Innovative Solutions for Large-Scale Consumer Litigation

The exponential increase in the volume of legal actions in the Brazilian judiciary has raised concerns about the efficiency and speed of judicial services. This is because the continuous growth in litigation compromises the ability of courts to focus on cases that would truly require their intervention, adversely affecting citizens who turn to the judiciary to resolve legitimate issues. It is in this scenario that the phenomenon of predatory litigation emerges.

Characterized by the massive and standardized filing of lawsuits based on weak or fraudulent grounds, this type of practice is often conducted by groups of lawyers who encourage consumers to file lawsuits based on the promise of quick financial gains, often without proper substantiation, full awareness of the clients themselves, or prior attempts at extrajudicial resolution.

The concern over predatory litigation has led the National Council of Justice (CNJ) to issue new regulations to curb such abusive practices. The latest, Recommendation No. 159/2024, approved under the presidency of Minister Luís Roberto Barroso, brought clear guidelines for addressing the issue. The recommendation defines as abusive those behaviors or demands without adequate evidential basis, that are reckless, artificial, dilatory, frivolous, fraudulent, unnecessarily fragmented, constitutive of procedural harassment, or violative of the duty to mitigate damages, among others.

Essentially, the Recommendation aims to ensure that the guarantee of access to justice can be effectively exercised by optimizing the resources available to deal with mass claims, curbing abusive litigants, and thereby favoring those who genuinely seek the judiciary to secure legitimate interests.

Moreover, the recent guidance provides for the adoption of specific judicial measures for concrete cases of abusive litigation, including the accountability of lawyers who repeatedly and disloyally act – in line with the previous Recommendation No. 127/2022, which already guided courts to adopt precautions to curb predatory litigation that could restrict the right to defense and limit freedom of expression.

Given the growing volume of actions, the identification and monitoring of predatory litigation practices have become priorities for companies, law firms, and the judiciary.

In this context, the use of technology has proven essential for detecting irregular patterns, identifying lawyers who adopt abusive practices, and providing support for the adoption of preventive and corrective measures. With the application of advanced algorithms, it is possible to map the profile of litigants, check the recurrence of certain legal theses, and track the volume of lawsuits filed in a short period.

Thus, the intensive use of technological tools allows for more efficient and strategic action, reducing the financial and operational impact for companies and law firms, and assisting courts in screening demands.

In 2024, in a single case, for example, our firm detected, for a banking sector client, the practice of predatory lawyering in the states of Rio Grande do Sul, Santa Catarina, and São Paulo, through our QCA 'Performa Analytics' tool, which revealed more than 1,300 lawsuits filed by the same lawyer. In response, we implemented a strategic action plan and, to date, have achieved significant results, with a dismissal rate of the opposing party's requests over 94%.

In this scenario, the tool played a key role in various stages of the process, including: (i) identifying the lawyer who filed a high volume of identical or similar cases in a short interval of time; (ii) evaluating patterns in specific demands to estimate the likelihood of success, which allowed for the definition of more precise and effective legal strategies; (iii) the use of robots that performed activities such as initial screening of the cases, filling out forms, and automated tracking of procedural movements; and (iv) identifying inconsistencies in documents or procedural steps that suggested the existence of fraud or manipulation of information, allowing for a swift and well-founded judicial measure.

The adoption of these technologies not only increased efficiency in managing processes but also strengthened our ability to identify and neutralize abusive practices, protecting client interests and ensuring greater legal security. Moreover, the strategic use of technology allowed us to act proactively, reducing the financial and operational impact resulting from predatory litigation. We continue to refine our tools and methodologies to ensure innovative and efficient legal action, always in defense of the rights and integrity of our clients.

Technological tools, however, are not the only solutions available for addressing the phenomenon of mass litigation.

Another tool used by the courts to address excessive litigation, this one procedural in nature, is the Incident of Resolution of Repetitive Demands (IRDR) – which seeks to standardize decisions in cases involving identical legal issues and occur on a large scale, as well as the Incident of Assumption of Competence (IAC), with a distinct scope. From IRDR and IAC, the court establishes a legal thesis that will be applied to all similar cases, avoiding conflicting decisions and providing greater legal security.

These procedural tools are fundamental to contain litigation, as they enable binding decisions that reduce the proliferation of identical actions and discourage abusive practices by litigants.

In this context, the decision made on 13/03 by the Special Court of the Superior Court of Justice (STJ) in the judgment of Theme 1198 arises. Rendered in the context of repetitive resources, the decision establishes that, "upon detection of signs of predatory litigation, the judge can require, in a reasoned manner and with regard to the reasonableness of the specific case, the amendment of the initial petition, in order to demonstrate the interest in acting and the authenticity of the claim, respecting the rules of distribution of the burden of proof."

The decision, made in the context of Special Appeal No. 2021665 from the Court of Justice of Mato Grosso do Sul (TJMS), discussed the possibility for the judge to demand additional documents, such as an updated power of attorney, a poverty declaration, and documentation of contracts and bank statements, in cases with allegations of procedural abuses. The established thesis, in addition to being supported by procedural provisions and the general power of caution, also aligns the documentary requirements made by judges with the CNJ's guidelines in Recommendation 159/2024.

Faced with this challenging scenario, it is imperative that companies, lawyers, and the judiciary invest in advanced technologies for monitoring and early identification of predatory practices. The technology and strategic use of procedural instruments represent a significant advancement in combating predatory litigation. By uniting efforts to identify and contain these practices, all involved promote a more agile, efficient, and accessible justice system, ensuring that legitimate demands receive the necessary attention and that public resources are used rationally and fairly.