Gorss Motels Inc. v. Land's End, Inc.

          RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Gorss Motels, Inc., (“Plaintiff” or “Gorss Motels”) as the representative of a putative class action, has sued Lands' End, Inc., (“Lands' End” or “Defendant”) 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. § 227 (“TCPA” or “Act”), and Conn. Gen. Stat. § 52-570c.

         Lands' End has moved for summary judgment on all of Gorss Motels's claims. Motion for Summary Judgment, ECF No. 93 (June 26, 2019) (“Def.'s Mot.”); Memorandum of Law in Support of Def.'s Mot., ECF No. 94 (June 26, 2019) (“Def.'s Mem.”); Local Rule 56(a)(1) Statement of Undisputed Material Facts, ECF No. 96 (June 26, 2019) (“Def.'s SMF”).

         Gorss Motels has opposed Lands' End's motion for summary judgment. Plaintiff's Memorandum in Opposition to Def.'s Mot., ECF No. 112 (July 31, 2019) (“Pl.'s Opp'n”); Local Rule 56(a)(2) Statement of Facts, ECF No. 113 (July 31, 2019) (“Pl.'s SMF”).

         For the following reasons, Lands' End's motion for summary judgment is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background^[1]

         This case arises out of three facsimile advertisements sent to Gorss Motels on three separate dates: January 12, 2015, June 15, 2015, and May 16, 2016 (collectively, the “Faxes”). Pl.'s SMF ¶¶ 82, 84. The Wyndham Hotel Group (“Wyndham”) is a hotel franchise company that franchises several brands, including Super 8®, and related lodging subsidiaries including Super 8 Worldwide, Inc. Id. ¶¶ 1, 3.

         In 1988, Gorss Motels first entered into a franchise agreement (“1988 Franchise Agreement”) with Super 8 Motels, Inc. to operate a Super 8® lodge. Id. ¶ 2.

         On March 11, 2009, Gorss Motels and Super 8 amended the 1988 Franchise Agreement to extend the term to August 15, 2014. Id. ¶ 7.

         On July 22, 2014, as the expiration of the 1988 Franchise Agreement approached, Gorss Motels applied to Wyndham to continue as a franchisee. Id. ¶ 10.

         On September 20, 2015, Gorss Motels entered into a second franchise agreement (“2014 Franchise Agreement”) to operate the same Super 8 for an additional twenty-year term. Id. ¶ 11.

         The 2014 Franchise Agreement required Gorss Motels to “participate in System marketing programs[, ]” Fenimore Decl., Ex. G: Super 8 Worldwide In., Franchise Agreement, ECF No. 106 at 57, § 3.4.1 (June 26, 2019) (“2014 Franchise Agreement”), and that Gorss Motels “purchase or obtain certain items [Wyndham] designate[s] as proprietary or that bear or depict the Marks, such as signage, only from suppliers we approve, ” id. at 60, § 3.10. Wyndham allowed Gorss Motels to “purchase other items for the Facility from any competent source . . . so long as the items meet or exceed System Standards.” Id. In addition, the 2014 Franchise Agreement stated that Wyndham could “offer optional assistance to [Gorss Motels] with purchasing items used at or in the Facility.” Id. at 64, § 4.4. Furthermore, Wyndham's “affiliates may offer this service on [Wyndham's] behalf.” Id.

         In connection with the 2014 Franchise Agreement, Gorss Motels also received a Franchise Disclosure Document, which disclosed that Wyndham's affiliate, Worldwide Sourcing Solutions, Inc. (also referred to as “WSSI”), “would be offering goods and services to Wyndham's franchisees and the franchisees of the Lodging Affiliates as defined below.” Pl.'s SMF ¶¶ 17-18 (quotations and citations omitted); see also Id. ¶ 28 (stating that WSSI is a wholly-owned subsidiary of Wyndham). Item 8 of the Franchise Disclosure Document disclosed that franchisees like Gorss Motels “must purchase equipment that meets Super 8 standards and purchase mark-bearing items only from suppliers for these products included in WSSI's Approved Supplier program.” Id. ¶ 21 (quotations and citations omitted).

