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By Alejandro Osuna

In 2012, important changes made to Mexico's Federal Code of Civil Procedures came into effect providing for class actions. Generally, under the new rules a Class Action, a group of individuals of at least thirty who share a common factual background may file a lawsuit against a provider of goods and services, or against a polluter, and may obtain injunctive relief in the form of an order to cease and desist, and in some cases, damages. The changes should be looked at in a broader scope, as part of a general movement to provide adequate access to justice. For example, during 2011, the Mexican Constitution suffered important changes and now provides for the direct incorporation of human rights as acknowledged in international treaties. Also, the procedure to defend against constitutional violations committed by the State known as the “amparo” (literally, “protection”) has been amended to provide for some class action effects, though still pending is the publication of the new “amparo” Law. The procedural rules incorporating class actions in Mexico provide that non-profit organizations and a group thirty individuals must sign on in order for proceedings to commence. This is what is known as the “opt-in” type of Law, where only those actively involved in the litigation are deemed part of the class. The U.S., provides for what is known as an “opt-out” type rule, which means that all falling within a certain category are deemed part of the class, unless they voluntarily file a motion to be excluded for the class.

What rights may be enforced?

Under the Federal Code of Civil Procedures, a class action may be brought to enforce Diffuse Rights, Collective Rights, and Homogeneous Individual Rights. These are explained as follows:

Diffuse rights are those that may not be divided amongst the persons that benefitted by them. An example would be environmental and consumer protection rights, such as the right to a healthy environment or honesty in advertising. What is characteristic is that it is an unidentified group without any previous links, who are only connected because of a specific event. Take for example, a condo development that neighbors a bar that puts out music at huge volumes, a problem that is often complained about in some Baja California developments. Imagine a neighborhood adjacent to a fish flour plant that produces nauseous odors. In any of these cases, a class action could be brought to obtain injunctive relief to cause these environmental pollutants to turn their volumes down or to install filters. These diffuse actions would not provide damages these would have to be prosecuted individually by any person that can show he has suffered an injury that can be monetarily compensated. Collective rights are those where the members of the group are linked to each other, or to the opposing party, by a prior common relationship. The class is more definite than the members of a group seeking enforcement of diffuse rights, for example, the charging of excessive fees from a phone company, or an insurance company that refuses to cover certain diseases, which affects the collective rights of their clients. The common element here is the fact that there is contractual relationship linking all class members to the opposing party. “Homogeneous individual rights”, which are divisible individual rights with a common origin. As defined in the Law, these are rights whose enforcement may be sought to enforce individual rights and interest, derived from common circumstances, whose purpose is to obtain from a third party the specific performance of a contract or its rescission with all of the legal consequences per the applicable law. An example can be the pollution of a bay, there are inhabitants that may have been injured by the pollution, while other people might have developed health problems, while fishermen or landowners may have suffered property damage. There is a common origin, though not necessarily a common result. The common origin is not necessarily a single event: it may be conduct dispersed in time and space, provided that the facts are so intimately related that they are considered one and the same. The group could file a Diffuse Class Action the complaint and demand relief in the form of an injunction to stop the bar from putting out such loud music. Another aspect worth noting is the fact that the changes made to the Constitution and the Federal Rules make class actions a Federal question, thus granting the District Courts exclusive jurisdiction. The question as to whether States that enacted class actions statutes prior to the changes will survive.

Standing to sue

Under the rules in the Federal Code of Civil Procedures, there are three groups that may institute class action proceedings in Mexico. The first group is comprised of Government watch-dog agencies charged with consumer, environmental, financial services and anti-trust supervision, as well as the Federal Attorney’s Office. The second group is that which is comprised of at least thirty individuals that have a claim. Finally, the third group are NGO’s that were created to defend the rights they which to assert as a class.

The Opt-in Rule

In the US a party to a class action is one that falls within an identifiable group of individuals, regardless of whether the affecter party has willingly filed a complaint. If a person falls within this group, he may opt out of the action. Under the Mexican Rules for class actions, only those parties who are directly are part of the complaint. If a person wishes to join, he or she must file a request to become a part of the action.

Statute of Limitations

Under the Federal Procedures Code, there is a three and a half year statute of limitations to file a class action. If the injury is one of continuous nature, the period shall begin to lapse as of the last date on which the wrongful conduct took place. Are class actions new to Mexican Legislation? For many years, the Federal Consumer Protection Law provided for collective of class actions, but this procedural device was seldom used, since only the Director of this Agency had exclusive standing to sue. In fact, there were some decisions handed down by Federal Courts involving cases filed by the General Attorney for Consumer Affairs, who had prosecuted cases against real estate developers, airlines, and mobile phone companies based on the Federal Consumer Protection Law. There were also some collective actions that could be instituted by Agrarian Communities under Mexico´s Agrarian Law.
The Relief Available in Class Actions

Under the new legislation, the Federal Courts are required to decide the cases based on the Law. However, the judge may order that things be returned to the status quo ante, if this is possible. This return of things to the previous state may consist in the performance of one or more actions or an order to desist. In cases where returning things to their previous condition is not possible, the Judge shall order for substitute performance, in accordance with the affected rights. The amount that is so ordered shall be deposited in a Fund to be administered by the Federal Judicial Council, to be used to cover expenses incurred in these cases including legal fees.

Evidentiary Issues

Under the new rules, the Judge may receive all kinds of evidence that is obtained from any person, document or thing, either ex-parte or ex officio, provided that it has an immediate relation to the disputed facts. A judge may also order, at his discretion, the production of information or means of evidence that is necessary to better decide the case or in order to enforce his decision. Additionally, a Judge may take into account statistical information, or actuarial, or of any other means scientific means. The judge may also take into account the statements, written or verbal, made by third parties who appear as amicus curiae, or in any other capacity, provided that their submission is relevant to the matter of the dispute, and that the third parties do not have a conflict of interest regarding the parties. It is not required that each member of the class submit their individual evidence. Individual monetary claims shall be made by each member filing his own separate motion which includes a liquidated amount of the money he claims he is owed.

For additional reading, we suggest: “Class Actions in Brazil: A Model for Civil Law Countries”, by Antonio Gidi, The University of Houston Law Center.