United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN UNITED STATES DISTRICT JUDGE
Motels, Inc., (âPlaintiffâ or âGorss Motelsâ) has sued the
Otis Elevator Company (âDefendantâ) for allegedly sending
unsolicited facsimiles in violation of the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention
Act of 2005, 47 U.S.C. Â§ 227 (âTCPAâ or âActâ).
case is one of several putative class actions lodged against
franchisees of Wyndham Hotel Group, but in this case, class
certification has already been denied. See Order and
Memorandum of Decision on the Plaintiff’s Motion for
Class Certification, ECF No. 105 (Apr. 4, 2019) (Dooley, J.).
Otis Elevator Company also has moved for summary judgment on
all of Gorss Motels’s claims. Motion for Summary
Judgment, ECF No. 64 (June 1, 2018) (“Def.’s
Mot.”); Memorandum of Law in Support of Def.’s
Mot., ECF No. 65 (June 1, 2018) (“Def.’s
Mem.”); Local Rule 56(a)(1) Statement of Undisputed
Material Facts, ECF No. 68 (June 1, 2018)
Motels has opposed the Otis Elevator Company’s motion
for summary judgment.
Memorandum in Opposition to Def.’s Mot., ECF No. 77
(June 22, 2018) (“Pl.’s Opp.”); Local Rule
56(a)(2) Statement of Facts, ECF No. 78 (June 22, 2018)
following reasons, the Otis Elevator Company’s motion
for summary judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of a single facsimile advertisement sent to
Gorss Motels on August 13, 2015. Compl. ¶ 11. The
Wyndham Hotel Group (“Wyndham”), a hotel
franchise company that franchises several brands, including
Super 8®, and related lodging subsidiaries including
Super 8 Worldwide, Inc. Def.’s SMF ¶ 3.
October 3, 1988, Gorss Motels first entered into a Franchise
Agreement with Super 8 Motels, Inc. to operate a Super 8®
lodge for an initial term of twenty years. Id.
February of 2014, the Otis Elevator Company entered into a
contract-the “Strategic Sourcing Agreement”-with
Wyndham Worldwide Sourcing Solutions Inc.
(“WSSI”), a wholly owned subsidiary of Wyndham
Worldwide Corporation and affiliate of Wyndham. Id.
this Agreement, the Otis Elevator Company became an
“Approved Supplier” of elevator services for
Wyndham franchisees. Id. WSSI’s
“Approved Supplier” program, also known as its
“Strategic Sourcing” program, supports the
purchasing efforts of Wyndham franchisees by negotiating
prices, volume discounts, and commissions for various
products and services with designated “approved
suppliers.” Id. ¶ 8. Under the Strategic
Sourcing Agreement, once the Otis Elevator Company became an
“Approved Supplier, ” WSSI would provide
information regarding Otis Elevator Company’s goods and
services to Wyndham franchisees, and WSSI would then receive
a percentage of revenue for any new franchisee contracting
with the Otis Elevator Company that was not already an Otis
Elevator Company customer. Id. ¶ 11.
22, 2014, upon the expiration of its 1988 Franchise
Agreement, Gorss Motels applied to Wyndham to continue as a
franchisee. Id. ¶ 29. That application included
Gorss Motels’s fax number. Id.
September 10, 2014, Gorss Motels entered into another
Franchise Agreement for an additional twenty-year term.
Id. ¶ 30. The 2014 Franchise Agreement
addressed the Approved Supplier program, id. ¶
32, and informed Gorss Motels that “Gorss could, and in
some instances was required to, purchase furniture, fixtures,
equipment, and other supplies through WSSI’s Approved
Supplier Program.” Id. ¶ 34.
Motels concedes it affirmatively provided its contact
information, including the (860) 632-8889 facsimile number,
to Wyndham and its affiliates many times during the years it
was a franchisee. Id. ¶ 35. Additionally, Gorss
Motels’s fax number was published in Super 8®
directories, made available on the Internet for general use,
and used in various advertisements and postings over the
years. Id. ¶¶ 37-39.
3.1 of the 2014 Franchise Agreement required Gorss Motels to
renovate its property in accordance with the Property
Improvement Plan Report. Id. ¶ 50; see
also Declaration of Suzanne Fenimore Ex. G: Super 8
Worldwide, Inc. Franchise Agreement, ECF No. 73-10 at 8, 12
(June 1, 2018) (“You must renovate and improve the
Facility in accordance with any Punch List attached to this
Agreement, any Approved Plans and System Standards. . . . The
PIP identifies specific items inspected at the Facility and
were not in compliance with brand standards and need to be
corrected.”). Before executing the 2014 Franchise
Agreement, on August 26, 2014, Gorss Motels signed the
Property Improvement Plan Report, thus acknowledging and
agreeing that Wyndham-approved vendors would receive his
contact information to reach out and offer their products and
services, which were required to complete the Property
Improvement Plan Report. Id. ¶ 51; see
also Fenimore Decl. Ex. G, ECF No. 73-10 at 12
(“By signing this PIP, I acknowledge and agree that
select pieces of this PIP may be provided to our approved
vendors . . . Only information necessary for the vendor to
offer their products and services will be provided, including
contact information, property of address, number of rooms,
brand converting to, and a list of items related to necessary
or required products and services.”). Gorss
Motels’s Property Improvement Plan Report identified
the elevators at the Gorss Motels property as not meeting
brand quality standards. Id. ¶ 52. The Property
Improvement Plan Report provided Gorss Motels one year to
refurbish the property’s elevator from the Otis
Elevator Company. Id. ¶ 53.
