New challenge in the context of repetitive litigation: abuse of the right to sue

New challenge in the context of repetitive litigation: abuse of the right to sue

Eduardo Maneira
Michel Hernane Noronha Pires

Three phases of access to justice

In the second half of the 20th century, a concern among jurists was the lack of access to Justice, as a considerable portion of the population remained outside the Judiciary, having their rights constantly violated, without protection or reparation [1].

In Brazil, especially with the promulgation of the 1988 Constitution, access to Justice was substantially expanded. Without disregarding the fact that there is still a lot to be improved in terms of effectiveness and speed in the provision of jurisdiction, we can say that the desired access to justice occurred and the consequence was an explosion of demands.

Therefore, access came and, with it, another problem: it was necessary to provide a solution, in an appropriate time and manner, to the multiple and repeated demands that began to arrive at the Judiciary on a daily basis.

We then began to think about instruments for resolving mass disputes, and in this short space we only have to exemplify them. In 1990, the Consumer Protection Code came into being, which made collective protection of homogeneous individual rights possible.

Constitutional Amendment nº 45/2004 brought a general repercussion, which, in addition to being a filter for access to the Federal Supreme Court, became a means of dictating uniform solutions for cases that were repeated throughout the national territory. Another step was taken in 2008, with the inclusion, by Law 11,672/2008, of the repetitive appeals system in CPC/73. CPC/2015 consolidated a system of repetitive cases and binding precedents.

However, before we could say that the problem of the high number of demands that access to justice generated had been effectively resolved, we now find ourselves faced with another dilemma.

Portrait of predatory litigation

The new challenge is to deal with the excess of illegitimate demands, the result of abuse of the right to demand (or abuse of the right of action). The phenomenon has been called predatory litigation.

In other words, today the Brazilian Judiciary faces a two-faceted problem: on the one hand, there is a huge number of legitimate demands, which ask for an adequate and timely solution; on the other, thousands of illegitimate demands, which need to be identified and prevented, otherwise the first challenge will be hindered.

The courts are reacting quickly and, through intelligence centers, have been able to identify this abusive behavior – from the parties and the lawyers.

The data is alarming. The Report of the Demand Profile Monitoring Center (Numopede) of the TJ-SP for the 2022/2023 biennium, for example, identified the role of a group of lawyers in the distribution of more than 50 thousand standardized actions, with numerous irregularities, such as filing without the author's knowledge, omission or alteration of the truth of facts and the use of false documents [2].

Monitoring carried out by the Intelligence Center of the Court of Justice of Minas Gerais (CITJMG) indicates that processes related to predatory litigation are equivalent to up to 30% of procedural movement [3]. It is a waste of 1/3 of the time and resources used in judicial provision.

The phenomenon is not limited to cases in which there is the practice of procedural acts that constitute litigation in bad faith, typified in article 80 of the CPC.

The abuse of the right to action has the subtlety of apparent lawfulness, but, in essence, these are frivolous demands, without real litigation, filed with objectives other than obtaining the protection of a right [4]. As Minister Nancy Andrighi has said, “abuse is configured not by what is revealed, but by what is hidden” [5].

And the signs of abuse are varied:

• generic petitions without the slightest documentary evidence;
• filing of repeated actions against large companies, with the simple intention of obtaining some economic advantage;
• unjustified fragmentation of causes of action, aiming to maximize gains and other advantages;
• bringing the same demand in different courts to subsequently choose the most convenient forum (forum shopping);
• filing of actions outside the author's home and in locations with no connection to the origin of the dispute;
• use of false or adulterated documents;
• use of the same power of attorney in several processes;
• omission regarding the occurrence of lis pendens or the existence of res judicata.

Usually, the initial petition comes with a request for the production of documents, reversal of the burden of proof and other requirements, such as the purpose of making the defendant's defense more difficult.

The essential characteristic of these demands is the diversion of purpose: the objective is to obtain some advantage, with the approval of the Judiciary, but not to obtain the protection of rights [6].

