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Gorss Motels, Inc. v. AT&T Mobility LLC

United States District Court, D. Connecticut

February 14, 2019

GORSS MOTELS, INC, Plaintiff,
v.
AT&T MOBILITY LLC and AT&T MOBILITY NATIONAL ACCOUNTS LLC, Defendants.

          RULING DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

          JANET BOND ARTERTON, U.S.D.J.

         Gorss 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.

         I. Background

         Plaintiff 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.)

         Defendants 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.)

         Plaintiff 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 strategic.sourcing@wyn.com. To opt out from future faxes, email strategic.sourcing@wyn.com 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 4.)

         Plaintiff 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. 2.)

         II. Discussion

         A. Rule 23 Class Certification

         Plaintiff 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 ...

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