Nolen v. Fairshare Vacation Owners Class Action Notice

[samara64]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA If You Own, or Previously Owned, a Wyndham Timeshare and Joined Club Wyndham Plus, a Class Action Lawsuit May Affect Your Rights. Nolen et al. v. Fairshare Vacation Owners Association, 6:20-cv-00330-PGB-EJK (M.D. Fla.) A FEDERAL COURT AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION FROM A LAWYER. YOU ARE NOT BEING SUED. Four Club Wyndham Plus Members—referred to here as “Class Representatives”—sued Fairshare Vacation Owners Association (“Fairshare”) alleging that Fairshare violated its fiduciary duties to Club Wyndham Plus Members (“Club Members”). Most Wyndham timeshare owners join Club Wyndham Plus. To join Club Wyndham Plus, Club Members assign their Timeshare Use Interests to the Fairshare Vacation Plan Use Management Trust (the “Trust”). Fairshare acts as Trustee for the Trust, and as such, it owes fiduciary duties to Club Members. Class Representatives allege that Fairshare violated those fiduciary duties by, among other things, entering into transactions with Wyndham-related entities and maintaining a significant surplus sum of money in the Trust’s Fund account (a “Fund Balance”) that it should have returned to Club Members. If the Class Representatives are successful, changes to the operations of Club Wyndham Plus could occur. Fairshare denies the allegations against it. It does not believe it violated any fiduciary duties. Fairshare has alleged other defenses to the Class Representatives’ legal claims. The Court has not decided whether Fairshare did anything wrong. There is no money available now and no certainty there will be. However, your legal rights are affected, and you have a choice to make now. Your Legal Rights And Options In This Lawsuit​ DO NOTHING​ Stay in this lawsuit. Await the outcome. Give up certain rights. By doing nothing, you keep the possibility of getting money or benefits that may come from a trial or a settlement in this case. But you give up any right to sue Fairshare separately on any claim in this lawsuit. EXCLUDE YOURSELF BY JANUARY 17, 2022​ Get out of this lawsuit. Get no benefits from it. Keep your rights. If you ask to be excluded from the lawsuit and money or benefits are later awarded, you won’t share in those. But you keep any right to sue Fairshare separately on the claims in this lawsuit. Who Is a Class Member? – The Court certified a class consisting of all Club Wyndham Plus Members, or former members, since March 14, 2008. Specifically, the class is defined as: All persons and entities who are citizens of the United States of America and who on or after March 14, 2008: (1) purchased a timeshare with a Property Interest (or the Use Rights therein) subject to the Fairshare Vacation Plan Use Management Trust or (2) purchased (including upgrading or refinancing) a Property Interest (or the Use Rights therein) previously subject to the Fairshare Vacation Plan Use Management Trust. You are receiving this notice because Fairshare’s records have identified you as a potential class member. Please note that excluded from the Class are members of the judiciary assigned to this case, entities currently in bankruptcy, entities whose obligations have been discharged in bankruptcy, and governmental entities. Also excluded from the above Class is Fairshare, including any entity in which Fairshare has a controlling interest, is a parent or subsidiary, or which is controlled by Fairshare, as well as the officers, directors, affiliates, legal representatives, heirs, predecessors, successors, and assigns of Fairshare. Your Rights and Options – If you do NOT want to participate in this class action, you may exclude yourself from the case by submitting a written request postmarked by January 17, 2022. If you do not exclude yourself, you will be bound by all future decisions in this case whether favorable or unfavorable to the Class, including possibly the terms of any settlement that may be reached, and you will give up your right to individually sue Fairshare regarding the claims in this case. This notice is only a summary. Complete information about the lawsuit, including your rights and options, is available at www.CWPclassaction.com or by calling the Class Notice Administrator at 1-855-675-3120. Please do not call the Court. The Court authorized this notice.

 

[samara64]

I am not a Wyndham owner (only Worldmark). Got this email notice. Figured I will share it here.

 

[bobbyoc23]

I also received this email.

Class Representatives allege that Fairshare violated those fiduciary duties by, among other things, entering into transactions with Wyndham-related entities and maintaining a significant surplus sum of money in the Trust’s Fund account (a “Fund Balance”) that it should have returned to Club Members.

This is a vague accusation. Might this be related to Extra Holidays?

 

[rpeacock]

Here is the complaint. View attachment Nolen-v-Wyndham.pdf

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[raygo123]

If Nolin wins. Everyone who bought after 2008 will get screwed.

