United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN, UNITED STATES DISTRICT JUDGE
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.
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”).
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)
following reasons, Lands' End's motion for summary
judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
March 11, 2009, Gorss Motels and Super 8 amended the 1988
Franchise Agreement to extend the term to August 15, 2014.
Id. ¶ 7.
22, 2014, as the expiration of the 1988 Franchise Agreement
approached, Gorss Motels applied to Wyndham to continue as a
franchisee. Id. ¶ 10.
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.
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.
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).
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
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.”).
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.
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.
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.
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.
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. ¶
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.
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. 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.
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.
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.
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).
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.
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.
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).
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).
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).
April 10, 2017, Gorss Motels objected to Lands' End's
motion to stay. Mem. in Opp'n, ECF No. 33 (Apr. 10,
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.
25, 2017, Lands' End timely filed its Answer with
affirmative defenses. Answer, ECF No. 37 (May 25, 2017).
December 12, 2017, Gorss Motels amended its Complaint to add
a similar claim under Conn. Gen. Stat. § ...