         Section 3.1 of the 2014 Franchise Agreement required Gorss Motels to renovate its property in accordance with the Property Improvement Plan Report. Id. ¶ 26; see also 2014 Franchise Agreement, ECF No. 106 at 93, § 2.1 and 97 (“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.”).

         On August 26, 2014, before executing the 2014 Franchise Agreement, Gorss Motels signed the Property Improvement Plan Report, thus acknowledging and agreeing that Wyndham-approved vendors would receive its contact information to reach out and offer their products and services, which were required to complete the Property Improvement Plan Report. Id. at 97 (“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 Lands' End. Id. ¶ 53.

         Worldwide Sourcing Solutions, Inc. received commissions from its “Approved Supplier” program, also known as its “Strategic Sourcing” program, and entered into agreements with third-party “Approved Suppliers, ” whose various products and services are offered to Wyndham's franchisees for purchase and use. Id. ¶¶ 29-30. The Strategic Sourcing program “exists, in part to aid franchisees in obtaining supplies that meet the requirements of Wyndham's System Standards.” Id. ¶ 32 (quotation marks and citation omitted). Franchisees received and had access to Worldwide Sourcing Solutions, Inc.'s communications regarding this program from a variety of channels. Id. ¶ 34. Wyndham and Worldwide Sourcing Solutions, Inc. provided Gorss Motels with Approved Supplier directories listing Approved Suppliers, including Lands' End. Id. ¶ 35. One of the marketing programs that WSSI offered as part of the Approved Supplier program was facsimiles sent to franchisees. Id. ¶ 40. Gorss Motels never objected to participating in the Approved Supplier program until this lawsuit. Id. ¶ 38.

         As part of the 2014 Franchise Agreement, franchisees were required to attend Wyndham conferences, where Approved Suppliers displayed products and services. Id. ¶ 42 (citing 2014 Franchise Agreement, ECF No. 106 at 59, § 3.9). In 2012, Steven Gorss, the owner of Gorss Motels, attended Wyndham conferences and provided his contact information, including his fax number, (860) 632-8889, as part of the registration process. Id. ¶ 43. Mr. Gorss swiped his badge at various Approved Suppliers' booths, which transmitted his contact information to the Approved Supplier. Id. ¶ 44.

         Gorss Motels affirmatively and “periodically provided [its] fax number to Wyndham as part of the franchisor/franchisee relationship.” Id. ¶ 45. For example, on January 21, 2010, Gorss Motels submitted to Wyndham by facsimile a contact form providing its fax number. Id. ¶ 46. On July 22, 2014, Gorss Motels provided its fax number to Wyndham in its franchise renewal application. Id. ¶ 47. Finally, in the 2014 Franchise Agreement, Gorss Motels again provided its fax number. Id. ¶ 48. On November 23, 2015, Gorss Motels received by e-mail from Wyndham a “site contact” change form. Id. ¶ 50. Gorss Motels completed this form, including its fax number, and returned it to Wyndham the next day. Id. ¶ 51.

         Gorss Motels' fax number “was published in Super 8 Motel directories and [Gorss Motels] was aware that the contact information it provided to Wyndham would be used for that purpose.” Id. ¶ 52. Gorss Motels “never advised Wyndham or Super 8 that it did not want to receive communications by fax.” Id. ¶ 53.

         On October 28, 2014, Lands' End entered into an agreement with Worldwide Sourcing Solutions, Inc. (the “Sourcing Agreement”) that made available for sale products to Wyndham and its franchisees, including Gorss Motels. Id. ¶¶ 68-69. Under the Sourcing Agreement, Lands' End became an “Approved Supplier” of Wyndham-branded apparel for Wyndham franchisees, and was required to participate in Wyndham's marketing program, which included various forms of marketing directly to franchisees. Id. ¶¶ 70-72. After executing the Sourcing Agreement, Wyndham recommended that Lands' End use Wyndham's fax broadcasting service. Id. ¶ 73.

         On December 9, 2014, Lands' End sent a draft facsimile to Wyndham. Id. ¶ 74. After receiving this draft, Wyndham revised the draft, and unilaterally added another disclaimer and an opt-out notice.^[2] Id. ¶¶ 75-76. Wyndham asked a third-party vendor, Western Printing, to transmit the flyer by facsimile to certain specified Wyndham franchisees. Id. ¶¶ 77-78. Western Printing, in turn, subcontracted the actual transmission of the Fax to another third-party vendor, WestFax. Id. ¶ 80. Lands' End had no relationship or communication with either Western Printing or WestFax. Id. ¶¶ 79, 81.