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[Joe33426]

Here is the complaint. View attachment 43104

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Thanks for sharing the link to the complaint. I'm not an attorney, so I can't speak to the self-dealing claims, but it seems pretty obvious that Wyndham has a lot of self-dealing. They run the trust, sell and market the resorts, manage most of the resorts, run an exchange company, conduct a rental business within the resorts, have a resale operation, and god only knows what else. Whether all this self-dealing is illegal, who knows, but what we do know is that Wyndham has good lawyers....

As far as the claim about retaining too much excess profits in the trust, I'm an accountant, and just looked at the audited financial statements for the trust, and although the trust has positive operating fund balance of $18 million as of 12/31/20, that doesn't seem excessive given the size and scope of the trust. The trust needs sufficient fund balances to operate. What's surprising to me is that the trust actually had a profit of $10 million last year (during the pandemic). That $10 million is in the $18 million of "retained excess profits". If the $18 million were to be given back to the owners we'd probably get a few dollars each, given the number of people in the trust. I was hoping to see some multiple of annual revenues in the financials and to get a "big" refund when the lawsuit settles. Retained profits is about 11% of annual revenues in 2020, not a ton of excess profits being retained.

 

[minimallet]

Appreciate the info. We originally started as Fairshare owners before converting to Wyndham Timeshare. This is the first we are hearing about this lawsuit. We have not received any emails/mail regarding the class action lawsuit.
Any recommendations?

 

[HitchHiker71]

I am a CWP owner since 2018 - did not receive this class action notification.


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[Roger830]

If there was $10 million excess profits last year, that's a good thing for the members that pay the program fee, perhaps no increase.
It's too bad that the bottom feeders want a piece of it.

 

[njbelf]

I got this email as well. I'm not exactly sure when we picked up our contract but it's been over 10 years ago...

 

[bryjake]

I received the email as well
The email spells out options of "do nothing" or "exclude" but does not address the critical what and why details of the class action suit
Upon searching the internet, I learned the suit was filed in FL and the details could are behind paywalls
Is anyone aware of the specific claims being disputed
I also wonder if we, as owners, are paying for the Wyndham's lawyers to dispute this case as well

In conclusion, more details and specifics please

 

[rickandcindy23]

I would never join that lawsuit. There is no reason to do it. I don't think a check for $1.25 will make or break my budget. These class-action lawsuits are good for the lawyers.

 

[markb53]

I got this notification by email also. I bought into Wyndham back in 2011. I probably will not be going through the trouble of excluding myself so I can preserve my right to sue Wyndham in the future. I will just except the $1.25 settlement (if it’s that much I’d be surprised) if that happens. I agree the lawyers make the real money in most class action cases.

 

[paxsarah]

Nolen et al.

@troy12n What did you do?!?





I kid, I kid - I know it’s not you. Though I did go look up the full name to be sure.

 

[bigeyes1]

I also received an email regarding this class action lawsuit. I honestly don't know why people sue big companies. It's only the lawyers who benefits from it.

 

[jules54]

Why exclude oneself? Sounds like all the owners will be paying for the Wyndham legal team. Am I wrong?

 

[CO skier]

Here is the complaint. View attachment 43104

Thanks for the link. It was interesting reading.

The attorneys for the plaintiffs seem confused. The lawsuit lumps the money collected for the Program Fee and maintenance fees into one "Program Fee". Maintenance Fees for the Club Wyndham Plus (points) Program are collected by Wyndham but are passed on to the HOAs of the individual resorts They are not retained in the Trust.

The attorneys do not understand how an exchange program like RCI or Interval International works. RCI is not part of the Fairshare Trust.

These are a couple of the main points of the lawsuit:

82. As a result of Defendant Trustee, Fairshare Vacation Owners Association’s, violations of Ark. Code Ann. §§ 28-73-404, 28-73-802 and 28-73-1003, Plaintiffs and members of the putative class have been damaged by paying excessive Program Fees and excessive financing rates and charges. Plaintiffs and members of the putative class have been further damaged by paying membership fees, transfer fees and exchange fees to participate in the RCI exchange program. Finally, Plaintiffs and members of the putative class have been damaged by failing to receive any income or distributions from the Fairshare Trust as a result of revenue generated from the use of Fairshare Trust property in the RCI exchange program. Absent any actual damage, Plaintiffs and members of the putative class are entitled to disgorgement of all excess funds and profits obtained by Defendant Trustee, Fairshare Vacation Owners Association, as a result of its violations of the Arkansas Trust Code as more specifically set out in paragraphs 56 through 81 above.

