Tutela coletiva e regulação econômica: o efeito regulatório das ações coletivas

Abstract

That class litigation produce regulatory effects is a reality that seems to be tacitly recognized by procedural scholarship and of which significant part of those who use the tool seem to be unaware. Thirty years ago, it would not have been possible to consider crossing class litigation and economic regulation. After the maturing of these bodies of law, it is now possible to explore, with more solid grounds, something that was already printed in Brazilian class actions since its foundation: its regulatory enforcement potential. This work seeks to understand how does operate the regulatory effect of class litigation. Assuming a residual relationship between class litigation and state regulation, it seeks to answer the following questions: (i) is it possible, from a theoretical point of view, to go beyond the traditional notion that connects class litigation to the protection of rights, in order to see it as true regulation technique? (ii) how does it function, in practice, the regulatory effect of class litigation? (iii) how can we conceptualize and which features of the Brazilian procedural system determines the regulatory enforcement potential of class litigation? The research adopts the method of functionalism, examining foreign experiences with class actions filed against heavy-duty diesel engines, cigarettes, firearms, lead-based paint, silicone breast implants and asbestos manufacturers. These experiences are examples of what foreign scholarship called “regulatory litigation”, translated and explored in this work, in the light of the singularities of the Brazilian procedural system, as “litigância regulatória”. After demonstrating how class litigation fits into the regulation theory, explaining what this regulatory effect is, and how it functions, the research concludes that Brazilian class actions are a regulatory strategy. Becoming aware of this means to review, in a regulatory rather than exclusively procedural manner, several features of the Brazilian class action theory, which was carried out in the last chapter of the work. In the end, the six main features, within the Brazilian procedural system, that determine the reach of the regulatory enforcement potential of the class litigation are identified and explored.