Effect of public proceedings
1 What is your country’s primary competition authority?
The Administrative Council for Economic Defense (CADE), an independent federal administrative agency, is the primary competition authority. However, CADE does not have jurisdiction on private antitrust claims, which should be brought before judicial courts.
2 Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?
CADE has investigatory power within administrative proceedings, but it has no jurisdiction over criminal proceedings, which must be brought forward by public prosecutors before the judicial courts.
3 Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?
Private antitrust claims are independent, can be filed in parallel, and proceed regardless of investigations by competition authorities and criminal prosecutors.
4 Is there any mechanism for staying a private claim while a related public investigation or proceeding (or an appeal) is pending?
There is no specific mechanism relating to the staying of a private claim in connection with a public investigation, but there is a general mechanism relating to the staying of a claim whose result is connected to a pending external matter. In practical terms, however, considering that private claims are independent of parallel investigations, a staying effect is highly unlikely.
5 Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?
The findings of local and foreign competition authorities are not binding but do have evidentiary value and create a rebuttable presumption that competition laws were violated. Likewise, decisions by sector-specific regulators have evidentiary value and can be used by private claimants. However, even if such decisions may relief the burden of proof related to the violation of competition laws, plaintiffs still have the burden of proving and quantifying damages that the alleged violation may have caused.
6 Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?
There is currently no beneficial treatment for immunity or leniency applicants in private antitrust cases. This situation, however, may change in the near future considering a bill (Bill of Law No. 11,275/2018) under discussion at the House of Representatives that, among other modifications to Brazilian antitrust law, provides for double damages to plaintiffs in private antitrust cases; and exempts immunity and leniency applicants of the double damages, as well as further limiting their responsibility only to the compensation of damages directly caused by them to the plaintiffs.
7 Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?
Plaintiffs may obtain access to public case records of the competition authority or prosecutors’ files; however, commercially sensitive information is usually filed in confidential dockets that are not accessible to third parties other than the defendants themselves.
8 Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?
All documents and some of the information submitted by leniency applicants are shielded, unless claimants obtain a court order that obliges CADE to disclose the information. This possibility is quite low, and CADE’s prosecutors are keen on disputing any such decision and protecting the information submitted by leniency applicants. To further protect information submitted by leniency applicants, CADE has issued a resolution in 2018 preventing any disclosure of such information even after the case has been ruled by its tribunal.
9 Is information submitted in a cartel settlement protected from disclosure?
See question 8; documents and information submitted in a cartel settlement have the same legal treatment as information submitted by leniency applicants.
10 How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?
It may be treated confidentially – filed in confidential dockets – at the parties’ request and commercially sensitive information may be declared classified ex officio. (See question 27 regarding secrecy of information in disclosure proceedings.)
Commencing a private antitrust action
11 On what grounds does a private antitrust cause of action arise?
Under Brazilian antitrust law and the Brazilian Civil Code, any and all party that has been harmed as a result of a violation of competition law has cause of action to file for compensation and for court orders to ensure that the misconduct is ceased.
12 What forms of monetary relief may private claimants seek?
Considering the current lack of legal grounds for punitive damages or treble damages under Brazilian Law, private claimants may only seek for compensation of provable damages (including lost profit damages). As mentioned in question 6, there is a bill under discussion at the House of Representatives (Bill of Law No. 11,275/2018) that provides for double damages to claimants and that might be enforceable in the near future.
13 What forms of non-monetary relief may private claimants seek?
Private claimants may also seek for court orders to ensure that the misconduct is ceased. In the private antitrust claim related to the Steel Rebar cartel case, an interim relief was granted in favour of plaintiff, ordering that defendants ArcelorMittal Aços Longos (formerly Belgo-Mineira), ArcelorMittal Barra-Mansa (formerly Barra Mansa) and Gerdau provided steel rebar in prices compatible with the ones they offered to fixed distributors, which were lower at the time. Non-monetary relief was also requested in follow-on claims related to the gas cartel case such as the one brought up by Associação Brasileira das Indústrias de Refrigeração e Bebidas Não Alcóolicas, in which it requested for defendants White Martins, Air Products, Air Liquide, Linde Gases and AGA to reduce the prices they charged over the association members by 25 per cent, and in the claim filed by Associação dos Hospitais de Minas Gerais in which it asked for an interim relief to prevent defendants Air Liquide and White Martins from overpricing their products.
