EAST ST. LOUIS - Past and present Casino Queen employees petitioned U.S. Seventh Circuit appellate judges to review denial of class certification for their suit over the collapse of their pension plan.
Their counsel Michelle Yau of Washington D.C. filed the petition on March 11, claiming U.S. District Judge David Dugan committed errors in an order he issued on Feb. 26.
Dugan found too many differences among 529 potential class members about when their claims accrued.
He found it likely that each employee learned different pieces of information that might have affected their knowledge of their claims at different times.
“Commonality does not exist when different employees receive a different mix of various communications,” he wrote.
According to Yau, Dugan didn’t analyze other common questions, “all of which are central to the case and result in uniform answers for the class.”
Yau claimed her clients asked if their employee ownership plan purchased the Casino Queen for more than fair market value.
She claimed resolving this question in the affirmative would establish losses to the plan.
She claimed the answer is identical for all class members because the amount the plan paid for Casino Queen stock was uniform.
She added that whether defendants breached fiduciary duties and whether they determined fair market value by prudent investigation were also identical questions for all class members.
Yau disputed Dugan’s finding that statutes of limitation would vary from person to person.
She claimed defendants engaged in systematic and affirmative acts of concealment separate from the initial wrongdoing and common to the class.
She claimed they sent participants annual statements misrepresenting that their stock had increased in value every year from 2013 to 2017.
She added that they misrepresented the value of the stock in annual public filings.
Yau claimed the defendants “designed a complicated transaction and created an unnecessary holding company to insulate themselves from liability and conceal the illegality of their conduct.”
They allegedly lulled employees into a false sense of security.
Yau claimed members can recover losses to the plan under federal law and determining whether each claim is time barred would be “an unnecessary theatrical endeavor.”
Lead plaintiff Tom Hensiek seeks damages from former owners Charles Bidwill, Timothy Rand, and James Koman and from trusts of their families that owned stock.
He also seeks damages from former casino president Jeffrey Watson, now an associate judge in St. Clair County, and former manager Robert Barrows.
Hensiek claims defendants created the employee ownership plan to pay themselves $170 million for stock that was worthless seven years later.