Wyndham

Wyndham Vacation Ownership, Inc. et al v. Reed Hein & Associates, LLC et al

Case Number: 6:18-cv-02171

Last Updated: May 12, 2021

Status

Trial set for December 1, 2021

Location

USDC, Middle District of FL (Orlando)

Presiding Judge

Judge Gregory A. Presnell

Date Filed

12/19/2018

Highlights

Case Posture

Claims:

In its amended complaint, Wyndham alleged six causes of action against Defendants including false advertising in violation of the Lanham Act; contributory false advertising, tortious interference with contractual relations, violation of Florida’s Deceptive and Unfair Trade Practices Act, civil conspiracy to commit tortious interference, 

Wyndham alleged that Defendants cannot falsely advertise, sell, and guarantee timeshare owners that they will be relieved from their contractual obligations with Wyndham.  Any such advertisement by the attorney defendants Sussman, Schroeter Goldmark & Bender (“SGB”) and Privett would violate the Florida Rules of Professional Conduct.    Wyndham alleged that the non-lawyer defendants TET, Reed Hein, Parenteau and Happy Hour publish the advertisements and then refer any clients to the attorney defendants for representation.   As a part of a conspiracy between Timeshare Exit  Team (“TET”)  and the attorney defendants, TET has bulk retainer agreements directly with the attorney defendants who do not serve as outside counsel even though they claim each of the timeshare owners are represented by counsel.  Wyndham further alleged that the timeshare owners are directed not to contact the attorney defendants and are often unaware of the existence of the attorney defendants.  TET allegedly instructs timeshare owners to stop fulfilling their contracts with Wyndam and by doing so, this will facilitate the exit, transfer and cancellation of the timeshare contract.

Wyndham also alleged that TET does not inform the timeshare owners of the consequences of ceasing the payments to Wyndam and that non-payment of the tfees to Wyndam could lead to adverse consequences and possible foreclosure of their timeshare interests. Wyndham claimed the attorney defendants deceptive and unlawful practices included sending a letter or resignation to Wyndham that the timeshare owner has resigned from the contract, to deed back the timeshare interest to Wyndham or to transfer the deed to a strawman who has no intent or ability to pay for the timeshare interest.  

Summary:

11/18/2020 – SETTLED AS TO SGB: Order Granting Joint Stipulation and Motion for Dismissal [183]:  The Court ordered all claims against the SGB dismissed with prejudice and all pending motions as to SGB were denied as moot.  Each party was ordered to bear its own attorneys’ fees and costs.

7/16/2020- Ruling on SGB’s Petition for Writ of Mandamus [197]:  the United States Court of Appeals for the Eleventh Circuit denied SGB’’s petition for writ of mandamus requesting the appeals court vacate the district court’s order confirming a magistrate judge’s order granting a motion to compel and order to produce documents and materials contained in SGB’s privilege logs.  SGB did not demonstrate that it had a clear and indisputable right to the drastic remedy of mandamus.

6/24/2020- Respondents’  Response to Petition for Writ of Mandamus :  Plaintiffs-Respondents Wyndham Vacation Ownership, Inc. and related entities (“Wyndham”)  filed this response to the Petition for Writ of Mandamus filed by Defendant-Petitioner, SGB). In Wyndam’s Response, it claims a long-standing discovery dispute over Schroeter’s refusal to produce documents to Wyndam under a claim that the documents are protected by the attorney-client and work product privileges.  Wyndham claims the documents are highly relevant to Wyndam’s claims that the defendants engaged in an unlawful timeshare cancellation scheme and the documents withheld contain thousands of pages of correspondence related to the interference with Wyndham’s contracts.  The documents are also key evidence of a conspiracy.  Wyndham further argues that Schroeter failed to carry its burden in establishing a privilege.  Wyndham argued Schroeter has not shown it has a clear and indisputable right to the issuance of a writ of mandamus because SGB did not provide through its privilege logs exchanged in discovery that 1) an attorney-client relationship exists between itself and the timeshare owners it claims to represent; 2) Reed Hein was a necessary party to the relationship; and 3) the documents withheld were prepared in anticipation for litigation.  Last, Wyndham argues that there was no factual or legal basis to conclude that a writ is necessary because the district court did not reach the merits of the privilege issues because the district court found the deficiencies in Schroeter’s briefing and evidence dispositive.

