Is Justice Sotomayor Concerned about the Cost of Class-Actions?

Yesterday, with little fanfare, Justice Kennedy filed an statement respecting the denial of the petition for a write of certiorari in DTD Enterprises v. Wells.  It reads:

This case began with a contract action brought by DTD Enterprises, Inc. (hereinafter petitioner), a commercial dating-referral service, against respondent, one of peti-tioner’s customers. The suit alleged that respondentrefused to make payments due under a contract. Respon-dent answered by bringing a class action against petitioner. The trial court certified the class and ordered petitioner to bear all the costs of class notification, on thesole ground (or so it appears) that petitioner could affordto pay and respondent could not.

To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defen-dant 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 if the suitproves meritless; therefore, the court’s order requiring thedefendant 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 ofthe class-action suit is not consistent with due process because it is not sufficient, or appropriate, to protect the property interest at stake.
I nonetheless agree with the Court’s denial of certiorari,for two reasons. First, the petition is interlocutory; thestate appellate courts denied petitioner leave to appeal the trial court’s action. Second, petitioner has filed for bankruptcy, and an automatic bankruptcy stay has issued pursuant to 11 U. S. C. §362. Respondents contend thatthe present action comes within the scope of the automatic stay. If we were to grant the petition we would be re-quired to construe New Jersey law without the aid of a reasoned state appellate court decision and to confront aprocedural obstacle unrelated to the question presented. Under these circumstances, it is best to deny the petition. It seems advisable, however, to note that the petition for certiorari does implicate issues of constitutional significance.

Of note, the Chief Justice and Justice Sotomayor joined the opinion. What does this mean about Justice Sotomayor’s view of class actions and the scope of the Due Process Clause?  We’ll have to see.