United States District Court, N.D. Indiana, Fort Wayne Division
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.
OPINION AND ORDER
A. BRADY JUDGE
April 2013, Defendant Brigadoon Fitness, Inc., a licensed
distributor of commercial fitness equipment and accessories
to the hospitality industry, sent a one-page fax advertising
its services to thousands of hotel and motel franchisees.
Plaintiff, a former Wyndham franchisee that operated a Super
8 motel, claims to have received this “junk fax.”
Over three years later, Plaintiff filed a lawsuit against
Brigadoon for the lost use of its fax machine, paper, and ink
toner and the wasted expenditure of time.
alleges that Defendant violated the Telephone Consumer
Protection Act (TCPA) of 1991, as amended by the Junk Fax
Prevention Act of 2005, 47 U.S.C. § 227, by sending an
unsolicited fax advertisement. Plaintiff seeks to certify a
putative class of all 10, 490 Brigadoon fax recipients.
Court previously denied Plaintiff's motion for class
certification. Plaintiff asks the Court to reconsider its
ruling or, alternatively, to certify a class consisting of
recipients of the April 2013 fax whose numbers were obtained
from “the Wyndham Fax List.” This alternatively
defined class would include only those recipients of the fax
who were, like Plaintiff, Wyndham franchisees, and were
included in a fax list that Wyndham supplied to Brigadoon due
to its status as a Wyndham approved supplier.
Opinion and Order considers both motions and determines
whether this case should be certified as a class action,
either as defined in Plaintiff's original request and
argued in the Motion to Reconsider Denial of Class
Certification [ECF No. 100], or as more narrowly defined in
its Amended Motion for Class Certification [ECF No. 102].
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”).
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 Wyndham franchisees. On April 15,
2013, Wyndham supplied the list forming a portion of the
intended recipients of the facsimile in question (the
“Wyndham Fax List”), writing: “Please find
attached the April 2013, Wyndham Hotel Group, International
Manager and owner databases for your organization's use
and reference.” (ECF No. 58-4, Feldman Dep. Ex. 3.)
addition to periodic spreadsheets, Wyndham provided Brigadoon
with performance improvement plans (PIPs) that listed
improvements needed to be made to specific franchisees'
properties and included those franchisees' fax numbers.
(DE 65-3, Feldman Decl. ¶10). A franchisee who entered
into a PIP agreed that select portions of the PIP could be
provided to Wyndham's approved vendors for the purpose of
their offering products and services that were required to
complete the PIP.
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.
is a former Wyndham franchisee that operated a Super 8 motel.
As part of its relationship with Wyndham, Plaintiff made some
of its information available for directories, including its
fax number. As a result, members of the public were able to
contact Plaintiff along with other Wyndham franchisees.
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.
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 organized
fax broadcast was coordinated in April 2013. Brigadoon's
Kevin Feldman provided WestFax with a fax list (the
“April 2013 Fax List”). Brigadoon synthesized 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 with
over the telephone, via email, or at industry trade
conventions; franchisees of major hotel chains with which
Brigadoon had vendor status; and hotels operating under
common management or that were members or customers of a
large purchasing network known as the National Purchasing
Network. Brigadoon had a regular and established practice of
doing business via fax with its past and present customers,
who requested that Brigadoon send information by fax.
April 17, 2013, with the contact information Brigadoon
provided, WestFax attempted to transmit the broadcast, as
evidenced by the fax broadcast report and invoice. Gorss'
expert opines that from this list about 10, 500 faxes were
successfully sent, including 3, 316 fax numbers belonging to
Wyndham franchisees from the Wyndham Fax List. However, the
Wyndham Fax List includes fax numbers from Wyndham
franchisees with whom Brigadoon also had pre-existing
relationships. The Wyndham Fax List includes fax numbers that
also appear in Brigadoon's internal Goldmine contacts
database, fax numbers associated with then current and
previous Brigadoon customers whose contact information was
stored in ...