Settlement Agreements Executed In Commercial Class Actions Do Not Require The Refunding Of The Full Claimed Amount

Author:Mr Martín Torres Girotti
Profession:M & M Bomchil

The Commercial Court of Appeals has recently settled the controversy about the percentage of return admissible in settlement agreements executed in commercial class actions, accepting the refund of just 60% of the claimed amount instead of the full amount.

The decision was handed down by Chamber "A" in "Re Unión de Usuarios y Consumidores v. Banco de Corrientes S.A. on ordinary proceedings" ("Unión de Usuarios y Consumidores c/ Banco de Corrientes S.A. s/ ordinario"), in which the plaintiff (i) questioned the value of the collective life insurance over the debit balance collected by the defendant to its clients; and (ii) requested the refund of the sums collected by the defendant during ten years prior to the complaint, for the difference existing between the questioned value of the insurance and the value sustained applicable by the plaintiff.

After a long dispute, the parties reached a settlement agreement contemplating the refund of 60% of the difference between the amounts collected by the bank to its clients and paid by the former to the insurers, in the three-year term prior to the complaint until the approval of the agreement.

The Public Prosecutor and the first instance Judge rejected the agreement considering that there were no elements to establish the reasonableness of such percentage.

Once the decision was appealed, the Public Prosecutor before the Court of Appeals shared the opinion of her first instance colleague against the percentage of return as well as her request that the full amount should be determined by an accountant expert.

In order to rule on the appeal, the Court of Appeals recalled that it is possible to enter into settlement agreements within the framework of consumer class actions, especially when such actions involve disposable economic interests, provided that the conditions set forth in section 54 of the Argentine Consumers Protection Law No. 24,240 are met. These conditions are: (i) contemplating the right of exclusion of the class members who want to depart from the agreement; (ii) obtaining the approval of the settlement agreement through a founded ruling; and (iii) giving notice to the Public Prosecutor so that he decides about the appropriate consideration of the interests of the affected class.

In connection with the full amount at stake, the Court of Appeals dismissed the petition for determining it through an expert on the ground that it was sufficiently proved with...

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