Serial TCPA Plaintiff Suffers Another Defeat

The United States District Court for the District of Connecticut recently dealt another blow to serial TCPA plaintiff, Gorss Motels, Inc., granting summary judgment to the defendant in Gorss Motels, Inc. v. Lands’ End, Inc., No. 17-cv-00010, 2020 WL 264784 (D. Conn. Jan. 16, 2020). This is the latest in a series of adverse decisions—including from a Court of Appeal—suffered by Gorss Motels.

All the cases have the same basic fact pattern. Gorss Motels ran a Super 8 Motel pursuant to a franchise agreement it signed with the Wyndham Hotel Group. That franchise agreement—in which Gorss Motels provided Wyndham its fax number—required Gorss Motels to purchase certain items only from approved suppliers. The franchise agreement stated Wyndham could offer assistance to Gorss Motels with purchasing items and provided that Wyndham’s affiliates could offer the service to Gorss Motels on Wyndham’s behalf. Gorss Motels also received a Franchise Disclosure Document that disclosed an affiliate of Wyndham, Worldwide Sourcing Solutions, Inc. (“WSSI”), would offer goods and services to franchisees and that Gorss Motels may only purchase equipment from WWSI’s Approved Supplier program. Gorss Motels acknowledged that Wyndham-approved vendors would receive Gorss Motels’ contact information in order to offer their products and services. In all the recent cases brought by Gorss Motels, Gorss Motels has sued one of the Wyndham-approved vendors for sending a fax that offered its products for the Super 8 Motel.

Last month, the District of Connecticut granted summary judgment to one such vendor, Lands’ End. The court held that Lands’ End’s faxes were not unsolicited because Gorss Motels gave Wyndham permission to send faxes and consented to receive faxes from approved suppliers. The court rejected Gorss Motels’ arguments that (i) it only gave prior express permission to Wyndham and that permission cannot be transferred; (ii) there was no prior express permission because none of the franchise documents Gorss Motels signed explicitly stated that Wyndham could or would send fax advertisements; and (iii) a finding that the provision of the fax number was sufficient to establish prior express permission would render the TCPA’s statutory safe harbor for an established business relationship superfluous. “Because the franchise agreements contemplated that the hotels could receive optional assistance with purchasing items from Wyndham and its affiliates . . . by providing their fax numbers in their agreements, the hotels invited the assistance or advertisements to come by fax.” 2020 WL 264784, at *12 (internal quotation marks and alterations omitted).

Lands’ End was not the first decision to apply this reasoning to Gorss Motels’ claims. Indeed, the Lands’ End court explicitly quoted and relied on the 11th Circuit’s decision in Gorss Motels, Inc. v. Safemark Sys., 931 F.3d 1094 (11th Cir. 2019) and the District of Connecticut’s prior decision in Gorss Motels, Inc. v. Otis Elevator Cor., —F. Supp. 3d—, No. 16-cv-1781, 2019 WL 4761212 (D. Conn. Sept. 30, 2019), both of which dealt with substantially similar summary judgment motions. Other courts have used similar reasoning to deny class certification to Gorss Motels, finding that the presence of individual questions concerning prior express permission predominated over common questions such that the case could not be suitable for class resolution. See Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 331 F.R.D. 355 (N.D. Ind. 2019); Gorss Motels, Inc. v. Safemark Sys., LP, No. 16-cv-01638, 2018 WL 1635645 (M.D. Fla. Apr. 5, 2018); Gorss Motels Inc. v. A.V.M. Enters., Inc., No. 17-cv-01078, 2019 WL 4278951 (D. Conn. Sept. 10, 2019); Gorss Motels, Inc. v. AT&T Mobility LLC, No. 17-cv-403, 2019 WL 625699 (D. Conn. Feb. 14, 2019). Interestingly, some of the courts that denied class certification originally denied motions to dismiss, finding that Gorss Motels properly alleged a TCPA claim. See Gorss Motels, Inc. v. AT&T Mobility LLC, 299 F. Supp. 3d 389 (D. Conn. Mar. 15, 2018); Gorss Motels, Inc. v. A.V.M. Enters. Inc., No. 17-cv-1078, 2018 WL 691713 (D. Conn. Feb. 2, 2018).

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