Wixon et al v. Wyndham Resort Development Corp., et al

Filing 683

ORDER APPROVING CLASS NOTICE AND SETTING SCHEDULE FOR FINAL SETTLEMENT APPROVAL HEARING AS MODIFIED HEREIN: FINAL SETTLEMENT APPROVAL HEARING set for 8/5/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge JEFFREY S. WHITE on 4/19/11. (jjoS, COURT STAFF) (Filed on 4/19/2011) Modified on 4/19/2011 (jjoS, COURT STAFF).

Case3:07-cv-02361-JSW Document680

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Jonathan K. Levine (State Bar No. 220289)
[e-mail]
Elizabeth C. Pritzker (State Bar No. 146267)
[e-mail]
Todd I. Espinosa (State Bar No. 209591)
[e-mail]
GIRARD GIBBS LLP
601 California Street, 14th Floor
San Francisco, California 94108
Telephone: [phone]
Facsimile: [phone]
Attorneys for Individual and Representative
Plaintiffs Clarke and Rebecca Wixon, Norman
and Barbara Wixon, Kandice Scattolon and the Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Clarke and Rebecca Wixon, Norman
and Barbara Wixon, and Kandice Scattolon, on
behalf of themselves and all others similarly
situated,
Plaintiffs,

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[PROPOSED] ORDER APPROVING CLASS
NOTICE AND SETTING SCHEDULE FOR
FINAL SETTLEMENT APPROVAL
HEARING AS MODIFIED HEREIN

v.
Wyndham Resort Development Corp. (f/k/a
Trendwest Resorts, Inc.),

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Case No. C 07 2361 JSW (BZ)

Defendant.

Date: August 5 __, 2011
_______
Time: 9:00 a.m.
Courtroom: Hon. Jeffrey S. White

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[PROPOSED] ORDER APPROVING CLASS NOTICE AND SETTING SCHEDULE FOR
FINAL SETTLEMENT APPROVAL HEARING
CASE NO. C 07 2361 JSW (BZ)

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On November 21, 2010, Plaintiffs Clarke and Rebecca Wixon, Norman and Barbara Wixon and

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Kandice Scattolon (“Plaintiffs”) and Defendant Wyndham Resort Development Corporation

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(“Wyndham”) (Plaintiffs and Wyndham are referred to collectively as the “Parties”) filed their Joint

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Application for Preliminary Approval of Class Action Settlement. See Dkt. No. 661.

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On November 30, 2010, the Parties filed their Joint Supplemental Submission in Support of the

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Joint Application for Preliminary Approval of Class Action Settlement. See Dkt. No. 664. In that

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submission, the Parties advised the Court that notice had been served upon the appropriate regulators

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and state attorneys general, in accordance with the provisions of the Class Action Fairness Act, 28

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U.S.C. § 1715(b) (“CAFA”), and the terms of the Settlement Agreement and Release (“Settlement”).

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The Parties also advised the Court that the WorldMark Board had unanimously approved a resolution

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granting its consent to those provisions of the Settlement that may require Board consent.

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On December 3, 2010, the Court granted preliminary approval of the proposed Settlement, and

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authorized the Parties to disseminate a Summary Notice of Class Action Settlement. See Dkt. No. 668

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at p. 2. The December 3, 2010 Order required the Parties to submit a report to the Court on or before

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March 3, 2011 advising of the status of the Parties’ efforts to obtain Regulatory Approval to implement

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the terms of the Settlement and, in the event that Regulatory Approval was likely to be attained, a

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proposed timeline and procedure for providing formal settlement notice to the Settlement Class, and

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hearing and schedule for final settlement approval by the Court.

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The Parties have filed their Joint Status Report, the Declaration of Charles A. Bott, and a

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proposed form of Class Notice. That Report sets forth the Parties’ representation that Regulatory

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Approval is likely to be attained, and requests that the Court approve the form of notice to the

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Settlement Class and set a hearing and schedule for final settlement approval. The Declaration of

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Charles A. Bott further attests that Regulatory Approval is, in Wyndham’s estimate, likely to be

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obtained, and details Wyndham’s efforts to obtain Regulatory Approval to implement the terms of the

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Settlement.

