Some of us get it. But most don’t. There’s 22,000 Embarc owners around the world, but how many of those have heard, read or even been invited to see a different perspective to that of the Manager, the Declarant, the Developer?
We get it. We know that every communication from the Board of directors does not come from a group of individuals who operate only for what is best for the 22,000 private individuals. It comes from a board that is controlled by the Declarant, the Developer, the Manager. So, we get it, us, 2,000 (ish) people on the Facebook group. All those volunteers who have spent days, months, coming up to a year of work on this, we all get it. Some other people get it too – Gretchan Morgenson gets it – she even wrote an in-depth exposé for the New York Times at the beginning of the year. (http://www.nytimes.com/2016/01/24/business/diamond-resorts-accused-of-using-hard-sell-to-push-time-shares.html?_r=0) Jacob Bercu, an owner at Tahoe Beach and Ski Club, and now a director on their board – a board that no longer has DRI management on it, gets it.
So if we all get it, we all see the other perspectives, see that there are downsides to DRI controlling the Board. Downsides to the people awarding the contract (the Board of Directors) being controlled by DRI, awarding the contract to DRI. Downsides to DRI controlling the board, and therefore being able, whenever they choose, to change the rules by which our club is run. Why is DRI not changing its behaviour? Why, now that the ‘game is up’ – the sham is over, the gravy train that allows them to unscrupulously make money without adding value is now out in the open, why does it still go on? Surely, if you customers know they are being screwed, they’ll all leave, and you won’t have a business anymore. Except, we signed a contract in perpetuity - so leaving is not straightforward. And if we do leave (at our expense) DRI just sells our points to new people who don’t get it. Who don’t know what they are REALLY buying.
We need a way to make sure all 22,000 owners have all the perspectives. So that all owners have a chance to make up their own minds. To decide for themselves - not have us or DRI tell them what to do. We need to contact everyone on the member list.
Article 18.3 of the Master Declaration states that the member list along with all board and committee minutes shall be available for inspection by any member for a proper purpose related to his or her interest as a member.
18.3 Inspection of Books and Records. The Membership register, books of account, and minutes of meetings of the Members, of the Board of Directors and of Committees of the Board of Directors shall be made available for inspection and copying by any Member of the Club, or by his or her duly appointed representative, at any reasonable time and for a proper purpose reasonably related to his or her interest as a Member, at the office of the Club or at such other place as the Board shall prescribe. The Board may restrict the use of information from the Membership register by requiring Members to sign a written agreement not to use or allow use of Membership information for commercial or other purposes not reasonably related to the affairs of the Club. The Board shall establish reasonable rules with respect to, i) notice to be given to the custodian of the records by the Member desiring to make the inspection, ii) hours and days of the week when such an inspection may be made, and iii) payment of the cost of copying documents requested by a Member. Every Director shall have the absolute right at any reasonable time for a proper purpose to inspect all books, records, and documents of the Club and the physical properties owned or controlled by the Club.
Two members arranged to go to the HQ of Intrawest Resort Club Group (the organisation that managed our properties, and was in the process of being sold to DRI) in Vancouver to inspect all the documents and obtain a member list on Tuesday 5th January 2016.
The meeting proved fruitless. The representative they met could not provide them with any documents other than those already on the web, and advised them that it would cost $200 to have a copy of the member list. They left empty handed.
Later in January, we wrote to the Board of Directors, requesting that they send an email, on our behalf, to all the members, informing them of our facebook group and website, so that fellow owners could see alternative perspectives to the narrative that the Board were providing. The Board confirmed that they would be willing to do this, whilst retaining the option to edit the letter. They confirmed that they would NOT email this letter, but send it via mail. They confirmed the cost would be $35,000 and that they would expect an up-front payment of $20,000.
On the 25th of January 2016, I flew to Whistler to go skiing – in accommodation I had booked 11 months previously. Whilst in Whistler skiing, I spoke with Warren Shun, Member Services Team Leader, and arranged to meet with Warren at IRCG’s offices on Water Street on the afternoon of 5th Feb 2016, to inspect the documents that had not been to hand over on the earlier visit – all minutes and associated documents, as stipulated as my right under article 18.3. I also confirmed that I would be taking away the member list.
