United States District Court, D. Connecticut
RULING DENYING PLAINTIFF'S MOTION FOR CLASS
BOND ARTERTON, U.S.D.J.
Motels, Inc., individually and as representative of a
proposed class, brings suit against AT&T Mobility and its
affiliate AT&T Mobility National Accounts for violation
of the Telephone Consumer Protection Act of 1991, as amended
by the Junk Fax Prevention Act of 2005, for sending an
unsolicited fax advertisement. Plaintiff moves for class
certification pursuant to Fed.R.Civ.P. 23(a) and (b)(3).
(Pl.'s Mot. for Class Cert. [Doc. # 56].) Oral argument
on Plaintiffs motion was held on December 5, 2018. For the
reasons that follow, Plaintiffs Motion for Class
Certification is denied.
is the former corporate owner of a Super 8 Motel which was a
franchisee of Wyndham Hotel Group. (Ex. 14 (Purchase and Sale
Agreement) to Defs.' Opp. to Mot. for Class Cert. [Doc.
63-5] at 1; Ex. D to Ex. 7 (Franchise Renewal App.) to
Defs.' Opp. [Doc. # 63-5] at 1.)
are providers of telecommunications services to customers
throughout the United States. (Ex. 5 (Phillips Decl.) [Doc. #
61-4] ¶ 2.) Defendant AT&T Mobility National
Accounts provides wireless services to corporate clients,
including Wyndham Worldwide Operations, a subsidiary of
Wyndham Hotel Group. (See Defs.' Opp. at 4; Ex.
6 (Powderly Decl.) to Defs.' Opp. [Doc. # 61-10]
¶¶ 2-3.) Through its subsidiary Worldwide Sourcing
Solutions, Inc., Wyndham provides access to its franchisees
to discounted services from partners, including AT&T.
(Ex. 8 (Gattuso Decl.) [Doc. # 61-19] ¶¶ 2-3, 6.)
Defendants argue that Wyndham also provides a "marketing
program designed to communicate how the franchisees can
benefit from the AT&T/Wyndham relationship."
(Defs.' Opp. at 5.) Defendants say that "[t]hrough
this program, Wyndham authorized AT&T to contact its
franchises" and that "[a]mong several other tools,
the marketing program provided for a 'fax blast'
option to send faxes describing AT&T's discounts to
the assorted franchisees." (Id.) Defendants
also argue that the "contact information used to send
those faxes came solely from Wyndham's franchisees"
and that that "information was freely given by Gorss
Motels and other franchisees with the expectation that it
would be used to contact them." (Id.)
alleges that Defendants sent fax advertisements to Plaintiff
and a class of other persons, "including, but not
limited to," an unsolicited advertisement sent
"[o]n or about January 13, 2014." (Am. Compl. [Doc.
# 39] ¶ 11; see Ex. A (the Fax) to Pl.'s
Mot. for Class Cert. [Doc. # 56-3].) The fax advertises:
"Attention Wyndham Hotel Group owners and hotel
employees: Enjoy your 2014 Wyndham Hotel Group benefits!
Visit your AT&T Premier online store at
att.com/wireless/wyndhamfranchises for your exclusive
specials," going on to list several offers for new
cellular devices and plans. (The Fax.) In small print at the
bottom of the Fax, it explains:
All products and services are manufactured and/or provided by
AT&T and not Wyndham Worldwide Corporation (WWC) or its
affiliates. Neither WWC nor its affiliates are responsible
for the accuracy or completeness of any statements made in
this advertisement, the content of this advertisement
(including the text, representations and illustrations) or
any material on a website to which the advertisement provides
a link or reference. Please refer to the applicable brand
specifications for your property prior to purchasing
products. This facsimile contains confidential information
intended only for use by Wyndham Worldwide entities and
Wyndham Hotel Group franchisees. ... If you have received
this facsimile by error, please immediately notify us by
emailing email@example.com. To opt out from future
faxes, email firstname.lastname@example.org or call this
toll-free number: (877) 764-4212.
(Id.) Plaintiff alleges that this fax was
successfully transmitted to 3, 886 fax numbers. (See
Ex. B (Biggerstaff Report) to Pl.'s Mem. [Doc. # 56-4] at
argues that the fax sent by Defendant violated the Telephone
Consumer Protection Act, as amended by the Junk Fax
Protection Act, because the fax was "unsolicited"
and its opt-out language did not meet statutory and
regulatory requirements. (Am. Compl. ¶
Rule 23 Class Certification
seeks certification of the following class:
All persons or entities who were successfully sent a
facsimile on or about January 14, 2014, stating: "Visit
your AT&T Partner online store at
att.com/wireless/wyndhamfranchisees for your exclusive
specials such as $50 new smartphone activation credit, $100
instant rebate on all tablets while supplies last, 16% on
qualifying monthly charges," and "Learn about
AT&T's new Mobile Share Value Plan!," and
"For a limited time, switch from ...