted, there is no further opposition available for the party. However, the third party in possession of the document can have further grounds to oppose the order.

Specifically, in cases involving CADE (for example, leniency materials and confidential versions of documents), the defendant can first oppose the request for such documents by the claimant. If the court permits the request, an order will be sent to CADE to present the documents. At this point, CADE may file a new opposition, presenting further grounds for the refusal (for example because it is in the public interest). Any opposition is made directly to the court.

 
28. Can parties rely on legal privilege to withhold documents from inspection?

Under Brazilian law, communication between lawyers and clients is privileged (Article 133, Brazilian Constitution). This privilege covers the law firm or office, as well as the professional tools, the work produced, and written, electronic, telephone and telematic communications (Article 7, Federal Law 8,906/1994).

Brazilian law does not differentiate between external and in-house counsel.

There are only two exceptions, where there is evidence indicating the authorship and material perpetration of a crime by the lawyer (Article 7(6) , Federal Law 8,906/1994), and when the lawyer holds an element of the corpus delicti.

According to the Brazilian Federal Constitution, all correspondence and data communication may not be violable and therefore cannot be used for litigation purposes. However, there is no consistent body of case law defining whether this provision also encompasses e-mails or other forms of electronic communication.

Several precedents have allowed the use in court of open letters and e-mails, under the principle that the Federal Constitution protects the transmission of data (the communication process) but not its content.

On the other hand, the Brazilian Constitution allows wiretapping by court order, in the situations and in the manner provided by law for the purposes of criminal investigation or fact finding. Federal Law 9,296/96 sets forth very specific and restrictive conditions for wiretapping, including that it cannot be deployed before all other means of investigation have been exhausted. Additionally, wiretapping must not exceed 30 days and the decision allowing the measure must be strongly grounded. Once the recording has been used in a criminal court, parties may present it (or its transcription thereof) as evidence in administrative proceedings or civil litigation.

 

Alternative dispute resolution

29. Can the parties seek to resolve the action through alternative dispute resolution?

Under Federal Law 9,307/1996 (Brazilian Arbitration Law) parties may resort to arbitration only to settle disputes involving disposable property rights.

Law 12,529/2011 establishes that competition is a matter of public interest, narrowing the possibilities of using arbitration to deal with antitrust litigation. It is theoretically possible to refer to arbitration in Brazil to dispute the amount of damages arising out of a cartel, for example. However, it is very unlikely for a defendant to voluntarily join an arbitration of such scope.

On the other hand, agreements entered into with arbitration clauses may generate disputes involving antitrust issues, for example, contracts with exclusivity clauses. In such cases, it is possible that the arbitrators will have to face an antitrust issue as part of their brief. However, the Brazilian Arbitration Law determines that the court may deem an arbitration award void if the decision conflicts with public interest provisions.

Moreover, the arbitration clause does not prevent the injured party from seeking an administrative decision from CADE, which will not be bound to the arbitration award, in any way. This means that CADE may decide to investigate and may punish behaviour or contractual clauses even if they were deemed fully lawful or enforceable by the arbitrators.

The parties are not required to engage in alternative dispute resolution (ADR) prior to trial. Nevertheless, the parties should expressly inform the court that they do not wish to engage in mediation or conciliation procedures.

There is no obligation to engage in ADR in good faith, and there are no implications for refusing to engage in ADR.

The tactical advantages and/or disadvantages of engaging in ADR must be assessed on a case by case basis.

 

Settlement or discontinuance of an action

30. What are the tactical advantages and disadvantages associated with making an offer of settlement?

Stand-alone actions

Advantages. The following advantages are associated with making an offer to settle:

  • A settlement in or out of court carries the same weight as res judicata, so that, once settled the parties cannot litigate on the matter again.

  • Agreement over damages would be enforceable.

  • The payment of a contribution in the context of a consent decree with the Prosecutor's Office may prevent the application of further penalties by other authorities.

Disadvantages. The following disadvantages are associated with making an offer to settle:

  • Antitrust law is considered a matter of public interest.