14 Who has standing to bring claims?
Any and all parties that have been harmed as a result of a violation of competition law, either directly or represented by third parties (see questions 48 and 49 regarding class actions and standing of associations) have standing to bring private antitrust claims.
15 In what forums can private antitrust claims be brought in your country?
Usually, private claims in Brazil are filed with a local section of a state court. This local section is responsible for the first degree ruling and the decision may be appealed to the state court itself. As an exception to this rule, claims would have to be filed with a local section of a federal court if any of the parties is a federal body or a federally owned (partially or fully) company. It is not unusual for CADE to join such proceedings as an intervening third party and, if this is the case, any claim filed with a state court section is transferred to a federal court section. Damage claims may also be settled through arbitration provided that there is an arbitration clause between the parties or that the defendant agrees with the arbitration (see question 57).
16 What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?
The general rule under Brazilian procedural law is that claims must be filed with the court section of the defendant’s domicile (see question 15 on state versus federal courts) and provided that there are multiple court sections that have jurisdiction (considering a multitude of defendants or a multitude of branches of a single defendant) the claimant may file at its discretion. As an exception to the general rule, if a claimant is a consumer under Brazilian consumer law, it has the benefit of filing in the court section of its own domicile.
17 Can claims be brought based on foreign law? If so, how does the court determine what law applies to the claim?
Foreign law is generally not applicable in Brazilian courts except for certain specific matters such as the discovery of facts that have taken place abroad (in which case the governing law where such facts have taken place is applicable to their discovery) and the enforcement of foreign court decisions in Brazil, provided that said decisions are not contrary to Brazilian sovereignty, public order and traditions.
18 Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?
There are no specific preliminary requirements for starting a claim, but the advance production of evidence might be desirable in the case of a stand-alone claim. Private litigation usually takes place before state courts in Brazil and claims are generally filed at the defendant’s domicile.
Each of the 27 states of Brazil has its own filing fee. To illustrate that and considering that most of the companies are either established or have branches in the state of São Paulo, the filing fee in São Paulo – which is one of the most expensive states to litigate in Brazil – is of 1 per cent of the total claim amount. It is important to mention that foreign plaintiffs that have no real estate assets in Brazil must provide a cash collateral for the payment of recover costs and attorney fees due (ranging from 10 per cent to 20 per cent of the total claim amount) if the claim is dismissed. Service of claim is executed by courts either by registered mail, court officers or publications in the official gazette at flat rates.
19 What is the limitation period for private antitrust claims?
This is a hot topic in Brazil that may also be reviewed by the bill under discussion at the House of Representatives (Bill of Law No. 11,275/2018). There are currently three possible periods depending on the nature of the legal binding (or lack thereof) between the parties: three years according to the civil code for non-contractual damages; five years according to the consumer law; and 10 years according to the Superior Court of Justice for contractual damages. Considering that there is also an ongoing discussion related to the initial term of the limitation period (starting with the investigation versus CADE’s final ruling), the most conservative approach would be a three-year limitation period from the date that the claimant became aware of an alleged anticompetitive practice, namely the disclosure of an immunity application or the start of an investigation by CADE. The bill currently under discussion provides for a five-year statute of limitation period starting after CADE’s final ruling.
20 Are those time limits procedural or part of the substantive law? What is the effect of their expiry?
Time limits are part of the substantive law (either the civil code or the consumer law depending on the nature of the legal relationship between the parties) and claims that are not filed in a timely manner may be blocked by the statute of limitation defence thus releasing the Defendants of any obligation and responsibility.
21 When does the limitation period start to run?
See question 19.
22 What, if anything, can suspend the running of the limitation period?
The limitation period is suspended by the filing of the damages claim and can be interrupted before that by the filing of a motion for this very specific purpose (interruption of the limitation period). In practical terms, the running of the limitation period restarts after the defendant is served of the motion to interrupt the limitation period. The statute of limitation period can only be interrupted once.
23 What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?
There are no pleading standards under Brazilian Procedural Laws, only certain formal criteria that the claim must observe such as: the factual and legal grounds of the claim; its specifications; its value; and attachment of the documental evidence and indication of future evidence based on which the plaintiff intends to prove the alleged facts.
