Big Sky must propose remedy for suit against SBC

Steve Korris Apr. 19, 2007, 5:00am

Dan Stack

John Muench

Madison County Circuit Judge Daniel Stack understands why class action attorneys sued the phone company, but he can't figure out what they want him to do about it.

At an April 17 hearing he denied a motion to dismiss their suit against SBC, but he said they had to tell him what remedy they expected.

He did not buy their argument that the remedy would depend on discovery.

In the suit, plaintiff Big Sky Excavating alleges that Illinois Bell, prior to merging into SBC, violated a law the Illinois Legislature passed in 2001.

The law sought to settle two groups of complaints at the Illinois Commerce Commission over rates that businesses paid for phone service.

Illinois Bell, for its end of the bargain, agreed to refund $90 million to business customers.

Big Sky sued in 2003, claiming Illinois Bell did not distribute the money in accordance with the law.

Circuit Judge Phillip Kardis certified the suit as a class action in 2004.

Kardis further declared the law unconstitutional.

He found it "so narrowly designed and so openly beneficial in conferring benefits to SBC that it cannot stand a test of reasonableness…"

SBC appealed to the Illinois Supreme Court.

In 2005 the Supreme Court reversed Kardis.

When the case returned to Madison County, SBC moved to dismiss.

John Muench of Chicago brought the motion before Stack on April 17.

Stack asked Muench if the commission determined who got what.

Muench said SBC filed a rate tariff and no one challenged it.

Big Sky attorney Glenn Bradford of Edwardsville said, "The penalty had nothing to do with rates."

Stack said, "You want to call it a penalty now?"

Bradford said, "Refund."

Stack said, "I don't see this as a penalty."

Muench said anything that affects price is a rate. He said, "Rate is construed very broadly."

Big Sky attorney Thomas Londrigan of Springfield said, "We are just saying that they paid the wrong customers."

Stack said, "You don't know who they paid." Londrigan said, "Right."

Stack said, "How do we arrive at your damages?"

Bradford said, "They know who they paid." He said they could calculate damages by simple mathematics.

Stack told Muench that plaintiffs accepted the distribution for customers on the commission's 1998 docket.

He said they wanted to divide the commission's 1995 docket the same way.

Muench said, "If you wipe out the '95 docket the whole thing collapses and you are back to square one."

Bradford said, "They are trying to make this more complicated than it is."

Muench said, "The law doesn't tell us how much to pay anyone. There is no formula."

Londrigan said, "The public doesn't know, six years later, how much went to whom."

Muench said, "That is all in the tariff. That is all disclosed."

He said, "You can't challenge tariff disclosures in court like this. You have to challenge it at the ICC."

He said the '95 docket would have sued if SBC had left them out.

He said, "There would be different lawyers here today and they would have a claim."

Bradford said he hoped Stack would hear evidence on legislative intent.

Stack said, "Don't we have to jump over some hurdles before we start getting into legislative intent?"

Muench said the plaintiffs sought to strip the '95 docket of refunds. He said the '95 docket was not present for the hearing.

He said there was no standard for a judge to distribute the money. He said, "That is what the Legislature and the ICC should do, not a court."

Bradford told Stack, "You will never be asked to strip anyone of rights. You don't have authority to do that."

Stack said, "They will get it from their customers?"

Bradford said, "Right."

Muench asked Stack if he would bring in every legislator who voted for the law or look at the plain language of it.

Bradford said the person who presented the bill for floor debate would testify.

He said, "They don't want you to ever look at that. They know that is what's going to happen."

Muench said, "That's all been fully aired in the briefs. I will admit she said what she said."

Stack asked what remedy plaintiffs sought. He asked if they wanted a new tariff. He asked if they wanted to take out the '95 docket.

Londrigan said the Public Utilities Act gave Stack authority to fashion a remedy. He said, "What we ask depends on discovery."

Muench said, "The ICC had full power to entertain any alleged violation of the act."

Stack said, "If there is no remedy I can impose, I'm not sure how much farther I can go. I'm not completely sure there is a remedy."

He denied SBC's motion and told Bradford to propose a remedy.

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