Message Still Not Received: Company Fails In Yet Another Bid to Certify Fax Class Action

One TCPA plaintiff’s national tour of district courts has certainly not been going well.

Back in April, we reported on how the District of Connecticut rejected plaintiff Gorss Motels’ third bid for certification of a class of fax recipients where the faxes in question allegedly did not contain specific opt-out language.  Following the withdrawal of the FCC’s solicited fax rule and the decision in Bais Yaakov of Spring Valley, et al. v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017), only unsolicited faxes had to maintain the opt-language.  In the Connecticut cases, whether or not a fax was solicited became the critical issue, and as it is one requiring individualized proof, no certification could be granted.

In that post, we predicted that “bids to certify TCPA classes relying on a missing opt-out language theory are now likely to meet with repeated (failure).”  How prescient of us.

Just this week, the Northern District of Indiana in Gorss Motels v. Brigadoon Fitness, 2019 U.S. Dist. LEXIS 84058 (N.D. Ind., May 20, 2019) denied certification of a proposed class of recipients of an April 17, 2013 fax which allegedly did not contain an “opt-out notice.” The Fax List maintained by defendant included numbers obtained through its status as a Wyndham-approved supplier. (Gorss Motels is a former Wyndham franchisee that operated a Super 8 Motel).  However, the Fax List also contained recipients who were past or present customers with contact information housed in defendant’s accounting systems, or who attended trade conventions as hotel representatives and permitted defendant to scan their identification badges with their contact information. Determining which of the hundreds of customers in defendant’s accounting system provided permission for defendant  to send facsimiles, and the status of any permission, would require an individualized inquiry.  Thus, the proposed class was not “sufficiently cohesive” and could result in “unlimited mini-trials.”

Based on the opinion, it does not appear that Gorss Motels pushed the same meritless argument it did in the Connecticut cases—namely, that court should not follow Bais Yakkov and should continue to apply the withdrawn FCC rule.  Now that the FCC rule has been withdrawn and yet another court denied class certification,  it is becoming all the  more unlikely that these types of classes will ever be certified.


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