Thursday, October 15, 2009
Among the many cases for which the Supreme Court denied certiorari this week was DTD Enterprises Inc. v. Wells (No.08-1407). Our readers may be interested in a statement that Justice Kennedy issued in the case (joined by Chief Justice Roberts and Justice Sotomayor). Although he agreed with the denial of certiorari, Justice Kennedy wished to "notethat the petition for certiorari does implicate issues of constitutional significance."
A New Jersey trial court had certified a class action against a commercial dating referral service and ordered that the dating service bear all costs of class notification "on the sole ground (or so it appears) that petitioner could afford to pay and respondent could not." Justice Kennedy's statement expressed the following concern:
To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised. Where a court has concluded that a plaintiff lacks the means to pay for class certification, the defendant has little hope of recovering its expenditures later ifthe suit proves meritless; therefore, the court’s order requiring the defendant to pay for the notification “finally destroy[s] a property interest.” Logan v. Zimmerman Brush Co., 455 U. S. 422, 433-34 (1982). The Due Process Clause requires a “‘hearing appropriate to the nature of the case.’” Boddie v. Connecticut, 401 U. S. 371, 378 (1971). And there is considerable force to the argument that a hearing in which the trial court does not consider the underlying merits of the class-action suit is not consistent with due process because it is not sufficient, or appropriate, to protect the property interest at stake.
Justice Kennedy's statement is available here, on Westlaw (2009 WL 3255157) or on Lexis (2009 U.S. Lexis 7158)
For additional coverage, see here.