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Gorss Motels, Inc. v. Brigadoon Fitness Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

May 20, 2019

GORSS MOTELS, INC., a Connecticut corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs,
BRIGADOON FITNESS INC., an Indiana corporation, BRIGADOON FINANCIAL, INC., an Indiana corporation, and John Does 1-5, Defendants.



         The Plaintiff, Gorss Motels, Inc., individually and on behalf of all others similarly situated, alleges that the Defendants violated the Telephone Consumer Protection Act (TCPA) of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. Section 227(b)(1)(C) of Title 47 of the United States Code makes it unlawful to send an unsolicited advertisement by fax unless it contains a notice that informs the recipient how to “opt out” of future advertisements and provides a cost-free mechanism by which the recipient can do so. The Plaintiff seeks to certify a class of members to whom an advertisement was successfully faxed on April 17, 2013. The Defendants oppose class certification on the ground that some, if not all, of the purported class members consented to receipt of the fax, and “opt out” notices are not required on advertisements that have been solicited. Therefore, the Defendants argue, the class definition is overbroad because it includes members against whom the Defendant cannot be liable. Additionally, determining who consented to receipt of a fax would, according to the Defendants, predominate over any issues common to the class.


         Brigadoon Fitness is a licensed distributor of commercial fitness equipment and accessories to the hospitality industry. In August 2012, Brigadoon acquired Hotel Fitness Club, Inc., and continues to operate under the Hotel Fitness name. At the time of this acquisition, Hotel Fitness was subject to a Sourcing Agreement with Worldwide Sourcing Solutions, Inc. (“WSSI”), a wholly-owned subsidiary of Wyndham Worldwide Corporation and an affiliate of Wyndham Hotel Group, LLC (“Wyndham”). Wyndham is party to multiple franchise agreements in the hospitality industry, and assists WSSI in negotiating contracts with various third parties. Brigadoon's acquisition of Hotel Fitness made it a party to the Sourcing Agreement, which allowed it to sell fitness equipment to Wyndham franchisees through various Wyndham marketing programs. Periodically, Brigadoon received customer information from Wyndham, including fax numbers “for [Brigadoon's] use and reference.” (DE 60-1 at 21.)

         Brigadoon also had contractual relationships with other entities such as Interstate Hotels Group, Best Western, Choice Hotels, and La Quinta chains, each of which had their own contractual relationships with franchisees. These hospitality chains also periodically provided Brigadoon with franchise information, including fax numbers.

         The Plaintiff is a former Wyndham franchisee that operated a Super 8 motel. As part of its relationship with Wyndham, the Plaintiff made some of its information available for directories, including its fax number. As a result, members of the public were able to contact the Plaintiff along with other Wyndham franchisees. The Plaintiff, through Steven Gorss, also attended annual conventions where he provided contact information to Wyndham-approved suppliers, including a convention that took place in 2012.

         The Plaintiff alleges that he received an unsolicited fax from Brigadoon on April 17, 2013, as part of a broadcast that successfully transmitted via fax to over 10, 000 recipients. The fax did not contain an “opt-out notice” that informed recipients how to opt out of future faxes. Brigadoon synthesized its fax list (the “April 2013 Fax List”) from numbers it obtained from Wyndham as part of the Sourcing Agreement; existing or potential customers with whom Brigadoon had previously interacted; franchisees of major hotel chains with which Brigadoon had vendor status; hotels operating under common management or that were members or customers of a large purchasing network known as the National Purchasing Network; and trade show attendees.

         The Plaintiff initiated this lawsuit pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of itself and all other similarly situated as members of the following proposed class:

All persons or entities who were successfully sent a Fax on April 17, 2013, stating, “ANY 2 CARDIO = FREE SANITATION STATION, ” listing “Hotel Fitness A Brigadoon Fitness Company” as the vendor, and containing the phrase “Let Us Help You Design Your Fitness Room! 800.291.0403 Call today to talk to one [of] our trained experts.”

         The Plaintiff seeks monetary damages and an injunction on behalf of himself and the class.


         “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). Instead, plaintiffs bear the burden to show that a proposed class satisfies Rule 23. Arwa Chiropractic, P.C. v. Med-Care Diabetic & Med. Supplies, Inc., 14-C-5602, 2017 WL 4339788, at *2 (N.D. Ill. Sep. 29, 2017) (citing Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012)). A plaintiff satisfies Rule 23 when he meets all of the requirements of Federal Rule of Civil Procedure 23(a) and one of the requirements of Rule 23(b). See Fed. R. Civ. P. 23; Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992).

         First, the plaintiff must show:

(1) the class is so numerous that joinder of all members is ...

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