The Timeshare Beat: Jerry Sikes; The Trial, Part 3

"We judge ourselves by what we feel capable of doing, while others judge us by what we have already done." -Henry Wadsworth Longfellow-

PART 3 – Here comes the Judge

"And so Your Honor, we rest our case and we fully expect that right and justice will prevail!" With those final words from the Counsel for the Plaintiff, Case # 2002 went to Judge Truthin Justice for a decision. After days of ruling on motions, considering objections, hearing testimony, receiving evidence and quashing squabbles, the Judge was in his chambers the next morning ready to begin handing out assignments to his Clerks. First to be called was his senior Clerk Eager Beaver.

"Eager," he said, "You will be the advocate for the Plaintiff. I want you to provide me with briefs on four areas of contention. First, I want a brief on the Court's ability (under the law) to render judgment on issues of Morality. A large portion of the plaintiff's case is that the actions of the defendant were just not right and that the defendant's representatives should be held to a higher standard. Second, while the Plaintiff's case did not point to many specific Laws that had been violated, it did reference some and provided previously rendered decisions with regard to those issues. I want you to summarize those decisions, research the statutes for others that may be relevant and provide a brief on your conclusions and recommendations. Third, while the National Association's Code of Ethics is not actually a part of the legal system, I find it intriguing and it may provide some relevant circumstantial benefit. If possible, obtain copies of actual code violations notices that were sent to the defendants and provide me a brief on the aftermath. Finally fourth, Eager, many references were made by the Plaintiffs counsel concerning "change," you are to provide me with a brief on the essence of the changes that may have been recommended and what, if any, consequence occurred as a result of such changes either occurring or not occurring. If I have missed any other important points for the Plaintiff, I fully expect you to bring them to my attention. You have no more than one week to complete these assignments!" Mr. Beaver departed and the next Clerk Justas Keen was called

"Justas," he then said, "you will be the advocate for the Defendants. I also expect several briefs from you. First, I want you to contact our investigator Goodat Snooping and have him look into the video and audio recordings that were placed into evidence by the Plaintiff to determine that they were obtained legally. I don't think that you can just go to the local Store or Library and rent or check them out. Secondly, I want you to search out any materials concerning substantial consumer owner satisfaction or dissatisfaction. Much of the Defendant's case revolves around the issue. Try to find research about both current owners and prospective purchasers alike. Third, while I have already ruled on the Defendant's Motion for Dismissal with regard to the Independent Contractor issue, there may well be case law that would allow me to join this group of Associates to this Action. It would not hurt to discuss that issue with our local IRS office in an attempt to substantiate the defense's position. The final brief may be the most important. The Defendants are, like all businessmen and women, in it for the money. The evidence and testimony submitted clearly indicates that a great deal of monetary (and possibly consumer satisfaction) success has been achieved. There is an old saying that goes something like: "If it’s not broke don't fix it." Much of the case against the Defendants is suppositions concerning "change" and the assumption that the Plaintiff has been harmed because of refusal to change by the defendants. One might assume that the defendant's resistance to change is because they believe that such change would have a detrimental effect on the bottom line or that it would require substantial new capital to implement those changes. As you know, I will not make my decision on the basis of assumptions. In order to avoid such assumptions, Justas, I expect your finest work on this one. You have no more than one week to complete these assignments!"

It was about two weeks later that Counsels for both the Plaintiff and the Defendant received notice that Judge Justice was ready to render his verdict. All were advised to be in Court on Monday the first at 10:30 a.m. when that verdict would be read. Needless to say on that morning, the courtroom was overflowing with parties to the action and representatives from all forms of the media.

The proceedings began when the Bailiff stated: "Please rise and remain standing, the Honorable Judge Truthin Justice of the 5th Circuit Court of the United States. Oyez! Oyez! Oyez! All those having business before this Court are admonished to draw near and give their attention, for the Court is now sitting. God bless the United States and this Honorable Court!"

The Bailiff continued: "Your Honor, Case # 2002 in the matter of Consumer vs. Industry has been placed on the docket, all parties thereto are present and represented by counsel, and are ready to receive the verdict." "Thank you, Wilson" the Judge said, and then he arranged the papers on his desk one final time, took a sip of water, adjusted his spectacles, looked up, surveyed the room and began to speak.

"Good morning, over the last few weeks this Courtroom has been filled with passion and enthusiasm as both the Plaintiff and the Defendant in Case #2002, attempted to make their case, further their interest and protect their position. The dissonance in this case is not so much that law (or at least intent of law) has been breached, as it is that both parties are entrenched in their positions. As I sat on the bench listening to counsels, I was reminded of the classic Civil War Battle. On one hill the Union forces held the high ground with its artillery entrenched within fortifications, and across the valley the Confederacy ordnance similarly fixed. Each side periodically lobbing shells across at the other's position. Huddled below along the fencerows, were the Blue and Gray Infantry, poised to charge across the open field upon orders from their Generals. Other such similarities exist. For instance, the righteous indignation of the consumer is somewhat like that of the Southern sympathizers and their defense of the lifestyle made possible by slavery, while the pretentious moral anger of the Northern abolitionists is akin to the position of the industry. The industry battle cry; "Let the buyer beware" and the consumer attitude, "Why impose such indignity on me? Or, "You underestimate my wariness!"

