Wyndham Vacation Ownership, Inc. v. Slattery, Sobel & Decamp, LLP
6:19-cv-01908
M.D. Fla.Mar 22, 2022Background
- Plaintiffs are Wyndham Vacation Ownership and Shell Vacations (parent corporations) and their subsidiaries that sell/manage timeshares; Plaintiffs identify 264 owners (282 contracts) referred to defendants.
- Marketing defendants (Pandora, Intermarketing) advertised that an attorney’s demand letter would get owners “out” of timeshares and told owners to stop payments; those statements were knowingly false per Marketing reps.
- Lawyer Defendants (Slattery and three law firms) accepted referrals, reviewed contracts, sent demand letters to developers asserting communications should go to counsel, took fees/retainers, but did not file litigation or arbitration for the relevant owners.
- Plaintiffs assert contributory false advertising (Lanham Act), tortious interference with contracts, FDUTPA violations, and civil conspiracy; they seek damages and injunctive relief.
- Procedurally: Lawyer Defendants filed two summary judgment motions; the court denied the first, struck the second for noncompliance, and resolved Plaintiffs’ partial summary judgment motion in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of parent corporations to sue for harms tied to subsidiaries’ contracts | Parents say they suffered injury to goodwill/customer relations and redressable harm (injunction) | Defendants say parents lack Article III standing because subsidiaries, not parents, hold the contracts and monetary injury | Denied Dfs’ motion on standing—the parents showed enough relationship and potential for injunctive relief to avoid dismissal at summary judgment |
| Lanham Act (false advertising elements) | Marketing’s statements were literally false and materially influenced owners to purchase exit services | Defendants did not dispute falsity/material interstate commerce but contested causation and contribution | Partial SJ for Plaintiffs on first four Lanham elements (falsity, deception/capacity to deceive, materiality, interstate commerce); causation/damages reserved for trial |
| Contribution by Lawyer Defendants to Marketing’s false advertising (contributory false advertising) | Plaintiffs: Lawyer Defendants knowingly accepted referrals and materially enabled the scheme | Lawyer Defendants: They only accepted referrals and provided legal services; Marketing could have used other counsel | Denied Plaintiffs’ SJ as to contribution—triable fact whether lawyers knowingly induced or materially participated in the false advertising |
| Tortious interference (owners instructed to stop payments) | Plaintiffs: Lawyer Defendants shaped referral process and preferences that caused owners to stop payments | Lawyer Defendants: Marketing defendants, not lawyers, instructed owners to stop payments | Plaintiffs’ SJ denied—no evidence lawyers directly instructed owners to stop paying; issue goes to trial if pursued |
| Litigation privilege (affirmative defense) | Plaintiffs: Letters were not preliminary to litigation and privilege does not apply | Defendants: Letters and related acts are protected by Florida’s litigation privilege | Court granted Plaintiffs’ SJ on this defense—litigation privilege defense not available here at summary judgment |
| Noerr-Pennington (petitioning immunity) | Plaintiffs: Letters were sham petitioning if no intent to litigate; immunity inapplicable | Defendants: Demand letters and threat of litigation are protected petitioning; Noerr applies | Denied Plaintiffs’ SJ on Noerr—genuine dispute whether letters were sham; defense survives summary judgment |
| Attorney-client privilege/agency defense | Plaintiffs: Lawyers acted as agents for Marketing and acted with wrongful means; privilege should not shield liability | Defendants: Actions were privileged/within lawful client representation | Plaintiffs’ SJ denied—factual dispute whether lawyers acted improperly or merely advanced clients’ objectives |
| Unenforceable-contract defense (Dfs argue contracts void/voidable so no interference) | Plaintiffs: Tortious interference can lie even if contract is void or voidable | Defendants: If contracts are void, no interference claim | Court granted Plaintiffs’ SJ to the extent that voidability of timeshare contracts does not bar tortious interference claims |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (U.S. 1986) (summary judgment standard explained)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (movant may show absence of evidence to shift burden)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (Article III standing elements)
- Hickson Corp. v. North Crossarm Co., 357 F.3d 1256 (11th Cir. 2004) (elements of false advertising claim)
- Duty Free Americas, Inc. v. Estée Lauder Cos., 797 F.3d 1248 (11th Cir. 2015) (contributory false-advertising standard)
- Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242 (11th Cir. 2002) (materiality via misrepresentation of inherent product characteristic)
- Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1994) (elements of tortious interference under Florida law)
- Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004) (scope of Florida litigation privilege)
- TEC Cogeneration Inc. v. Florida Power & Light Co., 76 F.3d 1560 (11th Cir. 1996) (Noerr-Pennington petitioning doctrine principles)
- United Yacht Brokers, Inc. v. Gillespie, 377 So. 2d 668 (Fla. 1979) (tortious interference may lie even if contract is void)
- Westgate Resorts, Ltd. v. Sussman, 387 F. Supp. 3d 1318 (M.D. Fla. 2019) (limits on attorney privilege when attorney acts with wrongful means)
- Orange Lake Country Club, Inc. v. Reed Hein & Assocs., 367 F. Supp. 3d 1360 (M.D. Fla. 2019) (pre-suit letters not protected where no intent to litigate)
- Silverhorse Racing, LLC v. Ford Motor Co., 232 F. Supp. 3d 1206 (M.D. Fla. 2017) (Noerr protection for demand letters and sham exception)