Defendants in tax sale lawsuit oppose motion seeking class certification

Defendants who are being sued over Madison County tax sales filed several oppositions against class certification, arguing that no formal motion seeking to establish a class even exists since the only two requests were withdrawn last month.

Three separate lawsuits consolidated to one case seek damages for property owners who claim they had to pay artificially high prices to redeem their overdue taxes during the period of time when former Madison County treasurer Fred Bathon was in office. Plaintiffs claim that up to 10,000 property owners may have been affected.

In one Dec. 31 opposition filed by Natalie Kussart, Andrew Kasnetz and Timothy Sansone of Sandberg Phoenix & von Gontard on behalf of a number of defendants, they argue that there is no formal motion for class certification pending.

They explain that plaintiff Scott Bueker originally filed a motion on March 18, 2013, but it was withdrawn on Dec. 5. Also, plaintiff Geralyn Lindow filed her own motion on May 6, 2013, but she later withdrew from the case on Dec. 8. Therefore, there are no pending motions for class consideration, and the appropriate time to seek a class has long passed, they argue.

Regardless, the defendants say that class certification would not be proper.

They state in their opposition that the class definition is too broad and will include members who have not suffered a damage through inflated tax sales.

“Even after considering specific data available concerning the tax sale auctions, one cannot determine with any level of certainty which properties were ‘inflated’ to 18 percent, and which properties still would have sold at 18 percent, regardless of any wrongdoing,” the defendants argue.

The plaintiffs have defined their proposed class as “all persons who owned any parcel of property that was sold at a Madison County tax sale auction in the years 2005, 2006, 2007 and/or 2008 and with respect to which a Certificate of Purchase was obtained at such auction in response to a penalty rate bid of 12 percent or higher.”

However, the defendants note that the plaintiffs fail to account for economic conditions and other subjective factors that could have resulted in maximum percentage on tax liens without any wrongdoing.

“In light of the numerous complex or otherwise subjective factors and variables that determine at what rate a particular parcel of property goes at a tax sale auction, neither a court nor a jury can, on a class-wide basis, determine which property owners’ tax bills were inflated due to wrongdoing, as opposed to market forces and other subjective factors and variables at play,” the opposition states.

The defendants also argue that class certification should be denied because “there is no practical way to determine damages on a class-wide basis,” and the plaintiffs failed to offer any methodology on the matter.

The defendants argue too many individualized factors and variables exist to rely on a universal method to calculate damages for the class:

-          Unique property characteristics;

-          Economic considerations;

-          Characteristics of individual tax lien purchasers; and

-          Characteristics of individual holders of interests in parcels;

“Simply put, there is no ‘one size fits all’ model that works across the board, or a non-arbitrary methodology that could account for the pertinent subjective factors and variables,” the opposition states.

Additionally, the plaintiffs failed to establish that they will “adequately” represent the interests of the putative class or that their attorneys will “vigorously” represent the interests of the class, the opposition states.

“Class actions pose a serious danger that class counsel will abuse the class action mechanism ‘to increase litigation and settlement bargaining power for individual gain in disregard of or at the expense of claims of absent class members,’” the defendants argue.

“Here, plaintiffs have alleged no facts indicating their interests are the same as those who are not joined in the action,” they add.

Because it would be inefficient to provide individualized inquiry into the issue of damages for each parcel, but recovery without such detailed discovery would be unfair to the defendants, they urge the court to deny class certification.

Defendants Barrett Rochman’s; SI Securities, LLC; Sabre Group, LLC; CDBR; Blue Sky Vineyards, LLC; and Kenneth Rochman filed the opposition through their Sandberg Phoenix & von Gontard attorneys.

Defendants James Foley; Madison County; Dennis Ballinger, Jr.; Empire Tax Corp.; Vista Securities, Inc.; Scott McLean; Land of Lincoln Securities, LLC; Prairie State Securities, LLC; and John Scott all filed individual oppositions to the plaintiffs’ request for class certification.

Bathon, who served as treasurer from 1998 until his resignation in 2009, pleaded guilty in 2013 to violating the Sherman Antitrust Act in relation to rigged tax sales. He was sentenced to 30 months in federal prison. Tax buyers John Vassen, Scott McLean and Barrett Rochman also pleaded guilty in connection with the scheme and are serving prison sentences.

Clinton County Associate Judge William J. Becker is presiding over the consolidated case.

Plaintiff Scott Bueker is acting as the lead plaintiff. He is represented by Aaron G. Weishaar of Reinert Weishaar and Associates in St. Louis and others.

Madison County Circuit Court case number 13-L-276