United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
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 (collectively, “Wyndham”) sue
Defendants Reed Hein & Associates, LLC d/b/a Timeshare
Exit Team (“RHA”); Thomas Parenteau
(“Parenteau”); Brandon Reed (“Reed”);
and Trevor Hein (“Hein”) (collectively,
“TET”);as well as Happy Hour Media Group, LLC
(“Happy Hour”); Mitchell R. Sussman
(“Sussman”); Ken B. Privett
(“Privett”); and Schroeter Goldmark & Bender,
separate motions, TET, Happy Hour, SGB, and Privett
(“Movants”) seek to dismiss certain of
Wyndham's claims. (See Docs. 72, 73, 75).
Wyndham has responded. (Doc. 83). Upon consideration, the
Court finds that the motions are due to be denied.
develops and sells timeshares throughout the United States.
(Doc. 63, ¶¶ 2-4, 59-61). Defendant TET is a
timeshare exit company directed and controlled by non-lawyers
Reed, Hein, and Parenteau. (Id. ¶¶ 38-43).
Defendant Happy Hour is a limited liability company formed by
Reed and Hein to act as the in-house marketing agency for
TET. (Id. ¶ 44). Defendants Sussman SGB, and
Privett are licensed attorneys that have “bulk retainer
agreements” with TET. (Id. ¶¶ 45-
alleges that Defendants profit from deceiving timeshare
owners, including owners of Wyndham timeshare properties
(“Wyndham Owners”), into paying
thousands of dollars with the expectation that Defendants
will make it possible for them to get out of their timeshare
contracts. (Id. ¶¶ 4, 5, 10). To do this,
TET publishes false and misleading advertisements to convince
Wyndham Owners that it has a “safe, ”
“legitimate, ” or “guaranteed” means
of “exit[ing]” them from their timeshare
contracts. (Id. ¶¶ 5-6, 10-12, 95-108,
139). Those advertisements [published] by TET are made and
created, at least in part, by Happy Hour. (Id.
successfully soliciting Wyndham Owners, TET instructs them to
stop making payments on their timeshare contracts, telling
them that so doing will facilitate the “exit.”
(Id. ¶¶ 13, 67, 110-111, 132). But TET
does not disclose to Wyndham Owners that non-payment will
result in a breach of their contracts, foreclosure of their
timeshare interests, and other adverse consequences.
(Id. ¶ 14).
then hires lawyer Defendants Sussman, SGB, and Privett
(collectively, the “Lawyer
Defendants”) for a fixed fee to engage in
fruitless negotiations with Wyndham. (Id.
¶¶ 7-9, 112- 114). Without speaking to any Wyndham
Owner, the Lawyer Defendants then send boilerplate demand
letters (“Demand Letters”) to
Wyndham, demanding that it stop communicating with their
client. (Id. ¶¶ 19, 69, 115-128). The
Lawyer Defendants never work with Wyndham to legitimately
terminate a timeshare contract. (Id. ¶¶
115). Instead, they engage in three deceptive and unlawful
i. The “Resignation”: the Lawyer Defendants send
a letter simply “notifying” the relevant Wyndham
entity that the Wyndham Owner has “resigned” from
the Timeshare Contract;
ii. The “Deed Back”: the Lawyer Defendants have
the Wyndham Owner execute a quitclaim deed purporting to
quitclaim the timeshare interest back to the relevant Wyndham
iii. The “Strawman”: the Wyndham Owner's
timeshare interest is transferred to a strawman buyer - who
lacks any intent or ability to pay - without the knowledge or
consent of the relevant Wyndham entity.
(Id. ¶ 17, 20). After using these Strategies,
or after the timeshare contracts are foreclosed on, TET and
the Lawyer Defendants falsely represent to their clients that
they successfully cancelled or transferred their timeshare
contracts. (Id. ¶ 18). These practices
allegedly cause significant harm to Wyndham and to Wyndham
Owners. (Id. ¶¶ 139-147).
December 19, 2018, Wyndham filed the instant suit, seeking
injunctive and monetary relief. Following the Court's
partial dismissal of Wyndham's initial complaint
(see Doc. 60), Wyndham filed an Amended Complaint
asserting claims for false advertising (Count I) and
contributory false advertising (Counts II and III) in
violation of the Lanham Act, 15 U.S.C. § 1125(a);
tortious interference with contractual relations (Count IV);
violation of Florida's Deceptive and Unfair Trade
Practices Act (“FDUTPA”) (Count V); and civil
conspiracy to commit tortious interference (Count VI).
(Id. ¶¶ 144-230). By way of the instant
motions, the Movants seek dismissal of Counts I, II, III, V
and VI. (see Docs. 72, 73, & 75).
Federal Rules of Civil Procedure require pleaders to provide
short and plain statements of their claims with simple and
direct allegations set out in numbered paragraphs and
distinct counts. See Fed.R.Civ.P. 8(a), 8(d), & 10(b).
Where a complaint contains claims of fraud or mistake,
however, Rule 9(b) imposes a heightened pleading standard,
requiring that the circumstances constituting fraud be stated
with particularity. See Brooks v. Blue Cross & Blue
Shield of Fla., 116 F.3d 1364, 1381 (11th Cir. 1997).
This particularity requirement is satisfied if the complaint
alleges “facts as to time, place, and substance of the
defendant's alleged fraud, specifically the details of
the defendant's allegedly fraudulent acts, when they
occurred, and who engaged in them.” U.S. ex rel.
Matheny v. Medco Health Sols., Inc., 671 F.3d 1217, 1223
(11th Cir. 2012) (quoting Hopper v. Solvay Pharm.,
Inc., 588 F.3d 1318, 1324 (11th Cir. 2009)).
complaint does not comport with the pleading requirements or
fails to set forth a plausible claim, it may be dismissed
under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S.
662, 672, 678-79 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). Plausible claims
must be founded on sufficient “factual content”
to allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. See
Iqbal, 556 U.S. at 678; see also Miljkovic v.
Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th
Cir. 2015). To assess the sufficiency of the factual content
and the plausibility of a claim, courts draw on their
“judicial experience and common sense” in
considering: (1) the exhibits attached to the complaint; (2)
matters that are subject to judicial notice; and (3)
documents that are undisputed and central to a
plaintiff's claim. See Iqbal, 556 U.S. at 679;
Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211, 1215-16 (11th Cir. 2012).
do not consider other matters outside the four corners of the
complaint, and they must: (1) disregard conclusory
allegations, bald legal assertions, and formulaic recitation
of the elements of a claim; (2) accept the truth of well-pled
factual allegations; and (3) view well-pled facts in the
light most favorable to the plaintiff. See Hayes v. U.S.
Bank Nat'l Ass'n, 648 Fed. App'x. 883, 887
(11th Cir. 2016); Horsley v. Feldt, 304 F.3d 1125,
1134 (11th Cir. 2002).
False Advertising in Violation of the Lanham Act
Count I, Wyndham asserts a claim against TET for false
advertising under Lanham Act, which provides in pertinent
(1) Any person who, on or in connection with any goods or
services, or any container for goods, uses in commerce any
word, term, name, symbol, or device, or any combination
thereof, or any false designation of origin, false or
misleading description of fact, or false or misleading
representation of fact, which--. . .
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of
his or her or another person's goods, services, or
commercial activities, shall be liable in a civil action by
any person who ...