Former Wyndham Sales Rep Wins
In employment law, former employees frequently must represent themselves in court. There simply are not enough lawyers for employees to meet the demand. And, of course, many former.jpg)
employees by definition lack income and resources. In one recent case, a former salesman for Wyndham Vacation Resorts, Inc. lost his lawyer but persisted and won. See San Antonio Express News report.
James F. Faucett was fired from Wyndham in 2008. He started a website called mywyndhamlawsuit.com where he posted a Wyndham manual which revealed that salespersons were taught to essentially lie about the benefits Wyndham would provide regarding the sale of timeshares across the country. Wyndham is the largest seller of timeshares in the country. After leaving Wyndham, he started a business called Advocates Against Timeshare Fraud, in which he helped customers avoid contracts to purchase timeshares. Wyndham then sued him in 2009 to stop him from using his documents. The former sales rep obtained some documents from the trash bin before he left Wyndham. In January, 2010, Wyndham obtained a temporary restraining order (TRO) prohibiting Mr. Faucett from using the documents. TRO's by nature are based on quick evidence, often within just a few weeks of filing suit. TRO's are intended to be temporary until the parties can have a more complete hearing later.
But, as many former employees must, he filed for bankruptcy. Wyndham's state court lawsuit then was removed to federal bankruptcy court. So, the employer's lawsuit was essentially transferred to federal bankruptcy court. Wyndham then moved to permanently seal the employee manual and other documents. Customers, to whom Mr. Faucett had provided the documents, intervened to make their own arguments in support of using the "smoking gun" manual.
This time, representing himself, Mr. Faucett won. Judge Leif Clark, the federal bankruptcy judge, found that Wyndham had not explained how Mr. Faucett's use of the documents could cause harm to Wyndham. The former employer failed to explain how its competitors could use the information in the documents against Wyndham. So, the court denied Wyndham's motion to seal the documents.
The judge opined that Wyndham's "real interest in seeking to have this document filed under seal seems to be to keep it out of the hands of Wyndham's customers." In fact, the court noted that the Wyndham representative who testified said they would prefer this information not be provided to customers who could use the information against Wyndham.
Pro se plaintiffs do sometimes win. Mr. Faucett had help from customers who joined the bankruptcy proceeding apparently on this one issue. But, still, defeating Wyndham's team of lawyers is no small feat.
I didn't know employees often had to represent themselves in court.
In employment cases, that occurs with some frequency. I remember one man who saw me, I could not take his case. He prosecuted it on his own successfully and called me 1-2 years later asking for help with his appeal.
Many employees come see me just a week or two before the deadline to file suit. I cannot accept a case on such short notice. So, presumably, they file the case on their own. It is hard to find employment lawyers who represent employees.
Tom, thanks for the plug. FYI, I subscribe to the adage that the man who represents himself has a fool for a client. My problem is I am the only representation the fool can afford. As you made clear, this case is in Bankruptcy Court before the eminently intellectual stickler Judge Leif M. Clark--a man for whom I have gained great respect. He does not suffer fools gladly. If I had been able to afford an attorney who was competent, I would have gladly spent the money. Wyndham is paying Gardere, Wynne & Sewell several hundreds an hour to bring me down. Yet to come is a motion I have filed for appropriate relief and another motion for summary judgment. This thing is far from over and could go on for another six to eight months. One of the problems I faced in the Bexar County District Court was that the attorney who did represent me at first could not grasp the intricacies of the timeshare industry and he was no match for the bulldozer tactics of the Gardere attorneys. I am not inclined to give up at this stage, but this is not how I envisage spending the better part of the next year. I have a counterclaim against Wyndham and it has not been dismissed as they have moved. It has been declared an asset in the bankruptcy case by the trustee and is up for grabs to anyone who wants it and is willing to pay the trustee for it. Any takers?
Hang in there, Jim. I have heard from a couple of lawyers in response to this post - they are following your efforts. Apparently, timeshares are an issue for many people.
As you know, it is hard to find lawyers who represent employees. You have done very well.