422 F.Supp.3d 487
D. Conn.2019Background:
- Single facsimile sent to Gorss Motels on August 13, 2015 advertising Otis Elevator services; plaintiff alleges missing TCPA opt-out notice and damages for toner/paper/time.
- Gorss is a Super 8 franchisee; it provided its fax number in a 2014 Franchise Agreement and separately signed a Property Improvement Plan (PIP) that authorized Wyndham-approved vendors to use contact information to offer required services; the PIP identified elevator repairs.
- Wyndham affiliate WSSI arranged the distribution; WSSI edited the flyer and engaged a vendor (Western Printing → WestFax) to send the fax; Otis had contracted with WSSI as an Approved Supplier but did not directly send the fax or deal with the fax vendor.
- Gorss did not opt out or otherwise notify Wyndham/WSSI it did not want such communications and testified he typically did not read fax footers.
- Procedural posture: Gorss filed a putative class action; class certification was denied; Otis moved for summary judgment and the court granted it, dismissing the TCPA claim.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Statutory TCPA violation and concrete harms (paper/toner/line use) suffice post-Spokeo/Strubel | No concrete injury because owner never read disclosures and would not have opted out | Court declined to resolve standing; did not grant summary judgment on this basis |
| Prudential standing / "professional plaintiff" | Gorss used fax for legitimate business; forwarding to counsel doesn’t strip zone-of-interests | Gorss a professional plaintiff outside the statute's zone of interests | Court declined to resolve; did not grant summary judgment on this basis |
| Whether Otis was the "sender" under TCPA | Otis benefited and is liable as the on-whose-behalf entity | Otis did not directly send the fax; WSSI/third-party vendors sent it | Court did not decide sender question because outcome turned on solicited/unsolicited issue |
| Solicited vs. unsolicited (prior express permission and opt-out requirement) | Fax lacked required opt-out and permission was not given to Otis; consent to Wyndham is not consent to third parties | Gorss expressly agreed in Franchise Agreement and PIP to be contacted by Wyndham affiliates/approved vendors (including Otis); fax therefore solicited and no opt-out was required | Court held the fax was solicited based on the signed Franchise Agreement and PIP (which identified elevator work), so TCPA opt-out rule did not apply and claim was dismissed |
| Willful/knowing (treble damages) | N/A (argues damages available) | Otis sought partial summary judgment that conduct was not knowing/willful | Court did not address separately after dismissing claim as solicited |
Key Cases Cited
- Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016) (explains when a procedural statutory violation can constitute concrete injury post-Spokeo)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Supreme Court on concrete and particularized injury requirement for Article III standing)
- Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017) (invalidated FCC rule requiring opt-out notices on solicited faxes)
- King v. Time Warner Cable, Inc., 894 F.3d 473 (2d Cir. 2018) (Second Circuit treats consolidated D.C. Circuit review of FCC rules as binding within the circuit)
- Gorss Motels, Inc. v. Safemark Systems, 931 F.3d 1094 (11th Cir. 2019) (franchise agreements held to constitute prior express permission for approved-vendor faxes)