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The Court having considered all papers filed and proceedings had herein, and otherwise being
fully informed in the premises and good cause appearing therefore, IT IS HEREBY ORDERED that:

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[PROPOSED] ORDER APPROVING CLASS NOTICE AND SETTING SCHEDULE FOR
FINAL SETTLEMENT APPROVAL HEARING
CASE NO. C 07 2361 JSW (BZ)

Case3:07-cv-02361-JSW Document680

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in the Settlement.

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2.

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Capitalized terms not otherwise defined herein shall have the same meaning as set forth
With the modifications noted herein,
The Court hereby approves the form and procedures for disseminating a Notice of Class

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Action Settlement to the Class set forth in the proposed Settlement. The Court finds that the form,

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content and manner in which notice to be given to the Class constitutes the best notice practicable under

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the circumstances, and constitutes valid, due, and sufficient notice to the Class in full compliance with

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the requirements of applicable law, including the Due Process Clause of the United States Constitution.

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On or before May 16, 2011, the Parties shall cause individual notice, substantially in the
as modified by this Order,
form attached hereto as Exhibit 1, to be mailed to all reasonably identifiable class members. By that

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same date, the Parties will post the notice on a members-only portion of the WorldMark, the Club

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website (www.worldmarktheclub.com) and on the Girard Gibbs LLP website (www.girardgibbs.com).

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3.

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All costs and expenses in connection with providing notice to the Class and

administering the proposed Settlement shall be paid in accordance with the terms of the Settlement.
5.

A hearing on entry of final approval of the Settlement, an award of fees and expenses to

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class counsel, and incentive payments to the named Plaintiffs (the “Approval Hearing”) shall be held at

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9:00 a.m. on ______________ __, 2011, before the undersigned in Courtroom 11 of the United States
August 5

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District Court for Northern District of California, 450 Golden Gate Avenue, San Francisco, California,

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94102. At the Approval Hearing, the Court will consider: (a) whether the Settlement should be

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approved as fair, reasonable, and adequate for the class; (b) whether a judgment granting approval of

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the Settlement and dismissing the lawsuit with prejudice should be entered; and (c) whether Class

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Counsel’s application for attorneys’ fees and expenses and incentive awards for the named Plaintiffs

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should be granted.

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6.

Any Class Member shall have the right to opt out of the Class and the Settlement by

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sending a written request for exclusion from the Class to the addresses listed in the Notice of Class
July 8, 2011
Action Settlement, postmarked no later than June 24, 2011. To be effective, the request for exclusion

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must include: (i) the member’s full name and current address and telephone number, (ii) the member’s

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WorldMark account number, (iii) the member’s signature, and (iv) a specifically and clearly state his or

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her desire to be excluded from the Settlement. If the Settlement is finally approved, any Class Member

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[PROPOSED] ORDER APPROVING CLASS NOTICE AND SETTING SCHEDULE FOR
FINAL SETTLEMENT APPROVAL HEARING
CASE NO. C 07 2361 JSW (BZ)

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who does not submit a timely and valid request for exclusion shall be subject to and bound by the

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Settlement and every order or judgment entered concerning the Settlement.

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7.

Counsel for the respective parties shall file memoranda, declarations, or other statements

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and/or materials in support of the request for final approval of the Settlement, no later than June 6,

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2011.

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Class counsel shall file an application for an award of attorneys’ fees and costs and for

an incentive award to the named Plaintiffs (“Fee Application”) no later than June 6, 2011.
9.

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Any member of the Class who intends to object to final approval of the Settlement or the
July 8, 2011
Fee Application must, on or before June 24, 2011, file any such objection and, if applicable, notice of

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the member’s intent to appear at the Approval Hearing, with the Court, and provide copies of the

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objection or comment to: (1) Girard Gibbs LLP, c/o Wyndham Class Settlement Objection, 601

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California Street, 14th Floor, San Francisco, CA 94108; and (2) Troutman Sanders LLP, c/o J. Kirk

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Quillian, 5200 Bank of America Plaza, 600 Peachtree Street, N.E., Atlanta, Georgia 30308-2216. Each

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objection must include: (i) the member’s full name and current address and telephone number, (ii) the

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member’s WorldMark account number, (iii) the member’s signature, and (iv) a specific and clear

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statement of the position(s) the objector wishes to assert, including the factual and legal grounds for the

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position. The notice of intent to appear must include copies of any papers, exhibits, or other evidence

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that the objecting Class member (or his or her counsel) will present to the Court in connection with the

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Approval Hearing..

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10.

