Three U.S. Supreme Court justices, including newcomer Sonia Sotomayor, have criticized a New Jersey judge’s use of a means test to decide that a dating service sued for consumer fraud should pay the cost of notifying up to 1,600 potential class-action beneficiaries.

“To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant 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,” wrote Justice Anthony Kennedy, joined by Sotomayor and Chief Justice John Roberts Jr., in a concurrence accompanying a denial of certiorari in DTD Enterprises Inc. v. Wells, No. 08-1407.

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