Gorss Motels Inc. v. Otis Elevator Co.

          MEMORANDUM OF DECISION ON THE PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         Statement of the Case

         This case, initiated by the Plaintiff Gorss Motels, Inc. (“Gorss” or “the Plaintiff”), is one of several putative class actions brought against product suppliers to Wyndham Hotel Group (“Wyndham”) and its franchisees. Gorss brings claims arising out of the Defendant Otis Elevator Company's (“Otis” or “the Defendant”) alleged sending of an unsolicited facsimile to Wyndham franchisees under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 (“TCPA”). Pending before the Court is the Plaintiff's Motion for Class Certification. The Court heard oral argument on the motion on January 28, 2019. For the following reasons, the motion is DENIED.

         Facts

         The Plaintiff is the former corporate owner of a Super 8 Motel, which was a franchisee of Wyndham, one of the world's largest hotel franchise companies. Gorss operated a Super 8 Motel pursuant to a Franchise Agreement with Wyndham. The Defendant is a manufacturer of elevators, escalators, and moving walkways. In February 2014, Otis entered into a contract-the “Strategic Sourcing Agreement”-with Worldwide Sourcing Solutions, Inc (“WSSI”), a wholly-owned subsidiary of Wyndham Worldwide Corporation and affiliate of Wyndham. This agreement allowed Otis to become an Approved Supplier of elevator services for Wyndham franchisees.

         WSSI's “Approved Supplier” program (also known as its “Strategic Sourcing” program) assists Wyndham franchisees in their purchasing of goods and services by, inter alia, negotiating prices or volume discounts, with the designated “Approved Suppliers.” Once Otis became an Approved Supplier, WSSI would provide information regarding Otis's goods and services to Wyndham franchisees.

         In July 2015, a representative of WSSI reached out to Otis regarding a promotional “Fax Blast” to be sent to Wyndham franchisees. After Otis sent WSSI the final version of the promotional flyer, WSSI added a fax disclaimer and Wyndham disclaimer to the document. The disclaimers stated:

All products and services are manufactured and/or provided by Otis Elevator Company and not by Wyndham World Wide 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 test, representations and illustrations) or any material on a website to which the advertisement provides a link or a reference. Please refer to the applicable brand specifications for your property prior to purchasing products.

This facsimile contains confidential information intended only for the use by Wyndham Worldwide entities. If the reader of this facsimile is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this facsimile is strictly prohibited. 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.

(Emphasis added.) A third-party vendor, Western Printing, was hired to send the facsimile (the “Fax”) to certain Wyndham franchisees. Western Printing further subcontracted the transmission of the fax to one of its own vendors, WestFax. On August 13, 2015, the Plaintiff received the Fax. The Plaintiff alleges that the Fax was successfully transmitted to 2, 936 fax numbers. The putative class consists of the Plaintiff as well as the other persons or entities who purportedly received the Fax.^[1]

         Standard of Review

         Rule 23 Class Certification

         A party seeking class certification under Federal Rule of Civil Procedure 23 must establish, by a preponderance of the evidence, that the requirements of the Rule are met. Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). A district court may not certify a class unless it “is satisfied, after a rigorous analysis, ” that such requirements are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). When assessing whether plaintiffs have met this burden, courts must consider “all of the relevant evidence admitted at the class certification stage.” Betances v. Fischer, 304 F.R.D. 416, 424 (S.D.N.Y. 2015).

         Pursuant to Rule 23(a), a class action may be certified only if: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class [also referred to as commonality]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). Rule 23 also incorporates an “implied requirement of ascertainability” of the class. Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (internal quotation marks omitted). Under Rule 23(b)(3), a class may only be certified where “the questions of law or fact common to class members predominate over any questions affecting only individual members” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The predominance requirement of Rule 23(b)(3) usually presents a “far more demanding” obstacle to certification than the commonality requirement of Rule 23(a). See In re Photochromic Lens Antitrust Litig., ...