Judge Herndon mulling Fairview Heights' class cert motion without hearing

Steve Korris Feb. 21, 2008, 9:18am


EAST ST. LOUIS – U.S. District Judge David Herndon will hold no hearing for the city of Fairview Heights on its motion to certify a statewide class action seeking back taxes from Orbitz, Travelocity and other online travel agents.

"After further review of the motion and briefs, the Court has determined that a hearing will not be necessary," Herndon wrote Feb. 12.

"The motion is now under advisement," he wrote.

Fairview Heights seeks to represent about 50 Illinois cities in a bid to collect municipal room taxes from online companies that book rooms.

Herndon's order keeps hope alive for Fairview Heights, but just barely.

After all, the city doesn't belong to the class.

City attorney Richard Burke admitted as much in a Jan. 14 brief and blithely declared, "Plaintiff amends the class definition to bring it in conformity with the facts of the case."

Not so fast, defendants replied.

They protested that Fairview Heights can't amend the definition without amending its certification motion.

They had caught Fairview Heights out of bounds by drawing a distinction between cities that collect use taxes and those that collect occupancy taxes.

Herndon's order appeared on the court's electronic filing system as a docket entry only, with no elaboration.

Judges seldom decide class certification motions without holding hearings.

In the only such case that reached a federal appellate court, a trial judge had denied certification and the appellate court affirmed the decision.

In that case, Burns v. Long, a pro se prisoner in Washington, D.C., sought to represent all Jewish prisoners asserting a right to meals without pork.

The trial judge found Burns an inadequate representative of the proposed class.

The appellate court agreed and stressed that denial of class certification did not impair Burns in litigating his own claim.

Similarly, Fairview Heights can pursue recovery for itself if not for a class.

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