To appeal from any provision of the order approving the Settlement as fair, reasonable

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and adequate, the award of incentive payments, or to the award of reasonable attorneys fees and

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expenses paid by Defendant and awarded to Class Counsel, a Class Member must file a timely written

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objection and appear in person or through counsel at the Approval Hearing, or seek leave of Court

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excusing such appearance prior to the Approval Hearing.
July 22, 2011
11.
No later than July 15, 2011, the parties shall file any reply in support of final approval of

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the Settlement and Class Counsel shall file any reply in support of the Fee Application.

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12.

The Court reserves the right to continue the date of the Approval Hearing and related

deadlines. In that event, the revised hearing date and/or deadlines shall be posted on the websites
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[PROPOSED] ORDER APPROVING CLASS NOTICE AND SETTING SCHEDULE FOR
FINAL SETTLEMENT APPROVAL HEARING
CASE NO. C 07 2361 JSW (BZ)

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referred to in the Notice of Class Action Settlement, and the parties shall not be required to re-send or

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re-publish class notice. The Status Conference scheduled for April 22, 2011 is VACATED.

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IT IS SO ORDERED. AS MODIFIED
HEREIN.
April 19
Dated:__________________, 2011

___________________________________________
Honorable Jeffrey S. White
United States District Judge

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[PROPOSED] ORDER APPROVING CLASS NOTICE AND SETTING SCHEDULE FOR
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CASE NO. C 07 2361 JSW (BZ)

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EXHIBIT 1

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[PROPOSED] ORDER APPROVING CLASS NOTICE AND SETTING SCHEDULE FOR
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CASE NO. C 07 2361 JSW (BZ)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Clarke and Rebecca Wixon et al. v. Wyndham Resort
Development Corp., et al.

Case No. C 07-02361 JSW (BZ)
NOTICE OF CLASS ACTION SETTLEMENT

TO: ALL OWNERS OF WORLDMARK, THE CLUB
THIS NOTICE RELATES TO A PROPOSED SETTLEMENT OF A CLASS ACTION LAWSUIT AGAINST
WYNDHAM RESORT DEVELOPMENT CORP. PLEASE READ THIS NOTICE CAREFULLY. IT
CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS.
1. PURPOSE OF THIS NOTICE. This notice is being sent at the direction of the United States District Court, Northern
District of California (“Court”) to all persons who own WorldMark, The Club (“WorldMark”) Vacation Credits, to
inform you about a proposed settlement (“Settlement”) of litigation involving Wyndham Resort Development Corp.
(“Wyndham”). If approved by the Court, the Settlement will fully, finally and forever resolve the litigation against
Wyndham on the terms and conditions summarized in this notice. You have previously received a similar notice
advising you of a proposed settlement of certain derivative claims asserted against certain WorldMark directors. This
is a different notice relating to a different proposed Settlement, please read it carefully.
2. THE SETTLEMENT APPROVAL HEARING IS ___________, 2011. The Court will hold a Settlement approval hearing
on ______________, 2011 at 9:00 a.m. before the Honorable Jeffrey S. White, at the U.S. District Courthouse, 450
Golden Gate Avenue, 19th Floor, Courtroom 11, San Francisco, California 94102. You have an opportunity to
comment on the Settlement and to be heard at this hearing. The Settlement is described in paragraph 5 of this notice.
If you wish to comment or appear at the hearing, you must follow the procedures described in paragraph 7 on page 5
of this notice. You may also exclude yourself from the Settlement by following the procedures described in
paragraph 8 on page 5 of this notice. If you exclude yourself, or opt-out of the Settlement, you will retain the right to
sue Wyndham separately about the same legal claims in this lawsuit, but you will not be able to comment on the
Settlement or appear at the hearing.
3. LITIGATION OVERVIEW. In 2007, four WorldMark owners (“Plaintiffs”) filed a class action lawsuit, U.S. District
Court Case No. C-07-02361 JSW (BZ), on behalf of certain WorldMark owners against Wyndham, alleging that
Wyndham, as the developer and manager for the WorldMark resorts, engaged in certain acts that violate the
WorldMark governing documents and California law. Among other things, the lawsuit challenged the setting of
credit values by Wyndham at 12 WorldMark resorts, Wyndham’s implementation of TravelShare and Fun Time
reservations, the reduction in the number of weeks set aside and not sold at new WorldMark resorts, and Wyndham’s
use of WorldMark resorts for sales and marketing purposes. Wyndham contests and denies the alleged claims.
4. THERE HAS BEEN NO FINDING OF WRONGDOING OR LITIGATION SUCCESS. The Court has not decided the merits
of the claims or defenses in the litigation. This notice does not, and is not intended to, imply that there have been or
would be any findings of violation of law by Wyndham. Wyndham denies all liability or wrongdoing alleged in the
litigation. It believes the Settlement is desirable to avoid the substantial expense, burden, risk, distraction, and
uncertainty of protracted litigation. All parties believe the Settlement confers substantial benefits and is in the best
interests of WorldMark and owners.
5. THE SETTLEMENT. The terms and conditions of the proposed Settlement are set forth in the parties’ Settlement
Agreement and Release, which has been filed with the Court. The following description of the terms of the proposed
Settlement is a summary only:
A. Credit Cancellation and Reduction of Credit Values at Certain Resort. If the Settlement is approved, Wyndham
will cancel 22 million WorldMark Vacation Credits that it currently holds as unsold developer credits. Cancelled
Vacation Credits will no longer be available for sale, will not be sold, and cannot be used by Wyndham in