"This is America, and in America freedoms exist. This means that (by and large) each of us is free to be as stupid or as smart as we want to be. Oh, we are not totally free because we are a Society of Laws written by politicians and to a certain extent this causes an acceptable balance. The consumer has the power of the Vote and that power is used to bring about consumer protection laws. It's not so much that the legislators are in love with these laws as it is that they want to be reelected. Now those reelections (or the campaigns for reelection) cost money, a lot of money and the big money is not found in the $5 or $10 contributions from individual consumers. The big money and the big money clout come from special interest groups and that means business or industry. That then is the quandary of Case #2002. Has existing Consumer law been broken or is the lack of sufficient protection been caused by the clout of Industry?"

"This entire litigation is like a game and, rather than being the Judge, each of the opposing teams (litigants) want me to be the Umpire or Referee. The Red team (consumer) wants me to blow the whistle or toss a flag because the mean old Blue team (industry) has committed a foul. The Blue team continues to follow their game plan because it will (they believe) lead to victory in the end.

"Yes, the Industry game plan borders on hard (or dirty) play and it allows for a few fouls and penalties, however they have lots of resources (money) and can afford a few sanctions. It's kind of like the old neighborhood or street rule: "It's my Ball and because of that, we will play by my rules!" Now, because they are the mean old bully and it's their ball, that doesn't necessarily make them the smartest. In fact the bully almost always depends on size and fear rather than finesse and intelligence. In this instance it appears that the Blue team has chosen an unlevel playing field and is committed to scoring goals the hard way, uphill. They have committed their full resources to this effort and are ready to expend all their bigness and strength to score a few goals. They are intent on using tactics such as bludgeoning, intimidation, browbeating and force to overcome their opponents (the consumer) for a win (sale). They refuse to even consider that it may be smarter to seek out a level playing field which would allow them to score many, many more goals.

"In Civil law there is a rule, which is known as “a preponderance of the evidence". This differs from Criminal law where the rule of "beyond a reasonable doubt" is applied. As this is Civil Court we must rule on the weight of all that which was placed before the Court. Don't confuse this "weight" with the Scales of Justice, which one would assume, could be tilted one way or the other by the sheer volume of evidence. In this case there was a tremendous volume of stuff presented to the court, however, much of it was "fluff" and added little, if any, substance to tilt the scale one way or the other. As an example; the plaintiff put forward the existence of the national associations Code of Ethics and the fact that all of that association’s members had sworn to abide by that code. This is all well and good except that this so called Code of Ethics has no standing with this Court. On the other hand, the defendant put forward contentions regarding the Independent Contractor relationship with many of its associates. In this instance the smoke was blown away by their own words: "we have no control except to accept or reject their final results." It would not be difficult for this court to assume that the intent of both counsels to float so much nonsense in the court room was to blur the vision of this Judge.

"The core of the Plaintiff's case was finding fault in the methods used by the defendants’ representatives to solicit prospects, the enticement used to get those prospects into a sales presentation, the promises made during that sales presentation and the techniques used during that sales presentation to achieve a sale. Their evidence indicated that at every turn it was the practice of the defendant to deceive. This occurred in the failure to disclose who they were, the small print in the premium offer, the promises about such things as exchangeability, flexibility, value of points, resale potential, rental income, appreciation and assessment increases. Deceit was practiced regarding the time required for the "tour" and "same day" offers, and about how "intense" the process was going to be. The plaintiff pleaded with the Court to hold the defendants to a higher standard.

"The core of the Defendants’ case was no crime was committed and no law was broken. That in most instances the consumer was acting out of their own greed, and overconfidence that they could get the premium without actually purchasing anything. By and large the complaints were just so much sour grapes and that in the rare instances where something was actually done wrong it was the salesperson, the marketing operative stepping over the line. In every instance that these wrongdoings occurred and the defendant were made aware of the transgression, the defendant made every effort to make it right with the consumer and told the perpetrator "don't do that again!" The defendant clearly admits that there are some bad people on the fringes of the industry and that some of those people actually break the law. When this occurs they most often are charged with the crime by the appropriate authority and if found guilty caused to pay the appropriate penalty. When these instances occur they always make big headlines for the media. The defendant pleaded with the Court not to paint the entire industry as bad because of these few individuals.

"After weighing all the evidence presented by both sides in this matter, after considering the information provided by my clerks in the form of briefs, after hearing the closing statements by both counsels and after considerable deliberation; I have come to this ...

From all I have read, seen or heard from the media and from the evidence and arguments presented in this court it has become abundantly clear that the consumer likes the product provided by the defendant, however does not like the lack of respect for the consumer demonstrated by the methods the defendant uses in the routine course of doing its business. The preponderance of the evidence requires the following conclusions:

About 100% of the defendants direct their staffs to achieve a high VPG and do not question or care how they achieve those results. About 85% of the consumers who come in contact with the defendant are able to withstand the intensive pressure to buy the product and go away with the premium offered, even with its questionable value. About 100% of the defendants understand that this ratio is the root cause of high cost yet does little except talk about it. About 95% of the potential consumer market for the defendant’s product have not yet become involved with it. About 95% of the potential consumer market will have to refuse to do business with the defendants before the defendants will consider change as a viable alternative. About 99% of the defendants operate their business within the parameters of the law, however most do not consider the consumer likes or dislikes an issue worthy of much consideration so long as the numbers are otherwise acceptable.

While the Plaintiff clearly demonstrated the morality and/or ethical questions as to the defendant’s actions they failed to establish legal liability. While this court would strongly recommend that the defendant initiate change, it does not have the power to require that they do so. Verdict for the Defendant.

(See: The Trial, Part 1 and The Trial, Part 2)