Ryan Waxx: I doubt you learned to distort another person’s argument from VC.

Presumably he learned it from law school, assuming Steve’s a lawyer.

I think the point was made and he just wanted to snark about Bork. Fine by me.

Steve: Yes, but those were pre-Bork and Thomas, when it was established that political ideology on one issue is sufficient to oppose a justice’s nomination.Who knew that Bork’s ideology pertained to only one issue?You learn a lot on the VC.

I doubt you learned to distort another person’s argument from VC.

Dave N: I don’t practice this area of law so I am sincerely interested in this question: Does any state besides New Jersey allow a court to order a company to pay the notification costs of a class-action suit without regard to the merits of the litigation?

Several other states allow a court to allocate notice costs including California.

In regards to the collateral order issue, the Supreme Court held, in Eisen (1973) that an order allocating notice costs is a collateral order.

Please allow me to correct one minor point stated by some commenters which I think is incorrect. Justice Kennedy did not state that the action was stayed by bankruptcy. He stated that Respondents contended that the case was stayed by bankruptcy. We strongly contested that point and at worst the issue of whether it falls within the stay is a circuit split.

If anyone has any specific questions regarding the case, feel free to email me at acutler@ballonstoll.com.

Who knew that Bork’s ideology pertained to only one issue? You learn a lot on the VC.

Bored Lawyer: Actually that has happened many times in history on both sides of the political spectrum. Justice Brennan was appointed by Eishenhower, and Justice White was appointed by Kennedy. In both cases the Justices turned out to have voting patterns quite different from what one would have expected based on the appointing President.

Yes, but those were pre-Bork and Thomas, when it was established that political ideology on one issue is sufficient to oppose a justice’s nomination.

Admittedly, there were a lot of heated arguments on nominations before Bork, but it’s only with the most recent nominees that naked political rhetoric took the place of well-reasoned smokescreens for political rhetoric.

Yes, they could, but a cursory trial court order provides little foundation for such a holding, which is probably why 0 justices dissented from the denial of cert. As I’m sure you know, whether an order is technically appealable is a far different question from whether the Supreme Court believes the issue is properly framed for review.

The collateral order doctrine does not identify a class of orders that the Supreme Court ought to review, but merely a class that it has the power to review if it so chooses. There is nothing about this order that is any more compelling than any other order that fits the terms of the collateral order doctrine – assuming this order fits at all.

egd: Speaking as someone on the “right,” if she starts ruling “right” then I will continue to maintain that she should not have been confirmed (based on the precedent established by Sens. Biden, Kennedy, Obama, and a host of other Democrats), but that her rulings have turned into a happy accident

Actually that has happened many times in history on both sides of the political spectrum. Justice Brennan was appointed by Eishenhower, and Justice White was appointed by Kennedy. In both cases the Justices turned out to have voting patterns quite different from what one would have expected based on the appointing President.

CJColucci: If Justice Sotomayor starts ruling “right” on certain issues, will she become a wise latina?

Speaking as someone on the “right,” if she starts ruling “right” then I will continue to maintain that she should not have been confirmed (based on the precedent established by Sens. Biden, Kennedy, Obama, and a host of other Democrats), but that her rulings have turned into a happy accident.

And that the “wise Latina” statement is both racist and silly.

Steve: There is a constitutional issue here, but the only thing the Supreme Court could really do is remand because the order didn’t reflect any consideration of the merits. If the trial court rehears the issue and says “fine, after preliminary consideration of the merits, I think the defendant should bear these costs,” it’s no longer an appealable order because the merits are involved.

Not quite. I think the trial court has to do more than consider the merits. The Supreme Court could determine that the Due Process Clause required some threshold showing — perhaps a showing of likelihood of success on the merits (as for a preliminary injunction). Or maybe some other threshold. The point is that the Petitioner here is claiming that some threshold must be met before a court can impose costs on it. (The trial court in effect held that NO initial showing is required whatsoever.)

Setting the Constitutional standard in a certain kind of case (here imposing notice costs in class action cases) is precisely what the Supreme Court is supposed to do. Enforcing the standard once it is set is the job of the intermediate appellate courts.

That’s a bit of a dodgy statement, since the whole argument is that a court shouldn’t impose this kind of burden without at least a preliminary consideration of the merits. Assuming the argument is correct, then the issue is no longer separable from the merits.

There is a constitutional issue here, but the only thing the Supreme Court could really do is remand because the order didn’t reflect any consideration of the merits. If the trial court rehears the issue and says “fine, after preliminary consideration of the merits, I think the defendant should bear these costs,” it’s no longer an appealable order because the merits are involved. So it’s completely unsurprising that the Supreme Court of the United States isn’t interested in playing the role of an intermediate state appellate court, telling a trial judge “your order needs to be written more clearly.”

If Justice Sotomayor starts ruling “right” on certain issues, will she become a wise latina?

Maybe. But then again, a stopped clock is right twice a day, and even a blind squirrel finds an acorn every once in a while.

Steve: Of course it’s reviewable, it’s just money. Win the case, and then say “this case was meritless, the costs of notice should have been assessed to the plaintiffs.”

And how is the defendant going to recover those costs? I doubt anyone (except maybe the RIAA) would be too successful in collecting X amount of dollars from thousands / hundreds of thousands / millions of class members, most of whom would not even know that they were part of a class action. The transaction costs of trying to recover from all those disparate individuals likely would be more than the costs of notice. The only other possibility is going after the plaintiffs’ law firm, but I’m skeptical they would be held legally liable for a cost that’s the responsibility of the class members and they may not have enough funds to pay the judgment either. When you layer on the high rate of settlement after class certification and before a final decision, the order becomes effectively unreviewable.

Steve: Of course it’s reviewable, it’s just money. Win the case, and then say “this case was meritless, the costs of notice should have been assessed to the plaintiffs.”

The whole point of the order was that the plaintiffs were impecunious and could not afford to pay, so the costs were shifted to the defendants. If they wait to appeal the case, they will never get their money back — it has been spent on the notice and there is no one to repay it. An appellate decision along the lines you suggest will have no real effect whatsoever. Furthermore, at least as described by Justice Kennedy’s statement, that this determination was completely independent of the merits. This fits the collateral order rule to a T.

In theory, I guess, but in reality there’s not much basis to think that the appellate courts are strategically denying review to prevent the Supreme Court from hearing this issue. The problem is that a typically cursory trial court decision doesn’t frame the issues well enough for the Supreme Court to render a definitive pronouncement.

It is not worthwhile for prevailing defendants to bring appeals for the reversal of expenses already paid out when the plaintiff is impecunious, because they will be throwing good money after bad.

Nick