4/27/20- Order On SGB’s Objection to the Magistrate Judge’s Order to Produce Documents and Materials Contained in SGB’s Privilege Logs [184]:  Schroeter filed an Objection to the Magistrate Judge’s ruling on Wyndham’s’ motion to compel and order to produce documents and materials contained in SGB’s privilege logs exchanged in discovery.  The Magistrate Judge’s order was confirmed.  The Magistrate Judge’s holding that SGB failed to demonstrate the privilege was applicable to the documents set forth in the privilege logs was not “contrary to law” or “clearly erroneous” .  SGB’s Objection was overruled.  SGB was ordered to produce the documents and materials set forth in its privilege logs. 

3/31/2020- Order On Defendant Michael Sussman’s Motion To Allow Leslie Jean Benjamin, Esq. to Appear Pro Hac Vice [183]:  The Court granted attorney Michael Sussman’s Motion to allow Ms. Benjamin to appear in this case pro hac vice.  Despite Wyndams’’ opposition that Ms. Benjamin was disqualified to appear due to her status as a witness, the motion was granted.  Ms. Benjamin met all the requirements to appear pro hac vice.  The Court invited Wyndam to file a motion to disqualify Ms. Benjamin once she has appeared in the case and the Court lifts the suspension of the remaining deadlines.

3/30/2020- Defendant Mitchell Sussman’s Reply in Support of Motion to Appear Pro Hac Vice [181]:  Defendant Mitchell Sussman (“Sussman”) claims Wyndam’s’ only identify a single basis for Ms. Benjamin’s disqualification as an attorney to aid in the litigation- that Wyndham intends to call her as a witness to “Defendant’s practice of deeding timeshare interest to third parties or back to the original timeshare company.”  Wyndham will first  have to meet the burden that Ms. Benjamin is a necessary witness in the case before she can be disqualified.

3/19/2020- SETTLED AS TO PRIVETT: Stipulated Final Permanent Injunction Order as to Defendant Ken B. Privett, Esq. [176]:  Wyndham and Privett agreed as part of the settlement of Wyndam’s claims against Privett only  to a stipulated order.  As part of the order,  Privett is permanently restrained and enjoined from advertising to, communicating with, contacting,  or assisting timeshare owners from exiting their timeshare interests.  Privett also agreed to no longer assist any timeshare exit company on behalf of any timeshare owner prepare or transmit any correspondence or compliance related to Wyndam timeshare owners.

1/7/2020 Order On Motion Regarding Wyndam’s Motion to Dismiss Timeshare Exit Team’s (“TET”) Counter-Claim; Response in Opposition filed by TET and Wyndham’s’ Reply [168]:  The Motion to Dismiss filed by Wyndham as to TET is granted as to TET’s counterclaim that Wyndham violated the Lanham Act.  TET was granted leave to amend that claim if TET could address the deficiencies in its’ pleading in good faith.

12/17/2019- Order On Wyndham’s Motion to Strike TET’s Affirmative Defenses [157]:  The Court denied Wyndham’s Motion with regards to Reed Hein’s fifth, eight, eleventh and twelfth affirmative defenses on the basis that the affirmative defenses were to be deemed denials and not stricken.  The Court granted Wyndam’s motion with regards to TET’s fourth and fifteenth affirmative defenses for lack of privity and doctrine of laches with leave to amend.  The Court granted Wyndham’s motion with leave to amend as to TET’s tenth and twentieth affirmative defenses for violation of the First Amendment of the United States Constitution and the alleged predisposition of timeshare owners to breach their contracts with Wyndham. As to Reed Hein’s sixth affirmative defense of unclean hands, TET did not allege that the wrongful conduct by Wyndham targeted the timeshare owners and not Reed Hein.  Reed Hein was not harmed in any way.  As such, the Court granted Wyndam’s motion as to this affirmative defense without leave to amend. The Court denied Wyndham’s motion as to Reen Hein’s seventeenth affirmative defense regarding Wyndham’s standing to bring a lawsuit on behalf of its subsidiaries which are the actual parties to the contracts at issue in the Amended Complaint.   The Court found that Wyndham failed to demonstrate that this defense was legally insufficient. The Court struck TET’s twenty-first affirmative defense that Reed Hein’s encouragement or assistance with timeshare owners breaching their contracts is not illegal as “there is nothing illegal or unlawful about breaching a contract.”   The Court found that this defense was not legally sufficient and may confuse the issues or prejudice Wyndham.  However, TET was given leave to amend, if it  chooses.

