Gorss Motels Inc. v. A.V.M. Enterprises, Inc.

          MEMORANDUM OF DECISION RE: MOTION FOR CLASS CERTIFICATION [ECF NO. 64]

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE.

         This case, initiated by plaintiff Gorss Motels, Inc. (“Gorss”), is one of several putative class actions brought against product suppliers to Wyndham Hotel Group (“Wyndham”)^[1] 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.

         Facts

         Gorss 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 and products.

         Since 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.

         Like 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.

         Consistent 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.

         Gorss provided its fax number in another section of the franchise agreement.

         As part 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.

         The PIP was executed by Gorss on August 26, 2014.

         Gorss 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.

         Gorss 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 C.F.R. ...