The Losses Mount for a Serial TCPA Plaintiff

In an ever-growing string of losses, the Seventh Circuit affirmed the Northern District of Indiana in denying class certification to serial TCPA plaintiff Gorss Motels, Inc. in Gorss Motels, Inc. v. Brigadoon Fitness, Inc., — F.4th —, 2022 WL 872639 (7th Cir. 2022).

The fact pattern in the present matter is consistent with the other cases Gorss Motels has filed, and the basic fact pattern can be found here. In the present case, Gorss Motels sued a franchisor-approved vendor, Brigadoon Fitness, Inc., for sending a fax advertisement for deals on fitness equipment. Gorss Motels was denied certification for a class of all recipients of this fax, Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 331 F.R.D. 335 (N.D. Ind. 2019), which was denied again on reconsideration, Gorss Motels, Inc. v. Brigadoon Fitness, Inc., No. 1:16-CV-330-HAB, 2019 WL 5692168 (N.D. Ind. Nov. 4, 2019).

In this latest chapter of the certification saga, the Seventh Circuit affirmed the lower court’s denial of class certification. The court held that Gorss Motels failed to show that permission would be a common issue of fact or law that would predominate in a class action. The lower court had correctly reasoned that because Brigadoon Fitness compiled fax numbers from multiple sources—including franchise agreements, oral permission at trade conventions, customer lists, etc.—there was no generalized proof for consent applicable to all class members. Across this diverse array of potential class members, prior express permission would have been provided through “a large variety of contracts, relationships, and personal contacts” that would make common proof impossible. 2022 WL 872639, at *7. Moreover, Gorss Motels could not succeed with a smaller “Wyndham-only” class because Wyndham’s franchise agreements permitted both Wyndham and its approved vendors and affiliates to send advertisements via fax—thus precluding the argument that prior express permission had been improperly transferred from Wyndham to Brigadoon Fitness.

The Seventh Circuit is yet another court in a growing number of federal circuits to reject Gorss Motels’ claims under the TCPA. For more information, look at our prior blog post that examines cases in the Second and Eleventh Circuits that likewise rejected certification for Gorss Motels’ claims.