_________________

_________________ 1 Cite as: 56 1 U

. S. ____ (2010) Opinion in Chambers
NOTIC E : Th is op i n ionis subjec t to f o rmalrevi si onbef o r epublicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t op r es s . 

## SUPREME CO URT O FTHE UNI TED STATES

No. 10A2 73
PHILIP M O RRI S USA INC. ET AL

. v. GLO R IA SCOTT ET AL

. ON APPLICATION FOR STAY [Septem b er24 , 2010] J USTICE S CALIA , Cir c uit Justice. Respondents brought this class action against several tobacco companies on behalf of all Lou i siana smokers. The suit alleged that the companies defrauded the plain

tiff class by “distort[in g] the entire body of public knowl

edge” about the a d dic t ive effects of nicotin e . Scottv. Americ a n Tobacco Co. , 2004–2095, p. 14. (La. App. 2/7/07 ) 949 So. 2d 1266, 1277. The Fourth Circuit Court of Ap

peal of Louisiana granted relief on that theory, and en

tered a judgment requiring applicants to pay $241,540,488 (plus accumulated interest of about $29 million) to fund a 10-year sm oking cessa tion progra m for the b e nefit of the members of the plainti ff class. Scottv. Am eri can Tobacc o Co. , 2009–0461, p. 21–23 (5/5/10) 36 So. 3d 1046, 1059– 1060. (Still to be determined are the allowabl e attorney’s fees, which will likely be requested in the tens of millions of dollars.) The Supreme Court of Louisiana declined review. Scott v. A m ericanTobacco Co. , 2010–1361 (9/3/10), ___ So. 3d ___. The applicants have ask e d me, in my capaci tyas Circuit Justice for t h e Fifth Cir c uit, to stay the judgme nt until thi s Court ca n act on th eir intended petition for a writ of cer t iorari.2 PHILIP MORR IS USA INC. v. SCOTT Opinion in Chambers A single Justice has authority to enter such a stay, 2 8 U. S. C. §21 01(f), but the applicant bears a h e avy burde n. It is our se ttled pra cti ce to gr anta sta yonly when thr ee conditions are met: First, there must be a reasonable probability that certiorari will be granted (or probable jurisdiction noted). S e cond, there must be a significant possibility that the judgment below will be re versed. And third, assuming the applicant’s p o sition on the merits is correct, there must be a likelihood of irreparable harm i f the judgme nt is not s t ayed. Ba rnesv. E-S y stems, Inc

. G roup H o spit al Me dical & Sur g ic al Ins

. Plan , 501 U. S. 1301, 1302 (1991) (S CALIA , J., in chambers). I conclude that this standard is met. Applicants complain of many violations of due process, including (among others) denial of the op portunity to cross-examine the named representatives of the class, factually u n supportedestimations of the number of class members entitled to relief, and c o nstant rev i sion of the legal basisfor the plaintiffs’ claim during the course of litigation. Even though the judgment that i s the alleged consequenc e of these claimed errors is massive—more than $250 million—I would not be inclined t obeli eve that this Court would gr ant cer t iorari to consider these fac t

bound contentions that may have no effect on other cases. But one asserted error in pa rticular (and perhaps some of the others as well) implicates c o nstitutional constraints on the allowable alteration of normal proce ss in class actions. Th is is a fraud case, and in Louisia na the tort of fraud normally requires proof that the plaintiff detrimen

tally relied on the defendant’s misrepresentations. 949 So. 2d, at 1277

. Acc o rdingly, t h e Court of Appeal indi

cated that members of the plaintiff class who wish to seek individual damages, rather than just access to smoking

cessation measures, would have to establish their own reliance on the alleged distortions. Ibid. But t h e Court of Appeal held that this element need notbe proved insofar3 Cite as: 56 1 U

