Abusive litigation: the cost of pretending to fight

There is a type of activity that has grown in Brazil even without producing wealth, without generating real value and without bringing any social gain. On the contrary: it makes the functioning of Justice more expensive, increases the costs of companies and, at the end of the chain, it also weighs on the consumer.

That’s what this is about: abusive litigation on a scale.

The numbers are impressive. In the State of São Paulo alone, this type of litigation was estimated at between 300,000 and 600,000 active cases. The cost to São Paulo’s public coffers, in five years, already exceeds R$16 billion. And the phenomenon represents something close to three in every ten civil lawsuits in state courts.

It is too big a problem to continue being treated as a one-off deviation.

I write this article as a corporate lawyer. I make this note right away because I know that, for some, this would be enough to try to disqualify the argument. But it would be a mistake. The point here is not just of interest to companies. It is also of interest to the consumer, who often appears in this system not as a beneficiary, but as a part of use.

A litigation model that has become scale

In many cases, what we see can no longer be confused with legitimate judicialization: practically identical petitions distributed in series in different districts; authors who do not attend hearings or appear without knowing what is being discussed; offices concentrating disproportionate shares of distribution.

The survey by the São Paulo Court of Justice is revealing: between 2021 and 2024, just 37 offices accounted for 38% of all consumer actions distributed in the capital’s civil courts. The remaining 62% were spread across more than 16 thousand offices. This data, alone, should already raise an alert.

The situation becomes even more delicate when faced with another number. According to data from Febraban, the largest Brazilian banks identified only 0.03% of fraudulent contracts in 2023. At the same time, the number of actions alleging irregular contracts exploded. Fraud falls. Administrative complaints fall. Processes go up. It does not seem reasonable to treat this discrepancy as a statistical coincidence.

The consumer also loses

In many cases, the consumer is not just the formal character in the process. He may also be a victim of the way this litigation is operated.

This happens when collectors or volume offices use data and documents to file series of actions without the person understanding what they have authorized or, in more serious situations, without even being fully aware that their name has been taken to the Judiciary. The economic gain is concentrated in the chain that structures demand. Often, the consumer receives nothing and still has their identity linked to a process of which they barely know the content.

There is also a second, more silent loss. Every company that faces volume litigation provisions for this risk, and the provision does not disappear into thin air: it enters the account and affects price, tariff, spread and operational costs. According to Febraban, four banks spend around R$500 million per year on actions classified as abusive. That cost goes somewhere. And that place is often the price everyone pays.

What has already been done and why there is still little

The CNJ issued Recommendation 159/2024, with parameters to identify and treat abusive litigation. The STJ, in Topic 1,198, established a binding precedent authorizing the judge to require the plaintiff to demonstrate interest in acting when there is evidence of abusive filing.

Still, the institutional response remains insufficient. When internal systems already allow us to see repetitions, concentrated authorship and procedural behavior outside the curve, these elements need to be transformed into institutional action, not just recorded in individual decisions.

The role of the OAB

The OAB has a Code of Ethics, disciplinary structure and institutional legitimacy to act. Still, the consolidated perception in the legal community is that the entity’s response has been slow in the face of a phenomenon that the Judiciary itself already sees as structural.

An episode that occurred in Bahia is illustrative: in May 2024, it was the Court that ordered the local section of the OAB to suspend the registrations of four lawyers who sponsored 32 thousand cases in the Special Consumer Courts. The movement came from the Judiciary. There were also reports of lawyers taking information about suspicious patterns to the Federal Council without receiving feedback.

The OAB has legitimacy and instruments to act. What is expected is that you use this capacity with the same firmness with which you protect professional prerogatives. There is no incompatibility between defending the law and facing serious misconduct committed in its name. In fact, one thing depends on the other.

What needs to change

Three fronts deserve urgent treatment. Cross-referencing data on authorship, standardization of petitions and behavior at the hearing should feed automatic communication mechanisms to the OAB and the Public Prosecutor’s Office. A problem with this scale cannot depend on the isolated perception of each judge.

The OAB needs to act more quickly in ethical processes and with a firmer response when there is consistent evidence. The credibility of the legal profession is also protected when those who transform the process into an instrument of exploitation are removed.

And the consumer needs to be informed. Many people still do not understand what it means to sign a power of attorney or what rights they have in relation to the process carried out in their name. A vulnerable consumer inserted into this gear without full understanding is not a partner in fraud. He is her victim.

The problem is not access to justice. The right to action is fundamental and cannot be treated as an obstacle. The problem lies in the repetitive and instrumental use of the process as a mechanism of economic pressure, with benefits concentrated for a few and costs spread throughout society.

This does not strengthen the justice system. On the contrary, it erodes its credibility and increases damage that is no longer just procedural.

*This text does not necessarily reflect the opinion of Jovem Pan.