The consequences are harmful in the private and public spheres. In the first, large companies are the main victims, as they have been bombarded with demands and requirements, which result in high management costs and losses, in the case of convictions. In the public sphere, the Judiciary itself is the prey, which creates obstacles in the delivery of judicial services to those who actually need it.

And this is the fundamental point: the abuse of the right to sue impedes access to justice for citizens who do not abuse their right. Due to the abuse perpetrated repeatedly by many, judicial provision has been slower and less effective, which is reason enough for all efforts to be devoted to repressing predatory litigation.

In good time, therefore, the Superior Court of Justice is examining Repetitive Theme No. 1,198 [7]. This will provide important guidance and guidelines for the country's magistrates regarding possible measures to be taken to curb predatory litigation. The reaction is welcome, as what cannot be accepted is that our Judiciary is victimized by the abuse of the right to sue.

Precisely aware of the repercussions of predatory litigation, the Brazil Europe Integration Forum (Fibe) will promote the Economic and Social Impacts of Mass Litigation Forum [8] in Lisbon, on the 28th and 29th of November. The event will bring together international experts to discuss topics related to mass litigation in Brazil and abroad, such as the forum shopping, the judicial instruments available for handling mass disputes, the consensual solutions that can be applied to mass disputes, the financing of the procedural costs of litigation by third parties and the challenges faced by different economic sectors.

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[1] “Justice, like other goods in the laissez-faire system, could only be obtained by those who could face its costs; those who could do so were considered solely responsible for their fate. Formal, but not effective, access to justice corresponded to equality, only formal, but not effective.” (CAPPELLETTI, Mauro; GARTH, Bryan. Access to Justice. Porto Alegre: Fabris, 1988, p. 9).

[2] href="https://api.tjsp.jus.br/Handlers/Handler/FileFetch.ashx?codigo=151470">https://api.tjsp.jus.br/Handlers/Handler/FileFetch.ashx?codigo=151470

[3] https://www.tjmg.jus.br/data/files/49/80/E5/70/DF212810B8EE0B185ECB08A8/NT_01_2022%20_1_%20_1_.pdf

| reckless demands; frivolous demands; procrastinatory demands; procedural harassment; sham litigation; procedural spam. (FERRAZ, Taís Schilling. The treatment of new faces of litigation: from anomalous species to predatory litigation. Revista de Processo, vol. 349, mar./2024, p. 727-758)

[5] REsp n. 1.817.845/MS, rapporteur Minister Paulo de Tarso Sanseverino, rapporteur for the ruling Minister Nancy Andrighi, Third Panel, judged on 10/10/2019, DJe of 10/17/2019.

[6] “(…) the exercise of the right of action in good faith requires the author to act in judgment takes place in search of a legitimate and admissible end for the law, that the acts carried out are consistent with each other and justify the achievement of that end and that they do not impede or obstruct the exercise of the opponent's right to defense.” (LUCON, Paulo Henrique dos Santos. Abuse of the Process. Curitiba: Editora Direito Contemporâneo, 2024, p. 313.)

[7] Here is the issue affected by the trial: “Possibility of the judge, envisaging the occurrence of predatory litigation, require the plaintiff to amend the initial petition with the presentation of documents capable of minimally supporting the claims made in court, such as an updated power of attorney, declaration of poverty and residence, copies of the contract and bank statements.”

href="https://forumbrasileuropa.org/impactos-economicos-e-sociais-dos-litigios-de-massa/">https://forumbrasileuropa.org/impactos-economicos-e-sociais-dos-litigios-de-massa/

Eduardo Maneira
He is a full professor of Tax Law at the National Faculty of Law of UFRJ, a PhD in Law from UFMG, coordinator of Tax Law at the Escola Superior da Advocacia (ESA) and founding partner of Maneira Advogados.

Michel Hernane Noronha Pires
he is a doctoral student and master in Civil Procedural Law at PUC-SP, professor of specialization courses at PUC-SP and PUC-Minas, member of the Brazilian Institute of Procedural Law (IPBP) and partner at Maneira Advogados.

https://www.conjur.com.br/2024-nov-12/novo-desafio-no-ambito-da-litigiosos-repetitiva-abuso-do-direito-de-demandar/