In other cases, however, prospective plaintiffs are much more creative: it is reported that a number of municipalities are organising a class action against Poste Italiane for inefficiencies in the postal service; a consumers’ association is soliciting support for a class action to recover damages caused by the refuse collection emergency in Campania; an Italian political party is searching support for a class action against Alitalia for the cancellation of international routes by and from Milano Malpensa Airport; and a major consumers’ association has threatened a class action by the producers of buffalo mozzarella cheese that have been damaged by the dioxin alarm launched in the past weeks. The list could continue.
There are several points of view from which one can consider this story. From the lawyer’s perspective in particular, a number of relevant questions arise from looking at recent class action threats bearing in mind the newly-enacted law. We cannot and do not intend to comment on the merits of the proposed actions, for we do not know the underlying facts nor do we yet know the precise content of the threatened actions. But based on what has been reported by the press and the internet, however, it is possible to raise a few questions.
The provisions on class actions have been inserted in the consumers’ code (Codice del Consumo, Legislative Decree No. 206 of 2005), a comprehensive law on the rights and actions of consumers (a consumer is defined by the consumer code as any natural person who is acting for purposes not relating to his trade, business, craft or profession) in their relationship with ‘traders’ (a trader is defined as any natural or legal person who is acting for purposes relating to his trade, business, craft or profession). The opening provision of the new articles of the code states that the “collective damages action” is introduced as a new general instrument of protection “for the rights of consumers”; the main provision of the new law states that a class action can be brought to recover damages suffered by consumers. Standing to sue is given to consumers’ associations and committees. On the other hand, the law does not specify against whom a class action can be brought; the new provisions, however, refer to the defendant of the action using the word ‘firm’ (impresa).
The meaning of all this is not clear. A few notations are in place, however. Class action in itself is a procedural instrument; the legislator could have introduced the action in the code of civil procedure, as is the case for class actions in US federal rules of civil procedure. It has not done so, however. On the contrary: it has chosen to introduce class action in the consumers’ code to protect consumers’ rights against unfair and unlawful practices (by firms, it would seem). The question is, therefore: are the mozzarella cheese producers ‘consumers’ for the law’s purposes? Given the definition of consumers contained in the code, they would seem to belong to the category of ‘traders’, instead. On the other hand, are the citizens of Campania ‘consumers’ with regards to garbage gathering, considering that this service is not paid for directly with a price but it is paid through taxation? And who would the defendant be in this case? The state (or, better, the municipality or the
The point is that it is not at all clear which type of rights can be litigated through a class action nor which type of damages can be recovered — other relevant dubious cases are represented by pure mass torts where no consumers-to-firm relationship exists, and securities litigation — think about damages caused by insider trading, false statements or accounting irregularities.
Another question regards the substance of the claims. Without discussing the merits of the individual threatened actions, it has to be underlined in general that the class action is aimed at the recovery or, at least, at a judicial decision stating a right to recovery of unlawful damages. This means damages deriving from unlawful conducts, whether a breach of contract or a tort. For some of the threatened actions, the fulfilment of this condition does not appear as obvious. For example, think about the cancellation of routes by Alitalia: this decision may certainly affect people who were able to fly directly from Malpensa to one of the cancelled destinations and now may be forced to choose an indirect flight — we can even assume that they would have to pay a higher price. But is this an unlawful damage? Does the conduct by Alitalia violate a law or a contractual obligation towards clients?
Again, the question is not the single case; the general point is that one has to be very cautious in soliciting and promoting actions that could prove to have little merit and, in any case, that appear to have scant probability of success. Consumers and individuals in general have little incentive to get to court to begin with. Given that the class action system in
Alberto Toffoletto is managing partner and Alessandra Stabilini is an associate at NCTM.
ItalyJune2008