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connection with voting in any WorldMark election. The 22 million cancelled Vacation Credits will be allocated
to reduce red season credit values in certain categories of units at certain of the resorts at issue in the lawsuit, as
set forth below.
Total Credits
Canceled To Permit
Credit Reductions

Resorts Selected for
Credit Value Reductions
(Red Season)

Unit
Type

Number
of Units

Number of
Season
Weeks

Old Credit
Value

New Reduced
Credit Value

Anaheim

Studio
1 bd
2 bd

10
62
122

50
50
50

11,000
14,000
16,500

10,500
13,000
16,000

6,400,000

1 bd

57

31

12,000

11,500

883,500

2 bd
2 bd dlx

36
48

50
50

13,000
15,000

12,500
14,500

2,100,000

2 bd
3 bd

59
3

33
33

13,500
15,500

13,000
15,000

1,023,000

Mission Valley

1 bd

55

50

12,500

11,500

2,750,000

New Orleans

1 bd

22

38

12,000

11,500

418,000

Studio H

49

50

1 bd

19

50

12,000
15,000

11,000
13,500

3,875,000

Studio H

40

40

1 bd

47

40

9,000
12,000

8,500
11,500

1,740,000

Hotel
C-Studio
1 bd-c
1 bd

1
10
5
14

36
36
36
36

9,000
12,000
13,000
14,000

8,500
10,500
12,000
12,500

1,494,000

Studio
Studio-dlx
1 bd
2 bd

15
4
9
2

36
36
36
36

11,000
12,000
13,000
15,000

10,500
11,500
12,500
14,500

540,000

2 bd
3 bd

67
10

20
20

Camlin
Las Vegas - Tropicana
Long Beach Washington

San Diego
San Francisco
Santa Fe

Taos

W Yellowstone

13,500
13,000
15,500
14,500
Total Credits Cancelled to
Permit Reductions:

870,000
22,093,500

As a result of this Settlement term, Wyndham’s rights and obligations as to the 22 million Vacation Credits,
including Wyndham’s voting rights in WorldMark elections, will be eliminated. Within 15 days of the
Settlement’s Effective Date, or as soon as practicable thereafter, the WorldMark reservation system will be
modified, and the new lower credit red season values at the affected resorts reflected above will be in place for
stays at these resorts, so that members have the benefit of the new, lower credit values when they book
reservations or stay at these resorts.
B. Exchange of Certain Units in Anaheim to Provide More Availability at Lower Credit Values. If the Settlement
is approved, 21 units at WorldMark Anaheim will be returned to Wyndham within 18 months after the Settlement
becomes effective. These 21 units at WorldMark Anaheim will be replaced by additional weeks equivalent to 21
units at WorldMark’s Dolphin’s Cove Resort (also in Anaheim), which has lower credit values. Wyndham will
cancel 7 million Vacation Credits associated with this exchange (16.9 million from WorldMark Anaheim less 9.9
million for WorldMark Dolphin’s Cove) from its pool of unsold developer credits. The 7 million cancelled
Vacation Credits will no longer be available for sale, will not be sold, and cannot be used by Wyndham in
connection with voting in any WorldMark election.

