MADISON - ST. CLAIR RECORD

Downstate attorneys want Madison County Circuit Judge Daniel Stack to strip $20 million from Illinois Bell or its Chicago area business customers and spread the money around among downstate business customers.

"That is an effective argument down here, I guess, in Madison County," Stack told Timothy Londrigan of Springfield at an April 15 hearing.

Londrigan, his father, Thomas Londrigan, and other class action attorneys are pursuing a claim that Illinois Bell improperly distributed a $90 million refund under legislation aimed at settling rate disputes.

"What about those big businesses that you contend were improperly refunded," Stack asked Londrigan. "Are they going to have to pay it back?"

Londrigan said that was Illinois Bell's problem.

"They paid the wrong people," he said.

"If they want to go after those people and suggest that they were in error and paid and they are entitled to a refund, that is their business," he said.

Londrigan represents Big Sky Excavating, Theis Law Firm and Cathy Scogley, in a suit Big Sky filed in 2003.

Former Circuit Judge Phillip Kardis ruled that the legislation benefited Illinois Bell so openly that it violated the Illinois Constitution.

The Illinois Supreme Court reversed Kardis, who by then had retired.
Stack took the case, both sides moved for summary judgment, and Stack brought them to his court.

Stack said it appeared to boil down to whether the legislation applied to proceedings on the 1995 docket of the Illinois Commerce Commission.

"The '95 proceedings have no application to this statute," Londrigan said.

He said the entire legislation was in response to the 1998 docket alone.

In 2001, he said, an ICC hearing officer proposed an order in the 1998 proceedings that would have required hundreds of millions in refunds.

Shortly after, he said, legislation was passed and went into law.

He said Illinois Bell notified ICC not to take further action in the '98 proceedings because the legislation abated the proceedings.

"They did not give the ICC notice of the same thing concerning the '95 proceedings," he said.

ICC abated only the '98 proceedings, he said, and the legislation clearly granted refunds to customers affected by the abated proceedings.

He said he could go through each and every pleading.

Stack said, "It sounds like a trial to me."

Londrigan said, "Each and every one support the fact that the '95 proceedings have nothing to do with this piece of legislation.

"Nothing further is done in the '95 proceedings until they dismiss them for want of action in 2003."

From that, he said, Illinois Bell argues that the proceedings were pending.

"Pending suggests that something is yet to be done," he said. "What was yet to be done?"

Stack asked if ICC said they closed it because of the legislation.

Londrigan said, "Nobody has ever associated the '95 proceedings with this legislation other than the defendant and the defendant himself didn't do it until 2004.

"Now they resurrect '95 as a justification for paying all these large business customers in Chicago who were deemed in '96 to be competitive."

Stack asked how much of the $90 million went to those customers.

"Forty-nine of it went to Chicago and the people up in the collar counties," Londrigan said.

For Illinois Bell, Theodore Livingston of Chicago said that at the end of 1998, the '95 case had not been decided.

"It is under the jurisdiction of and before the ICC," Livingston said, "and the docket sheet reveals that that is the situation come June 2001.

"If you take the clear and unambiguous language of the statute - 'any case or proceeding pending before the ICC in June 2001' - this case has to be included."

Stack asked if legislators were aware that the '95 docket was still under consideration.

"I don't know," Livingston said. "I don't think anybody in this room knows.

"If the legislation was intended to be limited to the '98 docket, the general assembly certainly knew how to do that.

"The whole purpose of the statute was to end, once and for all, all this debate about competitive classification of business services.

"If you are going to end it once and for all, you have to end all cases in which misclassification was being investigated."

He said ICC staff was involved and knowledgeable about both cases and Illinois Bell's refund proposal was just fine with them.

Londrigan said, "The suggestion that the '95 proceedings were of anybody's concern at the time that this legislation passed in 2001 is pure fiction."

He said Illinois Bell knew Chicago customers were competitive.

"Clearly, the defendant is trying to curry favor with those customers who they are in actual competition with and those customers who represent the large majority of their profit at the expense of the small business customer here Downstate who is not near as profitable," Londrigan said.

Stack said, "This is one of those wonderful cases that's clear as a bell to both of you but not to me, and so I'm not ready to make the determination."

He asked what would happen if he determined $49 million shouldn't have been paid to those businesses.

Livingston said, "We are not talking about 49 million. We're talking more about 19 to 20 million."

Stack said, "Then what does this court do about it. What's the remedy?"

Londrigan said the legislation was less than clear.

"It just says, pay the class members," he said. "It doesn't say how to do it between them.

"The ICC, though, has been kicked out very specifically."

Stack said, "But the ICC staff helped them when they determined how
to do this."

Londrigan said, "They did so inappropriately if they did, and the only evidence that we have of that is the defendant's own self serving testimony."

Livingston said, "We didn't decide who to pay and what to pay them unilaterally."

He said Illinois Bell proposed to pay all business customers on a per line basis and ICC had no problem with that.

"If we were wrong in paying all business customers," he said, "surely they would have told us."

Stack asked if the legislation excluded ICC.

"Not at all," Livingston said. "There are a number of statutes that preserve ICC authority.

"This is a tariff and in fact we are required to do it via tariff. We are required to work with the ICC."

He said plaintiffs should have brought this matter before ICC.

Stack asked for accurate figures that everyone agreed on, about what gets done if plaintiffs win.

"This is not easy stuff to digest," he said. "I'm sorry I can't finish it for you today."