  • A settlement would not prevent CADE from taking further action against the perpetrator.

  • The payment of a contribution, in a consent decree with the Prosecutor's Office, irrespective of the amount, does not relieve the defendant of the obligation to redress individual damages, as the conduct adjustment agreement (TAC) cannot set forth the individual rights of the victims.

Follow-on actions

See above, Stand-alone actions.

 
31. Is permission required from the relevant court or tribunal to settle any action prior to or during trial?

Parties are allowed to settle disputes rights at any time. Settlements are, in fact, encouraged by Brazilian courts and may even encompass rights or obligations that are not part of the original lawsuit.

For settlements reached during trial, parties must negotiate over the payment of the court's costs and fees.

A settlement in or out of court carries the same weight as res judicata, so that, once settled the relevant court or tribunal remains unable to make any order following such settlement.

Collective actions, by comparison, allow very limited room for settlements.

If the claimant is the Public Prosecutors' Office, Brazilian Law allows the parties to enter into a consent decree for the purpose of stopping the relevant behaviour, often with an attached payment contribution.

 

Proceedings at trial

32. Are actions heard by a jury?

Under Brazilian law, private competition actions are not heard by a jury.

 
33. How is confidential information protected during the course of proceedings?

In judicial procedures, the general rule is that documents are publicised. However, the parties may request confidentiality for disputes involving sensitive commercial matter (Article 189, New Civil Procedure Code).

Brazilian lawsuits are either public or confidential. If the courts grant confidentiality, all files will remain unavailable for third parties.

Only the legal representation and the parties can access the files and obtain copies the files when the court has granted confidentiality. Third parties, including victims, will not be able to access to the evidence produced.

 
34. What evidence is admissible?

Documents produced in previous administrative proceedings or lawsuits, even if it is from criminal proceedings, are admissible under Brazilian case law as "borrowed evidence".

The same applies to documents produced in foreign legal or administrative proceedings. However, in such a case they must be duly translated into Portuguese.

Parties have the right to hear up to ten witnesses (limited to three for each of the facts that the party intends to prove) (Article 357(6), New Civil Procedure Code (NCPC)).

Witnesses can be challenged for impediment (for example, kinship) or suspicion (close friendship, or strong animosity proven through objective fact) (Article 447, NCPC).

Parties may cross examine witnesses at trial.

Witnesses are not obliged to testify on facts that may endanger themselves or their relatives, or on facts that they are bound to maintain confidential (Article 448, NCPC).

If the dispute requires the assessment of technical issues, the judge will call an expert in the field to perform an examination, either ex officio or on the parties' motion.

Antitrust issues usually involve the opinion of an economist or accountant, but depending on the relevant market, product or infrastructure involved in the dispute, the court may summon engineers, physicians or any other expert in the related field. Expert examination may involve multiple fields (Article 475, NCPC).

The court will determine the scope of the technical opinion and parties are allowed to ask questions they want the expert to address in her or his examination.

The court is not obligated to follow the opinion of the expert, but the examination does have exceptional weight.

 

Available defences

35. Is a "passing-on" defence available?

Brazilian law allows defendants to use pass-on defences (that is, the claim that the claimant passes on its losses to third parties or end consumers).

Indemnification must be measured according to the extent of the damage (Article 944, Civil Code). This means that it must not exceed what was effectively lost by the victim.

There is a strong body of case law stating that victims cannot claim damages for losses that have already been paid or covered by someone else (such as by an insurer or a third party), since this would not be compensation, but truly improper and unjustified enrichment.

The burden of proof that the increased price was not passed on falls on the claimant, who can more easily demonstrate this fact in court. However, the defendant must raise the issue with the court when answering the claim.

So far, no lawsuits involving passing on defences have been fully tried.

 
36. Are any other defences available?

Defences are assessed on a case-by-case basis.

 

Available remedies

37. Are damages available, and if so, on what basis are damages awarded?

Damages

Under the Brazilian Civil Code, victims can seek all types of damages.

