When it comes to “predatory litigation”, we generally deal with the filing of a large volume of lawsuits, with standardized requests for relief, which address identical objects and generic allegations, involving parties considered vulnerable (e.g., the elderly, illiterate or indigenous people), in which undue advantages are sought.
In these actions, it is quite common that, when summoned by a process server and/or attending hearings, the plaintiffs of such lawsuits state unawareness of the lawyer they supposedly had appointed and even the content of the judicial relief, a fact that implies the absence of free and informed consent of the party in relation to the object of the dispute and its participation in the process.
Situations of this nature have become increasingly common and, hence, have drawn great attention in the country, since they raise the costs for the judicial system and make access to justice increasingly time consuming.
Owing to the extremely harmful potential to the actors and institutions involved in the proceedings, the Brazilian Judiciary Branch has been urged to speak out vehemently against this harmful conduct, adopted by some professionals.
In a recent decision, the Tenured Judge of the Single Court of the Judicial District of Riachão das Neves, Bahia, dismissed without prejudice five hundred and fifty-two (552) actions, for having found the lack of standing and/or interest in the suit (provision contained in Article 485, VI, of CPC (Code of Civil Procedure)), in addition to highlighting the evident bad faith of the parties’ lawyer who assigned claims for the same object to the detriment of assorted financial institutions.
In their statement, the judge pointed out that the “warning signal” came from the Court of Appeals of Mato Grosso do Sul, before which this same lawyer had already filed more than forty thousand (40,000) judicial reliefs. In investigating the case, the Intelligence Center of this Court (CIJEMS) found the “widespread practice of this predatory action for other units of the Federation, namely: Mato Grosso, Tocantins, Bahia, Minas Gerais, Paraná, Santa Catarina, Rio Grande do Sul etc.” and issued Technical Note No. 01/2022, in which it exposes details about the incident.
According to this note, “the standard of performance of said lawyer, which proved to be identical between 99% and 100% of the cases chosen by sampling,” is characterized by conduct that causes strong suspicion, such as: (i) the absence of documents that prove prior measures, (ii) the request for waiver of conciliation hearing and (iii) the existence of generic powers of attorney, among others.
There is also information that several investigative procedures initiated by the Public Prosecution Office of several units of the federation count against this lawyer, in addition to multiple ethics investigation procedures in sections of the Brazilian Bar Association.
Still with regard to the case under discussion, the judge who rendered the judgment in question stressed that they found that “people have filed actions for damages against their lawyers owing to the lack of knowledge of the filing of actions in their respective names and/or the non-receipt of compensations arbitrated in their favor.”
Throughout the twenty-nine (29) pages that make up the judge’s statement, there was focus on the circumstances of this extraordinary event, thoroughly exposing the traits of the predatory practice and the performance of the lawyer in the court system of the State of Bahia, with emphasis on the unlawfulness of these actions.
Aware of the exceptional caution required in the case, the judge was concerned with introducing the countless evidences of unlawful customer acquisition by the lawyer and pointed out that sometimes the parties claim to have signed the powers of attorney, but without obtaining prior knowledge about how and for what purposes they would be used.
At this point, the judge introduced the prints of the powers of attorney entered of record and verified that the lawyer produced true fabrications, since “many of these powers of attorney are photocopies or were digitized with one sheet superimposed on the other, in which one contains the qualification of the ‘client’ and the other, the powers supposedly “granted,” which resulted in great nonconformance of the document.”
In addition, the judge notes that this fact “implies that they were prepared separately” and states that “due to the way they were prepared, these powers of attorney are not expected to have the reliability that the legal act needs.”
For these and other reasons, detailed in the decision, the judge ruled that the lawyer availed of fraudulent demands, in abuse of rights.
Lastly, the judge rightly concluded that, “In curbing these practices harmful to judicial relief, the right to health, food, housing, freedom, among other fundamental rights is protected, which are no longer evaluated promptly and effectively because the judicial unit is full of fabricated litigation, even impacting the analysis of urgent demands and with legal priority.”
It should be stated that, in addition to being the result of the individual effort of the judge, this decision stems from compliance with the guidelines issued by the National Council of Justice within the scope of Recommendation No. 0000092-36.2022.2.00.0000, issued on February 08, 2022, in order to fight the phenomenon of unbearable demands, which already have national reach.
In the case in question, the financial institution (which appears as defendant of record) was represented by the law firm Ernesto Borges Advogados.
Decision rendered in Case No. 8000315-28.2020.8.05.0210.
Available at: https://www.jornaljurid.com.br/doutrina/civil/exercicio-de-litigancia-predatoria-ocasiona-extincao-de-centenas-de-acoes-judiciais-em-riachao-das-neves
Autor: Camilla Dias G. Lopes dos Santos • email: camilla.santos@ernestoborges.com.br • Tel.: +55 61 98666 0542
