Madison - St. Clair Record

Friday, April 3, 2020

Trial to be set after dispositive motions decided in Madison County bid-rigging suit


By Heather Isringhausen Gvillo | Sep 20, 2018

General court 09

Visiting judge J. Marc Kelly of Fayette County pushed back a hearing to set a trial date in a suit involving an alleged Madison County bid-rigging conspiracy until after motions to dismiss and motions for summary judgment are decided.

In an order filed Sept. 11, Kelly scheduled a hearing for the motions on Nov. 26 at 9 a.m.

Plaintiffs were ordered to file responses to pending dispositive motions by Oct. 31, with defendants filing replies by Nov. 14.

Kelly wrote that motions to bar shall be addressed after decisions are made on dispositive motions.

Plaintiffs were also ordered to submit clear notice to court by Sept. 25 with an opt-out date of Nov. 25.

A trial date will be set after the dispositive motions are decided.

Plaintiffs filed a motion for a trial date and briefing schedule on Sept. 5 through attorney Steven Giacoletto of Giacoletto Law Firm in Collinsville.

Defendant James Foley responded to the motion for a trial date on Sept. 5 through attorneys Ann Barron, Patrick Cloud and Michael Schag of Heyl Royster Voelker & Allen in Edwardsville.

Foley argued 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.

Foley also argued that the plaintiffs have failed to provide a notice plan and effectuate class notice.

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

Foley added that while he has no objection to setting a hearing date for his motion for summary judgment, both the issue of class notice and the opportunity to opt out must be addressed first.

“While plaintiffs are giving notice, plaintiffs can be responding to Mr. Foley’s motion for summary judgment and any other pending motions,” the response stated.

Plaintiff attorney Nelson Mitten of St. Louis filed the bid-rigging suit on behalf of a class of individuals who allege former Madison County Treasurer Fred 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 for 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.

Mitton 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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Madison County Circuit Court