EAST ST. LOUIS – U.S. District Judge David Herndon shot down Fairview Heights in its bid for a class action against online travel agencies on March 31, declaring the city didn't belong to the proposed class and he wouldn't certify a class if it did.

Fairview Heights can continue pursuing an individual claim that Orbitz and others owe taxes on rooms they booked, however.

Herndon had signaled bad news for Fairview Heights in February, announcing he would hold no hearing on its motion to represent 50 Illinois cities in a class action.

The city's lead attorney, Richard Burke of St. Louis, simplified Herndon's decision by admitting, in a clumsy way, that the city didn't belong to the class.

Burke tried to slip a new definition into a reply brief in December.

Orbitz protested that it was unfair and highly prejudicial, especially since court rules wouldn't allow them to file a response.

"The Court agrees," Herndon wrote.

"It would be unfair for the Court to allow the amended definition to stand without giving Defendants the opportunity to respond," he wrote.

"This type of endless back-and-forth is precisely the reason why the Court does not allow new issues in reply briefs," he wrote.

"At this point, the class definition should not be a moving target," he wrote.

Then he dropped his bomb.

"That being said," Herndon wrote, "the Court wishes to inform the parties that he believes that even if the new class definition were under consideration, the Court would ultimately reach the same conclusion."

Fairview Heights Aldermen Gil Klein and Bonnie Crossley reacted to the news.

"I didn't think it was justified to begin with," Klein said.

Crossley said she was glad it was over.

"I was unaware from the very, very beginning that it was a class action suit," Crossley said. "If the city had money due to them they could (have) retrieved it through a lawsuit."

Crossley said Herndon's ruling was not mentioned during a regular city council meeting April 1, despite the fact that city attorney Al Paulson was present for the meeting. Paulson's lawfirm is co-counsel in the class action suit.

Fairview Heights didn't convince Herndon that class members shared common questions.

Even if it had, Herndon wrote, "…such common questions would not predominate over the numerous individual questions."

Some cities collect taxes under similar ordinances, he wrote, but he found that "…many of the ordinances are quite different."

He wrote that individual inquiries might be necessary to establish each city's right to obtain relief.

He wrote, "…calculation of individual damages will be unwieldy given the variances in penalty provisions."

The city filed suit in St. Clair County in 2005, against Orbitz, Lodging.com, Cheaptickets, Cendant Travel, Lowestfare, Maupintour Holding, Priceline, Site59, Travelocity, Travelweb, Hotels.com, Hotwire and Expedia.

Defendants removed the suit to federal court in East St. Louis.

Herndon's order reinforces one he signed last year that denied a class action against a Florida company, Integrated Health Plan.

Defense attorneys have quoted that order in Madison County cases ever since, not because it binds state judges but because it so clearly articulates the defense position.

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