Back on the First Monday in October 2011, we noted two First Amendment-related cert petitions that were pending with the Supreme Court. The Court denied review to the first, State Farm v. Bedell, in late November. It denied review in the second case, Natso v. 3 Girls Enterprises, today. The denial leaves untouched a troubling U.S. Court of Appeals for the Tenth Circuit ruling that is at odds with decisions on the identical issue from several other circuit courts.
The Natso appeal arose out of a class action suit arguing that auto fuel purchasers who live in warmer climates are being defrauded because the way retailers calculate the weight of the gas (which is the basis for the fuel price) means colder weather climate consumers pay less at the pump. The plaintiffs demanded 30+ years of documents from the defendants, including internal company and trade group documents which revealed political and legislative strategies on the issue of gas weight. The Tenth Circuit applied a review standard which was highly deferential to the trial court’s enforcement of the discovery request, an outcome which Natso argued intruded on its First Amendment associational and speech rights.
The cert petition had the support of an amicus brief signed by numerous trade groups including the National Association of Manufacturers and the American Chemistry Council. The brief aptly summarized the implications of the Tenth Circuit’s ruling:
Certainly, members want and expect that all communications between the members and their association will not be publicly disclosed simply because a plaintiff sues one of the members and then engages in a discovery fishing expedition seeking the association’s private, internal communications. Given that the memberships of amici range in size from 300 to more than 300,000, these are significant concerns for the amici and their members.