2015, WSSI reached out to Otis Elevator Company with a plan
to disseminate information about Otis Elevator
Company’s products to the Wyndham franchisees.
Id. ¶ 13. The Otis Elevator Company believed it
would be a “Fact Blast” sent to franchisees by
e-mail; WSSI intended for the “Fax Blast” to be
issued by facsimile. Id. ¶¶ 13-17;
compare with Pl.’s SMF ¶¶ 13-17.
27, 2015, at WSSI’s request, Roger Nayle, an Otis
Elevator Company employee, provided a one-page, color flyer
or “fact sheet” describing the Otis Elevator
Company’s services. Def.’s SMF ¶ 14. After
receiving Mr. Nayle’s final version of the flyer, and
without further communication with Otis Elevator Company,
WSSI added “fax disclaimer” and “WHG
disclaimer” language that it had been using for years
to the bottom of the flyer, and affixed a prominent Wyndham
Hotel Group logo in the bottom right corner. Id.
¶¶ 18-19. There is no record of WSSI invoicing Otis
Elevator Company for sending the facsimile (the
“Fax”), nor is there a record of any payment
received by WSSI from Otis Elevator Company regarding the
Fax. Id. ¶ 20.
about August 5, 2015, WSSI asked a third-party vendor,
Western Printing, to transmit the flyer by fax to certain
specified Wyndham franchisees. Id. ¶ 21.
Western Printing, in turn, subcontracted the actual
transmission of the Fax to one of its own vendors, WestFax.
Id. ¶ 24. The Otis Elevator Company had no
relationship or communication with either Western Printing or
WestFax. Id. ¶¶ 23, 25.
August 13, 2015, after receiving an order from
Wyndham’s vendor, Western Printing, WestFax had the Fax
sent from the “973 Source Number” to Gorss
Motels’s fax number of (860) 632-8889, id.
¶ 26, which is a fax number that Gorss Motels had
provided to Wyndham many times over the years, both before
and after receipt of the Fax. Id. ¶ 35. The Fax
was sent within the Property Improvement Plan Report’s
one-year directive for Gorss Motels to refurbish its elevator
from the Otis Elevator Company, consistent with
Wyndham’s standards. See Id . ¶ 53.
receiving the Fax, Gorss Motels never called, faxed,
e-mailed, or otherwise contacted anyone to request that
facsimiles stop, and never informed WSSI that Gorss Motels
did not want to receive communications related to Approved
Suppliers by fax. Id. ¶¶ 40-48.
Gorss, the owner of Gorss Motels, considered all advertising
facsimiles to be illegal “junk faxes.” Id.
¶ 55. “Gorss never reviewed any of the
opt-out languages on facsimiles it received, and never
called, faxed, emailed, or otherwise contacted anyone to
request that facsimiles stop.” Id. ¶ 60.
“Gorss never opted out of receiving faxes sent as part
of the Approved Supplier program, and never informed WSSI
that Gorss objected to or did not want to receive fax
communications relating to Approved Suppliers.”
Id. ¶ 64.
August 4, 2016, Gorss Motels sold its Super 8® franchise.
Id. ¶ 65. During the period in which it was a
Wyndham property, Gorss Motels received only one fax relating
to the Otis Elevator Company, the Fax. Id. ¶
Motels alleges that the Otis Elevator Company profits and
benefits from the sale of goods advertised in the unsolicited
fax. Compl. ¶ 12. Furthermore, Gorss Motels alleges that
the Fax lacks required opt-out language, id. ¶
14, and that Gorss Motels has lost paper, toner, and time,
resources that would otherwise be used in the course of their
business activities. id. ¶ 34.
October 27, 2016, Gorss Motels filed a putative class action
complaint against the Otis Elevator Company and several
unnamed defendants, challenging their alleged practice of
sending unsolicited facsimiles in violation of the Telephone
Consumer Protection Act of 1991 (or “TCPA”).
Compl ¶¶ 1-2.
same day, Gorss Motels moved to certify the class, or in the
alternative, stay proceedings. Motion for Class Certification
and for Temporary Stay of Further Proceedings on that Motion,
ECF No. 3 (Oct. 27, 2016).
January 25, 2017, the Otis Elevator Company filed a motion to
stay the litigation, pending a decision by the United States
Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) on the viability of the
FCC’s “solicited fax” rule. Motion to Stay
Litigation, ECF No. 24 (Jan. 25, 2017).
February 8, 2017, Gorss Motels objected to the Otis Elevator
Company’s motion, Memorandum in Opposition to
Defendant’s Motion, ECF No. 31 (Feb. 8, 2017), and on
February 22, 2017, the Otis Elevator Company filed a
memorandum in support of its motion. Memorandum in Support of
Motion to Stay, ECF No. 32 (Feb. 22, 2017).
April 5, 2017, this Court found the motion to stay as moot,
because the D.C. Circuit had issued its decision, see
Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C.
Cir. 2017), and ordered the parties to submit responsive
pleadings and a Rule 26(f) report within thirty days. Order,
ECF No. 35 (Apr. 5, 2017).
5, 2017, the Otis Elevator Company timely filed its Answer
with affirmative defenses. Answer, ECF No. 36 (May 5, 2017).
6, 2017, this Court issued an order denying Gorss
Motels’s initial motion for class certification without
prejudice, or in the alternative, a stay, and instructed
Gorss Motels to file the motions, if necessary, at a later
date under the scheduling order issued on May 17, 2017.
See Order, ECF No. 43 (July 6, 2017).
1, 2018, the Otis Elevator Company moved for summary
judgment. Def.’s Mot.; Def.’s Mem.
same date, Gorss Motels filed another motion for class
certification, Motion to Certify ...