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Re: RCI Class Action Lawsuit (by David W.):

jayjay wrote:

Dave, the main problem I see with this lawsuit is that RCI plainly states in their Terms and Conditions that once you deposit your week with them then it's theirs to do with that week what they wish (section 6C "By depositing vacation ownership with RCI, you relinquish all rights to use that vacation ownership and agree that such deposited vacation ownership may be used by RCI to conduct exchanges, inspection visits, promotions and for other purposes at RCI's discretion.")

This is why I do not believe this lawsuit has a legal leg to stand on.

Jayjay,

You are correct that RCI has in the past "plainly stated in their Terms and Conditions that once you deposit your week with them then it's theirs to do with that week what they wish.

In the 2005 Directory for example on page 473 under item Number 6. Depositing Vacation Ownership and Requesting an Exchange the Directory states:

(c) By depositing Vacation Ownership with RCI, you relinquish all rights to use that Vacation Ownership and agree that such deposited Vacation Ownership me be used by RCI to conduct exchanges, inspection visits, promotions, rentals and for other purposes at RCI's discretion.

Similar wording apparently existed in years earlier than 2005 and apparently up until this year.

I just received by New 2009 Directory today. Guess What! There no longer is any mention of "Terms & Conditions" that I can find in that Directory.

What's up with that!

Now back to your post and "your problem."

I am not a lawyer. I am just another average timeshare owner and consumer who up until rather recently had no idea that RCI was "skimming" high demand weeks when they were deposited by folks like me.

Yes, apparently they have been replacing those high demand weeks with "dogs" from HOA's, developers and hotel rooms and saying that all is well in the timeshare world because we have "balanced inventory."

It is my understanding that RCI's Terms and Conditions as published prior to the recent directory are what contract law lawyers refer to as a "Contract of Adhesion."

So what is a Contract of Adhesion?

According to the Free Dictionary by Farlex :

"A type of contract, a legally binding agreement between two parties to do a certain thing, in which one side has all the bargaining power and uses it to write the contract primarily to his or her advantage.

An example of an adhesion contract is a standardized contract form that offers goods or services to consumers on essentially a "take it or leave it" basis without giving consumers realistic opportunities to negotiate terms that would benefit their interests.

When this occurs, the consumer cannot obtain the desired product or service unless he or she acquiesces to the form contract."

There is nothing unenforceable or inherently wrong about adhesion contracts. In fact, most businesses would never conclude their volume of transactions if it were necessary to negotiate all the terms of every Consumer Credit contract."

Note, however, that NOT all adhesion contracts are valid. Many adhesion contracts are Unconscionable; they are so unfair to the weaker party that a court could refuse to enforce them.

A court could find that there is no meeting of the minds of the parties to the contract and that the weaker party has not accepted the terms of the contract.

In the instant example a court could find that RCI's failure to openly disclose the fact that they skim the cream of deposits and replace them with "dogs" is unconscionable because RCI has hidden the statements quoted above by burying them where most members would not see the disclosure.

A Court could find that there is no meeting of the minds of the parties to the contract and that the weaker party (the unsophiscated timeshare owner) has not accepted the terms of the contract.

While the above could be argued in court, it is not likely that the court would find in favor of the plaintiff just because the plaintiff did not know about the contract terms.

But there is the possibility that the court would look to see if the writer of the adhesion contract had instructed it's employees to provide misinformation about what it as a company was doing.

According to the adhesion contract you're stuck when you go along with an arrangement that fits the above description. But, did the average timeshare owner know that RCI was renting deposits meant for exchange?

If the average member eventually suspected that RCI might be renting good weeks instead of allowing them to be exchanged and he "called RCI on it" would he have been misled?

Have you ever asked a Vacation Guide the following question: "Does RCI rent deposits of Weeks Inventory that has been deposited by members for exchange?

How many Redweek Members out there were aware of the clause being discussed here?

If you have the clause in an older RCI directory read it carefully. What does it mean to you?

Were you informed about the clause when timeshare was pitched to you during a presentation about RCI and its benefits?

Yes, RCI relies on the above mentioned clause when it insists it has the lawful right to rent weeks. But, were they carrying out a deception on the consumer when they denied that deposits made by that consumer were being rented?

Dave