         On January 12, 2015, WestFax had the facsimile sent from the “973 Source Number” to Gorss Motels's fax number of (860) 632-8889, id. ¶ 82, which is the fax number that Gorss Motels had provided to Wyndham many times over the years, id. ¶ 45.

         On June 15, 2015 and May 16, 2016, two additional facsimiles (one for each date) referencing Lands' End were transmitted to Gorss Motels's fax number. Id. ¶ 84. The same process was used to revise and send all three of the Faxes. Id. ¶ 85. Although the third fax (transmitted on May 16, 2016) contained the same opt-out notice as the first fax (transmitted on January 12, 2015), the second fax (transmitted on June 15, 2015) did not contain an opt-out notice. Id. ¶¶ 86-87.

         After receiving the Faxes, Gorss Motels never contacted anyone to request that facsimiles stop, and never informed Wyndham that Gorss Motels did not want to receive communications related to Approved Suppliers by fax. Id. ¶¶ 61, 63. In or around January 2011, Mr. Gorss first consulted Gorss Motels' counsel in this case, at least in part, because he wanted the faxes to stop. Id. ¶¶ 54-55. At that time, Gorss Motels began to provide copies of faxes it was receiving to its attorneys. Id. ¶ 57. Between 2011 and 2016, Gorss Motels sent over 2, 100 pages of faxes to counsel, Anderson Wanca. Id. ¶ 58. Gorss Motels did not attempt to opt-out of any of these facsimile advertisements, id. ¶ 61, instead it collected the faxes to send to its attorneys, id. ¶ 62. Gorss Motels never discussed opt-out language with its attorneys. Id. ¶ 63. Mr. Gorss “did not attempt to opt out of the over 2, 000 pages of fax ads he received, ” id. ¶ 61, and “didn't read” the opt-out language that was on most of the faxes, Gorss Dep., ECF No. 98 at 77:7 (June 1, 2018).

         On August 4, 2016, Gorss Motels sold its Super 8® franchise, and is no longer a Wyndham franchisee. Pl.'s SMF ¶¶ 90-91. While it was a Wyndham property, Gorss Motels received only three faxes relating to Lands' End, the Faxes. Id. ¶¶ 82, 84.

         Gorss Motels alleges that Lands' End profits and benefits from the sale of products, goods, and services advertised in the allegedly unsolicited Faxes. Am. Compl., ECF No. 49 ¶ 14 (Dec. 12, 2017). Furthermore, Gorss Motels alleges that the Faxes lack required opt-out language, id. ¶ 16, and that Gorss Motels has lost paper, toner, and time, resources that would otherwise be used in the course of their business activities, id. ¶ 36.

         B. Procedural History

         On January 4, 2017, Gorss Motels filed a putative class action Complaint against Lands' End 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., ECF No. 1 ¶¶ 1-2 (Jan. 4, 2017).

         On the same day, Gorss Motels moved to certify the class, or in the alternative, stay proceedings. Mot. for Class Certification and for a Temporary Stay of Further Proceedings on that Mot., ECF No. 2 (Jan. 4, 2017).

         On March 20, 2017, Lands' End 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. Mot. to Stay, ECF No. 20 (Mar. 20, 2017).

         On April 10, 2017, Gorss Motels objected to Lands' End's motion to stay. Mem. in Opp'n, ECF No. 33 (Apr. 10, 2017).

         On April 25, 2017, the Court entered an order addressing several motions: it denied without prejudice Gorss Motel's motion to certify the class, ECF No. 2, and found as moot both Gorss Motel's motion to stay, ECF No. 2, and Lands' End's motion to stay, ECF No. 20. Order, ECF No. 36 (Apr. 25, 2017). The Court also ordered Lands' End to respond to the Complaint within thirty days. Id.

         On May 25, 2017, Lands' End timely filed its Answer with affirmative defenses. Answer, ECF No. 37 (May 25, 2017).

         On December 12, 2017, Gorss Motels amended its Complaint to add a similar claim under Conn. Gen. Stat. § ...