Class Action Lawsuit Filed Against RC and Marriott 12/11/2012 (Post 3 of 3)
55. A class action is superior to other methods for the fair and efficient adjudication of the claims herein asserted, and no unusual difficulties are likely to be encountered in the management of this class action. Additionally, the prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications, establishing incompatible standards of conduct for Defendants.
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56. Rule 23(a)(2) and Rule 23(b)(3) are both satisfied because there are questions of law and fact which are common to the Class and which predominate over questions affecting any individual class member. The common questions include, inter alia, the following:
a. whether Defendants have devalued the properties located at its RCDCs by removing the essential qualities of the RCC/RDCD, including, but not limited to, its owner-member characteristic;
b. whether Defendants have devalued Plaintiffs’ properties by removing its brand from resorts at Winding Bay in the Bahamas, and Kapalua Bay, Hawaii;
c. whether Defendants charged and received improper sums based on claims that the properties would provide benefits they did not;
d. whether the Class is entitled to injunctive and other equitable relief, including restitution and disgorgement, and if so, the nature of such relief; and
e. whether the Class is entitled to compensatory damages, and if so, the amount of such damages;
57. Plaintiffs’ claims and the claims of members of the Class all derive from a common nucleus of operative facts. That is, irrespective of the individual circumstances of any class member, liability in this matter will rise and fall with a relatively few core issues related to Defendants’ changes to the Club and resort reservation system.
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58. Plaintiffs’ claims are typical of the claims of the Class members. Plaintiffs have the same interest as all members of the Class in that the nature and character of the challenged conduct is the same.
59. Plaintiffs will fairly and adequately represent and protect the interests of the Class. Plaintiffs purchased and paid a premium for properties based on Defendants’ representations about the quality and nature of the Club. Plaintiffs’ interests are entirely consistent with, and not antagonistic to, those of the other members of the Class. Plaintiffs have retained competent counsel experienced in the prosecution of consumer and class action litigation.
60. Defendants have acted or refused to act on grounds generally applicable to the Class, making injunctive and declaratory relief appropriate with respect to the proposed Class as a whole.
INJURY
61. By reason of the above-described conduct, Defendants caused actual harm, injury-in-fact, and loss of money to Plaintiffs and the Class. Plaintiffs and the Class were injured in the following ways:
a. Plaintiffs and members of the Class paid hundreds of thousand dollars for Defendants’ properties for the purpose of becoming a part of and enjoying specific privileges including, but not limited to, exclusivity and Defendants’ branded amenities and services;
b. Defendants’ changes to the Club have removed these aspects which Plaintiffs valued and paid a premium for;
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c. Plaintiffs and members of the Class have been deprived of the cost of their properties, requiring restitution;
d. Plaintiffs and members of the Class have been deprived of the benefit of their bargains and suffered other damages by purchasing these properties which do not provide the benefits that Defendants represented.
CAUSES OF ACTION
COUNT I (BREACH OF CONTRACT)
62. Plaintiffs incorporate paragraphs 1 - 56 by reference as if fully set for the herein.
63. As described herein, in exchange for their purchase of an undivided fractional ownership in Defendants’ properties, Defendants offered to provide Plaintiffs with, among other things, (1) the benefit of an owner-member based system rather than a points-based system, and (2) the benefit of Ritz-Carlton’s branded services and amenities.
64. Plaintiffs accepted Defendants’ offer and paid a substantial premium for the benefit of being a member of the Club which included the benefits described herein.
65. By introducing the points-based system and by removing some of the amenities and services previously offered to purchasers of fractional ownership interests, Defendants have changed the fundamental characteristics of Plaintiffs’
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ownership interests such that Plaintiffs are no longer receiving the benefit they bargained for.
66. As a result of this conduct, the values of Plaintiffs’ properties has declined and Plaintiffs have suffered substantial losses. Plaintiffs are entitled to recover the losses they have sustained due to Defendants’ breach.
COUNT II (UNJUST ENRICHMENT AND RESCISSION)
67. Plaintiffs incorporate paragraphs 1 - 56 by reference as if fully set for the herein.
68. As described herein, Defendants agreed to provide a product to Plaintiffs which included two key characteristics: exclusivity and Defendants’ branded services and amenities. Defendants knew or should have known that these characteristics provided substantial value to Plaintiffs’ properties. Defendants knew or should have known that these two characteristics were material to the Plaintiffs’ decisions to buy Defendants’ properties and would be material to prospective buyers as well. Thus, Defendants knew or should have known that these two characteristics greatly influence the value of Plaintiffs’ properties.