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Case3:07-cv-02361-JSW Document680
Resort
Anaheim
Dolphin’s Cove
Net Change

Number of Credits
16,874,000 Cancelled
9,860,000 Added
7,014,000 Cancelled

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Number of Units
21Removed
21 Added
-0-

As a result of this Settlement term, Wyndham’s rights and obligations as to the 7 million Vacation Credits,
including Wyndham’s voting rights in WorldMark elections, will be eliminated.
C. Extraction of Underutilized Units and Cancellation of Related Credits. If the Settlement is approved, between
400 and 481 units at certain underutilized WorldMark resorts will be returned to Wyndham. Underutilized units
include only units at resorts with overall Vacation Credit occupancy rates below WorldMark’s 85% average rate.
This provision of the Settlement “right-sizes” the resorts by eliminating units that WorldMark members
underutilize and relieving WorldMark of the expense and ongoing burden of maintaining units that are being
underutilized. The specific resorts and number of units being removed at each such resort are identified below
(assuming all 481 units are removed):
Resort
Angels Camp
Bison Ranch
Canmore
Denarau Island
Galena
Grand Lake
Indio
Lake of the Ozarks
Las Vegas Tropicana
Pinetop
Rancho Vistoso
Steamboat Springs
Taos
Total

Number of Credits Cancelled

Number of Units Removed

19,780,000
8,460,000
13,824,000
12,688,000
10,568,000
13,968,000
59,384,000
11,664,000
36,504,000
9,304,000
10,828,000
18,008,000
20,652,000
245,632,000

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18
31
22
31
32
113
24
56
23
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27
37
481

If the Settlement is approved, within 12 months of the Settlement’s Effective Date, Wyndham will seek regulatory
approval to transfer out of WorldMark a minimum of 400 and up to a maximum of the 481 units identified above
or, with the consent of Class Counsel and the WorldMark Board, and with Court approval, certain substitute units
(subject to the overall 481 unit maximum) that meet the criteria used to identify the units listed above. Wyndham
will complete the transfer of at least 400 units (the “First Transfer Phase”) as soon as practicable upon obtaining
regulatory approval. If more time is needed to obtain regulatory approval to complete the First Transfer Phase,
Wyndham may, depending upon the amount of time required, seek the consent of Class Counsel or a Court order
for additional time to complete the First Transfer Phase. After the First Transfer Phase is complete, Wyndham will
cancel the Vacation Credits associated with these underutilized units from its pool of unsold developer credits.
When the First Transfer Phase is complete, Wyndham will promptly notify the Court and Class Counsel. At that
time, to the extent that Wyndham has not reached the 481 unit maximum or the 245.6 million cap on Vacation
Credits, Wyndham may either (i) continue to attempt to obtain the authority to legally transfer the remaining 81
units or such number of substitute units that meet the criteria used to select the original specified units (the
“Additional Transfer Phase”); or (ii) declare that this term of the Settlement has been finally and fully performed.
After the Settlement’s Effective Date, Wyndham has the right to void the Settlement if and only if, after exhausting
all commercially reasonable efforts, Wyndham is unable to obtain regulatory approval to legally and effectively
transfer out of WorldMark a minimum of 400 units as provided for under this term of the Settlement.
If all 481 units are removed, Wyndham will cancel the 245.6 million Vacation Credits associated with these
underutilized units from its pool of unsold developer credits. The 245.6 million cancelled Vacation Credits will no
longer be available for sale, will not be sold, and cannot be used by Wyndham in connection with voting in any
WorldMark election. As a result of this Settlement term, Wyndham’s rights and obligations as to the 245.6 million