. S. ____ (2010) Opinion in Chambers as the class seeks payment into a fund that will benefi t individual plaintiffs, s i nce 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 elimin ated any need for plaintiffs to prove, and denied any opportunity for applicants to contest, that any particu lar plaintiff who benef i ts from the judgment (much less all of them) believed ap plicants’ distortions an d continued to smoke as a result. Applicants allege that this violates their due-process right to “a n opportun i ty to pres ent every available de

fense.” Lindseyv. Normet , 405 U. S. 56, 66 ( 1972) (inter

nal quotation marks omitted) (quoting Ame r ican Su rety Co. v. Bald win , 287 U. S. 156, 16 8 (1932)). Respondents concede that due proces s requires such an opportunity, bu t they conte n d that th e intermediate state court’s p r o nouncemen t means th at, as a ma tter of Louisiana’s sub

stantive law, applicants have no nonreliance defense. That response may ultimately prove persuasive, but at this stage it serves to describe the issue rath er than re

solve it. The apparent consequence of the Court of Ap

peal’s holding is that i n dividual plaintiffs who could not recover hadthey sued separately canreco veronly becau s e their claims were aggregatedwi th others’ through th e procedural device of the class action. The extent to which class treatment may constitution

ally reduce the normal requirements of due process is a n important question. National concern over abuse of the class-action device induced Co ngr e ss to permit removal of most major class actions to federal court, see 28 U. S. C. §1332(d), where they will be s ubject to the significant limitations of the Federal Rules. Federal removal jurisdic

tion has not been ac corded, however, over many cla s s actions in which more than two-thi r ds of the plaintiff class are citizensof the foru m State. See §1 332(d)(4). Becaus e the class here was drawn to include only residents of4 PHILIP MORR IS USA INC. v. SCOTT Opinion in Chambers Louisiana, this suit typifies the sort of majo r class action that often will not be removable, and in which the con

straints 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 de finition only state class actions are at issue; and the latter seems implausible, unless on e posits the unlik ely case where the novel approach to class-action liability is a legislative rather than judicial cre ation, or the creation of a lower state court disapproved by the state supreme court on federal constitutional grounds. This constitutional issue ought no t to be permanently beyond our review. Given those considerations, I con c lude applicants have satisfied the prerequisites for a sta y . I think i treasonably probable that four Jus tices w ill vote to grant certiorari , and significantly possible that the judgment below will be reversed. As for ir reparable harm: Norma lly the mer e payment of money is not considered irreparable, see Sampsonv. Murray , 415 U. S. 61, 90 (1974), but that is because money can us ually be recovered fro mthe pers on to whom it is paid. If expenditu r es cannot be recouped, the resulting loss may be irreparable. See, e.g. , Moriv. Boilermake rs , 454 U. S. 1301, 1 303 (1981) (Rehnquist, J., in chambers). Here it appears that, before this Court will be abl e to consid er and resolve applicants’ claims, a substantial portion of the fund es tablished b ytheir pay

ment will b eirrevocably expended. Funds s p ent to pro

vide anti-smoking counseling and devices will not likely be recoverable; nor, it seems, will the $11,501,928 fee imme

diately payable toward adminis tra tive 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 discreti on will deny the stay5 Cite as: 56 1 U

. S. ____ (2010) Opinion in Chambers when ‘a decided balance of convenience’ ” weighs against it. Barnes, supra , at 1 304–1305 ( S CALIA , J., in chambers) (quoting Magnum Import Co. v. Coty , 262 U. S. 159, 164 (1923)). Here, however, the equ i ties favor granting th e application. Refusing a stay may visit an irreversible harm on ap plicants, but grantin g i twill apparently do no permanent injury to respondents. Applicants allege tha t similar smoking-cessati on measures are freely and readily available from other sources in Louisiana, and respon

dents have not dispute dthat. Un der those ci rcumstance s , the equitable balance favors issuance of the stay. The application for a stay of the e x ecution of the judg

ment of the Court of Appeal of Louisiana, Fourth Circui t , is granted pending applicants’ timely filing, and this Court’s disp osition, of a petiti on for a writ of certiorari. It is so orde red.