EAST ST. LOUIS - Attorneys for Fairview Heights think they see a silver lining on the dark cloud that U.S. District Judge David Herndon cast over their proposed class action suit against Orbitz and other online travel agents.

The city moved Feb. 29 to extend discovery 120 days beyond his order.

Herndon all but denied the city's class certification motion Feb. 12, ruling that he would take it under advisement without holding a hearing.

His declaration sounded like trouble for Fairview Heights, because the city admitted in January that it doesn't belong to the class it wants to represent.

Fairview Heights sued in 2005, alleging that online travel agents should pay municipal hotel taxes on rooms they book.

The city intended to represent about 50 Illinois cities that impose room taxes.

Defense attorneys, however, discovered a difference between use taxes and occupancy taxes suggesting that Fairview Heights belonged to the wrong class.

Rather than dispute that, Fairview Heights attorney Richard Burke of St. Louis tried to amend the class definition in a brief.

Defendants cried foul, and days later Herndon decided he wouldn't hold a hearing.

Nevertheless, Burke moved to extend discovery deadlines.

He wrote that the court may have to issue a class notice.

He wrote that appeals may follow Herndon's order.

Along with Burke, Kevin Hoerner and Alvin Paulson of Belleville, Paul Weiss and William Sweetnam of Chicago and Karl Barth of Bellevue, Washington, represent Fairview Heights.

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