Madison County's smallest class doesn't have to answer to defense

By Steve Korris | May 13, 2005

Judge Kardis

Of the hundreds of pending class action lawsuits in Madison County Circuit Court, the 70-or-so members of the smallest class of plaintiffs do not have to answer defense questions, Circuit Judge Phillip Kardis has ruled in Wilgus v. Cybersource.

At a May 12 hearing in Granite City, Kardis denied Cybersource's motion to compel discovery among about 75 class members in a suit that Brian Wilgus of Glen Carbon filed in 2002.

Wilgus claimed that when Cybersource merged with his former employer, Paylin X, Cybersource interfered with his exercise of stock options and rendered them worthless. Wilgus and Robert Varner Jr., of Belleville, moved to certify themselves as representatives of a plaintiff class.

Even though defense strategy to question "absent" members has been foiled, the lead representatives still must explain how they were damaged by the merger.

Last year, the plaintiffs and Cybersource agreed on a definition of the class. Kardis certified Wilgus and Varner as representatives.

Cybersource attorney Alan Goldstein of St. Louis, aiming to shave the class to an even smaller number, moved to compel absent members to tell whether they tried to exercise stock options, what the outcomes were, and what damages they suffered.

Plaintiff attorney John Hoffman, of Korein Tillery in St. Louis, opposed the motion. He argued that courts have ordered discovery among absent plaintiffs only in very unusual circuimstances.

At the hearing, Hoffman said discovery among absent plaintiffs would destroy the efficiency that class actions provide. He said class actions protect absent plaintiffs from the burden of discovery.

Goldstein asked Kardis if absent plaintiffs would have to present evidence before the court would award them damages.

"I won't prejudge that," Kardis responded. He denied the motion.

Goldstein did not come away empty handed. Kardis granted his motion to compel Wilgus to answer questions pertaining to the basic charges in the complaint. Kardis gave Hoffman 21 days to answer.

The order also applied to Varner, but Hoffman said he had been unable to reach Varner. Hoffman told Kardis he would drop Varner as a plaintiff.

Hoffman said he would answer after completion of discovery.

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