Orbitz attorney says Fairview Heights resolution pre-dated prior to passage

Steve Korris Jan. 11, 2008, 6:20am

EAST ST. LOUIS - Orbitz and 14 other online travel agencies challenge the accuracy and validity of a Fairview Heights city council resolution that led to a class action suit against the travel agencies.

Resolution 3212-2005 contains a certification dated three months prior to passage of the resolution, according to a brief that defense attorney Robert Shultz filed Nov. 26 at U.S. District Court in East St. Louis.

In addition, according to Shultz, the resolution doesn't bear the signature of a single council member.

"Plaintiff's counsel submitted no evidence demonstrating that the resolution is even an accurate public record," he wrote.

"This creates only more questions about the validity of this resolution and the conduct of those involved with its purported passage," he wrote.

The suit alleges that online agencies have dodged municipal room taxes.

It seeks to recover taxes from two Orbitz companies, two Travelocity.com companies, Lodging.com, Cheaptickets.com, Travelport Americas, Lowestfare.com, Maupintour, priceline.com, Site59.com, Travelweb, Hotels.com, Hotwire and Expedia.

Fairview Heights seeks recovery not only for itself but for every other Illinois city with a room tax, except Chicago.

In all, Fairview Heights seeks to represent 50 cities.

Shultz renewed a previous claim that some council members did not understand that they would pursue a class action.

Fairview Heights filed the suit "individually and on behalf of all others similarly situated."

That language precedes a motion for class certification, but Shultz wonders how many council members understood that.

"It may be that a majority of the Aldermen did not know that the case was a class action and never would have voted for it in the first place if they knew that it was," he wrote.

"In fact," he wrote, "the 'resolution' does not even use the words 'class action.'"

Shultz's brief asked District Judge David Herndon for permission to depose every council member.

Magistrate Judge Donald Wilkerson quashed the depositions in November.

Wilkerson wouldn't even let the online agencies question council member Bonnie Crossley, who volunteered to sit for a deposition.

"Ms. Crossley has not hesitated to talk about the case, and yet the fifteen defendants who have been sued cannot depose her for even one hour at a time and place convenient for her," Shultz wrote.

"Defendants should be permitted to depose the aldermen and examine whether this lawsuit was authorized as a class action against Defendants or not," he wrote.

"The Court record shows that the authorization of this lawsuit is anything but conclusive," he wrote.

"Either this lawsuit was authorized to be filed or it was not," he wrote. "Defendants should be able to find out."

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