12/08/2025
The Superior Court of Justice (STJ) is set to decide whether, in consumer disputes, consumers must first attempt to resolve their issues through out-of-court channels—such as Customer Service, Procon, or the platform Consumidor.gov.br—before filing a lawsuit. This ruling could significantly reshape access to justice for millions of Brazilians.
In admitting the matter for judgment under Theme 1396, Minister Ricardo Villas Bôas Cueva introduced the following controversial thesis:
“To define whether or not proof of a prior attempt at out-of-court resolution of the controversy is dispensable for establishing the interest in filing a lawsuit in actions of a contractual/service-related nature within consumer relations.”
The controversy centers on the concept of “interest in filing a lawsuit”—a legal requirement for exercising the right to sue. This principle demands that the judicial route be shown to be both necessary and useful for resolving the dispute.
On one side, large companies argue that requiring consumers to attempt an out-of-court solution first would help reduce the burden on the Judiciary, fostering faster and more cost-effective agreements. They claim that many simple conflicts could be resolved through the company’s own service channels or through consumer protection agencies such as Procon.
Conversely, the dissenting position—supported by the Public Prosecutor’s Office—argues that this requirement violates the constitutional principle of Inviolability of Jurisdiction (Article 5, XXXV, of the Brazilian Federal Constitution), which guarantees that the Judiciary cannot refuse to consider any injury or threat to a right. In other words, this reasoning asserts that consumers cannot be compelled to complete a step not provided by law—such as an out-of-court attempt—before having their case heard by a judge.
Because this matter falls under the Repetitive Appeals procedure, the outcome of Theme 1396 will establish a nationally binding rule for all judges and courts. Until then, all cases addressing this issue remain suspended, as determined in the decision to assign the discussion.
If the STJ upholds the requirement, consumers will need to prove they attempted an out-of-court solution before suing a service provider or product supplier—otherwise, their case may not even be analyzed by the Judiciary. If the requirement is rejected, access to justice will remain unchanged.
While the decision is still pending, one recommendation stands out: although consumers are not legally obligated, seeking a consensual resolution is often the best path. Through direct negotiation, conciliation, or mediation, parties can build solutions together that, if successful, leave both sides more satisfied and avoid years of judicial delays. For this purpose, consumers can use channels such as the company’s Customer Service, Procon, and the platform Consumidor.gov.br.
Finally, it is crucial to document every interaction with the company during these attempts. Keeping a detailed record can make all the difference if the dispute eventually reaches the courts.
Co-authored by: Marco Antônio Garcia Lopes Lorencini and Bruno Braga Boccia