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Vacation Credits, including Wyndham’s voting rights in WorldMark elections, will be eliminated. If fewer units
are removed, the corresponding number of Vacation Credits to be cancelled will be reduced accordingly. Based
on a thorough review of occupancy and credit usage data, Plaintiffs and Wyndham agree that extraction of the
units will not materially impair availability at the resorts identified above.
D. Aggregate Changes in Credits and Units and Reserves. If the Settlement is approved and implemented, the
maximum net reduction in the number of Vacation Credits held by Wyndham for sale as WorldMark Vacation
Credits will be 274.7 million, calculated as follows: 22 million cancelled + 262.5 million extracted – 9.86 million
added at WorldMark Dolphin’s Cove. As a result of the Settlement, Wyndham’s rights and obligations as to the
274.7 million Vacation Credits, including Wyndham’s voting rights in WorldMark elections, will be eliminated.
WorldMark owners would be relieved of maintenance and other costs associated with the extracted units, and the
number of credits available to compete for reservations at WorldMark resorts will be reduced, while ensuring that
the number of units remaining after extraction will be sufficient to meet owner demand.
At the time units are transferred out of WorldMark, exterior reserves maintained for future refurbishment and
repair at resorts where units are being returned to Wyndham will be transferred to, and held by, an independent
association or governing body responsible for exterior maintenance at the resort. Interior reserves maintained for
future refurbishment and repair of the units returned to Wyndham will be deposited with an escrow agent.
Amendment of Governing Documents. To reduce the Vacation Credit values under terms A and B above, and to
extract the underutilized units under term C above, will require the Declaration of Vacation Owner Program (the
“Declaration”) recorded against the title to each of the affected resort properties to be amended to reflect the
reduced Vacation Credit values and the extraction of units. Under the terms of the Settlement Agreement, the
parties have agreed that a vote of the WorldMark Membership is not required to amend the Declaration for this
purpose.
E. Cessation of Sales of TravelShare with Fun Time. If the Settlement is approved, Wyndham will cease selling
new TravelShare memberships with Fun Time on the later of October 31, 2011 or 90 days after the Settlement
becomes effective. WorldMark owners who join TravelShare prior to that date will not be affected by the
Settlement.
F. Election Website. If the Settlement is approved, Wyndham will establish a separate internet website for owners
to access during election cycles for the purpose of, and with content pertaining to, WorldMark Board of Director
election matters, subject to reasonable review and approval of any owner postings by the WorldMark Board or the
Board’s authorized designee. Wyndham will notify WorldMark owners of the website’s existence each election
cycle via Destinations Magazine and the Insider Magazine.
G. Limitations of Party Weekends. If the Settlement is approved, Wyndham will not be able to book Party
Weekends at any specific WorldMark resort during any particular calendar month in which the occupancy at the
resort has exceeded 90% based on occupancy data from the same month in the preceding calendar year.
H. Release of Claims. If the Settlement is approved, all WorldMark owners as of December 3, 2010 who do not
exclude themselves from the Settlement will release all claims that have been or could have been alleged in the
litigation or that arise out of, are connected with, or are related to the claims asserted in the litigation, including
any unknown claims against Wyndham. Wyndham will similarly release all such claims against Plaintiffs and
Plaintiffs’ Counsel. For a fuller description of the claims being released, please see pages 25-26 of the Settlement
Agreement and Release, which is available for viewing at www.GirardGibbs.com/Wyndham-Settlement.asp.
I.

Dismissal of Pending Litigation; Required Action if Settlement is Voided. If the Settlement is approved, the
class action lawsuit will be dismissed, with prejudice, subject to the continuing jurisdiction of this Court. The
Wixon plaintiffs also will dismiss with prejudice their complaint in intervention filed in the California state
litigation involving a dispute as to the distribution of the owner register and owner email addresses, WorldMark v.
Miller, Sacramento County Superior Court Case No. 34-2008-00025130-CU-PT-GDS.

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After the Settlement’s Effective Date, Wyndham has the right to void the Settlement if and only if, after
exhausting all commercially reasonable efforts, Wyndham is unable to obtain regulatory approval to extract and
transfer out of WorldMark a minimum of 400 units as provided for under the extraction provision of the
Settlement. If Wyndham exercises this right, the Parties will, within ten (10) business days thereafter, request a
Court order that: (i) the judgment and dismissal of the Action be vacated; (ii) Plaintiffs’ Fifth Amended Class
Action Complaint and Wyndham’s Answer thereto be reinstated as the operative pleadings and the record be
reinstated; (iii) the Parties shall be restored to their respective positions in the litigation as of July 2, 2010; (iv) all
Settlement Class members shall be restored to their respective positions as of July 2, 2010; and (v) notice to the
settlement class shall be provided, if deemed necessary, by the Court at Wyndham’s expense.