111. As a result of Defendant RCI’s violations of Ark. Code Ann. §§ 28-73-404, 28-73- 802,and 28-73-1003, Plaintiffs and members of the putative class have been damaged by paying RCI membership fees, exchange fees and transfer fees. Plaintiffs and members of the putative class have been further damaged by failing to receive any income or distributions from the Fairshare Trust as a result of revenue generated from the use of Fairshare Trust property in the RCI exchange program. Absent any actual damage, Plaintiffs and members of the putative class are entitled to disgorgement of all excess funds and profits obtained by Defendant RCI as a result of its violations of the Arkansas Trust Code as more specifically set out in paragraphs 103 through 110 above.


Does any experienced Club Wyndham owner see any basis for these two allegations, or any of the other allegations in the lawsuit? About the only thing I can see is the mandatory RCI membership that is part of the program fee (the handy TUG Timeshare Comparison Chart shows mandatory RCI membership with Hilton and Disney timeshares). If RCI membership becomes optional as a result of this lawsuit, members would likely have to pay the regular membership price to join RCI instead of the discounted price through the current program fees.

 

[paxsarah]

Why exclude oneself? Sounds like all the owners will be paying for the Wyndham legal team. Am I wrong?

The only substantive reason to exclude oneself would be if you planned to file your own suit or pursue some individual remedy against Wyndham. I don’t even really know the specifics of this one (I’ve got the filing open in a browser tab but I just don’t have the energy to read it all EDIT: CO skier helpfully summarized as I was posting), but it doesn’t seem to be anything related to the loudest complaints we usually hear. Some of those (“Wyndham ruined my rental business!”) I could see someone opting out of a hypothetical class in order to pursue their own remedy. But probably not this one.

EDIT 2: I guess a less substantive reason to opt out would be on principle because it doesn’t seem like a very good suit, based on CO skier’s analysis. But I probably won’t bother, since as Geddy Lee once said “10 bucks is 10 bucks” (if it’s even that much).

 

[CO skier]

I would never join that lawsuit. There is no reason to do it. I don't think a check for $1.25 will make or break my budget. These class-action lawsuits are good for the lawyers.

You, me and everyone else who meets the definition of "the class" are automatically a part of the lawsuit. If you do not want to be a part of the lawsuit, then you must act to exclude yourself from the lawsuit by the January deadline.

 

[CO skier]

Thanks for sharing the link to the complaint. I'm not an attorney, so I can't speak to the self-dealing claims, but it seems pretty obvious that Wyndham has a lot of self-dealing.

After a full reading of the lawsuit, it strikes me as just a self-dealing law firm filing a nuisance class action lawsuit on a contingency basis looking for a multi-million dollar payday as the result of a negotiated settlement.

 

[55plus]

I've been on the receiving end of three class action suits. Two lead to not much of an outcome, but one was surprisingly profitable. As for Wyndham, I believe Wyndham self insures, meaning they need a lot of money in reserve. I'd rather Wyndham have a boatload of cash than a multitude of special assessments. To me it looks like a bogus suit.

 

[Sloane S]

as Geddy Lee once said “10 bucks is 10 bucks” (if it’s even that much).

I have that on vinyl!

 

[plpgma]

As a Club Wyndham Plus owner -- I hope the lawsuit goes through and that the Plaintiffs win! Then my only worries will be 'How do I spend my net $0.12 share of the proceeds?'

 

[kaljor]

I don't pay much attention to these class actions that I'm inadvertently a part of, although I do check into the proceedings from time to time. In my time. I've gotten a decent benefit from Cablevision (an extra box free for a year) and a couple of $10 to $20 checks, and also a coupon from an HP class action. Like I'd want to spend more money with a company that admitted to screwing customers. But of course I did, when they later had the best product at the best cost! I expect nothing, and I often get something. Even if not much.

 

[rickwward]

I'm here because I'm confused about this suit, AND DID NOT RECEIVE A NOTICE.

I may not be a member of the class since my points were all acquired before 2008.

If not, I might intervene in the suit (I am a member of the DC and VA bars, but this is federal practice, so I can readily participate in FL legal proceedings, especially since my own interests are at stake).

I'll definitely be contacting the questions line (1-855-675-3120) to see what is going on here.