24 Is interim relief available? What must plaintiffs show for the court to grant interim relief?
Interim relief is available and may be granted by the court according to the urgency of the situation and/or to the depth of the evidence provided by the claimant. The court may grant interim relief to prevent the continuity of the misconduct (see question 13 for a few examples) and to anticipate the effects of the final decision. Plaintiffs must provide documentary evidence of the urgency and of the merits of the case. It is worth mentioning that the bill under discussion at the House of Representatives (Bill of Law No. 11,275/2018) provides that CADE’s final rulings would support interim relief in private claims.
25 What options does the defendant have in responding to the claims and seeking early resolution of the case (e.g., answer, counterclaim, motion to dismiss, summary judgment)?
Under Brazilian procedural law, the defendant must present all its material and procedural arguments (even a counterclaim) in a written defence, which is the first response to the claim. The court should provide its decision on the procedural arguments prior to the beginning of the discovery phase, thus dismissing the case should it not meet any of the procedural standards required by law. The same would apply to the statute of limitation defence; however, in practice, this discussion usually extends itself to the final ruling of the case given all the uncertainties surrounding the subject (see question 19).
26 What types of disclosure/discovery are available (e.g., documentary, depositions, interrogatories, admissions)? Describe any limitations and the courts’ usual practice in ordering disclosure/discovery.
All types of evidence are generally and usually accepted provided reasonable grounds to justify their ordering (i.e., the court may reject the deposition of a person who is not directly linked to the facts under investigation). Any and all documentary evidence must also be attached to the initial claim, except for documents that were produced only after the filing. In Brazil, there is no discovery request to the same extent that we see in the United States, for example. Parties can only request that the court compels the adverse party to produce specific documents and not a broad range of documents related to the dispute.
27 How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?
It may be treated confidentially at the parties’ request and commercially sensitive information may be declared classified ex officio. If any confidential information or document provides grounds for a decision, then the decision shall also remain confidential. It is also common to determine judicial secrecy for the entire proceeding in Brazilian courts in cases into which confidential information is disclosed.
28 What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?
Full privilege in attorney–client communications is assured by the Attorney’s Code of Professional Ethics (which is a federal law in Brazil) except in special cases when there is any kind of threat to a person’s life, when the attorney has to defend its honour or someone else’s, or when he or she is confronted by the client and has no other choice but to disclose the privileged information. There are no other forms of privilege that are generally applicable.
29 Describe the trial process.
There is actually no US-like trial in the Brazilian procedural code, but rather a hearing session in which the first-degree judge may rule the case, though a ruling in the hearing session is highly unusual and even more so in complex cases such as antitrust claims. The main target of the hearing session is to obtain oral evidence from court-appointed experts, the parties themselves and their witnesses. Even though the judge can ask the attorneys to orally present their final arguments (for a maximum of 30 minutes each), in complex cases the judge usually asks for final arguments to be filed in written after the hearing session.
30 How is evidence given or admitted at trial?
The hearing session’s main purpose is to collect oral evidence from experts, witnesses and the parties themselves. Questions to the experts, witnesses and the parties may be asked by the judge and by attorneys of both parties. All documentary evidence must be attached to the plaintiff’s initial claim or the defendant’s initial response and new documentary evidence is generally not given or admitted at trial, though documents already attached to the case dockets may be subject to questions to the experts, witnesses and the parties themselves.
31 Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?
Experts are used in private antitrust litigation in Brazil, mainly to qualify and quantify the damage suffered by claimants (expert evidence). The experts are usually economists and accountants. There are the court experts, appointed by the judge, and also the private experts hired and appointed by each party to assist them in formulating questions to the court expert, to follow up its work, to provide its own independent conclusions and to evaluate and possibly challenge the work produced by the court expert.
32 What must private claimants prove to obtain a final judgment in their favour?
Private claimants must prove the alleged facts. This means that in a claim to repair cartel damage, the claimants must prove the existence of an unlawful conduct (which requires more efforts in stand-alone claims), the link of cause and effect between the unlawful conduct and the alleged damage and damages incurred and its quantification.
33 Are there any defences unique to private antitrust litigation (e.g., Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?