12/11/2019- Order on Wyndham’s Motion to Strike SGB’s Affirmative Defenses [156]:  SGB’s second affirmative defense that asserts Wyndam’s allegations plead under certain counts are barred pursuant to Florida’s anti-SLAPP provisions was stricken as it is not considered an affirmative defense.  However, the Court invited SGB to bring an anti-SLAPP motion. The Court treated SGB’s fifth affirmative defense “the pursuit of legal remedies constitutes no ‘trade or commerce’ “ as a denial instead of striking this affirmative defense from the answer. The Court granted Wyndam’s motion as to SGB’s seventh affirmative defense of unclean hands as legally insufficient as the conduct at issue was directed at timeshare owners not SBG and the conduct did not harm SBG. 

11/25/19 – Order denying Defendants’ Motions to Dismiss Plaintiffs’ claims [87]

 

6/10/2019 – Wyndham’s First Amended Complaint.

5/29/2019- Amended Order on Defendants’ Motions to Dismiss Plaintiffs’ Claims [60]:  Defendants’ motions were granted in part.  As to Wyndham’s false advertising claim under the Lanham Act, Wyndham’s claims that TET’s advertising caused Wyndham’s injuries, the Court dismissed this count without prejudice as Wyndham’s injuries are too remote from TET’s advertising and not the type of interest the Lanham Act was meant to protect.  

As to Wyndham’s  contributory false advertising claims against the attorney defendants and Happy Hour Media Group, these claims were also dismissed without prejudice as Wyndham could not state a claim against these defendants under the Lanham Act.   The Court also dismissed Wyndham’s claims that all defendants violated Florida’s Deceptive and Unfair Trade Practices Act as Wyndham conceded that the success of this claim is tied to the success of their Lanham Act claim for false advertising.

The Court dismissed the civil conspiracy claim with prejudice as to SGB and Privett as Wyndham did not allege that the financial fortunes of SBG and Privett were tied to the success of the conspiracy.

The Court denied the motion as to Wyndham’s claims for tortious interference with contractual relations.

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Docket link

Operative Complaint

Critical Orders

Critical Briefs

Transcripts

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Parties

Plaintiffs: WYNDHAM VACATION OWNERSHIP, INC.; WYNDHAM VACATION RESORTS, INC.; WYNDHAM RESORT DEVELOPMENT CORPORATION; SHELL VACATIONS, LLC; SVC-WEST, LLC; SVC-AMERICANA, LLC; and SVC-HAWAII, LLC,

Plaintiffs/Counter-Defendants’ counsel:  Alfred J. Bennington, Jr., Michael L. Gore, Mary Ruth Houston, Glennys Ortega Rubin of Shutts & Bowen, LLP; Raymond F. Treadwell, Florida Department of Business & Professional Regulation; Daniel Joseph Barsky, Holland & Knight LLP

 

Defendant: Reed Hein & Associates, LLC. Happy Hour Media Group, LLC, Trevor Hein, Thomas Parenteau, Brandon Reed

Defendant’s counsel: Amy Leigh Baker, John Y. Benford of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP; Panda Kroll, Law Offices of Panda Kroll; Tyson Jaymes Pulsifer, Shannon L. Zetrouer of Zetrouer Pulsifer, PLLC

Defendant: Mitchell R. Sussman

Defendant’s counsel: John Joseph Bennett, Michael A. Nardella of Nardella & Nardella, PLLC

Defendant:  Schroeter Goldmark & Bender, P.S.

Defendant’s counsel: Robert Michael Klein, Houston S. Park, III, Lelia Maria Menendez Schleier of Klein, Glasser, Park & Lowe PL

Defendant:  Ken B. Privett

Defendant’s counsel: Amy Lynn Judkins, Nichole M. Mooney, Timothy W. Sobczak of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, PA

 

Non-Party: ARDA International Foundation, ARDA-ROC

Plaintiffs’ counsel: Kevin D. Fowler. Foley & Lardner, LLP

 

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