Doubts about the statute of limitations applicable to damages lawsuits remain



The request for opening an Incident of Resolution of Repetitive Demands (IRDR) which could standardize the São Paulo State Courts’ understanding on the applicable limitation period for cartel damages claims was rejected. The decision was rendered on November 10, 2019 by Judge Luis Mario Galbetti of the Court of Justice of São Paulo (TJSP).

The IRDR was filed in the context of damages lawsuits related to the cartel in the cement/concrete market, condemned by the Administrative Council for Economic Defense (Cade), and was brought by Integral Engenharia Ltda. The author requested the application of a three-year limitation period, to be counted from Cade’s final decision.

In the Judge’s opinion, the IRDR would not have met the admissibility requirements, considering that there are no significant number of court decisions dealing with the subject and no risk of legal uncertainty. Only two lawsuits would have been identified that were dismissed specifically on the grounds of the statute of limitation. The other cases referred to in the plaintiff’s petition were dismissed due to other issues, such as the absence of evidence of damages.

Therefore, he concluded that the analysis of the statute of limitations applicable to damages lawsuits for competitive damages will continue to be carried out on a case by case basis. The decision is still subject to appeal.