A common defence in private antitrust litigation is the use of the passing-on argument, which is also used in tax disputes in Brazil. Moreover, the counterfactual defence is common in private antitrust claims, which considers the market conditions in force in the absence of a cartel. Even though it is necessary to access documents from the other party to prove it, the burden of proving these defences lies with the party who claims them. However, in view of the peculiarities of the case related to the impossibility or the excessive difficulty of performing the duty or even the greater ease of obtaining evidence of the contrary fact, the judge may assign the burden of proof in a different way, provided that he or she does so by a reasoned decision.
34 How long do private antitrust cases usually last (not counting appeals)?
It is difficult to affirm how long private antitrust cases usually last because the discovery phase can take a long time. For example, there is a case in which only the discussion on the claimant permission to access CADE’s proceeding dockets to quantify the damages lasted four years (Appeal to the Superior Court of Justice No. 1.554.986/SP, Reporting Minister Marco Aurélio Bellizze, judgment published on 5th April 2016). Generally speaking, a private antitrust case usually lasts at least five years (not counting appeals) in the best-case scenario.
35 Who is the decision-maker at trial?
In the Brazilian judicial process, the authority responsible for ruling the case in the first instance is the judge of the court section where the claim was filed. Juries in Brazil are not used for civil proceedings, but only criminal. In the second instance, the case is ruled by a court composed of three judges, which can be extended to five judges depending on the appellate developments (Judicial Chamber).
Damages, costs and funding
36 What is the evidentiary burden on plaintiffs to quantify the damages?
As a general rule, the claimants must prove the alleged damages. However, as discussed in question 33, in view of the peculiarities of the case related to the impossibility or the excessive difficulty of performing the duty or even the greater ease of obtaining evidence of the contrary fact, the judge may assign the burden of proof in a different way, provided that he or she does so by a reasoned decision.
37 How are damages calculated?
In general, damages are calculated by an estimate considering the actual situation with an illicit (factual) and hypothetical scenario without an illicit (counterfactual). Damage quantification methods usually used are the following: comparator-based – use data from sources external to the illicit to calculate the hypothetical situation, comparing other markets, other periods or both; financial-analysis-based – based on the analysis of financial performance or on the use of financial tools that identify changes; and market-structure based – using theoretical models, estimates and assumptions based on industrial organisation models.
38 Does your country recognise joint and several liability for private antitrust claims?
Yes, if the offence has been carried by more than a single party – such as in a cartel, for instance – all the offenders are jointly liable for the indemnification.
39 Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?
Yes, according to the current law, a defendant can seek contribution or indemnity from other defendants, including leniency applicants or third parties, considering that they have participated in the illicit. However, as mentioned in question 6, the bill under discussion at the House of Representatives (Bill of Law No. 11,275/2018) proposes a change in this regard, so that immunity and leniency applicants may be held responsible only for the damage they have caused to the injured parties, with no joint and several liability for the damages caused by the other defendants. Also, the law makes a clear distinction between contribution and indemnity in antitrust cases. Pecuniary contribution is negotiated with the antitrust authority and is part of the obligations assumed under agreements executed with the antitrust authority (CADE). Indemnification is due to those harmed by the illicit only when they initiate a judicial claim for that and obtain a condemnatory decision that recognises the damages suffered.
40 Can prevailing parties recover attorneys’ and court fees and other costs? How are costs calculated?
The proceeding costs, such as initial and appeals costs, and fees of the judicial expert, among others, are recovered by the prevailing parties. These costs do not include contractual attorneys’ fees. However, the defeated party pays attorneys’ fees to the prevailing party’s attorneys (not to be mistaken with the contractual attorneys’ fees). Each federal or state court has its specific table of percentages for calculating the proceeding costs (as initial and appeal costs), which are based on the value of the claim (which generally reflects the economic benefit intended by the claimant). The expert fees are informed by the expert in the proceeding and the parties are entitled to contest them. On the other hand, the attorneys’ fees to be paid by the defeated party to the prevailing party’s attorneys shall be set at between a minimum of 10 and maximum of 20 per cent of the amount of the award, of the economic gain obtained or, if it cannot be measured, of the value of the claim.
41 Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?
