EDWARDSVILLE – Former Madison County treasurer Fred Bathon, fresh from prison, ignored a court order to provide an email address for a class action over a bid rigging conspiracy he led.
Visiting judge William Becker reacted in surprise at a status conference on Sept. 3, upon learning that no one had contacted Bathon.
Paul Slocomb, representing alleged bid rigger John Vassen, told Becker he didn’t know if Bathon received a letter he mailed.
Slocomb said he did not have a telephone number for Bathon.
He said Steve Giacoletto, a lawyer for victims of the conspiracy, sent him Bathon’s last home address in Collinsville.
He said, “In the future, I will courier it over to make sure that -.”
Becker said, “But doesn’t he have an email address on file?”
Slocomb said no.
Giacoletto said, “No, he doesn’t. I actually wrote him, though.”
He said, “I corresponded in some way with him that he needs to give us his email, that it’s court ordered to that effect actually, but that doesn’t mean he did it.”
He said, “He has been put on notice.”
Becker said, “So he had been ordered to provide it and he has never provided it?”
Giacoletto said, “Correct.”
Becker dropped the subject, and the conference continued.
He later signed an order directing Bathon to provide a valid email address.
Bathon went to prison in 2013, after pleading guilty to a charge that he favored Democrat donors who bid on delinquent taxes at auctions from 2005 to 2007.
Bathon stifled competitive bidding so that tax buyers who contributed money to Democrat campaigns could charge property owners 18 percent interest.
Vassen also pleaded guilty, as did tax buyers Barrett Rochman and Scott McLean.
U. S. attorney Stephen Wigginton could have sought restitution for victims but did not, finding it would be impracticable to calculate individual damages.
Victims then sued Bathon, tax buyers, the county, and former auctioneer James Foley in circuit court.
Becker certified a class action this June, and Fifth District appellate judges denied a petition for leave to appeal his decision in August.
Defendants face a Sept. 21 deadline on any petition for Supreme Court review.
At the conference on Sept. 3, after discussing Bathon’s contact information, Becker said defendants wanted to stay the action pending a Supreme Court decision.
He said he thought discovery could proceed on liability but not damages.
Neither side liked his idea.
Slocomb said he should rule that he would stay the case if the Supreme Court grants leave to appeal.
He said, “We are only a few weeks away from that.”
Giacoletto said, “The plaintiffs want to keep the discovery moving in all phases.”
Becker said, “How much work needs to be done?”
Giacoletto said, “As far as I know, the defendants are all out of prison now.”
He said, “Fred Bathon’s deposition would be nice.”
He said, “His is more important than the other defendants who have already given a lot of statements, but they may want each other’s depositions.”
Slocomb said, “I would agree with Steve, at least from the Vassen perspective, there is quite a bit of work that needs to be done on the liability aspect of it.”
Becker said, "Statistically, if the appellate court hasn’t taken it, I doubt the Supreme Court will take it.”
On behalf of the county and auctioneer Foley, Patrick Cloud said it might make sense to open discovery on liability for the time being.
Becker said, “You would start with the most culpable defendants, the ones who have gone to jail first?”
Giacoletto said, “Perhaps.”
He said the defense argument was, “We have confessed criminal defendants, let’s give them a break and let’s not make them have any expenses.”
Cloud said he expected that people representing them would want to make them available for deposition only once.
Slocomb said, “I will reproduce my client a second time.”
On behalf of tax buyer Dennis Ballinger, Daniel Delaney said his client was the only defendant deposed who wasn’t a county official or employee.
He said, “I wouldn’t expect there to be damages questions to tax buyers.”
Becker asked Giacoletto if he would contact each parcel owner. Giacoletto said no.
Slocomb said, “But we will.”
He said, “We certainly would be entitled to put on our proof of damages, and that would include an individual parcel by parcel analysis.”
Delaney said, “If they don’t bring in individual property owners, then I think you have to direct a judgment in defendant’s favor.”
Giacoletto said, “In what class action do you bring in an individual consumer to talk about whatever the defendants did wrong?”
Delaney said, “When damages are based on individual facts and circumstances, yes, you do that.”
Becker said, “Then the Supreme Court should send it back and say that I shouldn’t have certified.”
Delaney said, “They may.”
Giacoletto said, “Then we will have one big trial on liability and four thousand mini trials, which you were trying to avoid.”
Becker said that if he bifurcated liability and damages, people would come back for depositions or be sanctioned.
He said, “This business about I’m too busy or this doesn’t work? Figure it out.”
He said, “If you can’t figure it out, you will get a date. The plane leaves at nine.”
He said that if the Supreme Court takes it, he would probably stay it.
He said, “If they take it, they’re probably going to reverse me.”
He said, “Otherwise they wouldn’t take it. That’s my suspicion.”
He said, “So you can proceed on liability issues.”
He told Giacoletto his damage testimony wouldn’t come from defendants.
Giacoletto said, “Not primarily, your honor.”
Becker said, “You’ll be able to get, the sale was conducted this way and because the sale was conducted this way, we don’t know whether property owner A or B would have a higher or lower rate.”
He said, “They’ll probably have to conceded that. At least the persons who have been convicted will probably have to concede that.”
Slocomb said, “Can we put in the order that Bathon is to provide the parties with an email address again, and then we can send him a copy of that?”
Becker said, “He was previously ordered?” Slocomb said he was.
Becker said, “If he is reordered, maybe it will get done?”
Slocomb said, “Remind him that he’s reordered.”
Becker said, “Until he does, he’s not entitled to notice for sure.”
He said, “Let’s put it this way. If he doesn’t provide an email address and he complains that he hasn’t had notice, we won’t be listening.”