On August 14, the First Section of the Superior Court of Justice (STJ) consolidated understanding on the scope of the effects of the decree of the intercurrent statute of limitations in the enforcement of a collective judgment. In judging Topic 1253 in a regime of repetitive appeals,[1] the court established the following thesis: "The summary extinction of collective enforcement proceeding filed by the extraordinary legitimate, by intercurrent prescription, does not impede the individual enforcement of the same title".
Among the provisions submitted to the STJ's analysis, item III of article 103 of the Consumer Protection Code (CDC) deserves attention, according to which the judgment rendered in class actions will be res judicata erga omnes "only in the event that the request is granted". In addition, paragraph 2 of the same article expressly authorizes the filing of an individual lawsuit for damages in the event of dismissal of the class action, provided that the interested party has not intervened in the proceeding as a joint plaintiff.
Thus, according to the understanding established by the STJ, in the case of a judgment that extinguishes collective enforcement by intercurrent prescription, res judicata is not effective erga omnes. Consequently, the subjects of the disputed collective right may individually initiate the enforcement proceeding.
This situation reflects the concept of res judicata secundum eventum litis, that is, "according to the result of the case". In the consumerist context, this means that collective judgments can reach individual group members only if they are beneficial to them.
The adoption of this concept by consumer legislation is justified by the absence of adversarial proceedings by the procedural substitutes in the representative action. If, individually, these parties did not effectively participate in the action, a decision that is unfavorable to them cannot generate res judicata to their detriment.
This rule admits only one exception: in the event of intervention by interested parties as co-defendants in collective actions for the defense of homogeneous individual interests (Article 94). In this case, the right to bring an individual lawsiot is lost in the event of dismissal of the collective lawsuit (article 103, paragraph 2).
This understanding has been honored by the court since 2016, on the occasion of the judgment of Special Appeal 1.302.596/SP. At the time, the STJ recognized that, even in the face of the dismissal of a collective action related to homogeneous individual rights, there would be no procedural obstacle to the filing of individual lawsuits by the subjects of the right under discussion.
Thus, since res judicata unfavorable to the subject of the right cannot be opposed to in individual lawsuits, the STJ understood that this protection would also apply in cases of dismissal of a collective enforcement proceeding by decree of the intercurrent prescription.
As recognized by the STJ in the judgment of Topic 1253, the logic that underlies the limitation of the scope of res judicata in collective lawsuits – specifically, the absence of effective participation of the subjects of the right in the process – also applies to cases of unfavorable decision in a collective enforcement proceeding. This is especially relevant when the intercurrent statute of limitations occurs, which results from the negligence of the procedural substitute.
[1] Originating from the Federal Regional Court of the 5th Region, the special appeals [=], reported by Justice Herman Benjamin, were assigned by the First Section of the Superior Court of Justice (STJ) for judgment under the rite of repetitives (Topic 1253).
