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Cite as: 561 U. S. ____ (2010) 1 

Opinion in Chambers 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 10A273 

PHILIP MORRIS USA INC. ET AL. v. GLORIA 

SCOTT ET AL. 

ON APPLICATION FOR STAY 

[September 24, 2010] 

JUSTICE SCALIA, Circuit Justice. 

Respondents brought this class action against several

tobacco companies on behalf of all Louisiana smokers.

The suit alleged that the companies defrauded the plaintiff class by “distort[ing] the entire body of public knowledge” about the addictive effects of nicotine. Scott v. 

American Tobacco Co., 2004–2095, p. 14. (La. App. 2/7/07) 

949 So. 2d 1266, 1277. The Fourth Circuit Court of Appeal of Louisiana granted relief on that theory, and entered a judgment requiring applicants to pay $241,540,488

(plus accumulated interest of about $29 million) to fund a

10-year smoking cessation program for the benefit of the 

members of the plaintiff class. Scott v. American Tobacco 

Co., 2009–0461, p. 21–23 (5/5/10) 36 So. 3d 1046, 1059–

1060. (Still to be determined are the allowable attorney’s

fees, which will likely be requested in the tens of millions

of dollars.) The Supreme Court of Louisiana declined

review. Scott v. American Tobacco Co., 2010–1361 

(9/3/10), ___ So. 3d ___. The applicants have asked me, in 

my capacity as Circuit Justice for the Fifth Circuit, to stay

the judgment until this Court can act on their intended 

petition for a writ of certiorari. 
2 PHILIP MORRIS USA INC. v. SCOTT 

Opinion in Chambers 

A single Justice has authority to enter such a stay, 28

U. S. C. §2101(f), but the applicant bears a heavy burden. 

It is our settled practice to grant a stay only when three 

conditions are met: First, there must be a reasonable 

probability that certiorari will be granted (or probable

jurisdiction noted). Second, there must be a significant

possibility that the judgment below will be reversed. And 

third, assuming the applicant’s position on the merits is 

correct, there must be a likelihood of irreparable harm if

the judgment is not stayed. Barnes v. E-Systems, Inc. 

Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 

1301, 1302 (1991) (SCALIA, J., in chambers). I conclude 

that this standard is met. 

Applicants complain of many violations of due process, 

including (among others) denial of the opportunity to

cross-examine the named representatives of the class,

factually unsupported estimations of the number of class 

members entitled to relief, and constant revision of the 

legal basis for the plaintiffs’ claim during the course of 

litigation. Even though the judgment that is the alleged 

consequence of these claimed errors is massive—more 

than $250 million—I would not be inclined to believe that 

this Court would grant certiorari to consider these factbound contentions that may have no effect on other cases.

But one asserted error in particular (and perhaps some 

of the others as well) implicates constitutional constraints 

on the allowable alteration of normal process in class 

actions. This is a fraud case, and in Louisiana the tort of 

fraud normally requires proof that the plaintiff detrimentally relied on the defendant’s misrepresentations. 949 

So. 2d, at 1277. Accordingly, the Court of Appeal indicated that members of the plaintiff class who wish to seek 

individual damages, rather than just access to smokingcessation measures, would have to establish their own 

reliance on the alleged distortions. Ibid. But the Court of 

Appeal held that this element need not be proved insofar 
Cite as: 561 U. S. ____ (2010) 3 

Opinion in Chambers 

as the class seeks payment into a fund that will benefit 

individual plaintiffs, since the defendants are guilty of a

“distort[ion of] the entire body of public knowledge” on

which the “class as a whole” has relied. Id., at 1277–1278. 

Thus, the court eliminated any need for plaintiffs to prove, 

and denied any opportunity for applicants to contest, that 

any particular plaintiff who benefits from the judgment 

(much less all of them) believed applicants’ distortions and 

continued to smoke as a result. 

Applicants allege that this violates their due-process 

right to “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted) (quoting American Surety 

Co. v. Baldwin, 287 U. S. 156, 168 (1932)). Respondents

concede that due process requires such an opportunity, but 

they contend that the intermediate state court’s pronouncement means that, as a matter of Louisiana’s substantive law, applicants have no nonreliance defense. 

That response may ultimately prove persuasive, but at

this stage it serves to describe the issue rather than resolve it. The apparent consequence of the Court of Appeal’s holding is that individual plaintiffs who could not 

recover had they sued separately can recover only because 

their claims were aggregated with others’ through the 

procedural device of the class action. 

The extent to which class treatment may constitutionally reduce the normal requirements of due process is an

important question. National concern over abuse of the 

class-action device induced Congress to permit removal of

most major class actions to federal court, see 28 U. S. C. 

§1332(d), where they will be subject to the significant 

limitations of the Federal Rules. Federal removal jurisdiction has not been accorded, however, over many class

actions in which more than two-thirds of the plaintiff class 

are citizens of the forum State. See §1332(d)(4). Because 

the class here was drawn to include only residents of 
4 PHILIP MORRIS USA INC. v. SCOTT 

Opinion in Chambers 

Louisiana, this suit typifies the sort of major class action

that often will not be removable, and in which the constraints of the Due Process Clause will be the only federal

protection. There is no conflict between federal courts of 

appeals or between state supreme courts on the principal

issue I have described; but the former seems impossible,

since by definition only state class actions are at issue;

and the latter seems implausible, unless one posits the 

unlikely case where the novel approach to class-action 

liability is a legislative rather than judicial creation, or the 

creation of a lower state court disapproved by the state

supreme court on federal constitutional grounds. This 

constitutional issue ought not to be permanently beyond 

our review. 

Given those considerations, I conclude applicants have

satisfied the prerequisites for a stay. I think it reasonably 

probable that four Justices will vote to grant certiorari, 

and significantly possible that the judgment below will be 

reversed. As for irreparable harm: Normally the mere

payment of money is not considered irreparable, see 

Sampson v. Murray, 415 U. S. 61, 90 (1974), but that is

because money can usually be recovered from the person 

to whom it is paid. If expenditures cannot be recouped, 

the resulting loss may be irreparable. See, e.g., Mori v. 

Boilermakers, 454 U. S. 1301, 1303 (1981) (Rehnquist,

J., in chambers). Here it appears that, before this Court

will be able to consider and resolve applicants’ claims, a 

substantial portion of the fund established by their payment will be irrevocably expended. Funds spent to provide anti-smoking counseling and devices will not likely be

recoverable; nor, it seems, will the $11,501,928 fee immediately payable toward administrative expenses in setting

up the funded program.

That does not end the matter. A stay will not issue

simply because the necessary conditions are satisfied. 

Rather, “sound equitable discretion will deny the stay 
Cite as: 561 U. S. ____ (2010) 5 

Opinion in Chambers 

when ‘a decided balance of convenience’” weighs against 

it. Barnes, supra, at 1304–1305 (SCALIA, J., in chambers) 

(quoting Magnum Import Co. v. Coty, 262 U. S. 159, 164 

(1923)). Here, however, the equities favor granting the

application. Refusing a stay may visit an irreversible

harm on applicants, but granting it will apparently do no 

permanent injury to respondents. Applicants allege that

similar smoking-cessation measures are freely and readily 

available from other sources in Louisiana, and respondents have not disputed that. Under those circumstances, 

the equitable balance favors issuance of the stay. 

The application for a stay of the execution of the judgment of the Court of Appeal of Louisiana, Fourth Circuit, 

is granted pending applicants’ timely filing, and this 

Court’s disposition, of a petition for a writ of certiorari. 

It is so ordered.