United States District Court, D. Connecticut
GORSS MOTELS, INC., individually and as the representative of a class of similarly situated persons, Plaintiff,
v.
OTIS ELEVATOR COMPANY, and JOHN DOES 1-5, Defendants.
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.,
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