In Re MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION
2011 U.S. App. LEXIS 10427
| 10th Cir. | 2011Background
- Twelve putative class actions against motor fuel retailers were consolidated for MDL discovery in the District of Kansas.
- Plaintiffs allege retailers use a temperature-insensitive volumetric pricing system, defrauding consumers by not accounting for fuel expansion with temperature rise.
- Plaintiffs sought internal communications between retailers and trade associations about automatic temperature compensation (ATC).
- Retailers and non-party trade associations sought to block disclosure claiming First Amendment associational privilege; a magistrate found substantial privilege but the district court later ruled none entitled to presumptive privilege and required a prima facie showing of chilling.
- The district court’s order compelled disclosure; retailers and trade associations sought interlocutory relief and mandamus in this circuit.
- This court dismissed the interlocutory appeal for lack of jurisdiction and denied the mandamus petition, lifting the stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether First Amendment privilege applies to trade associations' communications | Plaintiffs contend communications are not privileged and must be disclosed. | Retailers/associations urge a First Amendment privilege for strategic pre-lobbying communications. | Privilege applies; no immediate disclosure |
| Whether the appeal is permitted under collateral order / Cohen doctrine | Plaintiffs argue for immediate appeal to protect privacy interests. | Appellants invoke Cohen collateral order review as governing precedent. | No jurisdiction under Cohen; dismissal of interlocutory appeal |
| Whether Perlman doctrine permits immediate appeal by non-parties | Non-parties seek immediate review to protect privileges. | Perlman does not apply in civil discovery against non-parties. | Perlman does not apply |
| Whether the pragmatic finality doctrine supports immediate appeal | Urgent review is warranted due to MDL context and potential inconsistent rulings. | Pragmatic finality lacks basis; final judgment rule remains. | Not applicable; no immediate appeal |
| Whether mandamus is appropriate to reverse discovery order | Disclosure renders meaningful appellate review impossible and raises important justice questions. | District court acted within proper discretion; no mandamus warranted. | Mandamus denied; privacy rights not established with clear, indisputable entitlement |
Key Cases Cited
- NAACP v. Alabama, 357 U.S. 449 (1958) (compelled disclosure can chill association; privacy protects expressive rights)
- DeGregory v. Atty. Gen. of New Hampshire, 383 U.S. 825 (1966) (privacy of political associations; compelled disclosure is problematic)
- Buckley v. Valeo, 424 U.S. 1 (1976) (First Amendment implications in campaign finance context)
- Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009) (limits on collateral-order review; final judgment rule preferred; explore alternatives)
- In re Grand Jury Proceedings, 616 F.3d 1172 (10th Cir. 2010) (Perlman doctrine limitations outside criminal grand jury context)
- Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2010) (illustrates prima facie chilling evidence in First Amendment privilege)
- Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010) (context for First Amendment protection of association-related activity)