Monday, November 18, 2013
Earlier this month we covered Chief Justice Roberts’ statement in Marek v. Lane, a case challenging a class action settlement that included cy pres remedies. In his statement, Chief Justice Roberts agreed with the decision to deny certiorari but raised a number of concerns about cy pres remedies, concluding that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”
Today, Justice Alito issued a similar statement “respecting the denial of the petition for writ of certiorari” in another case involving a class action settlement: Martin v. Blessing (No. 13-169). You can find his six-page statement in today’s order list, beginning on page 13 of the pdf file. It begins:
The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.
The judge is U.S. District Judge Harold Baer of the Southern District of New York, and Justice Alito writes that “[b]ased on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.” [p.3]
Justice Alito first suggests that the practice is unconstitutional, but then writes: “Before reaching this constitutional question, however, a court would have to consider whether the challenged practice can be reconciled with Rule 23(g).” [p.3] He states:
It is true that Rule 23 allows a district court to consider “any . . . matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class,” Rule 23(g)(1)(B), but I doubt that this provision can be stretched to justify the practice at issue here. [p.4]
Justice Alito then states that he finds “debatable” [p.5] the reasoning used by the Second Circuit to conclude that an objector to the class action settlement lacked standing to challenge Judge Baer’s order in this case. He writes: “It is not clear that a class member who objects to a feature of a proposed settlement must show that the feature in question would cause the objecting member the sort of harm that is needed to establish Article III standing.” [p.5] And: “Whether or not Martin suffered injury in fact in the Article III sense, he unquestionably has a legitimate interest in ensuring that class counsel is appointed in a lawful manner.” [p.6]
Justice Alito concludes:
Unlike the courts of appeals, we are not a court of error correction, and thus I do not disagree with the Court’s refusal to review the singular policy at issue here. I stress, however, that the “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari). If the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted.