EXECUÇÕES JUDICIAIS PECUNIÁRIAS DE PROCESSOS COLETIVOS: ENTRE A FLUID RECOVERY, A CY PRES E OS FUNDOS

Abstract

The aim of this paper is to analyze the existence and role of a fluid recovery within the execution of pecuniary convictions involving class actions. In these cases, Brazilian Law says that the amount should be directed to a fund which, in turn, will take care of recomposing the legal asset. This has been referred by the doctrine as reparação fluida or fluid recovery in English originally, in an allusion to its application in the class action context in the United States. Thus, primarily, using the comparative methodology, the configuration and application of this institute in the US system, where it is outlined and denominated cy pres, is sought to be explored. The current recipient of the amount resulting from the convictions, which are the administrative funds, are also analyzed, especially the most prominent of them, and a paradigm for the others, that is the Fund for the Defense of Diffuse Rights (FDD). Having established the necessary differences between a fluid recovery and the allocation to the funds, the possibilities that a comparative study of this institute can contribute to the improvement of the protection of collective rights in Brazil is analyzed.

Keywords

• execution of class actions
• fluid recovery
• cy pres
• Fund for the Defense of Diffuse Rights (FDD)
• CERCLA Superfund