                  Cite as: 558 U. S. ____ (2009)            1

                   Statement of KENNEDY, J.

SUPREME COURT OF THE UNITED STATES
DTD ENTERPRISES, INC., AKA TOGETHER, AKA TO- 

  GETHER-CLARK, AKA TOGETHER DATING SER- 

  VICE, ET AL. v. JANICE H. WELLS, ON BEHALF OF

      HERSELF AND ALL OTHERS SIMILARLY SITUATED


  ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR 

       COURT OF NEW JERSEY, MIDDLESEX COUNTY

             No. 08–1407. Decided October 13, 2009

   The petition for a writ of certiorari is denied.
   Statement of JUSTICE KENNEDY, with whom THE CHIEF
JUSTICE and JUSTICE SOTOMAYOR join, respecting the
denial of the petition for writ of certiorari.
   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 respondent
refused to make payments due under a contract. Respon
dent answered by bringing a class action against peti
tioner. The trial court certified the class and ordered
petitioner to bear all the costs of class notification, on the
sole ground (or so it appears) that petitioner could afford
to 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 defen
dant 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 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
2             DTD ENTERPRISES, INC. v. WELLS

                   Statement of KENNEDY, J.

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.
   I nonetheless agree with the Court’s denial of certiorari,
for two reasons. First, the petition is interlocutory; the
state appellate courts denied petitioner leave to appeal the
trial court’s action. Second, petitioner has filed for bank
ruptcy, and an automatic bankruptcy stay has issued
pursuant to 11 U. S. C. §362. Respondents contend that
the 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 a
procedural obstacle unrelated to the question presented.
Under these circumstances, it is best to deny the peti
tion. It seems advisable, however, to note that the peti
tion for certiorari does implicate issues of constitutional
significance.