Yes. The beneficiary of free legal aid (e.g., a natural or legal person, Brazilian or foreign, who provides evidence of its inability to pay court costs, procedural expenses and attorney fees) is exempted from paying the proceeding costs. However, the concession of free legal aid does not exempt the beneficiary from liability for the payment of procedural expenses and attorney fees arising from loss of suit. If the beneficiary is defeated, the liabilities arising from loss of suit shall have suspended enforceability and can only be executed if, within five years following the final decision that certified them, the creditor proves that the situation of lack of financial resources ceased to exist, after which period the beneficiary’s obligations shall be discharged.
42 May attorneys act for claimants on a contingency or conditional fee basis? How are fees calculated?
Contractual fees are defined and agreed by and between the attorney and its client. The Brazilian Bar has precedents according to which the contractual success fee in civil cases may not be higher than 20 per cent of the total amount received by the represented party. As for the attorney fees defined by court, they are set between a range of 10 per cent and 20 per cent of the total amount under dispute.
43 Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?
Theoretically, yes, but such practice is still developing in Brazil and there is no regulation on the subject so far.
44 May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?
There is no legal impediment related to insurance against the risk of private antitrust claims, but it is not a common practice in Brazil at this time.
45 Is there a right to appeal or is permission required?
There is no permission required; however, appeal is subject to court fees and may pose additional financial burdens on the party that has appealed if the decision is not overruled by the appellate court.
46 Who hears appeals? Is further appeal possible?
In the Brazilian judicial system, there are two instances: the first and the second. The second instance is the federal or state tribunal, which are composed by chambers of judges who hear appeals from final judgment. However, there are many kinds of appeals provided by the Brazilian Code of Civil Procedure, as follows:
- appeal from final judgment;
- interlocutory appeal;
- internal interlocutory appeal (filed before the same court that issued the interlocutory order);
- motion for clarification (filed before the same court that issued the decision);
- ordinary appeal (used to appeal in the action for a writ of mandamus);
- special appeal to the Superior Court of Justice;
- extraordinary appeal to the Federal Supreme Court;
- interlocutory appeal in a special or extraordinary appeal; and
- appeal against a divergent decision (filed before the Superior Court of Justice or the Federal Supreme Court).
Special appeal to the Superior Court of Justice and extraordinary appeal to the Federal Supreme Court are considered further appeals, but they are only accepted if the appeal deals with matters of ordinary federal law or a constitutional matter, respectively.
47 What are the grounds for appeal against a decision of a private enforcement action?
The right to appeal is set forth in Brazilian Code of Civil Procedure and the appeal from final judgment is usually used as a review of the first instance decision where each and every aspect of the decision may be reviewed at the appealing party’s request. Other than procedural grounds, material grounds must be analysed and discussed case by case.
Collective, representative and class actions
48 Does your country have a collective, representative or class action process in private antitrust cases? How common are they?
Yes, but it is not restricted to private antitrust cases. In Brazil, public civil actions and class actions are usually applicable to defend diffuse, collective, and individual homogeneous consumers and victims’ rights. Although they are often used in consumer and environmental issues, the use in private antitrust cases is still developing.
49 Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?
The following persons can bring a class action:
- public prosecutor’s office;
- the federal government, federal district, states and municipalities;
- entities and bodies from public direct or indirect administration charged with the protection of consumer rights, the economic system or free competition; and
- an association established for at least one year to engage, among other institutional purposes, in the protection of consumer rights, the economic system or free competition, which can include consumer associations and trade or professional associations.
Regarding the public civil actions, they can be brought by the following persons:
- public prosecutor’s office;
- public defender’s office;
- the federal government, federal district, states and municipalities;
- independent government entities, government-owned companies, foundations and mixed-capital companies; and
- an association established for at least one year to engage, among other institutional purposes, in the protection of consumer rights, the economic system or free competition, which can include consumer associations and trade or professional associations.
50 What is the standard for establishing a class or group?
A class or group is formed by individuals and companies with individual homogeneous rights resulting from the same event (such as an anticompetitive illicit) that can go to court collectively represented by an association of the class or group.
51 Are there any other threshold criteria that have to be met?
No, there is no other threshold criteria that have to be met.
52 How are damages assessed in these types of actions?
Damages are assessed in these types of actions based on the same methods explained in question 37. Damages are generally calculated in the discovery phase, but the compensation of damages is individual, and each party has the burden of providing individual evidence related to its own damages: if there is a discussion related to a surcharge, the amount of surcharge is calculated in the discovery phase and set forth in the court decision, but each individual party must provide evidence of how many items it has bought to collect its surcharge indemnification.
