I recently heard North Dakota’s attorney general, Wayne Stenehjem, speak on the important issue of consumer fraud. He’s a smart and talented guy. And that’s why it was all the more disappointing to hear his legal opinion on timeshares.
“A valid timeshare contract is not consumer fraud,” he said.
Now, when you read those words, you are probably saying to yourself, “Hmmm. That is a really boring quote.”
Fair enough, but this is the Attorney General of North Dakota we are talking about. And since I live in North Dakota, I’m not about to go dressing up his quotes.
The other thing I recall Attorney General Stenehjem saying did not constitute consumer fraud was delayed pancakes.
Apparently Attorney General Stenehjem’s office received a complaint from the patron of a restaurant advertising “all-you-can-eat pancakes.” The man said that when he was done eating a pancake, and he would ask for another, the waitress would sometimes make him wait as long as an hour and a half for the next pancake.
Not consumer fraud, according to the attorney general.
Now, I’m just going to disagree with that. I think that guy got ripped off. And, so, yes, I think that constitutes consumer fraud. Have I researched the issue? No. Do I have any experience with North Dakota’s consumer protection statutes? No. Have I done a keyword search on “pancake” in Westlaw? No. Do I have even a scintilla of precedent or so much as one reasoned argument from accepted legal principle? No. But I’m a law professor in North Dakota, and I think that entitles me to make my own legal pronouncement. So here it is:
Pancake delay, if both persistent and substantial, constitutes consumer fraud under the laws of the state of North Dakota.
There. That felt good. I’ve established a two-pronged test that would make the Supreme Court proud. And now that poor ripped-off restaurant patron can cite my blog in his doomed small-claims action.
But back to timeshares.
A couple of years ago my wife and I got a cold call from a major timeshare operator and we actually took the bait. We would get a deluxe room at a resort in Phoenix, access to the pool (with waterslides and a lazy river!), and, of course, a free gift. All we had to do in return was sit through a timeshare sales-presentation lasting no longer than one hour.
I was confident in my ability to resist high-pressure sales tactics and the intoxicating aroma of fresh-baked cookies. So we went for it. How bad could it be?
At the appointed hour, we went down to the timeshare sales office and met our sales guy. The first thing he said, motioning to our 12-month-old son who was just learning to walk, was, “He looks like a little drunken sailor.”
I took extreme offense at this, particularly because our son, Joe, looked exactly like a little drunken sailor. I was ready to deck the guy. It was all the more intolerable since this sales guy was one of only two people we’d ever met who did not react to our son like he was the cutest, most adorable thing in the world.
The other person was – and this is the actual truth – interviewing to be our nanny. As my wife held three-month-old Joe in her lap, and we sat across from this woman in a coffee house in Santa Monica, she actually – and this is entirely accurate – recoiled in horror when she saw Joe spit up a little. Grimacing and turning her head slightly to the side, she pointed to Joe with a crooked finger and said, “Um, there’s something, um, leaking out of his mouth. You might want to get that.”
As you won’t be surprised to learn, we opted for daycare.
So since the timeshare salesman not only insulted our kid, but actually seemed annoyed by him, we decided we would not pick Joe up, but, instead, let him walk FOR THE ENTIRE TOUR.
This was hilarious, of course. It took us eons to do the walk-through. Joe staggered in a halting zig-zag through every room of the model condo, grabbing wildly at flimsy simulated televisions and silk houseplants to keep from careening over. By the time we got back to the sales guy’s desk, our hour was, blessedly, almost up.
The sales guy went in for the close. “What I’d like to do now, is show you some of the numbers on how much money you’ll save with the timeshare plan.”
I stayed strong. “Well, whatever you want to do with the next two-and-a-half minutes is fine by me. It’s your time, and we’ll listen. But when the hour’s up, we’ll be going back to the pool.”
At this point, our guy sensed the sale was getting away from him, so he went to his A-game. For the next 150 seconds, we were barraged with such an onslaught of pathos as you could not believe. His being orphaned as an infant. His cruel aunt and uncle who made him live in a closet under the stairs. That time that he was almost killed by Voldemort. It was unbelievable. But when the minute hand reached the top of the clock, I picked Joe up, and we were out of there.
We strode confidently back to the pool, our bank account intact. But it turns out we didn’t get off scot-free. The fact is, years later, we still bear the emotional scars. I mean, it really was pretty sad that his mother sacrificed herself to save him from Voldemort’s death spell. You know, maybe we still have his business card around here somewhere.
I went ahead and did that database search for "pancake" for you. Alas, not much of interest, particularly in North Dakota. In fact, there weren't many pancake-related cases at all, although there turns out to be quite a few people named "Pancake," including a judge. There was Sutherland v. St. Lawrence, from the Southern District of Georgia, wherein the plaintiff (unsuccessfully) sought to appeal, inter alia, "the dismissal of his claim that the prison failed to provide him with an extra pancake at mealtimes." Sutherland v. St. Lawrence, 2008 WL 345597 *1 (S.D.Ga.). Oddly enough, a search through Westlaw's law review database provides nothing substantive on "all you can eat," either, although apparently that is a phrase currently at use in articles dealing with the internet, with file-sharing and with music subscription services. The legal community is poorer for having no leading article(s) on "all-you-can-eat" buffets. "All you can eat" was scarcely more successful as a search term in Westlaw's database for state cases, generally. There was a case, Teixiera v. New Britain Baseball Club, Inc., unpublished in A.2d, 2006 WL 2413839 (Conn.Super.), 41 Conn. L. Rptr. 777, wherein a spectator, who attended an all you can eat barbecue at the baseball stadium, filed a personal injury action against the corporation that operated the baseball stadium after the spectator was struck in the testicles by an errantly thrown baseball before the baseball game, and the stadium filed a motion for summary judgment. That motion was granted. There was Stegemann v. Helbig, 625 S.W.2d 677 (Mo. App. 1981), a contract dispute involving a contract for "all you can eat" buffet-style catering; however, the food ran out. The restaurant owner sued the party host and won. But I think that case obviously not relevant, since it was a contract dispute. And then there was this: Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477 (7th Cir. 2000). Judge Evans' opinion in that case begins, "ootball fans know the sickening feeling: your team scores a big touchdown but then a penalty flag is tossed, wiping out the play. Universal Bancard Systems, Inc. knows that feeling firsthand after seeing not one, but two big touchdowns called back. The referee who waved off the first-a $7.8 million verdict-and then the second-a $4.1 million jury verdict after a second trial-was the Honorable Richard A. Posner, the circuit's chief judge who in this case was wearing, by designation, the robe of a district judge." Bankcard America, 203 F.3d at 479. The footnote to the last quoted sentence reads in part: "It is a testament to the dedication of Chief Judge Posner that he volunteered to sit in the district court and hear this case which, at the time, needed the guiding hand of a new judge. Judge Posner, of course, carries a full load of cases on this court. He also discharges a multitude of administrative duties as the circuit's chief judge. But that's only part of what he does. He has written more books than many people read in a lifetime. On top of all this, in his spare time he is working as a court-appointed special mediator in the government's blockbuster antitrust suit against Microsoft. Obviously, Judge Posner has more on his plate than a long-haul trucker working an 'all you can eat' buffet line." Id.
Posted by: Doug | July 02, 2008 at 04:00 PM