WHY I’M VOTING NO ON TALQUIN BYLAWS

Editor, The Sun:

Hi neighbors, I am writing to call your attention to the Talquin Electric Cooperative annual election. If you are like me, you received your ballot in the mail a few days ago. In it, aside from electing trustees to the cooperative, they are also proposing amendments to their bylaws. I am not writing to tell anyone how to vote, but I am writing to tell you why I will be voting “NO” to their proposed bylaws amendment. In their amendments, they propose adding a new Article XI entitled “Alternative Dispute Resolution” to their bylaws. This provision provides in relevant part: ”The Parties agree that any disputes to arbitrate must be brought in an individual capacity and not as a plaintiff or class member in any purported class or representative capacity... It is the intention and agreement of the Parties not to arbitrate class actions or to have consolidated arbitration proceedings.”
The “Summary of Proposed Amendments” included with the ballot provides their rationale for proposing this provision in the amendment. I would encourage you to read it and read it carefully. Consider what the impact would be to you if you and several of your neighbors were injured, harmed, or negatively impacted in some way by Talquin’s provision of services of water or electricity, or lack thereof, to your home by their own negligence or failure to comply with quality control regulations or standards. I personally do not find their rationale compelling or factually accurate. They claim that there are “no restrictions on class action litigation” in state or federal court. And that “[t]his forces the Cooperative to expend significant resources on litigation, regardless of whether the claims are meritorious.” They say the proposed amendment seeks to protect the Cooperative’s resources. I take issue with all these claims. But first I would point out that the perception of whether a claim is meritorious depends on what side of the suit the party is on. In federal court any proposed class action suit must satisfy the requirements of Federal Rule of Civil Procedure 23. I won’t bore you with all the specifics but suffice it to say that a court must determine if all the requirements for bringing a class action have been met, and only then may the court certify the class action in order to proceed. Florida state court class actions are governed by Florida Rule of Civil Procedure 1.220, which has requirements similar to the federal rule, and also requires a court to determine whether a claim may or may not proceed as a class action. Practical considerations, efficiency considerations, and other factors are weighed by a judge in reaching that decision. Among the requirements that must be met are that the suit alleges a question of fact or law common to all members of the class. Once a court decides to allow a class action to proceed, the claim cannot be voluntarily dismissed by the parties without court approval.
Perhaps it is worth asking Talquin, just how much money has it spent defending against class action lawsuits? How many cases have there been? What were their outcomes? How many were dismissed for being non-meritorious? Is there a recent phenomena that prompted the need for this amendment now?
But aside from that, and more importantly, this would eliminate the ability of a group of homeowners or a homeowners association, on behalf of homeowners, to arbitrate any claims multiple residents may have against Talquin in a single class arbitration. That does not sound feasible or cost-effective to me. The amendment pits the single homeowner to do battle with Talquin all alone even if over a hundred or a thousand residents have the same injury or complaint. That would include all claims no matter how meritorious they are.
That is not what I call “protecting resources” of the cooperative. In my opinion, this would put the individual consumer in the weakest possible position to pursue any claim against Talquin should the need arise. That may be in the best interest of protecting Talquin from legal claims brought against them by their consumers, but I fail to see how it would be in the best interest of their consumers – especially if it involves multiple claims of the same harm to a large number of consumers for the same reason. One of the most common types of class actions are consumer related complaints. Does it really save resources, or make sense, to force multiple consumers with the same exact problem or complaint to individually arbitrate the same issue they all share, one at a time rather than all at once?
But that is not the last of it. To go even further, the last sentence of the amendment to Article XI purports to waive your right to a trial by jury in a court of law against Talquin. No thank you! I will not be voting to waive my right to anything. That is not to say that I believe it is even possible to waive an individual’s right to jury trial in this manner.
One other thing, I don’t know any of these people (the incumbents) seeking reelection, but the fact that they are recommending this gives me pause to vote for any of them. I have always thought that if you only have one option to vote for, you should have the right to vote “No” on that single option. An “election” with no choice is neither a vote nor an election. Your vote simply does not matter in those types of “elections.”
If it is one thing we don’t need any more of, it is “elections” where your vote doesn’t matter.

David De La Paz, Esq.
Crawfordville

De La Paz specialized in Constitutional Law, Judicial Process and Governmental Public Policy, and was a staff director for the Florida House of Representatives for several years in committees with oversight over the judiciary, and criminal and civil justice matters.