Judge in Orbitz case blasts defendants' motion to depose Fairview Heights aldermen

Steve Korris Nov. 16, 2007, 6:13am

Richard Burke

Conveniently forget on U.S. Magistrate Judge Donald Wilkerson's watch, and he's one to forgive.

Two months after threatening to report Richard Burke to state regulators for making a misrepresentation in court, Wilkerson acceded to the class action lawyer's wishes.

In a Nov. 9 order, Wilkerson granted a motion to quash depositions of Fairview Heights city council members in a class action suit Burke is leading over fees and taxes against online travel service Orbitz.

Orbitz had sought to ask council members how much they knew about a class action suit they filed against online travel services in 2005.

As previously reported by The Record, three on the council have said that when they authorized the suit they did not understand that they would pursue a class action on behalf of 50 Illinois cities.

The suit claims online travel agencies owe taxes on rooms they booked.

Wilkerson held a hearing on the depositions Aug. 29, and at the end he asked attorneys if they had any further disputes.

Paul Chronis of Chicago, representing Orbitz, said they did.

Burke said they didn't. He gave his word.

Chronis persisted. Wilkerson scolded him for doubting Burke's word.

Wilkerson told Burke that if there was a dispute, he would drive to Springfield and file a complaint against him at the Illinois Attorney Registration and Disciplinary Commission.

Before the courthouse closed, Burke apologized in a letter for saying there was no dispute. He wrote that there was a dispute but he forgot about it.

Through September and October, Wilkerson did not decide what to do about the depositions or Burke's apology.

When Wilkerson quashed the depositions, he didn't even mention the apology.

Instead he ferociously attacked Chronis' arguments.

"In the end, the Court is left with the firm impression that there is very little, if any, relevant evidence sought through these depositions," Wilkerson wrote.

"…[T]he Court is at a loss to understand why each of the defendants' stated bases for needing to depose the entire city council are relevant…"

He wrote that he pressed defendants at the hearing to explain the relevancy and that he "was left wholly unsatisfied with the responses given."

"Although the city is a plaintiff in this matter, it would not do justice to allow defendants, with their vast resources, to bury the city in depositions…," Wilkerson wrote.

He wrote that defendants directed his attention to a newspaper article in which three council members purportedly said they did not agree to a class action.

He wrote that the council passed a resolution Oct. 4, 2005, authorizing this action on behalf of itself and similarly situated Illinois taxing authorities.

He wrote that the suit "was explicitly authorized to proceed as a class action."

That authority, however, was not explicit. Only those familiar with class actions know that attorneys file them on behalf of "others similarly situated."

"…[T]he city states that the purported statements contained in the article were not made under oath, are contradicted by the public record, and are not appropriate to be used as an evidentiary record," Wilkerson wrote.

"The Court agrees with the city's assessment."

He wrote that the three individuals quoted in the article voted for the resolution.

"Further, even if the statements were made as the article reports, these council members do not speak on behalf of the city as plaintiff, because it is the vote of the entire city council that makes binding resolutions," Wilkerson wrote.

"Additionally, whether or not the statements contained in the article were accurately recorded, such statements do not bear on the adequacy of representation as they do not speak to the ability of the city or its counsel to adequately represent the proposed class members."

He wrote that he was aware of no reason to question the adequacy of the city's attorney.

"It is not lost on the Court that the adequacy of representation requirement is primarily meant to protect unnamed class members – not defendants," Wilkerson wrote.

"The Court does not ascribe to defendants the altruistic motive of seeking to defend the rights of unnamed class members from inadequate representation.

"Rather, it is more probable that defendants seek to take advantage of an opportunity to force further discovery on the city with the strategy of wearing down support for continuing with this lawsuit."

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