By Heather Isringhausen Gvillo | Sep 13, 2018


Auctioneer James Foley, who is accused of participating in a bid-rigging conspiracy with former Madison County Treasurer Fred Bathon, argues that a hearing should be postponed until the plaintiffs establish a class notice plan and respond to numerous motions seeking summary judgment

The hearing to set a trial date was scheduled for Sept. 11 at 9 a.m. “or soon thereafter” with visiting judge J. Marc Kelly of Fayette County after the plaintiffs filed a motion for a trial date on Aug. 9 through attorney Steven Giacoletto of Giacoletto Law Firm in Collinsville.

Foley responded to the plaintiffs’ motion for a trial date and briefing schedule on Sept. 5 through attorneys Ann Barron, Patrick Cloud and Michael Schag of Heyl Royster Voelker & Allen in Edwardsivlle.

Foley argues that his motion for summary judgment was filed on March 15, and despite having almost six months to respond, the plaintiffs have failed to do so.

Additionally, Foley argues the plaintiffs have had more than a year to provide a notice plan and effectuate class notice, but have failed to do so.

“Mr. Foley’s motion for summary judgment, if granted, would dispose of the class claims on the merits," the motion states. "Accordingly, before a hearing can occur, and before any trial, plaintiffs must give notice to absent class members.

“While Mr. Foley has no objection to the court setting a briefing scheduling, hearing date, and ultimately a trial date, if necessary, class notice must occur before these dates."

The motion states that almost 18 months ago, defense counsel raised the issue that class notice was required before any hearings on substantive matters. However, the plaintiffs have not submitted a proposed class notice plan.

“Accordingly, while Mr. Foley has no objection to setting a hearing date for his motion for summary judgment, class notice (and an opportunity to opt out) must be effectuated prior to the hearing date. While plaintiffs are giving notice, plaintiffs can be responding to Mr. Foley’s motion for summary judgment and any other pending motions,” the motion states.

Plaintiff attorney Nelson Mitten of St. Louis filed the bid-rigging suit on behalf of a class of individuals who allege Bathon arranged for tax buyers to charge interest at the maximum legal limit of 18 percent at auctions of delinquent property taxes from 2005 to 2008.

The plaintiffs allege Bathon conspired with each tax purchaser defendant to establish a “no trailing bid” policy, meaning the process required one-time, simultaneous bidding. Rather than allowing a series of bids, all bidders had to bid at once, with the auctioneer accepting the lowest bid that was heard.

The defendants allegedly then made an agreement with Bathon to bid the maximum of 18 percent in the simultaneous bidding.

Bathon was charged in February 2013 with violating the Sherman Antitrust Act. He pleaded guilty the same day. Defendants Scott McLean, Barrett Rochman and Joe Vassen also entered guilty pleas to federal antitrust charges in October 2013.

Mitten filed the third amended complaint Sept. 25 after Kelly of Fayette County granted their request to re-join Madison County and Madison County Board Chairman Kurt Prenzler as defendants.

They had been previously excused by the Fifth District Appellate Court on an appeal regarding class certification.

Since the plaintiffs’ third amended complaint had been filed, several defendants have filed motions for summary judgment.

The defendants have made various arguments in their motions, including allegations that the plaintiffs’ claims are barred by the statute of limitations and that several defendants were not involved in a conspiracy with respect to sales of delinquent property taxes in Madison County.

Madison County Circuit Court case number 13-L-276

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