Gorss Motels, Inc. v. Brigadoon Fitness Inc., 29f4th839

Background

Brigadoon Fitness sent a mass fax advertisement on April 17, 2013 to over 10,000 fax numbers; Gorss Motels received one and sued under the TCPA seeking class relief for all recipients.
Brigadoon compiled recipient numbers from multiple sources: Wyndham franchise lists (via a sourcing agreement), diverse franchise agreements, trade-show badge swipes/oral contacts, Brigadoon’s internal databases, prior customers, and a purchasing network.
The TCPA forbids unsolicited fax advertisements; prior express invitation or permission is an affirmative defense for which defendants bear the burden at trial.
Gorss moved to certify a Rule 23(b)(3) class of all recipients, then a narrower "Wyndham-only" subclass; the district court denied both certifications, finding individualized permission inquiries would predominate.
On appeal Gorss argued the district court (1) demanded too little from Brigadoon before denying certification, (2) applied an improper ("implied consent") standard rather than the standard later articulated in Physicians Healthsource, and (3) wrongly allowed transferred consent from franchisors to vendors.
The Seventh Circuit affirmed, holding the district court did not abuse its discretion: the varied sources of contact information meant the key permission issue could not be resolved by common, class-wide proof.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred by denying class certification without requiring Brigadoon to identify specific class members who consented or proof that a "significant percentage" consented	Gorss: Brigadoon should have to present specific evidence that a significant percentage of the class consented before certification was denied	Brigadoon: Presented concrete, varied evidence of contracts, vendor relationships, trade-show contacts and databases showing individualized permission issues	Court: No error — predominance focuses on whether common proof exists; Brigadoon’s diverse evidence showed individualized inquiries would predominate
Whether district court applied an incorrect ("implied consent") legal standard for "prior express invitation or permission"	Gorss: Court applied too lax a standard and ignored Physicians Healthsource refinements	Brigadoon: Court applied a proper standard (consumer must understand providing fax number permits faxed ads); evidence still required individualized analysis	Court: No reversible error — district court’s understanding aligned with FCC guidance and Physicians Healthsource; under either formulation Gorss offered no class-wide method to resolve permission
Whether permission granted to a franchisor (Wyndham) can be "transferred" to vendors like Brigadoon for class-wide defeat of certification	Gorss: Permission to Wyndham should not transfer to third-party vendors; thus class-wide finding should exclude transfer theory	Brigadoon: Some franchise agreements expressly authorized franchisor-approved vendors to contact franchisees, so permission could be granted broadly to a group	Court: Distinguishes successor-transfer cases; permission granted broadly to a group (franchisor and approved vendors) can defeat class treatment because issues remain individualized; no error in district court’s approach
Whether district court abused discretion in denying original and narrowed (Wyndham-only) class certifications	Gorss: Denial was abuse of discretion given defendant’s burden at trial and later precedent	Brigadoon: Evidence showed multiple, non-uniform sources of consent necessitating individualized proof	Court: Affirmed — district court reasonably concluded individualized issues of prior express permission predominate, defeating Rule 23(b)(3) predominance requirement

Key Cases Cited

Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360 (7th Cir. 2015) (standard of review and class-certification burdens)
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S. 2011) (plaintiff must affirmatively demonstrate Rule 23 requirements)
Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (U.S. 2016) (predominance requires scrutiny of relation between common and individual questions)
Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC, 950 F.3d 959 (7th Cir. 2020) (defining prior express permission under TCPA and limits on transferred consent)
CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011) (FCC interpretation of express permission cited)
In re Allstate Corp. Sec. Litig., 966 F.3d 595 (7th Cir. 2020) (discussing engagement with merits in predominance analysis)
Brodsky v. HumanaDental Ins. Co., 910 F.3d 285 (7th Cir. 2018) (individualized consent issues can defeat class certification)
True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923 (9th Cir. 2018) (uniform registrations may permit class-wide proof of consent)
Bridging Communities, Inc. v. Top Flite Fin., Inc., 843 F.3d 1119 (6th Cir. 2016) (purchased third-party lists can support class-wide absence of consent)
Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008) (lack of consent may be decided class-wide when numbers obtained from a single source)
Messner v. Northshore Univ. Healthsystem, 669 F.3d 802 (7th Cir. 2012) (Rule 23(b)(3) requires common methodology, not common results)
Gorss Motels, Inc. v. Lands’ End, Inc., 997 F.3d 470 (2d Cir. 2021) (interpreting Wyndham franchise language re: vendor permissions)
Gorss Motels, Inc. v. Safemark Systems, LP, 931 F.3d 1094 (11th Cir. 2019) (same issue: franchise agreements can permit third-party vendor contacts)