Defendant in $400 million St. Clair County fax class seeks relief at Supreme Court; Says case could bankrupt business

Steve Korris Jul. 29, 2011, 2:47am


SPRINGFIELD – Marketers of time share lodging in Branson seek relief at the Illinois Supreme Court from a St. Clair County class action that could bankrupt their business.

Surrey Vacation Resorts has petitioned for review of an order from Circuit Judge Lloyd Cueto, certifying Hoyleton Youth and Family Services as class representative.

Class counsel Stephen Tillery of St. Louis claims Surrey transmitted 800,000 advertisements by facsimile in 2003, breaking federal law that bans advertising by fax.

Eight years after suing, he has identified about 500 persons who received the fax.

He nevertheless claims 800,000 violations of law, at $500 each, exposing Surrey to $400 million in penalties.

Surrey pleads that a class action would bankrupt it, and Tillery doesn't disagree.

In February, he wrote that potential bankruptcy is "not an appropriate reason to deny class certification."

He wrote that Surreyshould argue the penalty after the court awards damages.

He brushed off Surrey's argument that a court couldn't properly distribute an award to an unknown class.

"The law with respect to notice in class actions where the identities of class members cannot practicably be determined requires only the best notice practicable," he wrote.

Cueto granted class certification in March, three months after taking a case that had languished for years in the court of retired judge Michael O'Malley.

Cueto wrote that the law doesn't require a plaintiff to identify class members.

He wrote that the law only requires a plaintiff to define a class so that membership is "ascertainable by reference to a set of objective criteria."

Surrey petitioned Fifth District appellate judges in Mount Vernon for leave to appeal, and they denied it in May.

They stayed the mandate while the Supreme Court decides whether to grant an appeal.

Hoyleton Youth and Family Services sued Surrey in 2003.

O'Malley often set the case for conferences, and always continued them.

In 2009, Tillery moved to certify a class action for fax owners in Missouri area codes 314 and 636, and Illinois area codes 618 and 217.

Surrey opposed the motion, attacking the suit as "a vehicle to extort large sums of money from Surrey for a single fax allegedly received more than six years ago."

O'Malley set a hearing but continued it on a motion from Tillery.

O'Malley retired last summer, and Chief Judge John Baricevic assigned Circuit Judge William LeChien to the case.

Last December, Baricevic assigned Cueto to the case.

Cueto held a hearing on March 18, and certified a class action on that date.

Greensfelder, Hemker and Gale, of St. Louis, represents Surrey.

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Belleville, IL 62226

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