I made my request in writing and received express permission from the board for that request. During that meeting Warren confirmed that the only documents he had to hand were those already on the Web site, and that all other documents were in off site storage and would take 3-5 working days to be retrieved. He provided me with the member list printed in Christian Name order, without page numbers, on 394 pages of US Legal paper, at a cost of just short of $200. This list contained the following information: Member ID, Names of owner(s), Surname of owner(s), Christian names of owner(s), the manager (IRCG), the date of first purchase of points, the country the owner lived in, the state in the country, the total number of points owned.
Over the following weeks I scanned and cleaned up this data to put into Excel, I protected it and shared it with the group of volunteers who were trying to contact members to encourage them to vote for and come to the Special General Meeting.
I chased Warren Shun for the missing documents several times. To start with he had excuses (it was the holidays, he was busy with the transition from Intrawest to DRI) but soon he just stopped responding to my Emails.
During this time we were also exploring lawyers who ‘got it’ and would be willing to work with us to gain control of the board. Geldert Law was based in Vancouver and appeared to have a track record of working successfully to uphold the rights to fair treatment of owners by timeshare managers and appeared to align with our aims. (http://www.insidethegate.com/2014/06/sunchaser-resort-timeshare-owners-are-successful-overturning-november-15-2013-judgment-against-them/)
We had also uncovered a very similar case that had gone to court in California 8 years previously, Wyndham v. Worldmark. (http://www.davis-stirling.com/caselaw/worldmarkvwyndhamresort/tabid/3068/default.aspx)
Robin Miller had asked for the member list and had been denied it in an easily accessible format. The case was eventually settled, with the judge ruling that the manager must comply by offering the member list, including email and other contact information, in electronic format for a member with a reasonable reason to request it.
In early March I retained the legal services of Michael Geldert, of Geldert Law. With Geldert Law ensuring due process was correctly adhered to, I requested that a member of the club, a resident of California, request the member list, in electronic format, with member contact information, from the club manager at Palm Desert. The manager refused to comply with this request, stating they did not have the information, nor were they authorised to provide it and directing us to re-address my request to the Chief Privacy Officer at DRI’s offices at Water Street, Vancouver (what was IRCG).
On the 25th April 2016, Owen Bird, legal counsel for the Board of Directors wrote to deny my request, stating that section 12.2 of the by-laws specifically restricts the sharing of member contact details without the member’s express permission.
The Board misrepresented our request for the Special General Meeting, but we got 7% (2% over the threshold) support for that. We used the list we had to try and research contact details for members, and give them the real reason we were asking for the SGM. There were over 1,000 people at the SGM, all of whom wanted answers to their questions. Most of them had only understood the real reason for the SGM when we contacted them. Despite our best efforts, we did not gain the 15% quorum required to discuss the agenda items. We’d just not been able to contact enough people.
We still needed a way to contact the members.
We discussed on many occasions if we should go to a court, just as Robin Miller (Wyndham v. Worldmark) had done, and set the case in front of a judge, since the Board was deliberately preventing us from communicating with each other, either by using bylaws or cost. The SGM itself was a key case in point. It was agreed at the Board Meeting in February 2016, that DRI (as manager) would canvas the owners to see if there was support for an SGM to be called. The board agreed to waive the normal process to do so by paper mail, and undertake this communication by email. Additionally, in order to save costs, they would allow the votes for the SGM to be completed electronically.
Clearly, it was one rule for DRI as the manager (yes, can communicate electronically), and a different rule for the owners (no access to electronic communication)
Michael Geldert went to the Offices of DRI on Water Street – they wouldn’t speak to him. Michael Geldert tried to speak to Owen Bird, to understand on what basis they were contravening the law in California – but they would not meet to discuss.
At every stage, it seems that the Board of Directors wants us to challenge their actions in court.
The last thing we should be doing is dancing to DRI’s tune.
We continue to look for a way to get the member list. When we find a way that works for the owners, and doesn’t play into the hands of DRI, we will action it.