6. PLAINTIFFS’ COUNSEL’S FEE AND EXPENSE APPLICATION. Plaintiffs and the Class have been represented by Girard
Gibbs LLP, a law firm in San Francisco, California. Girard Gibbs has been assisted by Gersh & Helfrich LLP, a
Denver, Colorado law firm. To date, Plaintiffs’ Counsel have not been compensated for any of their work or
reimbursed for any of the significant expenses incurred in the litigation. Subject to Court approval, Wyndham has
agreed to pay a fee award in an amount not to exceed $5 million to compensate Plaintiffs’ Counsel for the work
they have performed for the Class, the litigation expenses incurred (including experts), and the costs associated with
the notice and administration of the Settlement, together with any amounts paid to Plaintiffs as incentive awards. Also
subject to Court approval, each of the named Plaintiffs may receive a $5,000 incentive award to be paid out of the total
amount of any fee award to Plaintiffs’ Counsel. Neither Plaintiffs, WorldMark, nor the Class will be responsible for
the payment of any of Plaintiffs’ Counsel’s fees or expenses or the incentive awards. In addition, the Settlement
described above is not contingent upon the Court’s award of fees or expenses to Plaintiffs’ Counsel or the incentive
awards to the named plaintiffs.
Plaintiffs’ Counsel’s fee and expense application, including the incentive awards, are subject to Court approval. You
may comment on these matters, if you wish, following the procedures set forth in paragraph 7 below.
7. THE SETTLEMENT HEARING AND YOUR RIGHT TO BE HEARD. You do not need to attend the Settlement approval
hearing, which will be held on ___________, 2011 at 9:00 a.m. in San Francisco, California, unless you wish to
address the Court or appeal the Settlement’s approval or the fee and expense award. You have the right to attend or
comment on the Settlement or fee and expense application if you want to.
If you wish to comment on the Settlement or fee and expense application, you must submit your comment in writing.
Your written comments must: (1) include a reference at the beginning to Wixon v. Wyndham, Case No. C 07-02361
JSW (BZ); (2) list your name, address, telephone number, and WorldMark owner account number; (3) be signed by
you; (4) explain your comment/objection; and (5) if you intend to appear at the hearing personally or through counsel,
state on the first page of your submission “Intent to Appear at Hearing.” Written comments must be received by the
Court and attorneys listed below no later than June 24, 2011:
Clerk of the Court:

Plaintiffs’ Counsel:

Wyndham’s Counsel:

Clerk of the Court
U.S. District Court, Northern
District of California
450 Golden Gate Ave.
San Francisco, CA 94102

Jonathan Levine or Elizabeth Pritzker
Girard Gibbs LLP
601 California Street, Suite 1400
San Francisco, CA 94108

Kirk Quillian
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, GA 30308

If you do not present your comments in writing in compliance with these procedures, your views will not be
considered, you will not be permitted to address the Court, and you will waive your objections.
8. YOUR RIGHT TO EXCLUDE YOURSELF FROM THE SETTLEMENT. You may exclude yourself, or opt-out, from the
Settlement. If you exclude yourself, you will keep the right to sue Wyndham, on your own, about the legal issues in
this case, and you will not be legally bound by the Court’s judgment in the class action. If you start your own lawsuit
against Wyndham, you will have to hire and pay for your own lawyer and prove your claims. If you exclude yourself,

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you give up the right to comment on the Settlement or fee and expense application and give up the right to be heard at
the Settlement approval hearing.
If you wish to exclude yourself from the Settlement, you must send a letter by U.S. mail or overnight delivery to
Plaintiffs’ Counsel at the address set forth in paragraph 7 above. Your letter must: (1) include a reference at the
beginning to Wixon v. Wyndham, Case No. C 07-02361 JSW (BZ); (2) list your name, address, telephone number, and
WorldMark owner account number; (3) be signed by you; and (4) specifically state that you wish to be excluded from
the Settlement. Your letter must be postmarked no later than June 24, 2011. You cannot exclude yourself on the
telephone or by e-mail.
9. MORE INFORMATION. This notice only summarizes the lawsuit and the Settlement. For more details, you may
review the Settlement Agreement and Release, available online in Adobe Portable Document Format (pdf) at
www.GirardGibbs.com/Wyndham-Settlement.asp. The Settlement Agreement and all other pleadings and papers filed
in the lawsuit are available for inspection and copying during regular business hours at the office of the Clerk of the
Court, United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco,
California 94102.
If you would like more information about the Settlement, you may contact Plaintiffs’ counsel, Girard Gibbs LLP,
601 California Street, Suite 1400, San Francisco, CA 94108; telephone number [phone]; or by email to
[e-mail].

PLEASE DO NOT CONTACT THE COURT WITH QUESTIONS ABOUT THE SETTLEMENT.

DATED: ________, 2011

BY ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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