United States District Court, D. Connecticut
GORSS MOTELS INC. Plaintiff,
A.V.M. ENTERPRISES, INC., and JOHN DOES 1-5, Defendants.
MEMORANDUM OF DECISION RE: MOTION FOR CLASS
CERTIFICATION [ECF NO. 64]
A. DOOLEY UNITED STATES DISTRICT JUDGE.
case, initiated by plaintiff Gorss Motels, Inc.
(“Gorss”), is one of several putative class
actions brought against product suppliers to Wyndham Hotel
Group (“Wyndham”) and its franchisees by Gorss.
Gorss contends that A.V.M. Enterprises, Inc.
(“A.V.M.”) violated the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention
Act of 2005, 47 U.S.C. § 227, (“TCPA”) when
it sent unsolicited facsimile (“fax”)
advertisements to Wyndham franchisees. Pending before the
Court is Gorss' Motion for Class Certification. (ECF No.
64.) For the reasons set forth in this decision, the Motion
for Class Certification is DENIED.
is the former corporate owner of a Super 8-branded motel and
Wyndham franchisee. To assist franchisees with purchasing
items for their motels, Wyndham has an “Approved
Supplier Program” through which franchisees can
purchase products that conform to Wyndham's standards at
competitive prices. Franchisees receive information about
approved suppliers in a variety of ways. For example, at the
annual Wyndham Global Conference, approved suppliers have
booths to promote their products, and franchisees can request
quotes or leads from suppliers, by fax or other means.
Wyndham, in coordination with its approved suppliers, also
regularly sends out “fax blasts” promoting sales
2009, A.V.M. has been one of only a handful of approved
suppliers of certain goods and products for some of
Wyndham's franchisees, including franchisees of the Super
8-brand. A.V.M. distributes an array of products to
hospitality businesses, including linens, plasticware,
cleaning products, and toilet paper, and it has license to
sell Wyndham-branded products. Franchisees often need to
restock supplies sold by A.V.M. on a weekly basis.
Consequently, through its status as an approved supplier,
A.V.M. has developed business relationships with many of
Wyndham's franchisees, and some franchisees have asked
A.V.M. to send them information regarding their products and
sales, sometimes via fax. For example, A.V.M. interacted with
and received contact information from many franchisees,
including Gorss, at the annual Wyndham Global Conference.
other approved suppliers, Wyndham worked with A.V.M. to
create advertisements for broadcasting to Wyndham franchisees
via fax. Wyndham would arrange to send the fax advertisements
through a third-party company using a recipient list
generated and provided by Wyndham.
with the Approved Supplier Program, Gorss' franchise
agreement, which required it to maintain certain standards at
its Super 8-branded motel, provided as follows:
4.4 Purchasing and Other Services. We may
offer optional assistance to you with purchasing items used
at or in the Facility. Our affiliates may offer this service
on our behalf. We may restrict the vendors authorized to sell
proprietary or Mark-bearing items in order to control
quality, provide for consistent service or obtain volume
discounts. We will maintain and provide to you lists of
suppliers approved to furnish Mark-bearing items, or whose
products conform to System Standards.
provided its fax number in another section of the franchise
of the 2014 renewal of Gorss' franchise agreement,
Wyndham also issued a Property Improvement Plan
(“PIP”) report to Gorss, which detailed the
aspects of the Gorss facility (e.g., bedding,
draperies, artwork, etc.) that needed to be brought into
compliance with brand standards. The PIP contained the
following provision concerning the purchase of products and
services for completion of the PIP:
By signing this PIP, I acknowledge and agree that select
pieces of this PIP may be provided to our approved vendors
for purposes of offering you products and services that are
required to complete this PIP. Only information necessary for
the vendor to offer their products and services will be
provided, including contact information, property address,
number of rooms, brand converting to, and a list of items
related to necessary or required products and services.
was executed by Gorss on August 26, 2014.
alleges in its Complaint that A.V.M. sent two fax
advertisements to it and other Wyndham franchisees, one on
June 15, 2015 and one on May 16, 2016 (collectively, the
“Faxes”). The putative class consists of Gorss as
well as the other persons or entities who purportedly
received the Faxes. Gorss identifies 3, 419 unique fax
numbers that received the June 15, 2015 fax and 2, 762 unique
fax numbers that received the May 16, 2016 fax.
alleges that the sending of the Faxes violated the TCPA
because, inter alia, the Faxes were
“unsolicited” advertisements. See 47
U.S.C. § 227(b)(1)(C) (prohibiting transmission of
“an unsolicited advertisement” by fax, subject to
certain exceptions). Gorss further asserts that the Faxes
failed to contain “opt out” language required
under by the so-called “Solicited Fax Rule, ” 47