The damages may be either pecuniary losses (any type of pecuniary damages, including loss of profits and loss of business) or pain and suffering (that is, injury to the reputation or good standing of the victim).

On the other hand, in order to be entitled to pain and suffering in an antitrust case, the victim must effectively prove an actual injury to reputation. There is no strong set of judicial precedents in cases involving pain and suffering in private antitrust litigation, although there are usually pecuniary losses involved, and with the exception of disparagement cases, the reputation or good standing of the victim is rarely tainted by a competitor violation. Ordinarily the awards in such cases do not exceed 500 times the Brazilian minimum salary (about BRL440,000).

Under Brazilian law, public financial penalties imposed previously are not taken into account when calculating damages. Participation in voluntary redress schemes may be taken into account, on a case-by-case basis.

Brazil does not have exemplary damages for antitrust private litigation.

In recent years, certain class actions (particularly those filed by public prosecutors) have claimed compensation for social damages caused by the offender (that is, damage to the entire market). Such claims generally work as disguised claims for punitive damages, and they have been accepted by the courts in certain circumstances, mainly in cases involving labour claims or mass torts.

Interest

Under Brazilian Civil Procedure Code, interest is available on any damages awarded, counted from the date the damage occurred.

 
38. How are damages quantified?

Brazilian law does not provide a specific mandatory form for calculating material antitrust damages.

Therefore, disputes in Brazil will face the same challenges already faced by other jurisdictions, mainly, the proper form of evaluating damages arising out of anticompetitive behaviour and, more specifically, by a cartel. Solutions will be assessed on a case-by-case basis, according to the elements available to the court.

 
39. Are any other remedies available?

Under Brazilian Law, courts are allowed to provide any remedies necessary to cease and/or redress the violation.

 

Appeals

40. Is it possible to appeal the judgment of the relevant court or tribunal?

It is possible to appeal the judgment of the relevant court or tribunal to a hierarchically superior court. The appeal is made to reopen the findings of facts and conclusions of law.

 

Reforms

41. Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?

There is current discussion about a new legislative bill for private antitrust actions. Changes proposed include:

  • Creating a treble damages rule.

  • Extending the statute of limitations.

  • Other measures aiming to create incentives for actions filed by the victims.

 

Online resources

W www.planalto.gov.br/legislacao

Description. An official and up-to-date website where federal legislation can be obtained. Only available in Portuguese.



Contributor profiles

Carlos Francisco de Magalhães , Partner

Magalhães e Dias Advocacia

T +5511 3829 4411
F +5511 3825 8695
E cfm@magalhaesdias.com.br
W www.magalhaesdias.com.br

Professional qualifications. Lawyer

Areas of practice. Antitrust law; regulation and administrative law; civil litigation; commercial law, arbitration and international trade.

Languages. Portuguese, English, Italian, French, Spanish

Professional associations/memberships. IBRAC (Brazilian Institute of Competition, Consumption and International Trade Studies)

Gabriel Nogueira Dias, Partner

Magalhães e Dias Advocacia

T +5511 3829 4411
F +5511 3825 8695
E gnd@magalhaesdias.com.br
W www.magalhaesdias.com.br

Professional qualifications. Lawyer

Areas of practice. Antitrust law; regulation and administrative law; international trade.

Languages. Portuguese, English, German, Italian, Spanish

Professional associations/memberships. IBRAC (Brazilian Institute of Competition, Consumption and International Trade Studies); ABA (American Bar Association)

Cristiano Rodrigo Del Debbio, Associate

Magalhães e Dias Advocacia

T +5511 3829 4411
F +5511 3825 8695
E crd@magalhaesdias.com.br
W www.magalhaesdias.com.br

Professional qualifications. Lawyer

Areas of practice. Civil litigation; antitrust law; commercial law and arbitration; regulation and administrative law; consumer law.

Languages. Portuguese, English

Professional associations/memberships. IBRAC (Brazilian Institute of Competition, Consumption and International Trade Studies)


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