Gorss Motels, Inc. v. AT&T Mobility, LLC

• Decision Date: 22 September 2020
• Docket Number: Civil No. 3:17-cv-403 (JBA)
• Citation: 490 F.Supp.3d 476
• Court: U.S. District Court — District of Connecticut
• Parties: GORSS MOTELS, INC., Plaintiff, v. AT&T MOBILITY, LLC & AT&T Mobility National Accounts, LLC, Defendants.

490 F.Supp.3d 476

GORSS MOTELS, INC., Plaintiff,

v.AT&T MOBILITY, LLC & AT&T Mobility National Accounts, LLC, Defendants.

Civil No. 3:17-cv-403 (JBA)

United States District Court, D. Connecticut.

Signed September 22, 2020

Aytan Y. Bellin, Bellin & Associates, LLC, White Plains, NY, Brian J. Wanca, Pro Hac Vice, Ryan Michael Kelly, Glenn L. Hara, Wallace C. Solberg, Pro Hac Vice, Anderson & Wanca, Rolling Meadows, IL, for Plaintiff.

Hans J. Germann, Pro Hac Vice, Kyle J. Steinmetz, Pro Hac Vice, Mayer Brown LLP, Chicago, IL, Michael T. McCormack, Timothy P. Jensen, O'Sullivan McCormack Jensen & Bliss PC, Wethersfield, CT, for Defendant AT&T Mobility LLC.

Hans J. Germann, Mayer Brown LLP, Chicago, IL, for Defendant AT&T Mobility National Accounts LLC.

RULING ON PLAINTIFF'S AND DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Janet Bond Arterton, U.S.D.J. Plaintiff Gorss Motels, Inc. ("Gorss")¹ brings a claim against Defendants AT&T Mobility, LLC and AT&T Mobility National Accounts, LLC (together, "AT&T") for violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Prevention Act of 2005 ("JFPA"), by sending an impermissible fax advertisement on January 13, 2014. Both Plaintiff and Defendants separately move for summary judgment in their favor. Oral argument on the parties’ motions was held on August 14, 2020. For the reasons that follow, Defendants’ Motion for Summary Judgment is granted in part and denied in part, and Plaintiff's Motion for Summary Judgment is denied.

I. Background

Plaintiff Gorss Motels, Inc. entered into a twenty-year franchise agreement with Super 8 Motels, Inc. in October 1988 ("1988 Franchise Agreement") to operate a hotel in Cromwell, Connecticut. (Parties’ L.R. Stmts. [Docs. ## 91, 99-1] ¶ 4; Ex. C (1988 Franchise Agreement) to Pl.’s Opp. to Defs.’ Mot. for Summ. J. [Doc. # 99-3].) In March 2009, Gorss and Super 8 Motels amended the 1988 Franchise Agreement to extend its term to August 15, 2014 ("2009 Amendment"). (Parties’ L.R. Stmts. ¶ 5; Ex. D (2009 Amendment) to Pl.’s Opp. to Defs.’ Mot. for Summ. J. [Doc. # 99-3].) In September 2014, Gorss and Super 8 Motels entered into a new twenty-year franchise agreement ("2014 Franchise Agreement"). (Parties’ L.R. Stmts. ¶ 10; Ex. E (2014 Franchise Agreement) to Pl.’s Opp. to Defs.’ Mot. for Summ. J. [Doc. # 99-3].) In September 2014, Gorss and Super 8 Motels entered into a new twenty-year franchise agreement ("2014 Franchise Agreement"). (Parties’ L.R. Stmts. ¶ 10; Ex. E (2014 Franchise Agreement) to Pl.’s Opp. to Defs.’ Mot. for Summ. J. [Doc. # 99-3].) Wyndham Hotel Group ("Wyndham") is a hotel franchise corporation which operates the Super 8 franchise. (Parties’ L.R. Stmts. ¶¶ 1-2.)

The 1988 Franchise Agreement required Gorss to "furnish motel accommodations, services and conveniences of the same high quality and distinguishing characteristics as provided at Super 8 Motels in and around the United States." (1988 Franchise Agreement at 3.) Under that agreement, Gorss was also required to "operate its motel at all times in strict compliance with the System," defined as the "plan or system" "developed and perfected" by Super 8 Motels, Inc. "for providing to the general public, and especially to the motoring public, a motel service, including lodging and other accommodations of a distinctive nature, of high quality and of other distinguishing characteristics." (Id. at 2-3.) The agreement also required Gorss to follow "the specifications and quality of items of personal property to be used in the franchised motel ... established by" Super 8 Motels. (Id. at 8.) Gorss agreed "to purchase from [Super 8], or from any other source whose supplies and equipment have been approved in writing," certain enumerated items. (Id. ) The 1988 Franchise Agreement did not include any language explicitly discussing the sending of advertisements by approved suppliers to the franchisee, either by facsimile or otherwise, nor did it include mention of Gorss's fax number. (See generally id. )

The 2014 Franchise Agreement, which Gorss signed approximately eight months after receiving the Fax, included additional information and requirements regarding Wyndham marketing, approved supplier programs, and the System Standards. Specifically, that agreement provided:

4.4. Purchasing and Other Services. We may offer optional assistance to you with purchasing items used at or in the Facility. Our affiliates may offer this service on our behalf. We may restrict the vendors authorized to sell proprietary or Mark-bearing items in order to control quality, provide for consistent service, or obtain volume discounts. We will maintain and provide to you lists of suppliers approved to furnish Mark-bearing items, or whose products conform to System Standards.

