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Gorss Motels, Inc. v. Brigadoon Fitness Inc.

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

November 4, 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.



         In 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.

         Plaintiff 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.

         The 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.

         This 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].


         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 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.)

         In 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.

         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.

         Plaintiff 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.

         Gorss 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.

         On 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 ...

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