53 Describe the process for settling these claims, including how damages or settlement amounts are apportioned and distributed.
Settling these claims would require the class representative to have specific powers to do so: each individual or company represented by the class must grant its representative powers to settle. In practical terms, a settlement in a class action is highly unlikely for it would not be binding to all parties represented in the lawsuit unless each one of them agreed with the settlement terms.
54 Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?
See question 53.
55 Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?
Imposing mandatory redress schemes is not a penalty set forth in the Brazilian Antitrust Law. However, CADE incentives voluntary redress schemes. For example, in the context of leniency agreements, CADE has recently started adopting a 15 per cent discount clause in the amount of the pecuniary contribution if the offender repairs the damage caused to third parties due to the illicit.
Arbitration and ADR
56 Are private antitrust disputes arbitrable under the laws of your country?
Yes, in Brazil any dispute related to disposable economic rights is arbitrable under the law. In fact, the bill under review at the House of Representatives provides that leniency applications (cease-and-desist agreements entered into with CADE) must submit any antitrust private damages claims to an arbitration court if the claimant expressly agrees with it.
57 Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?
Brazilian courts have been very keen on enforcing agreements to arbitrate any sorts of disputes except when there are formal issues related to the agreement or legal issues related to the arbitration clause itself.
58 Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?
Yes, courts usually recommend conciliation, mediation and other forms of alternative dispute resolution before starting and during a proceeding. The Brazilian Code of Civil Procedure sets forth that judges, lawyers, public defenders, and prosecutors must encourage the use of conciliation, mediation and other methods of consensual dispute resolution, even during the course of proceedings. Moreover, some courts have established judicial centres for consensual dispute resolution, responsible for holding conciliation and mediation sessions and hearings and for the development of programmes aimed at assisting, guiding and encouraging the resolution of disputes by the parties themselves.
59 Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?
To promote private antitrust enforcement, CADE has issued Resolution No. 21/2018 determining the procedures for third parties to access documents and information obtained by CADE during its investigations. Also, the bill under discussion before the House of Representatives (Bill of Law No. 11,275/2018) is an important initiative aiming at fostering Brazil’s culture of private antitrust enforcement. It proposes changes in articles of the Brazilian Antitrust Law to encourage parties to file claims seeking damages in court, suggesting, for example, the following amendment: harmed parties will be entitled to double redress for damages suffered as a result of an anticompetitive infringement, notwithstanding the sanctions applied in the administrative and criminal spheres to the plaintiffs. Bill of Law No. 11,275/2018 is currently under review before the House of Representatives and shall also be subject to the president’s sanction in the coming future.
60 Give details of any notable features of your country’s private antitrust enforcement regime not covered above.
Private antitrust enforcement in Brazil is still at an early stage, which is evidenced by the reduced number of precedents and the lack of uniformity of the decisions. The main challenges faced by those who intend to file a private antitrust claim involve the uncertainty on how to apply the statute of limitations (there are important discussions on how to define when the limitation period should commence), and the burden to prove and calculate the actual damages that should be compensated (considering that there are no punitive damages in Brazil and that the actual damages suffered by cartel victims are not addressed by CADE’s findings).
In research carried out by the Brazilian Institute for the Study of Competition, Consumer Affairs and International Trade – IBRAC Antitrust Litigation Committee, released in October 2018, it was found that, from 1994 to June 2017 (over a period of more than 22 years), 86 proceedings involving damage claims arising from cartel were processed in Brazilian courts (which includes federal and state courts, in addition to the Superior Court of Justice and the Supreme Federal Court). Of these 86 cases, only 31 were related to administrative proceedings at CADE – more specifically, these 31 cases were related to five cartel cases ruled by CADE (and 55 are stand-alone claims), whereas between 2012 and June 2017 (over a period of about five years), 62 cartel cases were condemned by CADE. This means that the number of cartel cases convicted by CADE that result in damage claims remains very low.
1 Eduardo Caminati Anders and Marcio de Carvalho Silveira Bueno are senior partners, Luiz Fernando Santos Lippi Coimbra is a partner and Ana Cristina Von Gusseck Kleindienst is a senior associate at Caminati Bueno Advogados.