(2014 Franchise Agreement § 4.4.) At the time of the 2014 Franchise Agreement, Gorss also received a Franchise Disclosure Document, which further described the required facility specifications and the approved suppliers program. (Parties’ L.R. Stmts. ¶¶ 25-29.)

In January 2010, Gorss returned to Super 8 a completed Site Contact Form, on which Gorss listed its fax number, along with other contact information. (Id. ¶ 6; Ex. C (Site Contact Form) to Ex. 1 (Fenimore Decl.) to Defs.’ Mot. for Summ. J. [Doc. # 94-1].) The Site Contact Form includes the "Wyndham Hotel Group" logo at the top. (Site Contact Form.) The Form indicates the "contact information currently recorded in our system" and asks franchisees to "[p]lease review and if there are any revisions, enter the updates on the right" side of the form. (Id. ) The Site Contact Form asks for the name, address, phone number, fax number, and email address of both the "Entity Principal Contact" and the "Site Principal Contact." (Id. ) Steven Gorss, the principal of Plaintiff Gorss Motels, Inc., completed the Site Contact Form for Plaintiff. (Id. ) The fax number at issue was already listed under "Current Contact Information." (Id. ) Mr. Gorss added an email address but made no other changes to the existing contact information. (Id. ) The Site Contact Form states that "[u]pon receipt" of the completed form, "we will update our database" but includes no additional information about the intended use of the requested contact information and makes no mention of any advertising services. (Id. ) That fax number was also published in Super 8 Motel directories. (Parties’ L.R. Stmts. ¶ 11.)

Wyndham participates in a marketing program through its wholly-owned subsidiary, Worldwide Sourcing Solutions, Inc. ("WSSI"). (Id. ¶ 14.) WSSI "supports the purchasing efforts of franchisees of Wyndham properties by negotiating process, volume discounts, and commissions for various products and services with third parties" through a program they refer to as "Strategic Sourcing." (Id. ) Through that program, WSSI "often entered into agreements with suppliers whose goods and services would be offered to Wyndham properties as part of the benefits of being a Wyndham franchise." (Id. ¶ 15.) "The Strategic Sourcing program exists in part to aid the franchisees in obtaining appropriate supplies that meet the requirements of Wyndham's System Standards, as required in each brand's franchise agreements." (Id. ¶ 16.) Through the Strategic Sourcing program, suppliers have "the opportunity to participate in marketing programs that are directed at Wyndham's franchises, including a program through which WSSI arranges for a third party to send faxes" to franchisees. (Id. ¶ 17.)

AT&T participated in Wyndham's Strategic Sourcing program as an approved supplier and participated in the associated marketing program. (Id. ¶¶ 10, 30.) As part of that program, Wyndham provided to AT&T a corporate directory which included franchise contact information. (Id. ¶ 31.) Through the relationship between Wyndham and AT&T, certain discounts were available to Wyndham-affiliated entities, including Super 8 franchises. (Id. ¶ 34.)

In January 2014, AT&T sent a fax advertisement ("the Fax") to certain Wyndham franchisees, including the Super 8 Motel operated by Plaintiff. (Id. ¶¶ 36-38.) AT&T used an outside vendor, Western Printing, to process and send the fax, and Western Printing outsourced the fax to another company, WestFax. (Id. ¶¶ 41-42.) The Fax prominently features the AT&T logo at the top and begins: "Attention Wyndham Hotel Group owners and hotel employees: Enjoy your 2014 Wyndham Hotel Group benefits!" (Ex. A (The Fax) to Am. Compl. [Doc. # 39-1].) The Fax advertises certain credits and rebates for the purchase of new items and service plans. (Id. ) At the bottom of the Fax, in font noticeably smaller than the rest of the page, there is some opt-out language:

This facsimile contains confidential information intended only for use by Wyndham Worldwide entities and Wyndham Hotel Group franchisees. If the reader of this facsimile is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this facsimile is strictly prohibited. If you have received this facsimile by error, please immediately notify us by emailing strategic.sourcing@wyn.com. To opt out from future faxes, email strategic.sourcing@wyn.com or call this toll-free number: (877) 764-4212.

(Id. ) The text in this portion of the Fax is somewhat difficult to read in light of its size and the quality of the Fax itself. (See id. ) In particular, the punctuation in the email address listed and the numerals of the toll-free phone number are difficult to discern. (See id. ) In response to the Fax, Plaintiff did not make any effort to opt out of receiving future faxes but rather sent any fax advertisements it received directly to its legal counsel without reviewing the opt-out language. (Parties’ L.R. Stmts. ¶¶ 49-51.) Plaintiff has since filed "over 20" junk fax cases against suppliers from the Wyndham program. (Id. ¶ 52.)

II. Discussion

A. Legal Standard

Summary...