'Dissenting voices' don't alter city's status as class action lead, lawyer argues

By Steve Korris | Sep 21, 2007

Richard Burke

Division in the Fairview Heights city council should not interfere with the city's pursuit of a class action suit against online travel companies, attorney Richard Burke argues in U.S. District Court.

Burke wrote to U.S. District Judge David Herndon that, "a few dissenting voices in a political body, which has resolved to proceed, does not alter the city's representative status."

He wrote that the council has not withdrawn its application to serve as lead plaintiff in a class action.

Burke represents the city in a claim that Orbitz and other travel companies failed to pay taxes on hotel rooms.

Fairview Heights seeks to represent 49 other Illinois cities in the suit.

The council authorized the suit by resolution last year.

Some council members now claim their attorneys did not tell them they would pursue a class action.

Their statements prompted Orbitz attorney Robert Shultz of Edwardsville to move on Sept. 11 for more time to file a response on class certification.

Shultz also moved for a second hearing before Magistrate Judge Donald Wilkerson on Orbitz's right to depose city council members.

Wilkerson held a hearing on the depositions Aug. 29. At press time he had not reached a decision.

Shultz's motion for a new hearing stated, "It appears the aldermen simply want to represent their own city, which is very much understandable."

On Sept. 12, Herndon stayed Orbitz's response to class certification pending an order from Wilkerson on the depositions.

Herndon told Burke to respond to Shultz's motions as soon as possible.

Burke responded Sept. 18 that, "The resolution clearly indicates that a class action lawsuit is proposed, and that every alderman (except Roger Lowery who was absent) voted for it."

"The aldermen cannot claim, subsequent to the passage of the resolution, that they did not know it was a class action," Burke wrote.

The resolution, however, did not define the suit as a class action.

According to Burke, the resolution described it as a representative action.

The conflict shifted that night to a city council meeting.

Alderwoman Pat Baeske moved to retain separate legal counsel to advise council members.

Baeske, Linda Hoppe, Norman Miller, Bonnie Crossley and Gil Klein voted yes.

Lowry, Linda Arnold, Carol Warner, Warren Baker Jr., and Scott Rich voted no.

To break the tie, mayor Gail Mitchell voted no.

Meanwhile, the city's suit has shrunk.

On Sept. 10, Burke dismissed Hotels.com and TravelNow.com.

"This voluntary dismissal is not the result of any agreement or the compromise of any claims, and no class has been certified," Burke wrote.

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