69. Defendants, however, have ceased to offer a product that contains the two important characteristics. Specifically, Defendants have: (1) changed the “exchange-based” reservation system to one that is “point-based” such that purchasers no longer have to buy deeded fractional ownership interests to enjoy the benefits of any resorts; (2) opened the “point-based” reservation system to Marriott Vacation Club members; (3) removed highly valued locations from Ritz-Carlton’s
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brand such that Plaintiffs are no longer able to reserve time at those locations; and (4) stopped offering certain branded amenities and services.
70. As a result of the conduct described herein, Plaintiffs paid monies to Defendants to which Defendants were not entitled. Defendants have voluntarily accepted and retained these monies with full knowledge that they do not provide a product of the quality, nature, fitness, or value that had been represented or that reasonable purchasers expected.
71. Because of the acts set forth herein, Defendants have been unjustly enriched.
72. Plaintiffs are entitled to restitution of the amounts Defendants’ unjustly charged and received as described herein.
COUNT III (DECLARATORY AND INJUNCTIVE RELIEF)
73. Plaintiffs incorporate paragraphs 1 - 56 by reference as if fully set for the herein.
74. The Declaratory Judgment Act, 28 U.S.C.A. §2201 et seq., provides that “any court of the United States, upon filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”
75. An actual controversy has arisen between Plaintiffs and Class members on the one hand and Defendants on the other hand.
76. Defendants have engaged in conduct, and have expressed further intention to “evolve” or “alter” Plaintiffs and Class members fractional ownership
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property interests as described throughout this Complaint, by, among other things, affiliating Plaintiffs’ and Class members’ clubs with the Marriott Vacation Club and The Lion & Crown Travel Company.
77. The practices and intentions of Defendants result in, or would result in, depriving Plaintiffs and Class members of the value of their fractional ownership interests. Defendants have changed the fundamental characteristics of Plaintiffs’ and Class members’ ownership interests such that Plaintiffs and Class members are no longer receiving the benefit they bargained for. As a result of this conduct, the values of Plaintiffs’ and Class members’ properties have declined or would decline resulting in substantial losses. Plaintiffs ask that the herein-described actions and intentions of Defendants be declared unlawful, which would provide for recovery of all sums determined by this Court to be owned by Defendants, and each of them, to the Plaintiffs and the Plaintiff Class members.
78. Plaintiffs are also entitled to any appropriate injunctive relief, preventing Defendants from “evolving” Plaintiffs’ ownership interests in the manner discussed above, as such “evolving” constitutes an unlawful practice.
79. Plaintiffs request declaratory and injunctive relief as described above and all other relief deemed appropriate by the Court.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for relief as follows:
a. That the Court determine that this action may be maintained as a class action under Rules 23(a), 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure, that Plaintiffs be certified as class representative and Plaintiffs’ counsel be appointed as counsel for the Class;
b. That the unlawful conduct alleged herein be declared to be illegal and in violation of the state laws alleged herein;
c. That Defendants be enjoined from engaging in the same or similar practices alleged herein;
d. That Plaintiffs and members of the Class recover damages, as provided by law, determined to have been sustained as to each of them, and that judgment be entered against Defendants on behalf of Plaintiffs and members of the Class;
e. That Plaintiffs and members of the Class receive restitution and disgorgement of all Defendants’ ill-gotten gains;
f. That Plaintiffs and members of the Class receive pre-judgment and post-judgment interest as allowed by law;
g. That Plaintiffs and members of the Class recover their costs of the suit, and attorneys' fees as allowed by law; and
h. For all other relief allowed by law and equity.
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DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury on all issues so triable.
Dated: December 11, 2012
/s/ Anne T. Regan
Charles S. Zimmerman
Anne T. Regan
ZIMMERMAN REED, PLLP
1100 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone (612) 341-0400
Facsimile (612)341-0844
Email:
charles.zimmerman@zimmreed.com
anne.regan@zimmreed.com
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